UNITED STATES REPORTS
VOLUME 512
CASES ADJUDGED
IN
THE SUPREME COURr
AT
OCTOBER TERM, 1993
JUNK 13 THROUGH SEPTEMBER SO, 1994
tVKJKTtCKII WtTR OriHtOH OF IK01Y1WUL JUSTICE W
FRANK D. WAGNER
OF »EC:iBI0NS
WA8HIWOTOH : 1996
FtBrmaAtfit Printmg Fmper
ERRATUM
237 U. S. 309, line 14: "April 12" should be "April 19".
n
JUSTICES
OF THE
SUPREME COURT
DURING THK TIME OP THESE REPORTS*
WILLIAM H. REHNQUIST, CHIEF JUSTICE.
HARRY A. BLACKMUN, ASSOCIATE JUSTICE.'
JOHN PAUL STKVKNS, ASSOCIATE JUSTICE.
SANDRA DAY O'CONNOR, ASSOCIATE JUSTICE.
ANTON IN SCALIA, ASSOCIATE JUSTICE.
ANTHONY M. KKNNKDY, ASSOCIATE JUSTICE.
DAVID H. SOUTER, ASSOCIATE JUSTICE.
CLARENCE THOMAS, ASSOCIATE JUSTICE.
RUTH BADKR OINSBURG, ASSOCIATE JUSTICE.
STEPHEN BRKYKR, ASSOCIATE JUSTICE/
RETIRED
WARREN K. BURGER, CHIEF JUSTICE.
LEWIS K POWELL, JR., ASSOCIATE JUSTICE.
WILLIAM J. HRENNAN, JR., ASSOCIATE JUSTICE.
BYRON R. WHITE, ASSOCIATE JUSTICE.
OFFICERS OP THE COURT
JANET RENO, ATTORNEY GENERAL.
DREW S. DAYS III, SOLICITOR GENERAL.
WILLIAM K. SUTKR, CLKRK.
FRANK I). WAGNER, REPORTER OP DECISIONS.
ALFRED WONG, MARSHAL:'
DALE K. BOSLEY, MARSHAL.'*
SHELLEY L DOWLING, LIBRARIAN.
* iv,
in
NOTES
Justice Blackmun retired effective August 3, 1994. See post, p. vn.
2 The Honorable Stephen Breyer of Massachusetts, formerly a Judge of
the United States Court of Appeals for the First Circuit, was nominated
by President Clinton on May 13, 1994, to be an Associate Justice of this
Court; the nomination was confirmed by the Senate on July 29, 1994; he
was commissioned on August 2, 1994, and he took the oaths and his seat
on August 3, 1994. He was presented to the Court on September 30, 1994.
See post, p. XI.
3 Mr. Wong retired as Marshal effective June 30, 1994. See post, p. xv.
4 Mr. Bosley was appointed Marshal on August 2, 1994, effective August
1, 1994. See post, pp. xv, 1266.
SUPREME COURT OF THE UNITED STATES
ALLOTMRNT OP JUSTICES
It m ordered that the following allotment be made of the Chief
Justice and Ajwodate Justices of this Court among the circuits,
pursuant to TitU* 28, United States Code, Section 42, and that such
allotment be entered of record, effective October 1, 1993, viz.:
For the District of Columbia Circuit, WILLIAM H. REHNQXJIST,
Chief Justice.
For the First Circuit, DAVID H. SOUTER, Associate Justice.
For the Second Circuit, CLARENCE THOMAS, Associate Justice.
For the Third Circuit, DAVID H. SOUTER, Ansociate Justice*
For the Fourth Circuit, WILLIAM H. REHNQUIST, Chief Justice.
For the Fifth Circuit, ANTONIN SCALIA, Associate Justice,
For the Sixth Circuit, JOHN PAUL STEVENS, Associate Justice.
For the Seventh Circuit* JOHN PAUL STEVENS, Associate Justice.
For the Eighth Circuit, HAERY A, BLACKMUN, Associate
For the Ninth Cireuitf SANDRA DAY O'CONNOR, Associate
JuHtice.
For th«* T«mth Circuit, RUTH BADER GINSBURG, Associate
For thi* KU»venth (Circuit, ANTHONY M. KENNEDY, Associate
Fur th* Ft*d«*riil Circuit, WILLIAM II REHNQUIST, Chief Justice,
Ortcjh<»r 1, 1JKW.
(For pwviouH nllotmimt, and modifications, see 502 US-,
p. vi, and SOJ) U. S-, p. v.)
(For nt'xt Hwh«i*quc*nt allotment, nee pont, p. VL)
*F«r onlw of AuguHt 3, 1994, aligning JUSTICE THOMAS to the Eighth
Circuit, HW po*t, p. 1272.
SUPREME COURT OF THE UNITED STATES
ALLOTMENT OF JUSTICES
It is ordered that the following allotment be made of the Chief
Justice and Associate Justices of this Court among the circuits,
pursuant to Title 28, United States Code, Section 42, and that such
allotment be entered of record, effective September 30, 1994, viz.:
For the District of Columbia Circuit, WILLIAM H. REHNQUIST,
Chief Justice.
For the First Circuit, DAVID H. SOUTER, Associate Justice.
For the Second Circuit, RUTH BADER GINSBURG, Associate
Justice.
For the Third Circuit, DAVID H. SOUTER, Associate Justice,
For the Fourth Circuit, WILLIAM H. REHNQUIST, Chief Justice.
For the Fifth Circuit, ANTONIN SCALIA, Associate Justice.
For the Sixth Circuit, JOHN PAUL STEVENS, Associate Justice.
For the Seventh Circuit, JOHN PAUL STEVENS, Associate Justice.
For the Eighth Circuit, CLARENCE THOMAS, Associate Justice.
For the Ninth Circuit, SANDRA DAY O'CONNOR, Associate
Justice.
For the Tenth Circuit, STEPHEN BREYER, Associate Justice.
For the Eleventh Circuit, ANTHONY M. KENNEDY, Associate
Justice.
For the Federal Circuit, WILLIAM H. REHNQUIST, Chief Justice.
September 30, 1994.
(For next previous allotment, and modifications, see 502 U. S.,
p. vi, 509 IL S., p. v, and ante, p. v.)
VI
RKTIRKMKNT OF JUSTICE BLACKMUN
SUPREME ("DUET OP THE UNITED STATES
THFKSDAV JUNK 30, 1994
Present: CHIEF JUSTICE REHNQUIST, JUSTICE BLACKMU
JUSTICE STKVKNS, JUSTICE SCALIA, JUSTICE KENNED
JUSTICE SOKTKK, JUSTICE THOMAS, and JUSTICE GINSBUR
THE CHIEF JUSTICE »aid:
And we must also note with sadness that this is the la;
session in which our friend and colleague Harry Blaekmi
will be with u»f and on this occasion we have sent Justic
Hlackrnun the following letter which I will now read:
Sfl'KKMK COURT OP THE UNITED STATES,
CHAMBERS OF THE CHIEF JUSTICE,
Washington, II C.9 June 81, 1994.
Dear Harry,
Your rolU»atfu«»s are Had that you have chosen to retii
from the* Court You here twenty-four years ago-
longer than any of ua~and have served with no less tha
alxtinm different members.
Your opinion** have covered a wide range of the issues thi
corne befort* the Court, You are undoubtedly best know
for having authored the Court*» opinion in Roe v. Wade i
1978, but that distinction should not obscure the many othc
important on which you have spoken for the Cour
Your contributions have not limited to signed opinion!
but include is well your wise counsel in our Confereno
VII
VIII RETIREMENT OF JUSTICE BLACKMUN
And, though it has nothing to do with our judicial work,
you have made a major improvement in the cultural life of
the Court with your sponsorship of our biennial musical
performances.
We shall miss you — especially if you go through with your
present plans to move to Florida. But whether in Washing-
ton or Jacksonville, we wish you the very best.
Sincerely,
WILLIAM H. REHNQUIST
JOHN PAUL STEVENS
SANDRA DAY O'CONNOR
ANTONIN SCALIA
ANTHONY M. KENNEDY
DAVID H. SOUTER
CLARENCE THOMAS
RUTH BADER GINSBURG
JUSTICE BLACKMUN said:
I suppose I should read my response to the cordial letter
that has just been written and here it is:
SUPREME COURT OF THE UNITED STATES,
CHAMBERS OF JUSTICE HARRY A. BLACKMUN,
Washington, D. C., June 22, 1994.
My Dear Colleagues:
Your cordial letter brightens my day.
It has been a privilege for me to have been on the Federal
Bench for over three decades and on this Court for over two.
I have sat now with 17 Justices of the Court, about 15% of
all those who have served since 1790. And I have had the
privilege of knowing eight others whose service was com-
plete before I arrived here. You and the ones before you
who have departed since 1970 have provided pleasant friend-
ship, professional inspiration, imagination, instruction, and a
sense of worthwhile service in a common devotion to our
imperfect but beloved country. At times, our task has been
KKTIRKMKNT OK JITKTU'K BLACKMtIN r
heavy, the hours lung, and the stress substantial. Byron re
minded us that 'the Court is a very small organization fo
the* weight if carries; But always there was an awareness
that we wen* all in thin together, and that the system seemec
to he working. And there wan the conviction that this wai
the way it was meant to be and that it would work out al
right, What a comfort that has been, and what a comfort i
has been to work with each of you and with others of GUI
pivdtrt^/or.- who have deliberated around our conference
table.
As an old canoeist myself, I share Bill Douglas' vivid anc
eloquent description of our work together, the occasiona
Icing and strenuous |>ortugesf ami the last night's and the lasi
morning's farnpfin*', as he net it forth in his retirement let-
ter of November 14, 1075. 423 U. 8. IX, It is so true thai
the Justices of the Court are 'strangers at the beginning bul
almost invariably are close friends at the end/ So it was
for him. So it was for me. And HO it has been, I think, foi
each of us. We have been gathered from different places
and through the influence of different forces. That is one o:
the remarkable of this Court and of the experiene*
of service ujnin it.
Let ui4 hop** that* in the years far down the line, wher
history eu'iituully us in such perspective as we de-
si*rv4ff it at will be to They did their bent anc
did well' If that comes to be saidf it is because
of your rouprnition. your undpnttanding* your patience, anc
your arknuultnkaurnl that ours is a common, not an Individ-
ual, and that we »trov<% in our ways and with
our limited rupabilituv;, fur the righting of injUHtices of boti
ancient and rurrenl ori^Iiis, Fur al! this, 1 am grateful
Bincerelyv
HAREY
APPOINTMENT OF JUSTICE BREYER
SUPREME COURT OF THE UNITED STATES
FRIDAY, SEPTEMBER 30, 1994
Present: CHIEF JUSTICE REHNQUIST, JUSTICE STEVENS,
JUSTICE O'CONNOR, JUSTICE SCALIA, JUSTICE KENNEDY,
JUSTICE SOUTER, JUSTICE THOMAS, JUSTICE GINSBURG, and
JUSTICE BREYER.
The Marshal said:
All Rise, the President of the United States.
THE CHIEF JUSTICE said:
On behalf of the Court, Mr. President, I extend to you a
warm welcome. This special sitting of the Court is held
today to receive the Commission of the newly appointed As-
sociate Justice of the Supreme Court of the United States,
Stephen Breyer. The Court now recognizes the Attorney
General of the United States, Ms. Janet Reno.
The Attorney General said:
MR. CHIEF JUSTICE and may it please the Court, I have
the Commission which has been issued to the Honorable
Stephen Breyer as an Associate Justice of the Supreme
Court of the United States. The Commission has been duly
signed by the President of the United States and attested by
me as the Attorney General of the United States. I move
that the Clerk read the Commission and that it be made part
of the permanent records of this Court.
THE CHIEF JUSTICE said:
Thank you, Ms. Reno, your motion is granted. Mr. Clerk,
will you please read the Commission?
XI
xn APPOINTMENT OF JUSTICE BREYER
The Clerk read the Commission:
WILLIAM JEFFERSON CLINTON,
PRESIDENT OF THE UNITED STATES OF AMERICA,
To all Who Shall See These Presents, Greeting:
KNOW YE; That reposing special trust and confidence in
the wisdom, uprightness, and learning of Stephen G. Breyer,
of Massachusetts, I have nominated, and, by and with the
advice and consent of the Senate, do appoint him an Associ-
ate Justice of the Supreme Court of the United States and
do authorize and empower him to execute and fulfill the du-
ties of that office according to the Constitution and Laws of
the said United States, and to Have and to Hold the said
Office, with all the powers, privileges and emoluments to the
same of right appertaining, unto Him, the said Stephen G.
Breyer, during his good behavior.
In Testimony whereof, I have caused these Letters to be
made patent and the seal of the Department of Justice to be
hereunto affixed.
Done at the City of Washington, this Second Day of Au-
gust, in the year of our Lord one thousand nine hundred and
ninety-four, and of the Independence of the United States of
America the two hundred and nineteenth.
[SEAL] WILLIAM JEFFERSON CLINTON
By the President:
JANET RENO,
Attorney General
THE CHIEF JUSTICE said:
I now ask the Chief Deputy Clerk of the Court to escort
Justice Breyer to the bench.
APPOINTMENT OF JUSTICE BREYER xm
THE CHIEF JUSTICE said:
Justice Breyer, are you ready to take the oath?
Justice Breyer said:
I am.
THE CHIEF JUSTICE said:
Please repeat after me.
Justice Breyer said:
I, Stephen Breyer, do solemnly swear that I will adminis-
ter justice without respect to persons and do equal right to
the poor and to the rich and that I will faithfully and impar-
tially discharge and perform all the duties incumbent upon
me as an Associate Justice of the Supreme Court of the
United States under the Constitution and laws of the United
States, so help me God.
STEPHEN BREYER
Subscribed and aworn to before me this thirtieth day of
September, 1994.
WILLIAM H. REHNQUIST
Chief Justice
THE CHIEF JUSTICE said:
JUSTICE BREYER, on behalf of all the members of the
Court, it ia a pleasure to extend to you a very warm welcome
as the 108th Justice of the Court and to wish you a long and
happy career in our common calling.
RETIREMENT OF MARSHAL AND APPOINTMENT
OF SUCCESSOR
SUPREME COURT OF THE UNITED STATES
THURSDAY, JUNE 30, 1994
Present: CHIEF JUSTICE REHNQUIST, JUSTICE BLACKMUN,
JUSTICE STEVENS, JUSTICE SCAUA, JUSTICE KENNEDY,
JUSTICE SOUTER, JUSTICE THOMAS, and JUSTICE GINSBURG.
THE CHIEF JUSTICE said:
The Court today notes the retirement of the Marshal of
the Court, Alfred Wong. Mr. Wong has called the Court to
order and has recessed the Court since his appointment in
July 1976. The Marshal of the Court is responsible for all
those housekeeping functions that keep the building running
smoothly such as paying the bills, preparing the payroll,
maintaining security for the Court and for those of us who
work here, and coordinating the numerous official and social
functions that take place here daily. Mr. Wong has per-
formed his duties with due diligence, and the Court thanks
him. The entire Court family extends to Mr. Wong and his
family best wishes for a healthy and happy retirement. The
Court has appointed Dale E. Bosley as Marshal of the Court,
effective August 1, 1994.
TABLE OF CASES REPORTED
NOTE: All undesignated references herein to the United States Code
are to the 1988 edition.
Cases reported before page 1201 are those decided with opinions of the
Court. Cases reported on page 1201 et seq. are those in which orders
were entered. The opinion reported on page 1301 et seq. is that written
in chambers by an individual Justice.
Page
AB; Hunger v 1206
Abbott v. Shearson Lehman Hutton, Inc 1238
Abi-Ghanem u United States .......... 1235
Abraham v. PWG Partnership 1207
Abrahamson; Lamphear v. 1227
Abramajtys; Hawkins u , 1227
Abrams, In re * 1268
Abrams v. Johnson . . 1283
Abreu v. United States 1239
ACandS, Inc.; School District No. 1J, Multnomah County v 1236
Adams u United States 1204,1277
Adarand Constructors, Inc. v. Pena 1288
Administrator, Eastern Pa. Psychiatric Institute; Duvall v 1278
Adolph Coors Co.; Bentsen v. 1203,1270
Advanced Micro Devices, Inc. v. Intel Corp 1205
Aetna Life & Casualty; Gilder v. 1221,1277
Agajanian, In re 1274
Aidant, Inc. u Sirex, U. S. A., Inc 1246
Aidant, L. P. v. Hummel 1246
Ailport v. United States 1242
Ajayi u Immigration and Naturalization Service 1240
Alabama; Ford u 1248
Alabama; Giles v. 1213
Alabama; Harris u 1284
Alabama v. McReynolds 1206
Alago v. United States 1207
Alaska u United States 1219
Alaska; United States v 1219
Alaska Housing Finance Corp. v. Kurth 1265
xvn
xvra TABLE OF CASES REPORTED
Page
Alcan Aluminum Corp. v. Franchise Tax Bd. of Cal 1234,1235
Alexander v. United States 1244
Allen v. United States 1242
Allen u U. S. District Court 1240
Alloyd Co.; Gustafson v. 1233,1280
Al'Shabazz, In re 1218
American Airlines, Inc.; Tweedy v. 1236,1277
American Airlines, Inc. v, Wolens 1233
American Standard, Inc.; Tarrant Service Agency, Inc. v. 1221
American Tel. & Tel. Co.; MCI Telecommunications Corp. v. .... 218
American Tel. & Tel. Co.; United States v. 218
American Trans Air, Inc.; Pignato v. 1205
Amsden u Biden 1265
Anast, In re 1201,1274
Andersen, In re 1234,1278
Andersen v. Arizona 1224
Anderson, In re 1203
Anderson v. Edwards 1288
Anderson v. Merit Systems Protection Bd 1204
Anderson v. SUNY Health Science Center at Syracuse 1245
Andrisani v. Lucas 1225
Angel Gonzalez u United States 1244
Angell v. United States 1239
Anthony, In re 1282
Antonio Urrego v. United States 1222
Aquarian Foundation v. Washington 1238
Arditi u Runyon 1224,1278
Arionus v. United States 1242
Arizona; Andersen v 1224
Arizona v. Evans 1233,1286
Arizona; Klein u 1242
Arizona; Milke v. 1227
Arizona; Mullet u 1213
Arkansas; Jones v. 1237
Armadores de Cabotaje, S. A. v. Young 1216
Army Corps of Engineers; United Tex. Transmission Co. v. . . . . . 1235
Arnett v. Kellogg Co 1215
Arroya-Riena v. United States 1243
Asbell, In re 1267
Asgrow Seed Co. v. DeeBees 1269,1285
Asgrow Seed Co. v. Winterboer 1269,1285
Asrar v. United States 1270
Attea & Bros., Inc.; Department of Taxation and Finance of K Y. u 61
Attorney General; LaChance v. 1222
TABLE OF CASES REPORTED
Page
Attorney General of Ark.; Carmichael v. 1208
Attorney General of Ark. v. Hill . . 1218,1286
Attorney General of CaL; Taylor v. 1211
Attorney General of Ind.; Resnover v. . . 1246,1278
Attorney General of Neb.; Otey v *1279
Attorney General of N. Y. v. Grumet 687
Attorney General of Wash, u Thorsted 1228
Austin v. Peters 1212
Autrey v. United States 1243
Aycock; Eichelberger v. 1206
Bacigalupo v. California 1253,1278
Backstrom v. United States 1225
Bacon v. Department of Air Force 1247
Badaracco v. United States 1212
Bagwell; Mine Workers v. 821
Baker v. Lopatin, Miller, et al., Attorneys at Law, P. C 1214
Balcor Real Estate Holdings, Inc. u Clark 1206
Ballard v. United States . 1244
Barber v. North Carolina 1239
Barbotir; Dearinger v. 1224
Barclays Bank PLC v. Franchise Tax Bd. of Cal 298
Barfield v. United States 1240
Barnes u Garetner 1210,1271
Beard v. United States 1243
Beasley u United States 1240
Bechtel Construction, Inc.; Georgescu u 1241
Beddoe v. Spillman 1288
Bedford v. Ohio 1246
Behrens u Sharp 1221
Bell v. Coughlin 1210
Beller, In re 1202,1274
Bellucci u United States 1225
Bennett, In re 1229
Bentsen u Adolph Coors Co 1203,1270
Berduzco v. United States 1240
Bergmann v. Lee Data Corp 1238
Berk; DiDomenico u 1234
Berman; Marine Recreational Opportunities, Inc. v. 1221
Bernard, In re 1269,1281
Bernstein, In re 1267
Betka u Oregon Dept. of Revenue 1211
Beverly Hills Fan Co.; Royal Sovereign Corp. v. . 1273
BFP u Resolution Trust Corp 1247
Biden; Amsden v. 1265
XX TABLE OF CASES REPORTED
Page
Bierley, In re 1203
Bilyeu, In re , 1234
Birkdale Shipping Co., S. A,; Hewlett v. 92
Biscayne Aqua-Center, Inc.; Hernandez v 1279
Blankenship; Carpenter v 1271
Bledsoe, In re 1274
Blunt; Mace v. 1236
Boalbey v Rock Island County 1215
Board of Comm'rs of New Orleans Exhibition Hall Authority; New
Orleans 2000 Partnership v . 1220
Board of Ed. of Kiryas Joel Village School Dist. u Grumet 687
Board of Ed. of Monroe-Woodbury Central School Dist. v. Grumet 687
Board of Law Examiners of Tex.; Stevens v 1206
Boards u United States 1205
Boca Grande Club, Inc. u Florida Power & Light Co 1218
Bogdanoff v. United States 1238
Boodram v. Maryland Farms Condominium 1241
Boone; King v. 1213
Bosarge v. Department of Eld 1226
Bosley; Tyus v 1249
Boston; Polyak v. 1214
Boyland v. United States 1225
Bradley Univ.; Whitehead v. 1214
Bradshaw; Livadas v. 107
Bradshaw v. United States 1244
Branch v. Tunnell 1219
Brennan, In re 1201,1274
Brewer v. Rogers 1222
Bridgeport v. Bridgeport Coalition for Fair Representation 1283
Bridgeport Coalition for Fair Representation; Bridgeport v. .... 1283
Brim v. Wright 1225
Brockman v. Sweetwater County School Dist. No. 1 1281
Brooks v. McCauseland 1240
Brown; Hebert v 1206
Brown; Jeffress v 1271
Brown-Brunson u Hunter 1215
Brownlee v. Lear Siegler Management Services Corp 1237
Brun v. Kentucky 1222
Bryan u United States 1245
Bryant; Carmichael v 1208
Bryant v Hill 1218,1286
Bryant u United States 1242
Bryant v. U. S. District Court 1229
Buchanan v. United States 1228,1278
TABLE OF CASES REPORTED
Page
Budd v. Seward 1236
Budman, In re 1266
Bueno v. Colorado 2274
Buford Evans & Sons; Polyak v. 1214
Buhl v. United States 1243 1278
Burch; Holloway v. 1252
Burnett v. Fairley 1271
Burns-Toole u Byrne 1207,1270
Burton; Goff v. 1209
Bush; Saunders u , . , 1207
Byrd v. Ohio 1246
Byrne; Burns-Toole v. 1207,1270
Byrne v. United States , . . . 1237
Cabal v. I. T., Inc 1217
Cabarrus County; Philip Morris Inc. u 1228
Cabarrus County; Philip Morris U. S. A. v. 1228
Cabazon Band, Mission Indians v. National Indian Gaining Comm'n 1221
Cairo, In re 1274
Calderon, In re 1203
Calderon v. Clair 1253
Calderon; Douglas v. 1253
Calderon; Edwards v. 1253
Calderon v. Hamilton 1203,1220,1270
Calderon; Hamilton u 1229
Caldwell v. United States 1222
California; Bacigalupo v. 1253,1278
California; Campbell v. 1206
California; Clark v. 1253
California; DaSilva v. . 1241
California; Espinoza u 1253
California; Manuel L. v 1223
California; Mayfield v. 1253
California; McClendon v 1270
California; Miranda v. . 1253
California; Mitcham v. . . . 1253
California; Montiel u 1253,1278
California; Noguera v. 1253
California; Penales Guerrero v. 1210
California; Proctor v 967
California; Sims v. - 1253
California; Swasey v. - - 1225
California; Tuilaepa v. - 96?
California; Wader u * - • 1258
California; WiUoughby u 1208
xxn TABLE OF CASES REPORTED
Page
California Dept of Corrections v. Ramon Morales 1287,1289
California Faculty Assn.; Ponce-Bran v 1241,1278
Calvary Baptist Church v. Oklahoma Dept. of Human Services . . 1235
Campbell v. California 1206
Campbell v. Florida 1226
Cardwell v. United States 1214
Carlisle; Consolidated Rail Corp. v 532
Carlton v. Dutton 1242
Carlton; United States v. . . , 26
Carmiehael v. Bryant 1208
Carpenter v. Blankenship 1271
Carpenter; Ohio v. 1236
Carper v. United States 1212
Carter; Resnover u 1246,1278
Caruso; Hill u . 1210
Casillan v. Regional Transportation Dist 1221,1277
Casimono v. Hundley 1211
Castner v. United States 1244
Catlett u Virginia 1247
Cedars-Sinai Medical Center u O'Leary 1235
Centanni; Eight Unknown Officers v 1236
Central Distributors of Beer, Inc. v. Conn 1207
Chairman, Senate Judiciary Committee; Amsden v. 1265
Chambers v. United States 1210
Chambers County Comm'n; Swint v 1204,1270,1286
Chandler u United States 1227,1277
Chapman v. United States 1223
Chaves v. United States 1226
Chavez v. New Mexico 1241
Chertoff; Gaydos v. 1270
Chevalier v. Whitiey 1224
Chevron U. S. A., Inc.; Sea Savage, Inc. v. . 1265
Chevy Chase Savings, F. S. B.; Doss v 1218
Cheyenne River Sioux Tribe; Timber Lake u 1236
Children's Memorial Hospital; Young In Hong v. 1214
Choate u TRW, Inc 1221
Choate v. United States 1223
Chonich v. Wayne County Community College 1236
Cimorelli v. General Electric Co 1237
Citizens for Term Limits u Foley 1228
City. See name of city.
Glair; Calderon v. 1253
Clark; Balcor Real Estate Holdings, Inc. v. 1206
Clark u California 1253
TABLE OF CASES REPORTED xxni
Clark v. Scott , -^284
Clarke; Palmer v. 1213
Cla> v. Murray . 1214
Clay v. United States 1222
Clayton v. Scott 1252
Clifford v. Espy 1241
Clines v. Norris m ITJ2,
Clinton v. Smith , , 1271
Cloutier, In re 1267
Cochran v Murray , , . 1229
Code v. Louisiana 1248
Cohen u Des Plaines 1236
Cole, In re . . 1285
Colgate-Palmolive Co. v. Franchise Tax Bd. of CaL 298
Collins v. United States 1211
Colon-Osorio v. United States 1289
Colorado; Bueno v 1274
Colorado v. Leftwich 1271
Colvin-El v. Maryland 1227
Comici, In re 1266
Commissioner; Kodak v. . 1238
Commissioner; McNichols v. 1219
Commissioner of Internal Revenue. See Commissioner.
Commission of Patents and Trademarks; MAG Instrument, Inc. v. 1204
Commonwealth. See also name of Commonwealth.
Commonwealth Edison Co.; O'Conner v. 1222
Companhia de Navegacio Lloyd Brasileiro; Somenski v. 1219
Comptroller of Currency u Variable Annuity Life Ins. Co 1233,1286
Computervision Corp. v. Virtual Maintenance, Inc 1216
Computervision Corp.; Virtual Maintenance, Inc. v. 1216
Connie v. Federal National Mortgage Assn . 1205
Conklin v. Zant 1248
Conn; Central Distributors of Beer, Inc. u 1207
Connecticut; Price v 1209
Connell; Crawford v. . . 1247
Consolidated Freightways, Inc.; Snyder v. 1220
Consolidated Rail Corp. v. Carlisle 532
Consolidated Rail Corp. v Gottshall 532
Consolidation Coal Co. v. Skukan 1231
Cooley v. Knapp 1210,1271
Cooper, In re 1201
Cooper; McBeath v 1205
Cooper v. Missouri Bd. of Probation and Parole ........... 1225,1278
Coors Co.; Bentsen v. 1203,1270
XXIV TABLE OF CASES REPORTED
Page
Copeland u United States 1208
Corces, In re 1269,1284
Corrections Commissioner. See name of commissioner.
Coughlin; Bell v 1210
County. See name of county.
Covington v. Moody 1245
Crandell; MeCurdy v 1281
Crank v. Scott 1214
Crawford u Connell 1247
Crawford; Dingle v. 1214
Cregan, In re . 1276
Cretan v. Director, Office of Workers' Compensation Programs . . 1219
Crist, In re 1275
Crowley, In re 1277
Crutchfield u McGregor 1205,1270
Cuero-Gongora u United States 1243
Cullen v Trainor, Robertson, Smits & Wade 1271
Culver City; Ehrlich v. 1231
Curtiss-Wright Corp. v. Schoonejongen . . 1288
Cutwright u United States 1241
Cyril; Mobil Oil Corp. v. 1207
Dalton u Specter 1247
Damatta-Olivera v. United States 1244
Daneshmand u R. B. Hazard, Inc 1221
Daniel u Florida 1242
Daniel u United States 1240
D'Anjou u United States 1242
Darden-Bey u United States 1223,1278
Darring u United States 1211
DaSilva u California 1241
Davis v. United States 452,1211,1215,1244
Dawson; Federal Deposit Ins. Corp. u , 1205
Dayton; Deaton u . . . * 1237
Dea u Pennsylvania 1209
Dean v. Kentucky 1234
DeAngelo u United States 1224
Dearinger u Barbour 1224
Deaton u Dayton 1237
DeeBees; Asgrow Seed Co. u 1269,1285
De Grandy u Johnson 997
De Grandy; Johnson v 997
Delaware u New York 1202
Delbridge u New Jersey Division of Youth and Family Services 1226
Delgado Garcia v. Federal Deposit Ins. Corp 1235
TABLE OF CASES REPORTED xxv
Page
Delo; Schlup v. 1270
DeMatteis v. Pennsylvania 1206
Dempsey v. Rangaire Corp 1248
Department of Air Force; Bacon v. 1247
Department of Ed.; Bosarge v. 1226
Department of Energy; Piron v 1223
Department of Env. Conservation; Simpson Paper (Vt.) Co. v. . . . 1202
Department of Human Rights; Lorah u 1241,1279
Department of Labor; Engron v. 1223
Department of Tax. & Fin. of N. Y. v. MUhelm Attea & Bros., Inc. 61
Department of Treasury; Jackson v. 1278
Department of Veterans Affairs; Traunig v. 1248
Deputy v. Snyder 1230
Deputy v. Taylor 1230
Derdeyn; University of Colo. v. 1229
Dershem u United States 1223
Desmond v. Nordberg 1210
Des Plaines; Cohen v. 1236
DeVitto u Singletary 1225,1278
Dextras v. United States 1226
Dickinson v. Gopalan 1226
DiDomenico v. Berk 1234
Dingle v. Crawford 1214
DiPinto v. Sperling 1270
Director, OWCP; Cretan v. 1219
Director, OWCP v. Greenwich Collieries 267
Director, OWCP v. Maher Terminals, Inc . 267
Director, OWCP v. Newport News Shipbuilding & Dry Dock Co. 1287
Director of penal or correctional institution. See name or title
of director.
District Court See U. S. District Court.
Dixon; Lawson v. 1215
Dixon v United States 1212
Dolan v. Maass 1211
Dolan v. Tigard 374
Donahey; Livingstone v. 1201
Donaldson v. Swiderski 1240
Dorado v. Maryland 1248
Doss v. Chevy Chase Savings, F. S. B. 1218
Douglas v. Calderon 1253
Dowell u Wright 1248
Drake v. Ohio 1224
Drew v. Scott 1266
Drew v. Texas - 1265
xxvi TABLE OF CASES REPORTED
Page
Duarte u United States 1244
Dubow, In re 1266
Duffield; First Interstate Bank of Denver, N. A. v 1205
Duffy u Wetzler 1281
Duncan; Murray v 1208
Dunkin u Louisiana-Pacific Corp 1217
Dunn u Regents of Univ. of Cal 1248
Durden v. United States 1217
Durusau, In re 1285
Dutton; Carlton u 1242
Dutton; King v. 1222
Duvall v. Administrator, Eastern Pa. Psychiatric Institute 1278
Duvall u Purkett 1241
Edgeston v. Illinois 1246
Edwards; Anderson u 1288
Edwards v. Calderon 1253
Edwards u Hargett 1209,1271
Edwards v. Hope Medical Group for Women 1301
Edwards v. Phoebe Putney Memorial Hospital 1247
Edwards; Todd Shipyards Corp. v. 1203
Ehrlich v. Culver City 1231
Eichelberger v. Aycock 1206
Eight Unknown Officers u Centanni 1236
Eisman, In re 1218
Eldridge u Johnson 1279
Electrical Workers v. United States 1204
Eljer Mfg., Inc. v. Kowin Development Corp 1205
Elkins v. South Carolina 1215
El Vocero de P. R. (Caribbean Int'l News Corp.) u Rodriguez . . . 1237
Engron u Department of Labor 1223
Escambia County Sheriff; Payne v. 1271
Escamilla u Nebraska 1232
Espinoza v. California 1253
Espy; Clifford u 1241
Eulrich; Snap-On Tools Corp. v 1231
Evans; Arizona v. 1233,1286
Evans; Makin v. 1271
Evans v. New York 1209
Evans v. Weir 1220
Evans & Sons; Polyak v. * 1214
Exxon Coal USA, Inc.; PSI Energy, Inc. v. 1222
BMrfax Hospital u National Labor Relations Bd 1205
Fairley; Burnett v. 1271
Earhat, In re 1266
TABLE OP CASES REPORTED xxvn
Page
Farley; Reed v. 339,1277
Farley; Wickliffe v. 1277
Faulkner v. Wisconsin . . 1227
Featherlite Building Products Corp.; Hidalgo v. 1220
Federacion de Maestros de Puerto Rico v. P. R. Labor Rel. Bd. . . 1277
Federal Bureau of Prisons; Watts u . 1242,1278
FCC; National Interfaith Cable Coalition, Inc. v. 1230
FCC; Southwestern Bell Telephone Co. u 1204
FCC; Turner Broadcasting System, Inc. v 622,1278
FCC; Vision Interfaith Satellite Network v. . 1230
Federal Deposit Ins. Corp. v. Dawson 1205
Federal Deposit Ins. Corp.; Delgado Garcia v 1235
Federal Deposit Ins. Corp.; Foxwood Management Co. v. .... 1204,1270
Federal Deposit Ins. Corp.; Lowery v. 1205
Federal Deposit Ins. Corp.; O'Melveny & Myers v. . . 79
Federal Deposit Ins. Corp. v. Shrader & York 1219
Federal Election Comm'n v. NRA Political Victory Fund . . 1218,1280,1285
Federal National Mortgage Assn.; Comrie v. 1205
Feldman, In re 1276
Feminist Women's Health Center; Reali u 1249
Ferman v. United States 1218
Field, In re . . 1269
Fierro v. Scott 1273
Finazzo v. Norris 246
First Interstate Bank of Denver, N. A. v. Duffield 1205
Fisher v. United States 1238
Flint; Reid v 1270
Flores v United States 1212
Flores de Brenes v. Transportes Aereos Nacionales, S. A 1222
Florida; Campbell u 1226
Florida; Daniel v 1242
Florida; Mordenti v. 1227
Florida; Slawson v. 1246
Florida; United States v 997
Florida; Valdes v 1227
Florida; Whitley v 1210,1264
Florida Bar v. Went For It, Inc 1289
Florida Dept. of Bus. & Prof. Reg., Bd. of Accountancy; Ibanez v. 136
Florida Power Corp.; Martin u 1214
Florida Power & Light Co.; Boca Grande Club, Inc. v. 1218
Foley; Citizens for Term Limits v. 1228
Foley; Messa v 1238,1277
Ford v Alabama 1248
Ford; Morgan v 1221
xxvin TABLE OF CASES REPORTED
Page
Ford Motor Credit Co.; Ross v 1206
Foxwood Management Co. v Federal Deposit Ins. Corp 1204,1270
Franchise Tax Bd. of CaL; Alcan Aluminum Corp. v. 1234,1235
Franchise Tax Bd. of CaL; Barclays Bank PLC v. 298
Franchise Tax Bd, of CaL; Colgate-Palmolive Co. v 298
Frantz; Preston v. 1279
Franz, In re 1218,1271
Freednian, In re 1282
Freeman v. United States 1278
Freeman United Coal Mining Co. v. Jones 1231
French v. King 1206
Fresco, In re 1217
Fromal v. Robins 1271
Fromal v. Virginia State Bar Disciplinary Bd 1264
Fuller v. Golden Age Fisheries 1206
Fuller v. United States 1211
Fulton u United States 1243
Fulton County; Threatt v 1217
Fuqua v. Gomez 1209
Gaines; Richley v. 1272,1273
Galin Corp. u MCI Telecommunications Corp . 1237
Gannett Co.; Meisler v. 1222
Garcia u Federal Deposit Ins. Corp 1235
Garcia v. Spun Steak Co 1228
Garetner; Barnes v. 1210,1271
Gasperi, In re . 1276
Gatlin v. Singletary 1227
Gaydos u Chertoff 1270
Gaydos u National Fire Ins. Co 1239,1278
Gendron u United States 1234
General Electric Co.; Cimorelli v. 1237
George v. Illinois 1241
Georgescu u Beehtel Construction, Inc 1241
Gerlin, In re , 1285
Gerson; Rodenbaugh v. 1210
Gibbs u North Carolina 1246
Gibbs v. United States 1240
Gilder v. Aetna Life & Casualty 1221,1277
Giles u Alabama 1213
Giles v. Snow 1280
Gilford Partners u Pizitz 1204
Gilleo; Ladue v. 43
Glasgow t;. United States 1226
Goff v. Burton 1209
TABLE OF CASES REPORTED xxix
Page
Golden Age Fisheries; Fuller u 1206
Gomez; Fuqua v 1209
Gomez; LaFlamme v. 1229
Gomez; Spychala v 1248
Gomez v. United States 1212
Gonzalez v. United States 1208,1244
Goodley v. United States 1223
Gopalan; Dickinson u 1226
Gosch u Scott 1216
Goshen u United States 1212
Gottshall; Consolidated Rail Corp. v. 582
Governor of Ga. u Johnson 1283
Governor of Ky.; Northern Ky. Welfare Rights Assn. u 1218
Governor of La. v. Hope Medical Group for Women 1301
Governor of La.; Rochon v 1224
Governor of Term, u Rural African- American Affairs Council, Inc. 1248
Governor of Tenn.; Rural African- American Affairs Council, Inc. v 1249
Graven; Morris u 1223
Green; Hawkins u 1271
Greenfield v. United States 1204
Greenwich Collieries; Director, OWCP v 267
Greer u Ohio 1246
Gregoire v. Thorsted 1228
Griffin, In re 1267
Griffith, In re 1267,1284
Griggs v. Kansas „ 1208
Grigsby v. O'Donnell 1201
Grumet; Attorney General of N. Y. u 687
Grumet; Board of Ed. of Kiryas Joel Village School Dist. v 687
Grumet; Board of Ed. of Monroe- Woodbury Central School Dist. v. 687
Guerrero v. California 1210
Guerrero v. United States 1242
Guillou v. United States 1208
Gustafson v. Alloyd Co 1233,1280
Gutierrez v. Scott 1282
Hall; Holder v 874
Hall v. San Bernard Electric Cooperative, Inc 1220
Hall v. South Carolina 1246
Hamblen; McLean v 1238
Hamer, In re 1276
Hames; Schuenemann v 1243
Hamilton v. Calderon 1229
Hamilton; Calderon v. 1203,1220,1270
Hamilton; Polyak t\ 1214
xxx TABLE OP CASES REPORTED
Page
Hamilton v. United States . 1226
Hardy v. Merit Systems Protection Bd . 1235
Hargett; Edwards u 1209,1271
Hargett; Smith v. 1232
Harper u Interior Bd. of Land Appeals 1239
Harrelson; Swiney u 1210
Harris v. Alabama 1234
Harrison v. Kentucky 1238
Hart u L. R C. Power Corp 1216
Hart v. Stockmar Energie, Inc 1216
Hartline u United States . . 1238
Hawaiian Airlines, Inc. v. Norris 246
Hawkins v. Abramajtys . 1227
Hawkins v. Green 1271
Hayes v. United States 1225
Hays; Louisiana v 1230,1273
Hays; United States v. 1273
Hazard, Inc.; Daneshrnand v 1221
Hazzard u Oakland 1229
Healy; West Lynn Creamery, Inc. v 186
Hebert v. Brown 1206
Heck u Humphrey 477
Hedley; Ruchti u 1270
Hedrick; McCarthy u 1212
Heiman, In re , 1232
Heitkamp; Lange v. 1271
Henderson u Ohio 1246
Henry u United States 1235
Hernandez v. Biscayne Aqua-Center, Inc 1279
Herrera v. Nevada . 1211
Hickey u Hollister 1237
Hicks u Ohio 1246
Hicks v. Texas 1227
Hidalgo v. Featherlite Building Products Corp 1220
Higgins; Rent Stabilization Assn. of New York City, Inc. v 1213
Hill; Bryant u 1218,1286
Hill u Caruso 1210
Hill u Texas 1213
Hinson; Woznick u 1207
Hirras u National Railroad Passenger Corp 1231
Holder u Hall 874
Holland; Poole u . 1271
Holland; Sacramento City Unified School Dist. Bd. of Ed. u ..... 1207
Hollister; Hickey v. 1237
TABLE OF CASES REPORTED xxxi
Page
Hollon v. United States 1225
Holloway v. Burch 1232
Holmes v. Norris 1215,1272
Holzmann, In re 1268
Honda Motor Co. u Oberg 415
Hong u Children's Memorial Hospital 1214
Hope Medical Group for Women; Edwards v 1301
Hopkins; Otey v 1246
Hopkins v. United States 1229,1278
Hopson v. United States 1243
Howlett v. Birkdale Shipping Co., S. A 92
Hoylman; Jackson v 1219
Hozdish v. Tyra 1209
Huff v. United States 1219
Hughes; Nebraska u 1235
Hulen; Polyak v 1214
Hummel; Aidant, L. P. v 1246
Hummel; Izadpanah v 1246
Humphrey; Heck v. 477
Hundley; Casimono v 1211
Hunger u AB 1206
Hunt, lure 1274
Hunter; Brown-Brunson v. 1215
Ibanez v Florida Dept. of Bus. & Prof. Reg., Bd. of Accountancy 136
Illinois; Edgeston v 1246
Illinois; George v 1241
Illinois; Johnson v 1227,1277
Illinois; Page v 1253
Illinois v. Perkins 1213
Illinois; Tenner v. 1246
Illinois Dept. of Lottery v. Marchiando 1205
Immigration and Naturalization Service; Ajayi u 1240
Immigration and Naturalization Service; Stone v . 1286
Immigration and Naturalization Service; Tornow v. 1265
Immigration and Naturalization Service; Yepes-Gonzalez v. .... 1238
In Hong v. Children's Memorial Hospital 1214
In re. See name of party.
Institute de Resseguros do Brasil (IRB); Stephens v. 1283
Insurance Co. of North America v. Morton International, Inc. 1245,1277
Intel Corp.; Advanced Micro Devices, Inc. v. 1205
Interior Bd. of Land Appeals; Harper v 1239
International. For labor union, see name of trade.
International House of Pancakes v. Pinnock 1228
Irvine v. Texas 1208
xxxii TABLE OF CASES REPORTED
Page
Isang v. United States 1227
Israel v. U. S. District Court 1229
I. T., Inc.; Cabal v. 1217
Izadpanah v. Hummel 1246
Jackson, In re 1218,1278
Jackson v. Department of Treasury 1278
Jackson v. Hoylman 1219
Jackson v. Make! 1224,1278
Jackson v. Reno 1248
Jackson v. Shalala 1209
Jackson v. United States 1241
Jacobson Products Co.; Qualitex Co. v 1287
Jacoby; Lewis v. 1245
Jaffe v. Snow 1227
James v. Mann 1227
James; Sykes v 1240
Jamison v. Ohio 1246
Jarmusik v. Merit Systems Protection Bd 1279
Jefferson u Zant 1215
Jefferson Lines, Inc.; Oklahoma Tax Comm'n v. 1204
Jefferson Univ, u Shalala 504
Jefferson Univ. Hospital v. Shalala 504
Jeffress v. Brown . . 1271
Jeffiress v. Secretary of Veterans Affairs 1271
Jenkins; Missouri v 1287
Jenkins; Red Clay Consolidated School Dist. Bd. of Ed. v. 1252
Jimenez v MGM 1214
Johnson; Abrams v . . 1283
Johnson u De Grandy 997
Johnson; De Grandy v. 997
Johnson; Eldridge v. - 1279
Johnson v. Illinois 1227,1277
Johnson; Miller v. 1283
Johnson u State Farm General Ins. Co 1209
Johnson v. United States 1211,1212,1240
Johnson; United States v. 1283
Johnson u Whitaker , 1210
Joiner u Scott 1252
Jones, In re 1275,1285
Jones u Arkansas 1237
Jones; Freeman United Coal Mining Co* v. * 1231
Jones; Northern Ky. Welfare Rights Assn. v. 1218
Jones u Shalala 1239
Jones u Toombs 1224
TABLE OF CASES REPORTED XXXIH
Page
nes v. United States 1208,1211
nes v. Washington 1241,1278
sephs; Williams v 1248
s. Schlitz Brewing Co.; Milwaukee Brewery Pension Plan v. 1234,1285
urnal Communications; Kotas v 1248
yner v. United States 1226
dge, 301st District Court, Dallas County; Grigsby v 1201
igan, In re 1276,1281
insas; Griggs v 1208
iplan; Winfield v 1253
irch, In re 1281,1284
iribian; Trustees of Columbia Univ. in New York City v 1213
trim-Panahi v. United States 1264
jrsch, In re 1217
iane; Reeves v 1241
ith v. McCaughtry 1212
Hogg Co.; Arnett v. 1215
nderian, In re 1276
nnedy, In re 1275
ntucky; Brun v 1222
ntucky; Dean v , 1234
ntucky; Harrison v 1238
plinger u Wilson 1220
ider, Peabody & Co.; Wheeler v 1206
am Tran v. United States 1239
patrick, In re 1232
patrick u State Bar of Tex 1236,1277
able v. United States 1243
tg v. Boone 1213
ig v. Dutton 1222
ig; French v 1206
tg v. Vaughn 1232
in, In re 1266
in v. Arizona . 1242
in u United States 1226
inschmidt v. Liberty Mut. Ins. Co 1271
ipp; Cooley v. 1210,1271
lak v. Commissioner 1238
as v. Journal Communications 1248
rin Development Corp.; Eljer Mfg., Inc. v. 1205
ss; Profile Mfg., Inc. v 1220
in v. Philip Morris U. S. A. . . . . . 1221
th; Alaska Housing Finance Corp. v. 1265
zawa v. Wisconsin 1222
xxxiv TABLE OF CASES REPORTED
Page
L. u California 1223
Labor Union. See name of trade.
LaChanee v. Reno 1222
Ladue v. GIHeo . 43
LaFlainme v. Gomez , 1229
LaGatta v. United States 1224
Lake County; Seagrave v. 1248
Lamphear v. Abrahamson 1227
Lange v. Heitkamp 1271
Lanham; Walker v. 1208
Larson v. Sanft 1221
Lashley, litre . 1267
Lawson, In re 1215
Lawson v. Dixon 1215
Lear Siegler Management Services Corp.; Brownlee v. 1237
LeBlanc v. Louisiana Dept. of Transportation and Development . 1219
LeCroix v. United States 1243
Lederberg, In re 1232,1275
Lee; Popelka v. . . . 1204
Lee v. United States 1244
Lee Data Corp.; Bergmann u 1238
Leftwich; Colorado v. , 1271
Legg v. United States 1244
Leonard v. United States 1243
Leslie, In re 1202
Levine, In re 1277
Lewis, In re 1203
Lewis u Jacoby 1245
L. R C. Power Corp.; Hart v. 1216
Liberty Mut. Ins. Co.; Kleinschmidt v. 1271
Linder, In re 1282
Lindmark v. Pennsylvania Bd. of Law Examiners 1220
Lavadas v. Bradshaw 107
Livingstone v. Donahey 1201
Loewenstein; Nebraska Dept. of Revenue v. 1233
Logan v. United States 1226
Long u United States 1241
Lopatin, Miller, et aL, Attorneys at Law, P. C.; Baker v. . . 1214
Lopez; United States v. 1286
Lorah v. Department of Human Rights 1241,1279
Los Angeles v. Preferred Communications, Ine 1235
Los Angeles; Preferred Communications, Inc. v 1235
Louisiana; Code v. 1248
Louisiana v. Hays » , 1230,1273
TABLE OF CASES REPORTED xxxv
Page
Louisiana Dept. of Transportation and Development; LeBlanc v. 1219
Louisiana-Pacific Corp.; Dunkin v 1217
Louisiana Supreme Court; Roe v. 1246
Lovell v. Peoples Heritage Savings Bank 1235
Lowery u Federal Deposit Ins. Corp. 1205
Lowery u Redd 1206
Lucas; Andrisani v 1225
Ludwig v. Variable Annuity Life Ins. Co 1233,1286
Lumadue; Turner v 1239,1278
Lummi Indian Tribe v. Whatcom County 1228
Lungren; Taylor u . . . . 1211
Lyon v. Texas 1209
Maass; Dolan u 1211
Maass; Murphy v. 1209
Mace v. Blunt 1236
MacMillan u United States 1244
Madsen v. Women's Health Center, Inc 753,1277
MAG Instrument, Inc. v. Commission of Patents and Trademarks 1204
Maher Terminals, Inc.; Director, OWCP u 267
Maher Terminals, Inc. v. Santoro 1234
Maher Terminals, Inc.; Santoro v . 1234
Makel; Jackson v 1224,1278
Makin v. Evans 1271
Maness u Star-East Foods, Inc 1207
Mann; James v. . 1227
Manuel L. u California 1223
Maravilla v. United States 1219,1277
Marchiando; Illinois Dept. of Lottery v. 1205
Margolis, In re 1232,1281
Marine Recreational Opportunities, Inc. v. Berman 1221
Mark u United States 1271
Martin u Florida Power Corp . 1214
Martinez v. Texas 1246
Maryland; Colvin-El u 1227
Maryland; Dorado v 1248
Maryland Farms Condominium; Boodram v. 1241
Matthews u United States 1244
Mayco Oil & Chemical Co. v. Transtech Industries, Inc 1213
Mayes v. United States 1239
Mayfield u California 1253
McAninch; O'Neal v. 1233
McBeath v. Cooper 1205
McBride u Texas 1246
McCarthy u Hedrick 1212
XXXVI TABLE OP CASES REPORTED
Page
McCaughtry; Keith v. 1212
MeCauseland; Brooks v. 1240
McClendon u California 1270
McClenny, In re 1201
McCoIlum v. North Carolina 1254,1278
McCurdy, In re 1234,1278
McCurdy v. Crandell 1281
McDonald u New Mexico 1252
McFarland u Scott 849,1256
McGrath, In re 1266
McGreevy, In re 1275
McGregor; Crutchfield v 1205,1270
Mclntyre u Ohio Elections Conatfn 1203
MCI Telecommunications Corp. v. American Tel & Tel. Co 218
MCI Telecommunications Corp.; Galin Corp. v. 1237
McKennon v. Nashville Banner Publishing Co 1269
McKibben u United States 1241
McLean u Hamblen 1238
McNamara, In re 1201
McNichols v. Commissioner 1219
McPhail u United States 1244
McReynolds; Alabama u 1206
McWherter u Rural W. Tenn. African- American Affairs Council 1248
McWherter, Rural W. Tenn. African-American Affairs Council v. 1249
Meacham, In re 1232
Meachum; Ruffin u 1209
MeMer v. Gannett Co 1222
Merit v. United States 1212,1278
Merit Systems Protection Bd.; Anderson v. 1204
Merit Systems Protection Bd; Hardy u 1235
Merit Systems Protection Bd.; Jarmusik u 1279
Messa u Poley 1238,1277
Meyer, In re 1233,1284
Mezzanatto; United States v. 1269
MGM; Jimenez v. 1214
Miccio v. New Jersey Dept. of Community Affairs 1270
Mddleton u United States 1211
Milhelm Attea & Bros., Inc.; Dept of Tax. & Pin. of N. Y. u 61
Milke v. Arizona 1227
Miller u Johnson 1283
Milwaukee Brewery Pension Plan u Schlitz Brewing Co. . 1234,1285
Mine Workers u Bagwell 821
Mintz u United States 1244
Miranda v. California 1253
TABLE OF CASES REPORTED xxxvn
Page
Mississippi; Stringer u . 1209
Missouri v. Jenkins 1287
Missouri; Traina v 1211
Missouri Bd. of Probation and Parole; Cooper u . . . 1225,1278
Mr. Sprout, Inc. v. United States 1205
Mitcham v. California 1253
Mitwol, In re 1282
Mlo v. North Carolina 1224
Mobil Oil Corp. v. Cyril 1207
Monroe, In re 1234
Montgomery v. Ohio 1246
Montiel v. California 1253,1278
Moody; Covington v 1245
Moore v. Reynolds 1274
Morales; California Dept. of Corrections v 1287,1289
Mordenti v. Florida 1227
Moreno v. Scott 1252
Morgan u Ford 1221
Morgan Stanley & Co. v Pacific Mut. Life Ins. Co 1248
Moringiello, In re 1267
Morris v. Graven 1223
Morris v. Perlos 1209
Morrison v. United States 1217
Morton International, Inc.; Insurance Co. of North America v. 1245,1277
Mosely, In re 1268,1284
Moses v. United States 1212
Mosesian u United States 1237
Mosley v. Virginia 1224
Mostman, In re 1232
Mullet v. Arizona 1213
Murphy v. Maass 1209
Murphy; San Diego County v 1220
Murray; Clay v 1214
Murray; Cochran v. 1229
Murray v. Duncan 1208
Nash v. United States 1245
Nashville Banner Publishing Co.; McKennon u 1269
National Fire Ins. Co.; Gaydos v 1239,1278
National Indian Gaming Comm'n; Cabazon Band, Mission Indians v. 1221
National Interfaith Cable Coalition, Inc. v. FCC 1230
National Labor Relations Bd.; Fairfax Hospital v 1205
National Railroad Passenger Corp.; Hirras v. 1231
NationsBank of N. Q, N. A. v. Variable Annuity Life Ins. Co. 1233,1286
NCR Corp. v. New Mexico Taxation and Revenue Dept 1245
TABLE OF CASES REPORTED
Page
NCR Corp. v. South Carolina Dept. of Revenue and Taxation . . . 1245
Nebraska; Escamilla v 1232
Nebraska v. Hughes 1235
Nebraska Dept. of Revenue u Loewenstein 1233
Nettles u United States 1240
Nevada; Herrera v 1211
Nevada; Palmer v. 1239
New Jersey Dept. of Community Affairs; Miccio v 1270
New Jersey Division of Youth and Family Services; Delbridge v. 1226
Newkirk v. Smith 1271
New Mexico; Chavez u . 1241
New Mexico; McDonald v 1252
New Mexico; Texas v 1202
New Mexico Taxation and Revenue Dept.; NCR Corp. v. 1245
New Orleans 2000 Partnership v. Board of Comm'rs of New
Orleans Exhibition Hall Authority 1220
Newport Ltd.; Sears, Roebuck & Co. v 1221
Newport News Shipbuilding & Dry Dock Co.; Director, OWCP v. 1287
Newsome v. Peters 1214
New York; Delaware v. 1202
New York; Evans v. 1209
New York Dept. of Correctional Services; Taveras v 1271
Nhan Kiem Tran u United States 1239
Nickerson; Worytko v. 1243
Noguera v. California , . 1253
Nolan, In re 1268
Nolt, In re 1203
Nordberg; Desmond v. 1210
Norfolk Southern R. Co.; Spence v. 1237
Norris; Clines u 1272
Norris; Finazzo u 246
Norris; Hawaiian Airlines, Inc. v. 246
Norris; Holmes u * . 1215,1272
Norris; Richley u 1215,1272
North Carolina; Barber u 1239
North Carolina; Gibbs v 1246
North Carolina; McCollum v 1254,1278
North Carolina; Mlo u 1224
North Carolina; Price u 1249
North Carolina; Rose u 1246
Northern Ky. Welfare Rights Assn. v. Jones 1218
North Star Alaska Housing Corp. v. United States . . 1220
NRA Political Victory Fund; Federal Election Comm'n v. 1218,1280,1285
Oakland; Hazzard u 1229
TABLE OF CASES REPORTED xxxix
Oakland County; Ortman v . 1208,1270
Oberg; Honda Motor Co. v 415
O'Conner v. Commonwealth Edison Co , 1222
O'Donnell; Grigsby v 1201
Office of Personnel Management; Shirar v 1225
Offstein, In re 1275
Ohio; Bedford v 1246
Ohio; Byrd v 1246
Ohio v. Carpenter 1236
Ohio; Drake v 1224
Ohio; Greer v 1246
Ohio; Henderson v. 1246
Ohio; Hicks v 1246
Ohio; Jamison v 1246
Ohio; Montgomery v 1246
Ohio; Poindexter v 1246
Ohio; Scott v 1213,1246
Ohio; Smith v 1246
Ohio; Sowell v 1246
Ohio; Steflfen v 1246
Ohio; Woodard v. 1246
Ohio Dept. of Transportation; Rice v 1207
Ohio Elections Comm'n; Mclntyre v. 1203
Ohio State Hospitals; Shalala v 1231
Ohio State Univ.; Shalala v. 1231
Oklahoma; Romano v. . 1
Oklahoma; Smith v 1241
Oklahoma; Wyatt v. . 1208
Oklahoma Dept. of Human Services; Calvary Baptist Church v. . . 1235
Oklahoma Tax Comm'n v. Jefferson Lines, Inc 1204
Okocha, In re 1268,1284
Okor v. United States 1271
O'Leary; Cedars-Sinai Medical Center v 1235
O'Melveny & Myers v. Federal Deposit Ins. Corp 79
O'Neal v. McAninch 1233
O'Neal v. United States 1244
Onokpachere v. United States 1212
Oregon Dept. of Revenue; Betka v 1211
Organizacion JD Ltda. v. United States 1207
Ortman v. Oakland County 1208,1270
Ospina v. United States 1226
Otey v. Hopkins 1246
Otey v, Stenberg 1279
Pacific Mut. Life Ins. Co.; Morgan Stanley & Co. u 1248
XL TABLE OF CASES REPORTED
Page v. Illinois 1253
Palmer v. Clarke 1213
Palmer v. Nevada 1239
Pare u United States 1239
Parke; Prewitt v. 1227
Parker u United States 1226
Payne v. Escambia County Sheriff 1271
Pearson u Planned Parenthood Sanger Clinic (Manhattan) 1249
Pearson v United States 1247
Pegg, In re 1274
Pena; Adarand Constructors, Inc. u 1288
Penales Guerrero v. California 1210
Pennsylvania; Dea u 1209
Pennsylvania; DeMatteis u 1206
Pennsylvania; Young v. 1210
Pennsylvania Bd. of Law Examiners; Lindmark v 1220
Pennsylvania Public Utility Comm'n; West Penn Power Co. v. . . . 1203
Peoples Heritage Savings Bank; Lovell u 1235
PepsiCo, Inc.; Takeall v. 1236
Perkins; Illinois u 1213
Perlos; Moms v. 1209
Perry, In re 1275
Peters; Austin v. 1212
Peters; Newsome v 1214
Philip Morris Inc. v. Cabarrus County 1228
Philip Morris U. S. A. v. Cabarrus County 1228
Philip Morris U. S. A.; Kuhn v. 1221
Phoebe Putney Memorial Hospital; Edwards v 1247
Pickett; Wardlaw v. 1204,1270
Pierce u United States 1239
Pignato v. American Trans Air, Inc 1205
Pinellas County; Rood u 1237,1277
Pinnock; International House of Pancakes v. 1228
Piron u Department of Energy 1223
PMtz; Gilford Partners v 1204
Planned Parenthood Sanger Clinic (Manhattan); Pearson v. 1249
Plaut v. Spendthrift Farm, Inc 1285
Poindexter v. Ohio 1246
Pointer u United States 1242
Polyak u Boston 1214
Polyak v. Buford Evans & Sons 1214
Polyak u Hamilton , 1214
Polyak v. Hulen 1214
Polyak v. Stack 1214
TABLE OF CASES REPORTED XLI
Page
Ponce-Bran u California Faculty Assn 1241 1278
Poole v. Holland 1271
Popelka v. Lee 1204
Posters *N' Things, Ltd. v. United States 1247
Postmaster General; Arditi u 1224,1278
Postmaster General; White v 1219
Powell, In re 1202
Preferred Communications, Inc. v. Los Angeles 1235
Preferred Communications, Inc.; Los Angeles v 1235
Preston v. Frantz 1279
Preuss, In re 1248
Prewitt v. Parke 1227
Price v. Connecticut 1209
Price v. North Carolina 1249
Price v. Shalala 1229
Proctor v. California 967
Profile Mfg., Inc. v. Kress 1220
PSI Energy, Inc. v. Exxon Coal USA, Inc 1222
Puerto Rico Labor Rel. Bd.; Federacion de Maestros de P. R. v. . 1277
Purkett; Duvall v. 1241
Pusey v. Youngstown 1237
Putney Memorial Hospital; Edwards v. 1247
PWG Partnership; Abraham v 1207
Qualitex Co. v. Jacobson Products Co 1287
Quinn v. United States 1242
Rabin v. U. S. Intelligence 1274
Ramdass v. Virginia 1217
Ramon Morales; California Dept. of Corrections v 1287,1289
Rangaire Corp.; Dempsey u 1248
Raymond; Titlemore v. 1247
R. B. Hazard, Inc.; Daneshmand v 1221
Reali v. Feminist Women's Health Center 1249
Red Clay Consolidated School Dist. Bd. of Ed. v. Jenkins 1252
Redd; Lowery v. 1206
Reed v. Farley 339,1277
Rees; Witherspoon v 1227
Reeves v. Keane 1241
Regents of Univ. of CaL; Dunn v 1248
Regional Transportation Dist.; Casillan u 1221,1277
Reid v. Flint ; 1270
Reid u United States 1243
Reilly v. Tucson Electric Power Co 1220
Reives u United States 1207
Reno; Jackson v. 1248
XLn TABLE OF CASES REPORTED
Reno; LaChance v. 1222
Rent Stabilization Assn. of New York City, Inc. v, Higgins 1213
Resnover v. Carter 1246,1278
Resolution Trust Corp.; BFP v. 1247
Reuters Ltd. u Tax Appeals Tribunal 1235
Reynolds; Moore v. 1274
Rice v. Ohio Dept of Transportation 1207
Rice; Watts u 1229
Rich; Toegemann v. 1270
Richardson u Shalala 1229
Richley v. Games 1272,1273
Richley v. Norris 1215,1272
Riggs; Scindia Steam Navigation Co. v 1216
Robins; Fromal v. 1271
Robinson u Texas 1246,1277
Rochon u Roemer 1224
Rock Island County; Boalbey u 1215
Rodenbaugh u Gerson 1210
Rodenbaugh v. Rodenbaugh * 1208
Rodriguez; El Vocero de P. R. (Caribbean Intl News Corp.) u . . 1237
Roe v. Louisiana Supreme Court 1246
Roemer; Rochon v. 1224
Rogers; Brewer v , . . . . 1222
Romano v. Oklahoma . 1
Romano u United States 1245,1278
Ronrine u Zant ........ 1213
Rood t;. Pinellas County 1237,1277
Rosas u United States 1211
Rose u North Carolina 1246
Rosenbaum u Rosenbaum 1222,1277
Ross u Ford Motor Credit Co. 1206
Royal Sovereign Corp. v. Beverly Hills Fan Co 1273
Rubens u Shine, Julianelle, Karp, Bozelko & Karasan, P. C 1270
Ruchti u Hedley 1270
Rudd u Texas 1253
Ruffin v. Meachum 1209
Rule Industries, Inc.; U. S. Anchor Mfg., Inc. v. 1221
Runyon; Arditi u 1224,1278
Runyon; White v. 1219
Rural W. Tenn. African-American Affairs Council v. McWherter 1249
Rural W. Tenn. African-American Affairs Council; McWherter u 1248
Ruthers v. United States 1240
Ryan v. Schutter 1237
Ryskamp u United States 1248
TABLE OF CASES REPORTED
Page
Sackman v. Zoning Bd. of Adjustment of East Brunswick Twp. . , 1237
Sacramento City Unified School Dist. Bd. of Ed. u Holland 1207
Sakaria v. Trans World Airlines 1247
Samuels v. United States 1212
San Bernard Electric Cooperative, Inc.; Hall v. 1220
Sanders, In re 1214
San Diego County u Murphy 1220
Sanft; Larson v 1221
Santoro v. Maher Terminals, Inc 1234
Santoro; Maher Terminals, Inc. v 1234
Saunders v. Bush 1207
Schechterman, In re 1268,1281
Schledwitz v. United States 1207
Schlitz Brewing Co.; Milwaukee Brewery Pension Plan u . . . 1234,1285
Schlup v. Delo 1270
Schmidt v. Texas 1236
Schmieder, In re 1269
Schoolcraft v. Utah 1236
School District No. 1J, Multnomah County v ACandS, Inc 1236
Schoonejongen; Curtiss- Wright Corp. v. 1288
Schuenemann v Hames 1243
Schutter; Ryan v 1237
Schwartz, In re 1274
Scindia Steam Navigation Co. v. Riggs 1216
Scott; Clark v. 1284
Scott; Clayton v . 1252
Scott; Crank v 1214
Scott; Drew v. 1266
Scott; Fierro v 1273
Scott; Gosch u 1216
Scott; Gutierrez v 1282
Scott; Joiner v. 1252
Scott; McFarland v 849,1256
Scott; Moreno v 1252
Scott u Ohio 1213,1246
Scott v. United States 1239
Scott; Walker v. 1270
Scott; Wendt v 1225
Scott; Williams v. 1224,1289
Seagrave v. Lake County 1248
Sears, Roebuck & Co. v. Newport Ltd 1221
Sea Savage, Inc. v. Chevron U. S. A., Inc 1265
Secretary of Agriculture; Clifford v 1241
Secretary of Army; Watts v. 1229
XLiv TABLE OF CASES REPORTED
Page
Secretary of Dept. of Labor and Industry of Pa.; Messa v. . . . 1238,1277
Secretary of Energy; Cedars-Sinai Medical Center v 1235
Secretary of HHS; Jackson v. 1209
Secretary of HHS; Jones v. 1239
Secretary of HHS u Ohio State Hospitals 1231
Secretary of HHS u Ohio State Univ. 1231
Secretary of HHS; Price u 1229
Secretary of HHS; Richardson v. 1229
Secretary of HHS; Stephens v. 1236
Secretary of HHS; Sword v 1223
Secretary of HHS; Thomas Jefferson Univ. v. 504
Secretary of HHS; Thomas Jefferson Univ. Hospital u ......... 504
Secretary of Navy u Specter 1247
Secretary of Transportation; Adarand Constructors, Inc. u 1288
Secretary of Treasury v. Adolph Coors Co. 1203,1270
Secretary of Veterans Affairs; Hebert v. 1206
Seeman, In re 1266
Sepulveda u United States 1223
Seward; Budd u 1236
Shalala; Jackson v 1209
Shalala; Jones u 1239
Shalala u Ohio State Hospitals 1231
Shalala u Ohio State Univ. 1231
Shalala; Price v. 1229
Shalala; Richardson u 1229
Shalala; Stephens u 1236
Shalala; Sword v. 1223
Shalala; Thomas Jefferson Univ. u 504
Shalala; Thomas Jefferson Univ. Hospital t;. 504
Shannon u United States 573
Sharp; Behrens u 1221
Shaw u United States 1222,1277
Shearson Lehman Hutton, Inc.; Abbott v. 1238
Shine, Julianelle, Karp, Bozelko & Karazin, P. C.; Rubens t? 1270
Shirar v. Office of Personnel Management 1225
Shrader & York; Federal Deposit Ins. Corp. u 1219
Siegler Management Services Corp.; Brownlee u 1237
Silvers u United States 1227
Simmons v. South Carolina 154
Simpson Paper (Vt.) Co. u Department of Env. Conservation . . . 1202
Sims, In re 1275
Sims u California 1253
Sims v. United States 1214
Singietary; DeVitto u 1225,1278
TABLE OP CASES REPORTED XLV
Singletary; Gatlin v .................................
Singletary; Woods v ............................. -^264
Sirex, U. S. A., Inc.; Aidant, Inc. v ................ ........ 1246
Skukan; Consolidation Coal Co. v .................... ."."."!!.' 1231
Slan, In re . . ................................. ....... 1267
Slawson v. Florida ................................... -^246
Sloan, In re ......................................... ^267
Sloley v. United States ................................ * 1242
Smith; Clinton v .................................... 1271
Smith v. Hargett ..................................... 1232
Smith; Newkirk v ..................................... 1271
Smith v. Ohio ....................... . ................ 1246
Smith v. Oklahoma .................................... 1241
Smith v. United States .......................... 1208,1223,1270
Snap-On Tools Corp. v. Eulrich ........................... 1231
Snow; Giles v ......................................... 1280
Snow; Jaffe v ......................................... 1227
Snyder v. Consolidated Freightways, Inc ................... 1220
Snyder; Deputy v ...................................... 1230
Somenski v Companhia de Navegacio Lloyd Brasileiro ........ 1219
South Carolina; Elkins v ............................... 1215
South Carolina; Hall v .................................. 1246
South Carolina; Simmons v .............................. 154
South Carolina Dept. of Revenue and Taxation; NCR Corp. v. . . . 1245
Southwestern Bell Telephone Co. v. FCC .................. 1204
Sowell v Ohio ....................................... 1246
Sparrow, In re ....................................... 1276
Speaker of Fla. House of Representatives v. De Grandy ....... 997
Speaker of Fla. House of Representatives; De Grandy v. ....... 997
Specter; Dalton v ...................................... 1247
Spence v. Norfolk Southern R. Co ......................... 1237
Spendthrift Farm, Inc.; Plaut v ........................... 1285
Sperling; DiPinto v ................................... 1270
Spilhnan; Beddoe v. ................................... 1238
Spun Steak Co.; Garcia v ................................ 1228
Spychala v. Gomez ................................ .... 1248
Stack; Polyak v ....................................... 1214
Stanley & Co. v. Pacific Mut. Life Ins. Co ................... 1248
Star-Kist Foods, Inc.; Maness v. .......................... 1207
Starnes v. United States ............................... 1224
State. See also name of State.
State Bar of Tex.; Kilpatrick v ......................... 1236,1277
State Farm General Ins. Co.; Johnson v ................... - . 1209
Steffen v. Ohio ....................................... 1246
XLVI TABLE OF CASES REPORTED
Page
Stenberg; Otey v. 1279
Stephens u Institute de Resseguros do Brasil (IRB) 1283
Stephens u Shalala 1236
Stemberg, In re 1268
Stevens v. Board of Law Examiners of Tex 1206
Stockmar Energie, Inc.; Hart v. 1216
Stone v. Immigration and Naturalization Service 1286
Stringer v. Mississippi 12D9
Strollar u United States 1211
Strope v. United States 1226
Sule v. United States . 1223,1271
SUNY Health Science Center at Syracuse; Anderson v 1245
Superintendent of penal or correctional institution. See name or
title of superintendent.
Swasey u California 1225
Sweetwater County School Dist. No. 1; Brockman v 1281
Swiderski; Donaldson v. 1240
Swiney u Harrelson 1210
Swint v. Chambers County Comm'n 1204,1270,1286
Sword v. Shalala 1223
Sykes u James 1240
Takeall u PepsiCo, Inc 1236
Taplin v. United States 1240
Tarrant Service Agency, Inc. v. American Standard, Inc 1221
Tarrant Service Agency, Inc. u Trane Co 1221
Tate v. United States 1242
Tavarez v. United States 1226
Taveras v. New York Dept. of Correctional Services 1271
Tax Appeals Tribunal; Reuters Ltd. v. 1235
Taylor; Deputy v 1230
Taylor u Lungren 1211
Taylor u United States 1212,1226,1243
Tenner v. Illinois 1246
Texas; Drew v 1265
Texas; Hicks u 1227
Texas; Hill u 1213
Texas; Irvine v 1208
Texas; Lyon v. 1209
Texas; Martinez u 1246
Texas; McBride v. 1246
Texas u New Mexico 1202
Texas; Robinson u 1246,1277
Texas; Rudd v 1253
Texas; Schmidt t;. 1236
TABLE OF CASES REPORTED XLVII
Texas; Wilson u 1224
Thigpen v United States ][ 1238
Thomas, In re 1234
Thomas v. Zavaras 1210
Thomas v. Zubritzky 1238
Thomas Jefferson Univ. v. Shalala 504
Thomas Jefferson Univ. Hospital v. Shalala 504
Thompson, In re 1269
Thompson v. Virginia 1221
Thornton; U. S. Term Limits, Inc. u . 1218,1286
Thorsted; Gregoire v 1228
Threatt u Fulton County 1217
Tigard; Dolan v. 374
Timber Lake v. Cheyenne River Sioux Tribe 1236
Tipton v. United States 1212
Tisbury; Wayfield v. 1245
Titlemore v. Raymond 1247
Todd Shipyards Corp. v. Edwards 1203
Toegemann v. Rich 1270
Tolver v. United States 1225
Toombs; Jones v 1224
Tornow u Immigration and Naturalization Service 1265
Torres-Tirado v. United States 1223
Town. See name of town.
Tracy; Wardell v 1220
Traina v. Missouri 1211
Trainor, Robertson, Smits & Wade; Cullen u 1271
Tran u United States 1239
Trane Co,; Tarrant Service Agency, Inc. v 1221
Transportes Aereos Nacionales, S. A.; Flores de Brenes v 1222
Transtech Industries, Inc.; Mayco Oil & Chemical Co. u 1213
Trans World Airlines; Sakaria v. 1247
Traunig v. Department of Veterans Affairs 1248
Treasurer of Cleveland County v. Federal Deposit Ins. Corp. . . . 1205
Trevino; Wachs v 1280
Truex u United States 1236
Trustees of Columbia Univ. in New York City u Karibian 1213
TRW, Inc.; Choate v 1221
Tucson Electric Power Co.; Reilly v 1220
Tuilaepa u California 967
Tunnell; Branch v. 1219
Turner v. Lumadue 1239,1278
Turner Broadcasting System, Inc. v. FCC 622,1278
Tweedy v. American Airlines, Inc 1236,1277
XLVIII TABLE OF CASES REPORTED
Page
Tyler, In re 1234
T^ra; Hozdish v. 1209
Tyus v. Bosley 1249
Union. For labor union, see name of trade.
United. For labor union, see name of trade.
United States. See name of other party.
U. S. Anchor Mfg., Inc. v. Rule Industries, Inc 1221
U. S. District Court; Allen v. 1240
U. S. District Court; Bryant v. 1229
U. S. District Court; Israel v. 1229
U. S. Intelligence; Rabin v. 1274
U. S. Term Limits, Inc. v. Thornton . 1218,1286
United Tex. Transmission Co. u Army Corps of Engineers 1235
University of Colo. v. Derdeyn 1229
Urrego u United States 1222,1239
Utah; Schoolcraft v. 1236
Valdes v. Florida 1227
Vander Vort, In re . 1217,1275
Variable Annuity Life Ins. Co.; Ludwig v. 1233,1286
Variable Annuity Life Ins. Co.; NationsBank of N. C., N. A. v. 1233,1286
Vaughn; King v. 1232
Village. See name of village.
Villegas; United States u 1245
Virginia; Catiett v. 1247
Virginia; Mosley v. 1224
Virginia; Ramdass v. 1217
Virginia; Thompson v 1221
Virginia; Wright u 1217
Virginia State Bar Disciplinary Bd.; Fromal v 1264
Virtual Maintenance, Inc. v. Computervision Corp 1216
Virtual Maintenance, Inc.; Computervision Corp. v. 1216
Vision Interfaith Satellite Network v. FCC 1230
Wachs v. Trevino 1280
Wader u California 1253
Walker v. Lanham 1208
Walker v. Scott , 1270
Walker u United States , 1240
Wallace u United States 1248
Wardell u Tracy 1220
Warden. See name of warden.
Wardlaw v. Rckett 1204,1270
Ware u Yukins 1245
Warner, In re . 1201,1274
Warren t;. United States 1264
TABLE OP CASES REPORTED
Washington; Aquarian Foundation v .......................
Washington; Jones v ................................ 1241 1278
Watts v. Federal Bureau of Prisons .................... 1242*1278
Watts v. Rice ........................................ *1229
Wayfield v. Tisbury .................................... -^245
Wayne County Community College; Chonich v. .............. 1236
Weir; Evans v. ....................................... 1220
Weiss, In re ............ . ................... . ........ 1201
Weissich v. United States ............................... 1219
Wells, In re ......................................... 1266
Wendt v. Scott ....................................... 1225
Went For It, Inc.; Florida Bar v. ......................... 1289
West Lynn Creamery, Inc. v. Healy ....................... 186
West Penn Power Co. v. Pennsylvania Public Utility Comm'n . . . 1203
Wetzler; Duffy v ...................................... 1281
Whatcom County; Lummi Indian Tribe v. .................. 1228
Wheeler v. Eadder, Peabody & Co ......................... 1206
Whitaker, In re .......................... . ........... 1234
Whitaker; Johnson v ................................... 1210
Whitaker u United States .............................. 1280
White v. Runyon ..................................... 1219
White v. United States .............................. 1242,1244
Whitehead v. Bradley Univ. ............................. 1214
Whitley; Chevalier v ................................... 1224
WMtley v. Florida ................................. 1210,1264
Wickliffe v. Farley .................................... 1277
Wiese v. United States ................................. 1210
Williams v. Josephs ................................... 1243
Williams v, Scott ____ ... ............................ 1224,1289
Williams v. United States ............................... 1208
Williamson v. United States ............................. 594
Willoughby v. CaUfornia ................................ 1208
Wilson; Keplinger v. ................................... 1220
Wilson v. Texas ...................................... 1224
Wilson v. United States ......................... 1208,1240,1242
Winfield u Kaplan .................................... 1253
Winterboer; Asgrow Seed Co. v ........................ 1269,1285
Wisconsin; Faulkner v .................................. 1227
Wisconsin; Kurzawa v .................................. 1222
Witcher u Witcher .................................... 1229
Witherspoon v. Rees ................................. . . 1227
Witherspoon u United States ............................ 1225
Wolens; American Airlines, Inc. v. ........................ 1233
Women's Health Center, Inc.; Madsen v. .................. 753,1277
TABLE OF CASES REPORTED
Wong, In re 1282
Wong u United States 1219
Woodard v. Ohio 1246
Woods v. Singletary 1264
Woodside, In re 1232,1284
Workers1 Compensation Appeals Bd. of Cal.; Yitref v. 1214
Worytko v. Nickerson 1243
Woznick v. Hinson 1207
Wright; Brim v. 1225
Wright; Dowell u 1248
Wright u United States 1243
Wright v. Virginia 1217
Wyatt v. Oklahoma 1208
Yamada, In re , 1274
Yepes-Gonzalez v. Immigration and Naturalization Service 1238
Yitref u Workers1 Compensation Appeals Bd. of Cal 1214
Young; Armadores de Cabotaje, S. A. v 1216
Young v. Pennsylvania 1210
Young In Hong t>. Children's Memorial Hospital 1214
Youngstown; Pusey u 1237
Yukins; Ware u 1245
Zant; Conklin u 1248
Zant; Jefferson u 1215
Zant; Romine u 1213
Zavaras; Thomas v. 1210
Zelman, Inre .... 1282
Zoning Bd. of Adjustment of East Brunswick Twp.; Sackman v. . 1237
Zubritzky; Thomas v. 1238
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1993
ROMANO u OKLAHOMA
CERTIORARI TO THE COURT OF CRIMINAL APPEALS
OF OKLAHOMA
No. 92-9093. Argued March 22, 1994— Decided June 13, 1994
During the sentencing phase of petitioner's first-degree murder trial in
Oklahoma, the State introduced a copy of the judgment and death sen-
tence he had received during an earlier trial for another murder. The
jury ultimately found that the aggravating circumstances outweighed
the mitigating circumstances, and imposed a second death sentence on
petitioner. In affirming, the Oklahoma Court of Criminal Appeals ac-
knowledged that the evidence of petitioner's prior death sentence was
irrelevant to determining the appropriateness of the second death sen-
tence, but held that admission of the evidence did not violate the Eighth
and Fourteenth Amendments under Caldwell v. Mississippi, 472 U. S.
320, or so infect the sentencing determination with unfairness as to
amount to a denial of due process.
Held: The admission of evidence regarding petitioner's prior death sen-
tence did not amount to constitutional error. Pp. 6-14.
(a) Admission of the evidence at issue did not contravene the principle
established in Caldwell, supra, at 342 (O'CONNOR, J., concurring in part
and concurring in judgment), because the evidence did not affirmatively
mislead the jury regarding its role in the sentencing process so as to
diminish its sense of responsibility for the capital sentencing decision.
Such evidence was not false at the time it was admitted and did not
even pertain to the jury's sentencing role. The trial court's instruc-
tions, moreover, emphasized the importance of that role and never con-
1
2 ROMANO u OKLAHOMA
Syllabus
veyed or intimated that the jury could shift its responsibility in sentenc-
ing. Pp. 6-10.
(b) Although the evidence in question may have been irrelevant, the
jury's consideration of it did not render the sentencing proceeding so
unreliable that it violated the Eighth Amendment under Lockett v. Ohio,
438 U. S. 586, 604 (plurality opinion), and Woodson v. North Carolina,
428 U. S. 280, 305. That the evidence may have been irrelevant as a
matter of state law does not render its admission federal constitutional
error. See Estelle v. McGuire, 502 U. S. 62, 67. Dawson v. Delaware,
503 U. S. 159, 167, and Zant v. Stephens, 462 U. S. 862, 885, are plainly
inapposite, since petitioner does not argue that admission of the evi-
dence allowed the jury to consider, in aggravation, constitutionally pro-
tected conduct. Johnson v. Mississippi, 486 U. S. 578, 586, 590, n. 8, is
also inapposite, since it is perfectly consistent with the Court of Crimi-
nal Appeals' approach and does not stand for the proposition that the
mere admission of irrelevant and prejudicial evidence requires the over-
turning of a death sentence. This Court declines petitioner's request
to fashion a federal code of general evidentiary rules, under the guise
of interpreting the Eighth Amendment, which would supersede state
rules in capital sentencing proceedings. Pp. 10-12.
(c) Introduction of the evidence in question did not so infect the trial
with unfairness as to render the jury's imposition of the death penalty
a denial of due process under the analytical framework set forth in Don-
nelly v. DeChristoforo, 416 U. S. 637, 643. Presuming that the trial
court's instructions were followed, they did not offer the jurors any
means by which to give effect to the irrelevant evidence of petitioner's
prior sentence, and the relevant evidence presented by the State was
sufficient to justify the imposition of the death sentence in this case.
Even assuming that the jury disregarded its instructions and allowed
the irrelevant evidence to influence its decision, a finding of fundamental
unfairness on the basis of this record would be an exercise in specula-
tion, rather than reasoned judgment, since it seems equally plausible
that the evidence in question could have influenced the jurors either to
impose, or not to impose, the death sentence. Pp. 12-14.
847 P. 2d 368, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which O'CoN-
NOR, SCAUA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., filed a
concurring opinion, post, p. 14. BLACKMUN, J., filed a dissenting opinion,
post, p. 15. GINSBURG, J., filed a dissenting opinion, in which BLACKMUN,
STEVENS, and SOUTER, JJ., joined, post, p. 15.
Cite as: 512 U. S. 1 (1994) 3
Opinion of the Court
Lee Ann Jones Peters argued the cause for petitioner.
With her on the briefs was Robert A. Ravitz.
A. Diane Blalock, Assistant Attorney General of Okla-
homa, argued the cause for respondent. With her on the
brief was Sandra & Howard, Assistant Attorney General*
CHIEF JUSTICE REHNQUIST delivered the opinion of the
Court.
Petitioner murdered and robbed Roger Sarfaty in 1985.
In 1986, he murdered and robbed Lloyd Thompson. Peti-
tioner was tried separately for each murder. The Thompson
trial occurred first, and an Oklahoma jury found petitioner
guilty and sentenced him to death. Petitioner was then
tried for the Sarfaty murder. A different Oklahoma jury
found him guilty and sentenced him to death. During the
sentencing phase of the Sarfaty trial, the State introduced a
copy of the judgment and sentence petitioner received for
the Thompson murder. Petitioner contends that the admis-
sion of evidence regarding his prior death sentence under-
mined the Sarfaty jury's sense of responsibility for determin-
ing the appropriateness of the death penalty, in violation of
the Eighth and Fourteenth Amendments. We disagree and
hold that the admission of this evidence did not amount to
constitutional error.
In Oklahoma, capital trials are bifurcated into guilt and
sentencing phases. Okla. Stat., Tit. 21, § 701.10 (1981). The
*A brief of amid curiae urging affirmance was filed for the State of
Ohio et al. by Lee Fisher, Attorney General of Ohio, Richard A. Cordray,
State Solicitor, Simon B. Karas, Deputy Chief Counsel, and Cordelia A.
Glenn and Mary L. Hollern, Assistant Attorneys General, and by the
Attorneys General for their respective States as follows: Winston Bryant
of Arkansas, Richard Blumenthal of Connecticut, Charles M. Oberty III
of Delaware, Pamela Carter of Indiana, Mike Moore of Mississippi, Joseph
P. Mazurek of Montana, Don Stenberg of Nebraska, Ernest D. Preate, Jr.,
of Pennsylvania, T. Travis Medlock of South Carolina, and Stephen R
Rosenthal of Virginia.
4 ROMANO v. OKLAHOMA
Opinion of the Court
sentencing jury may not impose a death sentence unless it
unanimously finds the existence of at least one statutory ag-
gravating circumstance beyond a reasonable doubt, and that
any aggravating circumstances outweigh any mitigating
circumstances. §701.12. At the sentencing phase of the
Sarfaty trial, the State sought to prove four aggravating cir-
cumstances, two of which are relevant to our decision: (1)
that petitioner had been previously convicted of a violent
felony; and (2) that petitioner would constitute a continuing
threat to society1
In attempting to establish these two aggravating cir-
cumstances, the State introduced evidence relating to the
Thompson murder. The State presented testimony by
Thompson's neighbor concerning her observations the day of
the murder, Thompson's autopsy report, and photographs
and fingerprints showing that the defendant in the Thomp-
son case was in fact petitioner. The State also introduced a
copy of the judgment and sentence from the Thompson mur-
der conviction. That document revealed that petitioner had
been convicted of first-degree murder and had been sen-
tenced to death. App. 5-6. It also showed, and the trial
court told the jury, that petitioner planned on appealing from
the judgment and sentence. Id, at 7. Petitioner's counsel
objected to the admission of the document. He argued that,
regardless of the admissibility of the evidence of petitioner's
conviction, the death sentence petitioner received was not
proper for the jury to consider. The trial court overruled
the objection and admitted the evidence. Petitioner later
presented evidence in mitigation.
Before closing arguments, the trial court instructed the
jury. It identified the four aggravating circumstances the
State sought to establish and told the jury that "[i]n deter-
mining which sentence you may impose in this case, you may
1The other two aggravating circumstances were that the murder was
especially heinous, atrocious, and cruel, and that it was committed to avoid
lawful arrest or prosecution.
Cite as: 512 U. S. 1 (1994) 5
Opinion of the Court
consider only those [four] circumstances." Id., at 9. The
court then identified the 17 mitigating circumstances offered
by petitioner. The jury was instructed that it could not
impose the death penalty unless it unanimously found that
one or more aggravating circumstances existed beyond a rea-
sonable doubt and that any such circumstances outweighed
any mitigating circumstances. Id., at 8-12. In closing, the
court admonished the jury:
"You are the determiner of the facts. The impor-
tance and worth of the evidence is for you to decide.
"I have made rulings during the second part of this
trial. In ruling, I have not in any way suggested to
you, nor intimidated [sic] in any way, what you should
decide. I do not express any opinion whether or not
aggravating circumstances or mitigating circumstances
did or did not exist, nor do I suggest to you in any way
the punishment to be imposed by you.
"You must not use any kind of chance in reaching a
verdict, but you must rest it on the belief of each of you
who agrees with it." Id., at 13.
The jury found that all four aggravating circumstances ex-
isted and that they outweighed the mitigating circumstances.
It accordingly imposed a death sentence. Petitioner ap-
pealed. While his appeal in this case was pending, the Okla-
homa Court of Criminal Appeals overturned petitioner's
conviction for the Thompson murder. See Romano v. Okla-
homa, 827 P. 2d 1335 (1992) (Romano I). The Oklahoma
Court of Criminal Appeals held that petitioner's trial should
have been severed from that of his codefendant; it therefore
reversed and remanded for a new trial.2
In his appeal in this case, petitioner argued, inter alia,
that the trial court erred by admitting evidence of his convic-
tion and sentence for the Thompson murder. He asserted
2 On retrial for the Thompson murder, petitioner was again convicted
and again sentenced to death. Brief for Petitioner 81, n. 11.
6 ROMANO v. OKLAHOMA
Opinion of the Court
that it was improper to admit the conviction because it was
not final at the time of admission, and it had since been over-
turned* He also contended that the evidence of his death
sentence in the Thompson case impermissibly reduced the
Sarfaty sentencing jury's sense of responsibility for its deci-
sion, in violation of Caldwell v. Mississippi, 472 U. S. 320
(1985).
The Oklahoma Court of Criminal Appeals affirmed. 847
P. 2d 368, 390 (1993) (Romano II). The Oklahoma court
concluded that the evidence regarding petitioner's prior
death sentence was irrelevant. Because the jury was prop-
erly instructed in this case, however, it could not be said
"that the jury in any way shifted the responsibility for their
decision or considered their decision any less significant than
they would otherwise. " Ibid. The Court of Criminal Ap-
peals further held that the admission of the evidence "did
not so infect the sentencing determination with unfairness
as to make the determination to impose the death penalty a
denial of due process." Id, at 391.
Petitioner sought our review, and we granted certiorari,
limited to the following question: "Does admission of evi-
dence that a capital defendant already has been sentenced to
death in another case impermissibly undermine the sentenc-
ing jury's sense of responsibility for determining the appro-
priateness of the defendant's death, in violation of the Eighth
and Fourteenth Amendments?" 510 U. S. 943 (1993). We
now affirm.
It is helpful to begin by placing petitioner's challenge
within the larger context of our Eighth Amendment death
penalty jurisprudence. We have held that the Eighth
Amendment's concern that the death penalty be both ap-
propriate and not randomly imposed requires the States to
perform two somewhat contradictory tasks in order to im-
pose the death penalty.
First, States must properly establish a threshold below
which the penalty cannot be imposed. McCleskey v. Kemp,
Cite as: 512 U. S. 1 (1994) 7
Opinion of the Court
481 U. S. 279, 305 (1987). To ensure that this threshold is
met, the "State must establish rational criteria that narrow
the decisionmaker's judgment as to whether the circum-
stances of a particular defendant's case meet the threshold."
Ibid. As we stated in Lowenfteld v. Phelps, 484 U. S. 231
(1988), "[t]o pass constitutional muster, a capital sentencing
scheme must 'genuinely narrow the class of persons eligible
for the death penalty and must reasonably justify the imposi-
tion of a more severe sentence on the defendant compared to
others found guilty of murder.'" Id., at 244 (quoting Zant
v. Stephens, 462 U. S. 862, 877 (1983)). In this respect, a
State's sentencing procedure must suitably direct and limit
the decisionmaker's discretion " 'so as to minimize the risk of
wholly arbitrary and capricious action."' Id., at 874 (quot-
ing Gregg v. Georgia, 428 U. S. 153, 189 (1976)). Petitioner
does not allege that Oklahoma's sentencing scheme fails to
adequately perform the requisite narrowing.
Second, States must ensure that "capital sentencing deci-
sions rest on [an] individualized inquiry," under which the
"character and record of the individual offender and the cir-
cumstances of the particular offense" are considered. Me-
Cleskey, supra, at 303 (internal quotation marks omitted);
see also demons v. Mississippi, 494 U. S. 738, 748 (1990).
To this end, "States cannot limit the sentenced consid-
eration of any relevant circumstance that could cause it to
decline to impose the penalty. In this respect, the State
cannot channel the sentencer's discretion, but must allow it
to consider any relevant information offered by the defend-
ant." McCleskey, supra, at 306.
Within these constitutional limits, "the States enjoy their
traditional latitude to prescribe the method by which those
who commit murder shall be punished." Ely stone v. Penn-
sylvania, 494 U. S. 299, 309 (1990). This latitude extends to
evidentiary rules at sentencing proceedings. See, e. g.,
Gregg, supra, at 203-204 (approving "the wide scope of
evidence and argument allowed at presentence hearings"
8 ROMANO u OKLAHOMA
Opinion of the Court
in Georgia). As we observed in California v. Ramos, 463
U. S. 992, 999 (1983):
"In ensuring that the death penalty is not meted out
arbitrarily or capriciously, the Court's principal concern
has been more with the procedure by which the State
imposes the death sentence than with the substantive
factors the State lays before the jury as a basis for
imposing death, once it has been determined that the
defendant falls within the category of persons eligible
for the death penalty/'
See also id., at 1008 ("Once the jury finds that the defendant
falls within the legislatively defined category of persons eli-
gible for the death penalty . . . the jury then is free to con-
sider a myriad of factors to determine whether death is the
appropriate punishment").
We have also held, in Caldwell v. Mississippi, that the jury
must not be misled regarding the role it plays in the sentenc-
ing decision. See 472 U. S., at 336 (plurality opinion); id., at
341-342 (O'CONNOR, J., concurring in part and concurring in
judgment)* The prosecutor in Caldwell, in remarks which
"were quite focused, unambiguous, and strong/' misled the
jury to believe that the responsibility for sentencing the
defendant lay elsewhere. Id., at 340. The trial judge "not
only failed to correct the prosecutor's remarks, but in fact
openly agreed with them/' Id., at 339.
The plurality concluded that the prosecutor's remarks,
along with the trial judge's affirmation, impermissibly "mini-
mize[d] the jury's sense of responsibility for determining the
appropriateness of death." Id., at 341. Such a diminution,
the plurality felt, precluded the jury from properly perform-
ing its responsibility to make an individualized determina-
tion of the appropriateness of the death penalty. Id., at 330-
331. JUSTICE O'CONNOR, in her opinion concurring in part
and concurring in the judgment, identified more narrowly
the infirmity in the prosecutor's remarks: "In my view, the
Cite as: 512 U. S. 1 (1994) 9
Opinion of the Court
prosecutor's remarks were impermissible because they were
inaccurate and misleading in a manner that diminished the
jury's sense of responsibility/' Id., at 342.
As JUSTICE O'CONNOR supplied the fifth vote in Caldwell,
and concurred on grounds narrower than those put forth by
the plurality, her position is controlling. See Marks v.
United States, 430 U. S. 188, 193 (1977); Gregg, supra, at 169,
n. 15. Accordingly, we have since read Caldwell as "rele-
vant only to certain types of comment — those that mislead
the jury as to its role in the sentencing process in a way that
allows the jury to feel less responsible than it should for the
sentencing decision." Darden v. Wainwright, 477 U. S. 168,
184, n. 15 (1986). Thus, "[t]o establish a Caldwell violation,
a defendant necessarily must show that the remarks to the
jury improperly described the role assigned to the jury by
local law." Bugger v. Adams, 489 U. S. 401, 407 (1989); see
also Sawyer v. Smith, 497 U. S. 227, 233 (1990).
Petitioner argues that Caldwell controls this case. He
contends that the evidence of his prior death sentence imper-
missibly undermined the sentencing jury's sense of responsi-
bility, in violation of the principle established in CaldwelL
We disagree. The infirmity identified in Caldwell is simply
absent in this case: Here, the jury was not affirmatively mis-
led regarding its role in the sentencing process. The evi-
dence at issue was neither false at the time it was admitted,
nor did it even pertain to the jury's role in the sentencing
process. The trial court's instructions, moreover, empha-
sized the importance of the jury's role. As the Court of
Criminal Appeals observed:
"The jury was instructed that it had the responsibility
for determining whether the death penalty should be
imposed. ... It was never conveyed or intimated in any
way, by the court or the attorneys, that the jury could
shift its responsibility in sentencing or that its role in
any way had been minimized." Romano II, 847 P. 2d,
at 390.
10 ROMANO u OKLAHOMA
Opinion of the Court
We do not believe that the admission of evidence regarding
petitioner's prior death sentence affirmatively misled the
jury regarding its role in the sentencing process so as to
diminish its sense of responsibility. The admission of this
evidence, therefore, did not contravene the principle estab-
lished in Caldwell.
That this case is different from Caldwell only resolves part
of petitioner's challenge. In addition to raising a "Caldwell"
claim, petitioner presents a more general contention: He ar-
gues that because the evidence of his prior death sentence
was inaccurate and irrelevant, the jury's consideration of it
rendered his sentencing proceeding so unreliable that the
proceeding violated the Eighth Amendment. See Lockett v.
Ohio, 438 U. S. 586, 604 (1978) (plurality opinion); Woodson
v. North Carolina, 428 U. S. 280, 305 (1976). The Oklahoma
court agreed that the "evidence of the imposition of the
death penalty by another jury is not relevant in determining
the appropriateness of the death sentence for the instant
offense." Romano II, supra, at 391. That the evidence
may have been irrelevant as a matter of state law, however,
does not render its admission federal constitutional error.
See Estelle v. McGuire, 502 U. S. 62, 67 (1991).
Some of the cases upon which petitioner relies for support,
to be sure, do hold that the Constitution bars the introduc-
tion of certain evidence at sentencing proceedings. But
these cases are plainly inapposite. Petitioner cites, for ex-
ample, Dawson v. Delaware, 503 U. S. 159 (1992). There we
held that the trial court erred by admitting evidence, at
Dawson's capital sentencing proceeding, regarding Dawson's
membership in a white racist prison gang known as the
Aryan Brotherhood. See id., at 162-163. It was constitu-
tional error, however, only because the admission violated
"Dawson's First Amendment rights." Id, at 167. Dawson
thus involved application of the principle first enunciated in
Zant: An aggravating circumstance is invalid if "it author-
izes a jury to draw adverse inferences from conduct that is
Cite as: 512 U. S. 1 (1994) 11
Opinion of the Court
constitutionally protected." 462 U. S., at 885. Petitioner
does not argue that the admission of evidence regarding his
prior death sentence allowed the jury to consider, in aggra-
vation, constitutionally protected conduct. Accordingly, our
decisions in Dawson and Zant do not support petitioner's
contention.
Petitioner also cites Johnson v. Mississippi, 486 U. S. 578
(1988), but it, too, is inapposite. There we reversed the im-
position of Johnson's death sentence because the only evi-
dence supporting an aggravating factor turned out to be in-
valid, and because the Mississippi Supreme Court refused to
reweigh the remaining, untainted aggravating circumstances
against the mitigating circumstances. Id., at 586, 590, n. 8.
Similarly, in this case the only evidence supporting the "prior
violent felony" aggravating circumstance was the judgment
from petitioner's conviction for the Thompson murder. That
evidence, like the evidence in Johnson, was rendered invalid
by the reversal of petitioner's conviction on appeal.
Here, however, the Oklahoma Court of Criminal Appeals
struck the "prior violent felony" aggravator, reweighed the
three untainted aggravating circumstances against the miti-
gating circumstances, and still concluded that the death pen-
alty was warranted. See Romano II, supra, at 389, 393—
394. The Court of Criminal Appeals' approach is perfectly
consistent with our precedents, including Johnson, where we
remanded without limiting the Mississippi Supreme Court's
authority to reweigh the remaining aggravating circum-
stances against the mitigating circumstances. See 486 U. S.,
at 590; id., at 591 (White, J., concurring); see also demons,
494 U. S., at 744-750. Contrary to petitioner's assertion,
Johnson does not stand for the proposition that the mere
admission of irrelevant and prejudicial evidence requires the
overturning of a death sentence.
Petitioner's argument, pared down, seems to be a request
that we fashion general evidentiary rules, under the guise of
interpreting the Eighth Amendment, which would govern
12 ROMANO u OKLAHOMA
Opinion of the Court
the admissibility of evidence at capital sentencing proceed-
ings. We have not done so in the past, however, and we will
not do so today. The Eighth Amendment does not establish
a federal code of evidence to supersede state evidentiary
rules in capital sentencing proceedings. Cf. Payne v. Ten-
nessee, 501 U. S. 808, 824-825 (1991); Blystone, 494 U. S., at
309.
Petitioner finally argues that the introduction of the evi-
dence in question violated the Due Process Clause of the
Fourteenth Amendment. It is settled that this Clause ap-
plies to the sentencing phase of capital trials. See, e. g.,
Payne, supra, at 825; demons, supra, at 746 ("[C]apital sen-
tencing proceedings must of course satisfy the dictates of the
Due Process Clause").
We believe the proper analytical framework in which to
consider this claim is found in Donnelly v. DeChristoforo,
416 U. S. 637, 643 (1974). There we addressed a claim that
remarks made by the prosecutor during his closing argument
were so prejudicial as to violate the defendant's due process
rights. We noted that the case was not one in which the
State had denied a defendant the benefit of a specific consti-
tutional right, such as the right to counsel, or in which the
remarks so prejudiced a specific right as to amount to a de-
nial of that right. Id., at 643. Accordingly, we sought to
determine whether the prosecutor's remark "so infected the
trial with unfairness as to make the resulting conviction a
denial of due process/' Ibid. We concluded, after an "ex-
amination of the entire proceedings/' that the remarks did
not amount to a denial of constitutional due process. Ibid.
The relevant question in this case, therefore, is whether
the admission of evidence regarding petitioner's prior death
sentence so infected the sentencing proceeding with unfair-
ness as to render the jury's imposition of the death penalty
a denial of due process. See Sawyer, 497 U. S., at 244 (ob-
serving that "[t]he Caldwell rule was . . . added to [Donnel-
ly's] existing guarantee of due process protection against
Cite as: 512 U. S. 1 (1994) 13
Opinion of the Court
fundamental unfairness"); see also Darden, 477 U. S., at 178-
181 (in analyzing allegedly improper comments made by
prosecutor during closing argument of guilt-innocence stage
of capital trial, "[t]he relevant question is whether the prose-
cutors' comments 'so infected the trial with unfairness as to
make the resulting conviction a denial of due process' " (quot-
ing Donnelly, supra, at 643)). Under this standard of re-
view, we agree with the Oklahoma Court of Criminal Ap-
peals that the admission of this evidence did not deprive
petitioner of a fair sentencing proceeding.
The evidence that petitioner received a death sentence for
murdering Thompson was deemed irrelevant by the Okla-
homa Court of Criminal Appeals. See Romano II, 847 P.
2d, at 391. However, if the jurors followed the trial court's
instructions, which we presume they did, see Richardson v.
Marsh, 481 U.S. 200, 206-207, 211 (1987), this evidence
should have had little — if any — effect on their deliberations.
Those instructions clearly and properly described the jurors'
paramount role in determining petitioner's sentence, and
they also explicitly limited the jurors' consideration of aggra-
vating factors to the four which the State sought to prove.
Regardless of the evidence as to petitioner's death sentence
in the Thompson case, the jury had sufficient evidence to
justify its conclusion that these four aggravating circum-
stances existed. Although one of the aggravating circum-
stances proved invalid when petitioner's conviction for the
Thompson murder was overturned on appeal, the other three
remained untainted and still outweighed the mitigating cir-
cumstances. See Romano II, supra, at 389, 393-394. In
short, the instructions did not offer the jurors any means by
which to give effect to the evidence of petitioner's sentence
in the Thompson murder, and the other relevant evidence
presented by the State was sufficient to justify the imposi-
tion of the death sentence in this case.
Even assuming that the jury disregarded the trial court's
instructions and allowed the evidence of petitioner's prior
14 ROMANO v. OKLAHOMA
O'CONNOR, J., concurring
death sentence to influence its decision, it is impossible to
know how this evidence might have affected the jury. It
seems equally plausible that the evidence could have made
the jurors more inclined to impose a death sentence, or it
could have made them less inclined to do so. Either conclu-
sion necessarily rests upon one's intuition. To hold on the
basis of this record that the admission of evidence relating
to petitioner's sentence in the Thompson case rendered peti-
tioner's sentencing proceeding for the Sarfaty murder funda-
mentally unfair would thus be an exercise in speculation,
rather than reasoned judgment.
The judgment of the Oklahoma Court of Criminal Ap-
peals is
Affirmed.
JUSTICE O'CONNOR, concurring.
The Court today, relying in part on my opinion in Caldwell
v. Mississippi, 472 U. S. 320, 341 (1985), rejects petition-
er's claim that the introduction of evidence of a prior death
sentence impermissibly undermined the jury's sense of re-
sponsibility. I write separately to explain why in my view
petitioner's Caldwell claim fails. The inaccuracy of the
prosecutor's argument in Caldwell was essential to my con-
clusion that the argument was unconstitutional. See id., at
342 ("[T]he prosecutor's remarks were impermissible be-
cause they were inaccurate and misleading in a manner that
diminished the jury's sense of responsibility"). An accurate
description of the jury's role — even one that lessened the
jury's sense of responsibility — would have been constitu-
tional. Ibid. ("[A] misleading picture of the jury's role is
not sanctioned by [California v. Ramos, 463 U.S. 992
(1983),] [b]ut neither does Ramos suggest that the Federal
Constitution prohibits the giving of accurate instructions
regarding postsentencing procedures").
Accordingly, I believe that petitioner's Caldwell claim fails
because the evidence here was accurate at the time it was
Cite as: 512 U. S. 1 (1994) 15
GINSBURG, J., dissenting
admitted. Petitioner's sentencing jury was told that he had
been sentenced to death — and indeed he had been. Introduc-
ing that evidence is no different than providing the jury with
an accurate description of a State's appellate review process.
Both may (though we can never know for sure) lessen the
jury's sense of responsibility, but neither is unconstitutional.
Though evidence like that involved in this case can rise to
the level of a Caldwell violation, to do so the evidence must
be both inaccurate and tend to undermine the jury's sense of
responsibility. Ibid.
It may well have been better practice for the State to
agree to accept petitioner's stipulation offer, or to excise the
sentencing information before submitting the Judgment and
Sentence form to the jury. But under our precedents, be-
cause this evidence was accurate, I do not believe its intro-
duction violated the Constitution.
JUSTICE BLACKMUN, dissenting.
I join JUSTICE GINSBURG 's dissent, which persuasively
demonstrates why the admission of Romano's prior death
sentence, like the prosecutor's arguments in Caldwell v. Mis-
sissippi, 472 U. S. 320 (1985), created an unacceptable risk of
leading the jurors to minimize the importance of their roles.
Even if this particular constitutional error were not present
in this case, I would vacate Romano's death sentence and
remand for resentencing in adherence to my view that the
death penalty cannot be imposed fairly within the con-
straints of our Constitution. See Collins v. Collins, 510
U. S. 1141, 1143 (1994).
JUSTICE GINSBURG, with whom JUSTICE BLACKMUN,
JUSTICE STEVENS, and JUSTICE SOUTER join, dissenting.
In Caldwell v. Mississippi, 472 U. S. 320 (1985), this Court
overturned a capital sentence as inadequately reliable be-
cause of a statement made by the prosecutor, in closing argu-
ment at the penalty phase of the trial. The Caldwell prose-
16 ROMANO u OKLAHOMA
GINSBURG, «L, dissenting
cutor told the jury: " '[Y]our [sentencing] decision is not the
final decision'"; "'the decision you render is automatically
reviewable by the [State] Supreme Court/ " Id., at 325-326.
Responding to the issue presented in Caldwell, this Court
observed that capital sentencing jurors, required to deter-
mine "whether a specific human being should die at the
hands of the State/' id., at 329, are "placed in a very unfamil-
iar situation and called on to make a very difficult and un-
comfortable choice," id., at 333. Such jurors, the Court
noted, might find "highly attractive" the prosecutor's sug-
gestion that persons other than themselves would bear "re-
sponsibility for any ultimate determination of death." Id.,
at 332-333.
The possibility the jury might have embraced the prosecu-
tor's suggestion, the Court concluded, rendered the imposi-
tion of the death penalty inconsistent with the Constitution's
requirement of individualized and reliable capital sentencing
procedures. See id., at 323, 329-330, 340-341. Emphasiz-
ing the " 'truly awesome responsibility' " imposed upon capi-
tal sentencing juries, id., at 329, quoting McGautha v. Cali-
fornia, 402 U. S. 183, 208 (1971), the Court held:
"[I]t is constitutionally impermissible to rest a death
sentence on a determination made by a sentencer who
has been led to believe that the responsibility for deter-
mining the appropriateness of the defendant's death
rests elsewhere." 472 U. S., at 328-329.
In my view, this principle, reiterated throughout the
Court's Caldwell opinion,1 covers the present case: The jury's
1 See 472 U. S., at 323 (sentence constitutionally invalid, because unrelia-
ble, if "the sentencing jury is led to believe that responsibility for deter-
mining the appropriateness of a death sentence rests not with the jury
but with the appellate court which later reviews the case"); id., at 333
(w[T]he uncorrected suggestion that the responsibility for any ultimate
determination of death will rest with others presents an intolerable dan-
ger that the jury will in fact choose to minimize the importance of its
role."); uL, at 341 (because the State's effort "to minimize the jury's sense
Cite as: 512 U. S. 1 (1994) 17
GINSBURG, J., dissenting
consideration of evidence, at the capital sentencing phase of
petitioner Romano's trial, that a prior jury had already
sentenced Romano to death, infected the jury's life-or-death
deliberations as did the prosecutorial comments condemned
in Caldwell. Accordingly, I would vacate the death sen-
tence imposed upon Romano and remand for a new sentenc-
ing hearing.
I
At the penalty phase of Romano's trial for the murder of
Roger Sarfaty, the prosecution sought to put before the jury
a copy of the "Judgment and Sentence" from an earlier and
unrelated prosecution. That document revealed that Ro-
mano had been convicted of the first-degree murder of Lloyd
Thompson and that he was to be executed for that crime.
Defense counsel offered to stipulate to Romano's conviction
for the Thompson murder, but objected to the jury's consid-
eration of the death sentence. The trial court overruled de-
fense counsel's objection and admitted the "Judgment and
Sentence" document. That document stated that Romano
had given "no good reason why [the] Judgment and Sentence
[for the murder of Thompson] should not be pronounced,"
and commanded the State's Department of Corrections "to
put the said JOHN JOSEPH ROMANO to death." App. 6.
The jury in the instant, Sarfaty murder case also sentenced
Romano to death.
During the pendency of Romano's appeal from his convic-
tion and sentence for the Sarfaty murder, the Oklahoma
Court of Criminal Appeals vacated his conviction for the
Thompson murder. Romano v. State, 827 P. 2d 1335 (1992).
Romano urged on appeal in the Sarfaty case that, under
Caldwell v. Mississippi, it was impermissible to place before
the jury, as relevant to its deliberations whether Romano
of responsibility for determining the appropriateness of death" might have
affected the sentencing decision, the death sentence must be vacated).
18 ROMANO u OKLAHOMA
GINSBURG, J., dissenting
should live or die, evidence that he was already under sen-
tence of death.
The Oklahoma court rejected that contention and affirmed
Romano's conviction and death sentence for the Sarfaty mur-
der. 847 R 2d 368, 390 (OMa. Grim. App. 1993). In so rul-
ing, the court acknowledged that "[l]earning that the defend-
ant had previously received a death sentence for another
murder could diminish the jury's sense of importance of its
role and mitigate the consequences of [its] decision." Ibid.
The court farther recognized that "evidence of the imposi-
tion of the death penalty by another jury is not relevant in
determining the appropriateness of the death sentence for
the instant offense/' Id., at 391. Nevertheless, the court
concluded, "when the jury is properly instructed as to its
role and responsibility in making such a determination we
cannot, on appellate review, conclude that the jur[ors] in any
way shifted the responsibility for their decision or con-
sidered their decision any less significant than they would
otherwise/1 Id., at 390.2 That judgment is now before the
Court.3
II
In Caldwell, this Court found constitutionally impermissi-
ble a prosecutor's statement, at the penalty phase of a capital
trial, that the jury's decision was "not the final decision" be-
cause it was "automatically reviewable." The prosecutor's
assurances were impermissible, the Court ruled, because
they created an unacceptable risk that the jury would "mini-
mize the importance of its role," "believ[ing] that the respon-
sibility for determining the appropriateness of the defend-
2 The court also observed that, although death sentences attract "height-
ened" appellate scrutiny, "a presumption of correctness" attends the jury's
determination. 847 R 2d, at 391.
8 Romano was subsequently reconvicted at his second trial for the
Thompson murder and again sentenced to death. See Brief for Petitioner
31, n. 11. The State does not suggest that these events affect the question
we consider.
Cite as: 512 U. S. 1 (1994) 19
GINSBURG, J., dissenting
ant's death rest[ed] elsewhere." Caldwell, 472 U. S., at 333,
329. This belief, the Court explained, is inconsistent with
the "heightened 'need for reliability' " in capital sentencing.
Id.9 at 323, quoting Woodson v. North Carolina, 428 U. S.
280, 305 (1976) (plurality opinion).
The risk of diminished jury responsibility was also grave
in Romano's case. Revealing to the jury that Romano was
condemned to die for the Thompson murder signaled to the
jurors in the Sarfaty murder case that Romano faced exe-
cution regardless of their life-or-death decision in the case
before them. Jurors so informed might well believe that
Romano's fate had been sealed by the previous jury, and thus
was not fully their responsibility. See People v. Hope, 116
111. 2d 265, 274, 508 N. E. 2d 202, 206 (1986) ("<[T]he jury's
awareness of defendant's prior death sentence would dimin-
ish its sense of responsibility .... Assuming that defendant
was already going to be executed, the jurors may consider
their own decision considerably less significant than they
otherwise would.'"), quoting People v. Davis, 97 111. 2d 1, 26,
452 N. E. 2d 525, 537 (1983); West v. State, 463 So. 2d 1048,
1052-1053 (Miss. 1985) ("[I]f the jury knows that the [defend-
ant] is already under a sentence of death it would tend to
relieve them of their separate responsibility to make that
determination. ").
A juror uncertain whether to vote for death or for life
might be swayed by the knowledge that " 'another jury had
previously resolved the identical issue adversely to defend-
ant.' " Hope, 116 111. 2d, at 274, 508 N. E. 2d, at 206, quoting
Davis, 97 111. 2d, at 26, 452 N. E. 2d, at 537. Such a juror,
although "unconvinced that death is the appropriate punish-
ment, . . . might nevertheless wish to 'send a message' of
extreme disapproval for the defendant's acts," Caldwell, 472
U. S., at 331, reasoning that the defendant was already to
be executed in any event. Furthermore, jurors otherwise
inclined to hold out for a life sentence might acquiesce in a
death penalty they did not truly believe warranted. C£ id.,
20 ROMANO u OKLAHOMA
GINSBURG, J., dissenting
at 333 ("[0]ne can easily imagine that in a case in which
the jury is divided on the proper sentence, the presence of
appellate review could effectively be used as an argument
for why those jurors who are reluctant to invoke the death
sentence should nevertheless give in.").
Respondent State of Oklahoma correctly observes, how-
ever, that evidence of a prior death sentence may not
produce a unidirectional bias toward death. Brief for Re-
spondent 23. Some jurors, otherwise inclined to believe the
defendant deserved the death penalty for the crime in the
case before them, might nonetheless be anxious to avoid any
feeling of responsibility for the defendant's execution. Ju-
rors so minded might vote for a life sentence, relying on the
prior jury's determination to secure defendant's death. See
ante, at 14. The offending prosecutorial comments in Cald-
well, by contrast, created an apparently unidirectional "bias
toward a death sentence," for the appellate review that the
Caldwell jurors were encouraged to consider could occur
only if the jury sentenced the defendant to death, not if it
voted for life. 472 U. S., at 331-332. Oklahoma maintains
that Romano remains outside the Caldwell principle, because
he is unable to demonstrate that the evidence of his prior
death sentence tilted the jurors toward death.
Romano's prosecutor, at least, seems to have believed that
informing the jurors of the prior death sentence would in-
cline them toward death, for otherwise, he probably would
not have insisted upon introducing the "Judgment and Sen-
tence" itself, over Romano's objection, and despite Romano's
offer to stipulate to the underlying conviction. Most criti-
cally, Caldwell, as I comprehend that decision, does not re-
quire Romano to prove that the prosecutor's hunch was cor-
rect, either in Romano's case in particular or in death penalty
cases generally.
Caldwell dominantiy concerns the capital sentencing jury's
awareness and acceptance of its " 'awesome responsibility/ "
Id., at 341. To assure that acceptance, this Court's Eighth
Cite as: 512 U. S. 1 (1994) 21
GINSBURG, J., dissenting
Amendment jurisprudence instructs, capital sentencing pro-
cedures must be especially reliable. See id., at 323 (prosecu-
tor's comments were "inconsistent with the Eighth Amend-
ment's heightened 'need for reliability in the determination
that death is the appropriate punishment in a specific case' "),
quoting Woodson v. North Carolina, 428 U. S., at 305; 472
U. S., at 341 (death sentence "does not meet the standard of
reliability that the Eighth Amendment requires/' when it
may have been affected by the State's attempt "to minimize
the jury's sense of responsibility for determining the appro-
priateness of death"). Under Caldwell's reasoning, diminu-
tion of jurors' sense of responsibility violates the Eighth
Amendment's reliability requirement, whether or not a de-
fendant can demonstrate empirically that the effect of this
diminution was to bias the jurors' judgment toward death.
According to Caldwell, if a reviewing court "cannot say" that
an effort "to minimize the jury's sense of responsibility for
determining the appropriateness of death . . . had no effect
on the sentencing decision, . . . [t]he sentence of death must
... be vacated" as unreliable. Ibid.
Ill
The Court today reads Caldwell to apply only if the jury
has been "affirmatively misled regarding its role in the sen-
tencing process." Ante, at 9. According to the Court, be-
cause no information, incorrect when conveyed, was given
to the jury responsible for sentencing Romano for Sarfaty's
murder, "[t]he infirmity identified in Caldwell is simply ab-
sent in this case." Ibid.
The Court rests its rendition of Caldwell on the premise
that only a plurality of the Court's Members endorsed the
principle I regard as pivotal: Diminution of the jury's sense
of responsibility "preclude[s] the jury from properly perform-
ing its [charge] to make an individualized determination of
the appropriateness of the death penalty." See ante, at 8,
citing Caldwell, 472 U. S., at 330-331, 341. In fact, however,
22 ROMANO u OKLAHOMA
GlNSBURG, *L, dissenting
key portions of Caldwell that the Court attributes to a plu-
rality of four were joined by five of the eight Justices who
participated in that case. JUSTICE O'CONNOR parted com-
pany with the other Members of the majority only as to a
discrete, three-paragraph section, Part IV-A (id., at 335-
336), in which "[t]he Court/' in her view, "seem[ed] generally
to characterize information regarding appellate review as
'wholly irrelevant to the determination of the appropriate
sentence/ " Id., at 342 (opinion concurring in part and con-
curring in judgment), quoting id., at 336. JUSTICE O'CoN-
NOR explained that she did not read California v. Ramos,
463 U. S. 992 (1983), "to imply that the giving of nonmis-
leading and accurate information regarding the jury's role in
the sentencing scheme is irrelevant to the sentencing deci-
sion." 472 U. S., at 341 (emphasis deleted). It was in that
context that JUSTICE O'CONNOR stated her view, quoted
ante, at 8-9, that " 'the prosecutor's remarks were impermis-
sible/ " not because they referred to the existence of post-
sentence review, but "because they were inaccurate and
misleading in a manner that diminished the jury's sense of
responsibility/' 472 U. S., at 342.
JUSTICE O'CONNOR'S opinion thus appears to rest on
"grounds narrower" than those relied upon by the other
Members of the Court's Caldwell majority, see ante, at 9,
only insofar as her concurrence disavowed any implication
that the "giving of accurate instructions regarding postsen-
tencing procedures," 472 U. S., at 342, is irrelevant or uncon-
stitutional. The evidence of Romano's death sentence for
the murder of Thompson, however, was not information re-
garding postsentencing procedures Romano might pursue.
Nor, as the Oklahoma Court of Criminal Appeals found, was
the "Judgment and Sentence" for Thompson's murder rele-
vant to the Sarfaty jury's sentencing decision. 847 P. 2d, at
391 ("evidence of the imposition of the death penalty by an-
other jury is not relevant in determining the appropriateness
Cite as: 512 U. S. 1 (1994) 23
GINSBURG, J., dissenting
of the death sentence for the instant offense").4 Accord-
ingly, I do not read JUSTICE O'CONNOR'S concurring opinion
as narrowing the Court's Caldwell holding with respect to
the issue this case presents. Nor, for reasons set out in the
margin, do I agree with the Court that several post-Caldwell
cases, beginning with Darden v. Wainwright, 477 U. S. 168
(1986), confirm the narrow interpretation of Caldwell the
Court announces today. See ante, at 9.5
Finally, the Court relies, as did the Oklahoma Court of
Criminal Appeals, on the trial court's instruction to the ju-
rors that " '[t]he importance and worth of the evidence is for
you to decide,'" together with the court's disavowal of any
4 In its merits brief before this Court, but not in its state-court brief or
in its brief in opposition to the petition for certiorari, the State of Okla-
homa has argued that the evidence of Romano's prior sentence may have
been relevant. This belated argument does not persuade. The only au-
thority the State cites holding that a prior death sentence may be relevant
evidence at sentencing is Commonwealth v. Beasley, 505 Pa. 279, 288, 479
A. 2d 460, 465 (1984); that case decided, purely as a matter of state statu-
tory construction, that the term "conviction" could be taken to include the
sentence imposed for an earlier conviction.
6 In Darden, the Court rejected a Caldwell challenge to a prosecutor's
comments at the guilt phase of a capital trial. The Court observed that
the fact that the prosecutor did not make these comments at the penalty
phase "greatly reduc[ed] the chance that they had any effect at all on
sentencing." 477 U. S., at 183-184, n. 15. Further, unlike the "Judgment
and Sentence" form in Romano's case, the comments made in Darden were
not evidence, and the trial court told the jury so "several times." Finally,
the Court concluded that the prosecutor's comments would have had, "[i]f
anything, . . . the tendency to increase the jury's perception of its role,"
not diminish it. Ibid.
The Court also relies upon Dugger v. Adams, 489 U. S. 401, 407 (1989),
and Sawyer v. Smith, 497 U. S. 227, 233 (1990). In Adams, the Court
stated that "the merit of respondent's Caldwell claim is irrelevant to our
disposition of the case." 489 U. S., at 408, n. 4. In Sawyer, the question
the Court considered was not whether a Caldwell violation had occurred,
but whether "Caldwell announced a new rule as defined by Teague v.
Lane, 489 U. S. 288 (1989)," i. e., whether Caldwell "was . . . dictated by
prior precedent existing at the time the [habeas petitioner's] conviction
became final." 497 U. S., at 229, 235.
24 ROMANO u OKLAHOMA
GINSBURG, J., dissenting
view as to the appropriate punishment. Ante, at 5. The
Court quotes the Oklahoma court's conclusion that " '[i]t was
never conveyed or intimated in any way, by the court or the
attorneys, that the jury could shift its responsibility in sen-
tencing or that its role in any way had been minimized/"
Ante, at 9, quoting 847 R 2d, at 390.
Plainly, the trial court's instruction to consider the evi-
dence cannot resolve the Caldwell problem in this case: The
"Judgment and Sentence" form, bearing Romano's prior
death sentence, was part of the evidence the jury was told
to consider. Further, once it is acknowledged that evidence
of the prior death sentence "could diminish the jury's sense
of importance of its role and mitigate the consequences of
[its] decision," 847 R 2d, at 390, it cannot be said that the
court or attorneys did not "conve[y] or intimat[e]" that the
jury's role was diminished. The prosecution proffered the
death-commanding "Judgment and Sentence" as evidence,
and the trial court admitted it — over Romano's objection,
and despite his offer to stipulate to the conviction. As dis-
cussed supra, at 18-21, admission of that evidence risked
leading jurors to "minimize the importance of [their] role,"
"believpng] that the responsibility for determining the ap-
propriateness of the defendant's death rest[ed] elsewhere."
Caldwell, 472 U. S., at 333, 329. This risk was "unacceptable
in light of the ease with which [it] could have been mini-
mized" Turner v. Murray, 476 U. S. 28, 36 (1986) (opinion
of White, J).6
6 The State argues that any Caldwell problems were resolved, because
the "Judgment and Sentence" form stated that Romano "gave notice of
his intention to appeal from the Judgment and Sentence herein pro-
nounced/' App. 7, and because the trial judge told the jury, when the form
was admitted, that "[Romano] has been convicted but it is on appeal and
has not become final," Tr. 45 (May 26, 1987). See Brief for Respondent
19-22. I do not find these general references to appellate review suffi-
cient to salvage the instant death sentence, given the irrelevance of
Romano's prior sentence to legitimate sentencing considerations, see 847
R 2d, at 391, and the ease with which all Caldwell difficulty could have
been avoided.
Cite as: 512 U. S. 1 (1994) 26
GINSBURG, J., dissenting
IV
Permitting the jury to consider evidence that Romano was
already under sentence of death, while that jury determined
whether Romano should live or die, threatened to "minimize
the jury's sense of responsibility for determining the appro-
priateness of death." Unable to say that the jury's consider-
ation of Romano's prior death sentence ''had no effect on the
[instant] sentencing decision," Caldwell, 472 U. S., at 341, I
would vacate that decision and remand the case for a new
sentencing hearing.
26 OCTOBEE TERM, 1993
Syllabus
UNITED STATES u CARLTON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 92-1941. Argued February 28, 1994— Decided June 13, 1994
As adopted in October 1986, 26 U. S. C. §2057 granted an estate tax deduc-
tion for half the proceeds of "any sale of employer securities by the
executor of an estate" to "an employee stock ownership plan" (ESOP).
In December 1986, respondent Carlton, acting as an executor, purchased
shares in a corporation, sold them to that company's ESOP at a loss,
and claimed a large §2057 deduction on his estate tax return. In De-
cember 1987, §2057 was amended to provide that, to qualify for the
deduction, the securities sold to an ESOP must have been "directly
owned" by the decedent "immediately before death." Because the
amendment applied retroactively, as if it were incorporated in the origi-
nal 1986 provision, the Internal Revenue Service (IRS) disallowed Carl-
ton's § 2057 deduction. The District Court entered summary judgment
against him in his ensuing refund action, rejecting his contention that
the amendment's retroactive application to his transactions violated the
Due Process Clause of the Fifth Amendment. The Court of Appeals
reversed, holding that such application was rendered unduly harsh and
oppressive, and therefore unconstitutional, by Carlton's lack of notice
that §2057 would be retroactively amended and by his reasonable reli-
ance to his detriment on preamendment law.
Held: The 1987 amendment's retroactive application to Carlton's 1986
transactions does not violate due process. Under the applicable stand-
ard, a tax statute's retroactive application must be supported by a legiti-
mate legislative purpose furthered by rational means. See, e. g.> Pen-
sion Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717,
729-730. Here, Congress' purpose in enacting the 1987 amendment was
neither illegitimate nor arbitrary. Section 2057 was originally intended
to create an incentive for stockholders to sell their companies to their
employees, but the absence of a decedent-stock-ownership requirement
resulted in the deduction's broad availability to virtually any estate, at
an estimated loss to the Government of up to $7 billion in anticipated
revenues. Thus, Congress undoubtedly intended the amendment to
correct what it reasonably viewed as a mistake in the original provision.
There is no plausible contention that it acted with an improper motive,
and its decision to prevent the unanticipated revenue loss by denying
Cite as: 512 U. S. 26 (1994) 27
Opinion of the Court
the deduction to those who made purely tax-motivated stock transfers
was not unreasonable. Moreover, the amendment's retroactive applica-
tion is rationally related to its legitimate purpose, since Congress acted
promptly in proposing the amendment within a few months of §2057's
original enactment and established a modest retroactivity period that
extended only slightly longer than one year. The Court of Appeals'
exclusive focus on the taxpayer's notice and reliance held §2057 to an
unduly strict standard. Pp. 30-35.
972 F. 2d 1051, reversed.
BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST,
C. J., and STEVENS, KENNEDY, SOUTER, and GINSBURG, JJ., joined.
O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 35,
SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS,
J., joined, post, p. 39.
Kent L. Jones argued the cause for the United States.
With him on the brief were Solicitor General Days, Acting
Assistant Attorney General Paup, Deputy Solicitor General
Wallace, Gilbert S. Rothenberg, and Teresa E. McLaughlin.
Russell G. Allen argued the cause and filed a brief for
respondent. With him on the brief was Phillip R. Kaplan.*
JUSTICE BLACKMUN delivered the opinion of the Court.
In 1987, Congress amended a provision of the federal
estate tax statute by limiting the availability of a recently
added deduction for the proceeds of sales of stock to em-
ployee stock-ownership plans (ESOP's). Congress provided
that the amendment would apply retroactively, as if incor-
porated in the original deduction provision, which had been
adopted in October 1986. The question presented by this
case is whether the retroactive application of the amendment
violates the Due Process Clause of the Fifth Amendment.
*Briefs of amid curiae urging affirmance were filed for the Washington
Legal Foundation et al. by Joseph E. Schmitz, Charles A. Shanor, Darnel
J. Popeo, and Paul D. Kamenar; and for Anthony C. Morici, Jr., Executor
and Trustee of the estate of McNamee, by Charles C. Marson.
28 UNITED STATES v. CARLTON
Opinion of the Court
Congress effected major revisions of the Internal Revenue
Code in the Tax Reform Act of 1986, 100 Stat. 2085. One of
those revisions was the addition of a new estate tax provi-
sion applicable to any estate that filed a timely return after
the date of the Act, October 22, 1986. The new provision,
codified as 26 U. S. C. §2057 (1982 ed., Supp. IV),1 granted a
deduction for half the proceeds of "any sale of employer secu-
rities by the executor of an estate" to "an employee stock
ownership plan." § 2057(b).2 In order to qualify for the de-
duction, the sale of securities had to be made "before the
date on which the [estate tax] return . . . [was] required to
be filed (including any extensions)." §2057(c)(l).
Respondent Jerry W. Carlton, the executor of the will of
Willametta K. Day, deceased, sought to utilize the § 2057 de-
duction. Day died on September 29, 1985. Her estate tax
return was due December 29, 1986 (after Carlton had ob-
tained a 6-month filing extension). On December 10, 1986,
Carlton used estate funds to purchase 1.5 million shares of
MCI Communications Corporation for $11,206,000, at an av-
erage price of $7.47 per share. Two days later, Carlton sold
the MCI stock to the MCI ESOP for $10,575,000, at an aver-
age price of $7.05 per share. The total sale price thus was
$631,000 less than the purchase price. When Carlton filed
the estate tax return on December 29, 1986, he claimed a
deduction under §2057 of $5,287,000, for half the proceeds of
the sale of the stock to the MCI ESOP. The deduction re-
duced the estate tax by $2,501,161. The parties have stipu-
1 Section 2057 was repealed for estates of decedents who died after
December 19, 1989. See Omnibus Budget Reconciliation Act of 1989,
§7304(a), 103 Stat 2852.
2 Section 2057(e) defined "employer securities" by reference to §409(Z)
of the Code, which in turn defined the term generally as "common stock
issued by the employer (or by a corporation which is a member of the
same controlled group) which is readily tradable on an established securi-
ties market " 26 U. S. C. §409(Z)(1) (1982 ed., Supp. IV).
Cite as: 512 U. S. 26 (1994) 29
Opinion of the Court
lated that Carlton engaged in the MCI stock transactions
specifically to take advantage of the § 2057 deduction.
On January 5, 1987, the Internal Revenue Service (IRS)
announced that, "[p]ending the enactment of clarifying legis-
lation," it would treat the § 2057 deduction as available only
to estates of decedents who owned the securities in question
immediately before death. See IRS Notice 87-13, 1987-1
Cum. Bull. 432, 442. A bill to enact such an amendment to
§ 2057 was introduced in each Chamber of Congress on Feb-
ruary 26, 1987. See 133 Cong. Rec. 4145 and 4293 (1987).
On December 22, 1987, the amendment to §2057 was
enacted. As amended, the statute provided that, to qualify
for the estate tax deduction, the securities sold to an ESOP
must have been "directly owned" by the decedent "immedi-
ately before death." Omnibus Budget Reconciliation Act of
1987, § 10411(a), 101 Stat. 1330-432.3 The 1987 amendment
was made effective as if it had been contained in the statute
as originally enacted in October 1986. § 1041 l(b).
The IRS disallowed the deduction claimed by Carlton
under §2057 on the ground that the MCI stock had not been
owned by his decedent "immediately before death." Carl-
ton paid the asserted estate tax deficiency, plus interest, filed
a claim for refund, and instituted a refund action in the
United States District Court for the Central District of Cali-
fornia. He conceded that the estate did not qualify for the
deduction under the 1987 amendment to §2057. He argued,
however, that retroactive application of the 1987 amendment
to the estate's 1986 transactions violated the Due Process
Clause of the Fifth Amendment. The District Court re-
jected his argument and entered summary judgment in favor
of the United States.
A divided panel of the Court of Appeals for the Ninth Cir-
cuit reversed. 972 R 2d 1051 (1992). The majority consid-
8 The amendment also required that employer securities qualifying for
the deduction must, after the sale, be allocated to participants or held for
future allocation in accordance with certain rules.
30 UNITED STATES v. CARLTON
Opinion of the Court
ered two factors paramount in determining whether retroac-
tive application of a tax violates due process: whether the
taxpayer had actual or constructive notice that the tax stat-
ute would be retroactively amended, and whether the tax-
payer reasonably relied to his detriment on preamendment
law. The court concluded that both factors rendered retro-
active application of the amendment in this case unduly
harsh and oppressive and therefore unconstitutional. Judge
Norris dissented. In his view, the 1987 amendment was
within the wide latitude of congressional authority to leg-
islate retroactively in regulating economic activity. We
granted certiorari, 510 U. S. 810 (1993).
II
This Court repeatedly has upheld retroactive tax legis-
lation against a due process challenge. See, e. g., United
States v. Hemme, 476 U. S. 558 (1986); United States v. Da-
rusmont, 449 U. S. 292 (1981); Welch v. Henry, 305 U. S. 134
(1938); United States v. Hudson, 299 U. S. 498 (1937); Milli-
ken v. United States, 283 U. S. 15 (1931); Cooper v. United
States, 280 U. S. 409 (1930). Some of its decisions have
stated that the validity of a retroactive tax provision under
the Due Process Clause depends upon whether "retroactive
application is so harsh and oppressive as to transgress the
constitutional limitation." Welch v. Henry, 305 U. S., at 147,
quoted in United States v. Hemme, 476 U. S., at 568-569.
The "harsh and oppressive" formulation, however, "does not
differ from the prohibition against arbitrary and irrational
legislation" that applies generally to enactments in the
sphere of economic policy. Pension Benefit Guaranty Cor-
poration v. R. A. Gray & Co., 467 U. S. 717, 733 (1984). The
due process standard to be applied to tax statutes with retro-
active effect, therefore, is the same as that generally applica-
ble to retroactive economic legislation:
"Provided that the retroactive application of a statute is
supported by a legitimate legislative purpose furthered
Cite as: 512 U. S. 26 (1994) 31
Opinion of the Court
by rational means, judgments about the wisdom of such
legislation remain within the exclusive province of the
legislative and executive branches ....
"To be sure, . . . retroactive legislation does have to
meet a burden not faced by legislation that has only fu-
ture effects. . . . 'The retroactive aspects of legislation,
as well as the prospective aspects, must meet the test
of due process, and the justifications for the latter may
not suffice for the former' .... But that burden is met
simply by showing that the retroactive application of
the legislation is itself justified by a rational legislative
purpose/' Id., at 729-730, quoting Usery v. Turner
Elkhorn Mining Co., 428 U. S. 1, 16-17 (1976).
There is little doubt that the 1987 amendment to §2057
was adopted as a curative measure. As enacted in October
1986, § 2057 contained no requirement that the decedent have
owned the stock in question to qualify for the ESOP pro-
ceeds deduction. As a result, any estate could claim the de-
duction simply by buying stock in the market and immedi-
ately reselling it to an ESOP, thereby obtaining a potentially
dramatic reduction in (or even elimination of) the estate
tax obligation.
It seems clear that Congress did not contemplate such
broad applicability of the deduction when it originally
adopted §2057. That provision was intended to create an
"incentive for stockholders to sell their companies to their
employees who helped them build the company rather than
liquidate, sell to outsiders or have the corporation redeem
their shares on behalf of existing shareholders." Joint Com-
mittee on Taxation, Tax Reform Proposals: Tax Treatment
of Employee Stock Ownership Plans (ESOPs), 99th Cong., 2d
Sess., 37 (Joint Comm. Print 1985); see also 132 Cong. Rec.
14507 (1986) (statement of Sen. Long) (§2057 "allow[s] ... an
executor to reduce taxes on an estate by one-half by selling
the decedent's company to an ESOP"). When Congress ini-
tially enacted §2057, it estimated a revenue loss from the
32 UNITED STATES u CARLTON
Opinion of the Court
deduction of approximately $300 million over a 5-year period.
See 133 Cong. Rec. 4145 (1987) (statement of Rep. Rosten-
kowski); id., at 4293 (statement of Sen. Bentsen). It became
evident shortly after passage of the 1986 Act, however, that
the expected revenue loss under § 2057 could be as much as
$7 billion — over 20 times greater than anticipated — because
the deduction was not limited to situations in which the dece-
dent owned the securities immediately before death. Ibid.
In introducing the amendment in February 1987, Senator
Bentsen observed: "Congress did not intend for estates to be
able to claim the deduction by virtue of purchasing stock in
the market and simply reselling the stock to an ESOP . . .
and Congress certainly did not anticipate a $7 billion revenue
loss." Id., at 4294. Without the amendment, Senator Bent-
sen stated, "taxpayers could qualify for the deductions by
engaging in essentially sham transactions/' Ibid.
We conclude that the 1987 amendment's retroactive appli-
cation meets the requirements of due process. First, Con-
gress' purpose in enacting the amendment was neither ille-
gitimate nor arbitrary. Congress acted to correct what it
reasonably viewed as a mistake in the original 1986 provision
that would have created a significant and unanticipated reve-
nue loss. There is no plausible contention that Congress
acted with an improper motive, as by targeting estate repre-
sentatives such as Carlton after deliberately inducing them
to engage in ESOP transactions. Congress, of course, might
have chosen to make up the unanticipated revenue loss
through general prospective taxation, but that choice would
have burdened equally "innocent" taxpayers. Instead, it de-
cided to prevent the loss by denying the deduction to those
who had made purely tax-motivated stock transfers. We
cannot say that its decision was unreasonable.
Second, Congress acted promptly and established only a
modest period of retroactivity. This Court noted in United
States v. Darusmont, 449 U. S., at 296, that Congress "almost
without exception" has given general revenue statutes effec-
Cite as: 512 U. S. 26 (1994) 33
Opinion of the Court
tive dates prior to the dates of actual enactment. This "cus-
tomary congressional practice" generally has been "confined
to short and limited periods required by the practicalities of
producing national legislation/' Id., at 296-297. In Welch
v. Henry, 305 U. S. 134 (1938), the Court upheld a Wisconsin
income tax adopted in 1935 on dividends received in 1933.
The Court stated that the " 'recent transactions* " to which a
tax law may be retroactively applied "must be taken to in-
clude the receipt of income during the year of the legislative
session preceding that of its enactment." 7d, at 150. Here,
the actual retroactive effect of the 1987 amendment ex-
tended for a period only slightly greater than one year. More-
over, the amendment was proposed by the IRS in January
1987 and by Congress in February 1987, within a few months
of § 2057's original enactment.
Respondent Carlton argues that the 1987 amendment vio-
lates due process because he specifically and detrimentally
relied on the preamendment version of §2057 in engaging
in the MCI stock transactions in December 1986. Although
Carlton's reliance is uncontested — and the reading of the
original statute on which he relied appears to have been cor-
rect— his reliance alone is insufficient to establish a consti-
tutional violation. Tax legislation is not a promise, and a
taxpayer has no vested right in the Internal Revenue Code.
Justice Stone explained in Welch v. Henry, 305 U. S., at
146-147:
"Taxation is neither a penalty imposed on the taxpayer
nor a liability which he assumes by contract. It is but
a way of apportioning the cost of government among
those who in some measure are privileged to enjoy its
benefits and must bear its burdens. Since no citizen en-
joys immunity from that burden, its retroactive imposi-
tion does not necessarily infringe due process . . . ."
Moreover, the detrimental reliance principle is not limited to
retroactive legislation. An entirely prospective change in
34 UNITED STATES u CARLTON
Opinion of the Court
the law may disturb the relied-upon expectations of individu-
als, but such a change would not be deemed therefore to be
violative of due process.
Similarly, we do not consider respondent Carlton's lack of
notice regarding the 1987 amendment to be dispositive. In
Welch v. Henry, the Court upheld the retroactive imposition
of a tax despite the absence of advance notice of the legisla-
tion. And in Milliken v. United States, the Court rejected
a similar notice argument, declaring that a taxpayer "should
be regarded as taking his chances of any increase in the tax
burden which might result from carrying out the established
policy of taxation." 283 U. S., at 23.
In holding the 1987 amendment unconstitutional, the
Court of Appeals relied on this Court's decisions in Nichols
v. Coolidge, 274 U. S. 531 (1927), Blodgett v. Holden, 275 U. S.
142 (1927), and Untermyer v. Anderson, 276 U. S. 440 (1928).
Those cases were decided during an era characterized by
exacting review of economic legislation under an approach
that "has long since been discarded/' Ferguson v. Skrupa,
372 U. S. 726, 730 (1963). To the extent that their authority
survives, they do not control here. Blodgett and Unter-
myer, which involved the Nation's first gift tax, essentially
have been limited to situations involving "the creation of a
wholly new tax," and their "authority is of limited value in
assessing the constitutionality of subsequent amendments
that bring about certain changes in operation of the tax
laws." United States v. Hemme, 476 U. S., at 568. Nichols
involved a novel development in the estate tax which em-
braced a transfer that occurred 12 years earlier. The
amendment at issue here certainly is not properly character-
ized as a "wholly new tax," and its period of retroactive ef-
fect is limited. Nor do the above cases stand for the propo-
sition that retroactivity is permitted with respect to income
taxes, but prohibited with respect to gift and estate taxes.
In Hemme and Milliken, this Court upheld retroactive fea-
tures of gift and estate taxes.
Cite as: 512 U. S. 26 (1994) 35
O'CONNOR, J., concurring in judgment
III
In focusing exclusively on the taxpayer's notice and reli-
ance, the Court of Appeals held the congressional enactment
to an unduly strict standard. Because we conclude that
retroactive application of the 1987 amendment to § 2057 is
rationally related to a legitimate legislative purpose, we
conclude that the amendment as applied to Carlton's 1986
transactions is consistent with the Due Process Clause.
The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE O'CONNOR, concurring in the judgment.
The unamended 26 U. S. C, §2057, which allowed taxpay-
ers to reduce the taxable estate by buying securities and
reselling them to employee stock ownership plans (ESOP's),
made it possible to avoid estate taxes by structuring transac-
tions In a certain way. But the tax laws contain many such
provisions. See, e. g., 26 U. S. C. § 2055 (allowing deductions
from taxable estate for transfers to the government, chari-
ties, and religious organizations). And §2057 was only the
latest in a series of congressional efforts to promote ESOP's
by providing tax incentives. See, e. g.y 26 U. S. C. § 133 (par-
tial income tax exclusion for interest paid to banks on ESOP
loans); 26 U. S. C. § 1042 (allowing certain taxpayers to defer
capital gains taxes on sale of securities to ESOP's).
Thus, although respondent Carlton may have made a
"purely tax-motivated stock transfe[r]," ante, at 32, I do not
understand the Court to express any normative disapproval
of this course of action. As executor of Willametta Day's
estate, it was entirely appropriate for Carlton to seek to re-
duce the estate taxes. And like all taxpayers, Carlton was
entitled to structure the estate's affairs to comply with the
tax laws while minimizing tax liability. As Learned Hand
observed with characteristic acerbity:
36 UNITED STATES v. CARLTON
0*CONNOR, J., concurring in judgment
"[A] transaction, otherwise within an exception of the
tax law, does not lose its immunity, because it is actuated
by a desire to avoid, or, if one choose, to evade, taxation.
Any one may so arrange his affairs that his taxes shall
be as low as possible; he is not bound to choose that
pattern which will best pay the Treasury; there is not
even a patriotic duty to increase one's taxes. There-
fore, if what was done here, was what was intended by
[the statute], it is of no consequence that it was all an
elaborate scheme to get rid of [estate] taxes, as it cer-
tainly was." Helvering v. Gregory, 69 R 2d 809, 810
(CA2 1934) (citations omitted), aff 'd, 293 U. S. 465 (1935).
To say that Carlton did nothing wrong in claiming the deduc-
tion does not, of course, answer the question whether Con-
gress deprived him of due process by amending § 2057. As
we have noted, "the retroactive aspects of economic legisla-
tion, as well as the prospective aspects, must meet the test
of due process: a legitimate legislative purpose furthered by
rational means." General Motors Corp. v. Romein, 503
U. S. 181, 191 (1992) (internal quotation marks omitted).
The Court finds it relevant that, according to prominent
members of the tax-writing committees of each House, the
statute as originally enacted would have cost the Govern-
ment too much money and would have allowed taxpayers to
avoid tax by engaging in sham transactions. See ante, at
31-32. Thus, the Court reasons that the amendment to
§2057 served the legislative purpose of "correcting]" a "mis-
take" Congress made the first time. Ante, at 32. But this
mode of analysis proves too much. Every law touching on
an area in which Congress has previously legislated can be
said to serve the legislative purpose of fixing a perceived
problem with the prior state of affairs — there is no reason to
pass a new law, after all, if the legislators are satisfied with
the old one. Moreover, the subjective motivation of Mem-
bers of Congress in passing a statute — to the extent it can
Cite as: 512 U. S. 26 (1994) 37
O'CONNOR, J., concurring in judgment
even be known — is irrelevant in this context: It is sufficient
for due process analysis if there exists some legitimate pur-
pose underlying the retroactivity provision. C£ FCC v.
Beach Communications, Inc., 508 U. S. 307, 313-315 (1993).
Retroactive application of revenue measures is ration-
ally related to the legitimate governmental purpose of rais-
ing revenue. In enacting revenue measures, retroactivity
allows "the legislative body, in the revision of tax laws, to
distribute increased costs of government among its taxpay-
ers in the light of present need for revenue and with knowl-
edge of the sources and amounts of the various classes of
taxable income during the taxable period preceding revi-
sion/' Welch v. Henry, 305 U. S. 134, 149 (1938). For this
reason,
"[i]n enacting general revenue statutes, Congress almost
without exception has given each such statute an effec-
tive date prior to the date of actual enactment. . . . Usu-
ally the 'retroactive' feature has application only to that
portion of the current calendar year preceding the date
of enactment, but [some statutes have been] applicable
to an entire calendar year that had expired preceding
enactment. This 'retroactive' application apparently
has been confined to short and limited periods required
by the practicalities of producing national legislation.
We may safely say that it is a customary congressional
practice." United States v. Darusmont, 449 U. S. 292,
296-297 (1981) (per curiam).
But "the Court has never intimated that Congress pos-
sesses unlimited power to 'readjust rights and burdens . . .
and upset otherwise settled expectations.'" Connolly v.
Pension Benefit Guaranty Corporation, 475 U. S. 211, 229
(1986) (O'CONNOR, J., concurring) (brackets omitted), quoting
Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 16 (1976).
The governmental interest in revising the tax laws must at
some point give way to the taxpayer's interest in finality and
38 UNITED STATES v. CARLTON
O'CONNOR, J-, concurring in judgment
repose. For example, a "wholly new tax" cannot be imposed
retroactively, United States v. Hemme, 476 U. S. 558, 568
(1986), even though such a tax would surely serve to raise
money. Because the tax consequences of commercial trans-
actions are a relevant, and sometimes dispositive, consider-
ation in a taxpayer's decisions regarding the use of his capi-
tal, it is arbitrary to tax transactions that were not subject
to taxation at the time the taxpayer entered into them. See
Welch v. Henry, supra, at 147.
Although there is also an element of arbitrariness in retro-
actively changing the rate of tax to which the transaction is
subject, or the availability of a deduction for engaging in that
transaction, our cases have recognized that Congress must
be able to make such adjustments in an attempt to equalize
actual revenue and projected budgetary requirements. In
every case in which we have upheld a retroactive federal
tax statute against due process challenge, however, the law
applied retroactively for only a relatively short period prior
to enactment. See United States v. Hemme, supra, at 562
(1 month); United States v. Darusmont, supra, at 294-295
(10 months); United States v. Hudson, 299 U. S. 498, 501
(1937) (1 month). In Welch v. Henry, supra, the tax was
enacted in 1935 to reach transactions completed in 1933; but
we emphasized that the state legislature met only biannually
and it made the revision "at the first opportunity after the
tax year in which the income was received. " 305 U. S., at
151. A period of retroactivity longer than the year preced-
ing the legislative session in which the law was enacted
would raise, in my view, serious constitutional questions.
But in keeping with Congress* practice of limiting the retro-
active effect of revenue measures (a practice that may reflect
Congress' sensitivity to the due process problems that would
be raised by overreaching), the December 1987 amendment
to §2057 was made retroactive only to October 1986. Given
our precedents and the limited period of retroactivity, I con-
Cite as: 512 U. S. 26 (1994) 39
SCALIA, J., concurring in judgment
cur in the judgment of the Court that applying the amended
statute to respondent Carlton did not violate due process.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring in the judgment.
If I thought that "substantive due process" were a con-
stitutional right rather than an oxymoron, I would think it
violated by bait-and-switch taxation. Although there is
not much precision in the concept " 'harsh and oppressive/ "
which is what the Court has adopted as its test of substan-
tive due process unconstitutionally in the field of retroactive
tax legislation, see, e. g., United States v. Hemme, 476 U. S.
558, 568-569 (1986), quoting Welch v. Henry, 305 U. S. 134,
147 (1938), surely it would cover a retroactive amendment
that cost a taxpayer who relied on the original statute's clear
meaning over $600,000. Unlike the tax at issue in Hemme,
here the amendment "without notice, . . . gives a different
and more oppressive legal effect to conduct undertaken be-
fore enactment of the statute." 476 U. S., at 569.
The Court attempts to minimize the amendment's harsh-
ness by characterizing it as "a curative measure/' quoting
some post-legislation legislative history (another oxymoron)
to show that, despite the uncontested plain meaning of the
statute, Congress never meant it to apply to stock that was
not owned by the decedent at the time of death. See ante,
at 31-32. I am not sure that whether Congress has treated
a citizen oppressively should turn upon whether the oppres-
sion was, after all, only Congress' "curing" of its own mis-
take. Even if it should, however, what was done to respond-
ent here went beyond a "cure." The retroactivity not only
hit him with the tax that Congress "meant" to impose origi-
nally, but it caused his expenditures incurred in invited reli-
ance upon the earlier law to become worthless. That could
have been avoided, of course, by providing a tax credit for
such expenditures. Retroactively disallowing the tax bene-
40 UNITED STATES v. CARLTON
SCALIA, J., concurring in judgment
fit that the earlier law offered, without compensating those
who incurred expenses in accepting that offer, seems to me
harsh and oppressive by any normal measure.
The Court seeks to distinguish our precedents invalidating
retroactive taxes by pointing out that they involved the im-
position of new taxes rather than a change in tax rates. See
ante, at 34. But eliminating the specifically promised re-
ward for costly action after the action has been taken, and
refusing to reimburse the cost, is even more harsh and op-
pressive, it seems to me, than merely imposing a new tax on
past actions. The Court also attempts to soften the impact
of the amendment by noting that it involved only "a modest
period of retroactivity." Ante, at 32. But in the case of a
tax-incentive provision, as opposed to a tax on a continuous
activity (like the earning of income), the critical event is the
taxpayer's reliance on the incentive, and the key timing issue
is whether the change occurs after the reliance; that it occurs
immediately after rather than long after renders it no less
harsh.
The reasoning the Court applies to uphold the statute in
this case guarantees that all retroactive tax laws will hence-
forth be valid. To pass constitutional muster the retroac-
tive aspects of the statute need only be "rationally related
to a legitimate legislative purpose." Ante, at 35. Revenue
raising is certainly a legitimate legislative purpose, see U. S.
Const., Art. I, §8, cl. 1, and any law that retroactively adds
a tax, removes a deduction, or increases a rate rationally
furthers that goal. I welcome this recognition that the Due
Process Clause does not prevent retroactive taxes, since I
believe that the Due Process Clause guarantees no substan-
tive rights, but only (as it says) process, see TXO Production
Corp. v. Alliance Resources Corp., 509 U. S. 443, 470-471
(1993) (SCAUA, J., concurring in judgment).
I cannot avoid observing, however, two stark discrepancies
between today's due process reasoning and the due process
reasoning the Court applies to its identification of new so-
Cite as: 512 U. S. 26 (1994) 41
SCALIA, J., concurring in judgment
called fundamental rights, such as the right to structure fam-
ily living arrangements, see Moore v. East Cleveland, 431
U. S. 494 (1977) (plurality opinion), and the right to an abor-
tion, see Roe v. Wade, 410 U. S. 113 (1973). First and most
obviously, where respondent's claimed right to hold onto his
property is at issue, the Court upholds the tax amendment
because it rationally furthers a legitimate interest; whereas
when other claimed rights that the Court deems fundamental
are at issue, the Court strikes down laws that concededly
promote legitimate interests, id., at 150, 162. Secondly,
when it is pointed out that the Court's retroactive-tax ruling
today is inconsistent with earlier decisions, see, e. g., Nichols
v. Coolidge, 274 U. S. 531 (1927); Blodgett v. Holden, 275 U. S.
142 (1927); Untermyer v. Anderson, 276 U. S. 440 (1928), the
Court dismisses those cases as having been "decided during
an era characterized by exacting review of economic legisla-
tion under an approach that 'has long since been discarded/"
Ante, at 34, quoting Ferguson v. Skrupa, 372 U. S. 726, 730
(1963). But economic legislation was not the only legisla-
tion subjected to "exacting review" in those bad old days,
and one wonders what principled reason justifies "discard-
ing" that bad old approach only as to that category. For
the Court continues to rely upon "exacting review" cases of
the Nichols-Blodgett-Untermyer vintage for its due process
"fundamental rights" jurisprudence. See, e. g., Roe, supra,
at 152-153, 159 (citing Meyer v. Nebraska, 262 U. S. 390, 399
(1923), and Pierce v. Society of Sisters, 268 U. S. 510, 535
(1925)); see also Griswold v. Connecticut, 381 U. S. 479, 483
(1965) ("[W]e reaffirm the principle of the Pierce and the
Meyer cases").
The picking and choosing among various rights to be ac-
corded "substantive due process" protection is alone enough
to arouse suspicion; but the categorical and inexplicable ex-
clusion of so-called "economic rights" (even though the Due
Process Clause explicitly applies to "property") unquestion-
ably involves policymaking rather than neutral legal analy-
42 UNITED STATES u CARLTON
SCALIA, J., concurring in judgment
sis. I would follow the text of the Constitution, which sets
forth certain substantive rights that cannot be taken away,
and adds, beyond that, a right to due process when life,
liberty, or property is to be taken away.
OCTOBER TERM, 1993 43
Syllabus
CITY OF LADUE ET AL. v. GILLEO
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 92-1856. Argued February 23, 1994— Decided June 13, 1994
An ordinance of petitioner City of Ladue bans all residential signs but
those falling within 1 of 10 exemptions, for the principal purpose of
minimizing the visual clutter associated with such signs. Respondent
Gilleo filed this action, alleging that the ordinance violated her right to
free speech by prohibiting her from displaying a sign stating, "For Peace
in the Gulf," from her home. The District Court found the ordinance
unconstitutional, and the Court of Appeals affirmed, holding that the
ordinance was a "content based" regulation, and that Ladue's substan-
tial interests in enacting it were not sufficiently compelling to support
such a restriction.
Held: The ordinance violates a Ladue resident's right to free speech.
Pp. 48-59.
(a) While signs pose distinctive problems and thus are subject to mu-
nicipalities' police powers, measures regulating them inevitably affect
communication itself. Such a regulation may be challenged on the
ground that it restricts too little speech because its exemptions dis-
criminate on the basis of signs' messages, or on the ground that it pro-
hibits too much protected speech. For purposes of this case, the valid-
ity of Ladue's submission that its ordinance's various exemptions are
free of impermissible content or viewpoint discrimination is assumed.
Pp. 48-53.
(b) Although Ladue has a concededly valid interest in minimizing
visual clutter, it has almost completely foreclosed an important and dis-
tinct medium of expression to political, religious, or personal messages.
Prohibitions foreclosing entire media may be completely free of content
or viewpoint discrimination, but such measures can suppress too much
speech by eliminating a common means of speaking. Pp. 54-55.
(c) Ladue's attempt to justify the ordinance as a "time, place, or man-
ner" restriction fails because alternatives such as handbills and news-
paper advertisements are inadequate substitutes for the important
medium that Ladue has closed off. Displaying a sign from one's own
residence carries a message quite distinct from placing the same sign
someplace else, or conveying the same text or picture by other means,
for it provides information about the speaker's identity, an important
component of many attempts to persuade. Residential signs are also
44 CITY OF LADUE u GILLEO
Syllabus
an unusually cheap and convenient form of communication. Further-
more, the audience intended to be reached by a residential sign— neigh-
bors— could not be reached nearly as well by other means. Pp. 56-57.
(d) A special respect for individual liberty in the home has long been
part of this Nation's culture and law and has a special resonance when
the government seeks to constrain a person's ability to speak there.
The decision reached here does not leave Ladue powerless to address
the ills that may be associated with residential signs. In addition, resi-
dents' self-interest in maintaining their own property values and pre-
venting "visual clutter" in their yards and neighborhoods diminishes the
danger of an "unlimited" proliferation of signs. Pp. 58-59.
986 F. 2d 1180, affirmed.
STEVENS, J., delivered the opinion for a unanimous Court. O'CONNOR,
J., filed a concurring opinion, post, p. 59.
Jordan B. Cherrick argued the cause for petitioners.
With him on the briefs were Robert F. Schlafly and Jay
A. Summerville.
Gerald P. Greiman argued the cause for respondent.
With him on the brief were Martin M. Green, Mitchell A.
MargOj and Steven R. Shapiro.
Deputy Solicitor General Bender argued the cause for
the United States as amicm curiae urging affirmance.
With him on the brief were Solicitor General Days, Assist-
ant Attorney General Hunger, and Amy L. Wax*
*Briefs of amici curiae urging reversal were filed for the State of
Hawaii et al. by X Joseph Curran, Jr., Attorney General of Maryland, and
Jack Schwartz and Diane Krejsa, Assistant Attorneys General, Robert A
Marks, Attorney General of Hawaii, Pamela Carter, Attorney General of
Indiana, Jeffrey R. Howard, Attorney General of New Hampshire, Fred
DeVesa, Acting Attorney General of New Jersey, Ernest D. Preate, Jr.,
Attorney General of Pennsylvania, and Jeffrey L Amestoy, Attorney Gen-
eral of Vermont; and for the National Institute of Municipal Law Officers
et al. by Richard Ruda and Lee Fennell
Briefs of amici curiae urging affirmance were filed for the American
Advertising Federation et al. by Richard E. Wiley, Lawrence W. Seerest
HI, Howard H. Bell, John F. Kamp, David S. Versfelt, Kenneth M. Vittor,
and Slade Metcalf; for the Association of National Advertisers, Inc., by
Burt Neuborne and Gilbert H. Weil; for People for the American Way
Cite as: 512 U. S. 43 (1994) 45
Opinion of the Court
JUSTICE STEVENS delivered the opinion of the Court.
An ordinance of the City of Ladue prohibits homeowners
from displaying any signs on their property except "resi-
dence identification" signs, "for sale" signs, and signs warn-
ing of safety hazards. The ordinance permits commercial
establishments, churches, and nonprofit organizations to
erect certain signs that are not allowed at residences. The
question presented is whether the ordinance violates a
Ladue resident's right to free speech.1
Respondent Margaret P. Gilleo owns one of the 57 single-
family homes in the Willow Hill subdivision of Ladue.2 On
December 8, 1990, she placed on her front lawn a 24- by 36-
inch sign printe-d with the words, "Say No to War in the
Persian Gulf, Call Congress Now." After that sign disap-
peared, Gilleo put up another but it was knocked to the
ground. When Gilleo reported these incidents to the police,
they advised her that such signs were prohibited in Ladue.
The city council denied her petition for a variance.3 Gilleo
then filed this action under 42 U. S. C. § 1983 against the City,
the mayor, and members of the city council, alleging that
et al. by Timothy B. Dykt Elliot M. Mincberg, and Marc D. Stern; and for
the Washington Legal Foundation et al. by Daniel J. Popeo and Richard
A. Samp.
irThe First Amendment provides: "Congress shall make no law . . .
abridging the freedom of speech, or of the press . . . ." The Fourteenth
Amendment makes this limitation applicable to the States, see Gitlow
v. New York, 268 U. S. 652 (1925), and to their political subdivisions, see
Lovell v. City of Griffin, 303 U. S. 444 (1938).
2 Ladue is a suburb of St. Louis, Missouri. It has a population of almost
9,000, and an area of about 8.5 square miles, of which only 3% is zoned for
commercial or industrial use.
3 The ordinance then in effect gave the city council the authority to "per-
mit a variation in the strict application of the provisions and requirements
of this chapter . . . where the public interest will be best served by permit-
ting such variation." App. 72.
46 CITY OF LADUE u GILLEO
Opinion of the Court
Ladue's sign ordinance violated her First Amendment right
of free speech.
The District Court issued a preliminary injunction against
enforcement of the ordinance. 774 F. Supp. 1559 (ED Mo.
1991). Gilleo then placed an 8.5- by 11-inch sign in the sec-
ond story window of her home stating, "For Peace in the
Gulf." The Ladue City Council responded to the injunction
by repealing its ordinance and enacting a replacement.4
Like its predecessor, the new ordinance contains a general
prohibition of "signs" and defines that term broadly.5 The
ordinance prohibits all signs except those that fall within 1
of 10 exemptions. Thus, "residential identification signs" no
larger than one square foot are allowed, as are signs adver-
tising "that the property is for sale, lease or exchange" and
identifying the owner or agent. §35-10, App. to Pet. for
Cert. 45a. Also exempted are signs "for churches, religious
institutions, and schools," §35-5, id., at 41a, "[c]ommercial
signs in commercially zoned or industrial zoned districts,"
§35-4, ibid., and on-site signs advertising "gasoline filling
4 The new ordinance eliminates the provision allowing for variances and
contains a grandfather clause exempting signs already lawfully in place.
5 Section 36-2 of the ordinance declares that "No sign shall be erected
[or] maintained" in the City except in conformity with the ordinance;
§35-3 authorizes the City to remove nonconforming signs. App. to Pet.
for Cert. 40a. Section 35-1 defines "sign" as:
"A name, word, letter, writing, identification, description, or illustration
which is erected, placed upon, affixed to, painted or represented upon a
building or structure, or any part thereof, or in any manner upon a parcel
of land or lot, and which publicizes an object, product, place, activity, opin-
ion, person, institution, organization or place of business, or which is used
to advertise or promote the interests of any person. The word 'sign' shall
also include "banners', 'pennants', 'insignia', 'bulletin boards', 'ground
signs', 'billboard', 'poster billboards', 'illuminated signs', 'projecting signs',
'temporary signs', 'marquees', 'roof signs', 'yard signs', 'electric signs',
Vail signs', and Vindow signs', wherever placed out of doors in view of
the general public or wherever placed indoors as a window sign." Id.,
at39a.
Cite as: 512 IL S. 43 (1994) 47
Opinion of the Court
stations/'6 §35-6, id., at 42a. Unlike its predecessor, the
new ordinance contains a lengthy "Declaration of Findings,
Policies, Interests, and Purposes/' part of which recites
that the
"proliferation of an unlimited number of signs in private,
residential, commercial, industrial, and public areas of
the City of Ladue would create ugliness, visual blight
and clutter, tarnish the natural beauty of the landscape
as well as the residential and commercial architecture,
impair property values, substantially impinge upon the
privacy and special ambience of the community, and may
cause safety and traffic hazards to motorists, pedestri-
ans, and children." Id., at 36a.
Gilleo amended her complaint to challenge the new ordi-
nance, which explicitly prohibits window signs like hers.
The District Court held the ordinance unconstitutional, 774
F. Supp. 1559 (ED Mo. 1991), and the Court of Appeals af-
firmed, 986 F. 2d 1180 (CAS 1993). Relying on the plurality
opinion in Metromedia, Inc. v. San Diego, 453 U. S. 490
(1981), the Court of Appeals held the ordinance invalid as a
"content based" regulation because the City treated commer-
cial speech more favorably than noncommercial speech and
favored some kinds of noncommercial speech over others.
6 The full catalog of exceptions, each subject to special size limitations, is
as follows: "[Mjunicipal signs"; "[s]ubdivision and residence identification"
signs; "[r]oad signs and driveway signs for danger, direction, or identifica-
tion"; "[h]ealth inspection signs"; "[s]igns for churches, religious institu-
tions, and schools" (subject to regulations set forth in §35-5); "identifica-
tion signs" for other not-for-profit organizations; signs "identifying the
location of public transportation stops"; "[g]round signs advertising the
sale or rental of real property," subject to the conditions, set forth in
§35-10, that such signs may "not be attached to any tree, fence or utility
pole" and may contain only the fact of proposed sale or rental and the
seller or agent's name and address or telephone number; "[c]ommercial
signs in commercially zoned or industrial zoned districts," subject to re-
strictions set out elsewhere in the ordinance; and signs that "identif[y]
safety hazards." § 35-4, id., at 41a, 45a.
48 CITY OF LADUE v. GILLEO
Opinion of the Court
986 F. 2d, at 1182. Acknowledging that "Ladue's interests
in enacting its ordinance are substantial," the Court of Ap-
peals nevertheless concluded that those interests were "not
sufficiently 'compelling' to support a content-based restric-
tion." Id., at 1183-1184 (citing Simon & Schuster, Inc. v.
Members of N. Y State Crime Victims Bd., 502 U. S. 105,
118 (1991)).
We granted the City of Ladue's petition for certiorari, 510
U. S. 809 (1993), and now affirm.
II
While signs are a form of expression protected by the Free
Speech Clause, they pose distinctive problems that are sub-
ject to municipalities' police powers. Unlike oral speech,
signs take up space and may obstruct views, distract motor-
ists, displace alternative uses for land, and pose other prob-
lems that legitimately call for regulation. It is common
ground that governments may regulate the physical charac-
teristics of signs — -just as they can, within reasonable bounds
and absent censorial purpose, regulate audible expression in
its capacity as noise. See, e. g., Ward v. Rock Against Rac-
ism, 491 U.S. 781 (1989); Kovacs v. Cooper, 336 U.S. 77
(1949). However, because regulation of a medium inevitably
affects communication itself, it is not surprising that we have
had occasion to review the constitutionality of municipal or-
dinances prohibiting the display of certain outdoor signs.
In Linmark Associates, Inc. v. Willingboro, 431 U. S. 85
(1977), we addressed an ordinance that sought to maintain
stable, integrated neighborhoods by prohibiting homeowners
from placing "For Sale" or "Sold" signs on their property.
Although we recognized the importance of Willingboro's
objective, we held that the First Amendment prevented
the township from "achieving its goal by restricting the free
flow of truthful information." Id., at 95. In some respects
Linmark is the mirror image of this case. For instead of
prohibiting "For Sale" signs without banning any other
Cite as: 512 U. S. 43 (1994) 49
Opinion of the Court
signs, Ladue has exempted such signs from an otherwise vir-
tually complete ban. Moreover, whereas in Linmark we
noted that the ordinance was not concerned with the promo-
tion of esthetic values unrelated to the content of the prohib-
ited speech, id., at 93-94, here Ladue relies squarely on that
content-neutral justification for its ordinance.
In Metromedia, we reviewed an ordinance imposing sub-
stantial prohibitions on outdoor advertising displays within
the city of San Diego in the interest of traffic safety and
esthetics. The ordinance generally banned all except those
advertising "on-site" activities.7 The Court concluded that
the city's interest in traffic safety and its esthetic interest in
preventing "visual clutter" could justify a prohibition of off-
site commercial billboards even though similar on-site signs
were allowed. 453 U. S., at 511-512.8 Nevertheless, the
Court's judgment in Metromedia, supported by two different
lines of reasoning, invalidated the San Diego ordinance in its
entirety. According to Justice White's plurality opinion, the
ordinance impermissibly discriminated on the basis of con-
tent by permitting on-site commercial speech while broadly
prohibiting noncommercial messages. Id., at 514-515. On
7 The San Diego ordinance defined "on-site signs" as "those 'designating
the name of the owner or occupant of the premises upon which such signs
are placed, or identifying such premises; or signs advertising goods manu-
factured or produced or services rendered on the premises upon which
such signs are placed.' " Metromedia, Inc. v. San Diego, 453 U. S., at 494.
The plurality read the "on-site" exemption of the San Diego ordinance as
inapplicable to noncommercial messages. See id., at 513. Cf id., at 535-
536 (Brennan, J., concurring in judgment). The ordinance also exempted
12 categories of displays, including religious signs; for sale signs; signs
on public and commercial vehicles; and " '[temporary political campaign
signs/" Id., at 495, n. 3.
8 Five Members of the Court joined Part IV of Justice White's opinion,
which approved of the city's decision to prohibit off-site commercial bill-
boards while permitting on-site billboards. None of the three dissenters
disagreed with Part IV. See id., at 541 (STEVENS, J,, dissenting in part)
(joining Part IV); id., at 564-565 (Burger, C. J., dissenting); id., at 570
(REHNQUIST, J., dissenting).
50 CITY OF LADUE u GILLEO
Opinion of the Court
the other hand, Justice Brennan, joined by JUSTICE BLACK-
MUN, concluded that "the practical effect of the San Diego
ordinance [was] to eliminate the billboard as an effective me-
dium of communication" for noncommercial messages, and
that the city had failed to make the strong showing needed
to justify such "content-neutral prohibitions of particular
media of communication/' Id., at 525-527. The three dis-
senters also viewed San Diego's ordinance as tantamount to
a blanket prohibition of billboards, but would have upheld it
because they did not perceive "even a hint of bias or censor-
ship in the city's actions" nor "any reason to believe that the
overall communications market in San Diego is inadequate."
Id., at 552-553 (STEVENS, J., dissenting in part). See also
id., Sit 563, 566 (Burger, C. J., dissenting); id., at 569-570
(REHNQUIST, J., dissenting).
In Members of City Council of Los Angeles v. Taxpayers
for Vincent, 466 U. S. 789 (1984), we upheld a Los Angeles
ordinance that prohibited the posting of signs on public prop-
erty. Noting the conclusion shared by seven Justices in
Metromedia that San Diego's "interest in avoiding visual
clutter" was sufficient to justify a prohibition of commercial
billboards, 466 U. S., at 806-807, in Vincent we upheld the
Los Angeles ordinance, which was justified on the same
grounds. We rejected the argument that the validity of the
city's esthetic interest had been compromised by failing
to extend the ban to private property, reasoning that the
"private citizen's interest in controlling the use of his own
property justifies the disparate treatment." Id., at 811.
We also rejected as "misplaced" respondents' reliance on
public forum principles, for they had "fail[ed] to demonstrate
the existence of a traditional right of access respecting such
items as utility poles . . . comparable to that recognized for
public streets and parks." Id., at 814.
These decisions identify two analytically distinct grounds
for challenging the constitutionality of a municipal ordinance
regulating the display of signs. One is that the measure in
Cite as: 512 U. S. 43 (1994) 51
Opinion of the Court
effect restricts too little speech because its exemptions dis-
criminate on the basis of the signs' messages. See Metro-
media, 453 U. S., at 512-517 (opinion of White, J.). Alterna-
tively, such provisions are subject to attack on the ground
that they simply prohibit too much protected speech. See
id., at 525-534 (Brennan, J., concurring in judgment). The
City of Ladue contends, first, that the Court of Appeals' reli-
ance on the former rationale was misplaced because the
City's regulatory purposes are content neutral, and, second,
that those purposes justify the comprehensiveness of the
sign prohibition. A comment on the former contention will
help explain why we ultimately base our decision on a rejec-
tion of the latter.
Ill
While surprising at first glance, the notion that a regula-
tion of speech may be impermissibly under inclusive is firmly
grounded in basic First Amendment principles.9 Thus, an
exemption from an otherwise permissible regulation of
speech may represent a governmental "attempt to give one
side of a debatable public question an advantage in express-
ing its views to the people." First Nat. Bank of Boston
v. Bellotti, 435 U.S. 765, 785-786 (1978). Alternatively,
through the combined operation of a general speech restric-
tion and its exemptions, the government might seek to select
the "permissible subjects for public debate" and thereby to
"control . . . the search for political truth." Consolidated
Edison Co. ofN. Y. v. Public Serv. Comm'n ofN. Y, 447 U. S.
530, 538 (1980).10
9 Like other classifications, regulatory distinctions among different kinds
of speech may fall afoul of the Equal Protection Clause. See, e. g., Carey
v. Brown, 447 U. S. 455, 459-471 (1980) (ordinance that forbade certain
kinds of picketing but exempted labor picketing violated Clause); Police
Dept of Chicago v. Mosley, 408 U. S. 92, 98-102 (1972) (same).
10 Of course, not every law that turns on the content of speech is in-
valid. See generally Stone, Restrictions of Speech Because of its Con-
tent: The Peculiar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev.
52 CITY OF LADUE u GILLEO
Opinion of the Court
The City argues that its sign ordinance implicates neither
of these concerns, and that the Court of Appeals therefore
erred in demanding a "compelling" justification for the ex-
emptions. The mix of prohibitions and exemptions in the
ordinance, Ladue maintains, reflects legitimate differences
among the side effects of various kinds of signs. These dif-
ferences are only adventitiously connected with content, and
supply a sufficient justification, unrelated to the City's ap-
proval or disapproval of specific messages, for carving out
the specified categories from the general ban. See Brief for
Petitioners 18-23. Thus, according to the Declaration of
Findings, Policies, Interests, and Purposes supporting the
ordinance, the permitted signs, unlike the prohibited signs,
are unlikely to contribute to the dangers of "unlimited pro-
liferation" associated with categories of signs that are not
inherently limited in number. App. to Pet. for Cert. 37a.
Because only a few residents will need to display "for sale"
or "for rent" signs at any given time, permitting one such
sign per marketed house does not threaten visual clutter.
Ibid. Because the City has only a few businesses, churches,
and schools, the same rationale explains the exemption for
on-site commercial and organizational signs. Ibid. More-
over, some of the exempted categories (e. g., danger signs)
respond to unique public needs to permit certain kinds of
speech. Ibid. Even if we assume the validity of these ar-
guments, the exemptions in Ladue's ordinance nevertheless
shed light on the separate question whether the ordinance
prohibits too much speech.
Exemptions from an otherwise legitimate regulation of a
medium of speech may be noteworthy for a reason quite
apart from the risks of viewpoint and content discrimination:
They may diminish the credibility of the government's ra-
tionale for restricting speech in the first place. See, e. g.,
79 (1978). See also Consolidated Edison Co. of N. Y. v. Public Serv.
Comm'n of N. Y, 447 U. &, at 545, and n. 2 (STEVENS, J., concurring in
judgment).
Cite as: 512 U. S. 43 (1994) 53
Opinion of the Court
Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 424-
426 (1993). In this case, at the very least, the exemptions
from Ladue's ordinance demonstrate that Ladue has con-
cluded that the interest in allowing certain messages to be
conveyed by means of residential signs outweighs the City's
esthetic interest in eliminating outdoor signs. Ladue has
not imposed a flat ban on signs because it has determined
that at least some of them are too vital to be banned.
Under the Court of Appeals' content discrimination ration-
ale, the City might theoretically remove the defects in its
ordinance by simply repealing all of the exemptions. If,
however, the ordinance is also vulnerable because it prohib-
its too much speech, that solution would not save it. More-
over, if the prohibitions in Ladue's ordinance are impermissi-
ble, resting our decision on its exemptions would afford scant
relief for respondent Gilleo. She is primarily concerned not
with the scope of the exemptions available in other locations,
such as commercial areas and on church property; she as-
serts a constitutional right to display an antiwar sign at her
own home. Therefore, we first ask whether Ladue may
properly prohibit Gilleo from displaying her sign, and then,
only if necessary, consider the separate question whether it
was improper for the City simultaneously to permit certain
other signs. In examining the propriety of Ladue's near-
total prohibition of residential signs, we will assume, argu-
endo, the validity of the City's submission that the various
exemptions are free of impermissible content or viewpoint
discrimination.11
11 Because we set to one side the content discrimination question, we
need not address the City's argument that the ordinance, although speak-
ing in subject-matter terms, merely targets the ''undesirable secondary
effects" associated with certain kinds of signs. See Renton v. Playtime
Theatres, Inc., 475 U. S. 41, 49 (1986). The inquiry we undertake below
into the adequacy of alternative channels of communication would also
apply to a provision justified on those grounds. See id., at 50.
54 CITY OF LADUE u GILLEO
Opinion of the Court
IV
In Linmark we held that the city's interest in maintaining
a stable, racially integrated neighborhood was not sufficient
to support a prohibition of residential "For Sale" signs. We
recognized that even such a narrow sign prohibition would
have a deleterious effect on residents* ability to convey im-
portant information because alternatives were "far from
satisfactory/' 431 II S., at 93, Ladue's sign ordinance is
supported principally by the City's interest in minimizing
the visual clutter associated with signs, an interest that is
concededly valid but certainly no more compelling than the
interests at stake in Linmark. Moreover, whereas the ordi-
nance in Linmark applied only to a form of commercial
speech, Ladue's ordinance covers even such absolutely piv-
otal speech as a sign protesting an imminent governmental
decision to go to war.
The impact on free communication of Ladue's broad sign
prohibition, moreover, is manifestly greater than in Lin-
mark. Gilleo and other residents of Ladue are forbidden to
display virtually any "sign" on their property. The ordi-
nance defines that term sweepingly. A prohibition is not
always invalid merely because it applies to a sizeable cate-
gory of speech; the sign ban we upheld in Vincent, for exam-
ple, was quite broad. But in Vincent we specifically noted
that the category of speech in question — signs placed on pub-
lic property — was not a "uniquely valuable or important
mode of communication," and that there was no evidence
that "appellees' ability to communicate effectively is threat-
ened by ever-increasing restrictions on expression." 466
U. S., at 812.
Here, in contrast, Ladue has almost completely foreclosed
a venerable means of communication that is both unique and
important. It has totally foreclosed that medium to politi-
cal, religious, or personal messages. Signs that react to a
local happening or express a view on a controversial issue
both reflect and animate change in the life of a community.
Cite as: 512 U. S. 43 (1994) 55
Opinion of the Court
Often placed on lawns or in windows, residential signs play
an important part in political campaigns, during which they
are displayed to signal the resident's support for particular
candidates, parties, or causes.12 They may not afford the
same opportunities for conveying complex ideas as do other
media, but residential signs have long been an important and
distinct medium of expression.
Our prior decisions have voiced particular concern with
laws that foreclose an entire medium of expression. Thus,
we have held invalid ordinances that completely banned the
distribution of pamphlets within the municipality, Lovell v.
City of Griffin, 303 U. S. 444, 451-452 (1938); handbills on
the public streets, Jamison v. Texas, 318 U. S. 413, 416 (1943);
the door-to-door distribution of literature, Martin v. City of
Struthers, 319 U. S. 141, 145-149 (1943); Schneider v. State
(Town of Irvington), 308 U. S. 147, 164-165 (1939), and live
entertainment, Schad v. Mount Ephraim, 452 U. S. 61, 75-76
(1981). See also Frisby v. Schultz, 487 U. S. 474, 486 (1988)
(picketing focused upon individual residence is "fundamen-
tally different from more generally directed means of com-
munication that may not be completely banned in residential
areas")- Although prohibitions foreclosing entire media
may be completely free of content or viewpoint discrimina-
tion, the danger they pose to the freedom of speech is readily
apparent — by eliminating a common means of speaking, such
measures can suppress too much speech.13
12 "[S]mall [political campaign] posters have maximum effect when they
go up in the windows of homes, for this demonstrates that citizens of the
district are supporting your candidate — an impact that money can't buy."
D. Simpson, Winning Elections: A Handbook in Participatory Politics 87
(rev. ed. 1981).
18 See Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 57-58
(1987):
"[T]he Court long has recognized that by limiting the availability of partic-
ular means of communication, content-neutral restrictions can significantly
impair the ability of individuals to communicate their views to others. . . .
To ensure 'the widest possible dissemination of information[,]' [Associated
66 CITY OF LADUE u GILLEO
Opinion of the Court
Ladue contends, however, that its ordinance is a mere reg-
ulation of the "time, place, or manner" of speech because
residents remain free to convey their desired messages by
other means, such as hand-held signs, "letters, handbills,
flyers, telephone calls, newspaper advertisements, bumper
stickers, speeches, and neighborhood or community meet-
ings." Brief for Petitioners 41. However, even regulations
that do not foreclose an entire medium of expression, but
merely shift the time, place, or manner of its use, must
"leave open ample alternative channels for communication."
Clark v. Community for Creative Non-Violence, 468 U. S.
288, 293 (1984). In this case, we are not persuaded that ade-
quate substitutes exist for the important medium of speech
that Ladue has closed off.
Displaying a sign from one's own residence often carries a
message quite distinct from placing the same sign someplace
else, or conveying the same text or picture by other means.
Precisely because of their location, such signs provide infor-
mation about the identity of the "speaker." As an early and
eminent student of rhetoric observed, the identity of the
speaker is an important component of many attempts to per-
suade.14 A sign advocating "Peace in the Gulf" in the front
lawn of a retired general or decorated war veteran may pro-
voke a different reaction than the same sign in a 10-year-
old child's bedroom window or the same message on a
bumper sticker of a passing automobile. An espousal of
socialism may carry different implications when displayed
Press v. United States, 326 U. S. 1, 20 (1945),] and the 'unfettered inter-
change of ideas/ [Roth v. United States, 354 U. S. 476, 484 (1957),] the
first amendment prohibits not only content-based restrictions that censor
particular points of view, but also content-neutral restrictions that unduly
constrict the opportunities for free expression."
14 See Aristotle 2, Rhetoric, Book 1, ch. 2, in 8 Great Books of the West-
ern World, Encyclopedia Brittanica 595 (M. Adler ed., 2d ed. 1990) ("We
believe good men more fully and more readily than others: this is true
generally whatever the question is, and absolutely true where exact cer-
tainty is impossible and opinions are divided").
Cite as: 512 II S. 43 (1994) 57
Opinion of the Court
on the grounds of a stately mansion than when pasted on a
factory wall or an ambulatory sandwich board.
Residential signs are an unusually cheap and convenient
form of communication. Especially for persons of modest
means or limited mobility, a yard or window sign may have
no practical substitute. Cf. Vincent, 466 U. S., at 812-813,
n. 30; Anderson v. Celebrezze, 460 U. S. 780, 793-794 (1983);
Martin v. City of Struthers, 319 U. S., at 146; Milk Wagon
Drivers v. Meadowmoor Dairies, Inc., 312 U. S. 287, 293
(1941). Even for the affluent, the added costs in money or
time of taking out a newspaper advertisement, handing out
leaflets on the street, or standing in front of one's house with
a hand-held sign may make the difference between partici-
pating and not participating in some public debate.15 Fur-
thermore, a person who puts up a sign at her residence
often intends to reach neighbors, an audience that could not
be reached nearly as well by other means.16
15 The precise location of many other kinds of signs (aside from "on-site"
signs) is of lesser communicative importance. For example, assuming the
audience is similar, a commercial advertiser or campaign publicist is likely
to be relatively indifferent between one sign site and another. The elimi-
nation of a cheap and handy medium of expression is especially apt to
deter individuals from communicating their views to the public, for unlike
businesses (and even political organizations) individuals generally realize
few tangible benefits from such communication. Cf Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748,
772, n. 24 (1976) ("Since advertising is the sine qua non of commercial
profits, there is little likelihood of its being chilled by proper regulation
and forgone entirely")*
16 Counsel for Ladue has also cited flags as a viable alternative to signs.
Counsel observed that the ordinance does not restrict flags of any stripe,
including flags bearing written messages. See Tr. of Oral Arg. 16, 21
(noting that rectangular flags, unlike ''pennants" and "banners/* are not
prohibited by the ordinance). Even assuming that flags are nearly as af-
fordable and legible as signs, we do not think the mere possibility that
another medium could be used in an unconventional manner to carry the
same messages alters the fact that Ladue has banned a distinct and tradi-
tionally important medium of expression. See, e. g., Schneider v. State
(Town oflrvmgton), 308 U. S. 147, 163 (1939).
68 CITY OF LADUE u GILLEO
Opinion of the Court
A special respect for individual liberty in the home has
long been part of our culture and our law, see, e. g.y Payton
v. New York, 445 U. S. 573, 596-597, and nn. 44-45 (1980);
that principle has special resonance when the government
seeks to constrain a person's ability to speak there. See
Spence v. Washington, 418 U S. 405, 406, 409, 411 (1974) (per
curiam). Most Americans would be understandably dis-
mayed, given that tradition, to learn that it was illegal to
display from their window an 8- by 11-inch sign expressing
their political views. Whereas the government's need to
mediate among various competing uses, including expressive
ones, for public streets and facilities is constant and unavoid-
able, see Cox v. New Hampshire, 312 U. S. 569, 574, 576
(1941); see also Widmar v. Vincent, 454 U. S. 263, 278 (1981)
(STEVENS, J., concurring in judgment), its need to regulate
temperate speech from the home is surely much less press-
ing, see Spence, 418 U. S., at 409.
Our decision that Ladue's ban on almost all residential
signs violates the First Amendment by no means leaves the
City powerless to address the ills that may be associated
with residential signs.17 It bears mentioning that individual
residents themselves have strong incentives to keep their
own property values up and to prevent "visual clutter" in
their own yards and neighborhoods — incentives markedly
different from those of persons who erect signs on others'
land, in others' neighborhoods, or on public property. Resi-
dents' self-interest diminishes the danger of the "unlimited"
proliferation of residential signs that concerns the City of
Ladue. We are confident that more temperate measures
could in large part satisfy Ladue's stated regulatory needs
17 Nor do we hold that every kind of sign must be permitted in residen-
tial areas. Different considerations might well apply, for example, in the
case of signs (whether political or otherwise) displayed by residents for a
fee, or in the case of off-site commercial advertisements on residential
property. We also are not confronted here with mere regulations short
of a ban.
Cite as: 512 tL S. 43 (1994) 59
O'CONNOR, J., concurring
without harm to the First Amendment rights of its citizens.
As currently framed, however, the ordinance abridges those
rights.
Accordingly, the judgment of the Court of Appeals is
Affirmed.
JUSTICE O'CONNOR, concurring.
It is unusual for us, when faced with a regulation that on
its face draws content distinctions, to "assume, arguendo, the
validity of the City's submission that the various exemptions
are free of impermissible content or viewpoint discrim-
ination." Ante, at 53. With rare exceptions, content dis-
crimination in regulations of the speech of private citizens
on private property or in a traditional public forum is pre-
sumptively impermissible, and this presumption is a very
strong one. Simon & Schuster, Inc. v. Members of K Y.
State Crime Victims Bd., 502 U. S. 105, 115-116 (1991). The
normal inquiry that our doctrine dictates is, first, to deter-
mine whether a regulation is content based or content neu-
tral, and then, based on the answer to that question, to apply
the proper level of scrutiny. See, e. g., Burson v. Freeman,
504 U.S. 191, 197-198 (1992) (plurality opinion); Forsyth
County v. Nationalist Movement, 505 U. S. 123, 133-135
(1992); Simon & Schuster, supra, at 115-116; Boos v. Barry,
485 U. S. 312, 318-321 (1988) (plurality opinion); Arkansas
Writers9 Project, Inc. v. Ragland, 481 U. S. 221, 229-231
(1987); Carey v. Brown, 447 U. S. 455, 461-463 (1980); Police
Dept of Chicago v. Mosley, 408 U. S. 92, 95, 98-99 (1972).
Over the years, some cogent criticisms have been leveled
at our approach. See, e. g., R. A. V. v. St. Paul, 505 U. S.
377, 420-422 (1992) (STEVENS, J., concurring in judgment);
Consolidated Edison Co. ofN Y. v. Public Serv. Comm'n of
K Y., 447 U, S. 530, 544-548 (1980) (STEVENS, J., concurring
in judgment); Farber, Content Regulation and the First
Amendment: A Revisionist View, 68 Geo. L. J. 727 (1980);
60 CITY OF LADUE v GILLEO
O'CONNOR, J.t concurring
Stephan, The First Amendment and Content Discrimination,
68 Va. L. Rev. 203 (1982). And it is quite true that regula-
tions are occasionally struck down because of their content-
based nature, even though common sense may suggest that
they are entirely reasonable. The content distinctions pres-
ent in this ordinance may, to some, be a good example of this.
But though our rule has flaws, it has substantial merit as
well. It is a rule, in an area where fairly precise rules are
better than more discretionary and more subjective balanc-
ing tests. See Hustler Magazine, Inc. v. Falwell, 485 II S.
46, 52-53 (1988). On a theoretical level, it reflects important
insights into the meaning of the free speech principle — for
instance, that content-based speech restrictions are espe-
cially likely to be improper attempts to value some forms of
speech over others, or are particularly susceptible to being
used by the government to distort public debate. See, e. g.,
ante, at 51-53; Mosley, supra, at 95; Stone, Content Regula-
tion and the First Amendment, 25 Wm. & Mary L. Rev. 189
(1983). On a practical level, it has in application generally
led to seemingly sensible results. And, perhaps most impor-
tantly, no better alternative has yet come to light.
I would have preferred to apply our normal analytical
structure in this case, which may well have required us to
examine this law with the scrutiny appropriate to content-
based regulations. Perhaps this would have forced us to
confront some of the difficulties with the existing doctrine;
perhaps it would have shown weaknesses in the rule, and led
us to modify it to take into account the special factors this
case presents. But such reexamination is part of the proc-
ess by which our rules evolve and improve.
Nonetheless, I join the Court's opinion, because I agree
with its conclusion in Part IV that even if the restriction
were content neutral, it would still be invalid, and because I
do not think Part III casts any doubt on the propriety of our
normal content discrimination inquiry.
OCTOBER TERM, 1993 61
Syllabus
DEPARTMENT OF TAXATION AND FINANCE OF
NEW YORK ET AL. v. MILHELM ATTEA
& BROS., INC, ET AL.
CERTIORARI TO THE COURT OF APPEALS OP NEW YORK
No. 93-377. Argued March 23, 1994— Decided June 13, 1994
Enrolled tribal members purchasing cigarettes on Indian reservations are
exempt from a New York cigarette tax, but non-Indians making such
purchases are not. Licensed agents precollect the tax by purchasing
stamps and affixing them to cigarette packs in advance of their first sale.
Determining that a large volume of unstamped cigarettes was being
purchased by non-Indians on reservations, petitioner tax department
enacted regulations imposing recordkeeping requirements and quantity
limitations on cigarette wholesalers selling untaxed cigarettes to reser-
vation Indians. As relevant here, the regulations set quotas on the
quantity of untaxed cigarettes that wholesalers may sell to tribes and
tribal retailers, and petitioner tax department must approve each such
sale. Wholesalers must also ensure that a buyer holds a valid state tax
exemption certificate, and must keep records of their tax-exempt sales,
make monthly reports to petitioners, and, as licensed agents, precollect
taxes on nonexempt sales. Respondent wholesalers are licensed by the
Bureau of Indian Affairs to sell cigarettes to reservation Indians. They
filed separate suits in state court alleging that the regulations were
pre-empted by the federal Indian Trader Statutes. The trial court is-
sued an injunction. Ultimately, the Appellate Division upheld the reg-
ulations, but the Court of Appeals reversed, distinguishing this Court's
decisions upholding taxes imposed on non-Indian purchasers of ciga-
rettes, see Moe v. Confederated Salish and Kootenai Tribes ofFlathead
Reservation, 425 U. S. 463; Washington v. Confederated Tribes of Col-
mile Reservation, 447 U. S. 134, on the ground that they involved regu-
lating sales to non-Indian consumers whereas New York's regulations
applied to sales by non-Indian wholesalers to reservation Indians. The
court concluded that the Indian Trader Statutes, as construed in Warren
Trading Post Co. v. Arizona Tax Comm'n, 380 U. S. 685, deprived the
States of all power to impose regulatory burdens on licensed Indian
traders, and, alternatively, that if States could impose minimal burdens
on the traders, New York's regulations were invalid because the bur-
dens were significant.
Held: New York's regulations do not, on their face, violate the Indian
Trader Statutes. Pp. 69-78.
62 DEPARTMENT OF TAXATION AND FINANCE OF N. Y. v.
MILHELM ATTEA & BROS.
Syllabus
(a) Because respondents have made essentially a facial challenge, this
case is confined to those alleged defects that inhere in the regulations
as written, and the Court need not assess for all purposes each feature
of the tax scheme that might affect tribal self-government or federal
authority over Indian affairs. Pp. 69-70.
(b) Indian traders are not wholly immune from state regulation that
is reasonably necessary to the assessment or collection of lawful state
taxes. Although broad language in Warren Trading Post suggests such
immunity, that proposition has been undermined by subsequent deci-
sions in Moe (upholding a state law requiring Indian retailers on tribal
land to collect a state cigarette tax imposed on sales to non-Indians),
Colville (upholding in relevant part a state law requiring tribal retailers
on reservations to collect cigarette taxes on sales to nonmembers and
to keep extensive records), and Oklahoma Tax Comm'n v. Citizen Band
ofPotawatomi Tribe of Okla., 498 II S. 505. These cases have made
dear that the States have a valid interest in ensuring compliance with
lawful taxes that might easily be evaded through purchases of tax-
exempt cigarettes on reservations; that interest outweighs tribes' mod-
est interest in offering a tax exemption to customers who would ordi-
narily shop elsewhere. Thus, there is more room for state regulation
in this area. In particular, these cases have decided that States may
impose on reservation retailers minimal burdens reasonably tailored to
the collection of valid taxes from non-Indians. It would be anomalous
to hold that a State could impose tax collection and bookkeeping bur-
dens on reservation retailers who are enrolled tribal members but not
on wholesalers, who often are not. Pp. 70-75.
(c) New York's scheme does not impose excessive burdens on Indian
traders. Respondents' objections to the regulations setting quotas and
requiring that petitioners preapprove deliveries provide no basis for a
facial challenge, although the possibility of inadequate quotas may pro-
vide a basis for a future challenge to the regulations' application. The
requirements that wholesalers sell untaxed cigarettes only to persons
with valid exemption certificates and keep detailed records are no more
demanding than comparable measures approved in Colville. More-
over, the precollection obligation placed on wholesalers is the same as
the obligation that, under Moe and Colville, may be imposed on reserva-
tion retailers. The United States' arguments supporting its position
that the scheme improperly burdens Indian trading are also rejected.
Pp. 75-78.
81 N. Y. 2d 417, 615 N. E. 2d 994, reversed.
STEVENS, J., delivered the opinion for a unanimous Court.
Cite as: 512 U. S. 61 (1994) 63
Counsel
G. Oliver Koppell, Attorney General of New York, argued
the cause for petitioners. With him on the briefs were Rob-
ert Abrams, former Attorney General, Jerry Boone, Solicitor
General, Peter H. Schiff, Deputy Solicitor General, and Lew
A. Millenbachy Assistant Attorney General.
Joseph E. Zdarsky argued the cause for respondents.
With him on the brief were Hans Walker, Jr., Michael Roy,
Guy J. Agostinelliy and Gerald T. Walsh.
Beth S. Brinkmann argued the cause for the United
States as amicus curiae urging affirmance. With her on the
brief were Solicitor General Days, Acting Assistant Attor-
ney General Schiff er, Deputy Solicitor General Kneedler,
Edward /. Shawaker, and Vicki L. Plant*
*Briefs of amid curiae urging reversal were filed for the State of Con-
necticut by Richard Blumenthal, Attorney General, and David H. Wrinn,
Assistant Attorney General; for the State of Washington et al. by Chris-
tine O. Gregoire, Attorney General of Washington, and by the Attorneys
General for their respective States as follows: Grant Woods of Arizona,
Daniel E. Lwngren of California, Robert A Butterworth of Florida, Bon-
nie J. Campbell of Iowa, Joseph P. Mazurek of Montana, Frankie Sue Del
Papa of Nevada, Heidi Heitkamp of North Dakota, Sv^an B. Loving of
Oklahoma, Theodore R. Kulongoski of Oregon, Jeffrey B. Pine of Rhode
Island, Mark Barnett of South Dakota, Jan Graham of Utah, and James
E. Doyle of Wisconsin; for the Empire State Petroleum Association, Inc.,
et al. by Emilio A. F. Petroccione and Usher Fogel; for the National Asso-
ciation of Convenience Stores et al. by Mark L. Austrian; for the National
Governors* Association et al. by Richard Ruda; and for the New York
State Association of Tobacco and Candy Distributors, Inc., by Thomas
G. Jackson.
Briefs of amici curiae urging affirmance were filed for the Cheyenne-
Arapaho Tribes of Oklahoma et al. by Melody L. McCoy, Yvonne Teresa
Knight, Kim Jerome Gottschalk, Bertram E. Hirsch, Patrick L. Smith,
Michael E. Taylor, Jeanne S. Whiteing, and Robert S. Thompson III; for
the Muscogee (Creek) Nation by Michael Minnis, F. Browning Pipestem,
and Leah Haryo Ware; for the Oneida Indian Nation of New York by Wil-
liam W. Taylor III and Michael R. Smith; for the Saint Regis Mohawk
Tribe et al. by Bradley S. Waterman and Samuel M. Maruca; and for the
Seneca Nation of Indians by Timothy B. Dyk and Beth Heifetz.
64 DEPARTMENT OF TAXATION AND FINANCE OF N. Y. v.
MILHELM ATTEA & BROS.
Opinion of the Court
JUSTICE STEVENS delivered the opinion of the Court.
Cigarette consumers in New York are subject to a state
tax of 56 cents per pack. Enrolled tribal members who pur-
chase cigarettes on Indian reservations are exempt from this
tax, but non-Indians making purchases on reservations must
pay it. To prevent non-Indians from escaping the tax, New
York has enacted a regulatory scheme that imposes record-
keeping requirements and quantity limitations on cigarette
wholesalers who sell untaxed cigarettes to reservation Indi-
ans. The question presented is whether New York's pro-
gram is pre-empted by federal statutes governing trade
with Indians.
I
Article 20 of the New York Tax Law imposes a tax on all
cigarettes possessed in the State except those that New York
is "without power" to tax. N. Y. Tax Law §471(1) (McKin-
ney 1987 and Supp. 1994). The State collects the cigarette
tax through licensed agents who purchase tax stamps and
affix them to cigarette packs in advance of the first sale
within the State. The full amount of the tax is part of the
price of stamped cigarettes at all subsequent steps in the
distribution stream. Accordingly, the "ultimate incidence of
and liability for the tax [is] upon the consumer. " §471(2).
Any person who "willfully attempts in any manner to evade
or defeat" the cigarette tax commits a misdemeanor. N. Y.
Tax Law § 1814(a) (MeKinney 1987).
Because New York lacks authority to tax cigarettes sold
to tribal members for their own consumption, see Moe v.
Confederated Salish and Kootenai Tribes of Flathead Res-
ervation, 425 U. S. 463, 475-481 (1976), cigarettes to be con-
sumed on the reservation by enrolled tribal members are tax
exempt and need not be stamped. On-reservation cigarette
sales to persons other than reservation Indians, however, are
legitimately subject to state taxation. See Washington v.
Confederated Tribes of Colville Reservation, 447 U. S. 134,
160-161 (1980). In 1988, New York's Department of Taxa-
Cite as: 512 U. S. 61 (1994) 65
Opinion of the Court
tion and Finance1 determined that a large volume of un-
stamped cigarettes was being purchased by non-Indians from
reservation retailers. According to an affidavit submitted
by an official in the Department's Audit Division, the volume
of tax-exempt cigarettes sold on New York reservations in
1987-1988 would, if consumed exclusively by tax-immune In-
dians, correspond to a consumption rate 20 times higher than
that of the average New York resident; in 1988-1989, puta-
tive reservation consumption was 32 times the statewide av-
erage. See Record 244-246 (Affidavit of Jamie Woodward).
Because unlawful purchases of unstamped cigarettes de-
prived New York of substantial tax revenues — now esti-
mated at more than $65 million per year — the Department
adopted the regulations at issue in this case.2
The regulations recognize the right of "exempt Indian
nations or tribes, qualified Indian consumers and registered
dealers" to "purchase, on qualified reservations, cigarettes
upon which the seller has not prepaid and precollected the
cigarette tax imposed pursuant to article 20 of the Tax Law."
20 N. Y. d R. R. §336.6(a) (1992). To ensure that nonex-
empt purchasers do not likewise escape taxation, the regula-
tions limit the quantity of untaxed cigarettes that wholesal-
ers may sell to tribes and tribal retailers. The limitations
may be established and enforced in alternative ways. A
tribe may enter into an agreement with the Department "to
regulate, license, or control the sale and distribution within
its qualified reservation of an agreed upon amount of [un-
1 The petitioners in this case are the Department of Taxation and Fi-
nance of the State of New York, its Commissioner James W. Wetzler, and
the Tax Appeals Tribunal of the State of New York. For convenience we
refer to petitioners collectively as the Department.
2 The cigarette regulations are similar to regulations New York adopted
in an effort to prevent sales of untaxed gasoline to non-Indians on reserva-
tions. See Herzog Bros. Trucking, Inc. v. State Tax Common, 69 N. Y. 2d
536, 508 N. E. 2d 914 (1987) (finding regulations pre-empted by federal
law), vacated and remanded, 487 U. S. 1212 (1988), on remand 72 N. Y. 2d
720, 533 N. E. 2d 255 (1988).
66 DEPARTMENT OF TAXATION AND FINANCE OF N. Y. u
MILHELM ATTEA & BROS.
Opinion of the Court
taxed] cigarettes/' in which case wholesalers must obtain the
tribe's approval for each delivery of untaxed cigarettes to a
reservation retailer. § 336.7(c)(l). In the absence of such
an agreement — and apparently there have been none to
date — the Department itself limits the permitted quantity of
untaxed cigarettes based on the "probable demand" of
tax-exempt Indian consumers. § 336.7(d)(l).
The Department calculates "probable demand" in either of
two ways. If a tribe "regulates, licenses or controls the sale
and distribution of cigarettes within its reservation/' the De-
partment will rely upon evidence submitted by that tribe
concerning local demand for cigarettes. § 336.7(d)(2)(i).3
Otherwise, the Department fixes the untaxed cigarette limit
for a tribe by multiplying the "New York average [cigarette]
consumption per capita" by the number of enrolled members
of the affected tribe. §§336.7(d)(l), (d)(2)(ii). Each sale of
untaxed cigarettes by a wholesaler to a tribe or reservation
retailer must be approved by the Department; approval is
"based upon evidence of valid purchase orders received by
the agent [1 e., wholesaler] of quantities of cigarettes reason-
ably related to the probable demand of qualified Indian con-
sumers in the trade territory" of the tribe. Ibid.4 Retail-
ers are sent "Tax Exemption Coupons" entitling them to
their monthly allotment of tax-exempt cigarettes. The re-
tailer gives copies of its coupons to the wholesaler upon de-
livery, and the wholesaler forwards one to the Department.
See Brief for Petitioners 12-13; App. 44-45. The Depart-
ment may withhold approval of deliveries to tribes or re-
8 The regulation cites as examples of such evidence ''records of previ-
ous sales to qualified Indian consumers, records relating to the average
consumption of qualified Indian consumers on and near its reservation,
tribal enrollment, or other statistical evidence, etc." 20 N. Y. C. R. R.
§336.7(d)(2)(i) (1992).
4 The Department determines the "trade territory" in consultation with
the tribe if the tribe has undertaken to regulate the sale and distribution
of cigarettes; otherwise, the Department determines the trade territory
"based upon the information at its disposal." § 336.7(d)(3)(ii).
Cite as: 512 U. S. 61 (1994) 67
Opinion of the Court
tailers who "are or have been" violating the regulations,
§336.7(d)(6), and may cancel the exemption certificates of
noncomplying tribes or retailers. See §§ 886.6(d)(3), (e)(5).
Wholesalers who wish to sell tax-free cigarettes to Indian
tribes or reservation retailers must ensure that the buyer
intends to distribute the cigarettes to tax-exempt consumers,
takes delivery on the reservation, and holds a valid state
tax exemption certificate.6 Reservation retailers may sell
unstamped cigarettes only to "qualified Indian consumers/'
who at the time of first purchase must provide the retailer
with a "certificate of individual Indian exemption" and pro-
vide written evidence of their identity for subsequent pur-
chases. §§336.6(e)(2), (g)(l),6
Wholesale distributors of tax-exempt cigarettes must hold
state licenses authorizing them to purchase and affix New
York cigarette tax stamps, and must collect taxes on nonex-
empt sales. §§ 336.7(b)(2), (e). They must also keep rec-
ords reflecting the identity of the buyer in each tax-exempt
sale and make monthly reports to the Department on all such
sales. §§336.6(g)(3M4). New York's regulatory scheme,
unsurprisingly, imposes no restrictions on the sale of
stamped cigarettes — i e., those on which taxes have been
precollected by wholesalers.
II
Respondents are wholesalers licensed by the Bureau of In-
dian Affairs of the United States Department of the Interior
(BIA) to sell cigarettes to reservation Indians. Before New
6 See §§ 836.6(d)(l), (f)(l); § 836.7(b)(l). The purchasing tribe or retailer
must display its exemption certificate at the time of first purchase, and
must sign an invoice for subsequent purchases. §336.6(g)(l).
6 A "qualified Indian consumer" is an enrolled member of one of New
York's exempt Indian nations or tribes "who purchases or intends to pur-
chase cigarettes within the boundaries of a qualified reservation for such
Indian's own use or consumption (i. e., other than for resale) within such
reservation." § 336.6(b)(l)(ii).
68 DEPARTMENT OF TAXATION AND FINANCE OF N. Y. u
MILHELM ATTEA & BROS.
Opinion of the Court
York's cigarette tax enforcement scheme went into effect,
they filed separate suits in the Supreme Court in Albany
County alleging that the regulations were pre-empted by the
federal Indian Trader Statutes, 25 U. S. C. §261 et seq. The
trial court agreed and issued an injunction. After the Ap-
pellate Division affirmed, Milhelm Attea & Bros., Inc. v.
Dept of Taxation and Finance of New York, 164 App. Div.
2d 300, 564 N. Y. S. 2d 491 (1990), and the New York Court
of Appeals denied review, we granted certiorari, vacated the
judgment of the Appellate Division, and remanded for fur-
ther consideration in the light of our decision in Oklahoma
Tax Comm'n v. Citizen Band ofPotawatomi Tribe ofOkla.,
498 U. S. 505 (1991). 502 U. S. 1053 (1992). On remand, the
Appellate Division upheld the regulations, 181 App. Div. 2d
210, 585 N. Y. S. 2d 847 (1992), but the Court of Appeals
reversed, 81 N. Y. 2d 417, 615 N. E. 2d 994 (1993).
The Court of Appeals distinguished our decisions holding
that a State may require Indian retailers to collect a tax
imposed on non-Indian purchasers of cigarettes, see Moe v.
Confederated Salish and Kootenai Tribes of Flathead Res-
ervation, 425 U. S. 463 (1976); Washington v. Confederated
Tribes of Colville Reservation, 447 U. S. 134 (1980), on the
ground that those cases involved the regulation of sales
to non-Indian consumers. 81 N. Y. 2d, at 425, 615 N. E. 2d,
at 997. In the Court of Appeals' view, this case was sig-
nificantly different because New York's regulations apply
to sales by non-Indian wholesalers to reservation Indians.
Ibid. The court concluded that the Indian Trader Statutes,
as construed in Warren Trading Post Co. v. Arizona Tax
Comm'n, 380 U. S. 685 (1965), deprived the States of all
power to impose regulatory burdens on licensed Indian trad-
ers. 81 N. Y. 2d, at 426-427, 615 N. E. 2d, at 997-998. Even
if States could impose minimal burdens on Indian traders,
the Court of Appeals alternatively held, New York's regula-
tions are nevertheless invalid because they "impose signifi-
cant burdens on the wholesaler/* Id, at 427, 615 N. E. 2d,
Cite as: 512 U. S. 61 (1994) 69
Opinion of the Court
at 998. In particular, the regulations "dictate to Indian
traders the number of unstamped cigarettes they can sell to
reservation Indians and direct with whom they may trade."
Ibid. Moreover, New York's scheme "requires wholesale
distributors to prepay taxes on all cigarettes delivered on
the reservations in excess of the predetermined maximum
amount and, with respect to those cigarettes, imposes a sales
tax on Indian retailers." Ibid.
We granted certiorari, 510 U. S. 943 (1993), and now
reverse.
Ill
Respondents' challenge to New York's regulatory scheme
is essentially a facial one. In reviewing a challenge of this
kind, we do not rest our decision on consequences that, while
possible, are by no means predictable. For example, re-
spondents do not contest the factual accuracy of the Depart-
ment's initial calculations of "probable demand" for tax-
exempt cigarettes at particular reservations, see Record
244-248; rather, they challenge the Department's authority
to impose such limits at all. Therefore, for present purposes
we must assume that the allocations for each reservation will
be sufficiently generous to satisfy the legitimate demands of
those reservation Indians who smoke cigarettes. In other
respects as well, we confine ourselves to those alleged de-
fects that inhere in the regulations as written.
A second limitation on our review flows from the nature
of respondents' challenge. Their claim is that the New York
scheme interferes with their federally protected activities as
Indian traders who sell goods at wholesale to reservation
Indians. While the effect of the New York scheme on Indian
retailers and consumers may be relevant to that inquiry, see
Warren Trading Post, 380 U. S., at 691, this case does not
require us to assess for all purposes each feature of New
York's tax enforcement scheme that might affect tribal self-
government or federal authority over Indian affairs. Here
70 DEPARTMENT OF TAXATION AND FINANCE OF N. Y. u
MILHELM ATTEA & BROS.
Opinion of the Court
we confront the narrower question whether the New York
scheme is inconsistent with the Indian Trader Statutes.
IV
Throughout this Nation's history, Congress has authorized
"sweeping" and "comprehensive federal regulation" over
persons who wish to trade with Indians and Indian tribes.
Warren Trading Post, 380 U. S., at 687-689. An exercise of
Congress' power to "regulate Commerce . . . with the Indian
Tribes," see U. S. Const., Art. I, §8, cL 3, the Indian Trader
Statutes were enacted to prevent fraud and other abuses by
persons trading with Indians. See Central Machinery Co.
v. Arizona Tax Comm'n, 448 U. S. 160, 163-164 (1980). The
provision principally relied upon by respondents and by the
Court of Appeals, enacted in 1876 and captioned "Power to
appoint traders with Indians," states:
"The Commissioner of Indian Affairs shall have the sole
power and authority to appoint traders to the Indian
tribes and to make such rules and regulations as he may
deem just and proper specifying the kind and quantity
of goods and the prices at which such goods shall be sold
to the Indians." 19 Stat. 200, 25 U. S. C. § 261.7
In Warren Trading Post, we held that this provision pre-
vented Arizona from imposing a tax on the income or gross
sales proceeds of licensed Indian traders dealing with res-
ervation Indians. The Indian Trader Statutes and the "ap-
parently all-inclusive regulations" under them, we stated,
"would seem in themselves sufficient to show that Congress
has taken the business of Indian trading on reservations so
7 The other Indian trader provisions state that persons who establish
their fitness to trade with Indians to the BIA's satisfaction shall be permit-
ted to do so, 26 U. S. C. § 262, authorize the President to prohibit the intro-
duction of goods into Indian country and to revoke licenses, §263, and
impose penalties for unauthorized trading, §264. BIA regulations under
the statutes are codified at 25 CFR §§ 140.1-140.26 (1993).
Cite as: 512 U. S. 61 (1994) 71
Opinion of the Court
fully in hand that no room remains for state laws imposing
additional burdens upon traders." 380 U. S., at 690, There-
fore, Arizona's tax "would to a substantial extent frustrate
the evident congressional purpose of ensuring that no burden
shall be imposed upon Indian traders for trading with Indi-
ans on reservations except as authorized by Acts of Congress
or by valid regulations promulgated under those Acts/' Id.,
at 691. See also Central Machinery Co., 448 U. S., at 163-
166 (tax on proceeds of sale of farm machinery to tribe pre-
empted by §261).
Although language in Warren Trading Post suggests that
no state regulation of Indian traders can be valid, our subse-
quent decisions have "undermine[d]" that proposition. See
Central Machinery, 448 U. S., at 172 (Powell, J., dissenting).
Thus, in Moe, we upheld a Montana law that required Indian
retailers on tribal land to collect a state cigarette tax im-
posed on sales to non-Indian consumers. We noted that the
Indian smokeshop proprietor's competitive advantage over
other retailers depended "on the extent to which the non-
Indian purchaser is willing to flout his legal obligation to pay
the tax. Without the simple expedient of having the re-
tailer collect the sales tax from non-Indian purchasers, it is
clear that wholesale violations of the law by the latter class
will go virtually unchecked/' 425 U. S., at 482. In contrast
to the tax in Warren Trading Post, which fell directly upon
an Indian trader, the cigarette tax in Moe fell upon a class —
non-Indians — whom the State had power to tax. 425 U. S.,
at 483. We approved Montana's "requirement that the In-
dian tribal seller collect a tax validly imposed on non-
Indians" as a "minimal burden designed to avoid the likeli-
hood that in its absence non-Indians purchasing from the
tribal seller will avoid payment of a concededly lawful tax/'
Ibid.
In Colville, we upheld in relevant part a more comprehen-
sive Washington State cigarette tax enforcement scheme
that required tribal retailers selling goods on the reservation
72 DEPARTMENT OF TAXATION AND FINANCE OF N. Y. v.
MILHELM ATTEA & BROS.
Opinion of the Court
to collect taxes on sales to nonmembers and to keep exten-
sive records concerning these transactions. We rejected the
proposition that "principles of federal Indian law, whether
stated in terms of pre-emption, tribal self-government, or
otherwise, authorize Indian tribes thus to market an exemp-
tion from state taxation to persons who would normally do
their business elsewhere." 447 IL S., at 155. Moreover, the
Tribes had failed to meet their burden of showing that the
recordkeeping requirements imposed on tribal retailers were
"not reasonably necessary as a means of preventing fraudu-
lent transactions." /d, at 160.8 See also California Bd.
of Equalization v. Chemehuevi Tribe, 474 U. S. 9, 11-12
(1985) (per curiam).
In Potawatomi, we held that sovereign immunity barred
the State of Oklahoma's suit against a Tribe to recover ciga-
rette taxes owed for sales to non-Indians at a convenience
store owned by the Tribe. In response to the State's protest
that the Tribe's immunity from suit made the State's recog-
nized authority to tax cigarette sales to non-Indians a "right
without any remedy," 498 U. S., at 514, we explained that
alternative remedies existed for state tax collectors, such as
damages actions against individual tribal officers or agree-
ments with the tribes. Ibid. We added that "States may
of course collect the sales tax from cigarette wholesalers,
either by seizing unstamped cigarettes off the reservation,
Colville, [447 U. S.,] at 161-162, or by assessing wholesalers
8 We described the recordkeeping requirements as follows:
"The state sales tax scheme requires smokeshop operators to keep de-
tailed records of both taxable and nontaxable transactions. The operator
must record the number and dollar volume of taxable sales to nonmembers
of the Tribe. With respect to nontaxable sales, the operator must record
and retain for state inspection the names of all Indian purchasers, their
tribal affiliations, the Indian reservations within which sales are made,
and the dollar amount and dates of sales. In addition, unless the Indian
purchaser is personally known to the operator he must present a tribal
identification card." Colville, 447 U. S., at 159.
Cite as: 512 U. S. 61 (1994) 73
Opinion of the Court
who supplied unstamped cigarettes to the tribal stores."
Ibid.
V
This is another case in which we must "reconcile the ple-
nary power of the States over residents within their borders
with the semi-autonomous status of Indians living on tribal
reservations." McClanahan v. Arizona Tax Comm'n, 411
U. S. 164, 165 (1973). Resolution of conflicts of this kind
does not depend on "rigid rule[s]" or on ''mechanical or abso-
lute conceptions of state or tribal sovereignty," but instead
on "a particularized inquiry into the nature of the state, fed-
eral, and tribal interests at stake, an inquiry designed to
determine whether, in the specific context, the exercise of
state authority would violate federal law." White Moun-
tain Apache Tribe v. Bracker, 448 U. S. 136, 142, 145 (1980).
See also Cotton Petroleum Corp. v. New Mexico, 490 U. S.
163, 176 (1989).
The specific kind of state tax obligation that New York's
regulations are designed to enforce — which falls on non-
Indian purchasers of goods that are merely retailed on a res-
ervation— stands on a markedly different footing from a tax
imposed directly on Indian traders, on enrolled tribal mem-
bers or tribal organizations, or on "value generated on the
reservation by activities involving the Tribes," Colmlle, 447
U. S., at 156-157. Moe, Colv ille, and Potawatomi make
clear that the States have a valid interest in ensuring compli-
ance with lawful taxes that might easily be evaded through
purchases of tax-exempt cigarettes on reservations; that in-
terest outweighs tribes' modest interest in offering a tax ex-
emption to customers who would ordinarily shop elsewhere.
The "balance of state, federal, and tribal interests," Rice v.
Rehner, 463 U. S. 713, 720 (1983), in this area thus leaves
more room for state regulation than in others. In particu-
lar, these cases have decided that States may impose on res-
ervation retailers minimal burdens reasonably tailored to the
collection of valid taxes from non-Indians.
74 DEPARTMENT OF TAXATION AND FINANCE OF N. Y. v.
MILHELM ATTEA & BROS.
Opinion of the Court
Although Moe and Colville dealt most directly with claims
of interference with tribal sovereignty,9 the reasoning of
those decisions requires rejection of the submission that 25
U. S. C. § 261 bars any and all state-imposed burdens on In-
dian traders. It would be anomalous to hold that a State
could impose tax collection and bookkeeping burdens on res-
ervation retailers who are themselves enrolled tribal mem-
bers, including stores operated by the tribes themselves, but
that similar burdens could not be imposed on wholesalers,
who often (as in this case) are not.10 Such a ruling might
well have the perverse consequence of casting greater state
tax enforcement burdens on the very reservation Indians
whom the Indian Trader Statutes were enacted to protect.
Just as tribal sovereignty does not completely preclude
States from enlisting tribal retailers to assist enforcement of
valid state taxes, the Indian Trader Statutes do not bar the
States from imposing reasonable regulatory burdens upon
Indian traders for the same purpose. A regulation designed
to prevent non-Indians from evading taxes may well burden
Indian traders in the sense that it reduces the competitive
advantage offered by trading unlimited quantities of tax-free
goods; but that consideration is no more weighty in the case
of Indian traders engaged in wholesale transactions than it
was in the case of reservation retailers.
The state law we found pre-empted in Warren Trading
Post was a tax directly "imposed upon Indian traders for
trading with Indians/' 380 U. S., at 691. See also Central
Machinery, 448 U. S., at 164. That characterization does
9 In fact, in Colville, the tribal retailers obligated to collect state taxes
on cigarette sales to non-Indians and keep detailed sales records were
licensed Indian traders. See Confederated Tribes of Colville v. State of
Wash., 446 R Supp. 1339, 1347 (ED Wash. 1978).
10 According to the Federal Government, there are approximately 125
federally licensed Indian traders in New York, of whom the 64 wholesalers
are all non-Indians and the 61 retailers are all Indians. See Brief for
United States as Amicus Curiae 2, IL 1.
Cite as: 512 U. S. 61 (1994) 75
Opinion of the Court
not apply to regulations designed to prevent circumvention
of "concededly lawful" taxes owed by non-Indians. See
Moe, 425 U. S., at 482-483. Although broad language in our
opinion in Warren Trading Post lends support to a contrary
conclusion, we now hold that Indian traders are not wholly
immune from state regulation that is reasonably necessary
to the assessment or collection of lawful state taxes. That
conclusion does not, of course, answer the Court of Appeals'
alternative basis for striking down the New York scheme —
namely, that it imposes excessive burdens on Indian traders.
VI
Respondents vigorously object to the limitation of whole-
saler's tax-exempt cigarette sales through the "probable de-
mand" mechanism. We are persuaded, however, that New
York's decision to stanch the illicit flow of tax-free cigarettes
early in the distribution stream is a "reasonably necessary"
method of "preventing fraudulent transactions," one that
"polices against wholesale evasion of [New York's] own valid
taxes without unnecessarily intruding on core tribal inter-
ests." Colville, 447 U. S., at 160, 162. The sole purpose
and justification for the quotas on untaxed cigarettes is the
State's legitimate interest in avoiding tax evasion by non-
Indian consumers. By imposing a quota on tax-free ciga-
rettes, New York has not sought to dictate "the kind and
quantity of goods and the prices at which such goods shall
be sold to the Indians." 25 U. S. C. §261. Indian traders
remain free to sell Indian tribes and retailers as many ciga-
rettes as they wish, of any kind and at whatever price. If
the Department's "probable demand" calculations are ade-
quate, tax-immune Indians will not have to pay New York
cigarette taxes and neither wholesalers nor retailers will
have to precollect taxes on cigarettes destined for their con-
sumption. While the possibility of an inadequate quota may
provide the basis for a future challenge to the application of
the regulations, we are unwilling to assume, in the absence
76 DEPARTMENT OF TAXATION AND FINANCE OF N. Y. u
MILHELM ATTEA & BROS.
Opinion of the Court
of any such showing by respondents, that New York will un-
derestimate the legitimate demand for tax-free cigarettes.
The associated requirement that the Department preapprove
deliveries of tax-exempt cigarettes in order to ensure compli-
ance with the quotas does not render the scheme facially
invalid. This procedure should not prove unduly burden-
some absent wrongful withholding or delay of approval —
problems that can be addressed if and when they arise. See
Colville, 447 U. S., at 160 (burden of showing that tax en-
forcement scheme imposes excessive regulatory burdens is
on challenger).
New York's requirements that wholesalers sell untaxed
cigarettes only to persons who can produce valid exemption
certificates and that wholesalers maintain detailed records
on tax-exempt transactions likewise do not unduly interfere
with Indian trading. The recordkeeping requirements and
eligible buyer restrictions in the New York scheme are no
more demanding than the comparable measures we approved
in Colville. See n. 8, supra. Indeed, because wholesale
trade typically involves a comparatively small number of
large- volume sales, the transactional recordkeeping require-
ments imposed on Indian traders in this case are probably
less onerous than those imposed on retailers in Moe and Col-
ville. By requiring wholesalers to precollect taxes on, and
affix stamps to, cigarettes destined for nonexempt consum-
ers, New York has simply imposed on the wholesaler the
same precollection obligation that, under Moe and Colville,
may be imposed on reservation retailers. We therefore dis-
agree with the Court of Appeals' conclusion that New York
has in this way "impose[d] a sales tax on Indian retailers."
81 N. Y. 2d, at 427, 615 N. E. 2d, at 998 (emphasis added).
Again assuming that the "probable demand" calculations
leave ample room for legitimately tax-exempt sales, the pre-
collection regime will not require prepayment of any tax to
which New York is not entitled.
Cite as: 512 U. S. 61 (1994) 77
Opinion of the Court
The United States, as amicus supporting affirmance,
agrees with the Court of Appeals' alternative holding that
the New York scheme improperly burdens Indian trading.
In addition to the provisions disapproved by the Court of
Appeals, the United States attacks the requirement that res-
ervation retailers obtain state tax exemption certificates on
the ground that it invades the BIA's "sole power and author-
ity" to appoint Indian traders. We do not, however, under-
stand the regulations to do anything more than establish a
method of identifying those retailers who are already en-
gaged in the business of selling cigarettes. At this stage,
we will not assume that the Department would refuse certi-
fication to any federally authorized trader or stultify tribal
economies by refusing certification to new reservation retail-
ers. Indeed, the Department assures us that certification
is "virtually automatic" upon submission of an application.
Reply Brief for Petitioners 5 (citing 20 K Y. C. R. R.
§336.6(f)(D (1992)).
The United States also objects to the provisions for estab-
lishing "trade territories" and allocating each reservation's
overall quota among its retail outlets. Depending upon how
they are applied in particular circumstances, these provi-
sions may present significant problems to be addressed in
some future proceeding. However, the record before us fur-
nishes no basis for identifying or evaluating any such prob-
lem. Agreements between the Department and individual
tribes might avoid or resolve problems that are now purely
hypothetical.11 Possible problems involving the allocation of
11 Amicus the Seneca Nation argues that New York's cigarette tax regu-
lations violate treaties between it and the United States insofar as the
regulations allow New York to tax any transactions occurring on Seneca
tribal lands. See Brief for Seneca Nation of Indians as Amicus Curiae
18-26; but see Brief for United States as Amicus Curiae 21-24. We do
not address this contention, which differs markedly from respondents'
position and which was not addressed by the Court of Appeals. See
United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 60, n. 2 (1981).
78 DEPARTMENT OF TAXATION AND FINANCE OF N. Y. v.
MILHELM ATTEA & BROS.
Opinion of the Court
cigarettes among reservation retailers would not necessarily
threaten any harm to respondent wholesalers, whose main
interest lies in selling the maximum number of cigarettes,
however ultimately allocated.
Because we conclude that New York's cigarette tax en-
forcement regulations do not, on their face, violate the Indian
Trader Statutes, the judgment of the New York Court of
Appeals is reversed.
It is so ordered.
OCTOBER TERM, 1993 79
Syllabus
O'MELVENY & MYERS v. FEDERAL DEPOSIT IN-
SURANCE CORPORATION, AS RECEIVER FOR AMERI-
CAN DIVERSIFIED SAVINGS BANK, ET AL,
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 93-489. Argued March 21, 1994— Decided June 13, 1994
Respondent Federal Deposit Insurance Corporation (FDIC), receiver for
an insolvent California savings and loan (S&L), caused the S&L to make
refunds to investors in certain fraudulent real estate syndications in
which the S&L had been represented by petitioner law firm. The
FDIC filed suit against petitioner in the Federal District Court and
alleged state causes of action for professional negligence and breach of
fiduciary duty. Petitioner moved for summary judgment, alleging,
inter alia, that knowledge of the fraudulent conduct of the S&Us offi-
cers must be imputed to the S&L, and hence to the FDIC, which, as
receiver, stood in the S&Us shoes; and thus the FDIC was estopped
from pursuing its tort claims. The court granted the motion, but the
Court of Appeals reversed, indicating that a federal common-law rule
of decision controlled.
Held: The California rule of decision, rather than a federal rule, governs
petitioner's tort liability. Pp. 83-89.
(a) State law governs the imputation of corporate officers' knowledge
to a corporation that is asserting causes of action created by state law.
There is no federal general common law, Erie R, Co. v. Tompkins, 304
U. S. 64, 78, and the remote possibility that corporations may go into
federal receivership is no conceivable basis for adopting a special federal
common-law rule divesting States of authority over the entire law of
imputation. Pp. 83-85.
(b) California law also governs the narrower question whether corpo-
rate officers' knowledge can be imputed to the FDIC suing as receiver.
This Court will not adopt a judge-made federal rule to supplement com-
prehensive and detailed federal statutory regulation; matters left unad-
dressed in such a scheme are presumably left to state law. Title 12
U. S. C. § 1821(d)(2)(A)(i)— which states that "the [FDIC] shall, ... by
operation of law, succeed to — all rights, titles, powers, and privileges of
the insured depository institution" — places the FDIC in the insolvent
S&L's shoes to pursue its claims under state law, except where some
provision in the extensive framework of the Financial Institutions Re-
80 O'MELVENY & MYERS v. FDIC
Opinion of the Court
form, Recovery, and Enforcement Act of 1989 (FIRREA) specifically
creates a special federal rule of decision. Pp. 85-87.
(c) Judicial creation of a special federal rule would not be justified
even if FIRREA is inapplicable to the instant receivership, which began
in 1986. Instances where a special federal rule is warranted are few
and restricted, limited to situations where there is a significant conflict
between some federal policy or interest and the use of state law. The
FDIC has identified no significant conflict here, not even one implicating
the most lightly invoked federal interest: uniformity. Pp. 87-89.
969 F. 2d 744, reversed and remanded.
SCAUA, J., delivered the opinion for a unanimous Court. STEVENS, J.,
filed a concurring opinion, in which BLACKMUN, O'CONNOR, and SOUTER,
JJ., joined, post, p. 90.
Rex E. Lee argued the cause for petitioner. With him on
the briefs were Robert D. McLean, Carter G. Phillips, Joseph
R. Guerra, Peter D. Keisler, Richard D. Bernstein, Gregory
R. Smith, Joseph M. Lipner, and Elliot Brown.
Deputy Solicitor General Bender argued the cause for
respondents. With him on the brief were Solicitor Gen-
eral Days, James A. Feldman, Ann S. DuRoss, Richard
J. Osterrnan, and Jerome A. Madden*
JUSTICE SCALIA delivered the opinion of the Court,
The issue in this case is whether, in a suit by the Federal
Deposit Insurance Corporation (FDIC) as receiver of a feder-
*Briefs of amid curiae urging reversal were filed for Arthur Ander-
sen & Co. et al. by Carl D. Liggw, Kathryn A. Oberly, Jon N. Ekdahl,
Harris J. Amhowitz, Howard J. Krongard, Edwin D. Scott, and Eldon
Olson; for Banking and Business Lawyers by Keith R. Fisher, John C.
Deal, David S. Willenzik, Neal L. Petersen, Henry H. Fox, and Michael
J. Halloran; and for Lee H. Henkel III by Keith A. Jones.
C. Edward Simpson, Theodore H. Focht, and Michael E. Don filed a
brief for the Securities Investor Protection Corporation et al. as amid
curiae urging affirmance.
Briefs of amid curiae were filed for the American Bar Association by
R William Ide III, John J. Curtin, Jr., and Arthur W. Leibold, Jr.; and
for Shrader & York et al by Eugene B. Wilshire, Jr., and Patrick J. Dyer.
Cite as: 512 U. S. 79 (1994) 81
Opinion of the Court
ally insured bank, it is a federal-law or rather a state-law
rule of decision that governs the tort liability of attorneys
who provided services to the bank.
I
American Diversified Savings Bank (ADSB or S&L) is a
California-chartered and federally insured savings and loan.
The following facts have been stipulated to, or are uncontro-
verted, by the parties to the case, and we assume them to
be true for purposes of our decision. ADSB was acquired
in 1983 by Ranbir Sahni and Lester Day, who respectively
obtained 96% and 4% of its stock, and who respectively
served as its chairman/CEO and president. Under their
leadership, ADSB engaged in many risky real estate transac-
tions, principally through limited partnerships sponsored by
ADSB and its subsidiaries. Together, Sahni and Day also
fraudulently overvalued ADSB's assets, engaged in sham
sales of assets to create inflated "profits," and generally
"cooked the books" to disguise the S&I/s dwindling (and
eventually negative) net worth.
In September 1985, petitioner O'Melveny & Myers, a Los
Angeles-based law firm, represented ADSB in connection
with two real estate syndications. At that time, ADSB was
under investigation by state and federal regulators, but that
fact had not been made public. In completing its work for
the S&L, petitioner did not contact the accounting firms that
had previously done work for ADSB, nor state and federal
regulatory authorities, to inquire about ADSB's financial
status. The two real estate offerings on which petitioner
worked closed on December 31, 1985. On February 14, 1986,
federal regulators concluded that ADSB was insolvent and
that it had incurred substantial losses because of violations
of law and unsound business practices. Respondent stepped
82 O'MELVENY & MYERS u FDIC
Opinion of the Court
in as receiver for ADSB,1 and on February 19, 1986, filed suit
against Messrs. Sahni and Day in Federal District Court,
alleging breach of fiduciary duty and, as to Sahni, Racketeer
Influenced and Corrupt Organizations Act violations. Soon
after taking over as receiver, respondent began receiving de-
mands for refunds from investors who claimed that they had
been deceived in connection with the two real estate syndica-
tions. Respondent caused ADSB to rescind the syndica-
tions and to return all of the investors' money plus interest.
On May 12, 1989, respondent sued petitioner in the United
States District Court for the Central District of California,
alleging professional negligence and breach of fiduciary duty.
The parties stipulated to certain facts and petitioner moved
for summary judgment, arguing that (1) it owed no duty to
ADSB or its affiliates to uncover the S&Us own fraud; (2)
that knowledge of the conduct of ADSB's controlling officers
must be imputed to the S&L, and hence to respondent,
which, as receiver, stood in the shoes of the S&L; and (3)
that respondent was estopped from pursuing its tort claims
against petitioner because of the imputed knowledge. On
May 15, 1990, the District Court granted summary judg-
ment, explaining only that petitioner was "entitled to judg-
ment in its favor ... as a matter of law." The Court of
Appeals for the Ninth Circuit reversed, on grounds that we
shall discuss below. 969 F. 2d 744 (1992). Petitioner filed a
petition for writ of certiorari, which we granted. 510 U. S.
989 (1993).
1For simplicity's sake, we refer to a "receiver" throughout, which we
identify as the FDIC. The reality was more complicated. The first fed-
eral entity involved was the Federal Savings and Loan Insurance Corpora-
tion (FSLIC), which was appointed conservator of ADSB in 1986 and re-
ceiver in June 1988. The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, Pub. L. 101-73, 103 Stat 183, abolished FSLIC,
and caused FDIC, the manager of the FSLIC resolution fund, to be sub-
stituted as receiver and party to this case. See id., §§215, 401(a)(l),
401(f)(2).
Cite as: 512 U. S. 79 (1994) 83
Opinion of the Court
II
It is common ground that the FDIC was asserting in this
case causes of action created by California law. Respondent
contends that in the adjudication of those causes of action (1)
a federal common-law rule and not California law determines
whether the knowledge of corporate officers acting against
the corporation's interest will be imputed to the corporation;
and (2) even if California law determines the former ques-
tion, federal common law determines the more narrow ques-
tion whether knowledge by officers so acting will be imputed
to the FDIC when it sues as receiver of the corporation.2
The first of these contentions need not detain us long, as
it is so plainly wrong. "There is no federal general common
law," Erie R. Co. v. Tompkins, 304 U S. 64, 78 (1938), and
(to anticipate somewhat a point we will elaborate more fully
in connection with respondent's second contention) the re-
mote possibility that corporations may go into federal receiv-
ership is no conceivable basis for adopting a special federal
common-law rule divesting States of authority over the en-
tire law of imputation. See Bank of America Nat. Trust &
Sav. Assn. v. Parnell, 352 U. S. 29, 33-34 (1956). The Ninth
Circuit believed that its conclusion on this point was in har-
mony with Schacht v. Brown, 711 F. 2d 1343 (CA7 1983),
Cenco Inc. v. Seidman & Seidman, 686 R 2d 449 (CA7 1982),
and In re Investors Funding Corp. ofN. Y. Securities Litiga-
tion, 523 F. Supp. 533 (SDNY 1980), 969 F. 2d, at 750, but
even a cursory examination of those cases shows the con-
trary. In Cenco, where the cause of action similarly arose
under state common law, the Seventh Circuit's analysis of
2 The Court of Appeals appears to have agreed with the first of these
contentions. Instead of the second, however, it embraced the proposition
that federal common law prevents the attributed knowledge of corporate
officers acting against the corporation's interest from being used as the
basis for an estoppel defense against the PDIC as receiver. Since there
is nothing but a formalistic distinction between this argument and the
second one described in text, we do not treat it separately.
84 O'MELVENY & MYERS u FDIC
Opinion of the Court
the "circumstances under which the knowledge of fraud on
the part of the plaintiff's directors [would] be imputed to the
plaintiff corporation [was] merely an attempt to divine how
Illinois courts would decide that issue/' Schacht, supra, at
1347 (citing Cenco, supra, at 455). Likewise, in Investors
Funding, the District Court analyzed the potential affirma-
tive defenses to the state-law claims by applying "[t]he con-
trolling legal principles [of] New York law/' 523 R Supp.,
at 540. In Schacht, the Seventh Circuit expressly noted that
"the cause of action [at issue] arises under RICO, a federal
statute; we therefore write on a clean slate and may bring
to bear federal policies in deciding the estoppel question/'
711 R 2d, at 1347.
In seeking to defend the Ninth Circuit's holding, respond-
ent contends (to quote the caption of its argument) that "The
Wrongdoing Of ADSB's Insiders Would Not Be Imputed To
ADSB Under Generally Accepted Common Law Principles/'
Brief for Respondent 12 — in support of which it attempts
to show that nonattribution to the corporation of dishonest
officers' knowledge is the rule applied in the vast bulk of
decisions from 43 jurisdictions, ranging from Rhode Island
to Wyoming. See, e. g., id., at 21-22, n. 9 (distinguishing,
inter alia, Cook v. American Tubing & Webbing Co., 28 R. I.
41, 65 A. 641 (1905), and American Nat. Bank of Powell v.
Foodbasket, 497 P. 2d 546 (Wyo. 1972)). The supposed rele-
vance of this is set forth in a footnote: "It is our position
that federal common law does govern this issue, but that the
content of the federal common law rule corresponds to the
rule that would independently be adopted by most jurisdic-
tions." Brief for Respondent 15, n. 3. If there were a fed-
eral common law on such a generalized issue (which there is
not), we see no reason why it would necessarily conform to
that "independently . . . adopted by most jurisdictions/' But
the short of the matter is that California law, not federal law,
governs the imputation of knowledge to corporate victims of
Cite as: 512 U. S. 79 (1994) 86
Opinion of the Court
alleged negligence, and that is so whether or not California
chooses to follow "the majority rule."
We turn, then, to the more substantial basis for the deci-
sion below, which asserts federal pre-emption not over the
law of imputation generally, but only over its application to
the FDIC suing as receiver. Respondent begins its defense
of this principle by quoting United States v. Kimbell Foods,
Inc., 440 U. S. 715, 726 (1979), to the effect that "federal law
governs questions involving the rights of the United States
arising under nationwide federal programs." But the FDIC
is not the United States, and even if it were we would be
begging the question to assume that it was asserting its own
rights rather than, as receiver, the rights of ADSB. In any
event, knowing whether "federal law governs" in the Kim-
bell Foods sense — a sense which includes federal adoption of
state-law rules, see id., at 727-729 — does not much advance
the ball. The issue in the present case is whether the Cali-
fornia rule of decision is to be applied to the issue of imputa-
tion or displaced, and if it is applied it is of only theoretical
interest whether the basis for that application is California's
own sovereign power or federal adoption of California's dis-
position. See Boyle v. United Technologies Corp., 487 U. S.
500, 507, n. 3 (1988).
In answering the central question of displacement of Cali-
fornia law, we of course would not contradict an explicit fed-
eral statutory provision. Nor would we adopt a court-made
rule to supplement federal statutory regulation that is com-
prehensive and detailed; matters left unaddressed in such a
scheme are presumably left subject to the disposition pro-
vided by state law. See Northwest Airlines, Inc. v. Trans-
port Workers, 451 U. S. 77, 97 (1981); Milwaukee v. Illinois,
451 U. S. 304, 319 (1981). Petitioner asserts that both these
principles apply in the present case, by reason of 12 U. S. C.
§ 1821(d)(2)(A)(i) (1988 ed., Supp. IV), and the comprehensive
legislation of which it is a part, the Financial Institutions
86 O'MELVENY <& MYERS u FDIC
Opinion of the Court
Reform, Recovery, and Enforcement Act of 1989 (FIRREA),
Pub. L. 101-73, 103 Stat. 183.
Section 1821(d)(2)(A)(i), which is part of a title captioned
"Powers and duties of [the FDIC] as ... receiver," states
that "the [FDIC] shall, ... by operation of law, succeed to —
all rights, titles, powers, and privileges of the insured deposi-
tory institution . . . ." 12 U. S. C. § 1821(d)(2)(A)(i) (1988 ecL,
Supp. IV). This language appears to indicate that the FDIC
as receiver "steps into the shoes" of the failed S&L, cf. Coit
Independence Joint Venture v. FSLIC, 489 U. S. 561, 585
(1989), obtaining the rights "of the insured depository in-
stitution" that existed prior to receivership. Thereafter, in
litigation by the FDIC asserting the claims of the S&L —
in this case California tort claims potentially defeasible by
a showing that the S&L's officers had knowledge — "'any
defense good against the original party is good against the
receiver. *" 969 F. 2d, at 751 (quoting Allen v. Ramsay,
179 Cal. App. 2d 843, 854, 4 Gal. Rptr. 575, 583 (I960)).
Respondent argues that § 1821(d)(2)(A)(i) should be read
as a nonexclusive grant of rights to the FDIC receiver,
which can be supplemented or modified by federal common
law; and that FIRREA as a whole, by demonstrating the
high federal interest in this area, confirms the courts' author-
ity to promulgate such common law. This argument is de-
molished by those provisions of FIRREA which specifically
create special federal rules of decision regarding claims by,
and defenses against, the FDIC as receiver. See 12 U. S. C.
§ 1821(d)(14) (1988 ed., Supp, IV) (extending statute of limi-
tations beyond period that might exist under state law);
§§ 1821(e)(l), (3) (precluding state-law claims against the
FDIC under certain contracts it is authorized to repudiate);
§ 1821 (k) (permitting claims against directors and officers for
gross negligence, regardless of whether state law would re-
quire greater culpability); §1821(d)(9) (excluding certain
state-law claims against FDIC based on oral agreements by
the S&L). Inclusw unius, exclusio alterius. It is hard to
Cite as: 512 II S. 79 (1994) 87
Opinion of the Court
avoid the conclusion that § 1821(d)(2)(A)(i) places the FDIC
in the shoes of the insolvent S&L, to work out its claims
under state law, except where some provision in the exten-
sive framework of FIRREA provides otherwise. To create
additional federal common-law" exceptions is not to "sup-
plement" this scheme, but to alter it.
We have thought it necessary to resolve the effect of
FIRREA because respondent argued that the statute not
only did not prevent but positively authorized federal com-
mon law. We are reluctant to rest our judgment on
FIRREA alone, however, since that statute was enacted into
law in 1989, while respondent took over as receiver for
ADSB in 1986. The FDIC is willing to "assume . . . that
FIRREA would have taken effect in time to be relevant to
this case," Brief for Respondent 35, n. 21, but it is not self-
evident that that assumption is correct. See Landgraf v.
USI Film Products, 511 U. S. 244, 268-270, 274 (1994); cf. id.,
at 290-291 (SCALIA, J., concurring in judgment). It seems to
us imprudent to resolve the retroactivity question without
briefing, and inefficient to pretermit the retroactivity issue
on the basis of the FDIC's concession, since that would make
our decision of limited value in other cases. As we proceed
to explain, even assuming the inapplicability of FIRREA
this is not one of those cases in which judicial creation of a
special federal rule would be justified.
Such cases are, as we have said in the past, "few and re-
stricted," Wheeldin v. Wheeler, 373 U. S. 647, 651 (1963),
limited to situations where there is a "significant conflict be-
tween some federal policy or interest and the use of state
law." Wallis v. Pan American Petroleum Corp., 384 U. S.
63, 68 (1966). Our cases uniformly require the existence of
such a conflict as a precondition for recognition of a federal
rule of decision. See, e.g., Kamen v. Kemper Financial
Services, Inc., 500 U. S. 90, 98 (1991); Boyle, supra, at 508;
Kimbell Foods, 440 U. S., at 728. Not only the permissibility
but also the scope of judicial displacement of state rules
88 O'MELVENY & MYERS u PDIC
Opinion of the Court
turns upon such a conflict. See, e. g., Kamen, supra, at 98;
Boyle, supra, at 508. What is fatal to respondent's position
in the present case is that it has identified no significant con-
flict with an identifiable federal policy or interest. There is
not even at stake that most generic (and lightly invoked) of
alleged federal interests, the interest in uniformity. The
rules of decision at issue here do not govern the primary
conduct of the United States or any of its agents or contrac-
tors, but affect only the FDIC's rights and liabilities, as re-
ceiver, with respect to primary conduct on the part of pri-
vate actors that has already occurred. Uniformity of law
might facilitate the FDIC's nationwide litigation of these
suits, eliminating state-by-state research and reducing un-
certainty— but if the avoidance of those ordinary conse-
quences qualified as an identifiable federal interest, we would
be awash in "federal common-law" rules. See United States
v. Yazell, 382 U. S. 341, 347, n. 13 (1966).
The closest respondent comes to identifying a specific, con-
crete federal policy or interest that is compromised by Cali-
fornia law is its contention that state rules regarding the
imputation of knowledge might "deplet[e] the deposit insur-
ance fund," Brief for Respondent 32. But neither FIRRE A
nor the prior law sets forth any anticipated level for the fund,
so what respondent must mean by "depletion" is simply the
forgoing of any money which, under any conceivable legal
rules, might accrue to the fund. That is a broad principle
indeed, which would support not just elimination of the de-
fense at issue here, but judicial creation of new, "federal-
common-law" causes of action to enrich the fund. Of course
we have no authority to do that, because there is no federal
policy that the fund should always win. Our cases have
previously rejected "more money" arguments remarkably
similar to the one made here. See Kimbell Foods, supra, at
737-738; Yazell, supra, at 348; cf. Robertson v. Wegmann,
436 U. S. 584, 593 (1978).
Cite as: 512 U. S. 79 (1994) 89
Opinion of the Court
Even less persuasive — indeed, positively probative of the
dangers of respondent's facile approach to federal-common-
law-making — is respondent's contention that it would "dis-
serve the federal program" to permit California to insulate
"the attorney's or accountant's malpractice/' thereby impos-
ing costs "on the nation's taxpayers, rather than on the negli-
gent wrongdoer." Brief for Respondent 32. By presuming
to judge what constitutes malpractice, this argument demon-
strates the runaway tendencies of "federal common law" un-
tethered to a genuinely identifiable (as opposed to judicially
constructed) federal policy. What sort of tort liability to im-
pose on lawyers and accountants in general, and on lawyers
and accountants who provide services to federally insured
financial institutions in particular, " 'involves a host of consid-
erations that must be weighed and appraised,'" Northwest
Airlines, Inc., 451 U. S., at 98, n. 41 (quoting United States
v. Oilman, 347 U. S. 507, 512-513 (1954))— including, for ex-
ample, the creation of incentives for careful work, provision
of fair treatment to third parties, assurance of adequate re-
covery by the federal deposit insurance fund, and entable-
ment of reasonably priced services. Within the federal sys-
tem, at least, we have decided that that function of weighing
and appraising " 'is more appropriately for those who write
the laws, rather than for those who interpret them.' " North-
west Airlines, supra, at 98, n. 41 (quoting Oilman, supra,
at 513).
We conclude that this is not one of those extraordinary
cases in which the judicial creation of a federal rule of
decision is warranted. As noted earlier, the parties are
in agreement that if state law governs it is the law of Cali-
fornia; but they vigorously disagree as to what that law
provides. We leave it to the Ninth Circuit to resolve that
point. The judgment is reversed and the case remanded
for proceedings consistent with this opinion.
So ordered.
90 O'MELVENY & MYERS u FDIC
STEVENS, J., concurring
JUSTICE STEVENS, with whom JUSTICE BLACKMUN, JUS-
TICE O'CONNOR, and JUSTICE SOUTER join, concurring.
While I join the Court's opinion, I add this comment to
emphasize an important difference between federal courts
and state courts. It would be entirely proper for a state
court of general jurisdiction to fashion a rule of agency law
that would protect creditors of an insolvent corporation from
the consequences of wrongdoing by corporate officers even if
the corporation itself, or its shareholders, would be bound by
the acts of its agents. Indeed, a state court might well at-
tach special significance to the fact that the interests of tax-
payers as well as ordinary creditors will be affected by the
rule at issue in this case. Federal courts, however, "unlike
their state counterparts, are courts of limited jurisdiction
that have not been vested with open-ended lawmaking pow-
ers/' Northwest Airlines, Inc. v. Transport Workers, 451
U. S. 77, 95 (1981). Because state law provides the basis for
respondent FDIC's claim, that law also governs both the ele-
ments of the cause of action and its defenses. Unless Con-
gress has otherwise directed, the federal court's task is
merely to interpet and apply the relevant rules of state law.
Cases like this one, however, present a special problem.
They raise issues, such as the imputation question here, that
may not have been definitively settled in the state jurisdic-
tion in which the case is brought, but that nevertheless must
be resolved by federal courts. The task of the federal
judges who confront such issues would surely be simplified
if Congress had provided them with a uniform federal rule
to apply. As matters stand, however, federal judges must
do their best to estimate how the relevant state courts would
perform their lawmaking task, and then emulate that some-
times purely hypothetical model. The Court correctly
avoids any suggestion about how the merits of the imputa-
tion issue should be resolved on remand or in similar cases
that may arise elsewhere. "The federal judges who deal
Cite as: 512 U. S. 79 (1994) 91
STEVENS, J., concurring
regularly with questions of state law in their respective dis-
tricts and circuits are in a better position than we to deter-
mine how local courts would dispose of comparable issues."
Butner v. United States, 440 U. S. 48, 58 (1979).
92 OCTOBER TERM, 1993
Syllabus
HOWLETT v. BIRKDALE SHIPPING CO., S. A.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 93-670. Argued April 20, 1994— Decided June 13, 1994
Petitioner Hewlett, a longshoreman employed by stevedore Northern
Shipping Co., was injured when he slipped and fell on a sheet of clear
plastic that had been placed under bags he was discharging from a cargo
hold on a ship owned and operated by respondent Birkdale Shipping Co.
He filed suit against Birkdale under § 5(b) of the Longshore and Harbor
Workers' Compensation Act, which requires shipowners to exercise or-
dinary care to maintain a ship and its equipment in a condition so that
an expert and experienced stevedore can load and unload cargo with
reasonable safety. As a corollary to this "turnover duty," a shipowner
must warn the stevedore of latent hazards that are known or should be
known to the shipowner. Here, the evidence showed that the vessel
had supplied the plastic to the loading stevedore in Guayaquil, Ecuador,
and that that stevedore had placed it under the bags, even though this
was improper. Howlett charged that Birkdale was negligent in failing
to warn Northern and its employees of this dangerous condition. The
District Court granted Birkdale summary judgment, finding that How-
lett had not demonstrated that Birkdale had actual knowledge of the
hazardous condition, and that the condition was not open and obvious.
It declined to infer such knowledge from the fact that the vessel had
supplied the Guayaquil stevedore with the plastic or that the vessel's
crew was present during the loading operation. Even if the plastic's
improper use was apparent to the crew in Guayaquil, the court added,
then it was also an open and obvious condition for which Howlett could
not recover. The Court of Appeals affirmed.
Held:
1. A vessel's turnover duty to warn of latent defects in the cargo stow
is narrow. As a general rule, the duty to warn attaches only to hazards
that are not known to the stevedore and that would be neither obvious
to, nor anticipated by, a skilled stevedore in the competent performance
of its work. Scindia Steam Nav. Co. v. De los Santos, 451 U. S. 156,
167. Subjecting vessels to suit for injuries that could be so anticipated
would upset the balance Congress was careful to strike when it amended
the Act in 1972 to shift more of the responsibility for compensating
injured longshoremen to stevedores, who are best able to avoid acci-
Cite as: 512 U. S. 92 (1994) 93
Opinion of the Court
dents during cargo operations. In addition, absent a vessel's actual
knowledge of a hazard, the turnover duty attaches only if the exercise
of reasonable care would place upon the vessel an obligation to inspect
for or discover the hazard's existence. Contrary to Hewlett's submis-
sion, however, the exercise of reasonable care does not require a vessel
to supervise the ongoing operations of the loading stevedore or other
stevedores handling the cargo before it arrives in port, or to inspect the
completed stow, to discover hazards in the cargo stow. Pp. 96-105.
2. The District Court erred in resting summary judgment on the
ground that the vessel had no actual knowledge of the hazard leading to
Hewlett's injury. Some crew members, who might have held positions
such that their knowledge should be attributed to the vessel, might have
observed the plastic being placed under the bags during the loading
process. The court's additional theory that the condition would have
been open and obvious to the stevedore during unloading had it been
obvious to the crew may also prove faulty, being premised on the ves-
sel's state of affairs during loading, not discharge. Of course, the vessel
may be entitled to summary judgment, since there is evidence that the
plastic was visible during unloading, and since Howlett must demon-
strate that the alleged hazard would not have been obvious to, or antici-
pated by, a skilled and competent stevedore at the discharge port.
Pp. 105-106.
998 R 2d 1003, vacated and remanded.
KENNEDY, J., delivered the opinion for a unanimous Court.
Charles Sovel argued the cause for petitioner. With him
on the briefs was Stanley B. Gruber.
Carl D. Buchholz III argued the cause for respondent.
With him on the brief was Michael P. Zipfel*
JUSTICE KENNEDY delivered the opinion of the Court.
Under § 5(b) of the Longshore and Harbor Workers' Com-
pensation Act, 33 U. S. C. § 905(b), a shipowner must exercise
ordinary care to maintain the ship and its equipment in a
*Thomas D. Wilcox and Charles 2! Carroll, Jr., filed a brief for the
National Association of Waterfront Employers as amicus curiae urging
reversal.
Graydon S. Staring and John A Flynn filed a brief for the American
Institute of Merchant Shipping as amicus curiae urging affirmance.
94 HOWLETT v. BIRKDALE SHIPPING CO.
Opinion of the Court
condition so that an expert and experienced stevedore can
load and unload cargo with reasonable safety. As a corollary
to this duty, the shipowner must warn the stevedore of latent
hazards, as the term is defined in maritime law, that are
known or should be known to the shipowner. This case re-
quires us to define the circumstances under which a ship-
owner must warn of latent hazards in the cargo stow or
cargo area.
I
The case arrives after a grant of summary judgment to
respondent Birkdale Shipping Co., S. A., so we consider the
facts in the light most favorable to petitioner Albert Howlett.
Hewlett, a longshoreman employed in the Port of Philadel-
phia by stevedore Northern Shipping Co., was injured while
discharging bags of cocoa beans from a cargo hold on the MV
Presidents Ibanez, a ship owned and operated by Birkdale.
During the unloading operation, Howlett and three other
longshoremen hooked up a draft, or load, of bags stowed on
the tween deck of the hold. When the ship's boom lifted the
draft out of the hold, an 8-square-foot area of the tween deck
was exposed. Howlett, who was standing on surrounding
bags, jumped down about three feet to the deck, where he
slipped and fell on a sheet of clear plastic that had been
placed under the cargo. As a result of his fall, Howlett sus-
tained serious injuries that have disabled him from return-
ing to work as a longshoreman.
Howlett brought suit against Birkdale under § 5(b) of the
Act. Both parties agreed that it is customary to lay paper
and plywood on a steel deck to protect a stow of cocoa beans
against condensation damage. They also agreed that, for
purposes of protecting the beans, it was improper to use
plastic, which tends to aggravate condensation damage
rather than prevent it. Evidence adduced during pretrial
proceedings suggested that the independent stevedore en-
gaged by Birkdale to load the beans in Guayaquil, Ecuador,
had placed the plastic on the tween deck. Further evidence
Cite as: 512 U. S. 92 (1994) 95
Opinion of the Court
showed that the vessel had supplied the Guayaquil stevedore
with the plastic, along with other material used in stowing
cargo, including paper, plywood, and dunnage. Howlett
claimed that before jumping to the deck he did not see the
plastic, which was covered by dirt and debris. He charged
that Birkdale was negligent in failing to warn Northern and
its longshoremen-employees of this dangerous condition.
The United States District Court for the Eastern District
of Pennsylvania granted summary judgment in favor of Birk-
dale. Relying upon Derr v. Kawasaki Kisen K. K., 835 F. 2d
490 (CAS 1987), cert, denied, 486 U. S. 1007 (1988), the court
held that Howlett, to prevail on his failure-to-warn claim, had
to demonstrate that Birkdale had actual knowledge of the
hazardous condition and that the condition was not open and
obvious. After reviewing the record, the court concluded
that Howlett had failed to present evidence sufficient to sus-
tain his claim. The court declined to infer that Birkdale had
actual knowledge of the condition from the fact that it had
supplied the Guayaquil stevedore with the plastic, reasoning
that "being the supplier of equipment does not necessarily
imply knowledge of its intended purpose." App. to Pet. for
Cert. 4a. The court further declined to infer actual knowl-
edge from the fact that the members of the vessel's crew
were present on the top deck during the loading operation.
And even if the Guayaquil stevedore's improper use of plastic
had been apparent to the crew, the court continued, "then
it readily transpires that this was an open and obvious con-
dition" for which Howlett could not recover. Ibid. The
Court of Appeals affirmed without opinion, judgt. order re-
ported at 998 F. 2d 1003 (CAS 1993).
We granted certiorari, 510 U. S. 1039 (1994), to resolve a
conflict among the Circuits regarding the scope of the ship-
owners' duty to warn of latent hazards in the cargo stow, an
inquiry that depends in large part upon the nature of the
shipowners' duty to inspect for such defects. Compare Derr
v. Kawasaki Kisen K. K., supra (vessel need not inspect or
96 HOWLETT u BIRKDALE SHIPPING CO.
Opinion of the Court
supervise the loading stevedore's cargo operations for the
benefit of longshoremen in later ports), with Turner v. Japan
Lines, Ltd., 651 F. 2d 1300 (CA9 1981) (vessel must supervise
a foreign stevedore's loading operations), cert, denied, 459
U. S. 967 (1982).
II
The Longshore and Harbor Workers' Compensation Act,
44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq., establishes
a comprehensive federal workers' compensation program
that provides longshoremen and their families with medical,
disability, and survivor benefits for work-related injuries and
death. See generally T. Schoenbaum, Admiralty and Mari-
time Law § 6-6 (1987); M. Norris, Law of Maritime Personal
Injuries §§4:11, 4:22-4:29 (4th ed. 1990). The injured long-
shoreman's employer — in most instances, an independent
stevedore, see Edmonds v. Compagnie Generate Transat-
lantique, 443 U. S. 256, 263-264 (1979)— must pay the statu-
tory benefits regardless of fault, but is shielded from any
further liability to the longshoreman. See 33 U. S. C. §§ 904,
905(a); Norris, supra, §§4:7-4:10.
The longshoreman also may seek damages in a third-party
negligence action against the owner of the vessel on which
he was injured, and may do so without forgoing statutory
compensation if he follows certain procedures. See Estate
of Cowart v. Nicklos Drilling Co., 505 U. S. 469 (1992). Sec-
tion 5(b) provides in relevant part:
"In the event of injury to a person covered under this
Act caused by the negligence of a vessel, then such per-
son . . . may bring an action against such vessel as a
third party . . . , and the employer shall not be liable to
the vessel for such damages directly or indirectly and
any agreements or warranties to the contrary shall be
void The liability of the vessel under this subsection
shall not be based upon the warranty of seaworthiness
Cite as: 512 U. S. 92 (1994) 97
Opinion of the Court
or a breach thereof at the time the injury occurred." 33
U.S. C. §905(b).
This provision, enacted as part of the extensive 1972 amend-
ments to the Act, effected fundamental changes in the nature
of the third-party action. First, it abolished the longshore-
man's pre-existing right to sue a shipowner based upon the
warranty of seaworthiness, a right that had been established
in Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946). Sec-
tion 5(b) also eliminated the stevedore's obligation, imposed
by Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350
U. S. 124 (1956), to indemnify a shipowner, if held liable to a
longshoreman, for breach of the stevedore's express or im-
plied warranty to conduct cargo operations with reasonable
safety. See generally Scindia Steam Nav. Co. v. De los San-
tos, 451 U. S. 156, 165 (1981); G. Gilmore & C. Black, Law
of Admiralty §6-57, pp. 449-455 (2d ed. 1975) (hereinafter
Gilmore & Black). Other sections of the 1972 amendments
provided for a substantial increase in the statutory benefits
injured longshoremen are entitled to receive from their
stevedore-employers. See Northeast Marine Terminal Co.
v, Caputo, 432 U. S. 249, 261-262 (1977); Gilmore & Black
§6-46, at 411; Note, 13 Tulane Mar. L. J. 163, 163-164 (1988).
The design of these changes was to shift more of the re-
sponsibility for compensating injured longshoremen to the
party best able to prevent injuries: the stevedore-employer.
See Scindia Steam, 451 U. S., at 171. Subjecting vessels
to suit for injuries that could be anticipated and prevented
by a competent stevedore would threaten to upset the bal-
ance Congress was careful to strike in enacting the 1972
amendments.
The question whether Howlett produced evidence suffi-
cient to hold Birkdale liable for his injuries turns on the
meaning of the term "negligence" in § 5(b). Because Con-
gress did not "specify the acts or omissions of the vessel that
would constitute negligence," the contours of a vessel's duty
to longshoremen are "left to be resolved through the 'appli-
98 HOWLETT u BIRKDALE SHIPPING CO.
Opinion of the Court
cation of accepted principles of tort law and the ordinary
process of litigation/ " Id., at 165-166.
The starting point in this regard must be our decision in
Scindia Steam, which outlined the three general duties ship-
owners owe to longshoremen. The first, which courts have
come to call the "turnover duty/' relates to the condition of
the ship upon the commencement of stevedoring operations.
See id., at 167. The second duty, applicable once stevedor-
ing operations have begun, provides that a shipowner must
exercise reasonable care to prevent injuries to longshoremen
in areas that remain under the "active control of the vessel/'
Ibid. The third duty, called the "duty to intervene/' con-
cerns the vessel's obligations with regard to cargo operations
in areas under the principal control of the independent steve-
dore. See id., at 167-178.
The allegations of Hewlett's complaint, and the facts ad-
duced during pretrial proceedings, implicate only the vessel's
turnover duty. We provided a brief statement of the turn-
over duty in Federal Marine Terminals, Inc. v. Burnside
Shipping Co., 394 U. S. 404 (1969): A vessel must "exercise
ordinary care under the circumstances" to turn over the ship
and its equipment and appliances "in such condition that an
expert and experienced stevedoring contractor, mindful of
the dangers he should reasonably expect to encounter, aris-
ing from the hazards of the ship's service or otherwise, will
be able by the exercise of ordinary care" to carry on cargo
operations "with reasonable safety to persons and property."
Id., at 416-417, n. 18 (internal quotation marks omitted); see
also Scindia Steam, 451 U. S., at 167. A corollary to the
turnover duty requires the vessel to warn the stevedore "of
any hazards on the ship or with respect to its equipment,"
so long as the hazards "are known to the vessel or should be
known to it in the exercise of reasonable care," and "would
likely be encountered by the stevedore in the course of his
cargo operations[,J are not known by the stevedore[,] and
would not be obvious to or anticipated by him if reasonably
Cite as: 512 U. S. 92 (1994) 99
Opinion of the Court
competent in the performance of his work." Ibid., citing
Marine Terminals, supra, at 416, n. 18. Although both
components of the turnover duty are related in various re-
spects, Howlett confines his case to an allegation that Birk-
dale failed to warn that the tween deck was covered with
plastic rather than (as is ordinarily the case) paper and
plywood.
Most turnover cases brought under § 5(b) concern the con-
dition of the ship itself or of equipment on the ship used
in stevedoring operations. See, e. g., Bjaranson v. Botelho
Shipping Corp., Manila, 873 F. 2d 1204 (CA9 1989) (no hand-
hold on coaming ladder); Griffith v. Wheeling-Pittsburgh
Steel Corp., 610 F. 2d 116 (CAS 1979) (defective hatch covers),
remanded, 451 U. S. 965, reinstated, 657 F. 2d 25 (CAS 1981),
cert, denied, 456 U. S. 914 (1982); Scalafani v. Moore McCor-
mack Lines, Inc., 388 F. Supp. 897 (EDNY) (no handrail on
platform linking gangway and deck), aff'd without opinion,
535 F. 2d 1243 (CA2 1975). The turnover duty to warn, how-
ever, may extend to certain latent hazards in the cargo stow.
This is so because an improper stow can cause injuries to
longshoremen, see, e. g., Atlantic & Gulf Stevedores, Inc. v.
Ellerman Lines, Ltd., 369 U. S. 355 (1962); Ryan Stevedoring
Co. v. Pan-Atlantic S. S. Corp., 350 U. S. 124 (1956); Clay v.
Lykes Bros. S. S. Co., 525 F. Supp. 306 (ED La. 1981); The
Etna, 43 F. Supp. 303 (ED Pa. 1942), and thus is among the
"hazards on the ship" to which the duty to warn attaches.
Scindia Steam, 451 U. S., at 167.
The precise contours of the duty to warn of latent hazards
in the cargo stow must be defined with due regard to the
concurrent duties of the stevedore and to the statutory
scheme as a whole. It bears repeating that the duty at-
taches only to latent hazards, defined in this context as haz-
ards that would be neither obvious to nor anticipated by a
competent stevedore in the ordinary course of cargo opera-
tions. In addition, the vessel's duty to warn is confined to
latent hazards that "are known to the vessel or should be
100 HOWLETT u BIRKDALE SHIPPING CO.
Opinion of the Court
known to it in the exercise of reasonable care." Ibid. Ab-
sent actual knowledge of a hazard, then, the duty to warn
may attach only if the exercise of reasonable care would
place upon the shipowner an obligation to inspect for, or dis-
cover, the hazard's existence. See Kirsch v. Plovidba, 971
R 2d 1026, 1029 (CAS 1992) ("[T]he shipowner's duty to warn
the stevedore of hidden dangers necessarily implies a duty
to inspect to discover those dangers").
Howlett, relying upon the Restatement (Second) of Torts
§412 (1965), maintains that a vessel's obligations in this re-
gard are broad. Section 412 provides that an owner of land
or chattels who hires an independent contractor must take
reasonable steps to "ascertain whether the land or chattel is
in reasonably safe condition after the contractor's work is
completed." In light of this provision, Howlett argues that
"a shipowner, who has hired an independent contractor ste-
vedore to perform the work of loading cargo aboard its ship,
has a duty to make 'reasonable' (not continuous) inspections"
during and after cargo operations to discover dangerous con-
ditions in the stow. Brief for Petitioner 27.
We decline to adopt Hewlett's proposal. As an initial mat-
ter, we repeat our caveat that the Restatements land-based
principles, "while not irrelevant, do not furnish sure guid-
ance" in maritime cases brought under §5(b). Scindia
Steam, 451 U. S., at 168, n. 14. On a more fundamental level,
Howlett's contention that a vessel must make reasonable in-
spections, both during and after stevedoring operations, to
discover defects in the stow contradicts the principles under-
lying our decision in Scindia Steam. The plaintiff long-
shoreman in Scindia Steam, injured by cargo that fell from
a defective winch, alleged that the shipowner should have
intervened in the stevedoring operations and repaired the
winch before permitting operations to continue. The case
thus turned not upon the turnover duty but upon the scope
of the vessel's duty to intervene once cargo operations have
begun. We held that the duty to intervene, in the event the
Cite as: 512 U. S. 92 (1994) 101
Opinion of the Court
vessel has no knowledge of the hazardous condition, is lim-
ited: "[AJbsent contract provision, positive law, or custom to
the contrary/' a vessel "has no general duty by way of super-
vision or inspection to exercise reasonable care to discover
dangerous conditions that develop within the confines of the
cargo operations that are assigned to the stevedore/' Id.,
at 172.
The rule relieving vessels from this general duty rests
upon "the justifiable expectations of the vessel that the ste-
vedore would perform with reasonable competence and see
to the safety of the cargo operations." Ibid.; see also Hugev
v. Dampskisaktieselskdbet Int'l, 170 R Supp. 601, 609-610
(SD Cal. 1959), affd sub nom. Metropolitan Stevedore Co. v.
Dampskisaktieselskabet Int'l, 274 R 2d 875 (CA9), cert, de-
nied, 363 U. S. 803 (1960). These expectations derive in part
from §41 of the Act, 33 U. S. C. §941, which requires the
stevedore, as the longshoreman's employer, to provide a
"reasonably safe" place to work and to take safeguards nec-
essary to avoid injuries. Scindia Steam, 451 U. S., at 170.
The expectations also derive from indemnity cases decided
prior to the 1972 Act, which teach that "the stevedore [is] in
the best position to avoid accidents during cargo operations"
and that "the shipowner [can] rely on the stevedore's war-
ranty to perform competently." Id., at 171, citing Italia So-
cieta per Azioni di Navigazione v. Oregon Stevedoring Co.,
376 U. S. 315 (1964); see also 451 U. S., at 175 (safety is "a
matter of judgment committed to the stevedore in the first
instance"). The stevedore's obligations in this regard may
not be diminished by transferring them to the vessel.
Given the legal and practical realities of the maritime
trade, we concluded in Scindia Steam that imposing a duty
upon vessels to supervise and inspect cargo operations for
the benefit of longshoremen then on board would undermine
Congress' intent in §5(b) to terminate the vessel's "auto-
matic, faultless responsibility for conditions caused by the
negligence or other defaults of the stevedore," id., at 168,
102 HOWLETT v. BIRKDALE SHIPPING CO.
Opinion of the Court
and to foreclose liability "based on a theory of unseaworthi-
ness or nondelegable duty," id., at 172. Agreeing with the
Court, Justice Powell further observed that imposing such a
duty — in light of the stevedore-employer's right to receive
reimbursement for its payment of statutory compensation if
a longshoreman prevails in a §5(b) action against a vessel,
see Edmonds v. Compagnie Generate Transatlantique, 443
U. S., at 269-270 — would "decrease significantly the incen-
tives toward safety of the party in the best position to pre-
vent injuries." Scindia Steam, supra, at 181 (concurring
opinion); see also Edmonds, supra, at 274 (BLACKMUN, J.,
dissenting). It is also worth noting that an injured long-
shoreman's acceptance of statutory compensation operates as
an assignment to the stevedore-employer of the longshore-
man's right to bring suit against the vessel, so long as the
longshoreman does not sue within six months of accepting
compensation. 33 U. S. C. § 933(b). Were we to have ac-
cepted the longshoreman's contentions in Scindia Steam, we
would have run the risk of promoting the kind of collateral
litigation between stevedores and vessels (albeit in a differ-
ent guise) that had consumed an intolerable amount of litiga-
tion costs prior to the 1972 Amendments. See Gilmore &
Black §6-46, at 411.
The foregoing principles, while taken from Scindia
Steam's examination of the vessel's duty to intervene, bear
as well on the nature of the vessel's turnover duty, and hence
on the case before us. We consider first Howlett's view that
a vessel must make reasonable inspections during stevedor-
ing operations to ensure a proper stow and to detect any
hazards or defects before they become hidden. The benefi-
ciaries of this proposed duty would be longshoremen who
unload or otherwise deal with the cargo at later ports. But
if, as we held in Scindia Steam, a vessel need not supervise
or inspect ongoing cargo operations for the benefit of long-
shoremen then on board, it would make little sense to impose
the same obligation for the benefit of longshoremen at subse-
Cite as: 512 U. S. 92 (1994) 103
Opinion of the Court
quent ports. In practical effect, then, adopting Hewlett's
proposal would impose inconsistent standards upon shipown-
ers as to different sets of longshoremen, and would render
much of our holding in Scindia Steam an empty gesture.
These concerns are mitigated somewhat when a longshore-
man, such as Howlett, works on cargo stowed in a foreign
port and undisturbed by longshoremen in a prior American
port of call. Foreign longshoremen are not covered by the
Act, so requiring vessels to supervise and inspect a foreign
stevedore's ongoing operations would not be inconsistent
with the precise rule laid down in Scindia Steam. This con-
sideration, however, does not support imposing broader du-
ties upon vessels to inspect cargo loading operations in for-
eign ports. It is settled maritime custom and practice that
the stevedore exercises primary control over the details of a
cargo operation, see Oregon Stevedoring, supra, at 322-323,
and we are given no reason to believe that this is any less
true in foreign ports than in domestic ports.
That is not to say, of course, that the vessel and its crew
remain detached from cargo operations altogether. Most
vessels take responsibility, for instance, for preparing a
stowage plan, which governs where each cargo will be
stowed on the ship. See generally C. Sauerbier & R. Meurn,
Marine Cargo Operations 217-239 (2d ed. 1985). But it is
the stevedore, an independent contractor hired for its exper-
tise in the stowage and handling of cargo, that is charged
with actual implementation of the plan. To impose a duty
upon vessels to exercise scrutiny over a cargo loading opera-
tion to discover defects that may become hidden when the
stow is complete would require vessels to inject themselves
into matters beyond their ordinary province. See Williams,
Shipowner Liability for Improperly Stowed Cargo: Federal
Courts at Sea on the Standard of Care Owed to Off-Loading
Longshoremen, 17 Tulane Mar. L. J. 185, 198-199 (1993); con-
tra Turner v. Japan Lines, Ltd., 651 R 2d, at 1304 (vessel
"can ensure safety by choosing a reliable foreign stevedore
104 HOWLETT u BIRKDALE SHIPPING CO.
Opinion of the Court
[and] supervising its work when necessary"). The proposed
rule would undermine Congress' intent in § 5(b) to eliminate
the vessel's nondelegable duty to protect longshoremen from
the negligence of others. See Scindia Steam, 451 U. S., at
168-169.
We next consider Hewlett's view that a vessel must make
reasonable inspections after the completion of stevedoring
operations to discover hazards in the stow. There is good
reason to doubt that adopting this rule would have much
practical import. Any hazard uncovered by a shipowner
who inspects a completed stow would, as a matter of course,
be discovered in a subsequent port by a stevedore "reason-
ably competent in the performance of his work." Id., at 167.
As discussed above, shipowners engage a stevedore for its
expertise in cargo operations and are entitled to assume that
a competent stevedore will be able to identify and cope with
defects in the stow. See id., at 171; Hugev v. Dampskisak-
tieselskabet Int'l, 170 F. Supp., at 609-610. Once loading
operations are complete, it follows that any dangers arising
from an improper stow would be "at least as apparent to the
[stevedore] as to the [shipowner]." Atlantic & Gulf Steve-
dores, Inc. v. Ellerman Lines, Ltd., 369 U. S., at 366 (Stew-
art, J., dissenting). Because there can be no recovery under
§ 5(b) for a vessel's failure to warn of dangers that would be
apparent to a longshoreman of reasonable competence, Scin-
dia Steam, supra, at 167, nothing would be accomplished by
imposing a duty upon vessels to inspect the stow upon com-
pletion of cargo operations. That is reason enough to re-
ject it.
For the purposes of delineating the scope of a shipowner's
turnover duty, then, the cargo stow is separate and distinct
from other aspects of the ship. When between ports, the
vessel and its crew have direct access to (and control over)
the ship itself and its gear, equipment, and tools. The ves-
sel's responsibilities to inspect these areas of the ship are
commensurate with its access and control, bearing in mind,
Cite as: 512 U. S. 92 (1994) 105
Opinion of the Court
of course, that negligence, rather than unseaworthiness, is
the controlling standard where longshoremen are concerned.
Because the vessel does not exercise the same degree of op-
erational control over, and does not have the same access to,
the cargo stow, its duties with respect to the stow are limited
by comparison. See Robertson v. Tokai Shosen K. K., 655
P. Supp. 152, 154 (ED Pa.), aff'd, 835 R 2d 490 (CAS 1987),
cert, denied, 486 U. S. 1007 (1988).
In sum, the vessel's turnover duty to warn of latent defects
in the cargo stow and cargo area is a narrow one. The duty
attaches only to latent hazards, defined as hazards that are
not known to the stevedore and that would be neither obvi-
ous to nor anticipated by a skilled stevedore in the competent
performance of its work. Scindia Steam, 451 U. S., at 167.
Furthermore, the duty encompasses only those hazards that
"are known to the vessel or should be known to it in the
exercise of reasonable care." Ibid. Contrary to Hewlett's
submission, however, the exercise of reasonable care does
not require the shipowner to supervise the ongoing opera-
tions of the loading stevedore (or other stevedores who han-
dle the cargo before its arrival in port) or to inspect the
completed stow.
Ill
We turn to the proper disposition of this case. As the
Court of Appeals did not issue an opinion, we have before us
only the District Court's statement of its reasons for grant-
ing summary judgment in favor of Birkdale. The vessel
having been under no obligation to supervise and inspect the
cargo loading operations, and no other theory for charging
the vessel with constructive knowledge having been ad-
vanced, the District Court was correct to inquire whether
the vessel had actual knowledge of the tween deck's condi-
tion. The District Court found it undisputed that there was
no actual knowledge. At this stage of the proceedings, how-
ever, we cannot conclude that summary judgment can rest
on this ground. There is sufficient evidence in the record
106 HOWLETT v. BIRKDALE SHIPPING CO.
Opinion of the Court
to support a permissible inference that, during the loading
process, some crew members, who might have held positions
such that their knowledge should be attributed to the vessel,
did in fact observe the plastic on the tween deck. And the
District Court's alternative theory that even if some crew
members were aware of the condition during loading opera-
tions, then the condition also would have been open and obvi-
ous to a stevedore during unloading operations, may prove
faulty as well, being premised on the state of affairs when
the vessel took on cargo, not during discharge at the port
where Howlett was injured.
All this does not mean that the vessel is not entitled to
summary judgment. Hewlett's own witnesses stated that
the plastic was visible, even from the top deck, during un-
loading operations. Howlett must overcome these submis-
sions, for even assuming the vessel had knowledge of the
tween deck's condition, he must farther demonstrate that the
alleged hazard would have been neither obvious to nor antici-
pated by a skilled and competent stevedore at the discharge
port. This contention, however, was not addressed by the
District Court and was not explored in detail here. We
think it the better course to remand the case to the Court of
Appeals so that it, or the District Court, can address in the
first instance these and other relevant points upon a review
of the entire record made in support of the vessel's motion
for summary judgment.
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.
OCTOBER TERM, 1993 107
Syllabus
LIVADAS v. BRADSHAW, CALIFORNIA LABOR
COMMISSIONER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 92-1920. Argued April 26, 1994— Decided June 13, 1994
California law requires employers to pay all wages due immediately upon
an employee's discharge, Labor Code §201; imposes a penalty for refusal
to pay promptly, § 203; and places responsibility for enforcing these pro-
visions on the Commissioner of Labor. After petitioner Livadas's em-
ployer refused to pay her the wages owed upon her discharge, but paid
them a few days later, she filed a penalty daim. The Commissioner
replied with a form letter construing Labor Code §229 as barring him
from enforcing such claims on behalf of individuals like Livadas, whose
employment terms and conditions are governed by a collective-
bargaining agreement containing an arbitration clause. Livadas
brought this action under 42 U. S. C. § 1983, alleging that the nonen-
forcement policy was pre-empted by federal law because it abridged
her rights under the National Labor Relations Act (NLRA). The Dis-
trict Court granted her summary judgment, rejecting the Commission-
er's defense that the claim was pre-empted by §301 of the Labor-
Management Relations Act, 1947 (LMRA). Although acknowledging
that the NLRA gives Livadas a right to bargain collectively and that
§ 1983 would supply a remedy for official deprivation of that right, the
Court of Appeals reversed, concluding that no federal right had been
infringed because Livadas's case reduced to an assertion that the Com-
missioner had misinterpreted state law, namely § 229.
Held:
1. The Commissioner's policy is pre-empted by federal law.
Pp. 116-132.
(a) This case is fundamentally no different from Nash v. Florida
Industrial Comm'n, 389 U. S. 235, 239, in which the Court held that a
state rule predicating benefits on refraining from conduct protected by
federal labor law was pre-empted because it interfered with congres-
sional purpose. The Commissioner's policy, which requires Livadas to
choose between Labor Code and NLRA rights, cannot be reconciled
with a federal statutory scheme premised on the centrality of collective
bargaining and the desirability of arbitration. Pp. 116-118.
(b) The Commissioner's answers to the foregoing conclusion flow
from two significant misunderstandings of law. First, the assertion
that the nonenf orcement policy must be valid because § 229 is consistent
108 LIVADAS u BRADSHAW
Syllabus
with federal law is premised on irrelevant relationships and leads to the
wrong question: Pre-emption analysis turns on the policy's actual con-
tent and its real effect on federal rights, not on whether § 229 is valid
under the Federal Constitution or whether the policy is, as a matter of
state law, a proper interpretation of §229. Second, the argument that
a "rational basis" supports the distinction the policy draws between em-
ployees represented by unions and those who are not mistakes a validity
standard under the Equal Protection and Due Process Clauses for what
the Supremacy Clause requires: a determination whether the state rule
conflicts with the federal law. Pp. 118-121.
(c) This Court's decisions according pre-emptive effect to LMEA
§ 301 foreclose even a colorable argument that a claim under Labor Code
§203 was pre-empted here, since they establish that the section does
not broadly pre-empt nonnegotiable employee rights conferred by state
law; that it is a claim's legal character, as independent of rights under
the collective-bargaining agreement, that decides whether a state cause
of action may go forward; and that when liability is governed by inde-
pendent state law and the meaning of contract terms is not in dispute,
the bare fact that a collective-bargaining agreement is consulted for
damage computation is no reason to extinguish the state-law claim.
See, e. g., Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, and Lingle v.
Norge Div. of Magic Chef, Inc., 486 U. S. 399. Here, the primary text
for deciding whether Livadas was entitled to a penalty was not the
collective-bargaining agreement, but a calendar. The only issue raised
by her daim, whether her employer willfully failed to pay her wages
promptly upon severance, was a question of state law entirely independ-
ent of the agreement. Absent any indication that there was a dispute
over the penalty amount, the simple need to refer to bargained-for wage
rates in computing the penalty is irrelevant. Pp. 121-125.
(d) The Commissioner's attempt before this Court to recast the
nonenforcement policy as expressing a "conscious decision" to keep the
State's "hands off" the claims of employees protected by collective-
bargaining agreements, either because the Commissioner's efforts and
resources are more urgently needed by others or because official re-
straint will actually encourage the collective-bargaining and arbitral
processes favored by federal law, is rejected. If the policy were in fact
animated by the first of these late-blooming rationales, the Commission-
er's emphasis on the need to avoid "interpreting]" or "applying]"
collective-bargaining agreements would be entirely misplaced. Nor is
the second asserted rationale convincing, since enforcement under the
policy does not turn on the bargain struck by the contracting parties or
on whether the contractual wage rate is even arbitrable, but simply on
the fact that the parties have consented to arbitration. The suggestion
that the policy is meant to stimulate freewheeling* bargaining over
Cite as: 512 U. S. 107 (1994) 109
Syllabus
wage payments to discharged workers contradicts Labor Code §219,
which expressly and categorically prohibits the modification of rules
under the Code by "private agreement." Even at face value, however,
the "hands off" label poses special dangers that advantages conferred
by federal law will be canceled out and its objectives undermined, and
those dangers are not laid to rest by professions of the need for govern-
mental neutrality in labor disputes. Similarly, the vague assertions
that the policy advances federal interests are not persuasive, since this
Court has never suggested that the federal bias toward bargaining is to
be served by forcing employees and employers to bargain for what they
would otherwise be entitled to under state law. Fort Halifax Packing
Co. v. Coyne, 482 U. S. 1, and the federal and state "opt-out" laws cited
by the Commissioner, distinguished. Pp. 126-132.
2. Livadas is entitled to seek relief under § 1983 for the Commis-
sioner's abridgment of her NLRA right to complete the collective-
bargaining process and agree to an arbitration clause. That right is at
least immanent in the NLR A's structure, if it is not provided in so many
words by the statutory text, and the obligation to respect it on the part
of those acting under color of law is not vague or amorphous. More-
over, Congress has given no indication of any intent to foreclose actions
like Livadas's, and there is no cause for special caution here. See
Golden State Transit Corp v. Los Angeles, 493 U.S. 103, 108-112.
Pp. 132-135.
987 R 2d 552, reversed.
SOUTER, J., delivered the opinion for a unanimous Court.
Richard G. McCracken argued the cause for petitioner.
With him on the briefs was Michael T. Anderson.
Malcolm L. Stewart argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Solicitor General Days, Deputy Solicitor Gen-
eral Wallace, Amy L. Wax, Linda Sher, and Norton J. Come.
H. Thomas Cadell, Jr., argued the cause and filed a brief
for respondent.*
*Briefs of amid curiae urging reversal were filed for the Allied Educa-
tional Foundation by Bertram R. Gelfand and Jeffrey C. Dannenberg; and
for the American Federation of Labor and Congress of Industrial Orga-
nizations by Mark Schneider, Marsha S. Berzon, Laurence Gold, and
Walter Kamiat.
Briefs of amici curiae urging affirmance were filed for the Chamber
of Commerce of the United States et al. bv Marshall B Babson. Stanley
110 LIVADAS v. BRADSHAW
Opinion of the Court
JUSTICE SOUTER delivered the opinion of the Court.
California law requires employers to pay all wages due
immediately upon an employee's discharge, imposes a pen-
alty for refusal to pay promptly, precludes any private con-
tractual waiver of these minimum labor standards, and
places responsibility for enforcing these provisions on the
State Commissioner of Labor (Commissioner or Labor Com-
missioner), ostensibly for the benefit of all employees. Re-
spondent, the Labor Commissioner,1 has construed a further
provision of state law as barring enforcement of these wage
and penalty claims on behalf of individuals like petitioner,
whose terms and conditions of employment are governed by
a collective-bargaining agreement containing an arbitration
clause. We hold that federal law pre-empts this policy, as
abridging the exercise of such employees' rights under the
National Labor Relations Act (NLRA or Act), 29 U. S. C.
§151 et seq., and that redress for this unlawful refusal to
enforce may be had under 42 U. S. C. § 1983.
Until her discharge on January 2, 1990, petitioner Karen
Livadas worked as a grocery clerk in a Vallejo, California,
Safeway supermarket. The terms and conditions of her em-
ployment were subject to a collective-bargaining agreement
between Safeway and Livadas's union, Local 373 of the
United Food and Commercial Workers, AFL-CIO. Unexcep-
tionally, the agreement provided that "[disputes as to the
interpretation or application of the agreement/' including
grievances arising from allegedly unjust discharge or sus-
pension, would be subject to binding arbitration. See Food
R. Strauss, Stephen A Bokat, Mono, C Zeiberg, Jan Amundson, and
Quentin Riegel; and for the Employers Group et al. by Steven G. Drapkin.
1 Respondent Bradshaw has succeeded Lloyd Aubry, the original named
defendant in this action, as Labor Commissioner and has been substituted
as a party before this Court. See this Court's Rule 35.3.
Cite as: 512 U. S. 107 (1994) 111
Opinion of the Court
Store Contract, United Food & Commercial Workers Union,
Local 373, AFL-CIO, Solano and Napa Counties §§ 18.2, 18.3
(Mar. 1, 1989-Feb. 29, 1992) (Food Store Contract).2 When
notified of her discharge, Livadas demanded immediate pay-
ment of wages owed her, as guaranteed to all California
workers by state law, see Cal. Lab. Code Ann. §201 (West
1989),3 but her store manager refused, referring to the com-
pany practice of making such payments by check mailed from
a central corporate payroll office. On January 5, 1990, Liva-
das received a check from Safeway, in the fall amount owed
for her work through January 2.
On January 9, 1990, Livadas filed a claim against Safeway
with the California Division of Labor Standards Enforce-
ment (DLSE or Division), asserting that under §203 of the
Labor Code the company was liable to her for a sum equal
to three days7 wages, as a penalty for the delay between
discharge and the date when payment was in fact re-
18.1 of the collective-bargaining agreement defines a "griev-
ance" as a "dispute . . . involving or arising out of the meaning, interpreta-
tion, application or alleged violation" of the agreement.
Section 18.8 provides that "[i]n the case of a direct wage claim . . .
which does not involve an interpretation of any of the provisions of this
Agreement, either party may submit such claim for settlement to either
the grievance procedure provided for herein or to any other tribunal or
agency which is authorized and empowered to effect such a settlement."
3 California Labor Code § 201 provides in pertinent part: "If an employer
discharges an employee, the wages earned and unpaid at the time of dis-
charge are due and payable immediately." It draws no distinction be-
tween union-represented employees and others.
Under another provision of California law, Labor Code §219, the protec-
tions of § 201 (and of other rules governing the frequency and form of
wage payments) "can [not] in any way be contravened or set aside by
private agreement, whether written, oral, or implied," although employers
are free to pay wages more frequently, in greater amounts, or at an earlier
date than ordained by these state rules; cf §204.2 (executive, administra-
tive, and professional employees may negotiate through collective bargain-
ing for pay periods different from those required by state law).
112 LIVADAS v. BRADSHAW
Opinion of the Court
ceived.4 Livadas requested the Commissioner to enforce
the claim.5
By an apparently standard form letter dated February 7,
1990, the Division notified Livadas that it would take no
action on her complaint:
"It is our understanding that the employees work-
ing for Safeway are covered by a collective bargaining
agreement which contains an arbitration clause. The
provisions of Labor Code Section 229 preclude this Divi-
sion from adjudicating any dispute concerning the inter-
pretation or application of any collective bargaining
agreement containing an arbitration clause.
"Labor Code Section 203 requires that the wages con-
tinue at the 'same rate' until paid. In order to establish
what the 'same rate' was, it is necessary to look to the
4 That section provides that when an employer "willfully fails" to comply
with the strictures of §201 and fails to pay "any wages" owed discharged
employees, "the wages of such employees shall continue as a penalty from
the due date thereof at the same rate until paid or until an action therefor
is commenced; but such wages shall not continue for more than 30 days."
CaL Lab. Code Ann. §203 (West 1989).
In her DLSE claim form, Livadas made plain that she did not dispute
Safeway's calculation of the wages owed, but sought only the penalty for
the employer's late tender. App. 18.
5 Under state law, the Commissioner of Labor is the Division Chief of
the DLSE, see Cal. Lab. Code Ann. §§ 79, 82(b) (West 1989), and is author-
ized either directly to prosecute a wage or penalty claim on an employee's
behalf in state court, §98.3(a), or, in the alternative, to initiate informal
hearings under DLSE auspices, see § 98(a), in which fiill relief may be
awarded, § 98.1. The Commissioner's policy with respect to claims by em-
ployees covered by collective-bargaining agreements appears not to distin-
guish between these two modes of proceeding, and, accordingly, we will
refer, as the parties largely do, to her policy as a categorical refusal to
"enforce" such claims. Although Labor Code §218 states that "[n]othing
in this article shall limit the right of any wage claimant to sue . . . for any
wages or penalty due him," another provision, §218.5, authorizes attor-
ney's fee awards to prevailing parties in wage and penalty disputes, mak-
ing individual litigation a somewhat risky prospect, and DLSE enforce-
ment remains in any event the more realistic avenue for modest claims.
Cite as: 512 U. S. 107 (1994) 113
Opinion of the Court
collective bargaining agreement and 'apply* that agree-
ment. The courts have pointed out that such an appli-
cation is exactly what the provisions of Labor Code §229
prohibit."6 App. 16.
The letter made no reference to any particular aspect of
Livadas's claim making it unfit for enforcement, and the
Commissioner's position is fairly taken to be that DLSE en-
forcement of §203 claims, as well as other claims for which
relief is pegged to an employee's wage rate, is generally
unavailable to employees covered by collective-bargaining
agreements.7
Livadas brought this action in the United States District
Court under Rev. Stat. § 1979, 42 U. S. C. § 1983, alleging that
the nonenforcement policy, reflecting the Commissioner's
reading of Labor Code § 229, was pre-empted as conflicting
with Livadas's rights under §7 of the NLRA, 49 Stat. 452,
as amended, 29 U. S. C. § 157, because the policy placed a
6 Labor Code § 229 provides: "Actions to enforce the provisions of this
article [Labor Code §§200-243] for the collection of due and unpaid wages
claimed by an individual may be maintained without regard to the exist-
ence of any private agreement to arbitrate. This section shall not apply
to claims involving any dispute concerning the interpretation or appli-
cation of any collective bargaining agreement containing such an arbitra-
tion agreement." Cf Perry v. Thomas, 482 U. S. 483 (1987) (§229 bar to
waiver defeated by Federal Arbitration Act policy).
All concerned identify the allusion to what "courts" have said to be a
reference to a 1975 decision of the California Court of Appeal, Plumbing,
Heating and Piping Employers Council v. Howard, 53 Cal. App. 3d 828,
126 Cal. Rptr. 406, where the Commissioner was held barred by the stat-
ute from enforcing an "unpaid" wage claim arising from an employee's
assertion that he was entitled, under collective-bargaining agreements
then in force, to receive a foreman's rate of pay and not a journeyman's.
7 The Commissioner notes that a small minority of collective-bargaining
agreements lack provisions either setting wage rates or mandating arbi-
tration (and therefore might potentially be enforced under the challenged
policy). But see n. 13, infra; Lingle v. Norge Div. of Magic Chef, Inc.,
486 U. S. 399, 411, n. 11 (1988) (noting that 99% of sampled collective-
bargaining agreements include arbitration clauses).
114 LIVADAS v. BRADSHAW
Opinion of the Court
penalty on the exercise of her statutory right to bargain col-
lectively with her employer. She stressed that there was
no dispute about the amount owed and that neither she nor
Safeway had begun any grievance proceeding over the pen-
alty.8 Livadas sought a declaration that the Commissioner's
interpretation of § 229 was pre-empted, an injunction against
adherence to the allegedly impermissible policy, and an order
requiring the Commissioner either to process her penalty
claim or (if it would be time barred under state law) pay
her damages in the amount the Commissioner would have
obtained if the Commissioner had moved against the em-
ployer in time.
The District Court granted summary judgment for Liva-
das, holding the labor pre-emption claim cognizable under
§ 1983, see Golden State Transit Corp. v. Los Angeles, 493
U. S. 103 (1989) (Golden State II), and the Commissioner's
policy pre-empted as interfering with her § 7 right, see, e. g.,
Golden State Transit Corp. v. Los Angeles, 475 U. S. 608
(1986) (Golden State I), by denying her the benefit of a mini-
mum labor standard, namely, the right to timely payment of
final wages secured by Labor Code §§201 and 203. 749
F. Supp. 1526 (ND Cal. 1990). The District Court treated
as irrelevant the Commissioner's assertion that the policy
was consistent with state law (e. g., Labor Code § 229) and
rejected the defense that it was required by federal law,
namely, § 301 of the Labor-Management Relations Act, 1947
(LMRA), 61 Stat. 156, 29 U. S. C. §185(a), which has been
read to pre-empt state-court resolution of disputes turning
on the rights of parties under collective-bargaining agree-
8 Livadas did file a grievance daiming that the discharge had been im-
proper under the collective-bargaining agreement, ultimately obtaining
reinstatement with backpay. While the parties dispute what effect, as a
matter of state law, that recovery would have on Livadas's right under
§203, neither the pertinent California statutes nor the Commissioner's
policy at issue here depend on whether a claimant's termination was for
just cause.
Cite as: 512 U. S. 107 (1994) 115
Opinion of the Court
ments. The District Court explained that resolution of the
claim under §203 "requires reference only to a calendar, not
to the [collective-bargaining agreement]/' 749 R Supp.,
at 1536, and granted petitioner all requested relief. Id., at
1540.9
A divided panel of the Court of Appeals for the Ninth Cir-
cuit reversed. 987 P. 2d 552 (1993). The court acknowl-
edged that federal law gives Livadas a right to engage in
collective bargaining and that § 1983 would supply a remedy
for official deprivation of that right, but the panel majority
concluded that no federal right had been infringed. The
court reasoned that the policy was based on the Commission-
er's reading of Labor Code § 229, whose function of keeping
state tribunals from adjudicating claims in a way that would
interfere with the operation of federal labor policy is, by
definition, consistent with the dictates of federal law. Not-
ing that Livadas did not assert pre-emption of § 229 itself or
object to the California courts' interpretation of it, the ma-
jority concluded that her case reduced to an assertion that
the Commissioner had misinterpreted state law, an error for
which relief could be obtained in California courts.
Livadas could not claim to be "penalized," the Appeals
panel then observed, for she stood "in the same position as
every other employee in the state when it comes to seeking
the Commissioner's enforcement. Every employee ... is
subject to an eligibility determination, and every employee
... is subject to the risk that the Commissioner will get
it wrong." 987 R 2d, at 559. The Ninth Circuit majority
concluded by invoking the "general policies of federal labor
law" strongly favoring the arbitration of disputes and rea-
soning that, "Congress would not want state officials erring
9 In the Court of Appeals, Livadas acknowledged that the portion of the
District Court's order awarding monetary relief against the Commissioner
in her official capacity was likely barred by the Eleventh Amendment, see
Brief for Petitioner 43, n. 20. This and other issues arising from the scope
of the remedy are better left for the courts below on remand.
116 LIVADAS u BRADSHAW
Opinion of the Court
on the side of adjudicating state law disputes whenever it is
a close call as to whether a claim is preempted." Id., at
560.10 We granted certiorari, 510 U. S. 1083 (1994), to ad-
dress the important questions of federal labor law implicated
by the Commissioner's policy, and we now reverse.
II
A
A state rule predicating benefits on refraining from con-
duct protected by federal labor law poses special dangers of
interference with congressional purpose. In Nash v. Flor-
ida Industrial Comm'n, 389 U. S. 235 (1967), a unanimous
Court held that a state policy of withholding unemployment
benefits solely because an employee had filed an unfair labor
practice charge with the National Labor Relations Board
had a "direct tendency to frustrate the purpose of Congress"
and, if not pre-empted, would "defeat or handicap a valid
national objective by ... withdrawing] state benefits . . .
simply because" an employee engages in conduct protected
10 In dissent, Judge Kozinski countered that by focusing on whether Li-
vadas was entitled to a correct application of state law, the majority had
explored the wrong question. The proper enquiry, the dissent main-
tained, was not whether the Commissioner has discretion under state law
not to enforce wage and penalty claims (which she plainly does) or whether
she need enforce claims if doing so would actually be pre-empted by
federal law (she plainly need not), but whether she may draw the line
for enforcement purposes between individuals covered by collective-
bargaining agreements containing arbitration clauses (whose claims will
sometimes but not always be pre-empted under §301) and those not so
covered. Underscoring that Livadas's claim would not, in fact, have been
pre-empted had the federal rule been given its proper scope, the dissent
found wanting the majority's "quasi-pre-emption" rationale, 987 R 2d, at
562. Judge Kozinski concluded that the Commissioner's policy, based on
an "honest (though flagrant) mistake of law," id., at 563, could not be
squared with the requirements of federal labor law, because the burdened
class was defined by the exercise of federal rights and because the burden
on collective-bargaining rights, justified only by a mistaken understanding
of what § 301 requires, served no "legitimate state purpose" at all. Ibid.
Cite as: 512 U. S. 107 (1994) 117
Opinion of the Court
and encouraged by the NLRA. Id., at 239; see also Golden
State /, supra, at 618 (city may not condition franchise re-
newal on settlement of labor dispute). This case is funda-
mentally no different from Nash.11 Just as the respondent
state commission in that case offered an employee the choice
of pursuing her unfair labor practice claim or receiving un-
employment compensation, the Commissioner has presented
Livadas and others like her with the choice of having state-
law rights under §§201 and 203 enforced or exercising the
right to enter into a collective-bargaining agreement with an
arbitration clause. This unappetizing choice, we conclude,
was not intended by Congress, see infra, at 130, and cannot
ultimately be reconciled with a statutory scheme premised
on the centrality of the right to bargain collectively and the
desirability of resolving contract disputes through arbitra-
11 While the NLRA does not expressly recognize a right to be covered
by a collective-bargaining agreement, in that no duty is imposed on an
employer actually to reach agreement with represented employees, see 29
U. S. C. § 158(d), a State's penalty on those who complete the collective-
bargaining process works an interference with the operation of the Act,
much as does a penalty on those who participate in the process. Cf. Hill
v. Florida ex rel Watson, 325 U. S. 538 (1945) (State may not enforce
licensing requirement on collective-bargaining agents).
We understand the difference between the position of petitioner (who
would place this case within our "Machinists" line of labor pre-emption
cases, see Machinists v. Wisconsin Employment Relations Comm'n, 427
U. S. 132 (1976)) and that of her amicus, the Solicitor General (who de-
scribes it as a case of "conflict" pre-emption, see Brief for United States
as Amicus Curiae 14-15, and n. 4) to be entirely semantic, depending on
whether Livadas's right is characterized as implicit in the structure of the
Act (as was the right to self-help upheld in Machinists) or as rooted in the
text of §7. See generally Golden State //, 493 U. S. 103, 110-112 (1989)
(emphasizing fundamental similarity between enumerated NLRA rights
and "Machinists" rights). Neither party here argues for application of
the rule of San Diego Building Trades Council v. Garmon, 359 U. S. 236
(1959), which safeguards the primary jurisdiction of the National Labor
Relations Board to pass judgment on certain conduct, such as labor picket-
ing, which might be held protected by § 7 of the Act but which might also
be prohibited by §8 of the Act.
118 LIVADAS v. BRADSHAW
Opinion of the Court
tion. Cf. Metropolitan Life Ins. Co. v. Massachusetts, 471
U. S. 724, 755 (1985) (state law held not pre-empted because
it "neither encourage[s] nor discourage[s] the collective-
bargaining processes")-12
B
1
The Commissioner's answers to this pre-emption conclu-
sion flow from two significant misunderstandings of law.
First, the Commissioner conflates the policy that Livadas
challenges with the state law on which it purports to rest,
Labor Code § 229, assuming that if the statutory provision
is consistent with federal law, her policy must be also. But
^Despite certain similarities, the question whether federal labor law
permits a State to grant or withhold unemployment insurance benefits
from striking workers requires consideration of the policies underlying a
distinct federal statute, Title IX of the Social Security Act, see 26 U. S. CX
§3301 (1988 ed. and Supp. IV); 42 U. S. C. §501 et seq.; 42 U. S. C. § 1101
et seq. Thus, straightforward NLRA pre-emption analysis has been held
inappropriate. See New York Telephone Co. v. New York State Dept. of
Labor, 440 U. S. 519, 536-540 (1979) (plurality opinion); see also id., at 549
(BLACKMUN, J., concurring in judgment).
Noting that Nash v. Florida Industrial Comm'n, 389 U. S. 235 (1967),
held state action pre-empted that was "like the coercive actions which
employers and unions are forbidden to engage in," see id., at 239, it is
argued here, see Brief for Employers Group as Amicus Curiae 7-12, that
the NLRA prohibits only state action closely analogous to conduct that
would support an unfair labor practice charge if engaged in by a private
employer. Our cases, however, teach that parallelism is not dispositive
and that the Act sometimes demands a more scrupulous evenhandedness
from the States. See generally Wisconsin Dept. of Industry v. Gould,
Inc., 475 U. S. 282, 290 (1986) (State may not debar employers with mul-
tiple NLRA violations from government contracting); compare Golden
State I, 475 U. S. 608 (1986), with NLRB v. Servette, Inc., 377 U. S. 46,
49-54 (1964) (private actor may refuse to deal with employer based on
impending strike); but cf Building & Constr. Trades Council v. Asso-
ciated Builders & Contractors of Mass. /R. L, Inc., 507 U.S. 218, 227-
228 (1993) (the Act does not always preclude a State, functioning as an
employer or a purchaser of labor services, from behaving as a private
employer would be entitled to do).
Cite as: 512 U. S. 107 (1994) 119
Opinion of the Court
on this logic, a policy of issuing general search warrants
would be justified if it were adopted to implement a state
statute codifying word-for-word the "good-faith" exception
to the valid warrant requirement recognized in United
States v. Leon, 468 U. S. 897 (1984). The relationship be-
tween policy and state statute and between the statute and
federal law is, in any event, irrelevant. The question pre-
sented by this case is not whether Labor Code § 229 is valid
under the Federal Constitution or whether the Commission-
er's policy is, as a matter of state law, a proper interpreta-
tion of § 229. Pre-emption analysis, rather, turns on the ac-
tual content of respondent's policy and its real effect on fed-
eral rights. See Nash v. Florida Industrial Common, 389
U. S. 235 (1967) (holding pre-empted an administrative policy
interpreting presumably valid state unemployment insur-
ance law exception for "labor disputes" to include proceed-
ings under NLRB complaints); see also 987 R 2d, at 561
(Kozinski, J., dissenting).13
Having sought to lead us to the wrong question, the Com-
missioner proposes the wrong approach for answering it, de-
fending the distinction drawn in the challenged statutory in-
terpretation, between employees represented by unions and
those who are not, as supported by a "rational basis," see,
18 See also Rum Creek Coal Sales, Inc. v. Caperton, 971 F. 2d 1148,
1154 (CA4 1992) (State may not, consistently with the NLRA, withhold
protections of state antitrespass law from employer involved in labor dis-
pute, in an effort to apply a facially valid "neutrality statute"). Thus,
while the "misinterpretation of a perfectly valid state statute . . . does not
[in itself] provide grounds for federal relief," 987 F. 2d, at 559, it does not
follow that no federal relief may be had when such misinterpretation re-
sults in conflict with federal law. Nor does the opportunity to seek re-
dress in a nonfederal forum determine the existence of a federal right, see
ibid. See, e. g., Monroe v. Pape, 365 U. S. 167, 183 (1961). Of course, the
extent to which a course of conduct has deviated from "clearly established"
federal law remains crucial to deciding whether an official will be entitled
to immunity from individual damage liability, see, e. g.9 Davis v. Scherer,
468 U. S. 183, 197 (1984).
120 LIVADAS u BRADSHAW
Opinion of the Court
e. g., Brief for Respondent 17. But such reasoning mistakes
a standard for validity under the Equal Protection and Due
Process Clauses for what the Supremacy Clause requires.
The power to tax is no less the power to destroy, McCulloch
v. Maryland, 4 Wheat. 316 (1819), merely because a state
legislature has an undoubtedly rational and "legitimate" in-
terest in raising revenue. In labor pre-emption cases, as in
others under the Supremacy Clause, our office is not to pass
judgment on the reasonableness of state policy, see, e. g.9
Golden State I, 475 U. S. 608 (1986) (city's desire to remain
"neutral" in labor dispute does not determine pre-emption).
It is instead to decide if a state rule conflicts with or other-
wise "stands as an obstacle to the accomplishment and execu-
tion of the full purposes and objectives" of the federal law.
Brown v. Hotel Employees, 468 U. S. 491, 501 (1984) (internal
quotation marks and citation omitted).14
That is not to say, of course, that the several rationales for
the policy urged on the Court by the Commissioner and
amid are beside the point here. If, most obviously, the
Commissioner's policy were actually compelled by federal
law, as she argues it is, we could hardly say that it was,
simultaneously, pre-empted; at the least, our task would then
be one of harmonizing statutory law. But we entertain this
and other justifications claimed, not because constitutional
analysis under the Supremacy Clause is an open-ended bal-
ancing act, simply weighing the federal interest against the
intensity of local feeling, see id., at 503, but because claims of
justification can sometimes help us to discern congressional
purpose, the "ultimate touchstone" of our enquiry. Malone
14 Similarly, because our analysis here turns not on the "rationality" of
the governmental classification, but rather on its effect on federal objec-
tives, the Commissioner's policy is not saved merely because it happens,
at the margins, to be "under-" and "over-inclusive," i. e., burdening certain
employees who are not protected by the NLRA and allowing employees
covered by highly unusual collective-bargaining agreements the benefit of
enforcement of §§201 and 203 claims.
Cite as: 512 U. S. 107 (1994) 121
Opinion of the Court
v. White Motor Corp., 435 U. S. 497, 504 (1978) (internal
quotation marks and citation omitted); see also New York
Telephone Co. v. New York State Dept. of Labor, 440 U. S.
519, 533 (1979) (plurality opinion).
We begin with the most complete of the defenses mounted
by the Commissioner, one that seems (or seemed until re-
cently, at least) to be at the heart of her position: that the
challenged policy, far from being pre-empted by federal law,
is positively compelled by it, and that even if the Commis-
sioner had been so inclined, the LMRA §301 would have pre-
cluded enforcement of Livadas's penalty claim. The non-
enforcement policy, she suggests, is a necessary emanation
from this Court's §301 pre-emption jurisprudence, marked
as it has been by repeated admonitions that courts should
steer clear of collective-bargaining disputes between par-
ties who have provided for arbitration. See, e.g., Allis-
Chalmers Corp. v. Lueck, 471 U. S. 202 (1985). Because, this
argument runs (and Livadas was told in the DLSE no-action
letter), disposition of a union-represented employee's pen-
alty claim entails the "interpretation or application" of
a collective-bargaining agreement (since determining the
amount owed turns on the contractual rate of pay agreed)
resort to a state tribunal would lead it into territory that
Congress, in enacting § 301, meant to be covered exclusively
by arbitrators.
This reasoning, however, mistakes both the functions §301
serves in our national labor law and our prior decisions ac-
cording that provision pre-emptive effect. To be sure, we
have read the text of § 301 15 not only to grant federal courts
jurisdiction over claims asserting breach of collective-
16 Section 301 states that "[s]uits for violation of contracts between an
employer and a labor organization representing employees . . . may be
brought in any district court of the United States having jurisdiction of
the parties " 29 U. S. C. § 185(a).
122 LIVADAS v. BRADSHAW
Opinion of the Court
bargaining agreements but also to authorize the develop-
ment of federal common-law rules of decision, in large part
to assure that agreements to arbitrate grievances would be
enforced, regardless of the vagaries of state law and linger-
ing hostility toward extrajudicial dispute resolution, see Tex-
tile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 455-456
(1957); see also Steelworkers v. Warrior & GulfNav. Co., 363
U. S. 574 (1960); Avco Corp. v. Machinists, 390 U. S. 557, 559
(1968) ("§301 . . . was fashioned by Congress to place sanc-
tions behind agreements to arbitrate grievance disputes").
And in Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962), we
recognized an important corollary to the Lincoln Mills rule:
while § 301 does not preclude state courts from taking juris-
diction over cases arising from disputes over the interpreta-
tion of collective-bargaining agreements, state contract law
must yield to the developing federal common law, lest com-
mon terms in bargaining agreements be given different and
potentially inconsistent interpretations in different jurisdic-
tions. See 369 U. S., at 103-104.16
And while this sensible "acorn" of § 301 pre-emption recog-
nized in Lucas Flour has sprouted modestly in more recent
decisions of this Court, see, e. g.9 Lueck, supra, at 210 ("[I]f
the policies that animate §301 are to be given their proper
range . . . the pre-emptive effect of § 301 must extend beyond
suits alleging contract violations"), it has not yet become,
nor may it, a sufficiently "mighty oak," see Golden State /,
475 U. S., at 622 (REHNQUIST, J., dissenting), to supply the
cover the Commissioner seeks here. To the contrary, the
pre-emption rule has been applied only to assure that the
16 Within its proper sphere, §301 has been accorded unusual pre-emptive
power. In Avco Corp. v. Machinists, 390 U. S. 557 (1968), for example, we
recognized that an action for breach of a collective-bargaining agreement
"ar[ose] under" §301 (and therefore was subject to federal removal, see 28
U. S. C. § 1441 (1988 ed. and Supp. IV)), despite the fact that the petition-
er's complaint did not mention the federal provision and appeared to plead
an adequate claim for relief under state contract law.
Cite as: 512 U. S. 107 (1994) 123
Opinion of the Court
purposes animating §301 will be frustrated neither by state
laws purporting to determine "questions relating to what the
parties to a labor agreement agreed, and what legal conse-
quences were intended to flow from breaches of that agree-
ment/' Lueck, 471 U. S., at 211, nor by parties' efforts to
renege on their arbitration promises by "relabeling" as tort
suits actions simply alleging breaches of duties assumed in
collective-bargaining agreements, id.9 at 219; see Republic
Steel Corp. v. Maddox, 379 U. S. 650, 652 (1965) ("[F]ederal
labor policy requires that individual employees wishing to
assert contract grievances must attempt use of the contract
grievance procedure agreed upon by employer and union as
the mode of redress") (emphasis deleted).
In Lueck and in Lingle v. Norge Div. of Magic Chef, Inc.,
486 U. S. 399 (1988), we underscored the point that §301 can-
not be read broadly to pre-empt nonnegotiable rights con-
ferred on individual employees as a matter of state law,17
and we stressed that it is the legal character of a claim, as
"independent" of rights under the collective-bargaining
agreement, Lueck> supra, at 213 (and not whether a griev-
ance arising from "precisely the same set of facts" could be
pursued, Lingle, supra, at 410) that decides whether a state
17 That is so, we explained, both because Congress is understood to have
legislated against a backdrop of generally applicable labor standards, see,
e. g., Lingle, 486 U. S., at 411-412, and because the scope of the arbitral
promise is not itself unlimited, see Steelworkers v. Warrior & Gulf Nav.
Co., 363 U. S. 574, 582 (1960) ("[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")- And while contract-interpretation dis-
putes must be resolved in the bargained-for arbitral realm, see Republic
Steel Corp. v. Maddox, 379 U. S. 650 (1965), §301 does not disable state
courts from interpreting the terms of collective-bargaining agreements in
resolving non-pre-empted claims, see Charles Dowd Box Co. v. Courtney,
368 U. S. 502 (1962) (state courts have jurisdiction over §301 suits but
must apply federal common law); NLRB v. C & C Plywood Corp., 385 U. S.
421 (1967).
124 LIVADAS v. BRADSHAW
Opinion of the Court
cause of action may go forward.18 Finally, we were clear
that when the meaning of contract terms is not the subject
of dispute, the bare fact that a collective-bargaining agree-
ment will be consulted in the course of state-law litigation
plainly does not require the claim to be extinguished, see
Lingle, supra, at 413, n. 12 ("A collective-bargaining agree-
ment may, of course, contain information such as rate of pay
. . . that might be helpful in determining the damages to
which a worker prevailing in a state-law suit is entitled").
These principles foreclose even a colorable argument that
a claim under Labor Code §203 was pre-empted here. As
the District Court aptly observed, the primary text for de-
ciding whether Livadas was entitled to a penalty was not the
Food Store Contract, but a calendar. The only issue raised
by Livadas's claim, whether Safeway "willfully fail[ed] to
pay" her wages promptly upon severance, Cal. Lab. Code
18 We are aware, as an amicus brief makes clear, see Brief for AFL-CIO
as Amicus Curiae, that the Courts of Appeals have not been entirely
uniform in their understanding and application of the principles set down
in Lingle and Lueck, But this case, in which non-pre-emption under § 301
is clear beyond peradventure, see infra this page and 125, is not a fit
occasion for us to resolve disagreements that have arisen over the proper
scope of our earlier decisions. We do note in this regard that while our
cases tend to speak broadly in terms of §301 "pre-emption," defendants
invoke that provision in diverse situations and for different reasons: some-
times their assertion is that a plaintiff's cause of action itself derives from
the collective-bargaining agreement (and, by that agreement, belongs be-
fore an arbitrator); in other instances, the argument is different, that a
plaintiff's claim cannot be "resolved" absent collective-bargaining agree-
ment interpretation, i. e., that a term of the agreement may or does confer
a defense on the employer (perhaps because the employee or his union has
negotiated away the state-law right), c£ Caterpillar Inc. v. Williams, 482
U. & 386, 398-399 (1987); and in other cases still, concededly "independ-
ent" state-law litigation may nonetheless entail some collective-bargaining
agreement application. Holding the plaintiff's cause of action substan-
tively extinguished may not, as amicus AFL-CIO observes, always be the
only means of vindicating the arbitrator's primacy as the bargained-for
contract interpreter. C£ Collyer Insulated Wire, Gulf & Western Sys-
tems Ca, 192 N. L. R. B. 837 (1971).
Cite as: 512 U. S. 107 (1994) 125
Opinion of the Court
Ann. §203 (West 1989), was a question of state law, en-
tirely independent of any understanding embodied in the
collective-bargaining agreement between the union and the
employer. There is no indication that there was a "dispute"
in this case over the amount of the penalty to which Livadas
would be entitled, and Lingle makes plain in so many words
that when liability is governed by independent state law, the
mere need to "look to" the collective-bargaining agreement
for damages computation is no reason to hold the state-law
claim defeated by § 301. See 486 U. S., at 413, n. 12.19
Beyond the simple need to refer to bargained-for wage
rates in computing the penalty, the collective-bargaining
agreement is irrelevant to the dispute (if any) between Liva-
das and Safeway. There is no suggestion here that Liva-
das's union sought or purported to bargain away her protec-
tions under § 201 or § 203, a waiver that we have said would
(especially in view of Labor Code §219) have to be "'clear
and unmistakable/ " see Lingle, supra, at 409-410, n. 9 (quot-
ing Metropolitan Edison Co. v. NLRB, 460 U. S. 693, 708
(1983)), for a court even to consider whether it could be given
effect, nor is there any indication that the parties to the
collective-bargaining agreement understood their arbitration
pledge to cover these state-law claims. See generally Gil-
mer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 35 (1991);
cf. Food Store Contract § 18.8. But even if such suggestions
or indications were to be found, the Commissioner could not
invoke them to defend her policy, which makes no effort to
take such factors into account before denying enforcement.20
19 This is not to say, of course, that a § 203 penalty claim could never be
pre-empted by § 301.
20 In holding the challenged policy pre-empted, we note that there is no
equally obvious conflict between what §301 requires and the text of Labor
Code § 229 (as against what respondent has read it to mean). The Califor-
nia provision, which concerns whether a promise to arbitrate a daim will
be enforced to defeat a direct action under the Labor Code, does not pur-
port generally to deny union-represented employees their rights under
§§201 and 203. Rather, it confines its predusive focus only to "dispute[s]
126 LIVADAS v. BRADSHAW
Opinion of the Court
c
1
Before this Court, however, the Commissioner does not
confine herself to the assertion that Livadas's claim would
have been pre-empted by LMRA § 301. Indeed, largely put-
ting aside that position, she has sought here to cast the pol-
icy in different terms, as expressing a "conscious decision/'
see Brief for Respondent 14, to keep the State's "hands off"
the claims of employees protected by collective-bargaining
agreements, either because the Division's efforts and re-
sources are more urgently needed by others or because
official restraint will actually encourage the collective-
bargaining and arbitral processes favored by federal law.
The latter, more ambitious defense has been vigorously
taken up by the Commissioner's amid, who warn that invali-
dation of the disputed policy would sound the death knell
for other, more common governmental measures that take
account of collective-bargaining processes or treat workers
represented by unions differently from others in any respect.
Although there surely is no bar to our considering these
alternative explanations, cf. Dandridge v. Williams, 397
II S. 471, 475, n. 6 (1970) (party may defend judgment on
basis not relied upon below), we note, as is often the case
with such late-blooming rationales, that the overlap between
what the Commissioner now claims to be state policy and
what the state legislature has enacted into law is awkwardly
inexact. First, if the Commissioner's policy (or California
concerning the interpretation or application of any collective-bargaining
agreement/' in which event an "agreement to arbitrate" such disputes is
to be given effect. Nor does the Howard decision, the apparent font of
the Commissioner's policy, appear untrue to § 301 teachings: there, an em-
ployee sought to have an "unpaid wage" claim do the office of a claim that
a collective-bargaining agreement entitled him to a higher wage; that sort
of claim, however, derives its existence from the collective-bargaining
agreement and, accordingly, Mis within any customary understanding of
arbitral jurisdiction. See 63 CaL App. 3d, at 836, 126 CaL Rptr., at 411.
Cite as: 512 U. S. 107 (1994) 127
Opinion of the Court
law) were animated simply by the frugal desire to conserve
the State's money for the protection of employees not cov-
ered by collective-bargaining agreements, the Commission-
er's emphasis, in the letter to Livadas and in this litigation,
on the need to "interpret" or "apply" terms of a collective-
bargaining agreement would be entirely misplaced*
Nor is the nonenforcement policy convincingly defended
as giving parties to a collective-bargaining agreement the
"benefit of their bargain," see Brief for Respondent 18, n. 13,
by assuring them that their promise to arbitrate is kept and
not circumvented. Under the Commissioner's policy, en-
forcement does not turn on what disputes the parties agreed
would be resolved by arbitration (the bargain struck), see
Gilmer, 500 U. S., at 26, or on whether the contractual wage
rate is even subject to (arbitrable) dispute. Rather, enforce-
ment turns exclusively on the fact that the contracting par-
ties consented to any arbitration at all. Even if the Com-
missioner could permissibly presume that state-law claims
are generally intended to be arbitrated, but cf. id., at 35 (em-
ployees in prior cases "had not agreed to arbitrate their stat-
utory claims, and the labor arbitrators were not authorized
to resolve such claims"),21 her policy goes still further. Even
in cases when it could be said with "positive assurance,"
21 In holding that an agreement to arbitrate an Age Discrimination in
Employment Act claim is enforceable under the Federal Arbitration Act,
Gilmer emphasized its basic consistency with our unanimous decision in
Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), permitting a dis-
charged employee to bring a Title VII daim, notwithstanding his having
already grieved the dismissal under a collective-bargaining agreement.
Gilmer distinguished Gardner-Denver as relying, inter alia, on: the "dis-
tinctly separate nature of ... contractual and statutory rights" (even when
both were "violated as a result of the same factual occurrence"), 415 U. S.,
at 50; the fact that a labor "arbitrator has authority to resolve only ques-
tions of contractual rights," id., at 53-54; and the concern that in
collective-bargaining arbitration, "the interests of the individual employee
may be subordinated to the collective interests of all employees in the
bargaining unit," id., at 58, n. 19.
128 LIVADAS v. BRADSHAW
Opinion of the Court
Warrior & Gulf, 363 U. S., at 582, that the parties did not
intend that state-law claims be subject to arbitration, cf.
Food Store Contract § 18.8 (direct wage claim not involving
interpretation of agreement may be submitted "to any other
tribunal or agency which is authorized and empowered" to
enforce it), the Commissioner would still deny enforcement,
on the stated basis that the collective-bargaining agreement
nonetheless contained "an arbitration clause*' and because
the claim would, on her view, entail "interpretation," of the
agreement's terms. Such an irrebuttable presumption is not
easily described as the benefit of the parties' "bargain."
The Commissioner and amid finally suggest that denying
enforcement to union-represented employees' claims under
§§201 and 203 (and other Labor Code provisions) is meant
to encourage parties to bargain collectively for their own
rules about the payment of wages to discharged workers.
But with this suggestion, the State's position simply slips
any tether to California law. If California's goal really were
to stimulate such freewheeling bargaining on these subjects,
the enactment of Labor Code § 219, expressly and categori-
cally prohibiting the modification of these Labor Code rules
by "private agreement," would be a very odd way to pursue
it.22 Cf. Cal. Lab, Code Ann. §227.3 (West 1989) (allowing
parties to collective-bargaining agreement to arrive at differ-
ent rule for vacation pay). In short, the policy, the ration-
ales, and the state law are not coherent.
2
Even at face value, however, neither the "hands off" labels
nor the vague assertions that general labor law policies are
thereby advanced much support the Commissioner's defense
here. The former merely takes the position discussed and
rejected earlier, that a distinction between claimants repre-
sented by unions and those who are not is "rational," the
22 The Commissioner avoids such complications simply by omitting any
reference to Labor Code § 219.
Cite as: 512 U. S. 107 (1994) 129
Opinion of the Court
former being less "in need" than the latter. While we
hardly suggest here that every distinction between union-
represented employees and others is invalid under the
NLRA, see infra, at 131-132, the assertion that represented
employees are less "in need" precisely because they have
exercised federal rights poses special dangers that advan-
tages conferred by federal law will be canceled out and its
objectives undermined. Cf. Metropolitan Life, 471 U. S., at
756 ("It would turn the policy that animated the Wagner Act
on its head to understand it to have penalized workers who
have chosen to join a union by preventing them from benefit-
ing from state labor regulations imposing minimal standards
on nonunion employers"). Accordingly, as we observed in
Metropolitan Life, the widespread practice in Congress and
in state legislatures has assumed the contrary, bestowing
basic employment guarantees and protections on individual
employees without singling out members of labor unions (or
those represented by them) for disability; see id., at 755; ^
accord, Lingle, 486 U. S., at 411-412.
Nor do professions of "neutrality" lay the dangers to rest.
The pre-empted action in Golden State I could easily have
been redescribed as following a "hands-off" policy, in that
the city sought to avoid endorsing either side in the course
of a labor dispute, see 475 U. S., at 622 (REHNQUIST, J., dis-
senting) (city did not seek "to place its weight on one side or
the other of the scales of economic warfare"), and the re-
spondent commission in Nash may have understood its policy
as expressing neutrality between the parties in a yet-to-be-
28 We noted that "Congress [has never] seen fit to exclude unionized
workers and employers from laws establishing federal minimum em-
ployment standards. We see no reason to believe that for this purpose
Congress intended state minimum labor standards to be treated differ-
ently .... Minimum state labor standards affect union and nonunion
employees equally and neither encourage nor discourage the collective-
bargaining processes that are the subject of the NLRA." Metropolitan
Life, 471 U. S., at 755.
130 LIVADAS u BRADSHAW
Opinion of the Court
decided unfair labor practice dispute. See also Rum Creek
Coal Sales, Inc. v. Caperton, 971 F. 2d 1148, 1154 (CA4 1992)
(NLRA forbids state policy, under state law barring "aid or
assistance" to either party to a labor dispute, of not arresting
picketers who violated state trespass laws). Nor need we
pause long over the assertion that nonenforcement of valid
state-law claims is consistent with federal labor law by
"encouraging" the operation of collective bargaining and
arbitration process. Denying represented employees basic
safety protections might "encourage" collective bargaining
over that subject, and denying union employers the protec-
tion of generally applicable state trespass law might lead to
increased bargaining over the rights of labor pickets, c£
Rum Creek, supra, but we have never suggested that labor
law's bias toward bargaining is to be served by forcing em-
ployees or employers to bargain for what they would other-
wise be entitled to as a matter of course. See generally
Metropolitan Life, supra, at 757 (Congress did not intend to
"remove the backdrop of state law . . . and thereby artificially
create a no-law area") (emphasis deleted and internal quota-
tion marks omitted).24
The precedent cited by the Commissioner and amid
as supporting the broadest "hands off" view, Fort Halifax
Packing Co. v. Coyne, 482 U. S. 1 (1987), is not in point. In
that case we held that there was no federal pre-emption of a
Maine statute that allowed employees and employers to con-
tract for plant-closing severance payments different from
those otherwise mandated by state law. That decision, how-
ever, does not even purport to address the question suppos-
edly presented here: while there was mention of state lati-
24 Were it enough simply to point to a general labor policy advanced by
particular state action, the city in Golden State could have claimed to be
encouraging the "friendly adjustment of industrial disputes/' 29 U. S. C.
§ 151, and the State in Goidd, the entirely "laudable," 475 U. S., at 291,
purpose of "deter[ring] labor law violations and . . . rewarding] 'fidelity
to the law/ "id., at 287.
Cite as: 512 U. S. 107 (1994) 131
Opinion of the Court
tude to "balance the desirability of a particular substantive
labor standard against the right of self-determination re-
garding the terms and conditions of employment," see id.y at
22, the policy challenged here differs in two crucial respects
from the "unexceptional exercise of the [State's] police
power," ibid, (internal quotation marks and citation omit-
ted), defended in those terms in our earlier case. Most fun-
damentally, the Maine law treated all employees equally,
whether or not represented by a labor organization. All
were entitled to the statutory severance payment, and all
were allowed to negotiate agreements providing for differ-
ent benefits. See id., at 4, n. 1. Second, the minimum
protections of Maine's plant-closing law were relinquished
not by the mere act of signing an employment contract
(or collective-bargaining agreement), but only by the parties'
express agreement on different terms, see id,, at 21. ^
While the Commissioner and her amid call our attention
to a number of state and federal laws that draw distinctions
between union and nonunion represented employees, see,
e.g., D. C. Code Ann. §36-103 (1993) ("Unless otherwise
specified in a collective agreement . . . [w]henever an em-
ployer discharges an employee, the employer shall pay the
employee's wages earned not later than the working day
following such discharge"); 29 U, S. C. §203(o) ("Hours
[w]orked" for Fair Labor Standards Act measured according
to "express terms of ... or practice under bona fide
collective-bargaining agreement"), virtually all share the
important second feature observed in Coyne, that union-
represented employees have the full protection of the
minimum standard, absent any agreement for something
different. These "opt out" statutes are thus manifestly dif-
ferent in their operation (and their effect on federal rights)
25 It bears mention that the law in Fort Halifax pegged the benefit pay-
ment to an employee's wages, meaning that the State Labor Commissioner
would "look to" the collective-bargaining agreement in enforcing claims in
precisely the same manner that respondent would here.
132 LIVADAS u BRADSHAW
Opinion of the Court
from the Commissioner's rule that an employee forfeits his
state-law rights the moment a collective-bargaining agree-
ment with an arbitration clause is entered into. But c£ Met-
ropolitan Edison, 460 U. S., at 708. Hence, our holding that
the Commissioner's unusual policy is irreconcilable with the
structure and purposes of the Act should cast no shadow on
the validity of these familiar and narrowly drawn opt-out
provisions.26
Ill
Having determined that the Commissioner's policy is in
fact pre-empted by federal law, we find strong support in our
precedents for the position taken by both courts below that
Livadas is entitled to seek relief under 42 U. S. C. § 1983 for
the Commissioner's abridgment of her NLRA rights. Sec-
tion 1983 provides a federal cause of action for the depriva-
tion, under color of law, of a citizen's "rights, privileges, or
immunities secured by the Constitution and laws" of the
United States, and we have given that provision the effect
its terms require, as affording redress for violations of fed-
eral statutes, as well as of constitutional norms. Maine v.
Thiboutot, 448 U. S. 1, 4 (1980). We have, it is true, recog-
nized that even the broad statutory text does not authorize a
suit for every alleged violation of federal law. A particular
statutory provision, for example, may be so manifestly preca-
tory that it could not fairly be read to impose a "binding
obligatio[n]" on a governmental unit, Pennhurst State School
and Hospital v. Halderman, 451 U. S. 1, 27 (1981), or its
terms may be so "vague and amorphous" that determining
whether a "deprivation" might have occurred would strain
judicial competence. See Wright v. Roanoke Redevelop-
26 Nor does it seem plausible to suggest that Congress meant to pre-
empt such opt-out laws, as "burdening" the statutory right of employees
not to join unions by denying nonrepresented employees the "benefit" of
being able to "contract out" of such standards. Cf. Addendum B to Brief
for Employers Group as Amices Curiae (collecting state statutes contain-
ing similar provisions).
Cite as: 512 U. S. 107 (1994) 133
Opinion of the Court
ment and Housing Authority, 479 U- S. 418, 431-432 (1987).
And Congress itself might make it clear that violation of a
statute will not give rise to liability under § 1983, either by
express words or by providing a comprehensive alternative
enforcement scheme. See Middlesex County Sewerage Au-
thority v. National Sea Clammers Assn., 453 U. S. 1 (1981).
But apart from these exceptional cases, §1983 remains a
generally and presumptively available remedy for claimed
violations of federal law. See also Dennis v. Higgins, 498
U. S. 439, 443 (1991).
Our conclusion that Livadas is entitled to seek redress
under § 1983 is, if not controlled outright, at least heavily
foreshadowed by our decision in Golden State IL We began
there with the recognition that not every instance of federal
pre-emption gives rise to a § 1983 cause of action, see 493
U. S., at 108, and we explained that to decide the availability
of § 1983 relief a court must look to the nature of the federal
law accorded pre-emptive effect and the character of the in-
terest claimed under it, ibid.27 We had no difficulty conclud-
ing, however, as we had often before, see, e. g., Hill v. Flor-
ida ex rel. Watson, 325 U. S. 538 (1945), that the NLRA
protects interests of employees and employers against
abridgment by ar State, as well as by private actors; that
the obligations it imposes on governmental actors are not so
"vague and amorphous" as to exceed judicial competence to
decide; and that Congress had not meant to foreclose relief
under § 1983. In so concluding, we contrasted the intricate
scheme provided to remedy violations by private actors to
the complete absence of provision for relief from governmen-
27 Thus, Golden State II observed that an NLRA pre-emption claim
grounded in the need to vindicate the primary jurisdiction of the National
Labor Relations Board, see San Diego Building Trades Council v. Gar-
mon, 359 U. S. 236 (1959), see n. 10, supra, is "fundamentally different"
from one stemming from state abridgment of a protected individual inter-
est, see 493 U. S., at 110, a difference that might prove relevant to cogniza-
bility under § 1983.
134 LIVADAS v. BRADSHAW
Opinion of the Court
tal interference, see 493 U. S., at 108-109. Indeed, the only
issue seriously in dispute in Golden State II was whether
the freedom to resort to "peaceful methods of ... economic
pressure/' id., at 112 (internal quotation marks omitted),
which we had recognized as implicit in the structure of the
Act, could support § 1983 liability in the same manner as of-
ficial abridgment of those rights enumerated in the text
would do. Ibid. The Court majority said yes, explaining
that "[a] rule of law that is the product of judicial interpreta-
tion of a vague, ambiguous, or incomplete statutory provision
is no less binding than a rule that is based on the plain mean-
ing of a statute. " Ibid.
The right Livadas asserts, to complete the collective-
bargaining process and agree to an arbitration clause, is, if
not provided in so many words in the NLRA, see n. 10,
supra, at least as immanent in its structure as the right of
the cab company in Golden State II. And the obligation to
respect it on the part of the Commissioner and others acting
under color of law is no more "vague and amorphous" than
the obligation in Golden State. Congress, of course, has
given no more indication of any intent to foreclose actions
like Livadas's than the sort brought by the cab company.
Finding no cause for special caution here, we hold that Liva-
das's claim is properly brought under § 1983.
IV
In an effort to give wide berth to federal labor law
and policy, the Commissioner declines to enforce union-
represented employees' claims rooted in nonwaivable rights
ostensibly secured by state law to all employees, without re-
gard to whether the claims are valid under state law or pre-
empted by LMRA § 301. Federal labor law does not require
such a heavy-handed policy, and, indeed, cannot permit it.
We do not suggest here that the NLRA automatically de-
feats all state action taking any account of the collective-
bargaining process or every state law distinguishing union-
Cite as: 512 U. S. 107 (1994) 135
Opinion of the Court
represented employees from others. It is enough that we
find the Commissioner's policy to have such direct and detri-
mental effects on the federal statutory rights of employees
that it must be pre-empted. The judgment of the Court of
Appeals for the Ninth Circuit is accordingly
Reversed.
136 OCTOBER TERM, 1993
Syllabus
IBANEZ v. FLORIDA DEPARTMENT OF BUSINESS
AND PROFESSIONAL REGULATION, BOARD OF
ACCOUNTANCY
CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
FLORIDA, FIRST DISTRICT
No. 93-639. Argued April 19, 1994— Decided June 13, 1994
Petitioner Ibanez is a member of the Florida Bar; she is also a Certified
Public Accountant (CPA) licensed by respondent Florida Board of Ac-
countancy (Board), and is authorized by the Certified Financial Planner
Board of Standards, a private organization, to use the designation "Cer-
tified Financial Planner" (CFP). She referred to these credentials in
her advertising and other communication with the public concerning her
law practice, placing CPA and CFP next to her name in her yellow
pages listing and on her business cards and law offices stationery. Not-
withstanding the apparent truthfulness of the communication — it is un-
disputed that neither her CPA license nor her CFP authorization has
been revoked — the Board reprimanded her for engaging in "false, decep-
tive, and misleading" advertising. The District Court of Appeal of
Florida, First District, affirmed.
Held: The Board's decision censuring Ibanez is incompatible with First
Amendment restraints on official action. Pp. 142-149.
(a) Ibanez' use of the CPA and CFP designations qualifies as "com-
mercial speech." The State may ban such speech only if it is false,
deceptive, or misleading. See, e. g., Zauderer v. Office of Disciplinary
Counsel of Supreme Court of Ohio, 471 U. S. 626, 638. If it is not, the
State can restrict it, but only upon a showing that the restriction di-
rectly and materially advances a substantial state interest in a manner
no more extensive than necessary to serve that interest. See, e. g., Cen-
tral Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y.f 447
U. S. 557, 564, 566. The State's burden is not slight: It must demon-
strate that the harms it recites are real and that its restrictions will in
fact alleviate them to a material degree. See, e. g., Edenfield v. Fane,
507 U. S. 761, 771. Measured against these standards, the order repri-
manding Ibanez cannot stand. Pp. 142-143.
(b) The Board asserts that Ibanez' use of the CPA designation on her
commercial communications is misleading in that it tells the public she
is subject to the Florida Accountancy Act and to the Board's jurisdiction
"when she believes and acts as though she is not." This position is
insubstantial. Ibanez no longer contests the Board's assertion of juris-
Cite as: 512 U. S. 136 (1994) 137
Syllabus
diction over her, and in any event, what she '^believes" regarding the
reach of the Board's authority is not sanctionable. See Baird v. State
Bar of Ariz., 401 U. S. 1, 6. Nor can the Board rest on the bare asser-
tion that Ibanez is unwilling to comply with its regulation; it must
build its case on specific evidence of noncompliance. It has never even
charged Ibanez with an action out of compliance with the governing
statutory or regulatory standards. And as long as she holds a cur-
rently active CPA license from the Board, it is difficult to see how con-
sumers could be misled by her truthful representation to that effect.
Pp. 143-144.
(c) The Board's justifications for disciplining Ibanez based on her use
of the CFP designation are not more persuasive. The Board presents
no evidence that Ibanez* use of the term "certified" "inherently mis-
lead[s]" by causing the public to infer state approval and recognition.
See Peel v. Attorney Registration and Disciplinary Comm'n ofllL, 496
U. S. 91 (attorney's use of designation "Certified Civil Trial Specialist By
the National Board of Trial Advocacy" neither actually nor inherently
misleading). Nor did the Board advert to key aspects of the designa-
tion here at issue — the nature of the authorizing organization and the
state of knowledge of the public to whom Ibanez' cornmiinications are
directed — in reaching its alternative conclusion that the CFP designa-
tion is "potentially misleading." On the bare record made in this case,
the Board has not shown that the restrictions burden no more of Ibanez'
constitutionally protected speech than necessary. Pp. 144-149.
621 So. 2d 435, reversed and remanded.
GINSBURG, J., delivered the opinion for a unanimous Court with respect
to Part II-B, and the opinion of the Court with respect to Parts I, II-A,
and II-C, in which BLACKMUN, STEVENS, SCAOA, KENNEDY, SOUTER, and
THOMAS, JJ., joined. O'CONNOR, J., filed an opinion concurring in part
and dissenting in part, in which REHNQTHST, C. J., joined, post, p. 149.
Silvia Safille Ibanez, pro se, argued the cause for peti-
tioner. With her on the briefs were /. Lofton Westmoreland
and Robert J. Shapiro.
Lisa S. Nelson argued the cause and filed a brief for
respondent.*
*Briefs of amid curiae urging reversal were filed for the Alliance of
Practicing Certified Public Accountants et al. by Donald B. Verrilli, Jr.,
David W. DeBruin, and Maureen K Del Duca; for the American Associa-
tion of Attorney-Certified Public Accountants, Inc., by David Ostrove,
138 IBANEZ v. FLORIDA DEPT. OF BUSINESS AND PRO-
FESSIONAL REGULATION, BD. OF ACCOUNTANCY
Opinion of the Court
JUSTICE GINSBURG delivered the opinion of the Court*
Petitioner Silvia Safille Ibanez, a member of the Florida
Bar since 1983, practices law in Winter Haven, Florida. She
is also a Certified Public Accountant (CPA), licensed by re-
spondent Florida Board of Accountancy (Board) l to "practice
public accounting/' In addition, she is authorized by the
Certified Financial Planner Board of Standards, a private
organization, to use the trademarked designation "Certified
Financial Planner" (CFP).
Ibanez referred to these credentials in her advertising and
other communication with the public. She placed CPA and
CFP next to her name in her yellow pages listing (under
"Attorneys") and on her business card. She also used those
designations at the left side of her "Law Offices" stationery
Notwithstanding the apparently truthful nature of her com-
munication— it is undisputed that neither her CPA license
nor her CFP certification has been revoked — the Board rep-
rimanded her for engaging in "false, deceptive, and mislead-
ing" advertising. Final Order of the Board of Accountancy
(May 12, 1992) (hereinafter Final Order), App. 178, 194.
The record reveals that the Board has not shouldered the
burden it must carry in matters of this order. It has not
Sydney S. Traum, and Philip D. Brent; for the Certified Financial Planner
Board of Standards et al. by Peter E. Zwanzig; and for the Florida Bar
by Steven E. Stark and Scott D. Makar.
Briefs of amid curiae urging affirmance were filed for the American
Institute of Certified Public Accountants by Louis A. Craco, Richard L
Miller, Michael R. Young, and Kelly M. Hnatt; and for the Florida Insti-
tute of Certified Public Accountants by Kenneth R. Hart and Steven P.
Seymoe.
lThe Board of Accountancy, created by the Florida Legislature, Fla.
Stat. §473.303 (1991), is authorized to "adopt all rules necessary to admin-
ister" the Public Accountancy Act (chapter 473 of the Florida Statutes).
Fla, Stat. §473.304 (Supp. 1992). The Board is responsible for licensing
CPA's, see Fla. Stat §473.308 (1991), and every licensee is subject to the
governance of the Act and the rules adopted by the Board. Fla. Stat.
§473.304 (Supp. 1992).
Cite as: 512 U. S. 136 (1994) 139
Opinion of the Court
demonstrated with sufficient specificity that any member of
the public could have been misled by Ibanez' constitutionally
protected speech or that any harm could have resulted from
allowing that speech to reach the public's eyes. We there-
fore hold that the Board's decision censuring Ibanez is incom-
patible with First Amendment restraints on official action.
I
Under Florida's Public Accountancy Act, only licensed
CPA's may "[ajttest as an expert in accountancy to the relia-
bility or fairness of presentation of financial information,"
Fla. Stat. §473.322(l)(c) (1991),2 or use the title "CPA" or
other title "tending to indicate that such person holds an
active license" under Florida law. § 473.322(l)(b). Further-
more, only licensed CPA's may "[p]ractice public accounting."
§473.322(l)(a). "Practicing public accounting" is defined as
an "offe[r] to perform . . . one or more types of services in-
volving the use of accounting skills, or ... management advi-
sory or consulting services," Fla. Stat. §473.302(5) (Supp.
1992), made by one who either is, §473.302(5)(a), or "hold[s]
himself. . . out as," §473.302(5)(b) (emphasis added), a certi-
fied public accountant.3
The Board learned of Ibanez' use of the designations CPA
and CFP when a copy of Ibanez' yellow pages listing was
mailed, anonymously, to the Board's offices; it thereupon
commenced an investigation and, subsequently, issued a
complaint against her. The Board charged Ibanez with (1)
2 This "attest" function is more commonly referred to as "auditing."
8 Florida's Public Accountancy Act is known as a "Title Act" because,
with the exception of the "attest" function, activities performed by CPA's
can lawfully be performed by non-CPA's. See Brief for Respondent 11-
12. The Act contains additional restrictions on the conduct of licensed
CPA's. For example, a partnership or corporation cannot "practice public
accounting" unless all partners or shareholders are CPA's, Fla. Stat
§473.309 (1991), nor may licensees "engaged in the practice of public ac-
counting" pay or accept referral fees, §473.3205, or accept contingency
fees, §473.319.
140 IBANEZ v. FLORIDA DEFT. OF BUSINESS AND PRO-
FESSIONAL REGULATION, BD. OF ACCOUNTANCY
Opinion of the Court
"practicing public accounting" in an unlicensed firm, in viola-
tion of §473.3101 of the Public Accountancy Act;4 (2) using a
"specialty designation" — CFP — that had not been approved
by the Board, in violation of Board Rule 24.001(l)(g), Fla.
Admin. Code §61Hl-24.001(l)(g) (1994); 5 and (3) appending
the CPA designation after her name, thereby "implying]
that she abides by the provisions of [the Public Accountancy
Act]," in violation of Rule 24.001(l)'s ban on "fraudulent,
false, deceptive, or misleading" advertising. Amended Ad-
ministrative Complaint (filed June 30, 1991), 1 Record 32-35.
At the ensuing disciplinary hearing, Ibanez argued that
she was practicing law, not "public accounting," and was
therefore not subject to the Board's regulatory jurisdiction.
Response to Amended Administrative Complaint (filed Aug.
26, 1991), f25, id., at 108.6 Her use of the CPA and CFP
designations, she argued further, constituted "nonmis-
leading, truthful, commercial speech" for which she could not
be sanctioned. If 24, ibid. Prior to the close of proceedings
before the hearing officer, the Board dropped the charge that
Ibanez was practicing public accounting in an unlicensed
firm. Order on Reconsideration (filed Aug. 22, 1991), f 2, id.,
at 103-104. The hearing officer subsequently found in Iba-
nez' favor on all counts, and recommended to the Board that,
4 Florida Stat. §473.3101 (Supp. 1994) requires that "[e]ach partnership,
corporation, or limited liability company seeking to engage in the practice
of public accounting" apply for a license from the Board, and §473.309
requires that each such partnership or corporation hold a current license.
5 Rule 24.001(1) states, in pertinent part, that "[n]o licensee shall dissem-
inate . . . any . . . advertising which is in any way fraudulent, false, decep-
tive, or misleading, if it ... (g) [sjtates or implies that the licensee has
received formal recognition as a specialist in any aspect of the practice of
public accountancy unless , . . [the] recognizing agency is approved by the
Board." Fla. Admin. Code § 61H1-24.001(1) (1994). The CFP Board of
Standards, the Recognizing agency" in regard to Ibanez' CFP designation,
has not been approved by the Board*
6 Ibanez pointed out that she does not perform the "attest" function in
her law practice, and that no service she performs requires a CPA license.
See supra, at 139, n. 3.
Cite as: 512 U. S. 136 (1994) 141
Opinion of the Court
for want of the requisite proof, all charges against Ibanez
be dismissed. Recommended Order (filed Jan. 15, 1992),
App. 147.
The Board rejected the hearing officer's recommendation,
and declared Ibanez guilty of "false, deceptive and mislead-
ing" advertising. Final Order, id., at 194. The Board rea-
soned, first, that Ibanez was "practicing public accounting"
by virtue of her use of the CPA designation and was thus
subject to the Board's disciplinary jurisdiction. Id., at 183.
Because Ibanez had insisted that her law practice was out-
side the Board's regulatory jurisdiction, she had, in the
Board's judgment, rendered her use of the CPA designation
misleading:
"[Ibanez] advertises the fact that she is a CPA, while
performing the same 'accounting' activities she per-
formed when she worked for licensed CPA firms, but
she does not concede that she is engaged in the practice
of public accounting so as to bring herself within the
jurisdiction of the Board of Accountancy for any negli-
gence or errors [of which] she may be guilty when deliv-
ering her services to her clients.
"[Ibanez] is unwilling to acquiesce in the requirements
of [the Public Accountancy Act] and [the Board's rules]
by complying with those requirements. She does not
license her firm as a CPA firm; forego certain forms of
remuneration denied to individuals who are practicing
public accountancy; or limit the ownership of her firm to
other CPAs. . . . [She] has, in effect, told the public that
she is subject to the provisions of [the Public Accoun-
tancy Act] and the jurisdiction of the Board of Accoun-
tancy when she believes and acts as though she is not."
Id., at 184-185.
Next, the Board addressed Ibanez' use of the CFP desig-
nation. On that matter, the Board stated that any designa-
tion using the term "certified" to refer to a certifying orga-
142 IBANEZ u FLORIDA DEFT. OF BUSINESS AND PRO-
FESSIONAL REGULATION, BD. OF ACCOUNTANCY
Opinion of the Court
nization other than the Board itself (or an organization
approved by the Board) "inherently mislead[s] the public into
believing that state approval and recognition exists. " Id.,
at 193-194. Ibanez appealed to the District Court of Ap-
peal, First District, which affirmed the Board's final order
per curiam without opinion. Id., at 196, judgt. order re-
ported at 621 So. 2d 435 (1993). As a result, Ibanez had no
right of review in the Florida Supreme Court. We granted
certiorari, 510 U. S. 1067 (1994), and now reverse.
II
A
The Board correctly acknowledged that Ibanez' use of
the CPA and CFP designations was "commercial speech."
Final Order, App. 186. Because "disclosure of truthful, rel-
evant information is more likely to make a positive contri-
bution to decisionmaking than is concealment of such infor-
mation," Peel v. Attorney Registration and Disciplinary
Comm'n of III, 496 U. S. 91, 108 (1990), only false, deceptive,
or misleading commercial speech may be banned. Zauderer
v. Office of Disciplinary Counsel of Supreme Court of Ohio,
471 U. S. 626, 638 (1985), citing Friedman v. Rogers, 440 U. S.
1 (1979); see also In re R. M. /, 455 U. S. 191, 203 (1982)
("Truthful advertising related to lawful activities is entitled
to the protections of the First Amendment. . . . Misleading
advertising may be prohibited entirely.").
Commercial speech that is not false, deceptive, or mislead-
ing can be restricted, but only if the State shows that the
restriction directly and materially advances a substantial
state interest in a manner no more extensive than necessary
to serve that interest.7 Central Hudson Gas & Elec. Corp.
v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 566 (1980);
7 "It is well established that '[t]he party seeking to uphold a restriction
on commercial speech carries the burden of justifying it.' " Edenfield v.
Fane, 507 U. S. 761, 770 (1993), quoting Bolger v. Youngs Drug Products
Corp., 463 U. S. 60, 71, n. 20 (1983).
Cite as: 512 U. S, 136 (1994) 143
Opinion of the Court
see also id., at 564 (regulation will not be sustained if it "pro-
vides only ineffective or remote support for the govern-
ment's purpose"); Edenfield v. Fane, 507 U. S. 761, 767 (1993)
(regulation must advance substantial state interest in a "di-
rect and material way" and be in "reasonable proportion to
the interests served"); In re R. M. J., 455 U- S., at 203 (State
can regulate commercial speech if it shows that it has "a
substantial interest" and that the interference with speech
is "in proportion to the interest served").
The State's burden is not slight; the "free flow of commer-
cial information is valuable enough to justify imposing on
would-be regulators the costs of distinguishing the truthful
from the false, the helpful from the misleading, and the
harmless from the harmful." Zauderer, 471 U. S., at 646.
"[MJere speculation or conjecture" will not suffice; rather the
State "must demonstrate that the harms it recites are real
and that its restriction will in fact alleviate them to a mate-
rial degree." Edenfield, 507 U.S., at 770, 771; see also
Zauderer, 471 U. S., at 648-649 (State's "unsupported asser-
tions" insufficient to justify prohibition on attorney advertis-
ing; "broad prophylactic rules may not be so lightly justified
if the protections afforded commercial speech are to retain
their force"). Measured against these standards, the order
reprimanding Ibanez cannot stand.
We turn first to Ibanez' use of the CPA designation in her
commercial communications. On that matter, the Board's
position is entirely insubstantial. To reiterate, Ibanez holds
a currently active CPA license which the Board has never
sought to revoke. The Board asserts that her truthful com-
munication is nonetheless misleading because it "[tells] the
public that she is subject to the provisions of [the Accoun-
tancy Act] and the jurisdiction of the Board of Accountancy
when she believes and acts as though she is not." Final
Order, App. 185; see also Brief for Respondent 20 ("[TJhe use
144 IBANEZ v. FLORIDA DEFT. OF BUSINESS AND PRO-
FESSIONAL REGULATION, BD. OF ACCOUNTANCY
Opinion of the Court
of the CPA designation . . . where the licensee is unwilling
to comply with the provisions of the [statute] under which
the license was granted, is inherently misleading and may
be prohibited.").
Ibanez no longer contests the Board's assertion of jurisdic-
tion, see Brief for Petitioner 28 (Ibanez "is, in fact, a licensee
subject to the rules of the Board"), and in any event, what
she "believes" regarding the reach of the Board's authority
is not sanctionable. See Baird v. State Bar of Ariz., 401
U. S. 1, 6 (1971) (First Amendment "prohibits a State from
excluding a person from a profession or punishing him solely
because ... he holds certain beliefs"). Nor can the Board
rest on a bare assertion that Ibanez is "unwilling to comply"
with its regulation. To survive constitutional review, the
Board must build its case on specific evidence of noncompli-
ance. Ibanez has neither been charged with, nor found
guilty of, any professional activity or practice out of compli-
ance with the governing statutory or regulatory standards.8
And as long as Ibanez holds an active CPA license from the
Board we cannot imagine how consumers can be misled by
her truthful representation to that effect.
C
The Board's justifications for disciplining Ibanez for using
the CFP designation are scarcely more persuasive. The
Board concluded that the words used in the designation —
particularly, the word "certified" — so closely resemble "the
terms protected by state licensure itself, that their use, when
not approved by the Board, inherently mislead[s] the public
into believing that state approval and recognition exists."
Final Order, App. 193-194. This conclusion is difficult to
maintain in light of Peel. We held in Peel that an attorney's
use of the designation "Certified Civil Trial Specialist By the
8 Notably, the Board itself withdrew the only charge against Ibanez of
this kind, viz., the allegation that she practiced public accounting in an
unlicensed firm. See supra, at 140.
Cite as: 512 U. S. 136 (1994) 145
Opinion of the Court
National Board of Trial Advocacy" was neither actually nor
inherently misleading. See 496 U. S,, at 106 (rejecting con-
tention that use of National Board of Trial Advocacy certifi-
cation on attorney's letterhead was "actually misleading ");
id., at 110 ("State may not . . . completely ban statements
that are not actually or inherently misleading, such as certi-
fication as a specialist by bona fide organizations such as
NBTA"); id., at 111 (Marshall, J., joined by Brennan, J., con-
curring in judgment) (agreeing that attorney's letterhead
was "neither actually nor inherently misleading"). The
Board offers nothing to support a different conclusion with
respect to the CFP designation.9 Given "the complete ab-
sence of any evidence of deception," id., at 106, the Board's
"concern about the possibility of deception in hypothetical
cases is not sufficient to rebut the constitutional presumption
favoring disclosure over concealment/' id., at 111.10
9 JUSTICE O'CONNOR writes that "[t]he average consumer has no way to
verify the accuracy or value of [Ibanez'] use of the CFP designation" be-
cause her advertising, "[ujnlike the advertisement in Peel, ... did not
identify the organization that had conferred the certification." Post, at
150. We do not agree that the consumer of financial planning services is
thus disarmed.
To verify Ibanez' CFP credential, a consumer could call the CFP Board
of Standards. The Board that reprimanded Ibanez never suggested that
such a call would be significantly more difficult to make than one to the
certifying organization in Peel, the National Board of Trial Advocacy. We
note in this regard that the attorney's letterhead in Peel supplied no ad-
dress or telephone number for the certifying agency. Most instructive on
this matter, we think, is the requirement of the Rules of Professional Con-
duct of the Florida Bar, to which attorney Ibanez is subject, that she
provide "written information setting forth the factual details of [her] expe-
rience, expertise, background, and training" to anyone who so inquires.
See Florida Bar, Rule of Professional Conduct 4-7.3(a)(2),
10 The Board called only three witnesses at the proceeding against Iba-
nez, all of whom were employees or former employees of the Department
of Professional Regulation. Neither the witnesses, nor the Board in its
submissions to this Court, offered evidence that any member of the public
has been misled by the use of the CFP designation. See Peel, 496 U. S.,
at 100-101 (noting that there was "no contention that any potential client
146 IBANEZ v. FLORIDA DEPT. OF BUSINESS AND PRO-
FESSIONAL REGULATION, BD. OF ACCOUNTANCY
Opinion of the Court
The Board alternatively contends that Ibanez' use of the
CFP designation is "potentially misleading," entitling the
Board to "enact measures short of a total ban to prevent
deception or confusion." Brief for Respondent 33, citing
Peel, 496 U. S., at 116 (Marshall, J., joined by Brennan, J.,
concurring in judgment). If the "protections afforded com-
mercial speech are to retain their force/' Zauderer, 471 U. S.,
at 648-649, we cannot allow rote invocation of the words "po-
tentially misleading" to supplant the Board's burden to
"demonstrate that the harms it recites are real and that its
restriction will in fact alleviate them to a material degree."
Edenfield, 507 U. S., at 771.
The Board points to Rule 24.001(l)(j), Fla. Admin. Code
§61Hl-24.001(l)(j) (1994), which prohibits use of any "spe-
cialist" designation unless accompanied by a disclaimer,
made "in the immediate proximity of the statement that im-
plies formal recognition as a specialist"; the disclaimer must
"stat[e] that the recognizing agency is not affiliated with or
sanctioned by the state or federal government," and it must
set out the recognizing agency's "requirements for recogni-
tion, including, but not limited to, educatio[n], experience^]
and testing." See Brief for Respondent 33-35. Given the
state of this record — the failure of the Board to point to any
harm that is potentially real, not purely hypothetical — we
are satisfied that the Board's action is unjustified. We ex-
press no opinion whether, in other situations or on a different
record, the Board's insistence on a disclaimer might serve as
an appropriately tailored check against deception or confu-
sion, rather than one imposing "unduly burdensome disclo-
sure requirements [that] offend the First Amendment."
Zauderer, 471 U. S., at 651. This much is plain, however:
The detail required in the disclaimer currently described by
the Board effectively rules out notation of the "specialist"
or person was actually misled or deceived/' nor "any factual finding of
actual deception or misunderstanding")-
Cite as: 512 U. S. 136 (1994) 147
Opinion of the Court
designation on a business card or letterhead, or in a yellow
pages listing.11
The concurring Justices, on whom the Board relies, did
indeed find the "[NBTA] Certified Civil Trial Specialist"
statement on a lawyer's letterhead "potentially misleading/'
but they stated no categorical rule applicable to all specialty
designations. Thus, they recognized that "[t]he potential for
misunderstanding might be less if the NBTA were a com-
monly recognized organization and the public had a general
understanding of its requirements." Peel, 496 U. S., at 115.
In this regard, we stress again the failure of the Board to
back up its alleged concern that the designation CFP would
mislead rather than inform.
The Board never adverted to the prospect that the public
potentially in need of a civil trial specialist, see Peel, supra,
is wider, and perhaps less sophisticated, than the public with
financial resources warranting the services of a planner.
Noteworthy in this connection, "Certified Financial Planner"
and "CFP" are well-established, protected federal trade-
marks that have been described as "the most recognized
designation[s] in the planning field." Financial Planners:
Report of Staff of United States Securities and Exchange
Commission to the House Committee on Energy and Com-
merce's Subcommittee on Telecommunications and Finance
53 (1988), reprinted in Financial Planners and Investment
Advisors, Hearing before the Subcommittee on Consumer
Affairs of the Senate Committee on Banking, Housing and
Urban Affairs, 100th Cong., 2d Sess., 78 (1988). Approxi-
11 Under the Board's regulations, moreover, it appears that even a dis-
claimer of the Mnd described would not have saved Ibanez from censure.
Rule 24.001(i) flatly bans "[s]tat[ing] a form of recognition by any entity
other than the Board that uses the ter[m] 'certified/" Separate and dis-
tinct from that absolute prohibition, the regulations further proscribe
"[s]tat[ing] or implying] that the licensee has received formal recognition
as a specialist in any aspect of the practice of public accounting, unless the
statement contains" a copiously detailed disclaimer. Rule 24.00KJ).
148 IBANEZ v. FLORIDA DEPT. OF BUSINESS AND PRO-
FESSIONAL REGULATION, BD. OF ACCOUNTANCY
Opinion of the Court
mately 27,000 persons have qualified for the designation
nationwide. Brief for Certified Financial Planner Board of
Standards, Inc., et al. as Amid Curiae 3. Over 50 accred-
ited universities and colleges have established courses of
study in financial planning approved by the CFP Board of
Standards, and standards for licensure include satisfaction
of certain core educational requirements, a passing score on
a certification examination "similar in concept to the Bar or
CPA examinations," completion of a planning-related work
experience requirement, agreement to abide by the CFP
Code of Ethics and Professional Responsibility, and an an-
nual continuing education requirement. Id., at 10-15.
Ibanez, it bears emphasis, is engaged in the practice of
law and so represents her offices to the public. Indeed, she
performs work reserved for lawyers but nothing that only
CPA's may do. See supra, at 139, n. 3. It is therefore sig-
nificant that her use of the designation CFP is considered in
all respects appropriate by the Florida Bar. See Brief for
Florida Bar as Amicus Curiae 9-10 (noting that Florida Bar,
Rules of Professional Conduct, and particularly Rule 4-7.3,
"specifically allo[w] Ibanez to disclose her CPA and CFP cre-
dentials [and] contemplate that Ibanez must provide this
information to prospective clients (if relevant)")-
Beyond question, this case does not fall within the caveat
noted in Peel covering certifications issued by organizations
that "had made no inquiry into petitioner's fitness," or had
"issued certificates indiscriminately for a price"; statements
made in such certifications, "even if true, could be mislead-
ing." 496 IX S., at 102. We have never sustained restric-
tions on constitutionally protected speech based on a record
so bare as the one on which the Board relies here. See
Edenfield, 507 U. S., at 771 (striking down Florida ban on
CPA solicitation where Board "presents no studies that sug-
gest personal solicitation . . . creates the dangers ... the
Board claims to fear" nor even "anecdotal evidence . . . that
validates the Board's suppositions"); Zauderer, 471 U. S., at
Cite as: 512 U. S. 136 (1994) 149
Opinion of O'CONNOR, J.
648-649 (striking down restrictions on attorney advertising
where "State's arguments amount to little more than unsup-
ported assertions" without "evidence or authority of any
kind")* To approve the Board's reprimand of Ibanez would
be to risk toleration of commercial speech restraints "in the
service of ... objectives that could not themselves justify
a burden on commercial expression." Edenfield, 507 U. S.,
at 171.
Accordingly, the judgment of the Florida District Court of
Appeal is reversed, and the case is remanded for proceedings
not inconsistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE
joins, concurring in part and dissenting in part.
Once again, we are confronted with a First Amendment
challenge to a state restriction on professional advertising.
Petitioner, who has been licensed as an attorney and as a
certified public accountant (CPA) by the State of Florida,
and who also has been recognized as a "Certified Financial
Planner" (CFP) by a private organization, identified her-
self in telephone listings under the "attorneys" heading as
"IBANEZ SILVIA S CPA CFR" App. 4. Respondent, the
Florida Board of Accountancy, determined that petitioner's
use of both the CPA and the CFP designations was inher-
ently misleading, and sanctioned her for false advertising.
Fla. Stat. §473.323(l)(f) (1991) (accountants subject to disci-
plinary action if they "[a]dvertis[e] goods or services in a
manner which is fraudulent, false, deceptive, or misleading
in form or content").
I
Because petitioner's use of the CFP designation is both
inherently and potentially misleading, I would uphold the
Board's sanction of petitioner. I therefore respectfully dis-
sent from Parts II-A and II-C of the opinion of the Court.
150 IBANEZ u FLORIDA DEPT. OF BUSINESS AND PRO-
FESSIONAL REGULATION, BD. OF ACCOUNTANCY
Opinion of O'CONNOR, J.
States may prohibit inherently misleading speech entirely
In re R. M. J., 455 U. S. 191, 203 (1982). In Peel v. Attorney
Registration and Disciplinary Comm'n of III., 496 U. S. 91
(1990), we considered an attorney advertisement that pro-
claimed the lawyer to be a " 'Certified Civil Trial Specialist
By the National Board of Trial Advocacy/" See id., at 96.
A majority of the Court concluded that this statement was
not inherently misleading, although the discussion of this
issue was joined by only four Justices. See id., at 100-106
(plurality opinion); id., at 111 (Marshall, J., concurring in
judgment). The plurality reasoned that the certification
was a statement of verifiable fact; that the certification had
been conferred by a reputable organization that had applied
objectively clear standards to determining the attorney's
qualifications; and that consumers would not confuse the at-
torney's claim of certification as a specialist with formal
state recognition.
Although the Certified Financial Planner Board of Stand-
ards, Inc., appears to be a reputable organization that applies
objectively clear standards before conferring the CFP desig-
nation on accountants, the other factors relied on by the Peel
plurality are not present in this case. First, it was impor-
tant in Peel that "[t]he facts stated on [the attorney's] letter-
head are true and verifiable" Id., at 100 (emphasis added);
see also id., at 101 ("A lawyer's certification by [the recogniz-
ing organization] is a verifiable fact, as are the predicate re-
quirements for that certification"). Of course, petitioner's
recognition as a CFP can be verified — but only if the con-
sumer knows where to call or write. Unlike the advertise-
ment in Peel, petitioner's advertisements did not identify the
organization that had conferred the certification. The aver-
age consumer has no way to verify the accuracy or value of
petitioner's use of the CFP designation.
Related to this point is the fact that, in the absence of an
identified conferring organization, the consumer is likely to
Cite as: 512 U. S. 136 (1994) 151
Opinion of O'CONNOR, J.
conclude that the CFP designation is conferred by the State.
The Peel plurality stressed that "it seems unlikely that [the
attorney's] statement about his certification as a 'specialist'
by an identified national organization necessarily would
be confused with formal state recognition." Id., at 104-105
(emphasis added). Because here there is no such identifica-
tion, the converse is true. It is common knowledge that
"many States prescribe requirements for, and 'certify' public
accountants as, 'Certified Public Accountants/'' Id., at 113
(Marshall, J., concurring in judgment). Petitioner has of
course been licensed as a CPA by the State of Florida. But
her use of the CFP designation in close connection with the
identification of herself as a CPA ("IBANEZ SILVIA S CPA
CFP") would lead a reasonable consumer to conclude that
the two "certifications" were conferred by the same entity —
the State of Florida.
The Board of Accountancy has recognized this likelihood
of consumer confusion: "[The term 'certified'] in conjunction
with the term 'CPA' and the practice of public accounting,
[is] so close to the terms protected by state licensure itself,
that [its] use, when not approved by the Board, inherently
mislead[s] the public into believing that state approval and
recognition exists." App. 193-194. For this reason, the
Board's regulations provide that an advertisement will be
deemed misleading if it "[s]tates a form of recognition by any
entity other than the Board that uses the ter[m] 'certified.'"
Fla. Admin. Code 61Hl~24.001(l)(i) (1994). Petitioner's ad-
vertising is in clear violation of this prohibition. Because
the First Amendment does not prevent a State from protect-
ing consumers from such inherently misleading advertising,
in my view the Board's blanket prohibition on the use of
the term "certified" in CPA advertising is constitutional as
applied to petitioner.
B
But even if petitioner's use of "certified" was not inher-
ently misleading, it seems clear beyond cavil that some con-
152 IBANEZ v. FLORIDA DEPT. OF BUSINESS AND PRO-
FESSIONAL REGULATION, BD. OF ACCOUNTANCY
Opinion of O'CONNOR, J.
sumers would conclude that the State conferred the CFP
designation, just as it does the CPA license, and thus that
the advertisement is potentially misleading. Indeed, this
conclusion follows a fortiori from Peel, where five Justices
concluded that the attorney's specialty designation was at
least potentially misleading. See 496 U. S., at 118 (White,
J., dissenting). The advertisement in Peel, which identified
the certifying organization, provided substantially more in-
formation to consumers than does petitioner's advertise-
ment; if the one was potentially misleading (and we said that
it was), so too is the other.
States may not completely ban potentially misleading com-
mercial speech if narrower limitations can ensure that the
information is presented in a nonmisleading manner. In re
R. M. J., supra, at 203. But if a professional's certification
claim has the potential to mislead, the State may "requir[e]
a disclaimer about the certifying organization or the stand-
ards of a specialty." Peel, 496 U. S., at 110 (plurality opin-
ion); see also id., at 116-117 (Marshall, J., concurring in judg-
ment); In re R. M. /., supra, at 203. The Board has done
just that: An advertisement that "[s]tates or implies that the
licensee has received formal recognition as a specialist in any
aspect of the practice of public accounting" will be deemed
false or misleading, "unless the statement contains a dis-
claimer stating that the recognizing agency is not affiliated
with or sanctioned by the state or federal government."
Fla. Admin. Code 61Hl-24.001(l)(j) (1994). "The advertise-
ment must also contain the agency's requirements for recog-
nition, including, but not limited to, educatio[n], experience
and testing. These statements must be in the immediate
proximity of the statement that implies formal recognition
as a specialist." Ibid. There is no question but that the
CFP designation "implies that [petitioner] has received
formal recognition as a specialist" in financial planning, an
"aspect of the practice of public accounting," and her adver-
tisements do not contain the required disclaimer. If the ab-
Cite as: 512 U. S. 136 (1994) 153
Opinion of O'CONNOR, J.
solute prohibition on the use of the term "certified" cannot
be applied to petitioner (as the Court today holds), then the
disclaimer requirement applies to petitioner's advertising
that she is a specialist in financial planning. Because peti-
tioner failed to comply with it, the Board properly disci-
plined her.
II
Petitioner is a certified public accountant, and her use of
the CPA designation in advertising conveyed this truthful
information to the public. I agree with the Court that the
State of Florida may not prohibit petitioner's use of the CPA
designation under the circumstances in which this case is
presented to us, and I therefore join Part II-B of the Court's
opinion. I would only point out that it is open to the Board
to proceed against petitioner for practicing public accounting
in violation of statutory or regulatory standards applicable
to Florida accountants. See Brief for Petitioner 28 ("Peti-
tioner is, in fact," a licensee subject to the rules of the Board
of Accountancy"). And if petitioner's public accounting li-
cense is revoked, the State may constitutionally prohibit her
from advertising herself as a CPA.
154 OCTOBER TERM, 1993
Syllabus
SIMMONS u SOUTH CAROLINA
CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA
No. 92-9059. Argued January 18, 1994— Decided June 17, 1994
During the penalty phase of petitioner's South Carolina trial, the State
argued that his future dangerousness was a factor for the jury to con-
sider when deciding whether to sentence him to death or life imprison-
ment for the murder of an elderly woman. In rebuttal, petitioner pre-
sented evidence that his future dangerousness was limited to elderly
women and thus there was no reason to expect violent acts from him
in prison. However, the court refused to give the jury his proposed
instruction that under state law he was ineligible for parole. When
asked by the jury whether life imprisonment carried with it the possi-
bility of parole, the court instructed the jury not to consider parole in
reaching its verdict and that the terms life imprisonment and death
sentence were to be understood to have their plain and ordinary mean-
ing. The jury returned a death sentence. On appeal, the State Su-
preme Court concluded that regardless of whether a trial court's refusal
to inform a sentencing jury about a defendant's parole ineligibility might
ever be error, the instruction given to petitioner's jury satisfied in sub-
stance his request for a charge on such ineligibility.
Held: The judgment is reversed, and the case is remanded.
310 S. C. 439, 427 S. E. 2d 175, reversed and remanded.
JUSTICE BIACKMUN, joined by JUSTICE STEVENS, JUSTICE SOUTER,
and JUSTICE GINSBURG, concluded:
1. Where a defendant's future dangerousness is at issue, and state
law prohibits his release on parole, due process requires that the sen-
tencing jury be informed that the defendant is parole ineligible. An
individual cannot be executed on the basis of information which he had
no opportunity to deny or explain. Gardner v. Florida, 430 U. S. 349,
362. Petitioner's jury reasonably may have believed that he could be
released on parole if he were not executed. To the extent that this
misunderstanding pervaded its deliberations, it had the effect of creat-
ing a false choice between sentencing him to death and sentencing him
to a limited period of incarceration. The trial court's refusal to apprise
the jury of information so crucial to its determination, particularly when
the State alluded to the defendant's future dangerousness in its argu-
ment, cannot be reconciled with this Court's well-established precedents
interpreting the Due Process Clause. See, e. g., Skipper v. South Caro-
lina, 476 U. S. 1. Pp. 161-169.
Cite as: 512 U. S. 154 (1994) 155
Syllabus
2. The trial court's instruction that life imprisonment was to be un-
derstood in its plain and ordinary meaning did not satisfy petitioner's
request for a parole ineligibility charge, since it did nothing to dispel
the misunderstanding reasonable jurors may have about the way in
which any particular State defines "life imprisonment." Pp. 169-171.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE and JUSTICE KEN-
NEDY, concluded that where the State puts a defendant's future danger-
ousness in issue, and the only available alternative sentence to death
is life imprisonment without possibility of parole, due process entitles
the defendant to inform the sentencing jury— either by argument or
instruction — that he is parole ineligible. If the prosecution does not
argue future dangerousness, a State may appropriately decide that
parole is not a proper issue for the jury's consideration even if the only
alternative sentence to death is life imprisonment without the possi-
bility of parole. Here, the trial court's instruction did not satisfy peti-
tioner's request for a parole ineligibility charge, since the rejection of
parole is a recent development displacing the longstanding practice
of parole availability, and since common sense dictates that many jurors
might not know whether a life sentence carries with it the possibility
of parole. Pp. 175-178.
BLACKMUN, J., announced the judgment of the Court and delivered an
opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined. SOUTER,
J., filed a concurring opinion, in which STEVENS, J., joined, post, p. 172.
GINSBURG, J., filed a concurring opinion, post, p. 174. O'CONNOR, J., filed
an opinion concurring in the judgment, in which REHNQUIST, C. J., and
KENNEDY, J., joined, post, p. 175. SCALIA, J., filed a dissenting opinion, in
which THOMAS, J., joined, post, p. 178.
David I. Bruck, by appointment of the Court, 510 U. S.
942, argued the cause for petitioner. With him on the briefs
was M. Anne Pearce.
Richard A. Harpootlian argued the cause for respondent.
With him on the brief were T. Travis Medlock, Attorney
General of South Carolina, and Donald J. Zelenka, Chief
Deputy Attorney General*
*A brief of amid curiae urging affirmance was filed for the State of
Idaho et al. by Larry EchoHawk, Attorney General of Idaho, and Lynn E.
Thomas, Solicitor General, Grant Woods, Attorney General of Arizona,
Daniel E. Lungren, Attorney General of California, John M. Bailey, Chief
State's Attorney of Connecticut, Roland Burris, Attorney General of Illi-
156 SIMMONS v. SOUTH CAROLINA
Opinion of BLACKMUN, J.
JUSTICE BLACKMUN announced the judgment of the Court
and delivered an opinion, in which JUSTICE STEVENS,
JUSTICE SOUTER, and JUSTICE GINSBURG join.
This case presents the question whether the Due Process
Clause of the Fourteenth Amendment was violated by the
refusal of a state trial court to instruct the jury in the
penalty phase of a capital trial that under state law the de-
fendant was ineligible for parole. We hold that where the
defendant's future dangerousness is at issue, and state law
prohibits the defendant's release on parole, due process re-
quires that the sentencing jury be informed that the defend-
ant is parole ineligible.
I
A
In July 1990, petitioner beat to death an elderly woman,
Josie Lamb, in her home in Columbia, South Carolina. The
week before petitioner's capital murder trial was scheduled
to begin, he pleaded guilty to first-degree burglary and two
counts of criminal sexual conduct in connection with two
prior assaults on elderly women. Petitioner's guilty pleas
resulted in convictions for violent offenses, and those con-
victions rendered petitioner ineligible for parole if convicted
of any subsequent violent-crime offense. S. C. Code Ann.
§24-21-640 (Supp. 1993).
Prior to jury selection, the prosecution advised the trial
judge that the State "[o]bviously [was] going to ask you
to exclude any mention of parole throughout this trial."
App. 2. Over defense counsel's objection, the trial court
granted the prosecution's motion for an order barring the
nois, Chris Gorman, Attorney General of Kentucky, Richard P. leyoub,
Attorney General of Louisiana, Joseph R Mazurek, Attorney General of
Montana, Fred DeVesa, Attorney General of New Jersey, Michael E. Eas-
ley, Attorney General of North Carolina, Mark Bamett, Attorney General
of South Dakota, and Dan Morales, Attorney General of Texas.
William C. Pelster filed a brief for Donna L. MarMe et al. as amici
curiae.
Cite as: 512 U. S. 154 (1994) 157
Opinion of BLACKMUN, J.
defense from asking any question during voir dire regarding
parole. Under the court's order, defense counsel was for-
bidden even to mention the subject of parole, and expressly
was prohibited from questioning prospective jurors as to
whether they understood the meaning of a "life" sentence
under South Carolina law.1 After a 3-day trial, petitioner
was convicted of the murder of Ms. Lamb.
During the penalty phase, the defense brought forward
mitigating evidence tending to show that petitioner's violent
behavior reflected serious mental disorders that stemmed
from years of neglect and extreme sexual and physical abuse
petitioner endured as an adolescent. While there was some
disagreement among witnesses regarding the extent to
which petitioner's mental condition properly could be
deemed a "disorder," witnesses for both the defense and the
prosecution agreed that petitioner posed a continuing danger
to elderly women.
In its closing argument the prosecution argued that peti-
tioner's future dangerousness was a factor for the jury to
consider when fixing the appropriate punishment. The
question for the jury, said the prosecution, was "what to do
with [petitioner] now that he is in our midst." 7d, at 110.
The prosecution further urged that a verdict for death would
be "a response of society to someone who is a threat. Your
verdict will be an act of self-defense." Ibid.
Petitioner sought to rebut the prosecution's generalized
argument of future dangerousness by presenting evidence
that, due to his unique psychological problems, his danger-
ousness was limited to elderly women, and that there was no
reason to expect further acts of violence once he was isolated
in a prison setting. In support of his argument, petitioner
introduced testimony from a female medical assistant and
1 The venire was informed, however, of the meaning of the term "death"
under South Carolina law. The trial judge specifically advised the pro-
spective jurors that "[b]y the death penalty, we mean death by electrocu-
tion." The sentencing jury was also so informed. App. 129.
158 SIMMONS u SOUTH CAROLINA
Opinion of BLACKMUN, J.
from two supervising officers at the Richland County jail
where petitioner had been held prior to trial. All three tes-
tified that petitioner had adapted well to prison life during
his pretrial confinement and had not behaved in a violent
manner toward any of the other inmates or staff. Petitioner
also offered expert opinion testimony from Richard L. Boyle,
a clinical social worker and former correctional employee,
who had reviewed and observed petitioner's institutional
adjustment. Mr. Boyle expressed the view that, based on
petitioner's background and his current functioning, peti-
tioner would successfully adapt to prison if he was sentenced
to life imprisonment.
Concerned that the jury might not understand that "life
imprisonment" did not carry with it the possibility of parole
in petitioner's case, defense counsel asked the trial judge to
clarify this point by defining the term "life imprisonment"
for the jury in accordance with S. C. Code Ann. § 24-21-640
(Supp. 1993).2 To buttress his request, petitioner proffered,
outside the presence of the jury, evidence conclusively es-
tablishing his parole ineligibility. On petitioner's behalf,
attorneys for the South Carolina Department of Corrections
and the Department of Probation, Parole and Pardons tes-
tified that any offender in petitioner's position was in fact
ineligible for parole under South Carolina law. The prose-
cution did not challenge or question petitioner's parole ineli-
gibility. Instead, it sought to elicit admissions from the wit-
nesses that, notwithstanding petitioner's parole ineligibility,
petitioner might receive holiday furloughs or other forms of
early release. Even this effort was unsuccessful, however,
2 Section 24-21-640 states: "The board must not grant parole nor is
parole authorized to any prisoner serving a sentence for a second or sub-
sequent conviction, following a separate sentencing from a prior con-
viction, for violent crimes as defined in Section 16-1-60." Petitioner's
earlier convictions for burglary in the first degree and criminal sexual
assault in the first degree are violent offenses under § 16-1-60.
Cite as: 512 U. S. 154 (1994) 159
Opinion of BLACKMUN, J.
as the cross-examination revealed that Department of Cor-
rections regulations prohibit petitioner's release under early
release programs such as work-release or supervised far-
loughs, and that no convicted murderer serving life without
parole ever had been furloughed or otherwise released for
any reason.
Petitioner then offered into evidence, without objection,
the results of a statewide public-opinion survey conducted
by the University of South Carolina's Institute for Public
Affairs. The survey had been conducted a few days before
petitioner's trial, and showed that only 7.1 percent of all
jury-eligible adults who were questioned firmly believed that
an inmate sentenced to life imprisonment in South Carolina
actually would be required to spend the rest of his life in
prison. See App. 152-154. Almost half of those surveyed
believed that a convicted murderer might be paroled within
20 years; nearly three-quarters thought that release cer-
tainly would occur in less than 30 years. Ibid. More than
75 percent of those surveyed indicated that if they were
called upon to make a capital sentencing decision as jurors,
the amount of time the convicted murderer actually would
have to spend in prison would be an "extremely important"
or a "very important" factor in choosing between life and
death. Id., at 155.
Petitioner argued that, in view of the public's apparent
misunderstanding about the meaning of "life imprisonment"
in South Carolina, there was a reasonable likelihood that the
jurors would vote for death simply because they believed,
mistakenly, that petitioner eventually would be released on
parole.
The prosecution opposed the proposed instruction, urging
the court "not to allow . . . any argument by state or defense
about parole and not charge the jury on anything concerning
parole." Id., at 37. Citing the South Carolina Supreme
Court's opinion in State v. Torrence, 305 S. C. 45, 406 S. E.
160 SIMMONS v. SOUTH CAROLINA
Opinion of BLACKMUN, J.
2d 315 (1991), the trial court refused petitioner's requested
instruction. Petitioner then asked alternatively for the
following instruction:
"I charge you that these sentences mean what they
say. That is, if you recommend that the defendant Jon-
athan Simmons be sentenced to death, he actually will
be sentenced to death and executed. If, on the other
hand, you recommend that he be sentenced to life im-
prisonment, he actually will be sentenced to imprison-
ment in the state penitentiary for the balance of his
natural life.
"In your deliberations, you are not to speculate that
these sentences mean anything other than what I have
just told you, for what I have told you is exactly what
will happen to the defendant, depending on what your
sentencing decision is." App. 162.
The trial judge also refused to give this instruction, but in-
dicated that he might give a similar instruction if the jury
inquired about parole eligibility.
After deliberating on petitioner's sentence for 90 minutes,
the jury sent a note to the judge asking a single question:
"Does the imposition of a life sentence carry with it the pos-
sibility of parole?" Id., at 145. Over petitioner's objection,
the trial judge gave the following instruction:
"You are instructed not to consider parole or parole
eligibility in reaching your verdict. Do not consider
parole or parole eligibility. That is not a proper issue
for your consideration. The terms life imprisonment
and death sentence are to be understood in their plan
[sic] and ordinary meaning." Id., at 146.
Twenty-five minutes after receiving this response from the
court, the jury returned to the courtroom with a sentence
of death.
On appeal to the South Carolina Supreme Court, peti-
tioner argued that the trial judge's refusal to provide the
jury accurate information regarding his parole ineligibil-
Cite as: 512 U. S. 154 (1994) 161
Opinion of BLACKMUN, J.
ity violated the Eighth Amendment and the Due Process
Clause of the Fourteenth Amendment.3 The South Carolina
Supreme Court declined to reach the merits of petitioner's
challenges. With one justice dissenting, it concluded that,
regardless of whether a trial court's refusal to inform a sen-
tencing jury about a defendant's parole ineligibility might
be error under some circumstances, the instruction given to
petitioner's jury "satisfie[d] in substance [petitioner's] re-
quest for a charge on parole ineligibility," and thus there was
no reason to consider whether denial of such an instruction
would be constitutional error in this case. 310 S. C. 439, 444,
427 S. E. 2d 175, 179 (1993). We granted certiorari, 510 U. S.
811 (1993).
II
The Due Process Clause does not allow the execution of a
person "on the basis of information which he had no oppor-
tunity to deny or explain." Gardner v. Florida, 430 U. S.
349, 362 (1977). In this case, the jury reasonably may have
believed that petitioner could be released on parole if he
were not executed. To the extent this misunderstanding
pervaded the jury's deliberations, it had the effect of creating
a false choice between sentencing petitioner to death and
sentencing him to a limited period of incarceration. This
8 Specifically, petitioner argued that under the Eighth Amendment his
parole ineligibility was " 'mitigating' in the sense that [it] might serve 'as
a basis for a sentence less than death,'" Skipper v. South Carolina, 476
U. S. 1, 4-5 (1986), quoting Lockett v. Ohio, 438 U. S. 586, 604 (1978)
(plurality opinion), and that therefore he was entitled to inform the jury
of his parole ineligibility. He also asserted that by withholding from the
jury the fact that it had a life-without-parole sentencing alternative, the
trial court impermissibly diminished the reliability of the jury's determi-
nation that death was the appropriate punishment. Cf Beck v. Alabama,
447 U. S. 625 (1980). Finally, relying on the authority of Gardner v. Flor-
ida, 430 U. S. 349 (1977), petitioner argued that his due process right to
rebut the State's argument that petitioner posed a future danger to society
had been violated by the trial court's refusal to permit him to show that
a noncapital sentence adequately could protect the public from any ftrture
acts of violence by him.
162 SIMMONS v. SOUTH CAROLINA
Opinion of BLACKMUN, J.
grievous misperception was encouraged by the trial court's
refusal to provide the jury with accurate information re-
garding petitioner's parole ineligibility, and by the State's
repeated suggestion that petitioner would pose a future dan-
ger to society if he were not executed. Three times peti-
tioner asked to inform the jury that in fact he was ineligible
for parole under state law; three times his request was de-
nied. The State thus succeeded in securing a death sen-
tence on the ground, at least in part, of petitioner's future
dangerousness, while at the same time concealing from the
sentencing jury the true meaning of its noncapital sentencing
alternative, namely, that life imprisonment meant life with-
out parole. We think it is clear that the State denied peti-
tioner due process.4
A
This Court has approved the jury's consideration of future
dangerousness during the penalty phase of a capital trial,
recognizing that a defendant's future dangerousness bears on
all sentencing determinations made in our criminal justice
system. See Jurek v. Texas, 428 U. S. 262, 275 (1976) (joint
opinion of Stewart, Powell, and STEVENS, JJ.) (noting that
"any sentencing authority must predict a convicted person's
probable future conduct when it engages in the process of
determining what punishment to impose"); California v.
Ramos, 463 U. S. 992, 1003, n. 17 (1983) (explaining that it
is proper for a sentencing jury in a capital case to consider
"the defendant's potential for reform and whether his proba-
ble future behavior counsels against the desirability of his
release into society").
Although South Carolina statutes do not mandate consid-
eration of the defendant's future dangerousness in capital
sentencing, the State's evidence in aggravation is not limited
to evidence relating to statutory aggravating circumstances.
4 We express no opinion on the question whether the result we reach
today is also compelled by the Eighth Amendment.
Cite as: 512 U. S. 154 (1994) 163
Opinion of BLACKMUN, J.
See Barclay v. Florida, 463 U. S. 939, 948-951 (1983) (plural-
ity opinion); California v. Ramos, 463 U. S., at 1008 ("Once
the jury finds that the defendant falls within the legislatively
defined category of persons eligible for the death penalty . . .
the jury then is free to consider a myriad of factors to de-
termine whether death is the appropriate punishment").
Thus, prosecutors in South Carolina, like those in other
States that impose the death penalty, frequently emphasize
a defendant's future dangerousness in their evidence and ar-
gument at the sentencing phase; they urge the jury to sen-
tence the defendant to death so that he will not be a danger
to the public if released from prison. Eisenberg & Wells,
Deadly Confusion: Juror Instructions in Capital Cases, 79
Cornell L. Rev. 1, 4 (1993).
Arguments relating to a defendant's future dangerousness
ordinarily would be inappropriate at the guilt phase of a
trial, as the jury is not free to convict a defendant simply
because he poses a future danger; nor is a defendant's future
dangerousness likely relevant to the question whether each
element of an alleged offense has been proved beyond a rea-
sonable doubt. But where the jury has sentencing responsi-
bilities in a capital trial, many issues that are irrelevant to
the guilt-innocence determination step into the foreground
and require consideration at the sentencing phase. The de-
fendant's character, prior criminal history, mental capacity,
background, and age are just a few of the many factors, in
addition to future dangerousness, that a jury may consider
in fixing appropriate punishment. See Lockett v. Ohio, 438
U. S. 586 (1978); Eddings v. Oklahoma, 455 U. S. 104, 110
(1982); Barclay v. Florida, 463 U. S., at 948-951.
In assessing future dangerousness, the actual duration of
the defendant's prison sentence is indisputably relevant.
Holding all other factors constant, it is entirely reasonable
for a sentencing jury to view a defendant who is eligible for
parole as a greater threat to society than a defendant who is
not. Indeed, there may be no greater assurance of a defend-
164 SIMMONS u SOUTH CAROLINA
Opinion of BLACKMUN, J.
ant's future nondangerousness to the public than the fact
that he never will be released on parole. The trial court's
refusal to apprise the jury of information so crucial to its
sentencing determination, particularly when the prosecution
alluded to the defendant's future dangerousness in its argu-
ment to the jury, cannot be reconciled with our well-
established precedents interpreting the Due Process Clause.
B
In Skipper v. South Carolina, 476 U. S. 1 (1986), this Court
held that a defendant was denied due process by the refusal
of the state trial court to admit evidence of the defendant's
good behavior in prison in the penalty phase of his capital
trial. Although the majority opinion stressed that the de-
fendant's good behavior in prison was "relevant evidence in
mitigation of punishment," and thus admissible under the
Eighth Amendment, id., at 4, citing Lockett v. Ohio, 438
U. S., at 604 (plurality opinion), the Skipper opinion ex-
pressly noted that the Court's conclusion also was compelled
by the Due Process Clause. The Court explained that
where the prosecution relies on a prediction of future dan-
gerousness in requesting the death penalty, elemental due
process principles operate to require admission of the de-
fendant's relevant evidence in rebuttal. 476 U. S., at 5, n. 1.
See also id., at 9 (Powell, J., opinion concurring in judgment)
("[B]ecause petitioner was not allowed to rebut evidence and
argument used against him," the defendant clearly was de-
nied due process).
The Court reached a similar conclusion in Gardner v. Flor-
ida, 430 U. S. 349 (1977). In that case, a defendant was sen-
tenced to death on the basis of a presentence report which
was not made available to him and which he therefore could
not rebut. A plurality of the Court explained that sending
a man to his death "on the basis of information which he
had no opportunity to deny or explain" violated fundamen-
tal notions of due process. Id., at 362. The principle an-
Cite as: 512 U. S. 154 (1994) 165
Opinion of BLACKMUN, J.
nounced in Gardner was reaffirmed in Skipper, and it com-
pels our decision today. See also Crane v. Kentucky, 476
U. S. 683, 690 (1986) (due process entitles a defendant to "<a
meaningful opportunity to present a complete defense"*) (ci-
tation omitted); Me v. Oklahoma, 470 U. S. 68, 83-87 (1985)
(where the State presents psychiatric evidence of a defend-
ant's future dangerousness at a capital sentencing proceed-
ing, due process entitles an indigent defendant to the assist-
ance of a psychiatrist for the development of his defense).
Like the defendants in Skipper and Gardner, petitioner
was prevented from rebutting information that the sentenc-
ing authority considered, and upon which it may have relied,
in imposing the sentence of death. The State raised the
specter of petitioner's future dangerousness generally, but
then thwarted all efforts by petitioner to demonstrate that,
contrary to the prosecutor's intimations, he never would be
released on parole and thus, in his view, would not pose a
future danger to society.5 The logic and effectiveness of
petitioner's argument naturally depended on the fact that he
was legally ineligible for parole and thus would remain in
prison if afforded a life sentence. Petitioner's efforts to
focus the jury's attention on the question whether, in prison,
he would be a future danger were futile, as he repeatedly
was denied any opportunity to inform the jury that he never
would be released on parole. The jury was left to speculate
about petitioner's parole eligibility when evaluating peti-
tioner's future dangerousness, and was denied a straight an-
5 Of course, the fact that a defendant is parole ineligible does not prevent
the State from arguing that the defendant poses a future danger. The
State is free to argue that the defendant will pose a danger to others in
prison and that executing him is the only means of eliminating the threat
to the safety of other inmates or prison staff But the State may not
mislead the jury by concealing accurate information about the defendant's
parole ineligibility. The Due Process Clause will not tolerate placing a
capital defendant in a straitjacket by barring him from rebutting the
prosecution's arguments of future dangerousness with the fact that he is
ineligible for parole under state law.
166 SIMMONS v. SOUTH CAROLINA
Opinion of BLACKMUN, J.
swer about petitioner's parole eligibility even when it was
requested.
C
The State and its amid contend that petitioner was not
entitled to an instruction informing the jury that petitioner
is ineligible for parole because such information is inherently
misleading.6 Essentially, they argue that because future ex-
igencies such as legislative reform, commutation, clemency,
and escape might allow petitioner to be released into society,
petitioner was not entitled to inform the jury that he is pa-
role ineligible. Insofar as this argument is targeted at the
specific wording of the instruction petitioner requested, the
argument is misplaced. Petitioner's requested instruction
("If . . . you recommend that [the defendant] be sentenced to
life imprisonment, he actually will be sentenced to imprison-
ment in the state penitentiary for the balance of his natural
life/' App. 162) was proposed only after the trial court ruled
that South Carolina law prohibited a plain-language instruc-
tion that petitioner was ineligible for parole under state law.
To the extent that the State opposes even a simple parole-
ineligibility instruction because of hypothetical future devel-
opments, the argument has little force. Respondent admits
that an instruction informing the jury that petitioner is ineli-
gible for parole is legally accurate. Certainly, such an in-
struction is more accurate than no instruction at all, which
leaves the jury to speculate whether "life imprisonment"
means life without parole or something else.
The State's asserted accuracy concerns are further under-
mined by the fact that a large majority of States which pro-
6 In this regard, the State emphasizes that no statute prohibits petition-
er's eventual release into society. While this technically may be true,
state regulations unambiguously prohibit work-release and virtually all
other furloughs for inmates who are ineligible for parole. See App. 16.
As for pardons, the statute itself provides that they are available only in
"the most extraordinary circumstances." S. C. Code Ann. §24-21-950D
(1989).
Cite as: 512 U. S. 154 (1994) 167
Opinion of BLACKMUN, J.
vide for life imprisonment without parole as an alternative
to capital punishment inform the sentencing authority of the
defendant's parole ineligibility.7 The few States that do not
provide capital sentencing juries with any information re-
garding parole ineligibility seem to rely, as South Carolina
7 At present, there are 26 States that both employ juries in capital sen-
tencing and provide for life imprisonment without parole as an alternative
to capital punishment. In 17 of these, the jury expressly is informed of
the defendant's ineligibility for parole. Nine States simply identify the
jury's sentencing alternatives as death and life without parole. See Ala.
Code §13A-5-46(e) (1982); Ark. Code Ann. §5-4-603(b) (1993); CaL Penal
Code Ann. §190.3 (West 1988); Conn. Gen. Stat. §53a-46a(f) (1985); Del.
Code Ann., Tit. 11, §4209(a) (1987); La. Code Crim. Proc. Ann., Art. 905.6
(West Supp. 1994); Mo. Rev. Stat. §565.030.4 (Supp. 1993); N. H. Rev. Stat.
Ann. §630:5 (Supp. 1992); Wash. Rev. Code §10.95.030 (1994). Eight
States allow the jury to specify whether the defendant should or should
not be eligible for parole. See Ga. Code Ann. § 17-10-31.1(a) (Supp. 1993);
Ind. Code §35-50-2-9 (Supp. 1993); Md. Ann. Code, Art. 27, §413(c)(3)
(Supp. 1993); Nev. Rev. Stat. § 175.554(2)(c)(2) (1993); Okla. Stat. Ann. Tit.
21, §701.10(A) (Supp. 1993-1994); Ore. Rev. Stat. §163.105 (1991); Tenn.
Code Ann. §§39-13-204(a)-(f)(2) (Supp. 1993); Utah Code Ann. §76-3-
207(4) (Supp. 1993).
In three States, statutory or decisional law requires that the sentencing
jury be instructed, where accurate, that the defendant will be ineligible
for parole. See Colo. Rev. Stat. § 16-ll-103(l)(b) (Supp. 1993); People v.
Gacho, 122 111. 2d 221, 262, 522 N. E. 2d 1146, 1166 (1988); Turner v. State,
573 So. 2d 657, 675 (Miss. 1990), cert, denied, 500 U. S. 910 (1991).
Three States have not considered the question whether jurors should
be instructed that the defendant is ineligible for parole under state law.
See Fla. Stat. Ann. §775.0823(1) (Supp. 1994); S. D. Codified Laws §24-
15-4 (1988); Wyo. Stat. §§ 6-2-101(b), 7-13-402(a) (1993). The Florida Su-
preme Court, however, has approved for publication pattern jury instruc-
tions that inform capital sentencing juries of the no-parole feature of
Fla. Stat. Ann. § 775.0823(1). See Standard Jury Instructions — CMminal
Cases No. 92-1, 603 So. 2d 1175, 1205 (Fla. 1992).
Finally, there are four States in which the capital sentencing decision is
made by the trial judge alone or by a sentencing panel of judges. Thus,
in these States, as well, the sentencing authority is fully aware of the
precise parole status of life-sentenced murderers. Ariz. Rev. Stat, Ann.
§13-703(B) (Supp. 1993); Idaho Code § 19~2515(d) (1987); Mont. Code Ann.
§46-18-301 (1993); Neb. Rev. Stat. §29-2520 (1989).
168 SIMMONS v. SOUTH CAROLINA
Opinion of BLACKMUN, J.
does here, on the proposition that California v. Ramos, 463
U. S. 992 (1983), held that such determinations are purely
matters of state law.8
It is true that Ramos stands for the broad proposition that
we generally will defer to a State's determination as to what
a jury should and should not be told about sentencing. In
a State in which parole is available, how the jury's knowl-
edge of parole availability will affect the decision whether or
not to impose the death penalty is speculative, and we shall
not lightly second-guess a decision whether or not to inform
a jury of information regarding parole. States reasonably
may conclude that truthful information regarding the avail-
ability of commutation, pardon, and the like should be kept
from the jury in order to provide "greater protection in [the
States'] criminal justice system than the Federal Consti-
tution requires." 7d., at 1014. Concomitantly, nothing in
the Constitution prohibits the prosecution from arguing
any truthful information relating to parole or other forms of
early release.
But if the State rests its case for imposing the death pen-
alty at least in part on the premise that the defendant will
8 Only two States other than South Carolina have a life-without-parole
sentencing alternative to capital punishment for some or all convicted
murderers but refuse to inform sentencing juries of this fact. See Com-
monwealth v. Henry, 524 Pa. 135, 160, 569 A. 2d 929, 941 (1990), cert,
denied, 499 U. S. 931 (1991); Commonwealth v. Strong, 522 Pa. 445, 458-
460, 563 A. 2d 479, 485-486 (1989); Eaton v. Commonwealth, 240 Va. 236,
248-249, 397 S. E. 2d 385, 392-393 (1990), cert, denied, 502 U. S. 824 (1991);
O'Dell v. Commonwealth, 234 Va. 672, 701, 364 S. E. 2d 491, 507, cert,
denied, 488 U. S. 871 (1988).
JUSTICE SCAUA points out that two additional States, Texas and North
Carolina, traditionally have kept information about a capital defendant's
parole ineligibility from the sentencing jury. See post, at 179. Neither
of these States, however, has a life-without-parole sentencing alternative
to capital punishment. It is also worthy of note that, pursuant to recently
enacted legislation, North Carolina now requires trial courts to instruct
capital sentencing juries concerning parole eligibility. See 1993 N. C.
Sess. Laws, ch. 538, §29.
Cite as: 512 U. S. 154 (1994) 169
Opinion of BLACKMUN, J.
be dangerous in the future, the fact that the alternative sen-
tence to death is life without parole will necessarily undercut
the State's argument regarding the threat the defendant
poses to society. Because truthful information of parole
ineligibility allows the defendant to "deny or explain" the
showing of future dangerousness, due process plainly re-
quires that he be allowed to bring it to the jury's attention
by way of argument by defense counsel or an instruction
from the court. See Gardner, 430 U. S., at 362.
Ill
There remains to be considered whether the South Caro-
lina Supreme Court was correct in concluding that the trial
court "satisfie[d] in substance [petitioner's] request for a
charge on parole ineligibility/' 310 S. C., at 444, 427 S. E. 2d,
at 179, when it responded to the jury's query by stating that
life imprisonment was to be understood in its "plain and
ordinary meaning," ibid. In the court's view, petitioner
basically received the parole-ineligibility instruction he re-
quested. We disagree.
It can hardly be questioned that most juries lack accurate
information about the precise meaning of "life imprison-
ment" as defined by the States. For much of our country's
history, parole was a mainstay of state and federal sentenc-
ing regimes, and every term (whether a term of life or a
term of years) in practice was understood to be shorter than
the stated term. See generally Lowenthal, Mandatory
Sentencing Laws: Undermining the Effectiveness of De-
terminate Sentencing Reform, 81 Calif. L. Rev. 61 (1993)
(describing the development of mandatory sentencing laws).
Increasingly, legislatures have enacted mandatory sentenc-
ing laws with severe penalty provisions, yet the precise con-
tours of these penal laws vary from State to State. See
Cheatwood, The Life-Without-Parole Sanction: Its Current
Status and a Research Agenda, 34 Crime & Delinq. 43, 45,
48 (1988). Justice Chandler of the South Carolina Supreme
170 SIMMONS v. SOUTH CAROLINA
Opinion of BLACKMUN, J.
Court observed that it is impossible to ignore "the reality,
known to the 'reasonable juror/ that, historically, life-term
defendants have been eligible for parole." State v. Smith,
298 S. C. 482, 489-490, 381 S. E. 2d 724, 728 (1989) (opinion
concurring and dissenting), cert, denied, 494 U. S. 1060
(1990).9
An instruction directing juries that life imprisonment
should be understood in its "plain and ordinary" meaning
does nothing to dispel the misunderstanding reasonable ju-
rors may have about the way in which any particular State
defines "life imprisonment." 10 See Boyde v. California, 494
U. S. 370, 380 (1990) (where there is a "reasonable likelihood
that the jury has applied the challenged instruction in a way
that prevents the consideration of constitutionally relevant
evidence," the defendant is denied due process).
It is true, as the State points out, that the trial court ad-
monished the jury that "you are instructed not to consider
parole" and that parole "is not a proper issue for your consid-
eration." App. 146. Far from ensuring that the jury was
not misled, however, this instruction actually suggested that
parole was available but that the jury, for some unstated
reason, should be blind to this fact. Undoubtedly, the in-
struction was confusing and frustrating to the jury, given
9 Public opinion and juror surveys support the commonsense under-
standing that there is a reasonable likelihood of juror confusion about the
meaning of the term "life imprisonment." See Paduano & Smith, Deadly
Errors: Juror Misperceptions Concerning Parole in the Imposition of the
Death Penalty, 18 Colum. Human Rights L. Rev. 211, 222-225 (1987); Note,
The Meaning of "Life" for Virginia Jurors and Its Effect on Reliability in
Capital Sentencing, 75 Va. L. Rev. 1605, 1624 (1989); Eisenberg & Wells,
Deadly Confusion: Juror Instructions in Capital Cases, 79 Cornell L. Rev.
1 (1993); Bowers, Capital Punishment and Contemporary Values: People's
Misgivings and the Court's Misperceptions, 27 Law & Society 157, 169-
170 (1993).
10 It almost goes without saying that if the jury in this case understood
that the "plain meaning" of "Hfe imprisonment" was life without parole in
South Carolina, there would have been no reason for the jury to inquire
about petitioner's parole eligibility.
Cite as: 512 U. S. 164 (1994) 171
Opinion of BLACKMUN, J.
the arguments by both the prosecution and the defense re-
lating to petitioner's future dangerousness, and the obvious
relevance of petitioner's parole ineligibility to the jury's for-
midable sentencing task. While juries ordinarily are pre-
sumed to follow the court's instructions, see Greer v. Miller,
483 U. S. 756, 766, n. 8 (1987), we have recognized that in
some circumstances "the risk that the jury will not, or can-
not, follow instructions is so great, and the consequences of
failure so vital to the defendant, that the practical and human
limitations of the jury system cannot be ignored." Bruton
v. United States, 391 U. S. 123, 135 (1968). See also Beck v.
Alabama, 447 U. S. 625, 642 (1980); Barclay v. Florida, 463
U. S., at 950 ("Any sentencing decision calls for the exercise
of judgment. It is neither possible nor desirable for a per-
son to whom the State entrusts an important judgment to
decide in a vacuum, as if he had no experiences").
But even if the trial court's instruction successfully pre-
vented the jury from considering parole, petitioner's due
process rights still were not honored. Because petitioner's
future dangerousness was at issue, he was entitled to inform
the jury of his parole ineligibility. An instruction directing
the jury not to consider the defendant's likely conduct in
prison would not have satisfied due process in Skipper v.
South Carolina, 476 U. S. 1 (1986), and, for the same rea-
sons, the instruction issued by the trial court in this case
does not satisfy due process.
IV
The State may not create a false dilemma by advancing
generalized arguments regarding the defendant's future dan-
gerousness while, at the same time, preventing the jury from
learning that the defendant never will be released on parole.
The judgment of the South Carolina Supreme Court accord-
ingly is reversed, and the case is remanded for further
proceedings.
It is so ordered.
172 SIMMONS v. SOUTH CAROLINA
SOUTER, J., concurring
JUSTICE SOUTER, with whom JUSTICE STEVENS joins,
concurring.
I join in JUSTICE BLACKMUN'S opinion that, at least when
future dangerousness is an issue in a capital sentencing de-
termination, the defendant has a due process right to require
that his sentencing jury be informed of his ineligibility for
parole. I write separately because I believe an additional,
related principle also compels today's decision, regardless of
whether future dangerousness is an issue at sentencing.
The Eighth Amendment entitles a defendant to a jury ca-
pable of a reasoned moral judgment about whether death,
rather than some lesser sentence, ought to be imposed. The
Court has explained that the Amendment imposes a height-
ened standard "for reliability in the determination that death
is the appropriate punishment in a specific case/' Woodson
v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion
of Stewart, Powell, and STEVENS, JJ.); see also, e. g., Godfrey
v. Georgia, 446 U. S. 420, 427-428 (1980); Mills v. Maryland,
486 U. S. 367, 383-384 (1988). Thus, it requires provision of
"accurate sentencing information [as] an indispensable pre-
requisite to a reasoned determination of whether a defendant
shall live or die/' Gregg v. Georgia, 428 U. S. 153, 190 (1976)
(joint opinion of Stewart, Powell, and STEVENS, JJ.), and in-
validates "procedural rules that ten[d] to diminish the relia-
bility of the sentencing determination," Beck v. Alabama,
447 U. S. 625, 638 (1980).
That same need for heightened reliability also mandates
recognition of a capital defendant's right to require instruc-
tions on the meaning of the legal terms used to describe the
sentences (or sentencing recommendations) a jury is required
to consider, in making the reasoned moral choice between
sentencing alternatives. Thus, whenever there is a reason-
able likelihood that a juror will misunderstand a sentencing
term, a defendant may demand instruction on its meaning,
and a death sentence following the refusal of such a request
Cite as: 512 U. S. 154 (1994) 173
SOUTER, J., concurring
should be vacated as having been "arbitrarily or discrimina-
torily" and "wantonly and . . . freakishly imposed." Fur-
man v. Georgia, 408 U S. 238, 249 (1972) (Douglas, J., con-
curring) (internal quotation marks omitted); id., at 310
(Stewart, J., concurring).
While I join the other Members of the Court's majority in
holding that, at least, counsel ought to be permitted to in-
form the jury of the law that it must apply, see ante, at 169
(plurality opinion); post, at 174 (GiNSBURG, J., concurring);
post, at 178 (O'CONNOR, J., concurring in judgment), I also
accept the general rule that, on matters of law, arguments of
counsel do not effectively substitute for statements by the
court.
"[Ajrguments of counsel generally carry less weight
with a jury than do instructions from the court. The
former are usually billed in advance to the jury as mat-
ters of argument, not evidence, and are likely viewed as
the statements of advocates; the latter, we have often
recognized, are viewed as definitive and binding state-
ments of the law." Boyde v. California, 494 U. S. 370,
384 (1990) (citation omitted).
I would thus impose that straightforward duty on the court.
Because JUSTICE BLACKMUN persuasively demonstrates
that juries in general are likely to misunderstand the mean-
ing of the term "life imprisonment" in a given context, see
ante, at 159, 169-170, and n. 9, the judge must tell the jury
what the term means, when the defendant so requests. It
is, moreover, clear that at least one of these particular jurors
did not understand the meaning of the term, since the jury
sent a note to the judge asking, "Does the imposition of a
life sentence carry with it the possibility of parole?" Ante,
at 160, 170, n. 10. The answer here was easy and controlled
by state statute. The judge should have said no. JUSTICE
BLACKMUN shows that the instruction actually given was at
174 SIMMONS v. SOUTH CAROLINA
GINSBURG, J., concurring
best a confusing, "equivocal direction to the jury on a basic
issue/' Bollenbach v. United States, 326 U. S. 607, 613 (1946),
and that "there is a reasonable likelihood that the jury has
applied the challenged instruction in a way" that violated
petitioner's rights. Boyde, supra, at 380. By effectively
withholding from the jury the life-without-parole alternative,
the trial court diminished the reliability of the jury's decision
that death, rather than that alternative, was the appropriate
penalty in this case.
While States are, of course, free to provide more protec-
tion for the accused than the Constitution requires, see Cali-
fornia v. Ramos, 463 U. S. 992, 1014 (1983), they may not
provide less. South Carolina did so here. For these rea-
sons, as well as those set forth by JUSTICE BLACKMUN,
whose opinion I join, the judgment of the Supreme Court of
South Carolina must be reversed.
JUSTICE GINSBURG, concurring.
This case is most readily resolved under a core require-
ment of due process, the right to be heard. Crane v. Ken-
tucky, 476 U.S. 683, 690 (1986). When the prosecution
urges a defendant's future dangerousness as cause for the
death sentence, the defendant's right to be heard means that
he must be afforded an opportunity to rebut the argument.
See Skipper v. South Carolina, 476 U. S. 1, 5, n. 1 (1986).
To be full and fair, that opportunity must include the right
to inform the jury, if it is indeed the case, that the defendant
is ineligible for parole. JUSTICE BLACKMUN'S opinion is in
accord with JUSTICE O'CONNOR'S on this essential point.
See ante, at 164, 165-166, 168-169; post, at 176-178.
As a subsidiary matter, JUSTICE O'CONNOR'S opinion clari-
fies that the due process requirement is met if the relevant
information is intelligently conveyed to the jury; due process
does not dictate that the judge herself, rather than defense
counsel, provide the instruction. See post, at 177-178. I do
Cite as: 512 U. S. 154 (1994) 175
O'CONNOR, J., concurring in judgment
not read JUSTICE BLACKMUN'S opinion to say otherwise.*
And I note that the trial court here not only refused to instruct
the jury that in this case life means "life without parole"; the
court also ordered petitioner's counsel to refrain from saying
anything to the jury about parole ineligibility. App. 55-57.
On these understandings, I concur in JUSTICE BLACK-
MUN'S opinion.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and
JUSTICE KENNEDY join, concurring in the judgment.
"Capital sentencing proceedings must of course satisfy the
dictates of the Due Process Clause/' demons v. Mississippi,
494 U. S. 738, 746 (1990), and one of the hallmarks of due
process in our adversary system is the defendant's ability to
meet the State's case against him. Cf. Crane v. Kentucky,
476 U. S. 683, 690 (1986). In capital cases, we have held that
the defendant's future dangerousness is a consideration on
which the State may rely in seeking the death penalty. See
California v. Ramos, 463 U. S. 992, 1002-4003 (1983). But
"[w]here the prosecution specifically relies on a prediction
of future dangerousness in asking for the death penalty, . . .
the elemental due process requirement that a defendant not
be sentenced to death 'on the basis of information which he
had no opportunity to deny or explain' [requires that the de-
fendant be afforded an opportunity to introduce evidence on
this point]/' Skipper v. South Carolina, 476 U. S. 1, 5, n. 1
(1986), quoting Gardner v. Florida, 430 U. S. 349, 362 (1977)
(plurality opinion); see also 476 U. S., at 9-10 (Powell, J., con-
curring in judgment).
In this case, petitioner physically and sexually assaulted
three elderly women — one of them his own grandmother —
before killing a fourth. At the capital sentencing proceed-
*Compare ante, at 162, n. 4 (refraining from addressing Simmons' Eighth
Amendment claim), with ante, at 173-174 (SouTEK, J., concurring) (Eighth
Amendment requires judge to instruct jury about parole ineligibility).
176 SIMMONS v. SOUTH CAROLINA
O'CONNOR, J., concurring in judgment
ing, the State sought to show that petitioner is a vicious
predator who would pose a continuing threat to the commu-
nity. The prosecutor argued that the jury's role was to de-
cide "what to do with [petitioner] now that he is in our
midst," App. 110, and told the jury: "Your verdict should be
a response of society to someone who is a threat. Your ver-
dict will be an act of self-defense," ibid.; see also id., at 102,
112. Petitioner's response was that he only preyed on
elderly women, a class of victims he would not encounter
behind bars. See id., at 121; ante, at 157 (plurality opinion).
This argument stood a chance of succeeding, if at all, only if
the jury were convinced that petitioner would stay in prison.
Although the only available alternative sentence to death in
petitioner's case was life imprisonment without possibility of
parole, S. C. Code Ann. §§ 16-3-20(A) and 24-21-640 (Supp.
1993), the trial court precluded the jury from learning that
petitioner would never be released from prison.
Unlike in Skipper, where the defendant sought to intro-
duce factual evidence tending to disprove the State's show-
ing of future dangerousness, see 476 U. S., at 3; id., at 10-11
(Powell, J., concurring in judgment), petitioner sought to rely
on the operation of South Carolina's sentencing law in ar-
guing that he would not pose a threat to the community if
he were sentenced to life imprisonment. We have pre-
viously noted with approval, however, that "[m]any state
courts have held it improper for the jury to consider or to
be informed — through argument or instruction — of the pos-
sibility of commutation, pardon, or parole." California v.
Ramos, 463 U. S., at 1013, n. 30. The decision whether or
not to inform the jury of the possibility of early release is
generally left to the States. See id., at 1014. In a State in
which parole is available, the Constitution does not require
(or preclude) jury consideration of that fact. Likewise, if
the prosecution does not argue future dangerousness, the
State may appropriately decide that parole is not a proper
issue for the jury's consideration even if the only alternative
Cite as: 512 II S. 154 (1994) 177
O'CONNOR, J., concurring in judgment
sentence to death is life imprisonment without possibility of
parole.
When the State seeks to show the defendant's future dan-
gerousness, however, the fact that he will never be released
from prison will often be the only way that a violent criminal
can successfully rebut the State's case. I agree with the
Court that in such a case the defendant should be allowed to
bring his parole ineligibility to the jury's attention — by way
of argument by defense counsel or an instruction from the
court — as a means of responding to the State's showing of
future dangerousness. And despite our general deference
to state decisions regarding what the jury should be told
about sentencing, I agree that due process requires that the
defendant be allowed to do so in cases in which the only
available alternative sentence to death is life imprisonment
without possibility of parole and the prosecution argues that
the defendant will pose a threat to society in the future. Of
course, in such cases the prosecution is free to argue that the
defendant would be dangerous in prison; the State may also
(though it need not) inform the jury of any truthful informa-
tion regarding the availability of commutation, pardon, and
the like. See id., at 1001-1009.
The prosecutor in this case put petitioner's future danger-
ousness in issue, but petitioner was not permitted to argue
parole ineligibility to the capital sentencing jury. Although
the trial judge instructed the jurors that "[t]he terms life
imprisonment and death sentence are to be understood in
their pla[i]n and ordinary meaning," App. 146, 1 cannot agree
with the court below that this instruction "satisfie[d] in sub-
stance [petitioner's] request for a charge on parole ineligibil-
ity." 310 S. C. 439, 444, 427 S. E. 2d 175, 179 (1993). The
rejection of parole by many States (and the Federal Govern-
ment) is a recent development that displaces the longstand-
ing practice of parole availability, see ante, at 169-170 (plu-
rality opinion), and common sense tells us that many jurors
might not know whether a life sentence carries with it the
178 SIMMONS v. SOUTH CAROLINA
SCALIA, J., dissenting
possibility of parole. While it may come to pass that the
"plain and ordinary meaning" of a life sentence is life without
parole, that the jury in this case felt compelled to ask
whether parole was available shows that the jurors did not
know whether or not a life-sentenced defendant will be re-
leased from prison. Moreover, the prosecutor, by referring
to a verdict of death as an act of "self-defense," strongly
implied that petitioner would be let out eventually if the jury
did not recommend a death sentence.
Where the State puts the defendant's future dangerous-
ness in issue, and the only available alternative sentence to
death is life imprisonment without possibility of parole, due
process entitles the defendant to inform the capital sentenc-
ing jury — by either argument or instruction — that he is pa-
role ineligible. In this case, the prosecution argued at the
capital sentencing proceeding that petitioner would be dan-
gerous in the future. Although the only alternative sen-
tence to death under state law was life imprisonment with-
out possibility of parole, petitioner was not allowed to argue
to the jury that he would never be released from prison,
and the trial judge's instruction did not communicate this
information to the jury. I therefore concur in the Court's
judgment that petitioner was denied the due process of law
to which he is constitutionally entitled.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
dissenting.
Today's judgment certainly seems reasonable enough as a
determination of what a capital sentencing jury should be
permitted to consider. That is not, however, what it pur-
ports to be. It purports to be a determination that any capi-
tal sentencing scheme that does not permit jury consider-
ation of such material is so incompatible with our national
traditions of criminal procedure that it violates the Due
Process Clause of the Constitution of the United States.
There is really no basis for such a pronouncement, neither in
Cite as: 512 U. S. 164 (1994) 179
SCALIA, J., dissenting
any near uniform practice of our people, nor in the jurispru-
dence of this Court.
With respect to the former I shall discuss only current
practice, since the parties and amid have addressed only
that, and since traditional practice may be relatively uninfor-
mative with regard to the new schemes of capital sentencing
imposed upon the States by this Court's recent jurispru-
dence. The overwhelming majority of the 32 States that
permit juries to impose or recommend capital sentences do
not allow specific information regarding parole to be given to
the jury. To be sure, in many of these States the sentencing
choices specifically include "life without parole/' so that the
jury charge itself conveys the information whether parole is
available. In at least eight of those States, however, the
jury's choice is not merely between "life without parole" and
"death," but among some variation of (parole eligible) "life,"
"life without parole," and "death"1 — so that the precise date
of availability of parole is relevant to the jury's choice. More-
over, even among those States that permit the jury to choose
only between "life" (unspecified) and "death," South Carolina
is not alone in keeping parole information from the jury.
Four other States in widely separated parts of the country
follow that same course,2 and there are other States that lack
irThe eight States are Georgia, see Ga. Code Ann. §17-10-31.1 (Supp.
1993), Indiana, see Ind. Code §35-50-2-9 (1993), Maryland, see Md. Ann.
Code, Art. 27, §413(c)(3) (Supp. 1993), Nevada, see Nev. Rev. Stat
§ 175.554(2)(c)(2) (1993), Oklahoma, see Okla. Stat., Tit. 21, §701.10(A)
(Supp. 1993), Oregon, see Ore. Rev. Stat. § 163.150 (Supp. 1991), Tennessee,
see Tenn. Code Ann. § 39-13-204(a) (Supp. 1993), and Utah, see Utah Code
Ann. §76-3-207(4) (Supp. 1993).
2 The four States are Pennsylvania, see Commonwealth v. Henry, 524
Pa. 135, 159-161, 569 A. 2d 929, 941 (1990), Texas, see Jones v. State, 843
S. W. 2d 487, 495 (Tex. Grim. App. 1992), Virginia, see Eaton v. Common-
wealth, 240 Va. 236, 247-250, 397 S. E. 2d 385, 392-393 (1990), and North
Carolina, see State v. Brown, 306 N. C. 151, 182-184, 293 S. E. 2d 569, 589
(1982), which will alter its practice effective January 1, 1995, see 1993 N, C,
Sess. Laws, ch. 538, §29.
180 SIMMONS v. SOUTH CAROLINA
SCALJA, J., dissenting
any clear practice.3 By contrast, the parties and their amid
point to only 10 States that arguably employ the procedure
which, according to today's opinions, the Constitution re-
quires.4 This picture of national practice falls far short of
demonstrating a principle so widely shared that it is part of
even a current and temporary American consensus.
As for our prior jurisprudence: The opinions of JUSTICE
BIACKMUN and JUSTICE O'CONNOR rely on the Fourteenth
Amendment's guarantee of due process, rather than on the
Eighth Amendment's "cruel and unusual punishments" pro-
hibition, as applied to the States by the Fourteenth Amend-
ment. But cf. ante, at 172 (SOUTER, J., concurring). The
prior law applicable to that subject indicates that petitioner's
due process rights would be violated if he was "sentenced to
death 'on the basis of information which he had no opportu-
nity to deny or explain.'" Skipper v. South Carolina, 476
U. S. 1, 5, n. 1 (1986), quoting Gardner v. Florida, 430 U. S.
349, 362 (1977). Both opinions try to bring this case within
that description, but it does not fit.
The opinions paint a picture of a prosecutor who repeat-
edly stressed that petitioner would pose a threat to soci-
ety upon his release. The record tells a different story.
3 The States that allow the jury to choose between "life without parole"
and "death" and have not squarely decided whether the jury should re-
ceive information about parole include South Dakota, see S. D. Codified
Laws §24-15-4 (1988), and Wyoming, see Wyo. Stat. §7-13-402(a) (Supp.
1993).
4 The 10 States identified by the parties and their amici are Colorado,
see Colo. Rev. Stat. § 16-ll-103(l)(b) (Supp. 1993), Florida, see Standard
Jury Instructions — Criminal Cases, Report No. 92-1, 603 So. 2d 1175
(1992), Illinois, see People v. Gacho, 122 111. 2d 221, 262-264, 522 N. E, 2d
1146, 1166 (1988), Maryland, see Doering v. State, 313 Md. 384, 545 A. 2d
1281 (1988), Mississippi, see Turner v. State, 573 So. 2d 657 (Miss. 1990),
New Jersey, see State v. Martini, 131 N. J. 176, 312-314, 619 A. 2d 1208,
1280 (1993), New Mexico, see State v. Henderson, 109 N. M. 655, 789 P. 2d
603 (1990), Nevada, see Petrocelli v. State, 101 Nev. 46, 692 R 2d 503 (1985),
Oklahoma, see Humphrey v. State, 864 R 2d 343 (Okla. Crim. App. 1993),
and Oregon, see Brief for State of Idaho et al. as Amici Curiae 8.
Cite as: 512 U. S. 154 (1994) 181
SCALIA, J., dissenting
Rather than emphasizing future dangerousness as a crucial
factor, the prosecutor stressed the nature of petitioner's
crimes: the crime that was the subject of the prosecution,
the brutal murder of a 79-year-old woman in her home, and
three prior crimes confessed to by petitioner, all rapes and
beatings of elderly women, one of them his grandmother. I
am sure it was the sheer depravity of those crimes, rather
than any specific fear for the future, which induced the South
Carolina jury to conclude that the death penalty was justice.
Not only, moreover, was future dangerousness not empha-
sized, but future dangerousness outside of prison was not
even mentioned. The trial judge undertook specifically to
prevent that, in response to the broader request of petition-
er's counsel that the prosecutor be prevented from arguing
future dangerousness at all:
"Obviously, I will listen carefully to the argument of the
solicitor to see if it contravenes the actual factual cir-
cumstance. Certainly, I recognize the right of the State
to argue concerning the defendant's dangerous propen-
sity. I will not allow the solicitor, for example, to say
to the jury anything that would indicate that the defend-
ant is not going to be jailed for the period of time that
is encompassed within the actual law. The fact that we
do not submit the parole eligibility to the jury does not
negate the fact that the solicitor must stay within the
trial record." App. 56-57.
As I read the record, the prosecutor followed this admo-
nition— and the Due Process Clause requires nothing more.
Both JUSTICE BLACKMUN and JUSTICE O'CONNOR focus on
two portions of the prosecutor's final argument to the jury in
the sentencing phase. First, they stress that the prosecutor
asked the jury to answer the question of "what to do with
[petitioner] now that he is in our midst." That statement,
however, was not made (as they imply) in the course of an
argument about future dangerousness, but was a response to
182 SIMMONS v. SOUTH CAROLINA
SCALIA, J., dissenting
petitioner's mitigating evidence. Read in context, the state-
ment is not even relevant to the issue in this case:
"The defense in this case as to sentence . . . [is] a
diversion. It's putting the blame on society, on his
father, on his grandmother, on whoever else he can,
spreading it out to avoid that personal responsibility.
That he came from a deprived background. That he
didn't have all of the breaks in life and certainly that
helps shape someone. But we are not concerned about
how he got shaped. We are concerned about what to
do with him now that he is in our midst/' Id, at 110.
Both opinions also seize upon the prosecutor's comment that
the jury's verdict would be "an act of self-defense." That
statement came at the end of admonition of the jury to avoid
emotional responses and enter a rational verdict:
"Your verdict shouldn't be returned in anger. Your
verdict shouldn't be an emotional catharsis. Your ver-
dict shouldn't be ... a response to that eight-year-old
kid [testifying in mitigation] and really shouldn't be a
response to the gruesome grotesque handiwork of [peti-
tioner]. Your verdict should be a response of society to
someone who is a threat. Your verdict will be an act of
self-defense." id, at 109-110.
This reference to "self-defense" obviously alluded, neither to
defense of the jurors' own persons, nor specifically to defense
of persons outside the prison walls, but to defense of all
members of society against this individual, wherever he or
they might be. Thus, as I read the record (and bear in mind
that the trial judge was on the lookout with respect to this
point), the prosecutor did not invite the jury to believe that
petitioner would be eligible for parole — he did not mislead
the jury.
The rule the majority adopts in order to overturn this sen-
tence therefore goes well beyond what would be necessary
to counteract prosecutorial misconduct (a disposition with
Cite as: 512 U. S. 154 (1994) 183
SCALIA, J., dissenting
which I might agree). It is a rule at least as sweeping as
this: that the Due Process Clause overrides state law limit-
ing the admissibility of information concerning parole when-
ever the prosecution argues future dangerousness. JUSTICE
BLACKMUN appears to go even further, requiring the admis-
sion of parole ineligibility even when the prosecutor does not
argue future dangerousness. See ante, at 163-164; but see
ante, at 174 (GiNSBURG, J., concurring). I do not under-
stand the basis for this broad prescription. As a general
matter, the Court leaves it to the States to strike what they
consider the appropriate balance among the many factors —
probative value, prejudice, reliability, potential for confusion,
among others — that determine whether evidence ought to be
admissible. Even in the capital punishment context, the
Court has noted that "the wisdom of the decision to permit
juror consideration of [postsentencing contingencies] is best
left to the States." California v. Ramos, 463 U. S. 992, 1014
(1983). "[T]he States, and not this Court, retain 'the tradi-
tional authority' to determine what particular evidence . . .
is relevant." Skipper v. South Carolina, 476 U. S., at 11
(Powell, J., concurring in judgment). One reason for leaving
it that way is that a sensible code of evidence cannot be
invented piecemeal. Each item cannot be considered in iso-
lation, but must be given its place within the whole. Prevent-
ing the defense from introducing evidence regarding parol-
ability is only half of the rule that prevents the prosecution
from introducing it as well. If the rule is changed for de-
fendants, many will think that evenhandedness demands a
change for prosecutors as well. State's attorneys ought to
be able to say that if, ladies and gentlemen of the jury, you
do not impose capital punishment upon this defendant (or if
you impose anything less than life without parole) he may
be walking the streets again in eight years! Many would
not favor the admission of such an argument — but would pre-
fer it to a state scheme in which defendants can call attention
to the unavailability of parole, but prosecutors cannot note
184 SIMMONS v. SOUTH CAROLINA
SCALIA, J., dissenting
its availability. This Court should not force state legislators
into such a difficult choice unless the isolated state eviden-
tiary rule that the Court has before it is not merely less than
ideal, but beyond a high threshold of unconstitutionality.
The low threshold the Court constructs today is diffi-
cult to reconcile with our almost simultaneous decision in
Romano v. Oklahoma, ante, p. 1. There, the Court holds
that the proper inquiry when evidence is admitted in contra-
vention of a state law is "whether the admission of evidence
... so infected the sentencing proceeding with unfairness as
to render the jury's imposition of the death penalty a denial
of due process." Ante, at 12. I do not see why the uncon-
stitutionality criterion for excluding evidence in accordance
with state law should be any less demanding than the uncon-
stitutionality criterion Romano recites for admitting evi-
dence in violation of state law: "fundamental unfairness."
And "fundamentally unfair" the South Carolina rule is as-
suredly not. The notion that the South Carolina jury im-
posed the death penalty "just in case" Simmons might be
released on parole seems to me quite farfetched. And the
notion that the decision taken on such grounds would have
been altered by information on the current state of the law
concerning parole (which could of course be amended) is even
more farfetched. And the scenario achieves the ultimate in
farfetchedness when there is added the fact that, according
to uncontroverted testimony of prison officials in this case,
even current South Carolina law (as opposed to discretionary
prison regulations) does not prohibit furloughs and work-
release programs for life-without-parole inmates. See App.
16-17.
When the prosecution has not specifically suggested parol-
ability, I see no more reason why the United States Constitu-
tion should compel the admission of evidence showing that,
under the State's current law, the defendant would be nonpa-
rolable, than that it should compel the admission of evidence
showing that parolable life-sentence murderers are in fact
Cite as: 512 U. S. 154 (1994) 185
SCALIA, I, dissenting
almost never paroled, or are paroled only after age 70; or
evidence to the effect that escapes of life-without-parole in-
mates are rare; or evidence showing that, though under cur-
rent law the defendant will be parolable in 20 years, the
recidivism rate for elderly prisoners released after long
incarceration is negligible. All of this evidence may be
thought relevant to whether the death penalty should be
imposed, and a petition raising the last of these claims has
already arrived. See Pet. for Cert, in Rudd v. Texas, 0. T.
1993, No. 93-7955.
As I said at the outset, the regime imposed by today's
judgment is undoubtedly reasonable as a matter of policy,
but I see nothing to indicate that the Constitution requires
it to be followed coast to coast. I fear we have read today
the first page of a whole new chapter in the "death-is-
different" jurisprudence which this Court is in the appar-
ently continuous process of composing. It adds to our in-
sistence that state courts admit "all relevant mitigating
evidence," see, e.g., Eddings v. Oklahoma, 455 U, S. 104
(1982); Lockett v. Ohio, 438 U. S. 586 (1978), a requirement
that they adhere to distinctive rules, more demanding than
what the Due Process Clause normally requires, for admit-
ting evidence of other sorts — Federal Rules of Death Penalty
Evidence, so to speak, which this Court will presumably
craft (at great expense to the swiftness and predictability of
justice) year by year. The heavily outnumbered opponents
of capital punishment have successfully opened yet another
front in their guerilla war to make this unquestionably con-
stitutional sentence a practical impossibility.
I dissent.
186 OCTOBER TERM, 1993
Syllabus
WEST LYNN CREAMERY, INC., ET AL. v. HEALY,
COMMISSIONER OF MASSACHUSETTS DEPART-
MENT OF FOOD AND AGRICULTURE
CERTIORARI TO THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS
No. 93-141. Argued March 2, 1994 — Decided June 17, 1994
A Massachusetts pricing order subjects all fluid milk sold by dealers to
Massachusetts retailers to an assessment. Although most of that milk
is produced out of State, the entire assessment is distributed to Massa-
chusetts dairy farmers. Petitioners — licensed dealers who purchase
milk produced by out-of-state farmers and sell it within Massachu-
setts— sued to enjoin enforcement of the order on the ground that it
violated the Federal Commerce Clause, but the state court denied relief
The Supreme Judicial Court of Massachusetts affirmed, concluding that
the order was not facially discriminatory, applied evenhandedly, and only
incidentally burdened interstate commerce, and that such burden was
outweighed by the "local benefits" to the dairy industry.
Held: The pricing order unconstitutionally discriminates against inter-
state commerce. Pp. 192-207.
(a) The order is clearly unconstitutional under this Court's decisions
invalidating state laws designed to benefit local producers of goods by
creating tariff-like barriers that neutralized the competitive and eco-
nomic advantages possessed by lower cost out-of-state producers. See,
e. g., Bacchus Imports, Ltd. v. Dias, 468 U. S. 263. The "premium pay-
ments" are effectively a tax making milk produced out of State more
expensive. Although that tax also applies to milk produced in Massa-
chusetts, its effect on Massachusetts producers is entirely (indeed more
than) offeet by the subsidy provided exclusively to Massachusetts dairy
farmers, who are thereby empowered to sell at or below the price
charged by lower cost out-of-state producers. Pp. 192-197.
(b) Respondent's principal argument — that, because both the local-
subsidy and nondiscriminatory-tax components of the order are valid,
the combination of the two is equally valid — is rejected. Even granting
respondent's assertion that both components of the pricing order would
be constitutional standing alone, the order must still fall because it is
funded principally from taxes on the sale of milk produced in other
States and therefore burdens interstate commerce. More fundamen-
tally, the argument is logically flawed in its assumption that the lawful-
ness of each of two acts establishes the legality of their combination.
Cite as: 512 U. S. 186 (1994) 187
Syllabus
Indeed, by conjoining a tax and a subsidy, Massachusetts has created a
program more dangerous to interstate commerce than either part alone:
The Commonwealth's political processes cannot be relied on to prevent
legislative abuse where dairy farmers, one of the powerful in-state in-
terests that would ordinarily be expected to lobby against the order
premium as a tax raising milk prices, have been mollified by the sub-
sidy. Pp. 198-202.
(c) Respondent's second argument — that the order is not discrimina-
tory because the dealers who pay premiums are not competitors of the
farmers who receive disbursements — cannot withstand scrutiny. The
imposition of a differential burden on any part of the stream of com-
merce— from wholesaler to retailer to consumer — is invalid because a
burden placed at any point will result in a disadvantage to the out-of-
state producer. Pp. 202-203.
(d) If accepted, respondent's third argument — that the order is not
protectionist because the program's costs are borne only by Massachu-
setts dealers and consumers and its benefits are distributed exclusively
to Massachusetts farmers — would undermine almost every discrimina-
tory tax case. State taxes are ordinarily paid by in-state businesses
and consumers, yet if they discriminate against out-of-state products
they are unconstitutional. More fundamentally, the argument ignores
the fact that Massachusetts dairy farmers are part of an integrated in-
terstate market. The obvious impact of the order on out-of-state pro-
duction demonstrates that it is simply wrong to assume that it burdens
only in-state consumers and dealers. Pp. 203-204.
(e) Acceptance of respondent's final argument — that the order's inci-
dental burden on commerce is justified by the local benefit of saving the
financially distressed dairy industry — would make a virtue of the vice
that the rule against discrimination condemns. Preservation of local
industry by protecting it from the rigors of interstate competition is
the hallmark of the economic protectionism that the Commerce Clause
prohibits. Pp. 204-207.
415 Mass. 8, 611 N. E. 2d 239, reversed.
STEVENS, J., delivered the opinion of the Court, in which O'CONNOB,
KENNEDY, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opin-
ion concurring in the judgment, in which THOMAS, J., joined, post, p. 207.
REHNQUIST, C. J., filed a dissenting opinion, in which BLACKMUN, J.,
joined, post, p. 212.
Steven J. Rosenbaum argued the cause for petitioners.
With him on the briefs were Michael L. Altman and Robert
A. Long, Jr.
188 WEST LYNN CREAMERY, INC. v. HEALY
Opinion of the Court
Douglas H. Wilkins, Assistant Attorney General of Mas-
sachusetts, argued the cause for respondent. With him on
the brief were Scott Harshbarger, Attorney General, and
Eric E. Smith, Assistant Attorney General.*
JUSTICE STEVENS delivered the opinion of the Court.
A Massachusetts pricing order imposes an assessment on
all fluid milk sold by dealers to Massachusetts retailers.
About two-thirds of that milk is produced out of State. The
entire assessment, however, is distributed to Massachusetts
dairy farmers. The question presented is whether the pric-
ing order unconstitutionally discriminates against interstate
commerce. We hold that it does.
I
Petitioner West Lynn Creamery, Inc., is a milk dealer li-
censed to do business in Massachusetts. It purchases raw
milk, which it processes, packages, and sells to wholesalers,
retailers, and other milk dealers. About 97% of the raw
milk it purchases is produced by out-of-state farmers. Peti-
tioner LeComte's Dairy, Inc., is also a licensed Massachusetts
milk dealer. It purchases all of its milk from West Lynn and
distributes it to retail outlets in Massachusetts.
Since 1937, the Agricultural Marketing Agreement Act, 50
Stat. 246, as amended, 7 U. S. C. §601 et seq., has authorized
the Secretary of Agriculture to regulate the minimum prices
*Briefs of amid curiae urging reversal were filed for Cumberland
Farms, Inc., by Allan Afrow; and for the Milk Industry Foundation et al.
by Steven J. Rosenbaum and Robert A. Long, Jr.
Briefs of amid curiae urging affirmance were filed for the State of New
Jersey by Fred DeVesa, Acting Attorney General, Mary Carol Jacobson,
Assistant Attorney General, and Gregory Romano, Deputy Attorney
General; and for the Massachusetts Association of Dairy Farmers et al.
by Erwin N. Griswold, Gregory A. Castanias, and Allen Tupper Brown.
Jeffrey L. Amestoy, Attorney General of Vermont, and Eileen I. Elliott,
Assistant Attorney General, filed a brief of amicus curiae for the State
of Vermont.
Cite as: 512 U. S. 186 (1994) 189
Opinion of the Court
paid to producers of raw milk by issuing marketing orders
for particular geographic areas.1 While the Federal Gov-
ernment sets minimum prices based on local conditions,
those prices have not been so high as to prevent substan-
tial competition among producers in different States. In the
1980's and early 1990's, Massachusetts dairy farmers began
to lose market share to lower cost producers in neighboring
States. In response, the Governor of Massachusetts ap-
pointed a Special Commission to study the dairy industry.
The commission found that many producers had sold their
dairy farms during the past decade and that if prices paid
to farmers for their milk were not significantly increased, a
majority of the remaining farmers in Massachusetts would
be "forced out of business within the year." App. 13. On
January 28, 1992, relying on the commission's report, the
Commissioner of the Massachusetts Department of Food and
Agriculture (respondent) declared a State of Emergency.
1 The minimum price is a "blend price" that is determined, in part, by
the ultimate use of the raw milk. See 7 CFR § 1001.1 et seq. (1993). Raw
milk used to produce fluid milk products has the highest price and is char-
acterized in the federal order as "Class I" milk. Milk used for other prod-
ucts, such as eggnog, sour cream, and hard cheese, bears a lower price and
is characterized as "Class II" and "Class III" milk. Each dealer is re-
quired to file a monthly report of its raw milk purchases and the use to
which that milk is put. In computing the monthly blend price, the Fed-
eral Market Administrator calculates the weighted average price of the
various classes of milk. If Class I milk predominates in the dealer re-
ports, the blend price is high; if other classes predominate, the blend price
is lower. Although all of the farmers are paid the same minimum blend
price regardless of the use to which their milk is put, dealers who sell
more than an average amount of Class I products pay a higher per unit
price than those with relatively lower Class I sales. The federal market-
ing order thus provides a uniform blend price for sellers of raw milk while
imposing nonuniform payment obligations on the dealers purchasing that
milk The federal order does not prohibit the payment of prices higher
than the established minima. Like the federal order, the Massachusetts
order requires dealers to make payments into a fund that is disbursed to
farmers on a monthly basis. The assessments, however, are only on Class
I sales and the distributions are only to Massachusetts farmers.
190 WEST LYNN CREAMERY, INC. v. HEALY
Opinion of the Court
In his declaration he noted that the average federal blend
price2 had declined from $14.67 per hundred pounds (cwt)
of raw milk in 1990 to $12.64/cwt in 1991, while costs of pro-
duction for Massachusetts farmers had risen to an estimated
average of $15.50/cwt. Id., at 27. He concluded:
"Regionally, the industry is in serious trouble and ulti-
mately, a federal solution will be required. In the
meantime, we must act on the state level to preserve
our local industry, maintain reasonable minimum prices
for the dairy farmers, thereby ensure a continuous and
adequate supply of fresh milk for our market, and pro-
tect the public health." Id., at 31.
Promptly after his declaration of emergency, respondent is-
sued the pricing order that is challenged in this proceeding.3
The order requires every "dealer"4 in Massachusetts to
make a monthly "premium payment" into the "Massachu-
setts Dairy Equalization Fund." The amount of those pay-
ments is computed in two steps. First, the monthly "order
premium" is determined by subtracting the federal blend
price for that month from $15 and dividing the difference by
three; thus if the federal price is $12/cwt, the order premium
is $l/cwt.5 Second, the premium is multiplied by the amount
2 For an explanation of the term "blend price/' see the previous footnote.
3 The order was first issued on February 18, 1992, and amended on
February 26, 1992. App. 32-40; Brief for Respondent 4-5. Only the
amended order is at issue in this case.
4 A "dealer" is defined as "any person who is engaged within the Com-
monwealth in the business of receiving, purchasing, pasteurizing, bottling,
processing, distributing, or otherwise handling milk, purchases or receives
milk for sale as the consignee or agent of a producer, and shall include a
producer-dealer, dealer-retailer, and sub-dealer." App. 82-33.
6 App. 35-36; West Lynn Creamery, Inc. v. Commissioner of Dept. of
Food and Agriculture, 415 Mass. 8, 11, n. 10, 611 N. E. 2d 239, 241, n. 10
(1993). The commissioner appears to have set the order premium at only
a third of the difference between the federal price and $15 because Massa-
chusetts farmers produce only about one-third of the milk sold as fluid
milk in the State. App. 21. Since Massachusetts dairy farmers produce
Cite as: 512 U. S. 186 (1994) 191
Opinion of the Court
(in pounds) of the dealer's Class I6 sales in Massachusetts.
Each month the fund is distributed to Massachusetts produc-
ers.7 Each Massachusetts producer receives a share of the
total fund equal to his proportionate contribution to the
State's total production of raw milk.8
Petitioners West Lynn and LeComte's complied with the
pricing order for two months, paying almost $200,000 into
the Massachusetts Dairy Equalization Fund. Id, at 100,
105. Starting in July 1992, however, petitioners refused to
make the premium payments, and respondent commenced li-
cense revocation proceedings. Petitioners then filed an ac-
tion in state court seeking an injunction against enforcement
of the order on the ground that it violated the Commerce
Clause of the Federal Constitution. The state court denied
relief and respondent conditionally revoked their licenses.
The parties agreed to an expedited appellate procedure,
and the Supreme Judicial Court of Massachusetts trans-
ferred the cases to its own docket. It affirmed, because it
concluded that "the pricing order does not discriminate on its
face, is evenhanded in its application, and only incidentally
one-third of the milk, an assessment of one-third the difference between
$15 and the federal minimum price generates enough revenue to give Mas-
sachusetts dairy farmers the entire difference between $15 and the federal
minimum price without leaving any surplus. By paying Massachusetts
dairy farmers the entire difference between $15 and the federal minimum
price, the order premium allows Massachusetts farmers whose cost of pro-
duction is $15/cwt to sell their milk without loss at the federal minimum
price.
6 For an explanation of the term "Class I," see n. 1, supra.
7 A "producer" is defined as "any person producing milk from dairy
cattle/' App. 33.
8 The disbursement is subject to two qualifications. First, any farmer
who produced more than 200,000 pounds of milk is considered to have
produced only 200,000 pounds. Second, no producer may receive pay-
ments that make its net price per cwt (including both the federal minimum
price and payments from the Equalization Fund) higher than $15/cwt If
these limitations lead to a surplus in the Dairy Equalization Fund, the
surplus is returned to the dealers* Id., at 36-38.
192 WEST LYNN CREAMERY, INC. v. HEALY
Opinion of the Court
burdens interstate commerce. " West Lynn Creamery, Inc.
v. Commissioner of Dept. of Food and Agriculture, 415
Mass. 8, 15, 611 N. E. 2d 239, 243 (1993). The court noted
that the "pricing order was designed to aid only Massachu-
setts producers." Id., at 16, 611 N. E. 2d, at 244. It con-
ceded that "[c]ommon sense" indicated that the plan has an
"adverse impact on interstate commerce" and that "[t]he
fund distribution scheme does burden out-of-State produc-
ers." Id., at 17, 611 N. E. 2d, at 244. Nevertheless, the
court asserted that "the burden is incidental given the pur-
pose and design of the program." Id., at 18, 611 N. E. 2d,
at 244. Because it found that the "local benefits" provided
to the Commonwealth's dairy industry "outweigh any inci-
dental burden on interstate commerce," it sustained the con-
stitutionality of the pricing order. Id., at 19, 611 N. E. 2d,
at 245. We granted certiorari, 510 U. S. 811 (1993), and
now reverse.
II
The Commerce Clause vests Congress with ample power
to enact legislation providing for the regulation of prices
paid to farmers for their products. United States v. Darby,
312 U. S. 100 (1941); Wickard v. Filburn, 317 U. S. Ill (1942);
Mandeville Island Farms, Inc. v. American Crystal Sugar
Co., 334 U. S. 219 (1948). An affirmative exercise of that
power led to the promulgation of the federal order setting
minimum milk prices. The Commerce Clause also limits
the power of the Commonwealth of Massachusetts to adopt
regulations that discriminate against interstate commerce.
"This 'negative' aspect of the Commerce Clause prohibits
economic protectionism — that is, regulatory measures de-
signed to benefit in-state economic interests by burdening
out-of-state competitors. . . . Thus, state statutes that clearly
discriminate against interstate commerce are routinely
struck down . . . unless the discrimination is demonstrably
justified by a valid factor unrelated to economic protection-
Cite as: 512 U. S. 186 (1994) 193
Opinion of the Court
ism ... ." New Energy Co. of Ind. v. Limbach, 486 U. S.
269, 273-274 (1988).9
The paradigmatic example of a law discriminating against
interstate commerce is the protective tariff or customs duty,
which taxes goods imported from other States, but does not
tax similar products produced in State. A tariff is an attrac-
tive measure because it simultaneously raises revenue and
benefits local producers by burdening their out-of-state com-
petitors. Nevertheless, it violates the principle of the uni-
tary national market by handicapping out-of-state competi-
tors, thus artificially encouraging in-state production even
when the same goods could be produced at lower cost in
other States.
Because of their distorting effects on the geography of
production, tariffs have long been recognized as violative of
the Commerce Clause. In fact, tariffs against the products
of other States are so patently unconstitutional that our
cases reveal not a single attempt by any State to enact one.
Instead, the cases are filled with state laws that aspire to
reap some of the benefits of tariffs by other means. In
Baldwin v. G. A F. Seelig, Inc., 294 U. S. 511 (1935), the
State of New York attempted to protect its dairy farmers
from the adverse effects of Vermont competition by estab-
lishing a single minimum price for all milk, whether
produced in New York or elsewhere. This Court did not
hesitate, however, to strike it down. Writing for a unani-
mous Court, Justice Cardozo reasoned:
9 The "negative" aspect of the Commerce Clause was considered the
more important by the "father of the Constitution," James Madison. In
one of his letters, Madison wrote that the Commerce Clause "grew out of
the abuse of the power by the importing States in taxing the non-
importing, and was intended as a negative and preventive provision
against injustice among the States themselves, rather than as a power to
be used for the positive purposes of the General Government." 3 M. Far-
rand, Records of the Federal Convention of 1787, p. 478 (1911).
194 WEST LYNN CREAMERY, INC. v. HEALY
Opinion of the Court
"Neither the power to tax nor the police power may be
used by the state of destination with the aim and effect
of establishing an economic barrier against competition
with the products of another state or the labor of its
residents. Restrictions so contrived are an unreason-
able clog upon the mobility of commerce. They set up
what is equivalent to a rampart of customs duties de-
signed to neutralize advantages belonging to the place
of origin." Id., at 527.
Thus, because the minimum price regulation had the same
effect as a tariff or customs duty — neutralizing the advan-
tage possessed by lower cost out-of-state producers — it was
held unconstitutional. Similarly, in Bacchus Imports, Ltd.
v. Dias, 468 U. S. 263 (1984), this Court invalidated a law
which advantaged local production by granting a tax exemp-
tion to certain liquors produced in Hawaii. Other cases of
this kind are legion. Welton v. Missouri, 91 U. S. 275 (1876);
Guy v. Baltimore, 100 U. S. 434 (1880); Toomer v. Witsell,
334 U. S. 385 (1948); Polar Ice Cream & Creamery Co. v.
Andrews, 375 U. S. 361 (1964); Chemical Waste Management,
Inc. v. Hunt, 504 U. S. 334 (1992); see also Hunt v. Washing-
ton State Apple Advertising Comm'n, 432 U. S. 333, 351
(1977) (invalidating statute, because it "has the effect of
stripping away from the Washington apple industry the com-
petitive and economic advantages it has earned").
Under these cases, Massachusetts' pricing order is clearly
unconstitutional. Its avowed purpose and its undisputed ef-
fect are to enable higher cost Massachusetts dairy farmers
to compete with lower cost dairy farmers in other States.
The "premium payments" are effectively a tax which makes
milk produced out of State more expensive. Although the
tax also applies to milk produced in Massachusetts, its effect
on Massachusetts producers is entirely (indeed more than)
offset by the subsidy provided exclusively to Massachusetts
daily farmers. Like an ordinary tariff, the tax is thus effec-
tively imposed only on out-of-state products. The pricing
Cite as: 512 U. S. 186 (1994) 195
Opinion of the Court
order thus allows Massachusetts dairy farmers who produce
at higher cost to sell at or below the price charged by lower
cost out-of-state producers.10 If there were no federal mini-
mum prices for milk, out-of-state producers might still be
able to retain their market share by lowering their prices.
Nevertheless, out-of-staters' ability to remain competitive by
lowering their prices would not immunize a discriminatory
measure. New Energy Co. of Ind. v. Limbach, 486 U. S., at
275.11 In this case, because the Federal Government sets
10 A numerical example may make this effect clearer. Suppose the fed-
eral minimum price is $12/cwt, that out-of-state producers can sell milk
profitably at that price, but that in-state producers need a price of $15/cwt
in order to break even. Under the pricing order, the tax or "order pre-
mium" will be $l/cwt (one-third the difference between the $15/cwt target
price and the $12/cwt federal minimum price). Assuming the tax gener-
ates sufficient funds (which will be the case as long as two-thirds of the
milk is produced out* of State, which appears to be the case), the Massachu-
setts farmers will receive a subsidy of $3/cwt. This subsidy will allow
them to lower their prices from $15/cwt to $12/cwt while still breaking
even. Selling at $12/cwt, Massachusetts dairy farmers will now be able
to compete with out-of-state producers. The net effect of the tax and
subsidy, like that of a tariff, is to raise the after-tax price paid by the
dealers. If exactly two-thirds of the milk sold in Massachusetts is
produced out of State, net prices will rise by $l/cwt. If out-of-state farm-
ers produce more than two-thirds of the raw milk, the Dairy Equalization
Fund will have a surplus, which will be refunded to the milk dealers.
This refund will mitigate the price increase, although it will have no effect
on the ability of the program to enable higher cost Massachusetts dairy
farmers to compete with lower cost out-of-staters.
11 In New Energy, 486 U. S., at 275, we noted: "It is true that in {Great
Atlantic & Pacific Tea Co. v. Cottrell, 424 U. S. 366 (1976),] and Sporhase
[v. Nebraska ex rel Douglas, 468 U. S. 941 (1982),] the effect of a State's
refusal to accept the offered reciprocity was total elimination of all trans-
port of the subject product into or out of the offering State; whereas in
the present case the only effect of refusal is that the out-of-state product
is placed at a substantial commercial disadvantage through discriminatory
tax treatment. That makes no difference for purposes of Commerce
Clause analysis. In the leading case of Baldwin v. G. A. F. Seelig, Inc.,
294 U. S. 511 (1935), the New York law excluding out-of-state milk did not
impose an absolute ban, but rather allowed importation and sale so long
196 WEST LYNN CREAMERY, INC. u HEALY
Opinion of the Court
minimum prices, out-of-state producers may not even have
the option of reducing prices in order to retain market share.
The Massachusetts pricing order thus will almost certainly
"cause local goods to constitute a larger share, and goods
with an out-of-state source to constitute a smaller share, of
the total sales in the market."12 Exxon Corp. v. Governor
of Maryland, 437 U. S. 117, 126, n. 16 (1978). In fact, this
effect was the motive behind the promulgation of the pricing
order. This effect renders the program unconstitutional, be-
cause it, like a tariff, "neutraliz[es] advantages belonging to
the place of origin." Baldwin, 294 U. S., at 527.
In some ways, the Massachusetts pricing order is most
similar to the law at issue in Bacchus Imports, Ltd. v. Dias,
468 U. S. 263 (1984). Both involve a broad-based tax on a
single kind of good and special provisions for in-state produc-
as the initial purchase from the dairy farmer was made at or above the
New York State-mandated price. In other words, just as the appellant
here, in order to sell its product in Ohio, only has to cut its profits by
reducing its sales price below the market price sufficiently to compensate
the Ohio purchaser-retailer for the forgone tax credit, so also the milk
wholesaler-distributor in Baldwin, in order to sell its product in New
York, only had to cut its profits by increasing its purchase price above the
market price sufficiently to meet the New York-prescribed premium. We
viewed the New York law as 'an economic barrier against competition*
that was 'equivalent to a rampart of customs duties.' Id., at 527. "
12 That is not to say that the Massachusetts dairy industry may not con-
tinue to shrink and that the market share of Massachusetts dairy produc-
ers may not continue its fall. It may be the case that Massachusetts pro-
ducers' costs are so high that, even with the pricing order, many of them
will be unable to compete. Nevertheless, the pricing order will certainly
allow more Massachusetts dairy farmers to remain in business than would
have had the pricing order not been imposed. For Commerce Clause
purposes, it does not matter whether the challenged regulation actually
increases the market share of local producers or whether it merely miti-
gates a projected decline. See Bacchus Imports, Ltd. v. Dias, 468 U. S.
263, 272 (1984) (*[W]e perceive no principle of Commerce Clause juris-
prudence supporting a distinction between thriving and struggling
enterprises . . ."); Baldwin v. G. A F. Seelig, Inc., 294 U. S., at 523.
Cite as: 512 U. S. 186 (1994) 197
Opinion of the Court
ers. Bacchus involved a 20% excise tax on all liquor sales,
coupled with an exemption for fruit wine manufactured in
Hawaii and for okolehao, a brandy distilled from the root of
a shrub indigenous to Hawaii. The Court held that Hawaii's
law was unconstitutional because it "had both the purpose
and effect of discriminating in favor of local products." Id.,
at 273. See also I. M. Darnell & Son Co. v. Memphis, 208
U. S. 113 (1908) (invalidating property tax exemption favor-
ing local manufacturers). By granting a tax exemption for
local products, Hawaii in effect created a protective tariff.
Goods produced out of State were taxed, but those produced
in State were subject to no net tax. It is obvious that the
result in Bacchus would have been the same if instead of
exempting certain Hawaiian liquors from tax, Hawaii had
rebated the amount of tax collected from the sale of those
liquors. See New Energy Co. of Ind. v. Limbach, 486 U. S.
269 (1988) (discriminatory tax credit). And if a discrimina-
tory tax rebate is unconstitutional, Massachusetts' pricing
order is surely invalid; for Massachusetts not only rebates to
domestic milk producers the tax paid on the sale of Massa-
chusetts milk, but also the tax paid on the sale of milk
produced elsewhere.13 The additional rebate of the tax paid
on the sale of milk produced elsewhere in no way reduces
the danger to the national market posed by tariff-like barri-
ers, but instead exacerbates the danger by giving domestic
producers an additional tool with which to shore up their
competitive position.14
13 Indeed, it is this aspect of the pricing order which allows it to give
Massachusetts farmers a benefit three times as valuable per cwt as the
tax (order premium) imposed. See n. 5, supra.
14 One might attempt to distinguish Bacchus by noting that the rebate
in this case goes not to the entity which pays the tax (milk dealers) but to
the dairy farmers themselves. Rebating the taxes directly to producers
rather than to the dealers, however, merely reinforces the conclusion that
the pricing order will favor local producers. If the taxes were refunded
only to the dealers, there might be no impact on interstate commerce,
198 WEST LYNN CREAMERY, INC. u HEALY
Opinion of the Court
III
Respondent advances four arguments against the conclu-
sion that its pricing order imposes an unconstitutional bur-
den on interstate commerce: (A) Because each component of
the program — & local subsidy and a nondiscriminatory tax —
is valid, the combination of the two is equally valid; (B) The
dealers who pay the order premiums (the tax) are not com-
petitors of the farmers who receive disbursements from the
Dairy Equalization Fund, so the pricing order is not discrimi-
natory; (C) The pricing order is not protectionist, because
the costs of the program are borne only by Massachusetts
dealers and consumers, and the benefits are distributed ex-
clusively to Massachusetts farmers; and (D) The order's inci-
dental burden on commerce is justified by the local benefit
of saving the dairy industry from collapse. We discuss each
of these arguments in turn.
Respondent's principal argument is that, because "the
milk order achieves its goals through lawful means," the
order as a whole is constitutional. Brief for Respondent 20.
He argues that the payments to Massachusetts dairy farmers
from the Dairy Equalization Fund are valid, because subsid-
ies are constitutional exercises of state power, and that the
order premium which provides money for the fund is valid,
because it is a nondiscriminatory tax. Therefore the pricing
order is constitutional, because it is merely the combination
of two independently lawful regulations. In effect, respond-
ent argues, if the State may impose a valid tax on dealers,
it is free to use the proceeds of the tax as it chooses; and
because the dealers might not use the funds to increase the price or quan-
tity of milk purchased from Massachusetts dairy farmers. The refund to
the dealers might, therefore, result in no advantage to in-state producers.
On the other hand, by refunding moneys directly to the dairy farmers, the
pricing order ensures that Massachusetts producers will benefit.
Cite as: 512 U. S. 186 (1994) 199
Opinion of the Court
if it may independently subsidize its farmers, it is free to
finance the subsidy by means of any legitimate tax.
Even granting respondent's assertion that both compo-
nents of the pricing order would be constitutional standing
alone,15 the pricing order nevertheless must fall. A pure
subsidy funded out of general revenue ordinarily imposes no
burden on interstate commerce, but merely assists local busi-
ness. The pricing order in this case, however, is funded
principally from taxes on the sale of milk produced in other
States.16 By so funding the subsidy, respondent not only as-
sists local farmers, but burdens interstate commerce. The
pricing order thus violates the cardinal principle that a State
may not "benefit in-state economic interests by burdening
out-of-state competitors." New Energy Co. of Ind. v. Lim-
bach, 486 U. S., at 273-274; see also Bacchus Imports, Ltd.
v. Dias, 468 U. S., at 272; Guy v. Baltimore, 100 U. S., at 443.
More fundamentally, respondent errs in assuming that the
constitutionality of the pricing order follows logically from
the constitutionality of its component parts. By conjoining
16 We have never squarely confronted the constitutionality of subsidies,
and we need not do so now. We have, however, noted that "[d]irect subsi-
dization of domestic industry does not ordinarily run afoul" of the negative
Commerce Clause. New Energy Co. of Ind. v. Limbcich, 486 U. S. 269, 278
(1988); see also Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 815
(1976) (STEVENS, J., concurring). In addition, it is undisputed that States
may try to attract business by creating an environment conducive to eco-
nomic activity, as by maintaining good roads, sound public education, or
low taxes. Zobel v. Williams, 457 U. S. 55, 67 (1982) (Brennan, J., concur-
ring); Bacchus Imports, Ltd. v. Dias, 468 U. S., at 271; Metropolitan Life
Ins. Co. v. Ward, 470 U. S. 869, 876-878 (1985).
16 It is undisputed that an overwhelming majority of the milk sold in
Massachusetts is produced elsewhere. Thus, even though the tax is ap-
plied evenhandedly to milk produced in State and out of State, most of the
tax collected comes from taxes on milk from other States. In addition,
the tax on in-state milk, unlike that imposed on out-of-state milk, does not
impose any burden on in-state producers, because in-state dairy farmers
can be confident that the taxes paid on their milk will be returned to them
via the Dairy Equalization Fund.
200 WEST LYNN CREAMERY, INC. u HEALY
Opinion of the Court
a tax and a subsidy, Massachusetts has created a program
more dangerous to interstate commerce than either part
alone. Nondiscriminatory measures, like the evenhanded
tax at issue here, are generally upheld, in spite of any ad-
verse effects on interstate commerce, in part because "[t]he
existence of major in-state interests adversely affected . . .
is a powerful safeguard against legislative abuse." Minne-
sota v. Clover Leaf Creamery Co., 449 U. S. 456, 473, n. 17
(1981); see also Raymond Motor Transp., Inc. v. Rice, 434
U. S. 429, 444, n. 18 (1978) (special deference to state highway
regulations because "their burden usually falls on local eco-
nomic interests as well as other States' economic interests,
thus insuring that a State's own political processes will serve
as a check against unduly burdensome regulations"); South
Carolina Highway Dept. v. Barnwell Brothers, Inc., 303
U. S. 177, 187 (1938); Goldberg v. Sweet, 488 U. S. 252, 266
(1989).17 However, when a nondiscriminatory tax is coupled
with a subsidy to one of the groups hurt by the tax, a State's
political processes can no longer be relied upon to prevent
legislative abuse, because one of the in-state interests which
would otherwise lobby against the tax has been mollified by
the subsidy. So, in this case, one would ordinarily have ex-
pected at least three groups to lobby against the order pre-
mium, which, as a tax, raises the price (and hence lowers
demand) for milk: dairy farmers, milk dealers, and consum-
ers. But because the tax was coupled with a subsidy, one
of the most powerful of these groups, Massachusetts dairy
17 The same principle is recognized in the conceptually similar field of
intergovernmental taxation, where nondiscrimination also plays a central
role in setting the boundary between the permissible and the impermissi-
ble. Washington v. United States, 460 U. S. 536, 545 (1983) ("A 'political
check' is provided when a state tax falls on a significant group of state
citizens who can be counted upon to use their votes to keep the State from
raising the tax excessively, and thus placing an unfair burden on the Fed-
eral Government"); South Carolina v. Baker, 485 U. S. 505, 525-526, n. 15
(1988); United States v. County of Fresno, 429 U. S. 452, 462-464 (1977).
Cite as: 512 U. S. 186 (1994) 201
Opinion of the Court
farmers, instead of exerting their influence against the tax,
were in fact its primary supporters.18
Respondent's argument would require us to analyze sepa-
rately two parts of an integrated regulation, but we cannot
divorce the premium payments from the use to which the
payments are put. It is the entire program — not just the
contributions to the fund or the distributions from that
fund — that simultaneously burdens interstate commerce and
discriminates in favor of local producers. The choice of
constitutional means — nondiscriminatory tax and local sub-
sidy— cannot guarantee the constitutionality of the program
as a whole. New York's minimum price order also used con-
stitutional means — a State's power to regulate prices — but
was held unconstitutional because of its deleterious effects.
Baldwin v. G. A. K Seelig, Inc., 294 U. S. 511 (1935). Simi-
larly, the law held unconstitutional in Bacchus Imports, Ltd.
v. Dias, 468 U, S. 263 (1984), involved the exercise of Hawaii's
undisputed power to tax and to grant tax exemptions.
Our Commerce Clause jurisprudence is not so rigid as to
be controlled by the form by which a State erects barriers
to commerce. Rather our cases have eschewed formalism
for a sensitive, case-by-case analysis of purposes and effects.
As the Court declared over 50 years ago: "The commerce
clause forbids discrimination, whether forthright or inge-
nious. In each case it is our duty to determine whether the
statute under attack, whatever its name may be, will in
its practical operation work discrimination against inter-
state commerce." Best & Co. v. Maxwell, 311 U. S. 454, 455-
456 (1940); Maryland v. Louisiana, 451 U. S. 725, 756 (1981);
18 As the Governor's Special Commission Relative to the Establishment
of a Dairy Stabilization Fund realized, consumers would be unlikely to
organize effectively to oppose the pricing order. The commission's report
remarked, "the estimated two cent increase per quart of milk would not
be noticed by the consuming public," App. 18, because the price of milk
varies so often and for so many reasons that consumers would be unlikely
to feel the price increases or to attribute them to the pricing order.
202 WEST LYNN CREAMERY, INC. v. HEALY
Opinion of the Court
Exxon Corp. v. Governor of Maryland, 437 U. S., at 147;
see also Guy v. Baltimore, 100 U. S., at 443 (invalidat-
ing discriminatory wharfage fees which were "mere expedi-
ent or device to accomplish, by indirection, what the State
could not accomplish by a direct tax, viz., build up its domes-
tic commerce by means of unequal and oppressive burdens
upon the industry and business of other States"); Baldwin
v, G. A F. Seelig, Inc., 294 U. S., at 527 ("What is ultimate
is the principle that one state in its dealings with another
may not put itself in a position of economic isolation. For-
mulas and catchwords are subordinate to this overmaster-
ing requirement"); Dean Milk Co. v. Madison, 340 U. S.
349, 354 (1951); New Energy Co. oflnd. v. Limbach, 486 U. S.,
at 275, 276 (invalidating reciprocal tax credit because it,
"in effect, taxfes] a product made by [Indiana] manufactur-
ers at a rate higher than the same product made by Ohio
manufacturer s") .
B
Respondent also argues that since the Massachusetts milk
dealers who pay the order premiums are not competitors of
the Massachusetts farmers, the pricing order imposes no dis-
criminatory burden on commerce. Brief for Respondent 28-
29. This argument cannot withstand scrutiny. Is it possi-
ble to doubt that if Massachusetts imposed a higher sales tax
on milk produced in Maine than milk produced in Massachu-
setts that the tax would be struck down, in spite of the fact
that the sales tax was imposed on consumers, and consumers
•do not compete with dairy farmers? For over 150 years, our
cases have rightly concluded that the imposition of a differ-
ential burden on any part of the stream of commerce — from
wholesaler to retailer to consumer — is invalid, because a bur-
den placed at any point will result in a disadvantage to the
out-of-state producer. Brown v. Maryland, 12 Wheat. 419,
444, 448 (1827) ("So, a tax on the occupation of an importer
is, in like manner, a tax on importation. It must add to the
price of the article, and be paid by the consumer, or by the
Cite as: 512 U. S. 186 (1994) 203
Opinion of the Court
importer himself, in like manner as a direct duty on the arti-
cle itself would be made." "The distinction between a tax
on the thing imported, and on the person of the importer,
can have no influence on this part of the subject. It is too
obvious for controversy, that they interfere equally with the
power to regulate commerce"); /. M. Darnell & Son Co. v.
Memphis, 208 U. S. 113 (1908) (differential burden on inter-
mediate stage manufacturer); Bacchus Imports, Ltd. v. Bias,
468 U. S. 263 (1984) (differential burden on wholesaler); Web-
ber v. Virginia, 103 U. S. 344, 350 (1881) (differential burden
on sales agent); New Energy Co. of Ind. v. Limbach, 486
U. S., at 273-274 (differential burden on retailer).
Respondent also argues that "the operation of the Order
disproves any claim of protectionism," because "only in-state
consumers feel the effect of any retail price increase . . .
[and] [t]he dealers themselves . . . have a substantial in-state
presence." Brief for Respondent 17 (emphasis in original).
This argument, if accepted, would undermine almost every
discriminatory tax case. State taxes are ordinarily paid by
in-state businesses and consumers, yet if they discriminate
against out-of-state products, they are unconstitutional.
The idea that a discriminatory tax does not interfere with
interstate commerce "merely because the burden of the tax
was borne by consumers" in the taxing State was thoroughly
repudiated in Bacchus Imports, Ltd. v. Dias, 468 U. S., at
272. The cost of a tariff is also borne primarily by local
consumers, yet a tariff is the paradigmatic Commerce
Clause violation.
More fundamentally, respondent ignores the fact that
Massachusetts dairy farmers are part of an integrated inter-
state market. As noted supra, at 194-196, the purpose
and effect of the pricing order are to divert market share
to Massachusetts dairy farmers. This diversion necessarily
injures the dairy farmers in neighboring States. Further-
204 WEST LYNN CREAMERY, INC. v. HEALY
Opinion of the Court
more, the Massachusetts order regulates a portion of the
same interstate market in milk that is more broadly regu-
lated by a federal milk marketing order which covers most of
New England. 7 CFR § 1001.2 (1993). The Massachusetts
producers who deliver milk to dealers in that regulated mar-
ket are participants in the same interstate milk market as
the out-of-state producers who sell in the same market and
are guaranteed the same minimum blend price by the federal
order. The fact that the Massachusetts order imposes as-
sessments only on Massachusetts sales and distributes them
only to Massachusetts producers does not exclude either the
assessments or the payments from the interstate market.
To the extent that those assessments affect the relative vol-
ume of Class I milk products sold in the marketing area as
compared to other classes of milk products, they necessarily
affect the blend price payable even to out-of-state producers
who sell only in non-Massachusetts markets,19 The obvious
impact of the order on out-of-state production demonstrates
that it is simply wrong to assume that the pricing order bur-
dens only Massachusetts consumers and dealers.
D
Finally, respondent argues that any incidental burden on
interstate commerce "is outweighed by the 'local benefits' of
preserving the Massachusetts dairy industry."20 Brief for
19 On the way changing the demand for Class I milk products changes
the blend price for producers in the entire area covered by the marketing
order, see n. 1, supra.
20 Among the "local benefits" that respondent identifies is "protecting
unique open space and related benefits." Brief for Respondent 40. As
the Massachusetts Supreme Judicial Court recognized by relegating the
"open space" point to a single footnote, West Lynn Creamery, Inc. v. Com-
missioner of Dept. of Food and Agriculture, 415 Mass. 8, 10, n. 6, 611
N. E. 2d 239, 240, n. 6 (1993), the argument that environmental benefits
were central and the enhancement of the market share of Massachusetts
dairy farmers merely "incidental" turns the pricing order on its head. In
addition, even if environmental preservation were the central purpose of
Cite as: 512 U. S. 186 (1994) 205
Opinion of the Court
Respondent 42. In a closely related argument, respondent
urges that "the purpose of the order, to save an industry
from collapse, is not protectionist." Id., at 16. If we were
to accept these arguments, we would make a virtue of the
vice that the rule against discrimination condemns. Preser-
vation of local industry by protecting it from the rigors of
interstate competition is the hallmark of the economic pro-
tectionism that the Commerce Clause prohibits. In Bac-
chus Imports, Ltd. v. Dias, 468 U. S., at 272, we explicitly
rejected any distinction "between thriving and struggling
enterprises/' Whether a State is attempting to " 'enhance
thriving and substantial business enterprises* " or to " 'subsi-
dize . . . financially troubled' " ones is irrelevant to Commerce
Clause analysis. Ibid. With his characteristic eloquence,
Justice Cardozo responded to an argument that respondent
echoes today:
"The argument is pressed upon us, however, that the
end to be served by the Milk Control Act is something
more than the economic welfare of the farmers or of any
other class or classes. The end to be served is the main-
tenance of a regular and adequate supply of pure and
wholesome milk, the supply being put in jeopardy when
the pricing order, that would not be sufficient to uphold a discriminatory
regulation. See Philadelphia v. New Jersey, 437 U.S. 617, 626-627
(1978). Finally, the suggestion that the collapse of the dairy industry en-
dangers open space is not self-evident. Dairy farms are enclosed by
fences, and the decline of farming may well lead to less, rather than more,
intensive land use. As one scholar noted: "Many people assume that . . .
land lost from agriculture is now in urban uses. It is true that some
agricultural land has been urbanized, especially since World War II, but
the major portion of the land moving out of agriculture over the years has
been abandoned to natural forest growth." J. Foster & W. MacConnell,
Agricultural Land Use Change in Massachusetts 1951-1971, p. 5 (Research
Bulletin No. 640, Jan. 1977); see also Department of Agriculture, A.
Daugherty, Major Uses of Land in the United States: 1987, pp. 4, 13 (Ag-
ricultural Economic Rep. No. 643, 1991) (decline in grazing and pasture
land offset by increased wilderness, wildlife, and park areas).
206 WEST LYNN CREAMERY, INC. u HEALY
Opinion of the Court
the farmers of the state are unable to earn a living in-
come. Nebbia v. New York, [291 U. S. 502 (1934)] . . .
Let such an exception be admitted, and all that a state
will have to do in times of stress and strain is to say
that its farmers and merchants and workmen must be
protected against competition from without, lest they go
upon the poor relief lists or perish altogether. To give
entrance to that excuse would be to invite a speedy end
of our national solidarity. The Constitution was framed
under the dominion of a political philosophy less paro-
chial in range. It was framed upon the theory that the
peoples of the several states must sink or swim together,
and that in the long run prosperity and salvation are in
union and not division." Baldwin v. G. A. F. Seelig,
Inc., 294 U. S., at 522-523.21
In a later case, also involving the welfare of Massachusetts
dairy farmers,22 Justice Jackson described the same overrid-
ing interest in the free flow of commerce across state lines:
"Our system, fostered by the Commerce Clause, is that
every farmer and every craftsman shall be encouraged
21 "This distinction between the power of the State to shelter its people
from menaces to their health or safety and from fraud, even when those
dangers emanate from interstate commerce, and its lack of power to re-
tard, burden or constrict the flow of such commerce for their economic
advantage, is one deeply rooted in both our history and our law."
H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 533 (1949); see also
Bacchus Imports, Ltd. v. Dias, 468 U. S., at 272-273.
22 A surprisingly large number of our Commerce Clause cases arose out
of attempts to protect local dairy farmers. Schollenberger v. Pennsylva-
nia, 171 U. S. 1 (1898); Baldwin v. G. A F. Seelig, Inc., 294 U. S. 511 (1935);
H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 539; Dean Milk Co. v.
Madison, 340 U. S. 349, 354 (1951); Polar Ice Cream & Creamery Co. v.
Andrews, 375 U. S. 361 (1964); Great Atlantic & Pacific Tea Co. v. Cottrell,
424 U. S. 366 (1976). The reasons for the political effectiveness of milk
producers are explored in G. Miller, The Industrial Organization of Politi-
cal Production: A Case Study, 149 J. Institutional & Theoretical Economics
769 (1993).
Cite as: 512 U. S. 186 (1994) 207
SCAUA, J., concurring in judgment
to produce by the certainty that he will have free access
to every market in the Nation, that no home embargoes
will withhold his exports, and no foreign state will by
customs duties or regulations exclude them. Likewise,
every consumer may look to the free competition from
every producing area in the Nation to protect him from
exploitation by any. Such was the vision of the Found-
ers; such has been the doctrine of this Court which has
given it reality." H. P. Hood & Sons, Inc. v, Du Mond,
336 U. S. 525, 539 (1949).
The judgment of the Supreme Judicial Court of Massa-
chusetts is reversed.
It is so ordered.
JUSTICE SCALJA, with whom JUSTICE THOMAS joins,
concurring in the judgment.
In my view the challenged Massachusetts pricing order is
invalid under our negative-Commerce-Clause jurisprudence,
for the reasons explained in Part II below. I do not agree
with the reasons assigned by the Court, which seem to me,
as explained in Part I, a broad expansion of current law.
Accordingly, I concur only in the judgment of the Court.
The purpose of the negative Commerce Clause, we have
often said, is to create a national market. It does not follow
from that, however, and we have never held, that every state
law which obstructs a national market violates the Com-
merce Clause. Yet that is what the Court says today. It
seems to have canvassed the entire corpus of negative-
Commerce-Clause opinions, culled out every free-market
snippet of reasoning, and melded them into the sweeping
principle that the Constitution is violated by any state law or
regulation that "artificially encourag[es] in-state production
even when the same goods could be produced at lower cost
in other States/' Ante, at 193. See also ante, at 194 (the
208 WEST LYNN CREAMERY, INC. v. HEALY
SCALIA, J., concurring in judgment
law here is unconstitutional because it "neutralizes] the ad-
vantage possessed by lower cost out-of-state producers");
ante, at 195 (price order is unconstitutional because it allows
in-state producers "who produce at higher cost to sell at or
below the price charged by lower cost out-of-state produc-
ers"); ante, at 196 (a state program is unconstitutional where
it "'neutralizes advantages belonging to the place of ori-
gin' ") (quoting Baldwin v. G. A F. Seelig, Inc., 294 U. S. 511,
527 (1935)); ante, at 205 ("Preservation of local industry by
protecting it from the rigors of interstate competition is the
hallmark of the economic protectionism that the Commerce
Clause prohibits").
As the Court seems to appreciate by its eagerness ex-
pressly to reserve the question of the constitutionality of
subsidies for in-state industry, ante, at 199, and n. 15, this
expansive view of the Commerce Clause calls into question
a wide variety of state laws that have hitherto been thought
permissible. It seems to me that a state subsidy would
clearly be invalid under any formulation of the Court's guid-
ing principle identified above. The Court guardedly asserts
that a "pure subsidy funded out of general revenue ordi-
narily imposes no burden on interstate commerce, but
merely assists local business/' ante, at 199 (emphasis added),
but under its analysis that must be taken to be true only
because most local businesses (e. g., the local hardware store)
are not competing with businesses out of State. The Court
notes that, in funding this subsidy, Massachusetts has taxed
milk produced in other States, and thus "not only assists
local farmers, but burdens interstate commerce." Ibid.
But the same could be said of almost all subsidies funded
from general state revenues, which almost invariably include
moneys from use taxes on out-of-state products. And even
where the funding does not come in any part from taxes on
out-of-state goods, "merely assisting]" in-state businesses,
ibid., unquestionably neutralizes advantages possessed by
out-of-state enterprises. Such subsidies, particularly where
Cite as: 512 IL S. 186 (1994) 209
SCALIA, J., concurring in judgment
they are in the form of cash or (what comes to the same
thing) tax forgiveness, are often admitted to have as their
purpose — indeed, are nationally advertised as having as
their purpose — making it more profitable to conduct busi-
ness in State than elsewhere, i e., distorting normal market
incentives.
The Court's guiding principle also appears to call into
question many garden-variety state laws heretofore permis-
sible under the negative Commerce Clause. A state law, for
example, which requires, contrary to the industry practice,
the use of recyclable packaging materials, favors local non-
exporting producers, who do not have to establish an addi-
tional, separate packaging operation for in-state sales. If
the Court's analysis is to be believed, such a law would be
unconstitutional without regard to whether disruption of the
"national market" is the real purpose of the restriction, and
without the need to "balance" the importance of the state
interests thereby pursued, see Pike v. Bruce Church, Inc.,
397 U. S. 137 (1970). These results would greatly extend the
negative Commerce Clause beyond its current scope. If the
Court does not intend these consequences, and does not want
to foster needless litigation concerning them, it should not
have adopted its expansive rationale. Another basis for
deciding the case is available, which I proceed to discuss.
II
"The historical record provides no grounds for reading the
Commerce Clause to be other than what it says — an authori-
zation for Congress to regulate commerce/' Tyler Pipe In-
dustries, Inc. v. Washington State Dept of Revenue, 483
U. S. 232, 263 (1987) (ScALiA, J., concurring in part and dis-
senting in part). Nonetheless, we formally adopted the doc-
trine of the negative Commerce Clause 121 years ago, see
Case of the State Freight Tax, 15 Wall. 232 (1873), and since
then have decided a vast number of negative-Commerce-
Clause cases, engendering considerable reliance interests.
210 WEST LYNN CREAMERY, INC. v. HEALY
SCALIA, J., concurring in judgment
As a result, I will, on stare decisis grounds, enforce a self-
executing "negative" Commerce Clause in two situations:
(1) against a state law that facially discriminates against
interstate commerce, and (2) against a state law that is
indistinguishable from a type of law previously held uncon-
stitutional by this Court. See Itel Containers Int'l Corp. v.
Huddleston, 507 U. S. 60, 78-79, and nn. 1, 2 (1993) (SCALIA,
J., concurring in judgment) (collecting cases). Applying this
approach — or at least the second part of it — is not always
easy, since once one gets beyond facial discrimination
our negative-Commerce-Clause jurisprudence becomes (and
long has been) a "quagmire." Northwestern States Port-
land Cement Co. v. Minnesota, 358 U. S. 450, 458 (1959).
See generally D. Currie, The Constitution in the Supreme
Court: The First Hundred Years 1789-1888, pp. 168-181,
222-236, 330-342, 403-416 (1985). The object should be,
however, to produce a clear rule that honors the holdings
of our past decisions but declines to extend the rationale
that produced those decisions any further. See American
Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 305-306
(1987) (SCALIA, J., dissenting).
There are at least four possible devices that would enable
a State to produce the economic effect that Massachusetts
has produced here: (1) a discriminatory tax upon the indus-
try, imposing a higher liability on out-of-state members than
on their in-state competitors; (2) a tax upon the industry that
is nondiscriminatory in its assessment, but that has an "ex-
emption" or "credit" for in-state members; (3) a nondiscrimi-
natory tax upon the industry, the revenues from which are
placed into a segregated fund, which fund is disbursed as
"rebates" or "subsidies" to in-state members of the industry
(the situation at issue in this case); and (4) with or without
nondiscriminatory taxation of the industry, a subsidy for the
in-state members of the industry, funded from the State's
general revenues. It is long settled that the first of these
methodologies is unconstitutional under the negative Com-
Cite as: 512 U. S. 186 (1994) 211
SCALIA, J., concurring in judgment
merce Clause. See, e. g., Guy v. Baltimore, 100 U. S. 434,
443 (1880). The second of them, "exemption" from or
"credit" against a "neutral" tax, is no different in principle
from the first, and has likewise been held invalid. See
Maryland v. Louisiana, 451 U.S. 725, 756 (1981); West-
inghouse Elec. Corp. v. Tully, 466 U. S. 388, 399-400, and
n. 9 (1984). The fourth methodology, application of a state
subsidy from general revenues, is so far removed from what
we have hitherto held to be unconstitutional, that prohibit-
ing it must be regarded as an extension of our negative-
Commerce-Clause jurisprudence and therefore, to me, un-
acceptable. See New Energy Co. of Ind. v. Limbach, 486
U. S. 269, 278 (1988). Indeed, in my view our negative-
Commerce-Clause cases have already approved the use of
such subsidies. See Hughes v. Alexandria Scrap Corp., 426
U. S. 794, 809-810 (1976).
The issue before us in the present case is whether the
third of these methodologies must fall. Although the ques-
tion is close, I conclude it would not be a principled point
at which to disembark from the negative-Commerce-Clause
train. The only difference between methodology (2) (dis-
criminatory "exemption" from nondiscriminatory tax) and
methodology (3) (discriminatory refund of nondiscriminatory
tax) is that the money is taken and returned rather than
simply left with the favored in-state taxpayer in the first
place. The difference between (3) and (4), on the other hand,
is the difference between assisting in-state industry through
discriminatory taxation and assisting in-state industry by
other means.
I would therefore allow a State to subsidize its domestic
industry so long as it does so from nondiscriminatory taxes
that go into the State's general revenue fund. Perhaps,
as some commentators contend, that line comports with
an important economic reality: A State is less likely to main-
tain a subsidy when its citizens perceive that the money (in
the general fund) is available for any number of competing,
212 WEST LYNN CREAMERY, ING u HEALY
REHNQUIST, C. J., dissenting
nonprotectionist, purposes. See Coenen, Untangling the
Market-Participant Exemption to the Dormant Commerce
Clause, 88 Mich. L. Rev. 395, 479 (1989); Collins, Economic
Union as a Constitutional Value, 63 N. Y. U. L. Rev. 43, 103
(1988); Gergen, The Selfish State and the Market, 66 Texas
L. Rev. 1097, 1138 (1988); see also ante, at 200, and n. 17.
That is not, however, the basis for my position, for as THE
CHIEF JUSTICE explains, "[a]nalysis of interest group partici-
pation in the political process may serve many useful pur-
poses, but serving as a basis for interpreting the dormant
Commerce Clause is not one of them." Post, at 215 (dissent-
ing opinion). Instead, I draw the line where I do because it
is a clear, rational line at the limits of our extant negative-
Commerce-Clause jurisprudence.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE BLACK-
MUN joins, dissenting.
The Court is less than just in its description of the reasons
which lay behind the Massachusetts law which it strikes
down. The law undoubtedly sought to aid struggling Mas-
sachusetts dairy farmers, beset by steady or declining prices
and escalating costs. This situation is apparently not unique
to Massachusetts; New Jersey has filed an amicus brief in
support of respondent because New Jersey has enacted a
similar law. Both States lie in the northeastern metropoli-
tan corridor, which is the most urbanized area in the United
States, and has every prospect of becoming more so. The
value of agricultural land located near metropolitan areas is
driven up by the demand for housing and similar urban uses;
distressed farmers eventually sell out to developers. Not
merely farm produce is lost, as is the milk production in this
case, but, as the Massachusetts Special Commission whose
report was the basis for the order in question here found:
"Without the continued existence of dairy farmers, the
Commonwealth will lose its supply of locally produced
fresh milk, together with the open lands that are used as
Cite as: 512 U. S. 186 (1994) 213
REHNQUIST, C. JM dissenting
wildlife refuges, for recreation, hunting, fishing, tourism,
and education/' App. 13.
Massachusetts has dealt with this problem by providing a
subsidy to aid its beleaguered dairy farmers. In case after
case, we have approved the validity under the Commerce
Clause of such enactments. "No one disputes that a State
may enact laws pursuant to its police powers that have the
purpose and effect of encouraging domestic industry/5 Bac-
chus Imports, Ltd. v. Dias, 468 U. S. 263, 271 (1984). "Di-
rect subsidization of domestic industry does not ordinarily
run afoul of [the dormant Commerce Clause]; discriminatory
taxation of out-of-state manufacturers does." New Energy
Co. oflnd. v. Limbach, 486 U S. 269, 278 (1988). But today
the Court relegates these well-established principles to a
footnote and, at the same time, gratuitously casts doubt on
the validity of state subsidies, observing that "[w]e have
never squarely confronted" their constitutionality. Ante, at
199, n. 15.
But in Milk Control Bd. v. Eisenberg Farm Products, 306
U. S. 346 (1939), the Court upheld a Pennsylvania statute es-
tablishing minimum prices to be paid to Pennsylvania dairy-
far mers against a Commerce Clause challenge by a Pennsyl-
vania milk dealer that shipped all of its milk purchased in
Pennsylvania to New York to be sold there. The Court ob-
served that "[t]he purpose of the statute ... is to reach a
domestic situation in the interest of the welfare of the pro-
ducers and consumers of milk in Pennsylvania." Id., at 352.
It went on to say:
"One of the commonest forms of state action is the exer-
cise of the police power directed to the control of local
conditions and exerted in the interest of the welfare of
the state's citizens. Every state police statute neces-
sarily will affect interstate commerce in some degree,
but such a statute does not run counter to the grant of
Congressional power merely because it incidentally or
214 WEST LYNN CREAMERY, INC. v. HEALY
REHNQUIST, C. J., dissenting
indirectly involves or burdens interstate commerce. . . .
These principles have guided judicial decision for more
than a century/' Id., at 351-352.
The Massachusetts subsidy under consideration is similar
in many respects to the Pennsylvania statute described in
Eisenberg, supra. Massachusetts taxes all dealers of milk
within its borders. The tax is evenhanded on its face, i. e.,
it affects all dealers regardless of the point of origin of the
milk. Ante, at 194 ("the tax also applies to milk produced in
Massachusetts"); ante, at 200 ("the evenhanded tax at issue
here")- The State has not acted to strong-arm sister States
as in Limbach; rather, its motives are purely local. As the
Supreme Judicial Court of Massachusetts aptly described it:
"[T]he premiums represent one of the costs of doing business
in the Commonwealth, a cost all milk dealers must pay."
West Lynn Creamery, Inc. v. Commissioner ofDept. of Food
and Agriculture, 415 Mass. 8, 19, 611 N. E. 2d 239, 245 (1993).
Consistent with precedent, the Court observes: "A pure
subsidy funded out of general revenue ordinarily imposes no
burden on interstate commerce, but merely assists local busi-
ness." Ante, at 199. And the Court correctly recognizes
that "[njondiscriminatory measures, like the evenhanded tax
at issue here, are generally upheld" due to the deference nor-
mally accorded to a State's political process in passing legis-
lation in light of various competing interest groups. Ante,
at 200, citing Minnesota v. Clover Leaf Creamery Co., 449
U. S. 456, 473, n. 17 (1981), and Raymond Motor Transp.,
Inc. v. Rice, 434 U. S. 429, 444, n. 18 (1978). But the Court
strikes down this method of state subsidization because the
nondiscriminatory tax levied against all milk dealers is cou-
pled with a subsidy to milk producers. Ante, at 200-201.
The Court does this because of its view that the method of
imposing the tax and subsidy distorts the State's political
process: The dairy farmers, who would otherwise lobby
against the tax, have been mollified by the subsidy. Ibid.
But as the Court itself points out, there are still at least two
Cite as: 512 U. S. 186 (1994) 215
REHNQUIST, C. X, dissenting
strong interest groups opposed to the milk order— consum-
ers and milk dealers. More importantly, nothing in the
dormant Commerce Clause suggests that the fate of state
regulation should turn upon the particular lawful manner in
which the state subsidy is enacted or promulgated. Analy-
sis of interest group participation in the political process
may serve many useful purposes, but serving as a basis for
interpreting the dormant Commerce Clause is not one of
them.
The Court concludes that the combined effect of the milk
order "simultaneously burdens interstate commerce and
discriminates in favor of local producers. " Ante, at 201. In
support of this conclusion, the Court cites Baldwin v. G. A. F.
Seelig, Inc., 294 U. S. 511 (1935), and Bacchus Imports, Ltd.
v. Dias, supra, as two examples in which constitutional
means were held to have unconstitutional effects on inter-
state commerce. But both Baldwin and Bacchus are a far
cry from this case.
In Baldwin, supra, in order to sell bottled milk in New
York, milk dealers were required to pay a minimum price
for milk, even though they could have purchased milk from
Vermont farmers at a lower price. This scheme was found
to be an effort to prevent Vermont milk producers from
selling to New York dealers at their lower market price.
As Justice Cardozo explained, under the New York statute,
"the importer . . . may keep his milk or drink it, but sell it he
may not." 294 U. S., at 521. Such a scheme clearly made it
less attractive for New York dealers to purchase milk from
Vermont farmers, for the disputed law negated any economic
advantage in so doing. Under the Massachusetts milk
order, there is no such adverse effect. Milk dealers have
the same incentives to purchase lower priced milk from out-
of-state farmers; dealers of all milk are taxed equally. To
borrow Justice Cardozo's description, milk dealers in Massa-
chusetts are free to keep their milk, drink their milk, and
sell it — on equal terms as local milk.
216 WEST LYNN CREAMERY, INC. v. HEALY
REHNQUIST, C. J., dissenting
In Bacchus, the State of Hawaii combined its undisputed
power to tax and grant exemptions in a manner that the
Court found violative of the Commerce Clause. There, the
State exempted a local wine from the burdens of an excise
tax levied on all other liquor sales. Despite the Court's
strained attempt to compare the scheme in Bacchus to the
milk order in this case, ante, at 196-197, it is clear that the
milk order does not produce the same effect on interstate
commerce as the tax exemption in Bacchus. I agree with
the Court's statement that Bacchus can be distinguished "by
noting that the rebate in this case goes not to the entity
which pays the tax (milk dealers) but to the dairy farmers
themselves." Ante, at 197, n. 14. This is not only a distinc-
tion, but a significant difference. No decided case supports
the Court's conclusion that the negative Commerce Clause
prohibits the State from using money that it has lawfully
obtained through a neutral tax on milk dealers and distribut-
ing it as a subsidy to dairy farmers. Indeed, the case which
comes closest to supporting the result the Court reaches is
the ill-starred opinion in United States v. Butler, 297 U. S. 1
(1936), in which the Court held unconstitutional what would
have been an otherwise valid tax on the processing of ag-
ricultural products because of the use to which the revenue
raised by the tax was put.
More than half a century ago, Justice Brandeis said in his
dissenting opinion in New State Ice Co. v. Liebmann, 285
U. S. 262, 311 (1932):
"To stay experimentation in things social and eco-
nomic is a grave responsibility. Denial of the right to
experiment may be fraught with serious consequences
to the Nation. It is one of the happy incidents of the
federal system that a single courageous State may, if its
citizens choose, serve as a laboratory; and try novel so-
cial and economic experiments without risk to the rest
of the country."
Cite as: 512 U. S. 186 (1994) 217
REHNQUIST, C. J., dissenting
Justice Brandeis' statement has been cited more than once
in subsequent majority opinions of the Court. See, e. g.,
Reeves, Inc. v. Stake, 447 U. S. 429, 441 (1980). His observa-
tion bears heeding today, as it did when he made it. The
wisdom of a messianic insistence on a grim sink-or-swim pol-
icy of laissez-faire economics would be debatable had Con-
gress chosen to enact it; but Congress has done nothing of
the kind. It is the Court which has imposed the policy
under the dormant Commerce Clause, a policy which bodes
ill for the values of federalism which have long animated our
constitutional jurisprudence.
218 OCTOBER TERM, 1993
Syllabus
MCI TELECOMMUNICATIONS CORP. v. AMERICAN
TELEPHONE & TELEGRAPH CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 93-356. Argued March 21, 1994— Decided June 17, 1994*
Title 47 U. S. C. §203(a) requires communications common carriers to file
tariffs with the Federal Communications Commission, and §203(b)(2)
authorizes the Commission to ''modify any requirement made by or
under . . . this section . . . ." Relying on the latter provision, the Com-
mission issued an order determining that its earlier decision to make
tariff filing optional for all nondominant long-distance carriers was
within its authority to "modify." American Telephone and Telegraph
Co., the only dominant long-distance carrier, filed a motion with the
Court of Appeals seeking summary reversal of the Commission's order.
The motion was granted on the basis of that court's prior decision deter-
mining that the Commission's authorization of permissive detariffing
violated §203(a).
Held' The Commission's permissive detariffing policy is not a valid exer-
cise of its §203(b)(2) authority to "modify any requirement." Because
virtually every dictionary in use now and at the time the statute was
enacted defines "to modify" as meaning to change moderately or in
minor fashion, the word "modify" must be seen to have a connotation of
increment or limitation. That § 203(b)(2) does not contemplate basic or
fundamental changes is also demonstrated by the fact that the only ex-
ception to it deals with a very minor matter: The Commission may not
require the penod for giving notice of tariff changes to exceed 120 days.
The Commission's permissive detariffing policy cannot be justified as
a nonfundamental "modification." The tariff filing requirement is the
heart of the common carrier subchapter of the Communications Act of
1934, and the policy eliminates that requirement entirely for all except
one firm in the long-distance sector, and for 40% of all consumers in that
sector. Moreover, it is hard to imagine that a condition shared by so
many affected parties qualifies as "special" under § 203(b)(2)'s require-
ment that when the Commission proceeds "by general order" to make
a modification, the order can only apply "to special circumstances or
conditions." The Commission's interpretation of the statute is there-
Together with No. 93-521, United States et al. v. American Tele-
phone & Telegraph Co. et aL, also on certiorari to the same court.
Cite as: 512 U. S. 218 (1994) 219
Syllabus
fore not entitled to deference, since it goes beyond the meaning that
the statute can bear. That Congress seemed to manifest agreement
with the parties' respective interpretations in later legislation is irrel-
evant; there has been no consistent history of legislation to which one
or the other interpretation is essential. Finally, petitioners' argu-
ment that their interpretation better serves the Act's broad purpose of
promoting efficient telephone service should be addressed to Congress.
Pp. 224-234.
Affirmed.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST,
C. J., and KENNEDY, THOMAS, and GINSBURG, JJ., joined. STEVENS, J.,
filed a dissenting opinion, in which BLACKMUN and SOUTER, JJ., joined,
post, p. 235. O'CONNOR, J., took no part in the consideration or decision
of the cases.
Christopher J. Wright argued the cause for the federal
petitioners. With him on the brief were Solicitor General
Days, Assistant Attorney General Bingaman, and Deputy
Solicitor General Wallace. Donald B. Verrilli, Jr., argued
the cause for petitioner in No. 93-356. With him on the
briefs were Chester T. Kamin, Michael H. Salsbury, An-
thony C. Epstein, John B. Morris, Jr., Donald J. Elardo,
Frank W. Krogh, and Richard G. Taranto.
David W. Carpenter argued the cause for respondents in
both cases. With him on the brief for respondent American
Telephone & Telegraph Co. were Thomas W. Merrill, Peter
D. Keisler, Joseph D. Kearney, Mark C. Rosenblum, and
John J. Langhauser. Leon M. Kestenbaum, Michael B.
Fingerhut, Theodore Case Whitehouse, and W. Theodore
Pierson, Jr., filed a brief for respondent Sprint Communi-
cations Co. L. P. et al.t
tBriefs of amid curiae urging reversal were filed for International
Business Machines Corporation by T. Roger Wallenberg, William 2! Lake,
John H. Harwood II, and Sheila McCartney; for the California Bankers
Clearing House Association et al. by Henry D. Levine, Ellen G. Block, and
Francis E. Fletcher, Jr.; and for Wiltel, Inc., by David G. Leitch.
220 MCI TELECOMMUNICATIONS bORP. v. AMERICAN
TELEPHONE & TELEGRAPH CO.
Opinion of the Court
JUSTICE SCALIA delivered the opinion of the Court.
Section 203(a) of Title 47 of the United States Code re-
quires communications common carriers to file tariffs with
the Federal Communications Commission, and §203(b)
authorizes the Commission to "modify" any requirement
of §203. These cases present the question whether the
Commission's decision to make tariff filing optional for all
nondominant long-distance carriers is a valid exercise of its
modification authority.
I
Like most cases involving the role of the American Tele-
phone and Telegraph Company (AT&T) in our national tele-
communication system, these have a long history. An un-
derstanding of the cases requires a brief review of the
Commission's efforts to regulate and then deregulate the
telecommunications industry. When Congress created the
Commission in 1934, AT&T, through its vertically integrated
Bell system, held a virtual monopoly over the Nation's tele-
phone service. The Communications Act of 1934, 48 Stat.
1064, as amended, authorized the Commission to regulate the
rates charged for communication services to ensure that they
were reasonable and nondiscriminatory. The requirements
of § 203 that common carriers file their rates with the Com-
mission and charge only the filed rate were the centerpiece
of the Act's regulatory scheme.
In the 1970's, technological advances reduced the entry
costs for competitors of AT&T in the market for long-
distance telephone service. The Commission, recognizing
the feasibility of greater competition, passed regulations to
facilitate competitive entry. By 1979, competition in the
provision of long-distance service was well established, and
some urged that the continuation of extensive tariff fil-
ing requirements served only to impose unnecessary costs
on new entrants and to facilitate collusive pricing. The
Commission held hearings on the matter, see Competitive
Carrier Notice of Inquiry and Proposed Rulemaking, 77
Cite as: 512 II S. 218 (1994) 221
Opinion of the Court
F. Q C. 2d 308 (1979), following which it issued a series of
rules that have produced this litigation.
The First Report and Order, 85 R C. C. 2d 1, 20-24 (1980),
distinguished between dominant carriers (those with market
power) and nondominant carriers — in the long-distance mar-
ket, this amounted to a distinction between AT&T and every-
one else — and relaxed some of the filing procedures for non-
dominant carriers, id., at 30-49. In the Second Report and
Order, 91 R C. C. 2d 59 (1982), the Commission entirely elim-
inated the filing requirement for resellers of terrestrial com-
mon carrier services. This policy of optional filing, or per-
missive detariffing, was extended to all other resellers, and
to specialized common carriers, including petitioner MCI
Telecommunications Corp., by the Fourth Report and Order,
95 R C. C. 2d 554 (1983),1 and to virtually all remaining cate-
gories of nondominant carriers by the Fifth Report and
Order, 98 R C. C. 2d 1191 (1984). Then, in 1985, the Com-
mission shifted to a mandatory detariffing policy, which pro-
hibited nondominant carriers from filing tariffs. See Sixth
Report and Order, 99 R C. C. 2d 1020. The United States
Court of Appeals for the District of Columbia Circuit, how-
ever, struck down the Sixth Report's mandatory detariffing
policy in a challenge brought — somewhat ironically as it now
appears — by MCI. See MCI Telecommunications Corp. v.
F. a C., 765 R 2d 1186 (1985) (Ginsburg, J.). The Court of
Appeals reasoned that §203(a)'s command that "[e]very com-
mon carrier . . . shall . . . file" tariffs was mandatory. And
although § 203(b) authorizes the Commission to "modify any
requirement" in the section, the Court of Appeals concluded
that that phrase "suggested] circumscribed alterations — not,
as the RCC now would have it, wholesale abandonment or
elimination of a requirement." Id, at 1192.
xThe Third Report and Order, 48 Fed. Reg. 46791 (1983), extended the
Competitive Carrier Rulemakings to carriers providing service to domes-
tic points outside the continental United States, such as Hawaii, Puerto
Rico, and the United States Virgin Islands.
222 MCI TELECOMMUNICATIONS CORP. v. AMERICAN
TELEPHONE & TELEGRAPH CO,
Opinion of the Court
In the wake of the invalidation of mandatory detariffing
by the Court of Appeals, MCI continued its practice of not
filing tariffs for certain services, pursuant to the permissive
detariffing policy of the Fourth Report and Order. On Au-
gust 7, 1989, AT&T filed a complaint, pursuant to the third-
party complaint provision of the Communications Act, 47
U S. C. §208(a), which alleged that MCFs collection of un-
filed rates violated §§203(a) and (c). MCI responded that
the Fourth Report was a substantive rule, and so MCI had
no legal obligation to file rates. AT&T rejoined that the
Fourth Report and Order was simply a statement of the
Commission's nonenforcement policy, which did not immu-
nize MCI from private enforcement actions; and that if the
Fourth Report and Order established a substantive rule, it
was in excess of statutory authority. The Commission did
not take final action on AT&T's complaint until almost 2l/2
years after its filing. See AT&T Communications v. MCI
Telecommunications Corp., 7 FCC Red 807 (1992). It char-
acterized the Fourth Report and Order as a substantive rule
and dismissed AT&T's complaint on the ground that MCI
was in compliance with that rule. It refused to address,
however, AT&T's contention that the rule was ultra vires,
announcing instead a proposed rulemaking to consider that
question. See Tariff Filing Requirements for Interstate
Common Carriers, Notice of Proposed Rulemaking, 7 FCC
Red 804 (1992).
AT&T petitioned for review, arguing, inter alia, that the
Commission lacked authority to defer to a later rulemaking
consideration of an issue which was dispositive of an adjudi-
catory complaint. The United States Court of Appeals for
the District of Columbia Circuit granted the petition for re-
view. See American Telephone & Telegraph Co. v. F. C. C,
978 F. 2d 727 (1992) (Silberman, J.). The Court of Appeals
characterized the Commission's failure to address its author-
ity to promulgate the permissive detariffing policy as "a sort
of administrative law shell game," id., at 731-732. Address-
Cite as: 512 U. S. 218 (1994) 223
Opinion of the Court
ing that question itself, the Court of Appeals concluded that
the permissive detariffing policy of the Fourth Report and
Order was rendered indefensible by the 1985 MCI decision:
'"Whether detariffing is made mandatory, as in the Sixth Re-
port, or simply permissive, as in the Fourth Report, carriers
are, in either event, relieved of the obligation to file tariffs
under section 203(a). That step exceeds the limited author-
ity granted the Commission in section 203(b) to 'modify* re-
quirements of the Act." Id., at 736. The Court of Appeals
then remanded the case so that the Commission could award
appropriate relief. See id., at 736-737. We denied certio-
rari. MCI Telecommunications Corp. v. American Tele-
phone & Telegraph Co., 509 U. S. 913 (1993).
Moving now with admirable dispatch, less than two weeks
after the decision by the Court of Appeals concerning the
adjudicatory proceeding, the Commission released a Report
and Order from the rulemaking proceeding commenced in
response to AT&T's complaint. See In re Tariff Filing Re-
quirements for Interstate Common Carriers, 7 FCC Red
8072 (1992), stayed pending further notice, 7 FCC Red 7989
(1992). That is the Report and Order at issue in this case.
The Commission, relying upon the §203(b) authority to
"modify" that had by then been twice rejected by the Dis-
trict of Columbia Circuit, determined that its permissive
detariffing policy was within its authority under the Commu-
nications Act. AT&T filed a motion with the District of Co-
lumbia Circuit seeking summary reversal of the Commis-
sion's order. The motion was granted in an unpublished per
curiam order stating: "The decision of this court in [Ameri-
can Telephone & Telegraph Co. v. FCC, 978 F. 2d 727 (1992),]
conclusively determined that the FCC's authorization of per-
missive detariffing violates Section 203(a) of the Communica-
tions Act." App. to Pet. for Cert. 2a. Both MCI and the
United States (together with the Commission) petitioned for
certiorari. We granted the petitions and consolidated them.
510 U. S. 989 (1993).
224 MCI TELECOMMUNICATIONS CORP. u AMERICAN
TELEPHONE & TELEGRAPH CO.
Opinion of the Court
II
Section 203 of the Communications Act contains both the
filed rate provisions of the Act and the Commission's dis-
puted modification authority. It provides in relevant part:
"(a) Filing; public display.
"Every common carrier, except connecting carriers,
shall, within such reasonable time as the Commission
shall designate, file with the Commission and print and
keep open for public inspection schedules showing all
charges . . . , whether such charges are joint or separate,
and showing the classifications, practices, and regula-
tions affecting such charges. . . .
"(b) Changes in schedule; discretion of Commission to
modify requirements.
"(1) No change shall be made in the charges, classifi-
cations, regulations, or practices which have been so
filed and published except after one hundred and twenty
days notice to the Commission and to the public, which
shall be published in such form and contain such infor-
mation as the Commission may by regulations prescribe.
"(2) The Commission may, in its discretion and for
good cause shown, modify any requirement made by or
under the authority of this section either in particular
instances or by general order applicable to special cir-
cumstances or conditions except that the Commission
may not require the notice period specified in paragraph
(1) to be more than one hundred and twenty days,
"(c) Overcharges and rebates.
"No carrier, unless otherwise provided by or under
authority of this chapter, shall engage or participate in
such communication unless schedules have been filed
and published in accordance with the provisions of this
chapter and with the regulations made thereunder; and
no carrier shall (1) charge, demand, collect, or receive a
Cite as: 512 U. S. 218 (1994)
Opinion of the Court
greater or less or different compensation for such com-
munication . . . than the charges specified in the schedule
then in effect, or (2) refund or remit by any means or
device any portion of the charges so specified, or (3) ex-
tend to any person any privileges or facilities in such
communication, or employ or enforce any classifications,
regulations, or practices affecting such charges, except
as specified in such schedule." 47 U. S. C. §203 (1988
ed. and Supp. IV).
The dispute between the parties turns on the meaning of
the phrase "modify any requirement" in § 203(b)(2). Petition-
ers argue that it gives the Commission authority to make
even basic and fundamental changes in the scheme created
by that section. We disagree. The word "modify" — like a
number of other English words employing the root "mod-"
(deriving from the Latin word for "measure"), such as "mod-
erate," "modulate," "modest," and "modicum" — has a conno-
tation of increment or limitation. Virtually every dictionary
we are aware of says that "to modify" means to change mod-
erately or in minor fashion. See, e. g., Random House Dic-
tionary of the English Language 1236 (2d ed. 1987) ("to
change somewhat the form or qualities of; alter partially;
amend"); Webster's Third New International Dictionary
1452 (1981) ("to make minor changes in the form or structure
of: alter without transforming"); 9 Oxford English Diction-
ary 952 (2d ed. 1989) ("[t]o make partial changes in; to change
(an object) in respect of some of its qualities; to alter or vary
without radical transformation"); Black's Law Dictionary
1004 (6th ed. 1990) ("[t]o alter; to change in incidental or sub-
ordinate features; enlarge; extend; amend; limit; reduce").
In support of their position, petitioners cite dictionary
definitions contained in, or derived from, a single source,
Webster's Third New International Dictionary 1452 (1981)
(Webster's Third), which includes among the meanings of
226 MCI TELECOMMUNICATIONS CORP. v AMERICAN
TELEPHONE & TELEGRAPH CO.
Opinion of the Court
"modify/' "to make a basic or important change in."2 Peti-
tioners contend that this establishes sufficient ambiguity to
entitle the Commission to deference in its acceptance of
the broader meaning, which in turn requires approval of its
permissive detariffing policy. See Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837,
843 (1984). In short, they contend that the courts must
defer to the agency's choice among available dictionary defi-
nitions, citing National Railroad Passenger Corporation v.
Boston & Maine Corp., 503 U. S. 407, 418 (1992).
But Boston & Maine does not stand for that proposition.
That case involved the question whether the statutory term
"required" could only mean "demanded as essential" or could
also mean "demanded as appropriate." In holding that the
latter was a permissible interpretation, to which Chevron
deference was owed, the opinion did not rely exclusively
upon dictionary definitions, but also upon contextual indica-
tions, see 503 U. S., at 417-419 — which in the present cases,
as we shall see, contradict petitioners' position. Moreover,
when the Boston & Maine opinion spoke of "alternative dic-
tionary definitions," ibid., it did not refer to what we have
here: one dictionary whose suggested meaning contradicts
virtually all others. It referred to alternative definitions
2 Petitioners also cite Webster's Ninth New Collegiate Dictionary 763
(1991), which includes among its definitions of "modify," "to make basic or
fundamental changes in often to give a new orientation to or to serve a
new end." They might also have cited the eighth version of Webster's
New Collegiate Dictionary 739 (1973), which contains that same definition;
and Webster's Seventh New Collegiate Dictionary 544 (1963), which con-
tains the same definition as Webster's Third New International Dictionary
quoted in text. The Webster's New Collegiate Dictionaries, published by
G. & C. Merriam Company of Springfield, Massachusetts, are essentially
abridgments of that company's Webster's New International Dictionaries,
and recite that they are based upon those lengthier works. The last New
Collegiate to be based upon Webster's Second New International, rather
than Webster's Third, does not include "basic or fundamental change"
among the accepted meanings of "modify." See Webster's New Collegiate
Dictionary 541 (6th ed. 1949).
Cite as: 512 U. S. 218 (1994) 227
Opinion of the Court
within the dictionary cited (Webster's Third, as it happens),
which was not represented to be the only dictionary giving
those alternatives. To the contrary, the Court said "these
alternative interpretations are as old as the jurisprudence of
this Court/' id., at 419, citing McCulloch v. Maryland, 4
Wheat. 316 (1819). See also Webster's New International
Dictionary 2117 (2d ed. 1934); 2 New Shorter Oxford English
Dictionary 2557 (1993) (giving both alternatives).
Most cases of verbal ambiguity in statutes involve, as Bos-
ton & Maine did, a selection between accepted alternative
meanings shown as such by many dictionaries. One can en-
vision (though a court case does not immediately come to
mind) having to choose between accepted alternative mean-
ings, one of which is so newly accepted that it has only been
recorded by a single lexicographer. (Some dictionary must
have been the very first to record the widespread use of
"projection," for example, to mean "forecast/') But what
petitioners demand that we accept as creating an ambiguity
here is a rarity even rarer than that: a meaning set forth in
a single dictionary (and, as we say, its progeny) which not
only supplements the meaning contained in all other diction-
aries, but contradicts one of the meanings contained in virtu-
ally all other dictionaries. Indeed, contradicts one of the
alternative meanings contained in the out-of-step dictionary
itself — for as we have observed, Webster's Third itself de-
fines "modify" to connote both (specifically) major change
and (specifically) minor change. It is hard to see how that
can be. When the word "modify" has come to mean both "to
change in some respects" and "to change fundamentally" it
will in fact mean neither of those things. It will simply
mean "to change," and some adverb will have to be called
into service to indicate the great or small degree of the
change.
If that is what the peculiar Webster's Third definition
means to suggest has happened — and what petitioners sug-
gest by appealing to Webster's Third — we simply disagree.
228 MCI TELECOMMUNICATIONS CORP. u AMERICAN
TELEPHONE & TELEGRAPH CO,
Opinion of the Court
"Modify," in our view, connotes moderate change. It might
be good English to say that the French Revolution "modi-
fied" the status of the French nobility — but only because
there is a figure of speech called understatement and a liter-
ary device known as sarcasm. And it might be unsurprising
to discover a 1972 White House press release saying that
"the Administration is modifying its position with regard to
prosecution of the war in Vietnam" — but only because press
agents tend to impart what is nowadays called "spin." Such
intentional distortions, or simply careless or ignorant misuse,
must have formed the basis for the usage that Webster's
Third, and Webster's Third alone, reported.3 It is perhaps
gilding the lily to add this: In 1934, when the Communica-
tions Act became law — the most relevant time for determin-
ing a statutory term's meaning, see Perrin v. United States,
444 U. S. 37, 42-45 (1979)— Webster's Third was not yet even
contemplated. To our knowledge all English dictionaries
provided the narrow definition of "modify," including those
published by G. & C. Merriam Company. See Webster's
New International Dictionary 1577 (2d ed. 1934); Webster's
Collegiate Dictionary 628 (4th ed. 1934). We have not the
slightest doubt that is the meaning the statute intended.
Beyond the word itself, a further indication that the
§ 203(b)(2) authority to "modify" does not contemplate funda-
mental changes is the sole exception to that authority which
8 That is not an unlikely hypothesis. Upon its long-awaited appearance
in 1961, Webster's Third was widely criticized for its portrayal of common
error as proper usage. See, e. g., Follett, Sabotage in Springfield, 209 At-
lantic 73 (Jan. 1962); Barzun, What is a Dictionary? 32 The American
Scholar 176, 181 (spring 1963); Macdonald, The String Unwound, 38 The
New Yorker 130, 156-157 (Mar. 1962). An example is its approval (with-
out qualification) of the use of "infer" to mean "imply": "infer" "5: to give
reason to draw an inference concerning: HINT (did not take part in the
debate except to ask a question inferring that the constitution must be
changed— Manchester Guardian Weekly)." Webster's Third New Inter-
national Dictionary 1158 (1961).
Cite as: 512 U. S. 218 (1994) 229
Opinion of the Court
the section provides. One of the requirements of §203 is
that changes to filed tariffs can be made only after 120 days'
notice to the Commission and the public. §203(b)(l). The
only exception to the Commission's §203(b)(2) modification
authority is as follows: "except that the Commission may not
require the notice period specified in paragraph (1) to be
more than one hundred and twenty days." Is it conceivable
that the statute is indifferent to the Commission's power to
eliminate the tariff-filing requirement entirely for all except
one firm in the long-distance sector, and yet strains out the
gnat of extending the waiting period for tariff revision be-
yond 120 days? We think not. The exception is not as ri-
diculous as a Lilliputian in London only because it is to be
found in Lilliput: in the small-scale world of "modifications,"
it is a big deal.
Since an agency's interpretation of a statute is not entitled
to deference when it goes beyond the meaning that the stat-
ute can bear, see, e. g., Pittston Coal Group v. Sebben, 488
U. S. 105, 113 (1988); Chevron, 467 U. S., at 842-843, the
Commission's permissive detariffing policy can be justified
only if it makes a less than radical or fundamental change in
the Act's tariff-filing requirement. The Commission's at-
tempt to establish that no more than that is involved greatly
understates the extent to which its policy deviates from the
filing requirement, and greatly undervalues the importance
of the filing requirement itself.
To consider the latter point first: For the body of a law, as
for the body of a person, whether a change is minor or major
depends to some extent upon the importance of the item
changed to the whole. Loss of an entire toenail is insignifi-
cant; loss of an entire arm tragic. The tariff-filing require-
ment is, to pursue this analogy, the heart of the common-
carrier section of the Communications Act. In the context
of the Interstate Commerce Act, which served as its model,
see, e. g., MCI Telecommunications Corp. v. FCC, 917 F. 2d
230 MCI TELECOMMUNICATIONS CORP. v. AMERICAN
TELEPHONE & TELEGRAPH CO.
Opinion of the Court
30, 38 (CADC 1990), this Court has repeatedly stressed that
rate filing was Congress's chosen means of preventing unrea-
sonableness and discrimination in charges: "[T]here is not
only a relation, but an indissoluble unity between the provi-
sion for the establishment and maintenance of rates until cor-
rected in accordance with the statute and the prohibitions
against preferences and discrimination." Texas & Pacific
R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 440 (1907);
see also Robinson v. Baltimore & Ohio R. Co., 222 U. S. 506,
508-509 (1912). "The duty to file rates with the Commis-
sion, [the analog to §203(a)], and the obligation to charge
only those rates, [the analog to §203(c)], have always been
considered essential to preventing price discrimination and
stabilizing rates." Maislin Industries, U. S., Inc. v. Pri-
mary Steel, Inc., 497 U. S. 116, 126 (1990); see also Arizona
Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U. S. 370, 384
(1932) (filing requirements "render rates definite and certain,
and . . . prevent discrimination and other abuses"); Armour
Packing Co. v. United States, 209 U. S. 56, 81 (1908) (elimina-
tion of filing requirement "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"). As the Maislin Court
concluded, compliance with these provisions "is 'utterly cen-
tral' to the administration of the Act." 497 U. S., at 132,
quoting Regular Common Carrier Conference v. United
States, 793 F. 2d 376, 379 (CADC 1986).
Much of the rest of the Communications Act subchapter
applicable to Common Carriers, see 47 U. S. C. §§ 201-228,
and the Act's Procedural and Administrative Provisions,
47 U. S. C. §§401-416, are premised upon the tariff-filing
requirement of §203. For example, §415 defines "over-
charges" (which customers are entitled to recover) by ref-
erence to the filed rate. See §415(g). The provisions
allowing customers and competitors to challenge rates as un-
reasonable or as discriminatory, see 47 U. S. C. §§204, 206-
Cite as: 512 U. S. 218 (1994) 231
Opinion of the Court
208, 406, would not be susceptible of effective enforcement if
rates were not publicly filed.4 See Maislin, supra, at 132.
Rate filings are, in fact, the essential characteristic of a rate-
regulated industry. It is highly unlikely that Congress
would leave the determination of whether an industry will
be entirely, or even substantially, rate-regulated to agency
discretion — and even more unlikely that it would achieve
that through such a subtle device as permission to "modify"
rate-filing requirements.
Bearing in mind, then, the enormous importance to the
statutory scheme of the tariff-filing provision, we turn to
whether what has occurred here can be considered a mere
"modification." The Commission stresses that its detariff-
ing policy applies only to nondominant carriers, so that the
rates charged to over half of all consumers in the long-
distance market are on file with the Commission. It is not
clear to us that the proportion of customers affected, rather
than the proportion of carriers affected, is the proper meas-
ure of the extent of the exemption (of course all carriers in
the long-distance market are exempted, except AT&T), But
even assuming it is, we think an elimination of the crucial
provision of the statute for 40% of a major sector of the in-
dustry is much too extensive to be considered a **modifica-
tion." What we have here, in reality, is a fundamental revi-
sion of the statute, changing it from a scheme of rate
regulation in long-distance common-carrier communications
4 The dissent misrepresents what we say in this sentence, see post, at
242, and addresses two paragraphs to an argument we have not made,
post, at 242-244. We simply say, as did the Maislin Court, that eliminat-
ing the tariff-filing requirement would frustrate complaint proceedings;
not that eliminating those requirements, or indeed even eliminating the
complaint proceedings, would frustrate the ultimate purposes of the Act.
Perhaps, as the dissent asserts, it would not; perhaps even eliminating the
FCC would not do so. But we (and the FCC) are bound, not only by the
ultimate purposes Congress has selected, but by the means it has deemed
appropriate, and prescribed, for the pursuit of those purposes.
232 MCI TELECOMMUNICATIONS CORP. u AMERICAN
TELEPHONE & TELEGRAPH CO.
Opinion of the Court
to a scheme of rate regulation only where effective competi-
tion does not exist. That may be a good idea, but it was not
the idea Congress enacted into law in 1934.
Apart from its failure to qualify as a "modification/7 there
is an independent reason why the Commission's detariffing
policy cannot come within the §203(b)(2) authority to modify.
That provision requires that when the Commission proceeds
"by general order" (as opposed to when it acts "in particular
instances") to make a modification, the order can only apply
"to special circumstances or conditions." Although that is a
somewhat elastic phrase, it is not infinitely so. It is hard to
imagine that a condition shared by 40% of all long-distance
customers, and by all long-distance carriers except one, qual-
ifies as "special" within the intent of this limitation.5
Both sides of this dispute contend that Congress has mani-
fested in later legislation agreement with their respective
interpretations of the Communications Act. Petitioners
point to the 1990 amendment of the Act to require operator
service providers (OSP's) to file informational tariffs, which
can be phased out after four years, see Telephone Operator
Consumer Services Improvement Act of 1990 (TOCSIA), 104
Stat. 990, 47 U. S. C. §226(h) (1988 ed., Supp. IV). Petition-
ers reason that this must envision a background of permis-
sive filing, since otherwise the permitted phaseout of infor-
5 The dissent suggests that we ignore § 203(c) of the Act, which prohibits
carriers from providing service in the absence of a filed rate "unless pro-
vided by or under the authority of this Act." The dissent asserts that
that phrase must refer to the modification authority of §203(b)(2). See
post, at 239-240. Perhaps it does so— though that would not at all contra-
dict our interpretation of §203(b)(2), which we have acknowledged, see
infra, at 234, might in some limited circumstances permit the Commission
to waive the filing requirement But § 203(c) could just as (in fact, more)
easily be read as referring to §203(a)'s express exemption of connecting
carriers, §§ 201(b) and 211's authorization of services between carriers pur-
suant to contractual rates, §332(c)(l)(A)'s exemptions for mobile carriers,
and other express statutory exemptions from filing requirements.
Cite as: 512 U. S. 218 (1994) 233
Opinion of the Court
mational tariffs would be a phase-in of even more rigorous
requirements. AT&T, on the other hand, claims that Con-
gress has manifested agreement with its position in the re-
cent amendment of 47 U. S. C. § 832(c)(l)(A) that gives the
Commission authority to limit the tariff-filing requirement
for commercial mobile carriers — authority that would be un-
necessary if the Commission's view of §203 is correct At
most, these conflicting arguments indicate that Congress was
aware of the decade-long tug of war between the Commission
and the District of Columbia Circuit over the authority to
relax filing requirements, and at different times proceeded
on different assumptions as to who would win. We have
here not a consistent history of legislation to which one or
the other, interpretation of the Act is essential; but rather
two pieces of legislation to which first one, and then the
other, interpretation of the Act is more congenial. That is
not enough to change anything.
Finally, petitioners earnestly urge that their interpreta-
tion of § 203(b) furthers the Communications Act's broad pur-
pose of promoting efficient telephone service. They claim
that although the filing requirement prevented price discrim-
ination and unfair practices while AT&T maintained a mo-
nopoly over long-distance service, it frustrates those same
goals now that there is greater competition in that market.
Specifically, they contend that filing costs raise artificial bar-
riers to entry and that the publication of rates facilitates
parallel pricing and stifles price competition. We have con-
siderable sympathy with these arguments (though we doubt
it makes sense, if one is concerned about the use of filed
tariffs to communicate pricing information, to require filing
by the dominant carrier, the firm most likely to be a price
leader). The Court itself has policed trade associations and
rate bureaus under the antitrust laws precisely because the
sharing of pricing information can facilitate price fixing, see,
e. g., Sugar Institute, Inc. v. United States, 297 U. S. 553
234 MCI TELECOMMUNICATIONS CORP. v. AMERICAN
TELEPHONE & TELEGRAPH CO.
Opinion of the Court
(1936); American Column & Lumber Co. v. United States,
257 U. S. 377 (1921), and the Court has protected regulated
firms from some types of antitrust suits brought on the basis
of their filed rates, see, e. g., Square D Co. v. Niagara Fron-
tier Tariff Bureau, Inc., 476 U. S. 409 (1986). As we noted
earlier this Term, there is considerable "debate in other fo-
rums about the wisdom of the filed rate doctrine," Security
Services, Inc. v. Kmart Corp., 511 U. S. 431, 440 (1994), and,
more broadly, about the value of continued regulation of the
telecommunications industry. But our estimations, and the
Commission's estimations, of desirable policy cannot alter the
meaning of the federal Communications Act of 1934. For
better or worse, the Act establishes a rate-regulation, filed-
tariff system for common-carrier communications, and the
Commission's desire "to 'increase competition' cannot pro-
vide [it] authority to alter the well-established statutory filed
rate requirements," Maislin, 497 U. S., at 135. As we ob-
served in the context of a dispute over the filed-rate doctrine
more than 80 years ago, "such considerations address them-
selves to Congress, not to the courts," Armour Packing, 209
U. S., at 82.
We do not mean to suggest that the tariff-filing require-
ment is so inviolate that the Commission's existing modi-
fication authority does not reach it at all. Certainly the
Commission can modify the form, contents, and location of
required filings, and can defer filing or perhaps even waive
it altogether in limited circumstances. But what we have
here goes well beyond that. It is effectively the introduc-
tion of a whole new regime of regulation (or of free-market
competition), which may well be a better regime but is not
the one that Congress established.
The judgment of the Court of Appeals is
Affirmed.
JUSTICE O'CONNOR took no part in the consideration or
decision of these cases.
Cite as: 512 U. S. 218 (1994) 235
STEVENS, J., dissenting
JUSTICE STEVENS, with whom JUSTICE BLACKMUN and
JUSTICE SOUTER join, dissenting.
The communications industry has an unusually dynamic
character. In 1934, Congress authorized the Federal Com-
munications Commission (FCC or Commission) to regulate
"a field of enterprise the dominant characteristic of which
was the rapid pace of its unfolding/' National Broadcast-
ing Co. v. United States, 319 U. S. 190, 219 (1943). The Com-
munications Act of 1934 (Act) gives the FCC unusually broad
discretion to meet new and unanticipated problems in order
to fulfill its sweeping mandate "to make available, so far
as possible, to all the people of the United States, a rapid,
efficient, Nation-wide and world-wide wire and radio com-
munication service with adequate facilities at reasonable
charges." 47 U. S. C. § 151. This Court's consistent inter-
pretation of the Act has afforded the Commission ample lee-
way to interpret and apply its statutory powers and respon-
sibilities. See, e. g., United States v. Southwestern Cable
Co., 392 U. S. 157, 172-173 (1968); FCC v. Pottsville Broad-
casting Co., 309 U. S. 134, 138 (1940). The Court today aban-
dons that approach in favor of a rigid literalism that deprives
the FCC of the flexibility Congress meant it to have in order
to implement the core policies of the Act in rapidly chang-
ing conditions.
I
At the time the Act was passed, the telephone industry-
was dominated by the American Telephone & Telegraph
Company (AT&T) and its affiliates. Title II of the Act,
which establishes the framework for FCC regulation of com-
mon carriers by wire, was clearly a response to that domi-
nance. As the Senate Report explained, "[u]nder existing
provisions of the Interstate Commerce Act the regulation of
the telephone monopoly has been practically niL This vast
monopoly which so immediately serves the needs of the peo-
236 MCI TELECOMMUNICATIONS CORP. v. AMERICAN
TELEPHONE & TELEGRAPH CO.
STEVENS, J., dissenting
pie in their daily and social life must be effectively regu-
lated/' S. Rep. No. 781, 73d Cong., 2d Sess., 2 (1934).1
The wire communications provisions of the Act address
problems distinctly associated with monopoly. Section 201
requires telephone carriers to "furnish . . . communication
service upon reasonable request therefor/* and mandates
that their "charges, practices, classifications, and regula-
tions" be "just and reasonable." 47 U. S. C. §201. Section
202 forbids carriers to "make any unjust or unreasonable dis-
crimination in charges, practices, classifications, regulations,
facilities, or services ... or give any undue or unreasonable
preference or advantage to any particular person, class of
persons, or locality." 47 U. S. C. § 202(a). The Commission,
upon complaint or its own motion, may hold hearings upon,
and declare the lawfulness of, proposed rate increases, § 204,
and may prescribe just and reasonable charges upon a find-
ing that a carrier's actual or proposed charges are illegal,
§ 205. Persons damaged by a carrier's violation of the stat-
ute have a right to damages, §§ 206-207, and any person may
file with the Commission a complaint of violation of the
Act, §208.
Section 203, modeled upon the filed rate provisions of the
Interstate Commerce Act, see 49 U. S. C. §§ 10761-10762;
S. Rep. No. 781, supra, at 4, requires that common carriers
other than connecting carriers "file with the Commission and
print and keep open for public inspection schedules showing
all charges for itself and its connecting carriers." 47 U. S. C.
§ 203(a). A telephone carrier must allow a 120-day period of
lead time before a tariff goes into effect, and, "unless other-
1 See Investigation of the Telephone Industry in the United States, H. R.
Doc. No. 340, 76th Cong., 1st Sess., 145-146 (1939) (chronicling Bell Sys-
tem's development of a "Nation-wide, unified system to monopolize the
telephone part of the national communication field" through the "preven-
tion and elimination of effective competition"). See also H. R. Rep. No.
1273, 73d Cong., 2d Sess., pt. 1, p. XXXI (1934) ("Telephone business is a
monopoly — it is supposed to be regulated").
Cite as: 512 U. S. 218 (1994) 237
STEVENS, J., dissenting
wise provided by or under authority of this chapter," may
not provide communication services except according to a
filed schedule, §§203(c), (d). The tariff-filing section of the
Act, however, contains a proviso that states:
"(b) Changes in schedule; discretion of Commission to
modify requirements.
* • • »
"(2) The Commission may, in its discretion and for
good cause shown, modify any requirement made by or
under the authority of this section either in particular
instances or by general order applicable to special cir-
cumstances or conditions except that the Commission
may not require the notice period specified in paragraph
(1) to be more than one hundred and twenty days." 47
U. S. C. §203(b)(2) (1988 ed., Supp. IV).
Congress doubtless viewed the filed rate provisions as an
important mechanism to guard against abusive practices
by wire communications monopolies. But it is quite wrong
to suggest that the mere process of filing rate sched-
ules— rather than the substantive duty of reasonably priced
and nondiscriminatory service — is "the heart of the
common-carrier section of the Communications Act." Ante,
at 229.
II
In response to new conditions in the communications in-
dustry, including stirrings of competition in the long-distance
telephone market, the FCC in 1979 began re-examining its
regulatory scheme. The Commission tentatively concluded
that costly tariff-filing requirements were unnecessary and
actually counterproductive as applied to nondominant car-
riers, i. e., those whose lack of market power leaves them
unable to extract supracompetitive or discriminatory rates
from customers. See Competitive Carrier Rulemaking, 77
F. C. C. 2d 308 (1979). Relaxing the regulatory burdens
upon new entrants would foster competition into the tele-
238 MCI TELECOMMUNICATIONS CORP. v. AMERICAN
TELEPHONE & TELEGRAPH CO.
STEVENS, J., dissenting
communications markets; at the same time, the forces of com-
petition would ensure that firms without monopoly power
would comply with the Act's prohibitions on "unreasonable
rates" and price discrimination. See id., at 334-338. As
the Commission explained in 1981, tariff-filing obligations for
nondoininant firms were simultaneously "superfluous as a
consumer protection device, since competition circumscribes
the prices and practices of these companies" and inimical to
"price competition and service and marketing innovation."
Deregulation of Telecommunications Services, 84 R C. C. 2d
445, 478-479 (1981). Accordingly, in a series of rulings in
the early 1980's, the Commission issued orders progressively
exempting specified classes of nondominant carriers from the
obligation to file tariff schedules. See, e. g., Second Report
and Order, 91 F. C. C. 2d 59 (1982); Third Report and Order,
48 Fed. Reg. 46791 (1983). The Commission's Fourth Report
and Order, 95 F. C. C. 2d 554 (1983), extended and reaffirmed
its "permissive detariffing" policy, under which dominant
long-distance carriers must file tariff schedules whereas non-
dominant carriers, although subject to the Act's prohibitions
on unreasonable rates and price discrimination, may, but
need not, file them.
In the instant In re Tariff Filing Requirements for Inter-
state Common Carriers, 7 FCC Red 8072 (1992), the FCC
adhered to its policy of excusing nondominant providers of
long-distance telephone service from the §203 filing require-
ment, and codified that longstanding forbearance policy.
The Commission reaffirmed its commitment to "adapt . . .
regulation of telecommunications common carriers to the
changed circumstances of competition and to develop a regu-
latory approach that furthers the purposes of the Act while
fostering innovation and the efficient development of the
telecommunications industry," id., at 8079, and explained
once again why, in its view, permissive detariffing furthered
these goals, id., at 8079-8080. As it had since its initial
Cite as: 512 U. S. 218 (1994) 239
STEVENS, J., dissenting
stages of detariffing, see 84 F. C. C. 2d, at 479-480, the Com-
mission found principal statutory authority for detariffing in
the "modify any requirement" language of §203(b)(2). 7
FCC Red, at 8074-8075. "[A]ctual experience under per-
missive detariffing," including an increase in the number of
long-distance carriers from 12 in 1982 to 482 a decade later,
"further confirm[ed] the success of [the FCC's] approach in
furthering the statutory goals of the Communications Act/'
Id., at 8079-8080.
Ill
Although the majority observes that further relaxation of
tariff-filing requirements might more effectively enhance
competition, ante, at 233-234, it does not take issue with the
Commission's conclusions that mandatory filing of tariff
schedules serves no useful purpose and is actually counter-
productive in the case of carriers who lack market power.
As the Commission had noted in its prior detariffing orders,
see, e. g., 84 R C. C. 2d, at 479-480, if a nondominant carrier
sought to charge inflated rates, "customers would simply
move to other carriers." 7 FCC Red, at 8079. Moreover,
an absence of market power will ordinarily preclude firms of
any kind from engaging in price discrimination. See, e. g.,
L. Sullivan, Law of Antitrust 89 (1977) ("A firm will not dis-
criminate unless it has market power"); 9 P. Areeda, Anti-
trust Law 1fl711a, pp. 119-120 (1991). The Commission
plausibly concluded that any slight enforcement benefits a
tariff-filing requirement might offer were outweighed by the
burdens it would put on new entrants and consumers. Thus,
the sole question for us is whether the FCC's policy, however
sensible, is nonetheless inconsistent with the Act.
In my view, each of the Commission's detariffing orders
was squarely within its power to "modify any requirement"
of § 203. Section 203(b)(2) plainly confers at least some dis-
cretion to modify the general rule that carriers file tariffs,
240 MCI TELECOMMUNICATIONS CORP. v. AMERICAN
TELEPHONE & TELEGRAPH CO.
STEVENS, J., dissenting
for it speaks of "any requirement."2 Section 203(c) of the
Act, ignored by the Court, squarely supports the FCC's posi-
tion; it prohibits carriers from providing service without a
tariff "unless otherwise provided by or under authority of
this Act." Section 203(b)(2) is plainly one provision that
"otherwise provides/' and thereby authorizes, service with-
out a filed schedule. The FCC's authority to modify §203's
requirements in "particular instances" or by "general order
applicable to special circumstances or conditions" emphasizes
the expansive character of the Commission's authority: modi-
fications may be narrow or broad, depending upon the Com-
mission's appraisal of current conditions. From the vantage
of a Congress seeking to regulate an almost completely mo-
nopolized industry, the advent of competition is surely a
"special circumstance or condition" that might legitimately
call for different regulatory treatment.
The only statutory exception to the Commission's modifi-
cation authority provides that it may not extend the 120-day
notice period set out in §208(b)(l). See §203(b)(2). The
Act thus imposes a specific limit on the Commission's author-
ity to stiffen that regulatory imposition on carriers, but does
not confine the Commission's authority to relax it. It was
no stretch for the FCC to draw from this single, unidirec-
tional statutory limitation on its modification authority the
inference that its authority is otherwise unlimited. See 7
FCC Red, at 8075.
According to the Court, the term "modify," as explicated
in all but the most unreliable dictionaries, ante, at 225-228,
and n. 3, rules out the Commission's claimed authority to
relieve nondominant carriers of the basic obligation to file
tariffs. Dictionaries can be useful aides in statutory inter-
pretation, but they are no substitute for close analysis of
what words mean as used in a particular statutory context.
2 Section 203(b)(2) must do more than merely allow the Commission to
dictate the form and contents of tariff filings, for §203(b)(l) separately
grants it that authority.
Cite as: 512 U. S. 218 (1994) 241
STEVENS, J., dissenting
Cf. Cabell v. MarkTmm, 148 F. 2d 737, 739 (CA2 1945) (Hand,
J.). Even if the sole possible meaning of "modify" were to
make "minor" changes, ante, at 225,3 further elaboration is
needed to show why the detariffing policy should fail. The
Commission came to its present policy through a series of
rulings that gradually relaxed the filing requirements for
nondominant carriers. Whether the current policy should
count as a cataclysmic or merely an incremental departure
from the §203(a) baseline depends on whether one focuses
on particular carriers' obligations to file (in which case the
Commission's policy arguably works a major shift)4 or on the
statutory policies behind the tariff-filing requirement (which
remain satisfied because market constraints on nondominant
carriers obviate the need for rate filing). When §203 is
viewed as part of a statute whose aim is to constrain monop-
oly power, the Commission's decision to exempt nondominant
carriers is a rational and "measured" adjustment to novel
circumstances — one that remains faithful to the core purpose
of the tariff-filing section. See Black's Law Dictionary 1198
(3d ed. 1933) (defining "modification" as "A change; an alter-
ation which introduces new elements into the details, or can-
cels some of them, but leaves the general purpose and effect
of the subject-matter intact").
The Court seizes upon a particular sense of the word
"modify" at the expense of another, long-established meaning
3 As petitioner MCI points out, the revolutionary consent decree provid-
ing for the breakup of the Bell System was, per AT&T's own proposal,
entitled "Modification of Final Judgment." See United States v. Ameri-
can Telephone & Telegraph Co., 562 R Supp. 131 (D. C. 1982), aff'd, 460
U. S. 1001 (1983).
4 Because the statute imposes no limit on the Commission's authority to
shorten the interval between filing a tariff and bringing it into effect, and
because there is no sign that anyone actually pays attention to tariffs
filed by nondominant carriers, the additional step of eliminating the filing
requirement is less important than the Court would have it. Even the
Court appears to recognize that the Commission could sometimes excuse
carriers from filing tariffs. See ante, at 234.
242 MCI TELECOMMUNICATIONS CORP. v. AMERICAN
TELEPHONE & TELEGRAPH CO.
STEVENS, J., dissenting
that fully supports the Commission's position. That word is
first defined in Webster's Collegiate Dictionary 628 (4th ed.
1934) as meaning "to limit or reduce in extent or degree."6
The Commission's permissive detariffing policy fits comfort-
ably within this common understanding of the term. The
FCC has in effect adopted a general rule stating that "if you
are dominant you must file, but if you are nondominant you
need not." The Commission's partial detariffing policy —
which excuses nondominant carriers from filing on condition
that they remain nondominant — is simply a relaxation of a
costly regulatory requirement that recent developments had
rendered pointless and counterproductive in a certain class
of cases.
A modification pursuant to § 203(b)(l), like any other order
issued under the Act, must of course be consistent with the
purposes of the statute. On this point, the Court asserts
that the Act's prohibition against unreasonable and discrimi-
natory rates "would not be susceptible of effective enforce-
ment if rates were not publicly filed." Ante, at 231. That
determination, of course, is for the Commission to make in
the first instance. But the Commission has repeatedly ex-
5 See also 9 Oxford English Dictionary 952 (2d ed. 1989) ("2. To alter in
the direction of moderation or lenity; to make less severe, rigorous, or
decided; to qualify, tone down .... 1610 Donne Pseitdo-martyr 184 Tor
so Mariana modefies his Doctrine, that the Prince should not execute any
Clergy man, though hee deser[v]e it' "); Random House Dictionary of the
English Language 1236 (2d ed. 1987) ("5. to reduce or lessen in degree or
extent; moderate; soften; to modify one's demands"); Webster's Third
New International Dictionary 1452 (1981) ("1: to make more temperate
and less extreme: lessen the severity of; ... 'traffic rules were modified
to let him pass'"); Webster's New Collegiate Dictionary 739 (1973) ("1. to
make less extreme; MODERATE"); Webster's Seventh New Collegiate
Dictionary 544 (1963) (same); Webster's New International Dictionary
1577 (2d ed. 1934) ("2. To reduce in extent or degree; to moderate; qualify;
lower; as, to modify heat, pain, punishment"); N. Webster, American
Dictionary of the English Language (1828) ("To moderate; to qualify; to
reduce in extent or degree. Of his grace/ He modifies his first severe
decree. Dryden").
Cite as: 512 U. S. 218 (1994) 243
STEVENS, J., dissenting
plained that (1) a carrier that lacks market power is entirely
unlikely to charge unreasonable or discriminatory rates, (2)
the statutory bans on unreasonable charges and price dis-
crimination apply with full force regardless of whether carri-
ers have to file tariffs, (3) any suspected violations by non-
dominant carriers can be addressed on the Commission's own
motion or on a damages complaint filed pursuant to §206,6
and (4) the FCC can reimpose a tariff requirement should
violations occur. See, e. g., 7 FCC Red, at 8078-8079. The
Court does not adequately respond to the FCC's explana-
tions, and gives no reason whatsoever to doubt the Commis-
sion's considered judgment that tariff filing is altogether un-
necessary in the case of competitive carriers, see, e. g.9 id., at
8073, 8079; the majority's ineffective enforcement argument
lacks any evidentiary or historical support.
The Court's argument is also demonstrably incorrect A
contemporary cousin of the Communications Act of 1934 —
the Robinson-Patman Price Discrimination Act, 15 U. S. C,
§§ 13(a), 13a, 13b, enacted in 1936 — contains a much broader
prohibition against price discrimination than does the Com-
munications Act. That statute has performed its mission for
almost 60 years without any counterpart to the filed rate
doctrine. Indeed, the substantive requirements of Title II
of the Communications Act itself apply to "connecting carri-
ers" even though §203(a) exempts such carriers from the
§203 tariff-filing provisions. See 47 U. S. C. §152(b); Na-
tional Assn. of Regulatory Utility Commr's v. F. C. CI, 737
F. 2d 1095, 1115, n. 23 (CADC 1984), cert, denied, 469 U. S.
1227 (1985). The small fraction of competitive carriers that
6 The Court suggests that the Commission's detariffing policy disrupts
the statutory scheme because 47 U. S. C. §415(g) defines recoverable
"'overcharges'" by reference to filed tariffs. See ante, at 230. Over-
charge suits, by definition, depend on the presence of tariffs, but they are
not the only means for aggrieved telephone customers to recover. Section
206 allows them to recover damages from carriers who have violated the
Act and does not turn on the existence of a tariff: See also §§ 208, 415(b).
244 MCI TELECOMMUNICATIONS CORP. v. AMERICAN
TELEPHONE & TELEGRAPH CO.
STEVENS, J., dissenting
existed in 1979 now represents about 40% of the market; this
growth has occurred while the detarifflng policy has been in
effect without any indication that the absence of filed sched-
ules has produced discriminatory or unreasonable pricing
by nondominant carriers. Extolling the "enormous impor-
tance'7 of filed rates, ante, at 231, and resorting to dictionary
definitions and colorful metaphors are unsatisfactory substi-
tutes for a reasoned explanation of why the statute requires
rate filing even when the practice serves no useful purpose
and actually harms consumers.
The filed tariff provisions of the Communications Act are
not ends in themselves, but are merely one of several proce-
dural means for the Commission to ensure that carriers do
not charge unreasonable or discriminatory rates. See 84
F. C. C. 2d, at 483. The Commission has reasonably con-
cluded that this particular means of enforcing the statute's
substantive mandates will prove counterproductive in the
case of nondominant long-distance carriers. Even if the
1934 Congress did not define the scope of the Commission's
modification authority with perfect scholarly precision, this
is surely a paradigm case for judicial deference to the
agency's interpretation, particularly in a statutory regime
so obviously meant to maximize administrative flexibility7
Whatever the best reading of §203(b)(2), the Commission's
reading cannot in my view be termed unreasonable. It is
7 The majority considers it unlikely that Congress would have conferred
power on the Commission to exempt carriers from the supposedly pivotal
rate-filing obligation. See ante, at 231-232. But surely such a delegation
is not out of place in a statute that also empowers the FCC, for example,
to decide what the "public convenience, interest, or necessity" requires,
see, e. g., 47 U. S. C. §303, and to "prescribe such rules and regulations as
may be necessary in the public interest/' §201(b); see also §154(i). The
Court's rigid reading of § 202(b)(2) is out of step with our prior recognition
that the 1934 Act was meant to be a "supple instrument for the exercise
of discretion by the expert body which Congress has charged to carry out
its legislative policy." FCC v. Pottsville Broadcasting Co., 309 U. S. 134,
138 (1940).
Cite as: 512 U. S. 218 (1994) 245
STEVENS, J., dissenting
informed (as ours is not) by a practical understanding of the
role (or lack thereof) that filed tariffs play in the modern
regulatory climate and in the telecommunications industry.
Since 1979, the FCC has sought to adapt measures originally
designed to control monopoly power to new market condi-
tions. It has carefully and consistently explained that man-
datory tariff-filing rules frustrate the core statutory interest
in rate reasonableness. The Commission's use of the "dis-
cretion" expressly conferred by §203(b)(2) reflects "a reason-
able accommodation of manifestly competing interests and
is entitled to deference: the regulatory scheme is technical
and complex, the agency considered the matter in a detailed
and reasoned fashion, and the decision involves reconcil-
ing conflicting policies." Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837, 865 (1984)
(footnotes omitted). The FCC has permissibly interpreted
its §203(b)(2) authority in service of the goals Congress
set forth in the Act. We should sustain its eminently
sound, experience-tested, and uncommonly well-explained
judgment.
I respectfully dissent.
246 OCTOBER TERM, 1993
Syllabus
HAWAIIAN AIRLINES, INC. v. NORRIS
CERTIORARI TO THE SUPREME COURT OF HAWAII
No. 92-2058. Argued April 28, 1994— Decided June 20, 1994*
Respondent Norns was terminated from his job as an aircraft mechanic
by petitioner Hawaiian Airlines, Inc. (HAL), after refusing to sign a
maintenance record, as required by his collective-bargaining agreement
(CBA), for a plane he considered unsafe, and reporting his concerns
to the Federal Aviation Administration. In separate state-court suits
against HAL and its officers, also petitioners, he alleged, inter aha,
that he had been wrongfully discharged in violation of the public policy
expressed in the Federal Aviation Act and implementing regulations
and in violation of Hawaii's Whistleblower Protection Act. The court
dismissed these tort claims as pre-empted by the Railway Labor Act's
(RLA's) mandatory arbitral mechanism for so-called "minor" disputes,
which grow "out of grievances or out of the interpretation and applica-
tion of agreements concerning [pay rates], rules, or working conditions,"
45 U. S. C. § 153 First (i). The State Supreme Court reversed, conclud-
ing that § 153 First (i)'s plain language does not support pre-emption of
disputes independent of a labor agreement, and interpreting the opinion
in Consolidated Rail Corporation v. Railway Labor Executives' Assn.,
491 U. S. 299, to limit RLA pre-emption to disputes involving contractu-
ally defined rights. The court rejected petitioners* argument that the
claims were pre-empted because resort to the CBA was necessary to
determine whether Norris was discharged for insubordination, pointing
to Lingle v. Norge Dw. of Magic Chef, Inc., 486 U. S. 399, in which this
Court held that the Labor-Management Relations Act, 1947 (LMRA),
pre-empts state law only if a state-law claim is dependent on the inter-
pretation of a CBA, and that purely factual questions about an employ-
ee's conduct and the employer's conduct and motives do not require
interpreting such an agreement's terms.
Held: The RLA does not pre-empt Norris' state-law causes of action.
Pp. 252-266.
(a) The minor disputes contemplated by the RLA are those that are
grounded in a CBA. See, e. g.t Consolidated Rail Corporation, 491
U. S., at 305. The RLA pre-emption standard for resolving such dis-
putes that has emerged from the relevant cases, see, e. g., Atchison, T. &
S. F. R. Co. v. Buell, 480 U. S. 557, is that a state-law cause of action
Together with Finazzo et al. v. Norris, also on certiorari to the same
court (see this Court's Rule 12.2).
Cite as: 512 U. S. 246 (1994) 247
Syllabus
is not pre-empted if it involves rights and obligations that exist inde-
pendent of the CBA. This standard is virtually identical to the pre-
emption standard employed in cases involving §301 of the LMRA,
Given the convergence of the two standards, Lingle provides an appro-
priate framework for addressing RLA pre-emption, and its standard —
that the existence of a potential CBA-based remedy does not deprive
an employee of independent remedies available under state law — is
adopted to resolve such claims. Elgin, J. & E. R. Ca v. Burley, 325
U. S. 711; Consolidated Rail Corporation, 491 U. S., at 302, distin-
guished. Pp. 252-266.
(b) Under Lingle, Norris' state-law claims are independent of the
CBA. Petitioners' argument that resort to the CBA is necessary to
determine whether Norris was discharged for cause is foreclosed by
Lingle's teaching that the issue whether an employer's actions make out
the element of discharge under state law is a purely factual question.
Similarly, Norris' failure to sign the maintenance record is not relevant
to the determination of his state-law tort claims. P. 266.
74 Haw. 648, 847 P. 2d 263 (first case), and 74 Haw. 235, 842 P. 2d 634
(second case), affirmed.
BLACKMUN, J., delivered the opinion for a unanimous Court.
Kenneth B. Hipp argued the cause for petitioners. With
him on the briefs were David J. Dezzani and Margaret C.
Jenkins.
Susan Oki Mollway argued the cause for respondent.
With her on the brief were Edward DeLappe Boyle, Marsha
S. Berzon, Mark Schneider, and Laurence Gold.
Richard H. Seamon argued the cause for the United
States as amicus curiae urging affirmance. On the brief
were Solicitor General Days, Assistant Attorney General
Hunger, Deputy Solicitor General Kneedler, John F. Man-
ning, and William Kanter^
tBriefs of amid curiae urging reversal were filed for the State of New
Jersey by Deborah T. Poritz, Attorney General, Andrea M. Silkowitz, As-
sistant Attorney General, and Eldad Philip Isaac, Deputy Attorney Gen-
eral; for the Air Transport Association of America by Charles A Shanor,
John J. Gallagher, and Margaret H. Spurlin; and for the National Railway
Labor Conference by Ralph J. Moore, Jr., L Michael Greenberger, and
David P. Lee.
Briefs of amici curiae urging affirmance were filed for the State of
Hawaii et al. by Robert A. Marks, Attorney General of Hawaii, and Steven
248 HAWAIIAN AIRLINES, INC. v. NORRIS
Opinion of the Court
JUSTICE BLACKMUN delivered the opinion of the Court.
This action involves the scope of federal pre-emption
under the Railway Labor Act (RLA), 45 U. S. C. § 151 et seq.
The RLA, which was extended in 1936 to cover the airline
industry, see Act of Apr. 10, 1936, ch. 166, 49 Stat. 1189;
45 U. S. C. §§ 181-188, sets up a mandatory arbitral mecha-
nism to handle disputes "growing out of grievances or out of
the interpretation or application of agreements concerning
rates of pay, rules, or working conditions," 45 U. S. C. § 153
First (i). The question in this case is whether an aircraft
mechanic who claims that he was discharged for refusing to
certify the safety of a plane that he considered unsafe and
for reporting his safety concerns to the Federal Aviation Ad-
ministration may pursue available state-law remedies for
wrongful discharge, or whether he may seek redress only
through the RLA's arbitral mechanism. We hold that the
RLA does not pre-empt his state-law causes of action.
Respondent Grant Norris is an aircraft mechanic licensed
by the Federal Aviation Administration (FAA). His aircraft
mechanic's license authorizes him to approve an airplane and
S. Michaels, Deputy Attorney General, Grant Woods, Attorney General
of Arizona, Richard Blumenthal, Attorney General of Connecticut, Robert
A. Butterworth, Attorney General of Florida, Roland W. Burris, Attorney
General of Illinois, Pamela Fanning Carter, Attorney General of Indiana,
Robert T. Stephan, Attorney General of Kansas, Michael E. Carpenter,
Attorney General of Maine, Frank J. Kelley, Attorney General of Michi-
gan, Jeremiah W. (Jay) Nixon, Attorney General of Missouri, Joseph P.
Mazurek, Attorney General of Montana, Tom Udall, Attorney General of
New Mexico, Ernest D. Preate, Jr., Attorney General of Pennsylvania,
Darrell V. McGraw, Jr., Attorney General of West Virginia, and Richard
Weil, Acting Attorney General of the Northern Mariana Islands; for the
Allied Educational Foundation by Bertram R. Gelfand and Jeffrey C. Dan-
nenberg; for the National Employment Lawyers Association by Mary Ann
B. Oakley, Janette Johnson, and Robert B. Fitzpatrick; and for the Rail-
way Labor Executives' Association by John O'B. Clarke, Jr.
Cite as: 512 U. S. 246 (1994) 249
Opinion of the Court
return it to service after he has made, supervised, or in-
spected certain repairs performed on that plane. See Certi-
fication: Airmen Other Than Flight Crewmembers, 14 CFR
§§ 65.85 and 65.87 (1987). If he were to approve any aircraft
on which the repairs did not conform to FAA safety reg-
ulations, the FAA could suspend or revoke his license.
See Maintenance, Preventive Maintenance, Rebuilding and
Alteration, 14 CFR §43.12 (1992).
On February 2, 1987, respondent was hired by petitioner
Hawaiian Airlines, Inc. (HAL). Many of the terms of his
employment were governed by a collective-bargaining agree-
ment (CBA) negotiated between the carrier and the Interna-
tional Association of Machinists and Aerospace Workers.
Under the CBA, respondent's duties included inspecting and
repairing all parts of a plane and its engine. On July 15,
1987, during a routine preflight inspection of a DC-9 plane,
he noticed that one of the tires was worn. When he re-
moved the wheel, respondent discovered that the axle sleeve,
which should have been mirror smooth, was scarred and
grooved. This damaged sleeve could cause the landing gear
to fail. Respondent recommended that the sleeve be re-
placed, but his supervisor ordered that it be sanded and re-
turned to the plane. This was done, and the plane flew as
scheduled. At the end of the shift, respondent refused to
sign the maintenance record to certify that the repair had
been performed satisfactorily and that the airplane was fit
to fly. See 14 CFR §43.9(a) (1992). The supervisor im-
mediately suspended him pending a termination hearing.
Respondent immediately went home and called the FAA
to report the problem with the sleeve.1
Respondent then invoked the grievance procedure out-
lined in the CBA, and a "Step 1" grievance hearing was held
lln response, the FAA initiated a comprehensive investigation, pro-
posed a civil penalty of $964,000 against HAL, proposed the revocation of
the license of the supervisor who terminated respondent, and ultimately
settled all charges for a substantial fine.
250 HAWAIIAN AIRLINES, INC. v NORRIS
Opinion of the Court
on July 31, 1987. Petitioner HAL accused respondent of
insubordination, claiming that his refusal to sign the record
violated the CBA's provision that an aircraft mechanic "may
be required to sign work records in connection with the work
he performs. " Respondent relied on the CBA's guarantees
that an employee may not be discharged without just cause
and may not be disciplined for refusing to perform work that
is in violation of health or safety laws. The hearing officer
terminated respondent for insubordination.
Still conforming to the CBA procedures, respondent ap-
pealed his termination, seeking a "Step 3" grievance hear-
ing. Before this hearing took place, HAL offered to reduce
respondent's punishment to suspension without pay, but
warned him that "any further instance of failure to perform
[his] duties in a responsible manner" could result in dis-
charge. Respondent did not respond to this offer, nor, ap-
parently, did he take further steps to pursue his grievance
through the CBA procedures.
On December 18, 1987, respondent filed suit against HAL
in Hawaii Circuit Court. His complaint included two
wrongful-discharge torts — discharge in violation of the
public policy expressed in the Federal Aviation Act of 1958
and implementing regulations, and discharge in violation of
Hawaii's Whistleblower Protection Act, Haw. Rev. Stat.
§§378-61 to 378-69 (1988).2 He also alleged that HAL had
breached the CBA. HAL removed the action to the United
States District Court for the District of Hawaii, which dis-
missed the breach-of-contract claim as pre-empted by the
2 The Hawaii Whistleblower Protection Act forbids an employer to
"discharge, threaten, or otherwise discriminate against an employee . . .
because . . . [t]he employee . . . reports or is about to report to a public
body ... a violation or a suspected violation of a law or rule adopted
pursuant to law of this State, a political subdivision of this State, or the
United States, unless the employee knows that the report is false. "
§378-62(1). The Act authorizes an employee to file a civil action seeking
injunctive relief and actual damages. § 378-63(a).
Cite as: 512 U. S. 246 (1994) 261
Opinion of the Court
RLA, and remanded the other claims to the state trial court.
The trial court then dismissed respondent's claim of dis-
charge in violation of public policy, holding that it, too, was
pre-empted by the RLA's provision of exclusive arbitral pro-
cedures. The state court certified its order as final to per-
mit respondent to take an immediate appeal.
In the meantime, respondent had filed a second lawsuit in
state court, naming as defendants three of HAL/s officers
who allegedly directed, confirmed, or ratified the claimed
retaliatory discharge.3 He again sought relief for, among
other things, discharge in violation of public policy and of
the Hawaii Whistleblower Protection Act. The Hawaii trial
court dismissed these two counts as pre-empted by the RLA
and certified the case for immediate appeal.
The Supreme Court of Hawaii reversed in both cases, con-
cluding that the RLA did not pre-empt respondent's state
tort actions. Norris v. Hawaiian Airlines, Inc., 74 Haw.
235, 842 P. 2d 634 (1992); 74 Haw. 648, 847 P. 2d 263 (1993).
That court concluded that the plain language of § 153 First
(i) does not support pre-emption of disputes independent of
a labor agreement, 74 Haw., at 251, 842 P. 2d, at 642, and
interpreted the opinion in Consolidated Rail Corporation v.
Railway Labor Executives9 Assn., 491 U. S. 299 (1989) (Con-
rail), to limit RLA pre-emption to "disputes involving con-
tractually defined rights." 74 Haw., at 250, 842 P. 2d, at 642.
The court rejected petitioners' argument that the retaliatory
discharge claims were pre-empted because determining
whether HAL discharged respondent for insubordination,
and thus for just cause, required construing the CBA. The
court pointed to Lingle v. Norge Div. of Magic Chef, Inc.,
486 U. S. 399 (1988), a case involving §301 of the Labor-
Management Relations Act, 1947 (LMRA), 29 U. S. a § 185,
in which the Court held that a claim of wrongful termination
in retaliation for filing a state worker's compensation claim
3 These managerial officers, petitioners here, are Paul J. Finazzo, How-
ard E. Ogden, and Hatsuo Honma.
252 HAWAIIAN AIRLINES, INC. v. NORRIS
Opinion of the Court
did not require interpretation of a CBA, but depended upon
purely factual questions concerning the employee's conduct
and the employer's motive. Because the same was true in
this action, said the Supreme Court of Hawaii, respondent's
state tort claims were not pre-empted.
We granted certiorari in these consolidated cases, 510
U. S. 1083 (1994).
II
A
Whether federal law pre-empts a state law establishing a
cause of action is a question of congressional intent. See
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985).
Pre-emption of employment standards "within the tradi-
tional police power of the State" "should not be lightly
inferred/' Fort Halifax Packing Co. v. Coyne, 482 U. S.
1, 21 (1987); see also Hillsborough County v. Automated
Medical Laboratories, Inc., 471 U. S. 707, 715 (1985) (a
federal statute will be read to supersede a State's historic
powers only if this is "'the clear and manifest purpose
of Congress' ").
Congress' purpose in passing the RLA was to promote
stability in labor-management relations by providing a com-
prehensive framework for resolving labor disputes. Atchi-
Bon, T. & S. R R. Co. v. Euell, 480 U. S. 557, 562 (1987); see
also 45 U. S. C. § 151a. To realize this goal, the RLA estab-
lishes a mandatory arbitral mechanism for "the prompt and
orderly settlement" of two classes of disputes. 45 U. S. C.
§ 15 la. The first class, those concerning "rates of pay, rules
or working conditions," ibid., are deemed "major" disputes.
Major disputes relate to " 'the formation of collective [bar-
gaining] agreements or efforts to secure them.'" Conrail,
491 U. S., at 302, quoting Elgin, J. & E. R. Co. v. Burley, 325
U. S. 711, 723 (1945). The second class of disputes, known
as "minor" disputes, "gro[w] out of grievances or out of the
interpretation or application of agreements covering rates
Cite as: 512 U. S. 246 (1994) 253
Opinion of the Court
of pay, rules, or working conditions." 45 U. S. C. §151a.
Minor disputes involve "controversies over the meaning of
an existing collective bargaining agreement in a particular
fact situation." Trainmen v. Chicago R. & I. R. Ca, 363
U. S. 30, 33 (1957). Thus, "major disputes seek to create
contractual rights, minor disputes to enforce them/' Con-
rail, 491 U. S., at 302, citing Burley, 325 U. S., at 723.
Petitioners contend that the conflict over respondent's
firing is a minor dispute. If so, it must be resolved only
through the RLA mechanisms, including the carrier's inter-
nal dispute-resolution processes and an adjustment board es-
tablished by the employer and the unions. See 45 U. S. C.
§ 184; Buell, 480 U. S., at 563; Conrail, 491 U. S., at 302.
Thus, a determination that respondent's complaints consti-
tute a minor dispute would pre-empt his state-law actions.
B
The Court's inquiry into the scope of minor disputes be-
gins, of course, with the text of the statute. Petitioners
point out that the statute defines minor disputes to include
"disputes . . „ growing out of grievances, or out of the in-
terpretation or application of [CBA's]." Petitioners argue
that this disjunctive language must indicate that "griev-
ances" means something other than labor-contract disputes,
else the term "grievances" would be superfluous. Accord-
ingly, petitioners suggest that "grievances" should be read
to mean all employment-related disputes, including those
based on statutory or common law. Even if we were per-
suaded that the word "or" carried this weight, but cf. United
States v. Olano, 507 U. S. 725, 732 (1993) (reading "error or
defect" to create one category of "error"), citing United
States v. Young, 470 U. S. 1, 15, n. 12 (1985); McNally v.
United States, 483 U. S. 350, 358-359 (1987) (second phrase
in disjunctive added simply to make* the meaning of the first
phrase "unmistakable"), petitioners' interpretation produces
an overlap not unlike the one it purports to avoid. Their
264 HAWAIIAN AIRLINES, INC. v. NORRIS
Opinion of the Court
expansive definition of "grievances" necessarily encompasses
disputes growing out of "the interpretation or application"
of CBA's. Thus, in attempting to save the term "griev-
ances" from superfluity, petitioners would make the phrase
after the "or" mere surplusage.
We think it more likely that "grievances," like disputes
over "the interpretation or application" of CBA's, refers to
disagreements over how to give effect to the bargained-for
agreement. The use of "grievance" to refer to a claim aris-
ing out of a CBA is common in the labor-law context in gen-
eral, see, e. g., Paperworkers v. Misco, Inc., 484 U. S. 29, 36
(1987), and it has been understood in this way in the RLA
context. See H. R. Rep. No. 1944, 73d Cong., 2d Sess.,
2-3 (1934) (referring to RLA settlement of "minor disputes
known as 'grievances/ which develop from the interpretation
and/or application of the contracts between the labor unions
and the carriers"). Significantly, the adjustment boards
charged with administration of the minor-dispute provisions
have understood these provisions as pertaining only to dis-
putes invoking contract-based rights. See, e. g., NRAB
Fourth Div. Award No. 4548 (1987) (function of the National
Rail Adjustment Board (Board) is to decide disputes in
accordance with the controlling CBA); NRAB Third Div.
Award No. 24348 (1983) (issues not related to the interpre-
tation or application of contracts are outside the Board's
authority); NRAB Third Div. Award No. 19790 (1973)
("[T]his Board lacks jurisdiction to enforce rights created
by State or Federal Statutes and is limited to questions aris-
ing out of interpretations and application of Railway Labor
Agreements"); Northwest Airlines/Airline Pilots Assn.,
Int'l System Bd. of Adjustment, Decision of June 28, 1972,
p. 13 ("[Bjoth the traditional role of the arbitrator and admo-
nitions of the courts require the Board to refrain from at-
tempting to construe any of the provisions of the [RLA]");
United Airlines, Inc., 48 LA 727, 733 (BNA) (1967) ("The
Qte as: 512 U. S. 246 (1994) 255
Opinion of the Court
jurisdiction of this System Board does not extend to inter-
preting and applying the Civil Rights Act").
Accordingly, we believe that the most natural reading of
the term "grievances" in this context is as a synonym for dis-
putes involving the application or interpretation of a CBA.
See Webster's Third New International Dictionary 1585
(1986) (the word "or" may be used to indicate "the synony-
mous, equivalent, or substitutive character of two words or
phrases"). Nothing in the legislative history of the RLA4 or
other sections of the statute5 undermines this conclusion.
But even accepting that § 151a is susceptible of more than one
interpretation, no proposed interpretation demonstrates a
clear and manifest congressional purpose to create a regime
4 During the debates surrounding the RLA's enactment in 1926, floor
statements that, in isolation, could support a broader interpretation of
"grievances" were counterbalanced by other statements — some even by
the same legislators — that equated grievances with contract interpreta-
tion. Compare 67 Cong. Rec. 4517, 8807 (1926), with id, at 4510, 8808.
This inconclusive debate hardly calls for fashioning a broad rule of pre-
emption. Moreover, in 1934 when Congress amended the RLA to make
arbitration mandatory for minor disputes, the accompanying House Re-
port stated that the bill was intended "to provide sufficient and effective
means for the settlement of minor disputes known as 'grievances/ which
develop from the interpretation and/or application of the contracts be*
tween the labor unions and the carriers, fixing wages and working condi-
tions." H. R. Rep. No. 1944, 73d Cong., 2d Sess., 2-3 (1934).
5 Petitioners cite the statute's reference to the parties' general duties as
including "settling] all disputes, whether arising out of the application of
[collective bargaining] agreements or otherwise." 45 U* S. C. § 152 First.
This provision, which is phrased more broadly than the operative language
of § 153 First (i), does not clearly refer only to minor disputes. But even
if this provision is read to require parties to try to settle certain issues
arising out of the employment relationship but not specifically addressed
by the CBA, this does not compel the conclusion that all issues touching
on the employment relationship must be resolved through arbitration
or that all claims involving rights and duties that exist independent of
the CBA are thereby pre-empted. Our precedents squarely reject this
pervasive pre-emption.
256 HAWAIIAN AIRLINES, INC. v. NORRIS
Opinion of the Court
that broadly pre-empts substantive protections extended by
the States, independent of any negotiated labor agreement.
Our case law confirms that the category of minor disputes
contemplated by § 151a are those that are grounded in the
CBA. We have defined minor disputes as those involving
the interpretation or application of existing labor agree-
ments. See, e. g., Conrail, 491 U. S., at 305 ("The distin-
guishing feature of [a minor dispute] is that the dispute
may be conclusively resolved by interpreting the existing
[CBA]"); Pittsburgh & Lake Erie R. Co. v. Railway Labor
Executives9 Assn., 491 U. S. 490, 496, n. 4 (1989) ("Minor dis-
putes are those involving the interpretation or application
of existing contracts"); Trainmen, 353 U. S., at 33 (minor dis-
putes are "controversies over the meaning of an existing col-
lective bargaining agreement"); Slocum v. Delaware, L. &W.
R. Co., 339 U. S. 239, 243 (1950) (RLA arbitral mechanism
is meant to provide remedies for "adjustment of railroad-
employee disputes growing out of the interpretation of exist-
ing agreements").
Moreover, we have held that the RLA's mechanism for
resolving minor disputes does not pre-empt causes of action
to enforce rights that are independent of the CBA. More
than 60 years ago, the Court rejected a railroad's argument
that the existence of the RLA arbitration scheme pre-
empted a state statute regulating the number of workers
required to operate certain equipment. Missouri Pacific R.
Co. v. Norwood, 283 U. S. 249, 258 (1931) ("No analysis or
discussion of the provisions of the Railway Labor Act of 1926
is necessary to show that it does not conflict with the Arkan-
sas statutes under consideration"). Not long thereafter, the
Court rejected a claim that the RLA pre-empted an order by
the Illinois Commerce Commission requiring cabooses on all
trains; the operative CBA required cabooses only on some of
the trains. Terminal Railroad Assn. of St. Louis v. Train-
Cite as: 512 U. S. 246 (1994) 26?
Opinion of the Court
men, 318 U. S. 1 (1943). Although the Court assumed that
a railroad adjustment board would have jurisdiction under
the RLA over this dispute, id., at 6, it concluded that the
state law was enforceable nonetheless:
"State laws have long regulated a great variety of condi-
tions in transportation and industry, such as sanitary
facilities and conditions, safety devices and protections,
purity of water supply, fire protection, and innumerable
others. Any of these matters might, we suppose, be the
subject of a demand by work[ers] for better protection
and upon refusal might be the subject of a labor dispute
which would have such effect on interstate commerce
that federal agencies might be invoked to deal with some
phase of it. ... But it cannot be said that the minimum
requirements laid down by state authority are all set
aside. We hold that the enactment by Congress of the
[RLA] was not a preemption of the field of regulating
working conditions themselves . . . ." Id., at 6-7.
Thus, under Norwood, substantive protections provided by
state law, independent of whatever labor agreement might
govern, are not pre-empted under the RLA.
Although Norwood and Terminal Railroad involved state
workplace safety laws, the Court has taken a consistent ap-
proach in the context of state actions for wrongful discharge.
In Andrews v. Louisville & Nashville R. Co., 406 U. S. 320
(1972), the Court held that a state-law claim of wrongful
termination was pre-empted, not because the RLA broadly
pre-empts state-law claims based on discharge or discipline,
but because the employee's claim was firmly rooted in a
breach of the CBA itself. He asserted no right independent
of that agreement:
"Here it is conceded by all that the only source of [An-
drews'] right not to be discharged, and therefore to treat
an alleged discharge as a 'wrongful' one that entitles him
258 HAWAIIAN AIRLINES, INC. v. NORRIS
Opinion of the Court
to damages, is the [CBA]. . . . [T]he disagreement turns
on the extent of [the railroad's] obligation to restore [An-
drews] to his regular duties following injury in an auto-
mobile accident. The existence and extent of such an
obligation in a case such as this will depend on the in-
terpretation of the [CBA]. Thus [Andrews'] claim, and
[the railroad's] disallowance of it, stem from differing
interpretations of the [CBA]. . . . His claim is there-
fore subject to the Act's requirement that it be submit-
ted to the Board for adjustment." Id, at 324 (empha-
sis added).
Here, in contrast, the CBA is not the "only source" of re-
spondent's right not to be discharged wrongfully. In fact,
the "only source" of the right respondent asserts in this ac-
tion is state tort law. Wholly apart from any provision of
the CBA, petitioners had a state-law obligation not to fire
respondent in violation of public policy or in retaliation for
whistle-blowing. The parties' obligation under the RLA to
arbitrate disputes arising out of the application or interpre-
tation of the CBA did not relieve petitioners of this duty.
Atchison, T. & S. F. R. Co. v. Buell, 480 U. S. 557 (1987),
confirms that "minor disputes" subject to RLA arbitration
are those that involve duties and rights created or defined
by the CBA. In Buell, a railroad employee sought damages
for workplace injuries under the Federal Employers' Liabil-
ity Act (FELA), 45 U. S. C. §51 et seq., which provides a
remedy for a railroad worker injured through an employer's
or co-worker's negligence. The railroad argued that, be-
cause the alleged injury resulted from conduct that was sub-
ject to the CBA, the employee's sole remedy was through
RLA arbitration. The Court unanimously rejected this ar-
gument, emphasizing that the rights derived from the FELA
were independent of the CBA:
"The fact that an injury otherwise compensable under
the FELA was caused by conduct that may have been
Cite as: 512 U. S. 246 (1994) 259
Opinion of the Court
subject to arbitration under the RLA does not deprive
an employee of his opportunity to bring an FELA action
for damages. . . . The FELA not only provides railroad
workers with substantive protection against negligent
conduct that is independent of the employer's obliga-
tions under its collective-bargaining agreement, but also
affords injured workers a remedy suited to their needs,
unlike the limited relief that seems to be available
through the Adjustment Board. It is inconceivable that
Congress intended that a worker who suffered a disa-
bling injury would be denied recovery under the FELA
simply because he might also be able to process a narrow
labor grievance under the RLA to a successful conclu-
sion." 480 U. S., at 564-565.
It likened Buell to other cases in which the Court had
concluded that "notwithstanding the strong policies encour-
aging arbitration, 'different considerations apply where the
employee's claim is based on rights arising out of a stat-
ute designed to provide minimum substantive guarantees
to individual workers/" id., at 565, quoting Barrentine v.
Arkansas-Best Freight System, Inc., 450 U. S. 728, 737
(1981), and distinguished it from Andrews, which involved a
state wrongful-discharge claim "based squarely" on an al-
leged breach of a CBA, 480 U. S., at 566.6
6 Buell, of course, involved possible RLA preclusion of a cause of action
arising out of a, federal statute, while this case involves RLA pre-emption
of a cause of action arising out of state law and existing entirely inde-
pendent of the CBA. That distinction does not rob Buell of its force in
this context. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U. S. 399,
412 (1988) (Buell principles applicable to determine whether federal labor
law pre-empts a state statute). Principles of federalism demand no less
caution in finding that a federal statute pre-empts state law. See Fort
Halifax Packing Co. v. Coyne, 482 U. S. 1, 21 (1987) (pre-emption of state
statute "should not be lightly inferred in this [labor] area, since the estab-
lishment of labor standards falls within the traditional police power of
the State").
260 HAWAIIAN AIRLINES, INC. v. NORRIS
Opinion of the Court
D
The pre-emption standard that emerges from the line of
cases leading to Buell — that a state-law cause of action is
not pre-empted by the RLA if it involves rights and obliga-
tions that exist independent of the CBA — is virtually identi-
cal to the pre-emption standard the Court employs in cases
involving §301 of the LMRA, 29 U. S. C. §185.7 In Allis-
Chalmers Corp. v. Lueck, 471 U. S. 202 (1985), the Court ap-
plied § 301 pre-emption to a state-law claim for bad-faith han-
dling of a worker's compensation claim because the duties
the employer owed the employee, including the duty of good
faith, were rooted firmly in the CBA. Its pre-emption find-
ing was based on the fact that "the right asserted not only
derives from the contract, but is defined by the contractual
obligation of good faith, [so that] any attempt to assess lia-
bility here inevitably will involve contract interpretation."
Id., at 218.
It cautioned, however, that other state-law rights, those
that existed independent of the contract, would not be simi-
larly pre-empted:
"Of course, not every dispute concerning employment,
or tangentially involving a provision of a collective-
bargaining agreement, is pre-empted by §301 or other
provisions of the federal labor law. . . . Nor is there any
suggestion that Congress, in adopting §301, wished to
give the substantive provisions of private agreements
the force of federal law, ousting any inconsistent state
regulation. . . . Clearly, § 301 does not grant the parties
to a collective-bargaining agreement the ability to con-
tract for what is illegal under state law. In extending
the pre-emptive effect of § 301 beyond suits for breach
7 Section 301(a) provides federal-court jurisdiction over controversies
involving CBA's and "authorizes federal courts to fashion a body of fed-
eral law for the enforcement of these collective bargaining agreements."
Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 451 (1957).
Cite as: 512 U. S. 246 (1994) 261
Opinion of the Court
of contract, it would be inconsistent with congressional
intent under that section to pre-empt state rules that
proscribe conduct, or establish rights and obligations,
independent of a labor contract." Id., at 211-212.8
In a case remarkably similar to the case before us now,
this Court made clear that the existence of a potential CBA-
based remedy did not deprive an employee of independent
remedies available under state law. In Lingle v. Norge Div.
of Magic Chef, Inc., 486 U. S. 399 (1988), an employee cov-
ered by a labor agreement was fired for filing an allegedly
false worker's compensation claim. After filing a grievance
pursuant to her CBA, which protected employees against
discharge except for "proper" or "just" cause, she filed a com-
plaint in state court, alleging that she had been discharged
for exercising her rights under Illinois worker's compensa-
tion laws. The state court had held her state-law claim pre-
empted because "the same analysis of the facts" was re-
quired in both the grievance proceeding and the state-court
action. This Court reversed.
It recognized that where the resolution of a state-law claim
depends on an interpretation of the CBA, the claim is pre-
empted. Id., Bt 405-406, citing Lueck, supra; Teamsters v.
Lucas Flour Co., 369 U. S. 95 (1962). It observed, however,
that "purely factual questions" about an employee's conduct or
an employer's conduct and motives do not "requir[e] a court
to interpret any term of a collective-bargaining agreement."
8 The Court applies these principles in Livadas v. Bradshaw, in which
we reject the claim that an employee's state-law right to receive a penalty
payment from her employer was pre-empted under § 301 because the pen-
alty was pegged to her wages, which were determined by the governing
CBA* The Court states that "when the meaning of contract terms is not
the subject of dispute, the bare fact that a collective-bargaining agreement
will be consulted in the course of state-law litigation plainly does not re-
quire the claim to be extinguished." Ante, at 124, citing Lingle v. Norge
Div. of Magic Chef, Inc., 486 U. S., at 413, n. 12. In addition, it reaffirms
that "§ 301 cannot be read broadly to pre-empt nonnegotiable rights con-
ferred on individual employees as a matter of state law." Ante, at 123.
262 HAWAIIAN AIRLINES, INC. u NORRIS
Opinion of the Court
486 U. S., at 407. The state-law retaliatory discharge claim
turned on just this sort of purely factual question: whether
the employee was discharged or threatened with discharge,
and, if so, whether the employer's motive in discharging her
was to deter or interfere with her exercise of rights under
Illinois worker's compensation law.
While recognizing that "the state-law analysis might well
involve attention to the same factual considerations as the
contractual determination of whether Lingle was fired for
just cause/' id., at 408, the Court disagreed that
"such parallelism render[ed] the state-law analysis de-
pendent upon the contractual analysis. For while there
may be instances in which the National Labor Relations
Act pre-empts state law on the basis of the subject
matter of the law in question, § 301 pre-emption merely
ensures that federal law will be the basis for interpret-
ing collective-bargaining agreements, and says nothing
about the substantive rights a State may provide to
workers when adjudication of those rights does not de-
pend upon the interpretation of such agreements. In
other words, even if dispute resolution pursuant to a
collective-bargaining agreement, on the one hand, and
state law, on the other, would require addressing pre-
cisely the same set of facts, as long as the state-law claim
can be resolved without interpreting the agreement
itself, the claim is 'independent' of the agreement for
§ 301 pre-emption purposes." 7dL, at 408-410.
The Court's ruling in Lingle that the LMRA pre-empts
state law only if a state-law claim is dependent on the inter-
pretation of a CBA is fully consistent with the holding in
Buell, 480 U. S., at 564-565, that the RLA does not pre-empt
"substantive protection . . . independent of the [CBA]," with
the holding in Terminal Railroad, 318 U. S., at 7, that the
RLA does not pre-empt basic "protection . . . laid down by
state authority," with the conclusion in Andrews, 406 U. S.,
Cite as: 512 U. S. 246 (1994) 263
Opinion of the Court
at 324, that a state-law claim is pre-empted where it "de-
pend[s] on the interpretation" of the CBA, and with the de-
scription in Conrail, 491 U. S., at 305, of a minor dispute as
one that can be "conclusively resolved" by reference to an
existing CBA. Lingle, in fact, expressly relied on Buell, see
486 U. S., at 411-412, just as earlier RLA cases have drawn
analogies to LMRA principles, see, e. g., Machinists v. Cen-
tral Airlines, Inc., 372 U. S. 682, 692 (1963). Given this con-
vergence in the pre-emption standards under the two stat-
utes, we conclude that Lingle provides an appropriate
framework for addressing pre-emption under the RLA, and
we adopt the Lingle standard to resolve claims of RLA
pre-emption.9
E
In reaching this conclusion, we reject petitioners' sugges-
tion that this contract-dependent standard for minor dis-
9 It is true, as petitioners observe, that the RLA and the LMRA are not
identical in language, history, and purpose. The LMRA, unlike the RLA,
does not mandate arbitration, nor does it prescribe the types of disputes
to be submitted to arbitration under bargaining agreements. Nonethe-
less, the common purposes of the two statutes, the parallel development
of RLA and LMRA pre-emption law, see, e. g., Machinists v. Central Air-
lines, Inc., 372 U. S. 682, 691-692 (1963); Allis-Chalmers Corp. v, Lueck,
471 U. S. 202, 210 (1985), and the desirability of having a uniform common
law of labor law pre-emption, cf Trainmen v. Jacksonville Terminal Co.,
394 U. S. 369, 383-384 (1969), support the application of the Lingle stand-
ard in RLA cases as well
Lower courts, too, have recognized the appropriateness of the Lingle
standard to RLA pre-emption analysis. See, e. g., Anderson v. American
Airlines, Inc., 2 F. 3d 590, 595 (CAS 1993) (applying Lingle to analyze
RLA pre-emption); Davies v. American Airlines, Inc., 971 R 2d 463, 466-
467 (CA10 1992) (same), cert, denied, 508 U. S. 950 (1993); O'Brien v. Con-
solidated Rail Corp., 972 P. 2d 1, 4 (CA1 1992) (same), cert denied, 506
U. S. 1054 (1993); Maher v. New Jersey Transit Rail Operations, Inc., 125
N. J. 455, 472-473, 593 A. 2d 750, 758 (1991) (same). But see, e. g., Hub-
bard v. United Airlines, Inc., 927 F. 2d 1094, 1097 (CA9 1991) (Lingle does
not govern in RLA cases); Lorenz v. CSX Transp., Inc , 980 F. 2d 263, 268
(CA4 1992) (same).
264 HAWAIIAN AIRLINES, INC. v. NORRIS
Opinion of the Court
putes is inconsistent with two of our prior cases, Elgin, J. &
E. R. Co. v. Burley, 325 U. S. 711 (1945), and Conrail, 491
II S., at 302. Burley was not a pre-emption case. Rather,
it concerned the authority of union officials to settle railroad
workers* individual claims for damages for alleged violations
of the CBA. The railroad urged that the union representa-
tive, who had the authority to negotiate CBA's in major dis-
putes, enjoyed similar authority to settle individual claims in
minor disputes. In the course of rejecting this claim, the
Court described minor disputes as including the "omitted
case," that is, one "founded upon some incident of the em-
ployment relation, or asserted one, independent of those cov-
ered by the collective agreement, e. g., claims on account of
personal injuries." 325 U. S., at 723.
This language is sweeping, but its effect is limited. The
conflict in Burley, which the parties agreed was a minor dis-
pute, concerned the terms of a CBA, and not some other
"incident of the employment relationship," or any "omitted
case." These references, therefore, are dicta. Moreover,
even the "omitted case" dictum logically can refer to a norm
that the parties have created but have omitted from the
CBA's explicit language, rather than to a norm established
by a legislature or a court.10 Finally, Burley's one specific
example of an "omitted case" — claims for personal injury
that do not depend on the contract — was found in Buell to
be outside the RLA's exclusive jurisdiction. Nonetheless, to
avoid any confusion, we expressly disavow any language in
10 See Detroit & Toledo Shore Line R. Co. v. Transportation Union, 396
U. S. 142, 154-155 (1969) ('Where a condition is satisfactorily tolerable to
both sides, it is often omitted from the agreement, and it has been sug-
gested that this practice is more frequent in the railroad industry than
in most others") (emphasis added); Consolidated Rail Corporation v. Rail-
way Labor Executives' Assn., 491 U. S. 299, 311-312 (1989) (recognizing
that CBA's include implied terms arising from " 'practice, usage and cus-
tom' "); see also Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574,
578-579 (I960) (a CBA is "more than a contract; it is a generalized code to
govern a myriad of cases which the draftfers] cannot wholly anticipate").
Cite as: 512 II S. 246 (1994) 265
Opinion of the Court
Burley suggesting that minor disputes encompass state-law
claims that exist independent of the CBA.
Conrail, like Burley, involved no pre-emption analysis.
The parties agreed that the dispute — a workers' challenge
to the railroad's drug-testing policies — was governed by the
RLA, because Conrail's policy of conducting physical exami-
nations was an implied term of the CBA. 491 U. S., at 301.
The only question before the Court was whether the employ-
er's drug-testing policy constituted an attempt to add a new
term to the existing agreement, making it a major dispute
subject to a "protracted process" of bargaining and media-
tion, id., at 303, or whether the testing reflected the employ-
er's interpretation and application of an implied term of the
existing contract, producing a minor dispute subject to a less
onerous process of arbitration. We concluded that the dis-
pute was minor, stating that "[t]he distinguishing feature
of [a minor dispute] is that the dispute may be conclusively
resolved by interpreting the existing [CBA]." Id., at 305,
citing Garrison, The National Railroad Adjustment Board:
A Unique Administrative Agency, 46 Yale L. J. 567, 568, 576
(1937). Obviously, to say that a minor dispute can be "con-
clusively resolved" by interpreting the CBA is another way
of saying that the dispute does not involve rights that exist
independent of the CBA.
Petitioners, however, pin their hopes on the observation
that "[w]here an employer asserts a contractual right to take
the contested action, the ensuing dispute is minor if the
action is arguably justified by the terms of the parties'
collective-bargaining agreement." 491 U. S., at 307 (empha-
sis added). They argue that this action involves a minor
dispute because the termination of respondent was "arguably
justified" by the CBA's provision permitting termination for
"just cause." This "arguably justified" standard, however,
was employed only for policing the line between major and
minor disputes. Recognizing that accepting a party's char-
acterization of a dispute as "minor" ran the risk of under-
266 HAWAIIAN AIRLINES, INC. v. NORRIS
Opinion of the Court
cutting the RLA's prohibition "against unilateral imposition
of new contractual terms/' id., at 306, the Court held that a
dispute would be deemed minor only if there was a sincere,
nonfrivolous argument that it turned on the application of
the existing agreement, that is, if it was "arguably justified"
by that agreement. Obviously, this test said nothing about
the threshold question whether the dispute was subject to
the RLA in the first place.
Ill
Returning to the action before us, the question under
Lingle is whether respondent's state-law wrongful-discharge
claims are independent of the CBA. Petitioners argue that
resort to the CBA is necessary to determine whether re-
spondent, in fact, was discharged. This argument is fore-
closed by Lingle itself. Lingle teaches that the issue to be
decided in this action — whether the employer's actions make
out the element of discharge under Hawaii law — is a "purely
factual questio[n]." 486 U. S., at 407.
Nor are we persuaded by petitioners' contention that the
state tort claims require a determination whether the dis-
charge, if any, was justified by respondent's failure to sign
the maintenance record, as the CBA required him to do. Al-
though such a determination would be required with regard
to respondent's separate allegation of discharge in violation
of the CBA, the District Court dismissed that count as pre-
empted by the RLA, and respondent does not challenge that
dismissal. The state tort claims, by contrast, require only
the purely factual inquiry into any retaliatory motive of the
employer.
Accordingly, we agree with the Supreme Court of Hawaii
that respondent's claims for discharge in violation of public
policy and in violation of the Hawaii Whistleblower Protec-
tion Act are not pre-empted by the RLA, and we affirm that
court's judgment.
It is so ordered.
OCTOBER TERM, 1993 267
Syllabus
DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS, DEPARTMENT OF LABOR v. GREEN-
WICH COLLIERIES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 93-744. Argued April 25, 1994— Decided June 20, 1994*
In adjudicating separate benefits claims under the Black Lung Benefits
Act (ELBA) and the Longshore and Harbor Workers' Compensation Act
(LHWCA), the Department of Labor Administrative Law Judges
(ALJ's) both applied the Department's "true doubt" rule. This rule es-
sentially shifts the burden of persuasion to the party opposing the claim
so that when, as here, the evidence is evenly balanced, the benefits
claimant wins. In both cases, the Department's Benefits Review Board
affirmed the ALJ's decision to award benefits. However, the Court of
Appeals vacated the Board's decision in the BLBA case, holding that
the true doubt rule is inconsistent with the Department's own BLBA
regulations, as well as with Mulhns Coal Co. of Va. v. Director, Office
of Workers* Compensation Programs, 484 U. S. 135. And, in the
LHWCA case, the court reversed on the ground that the true doubt
rule violates § 7(c) of the Administrative Procedure Act (APA), which
states that "[e]xcept as otherwise provided by statute, the proponent of
a rule or order has the burden of proof"
Held:
1. Section 7(c)'s burden of proof provision applies to adjudications
under the LHWCA and the BLBA, each of which contains a section
incorporating the APA. Neither 33 U. S. C. § 923(a), which relieves the
Department of certain evidentiary and procedural requirements in
LHWCA investigations and hearings, nor an ambiguous BLBA regula-
tion providing that claimants be given the benefit of all reasonable
doubt, is sufficient to overcome the presumption that adjudications are
subject to the APA. See Brownell v. Tom We Shung, 352 U. S. 180,
185. Pp. 270-271.
2. The true doubt rule is not consistent with §7(c). Pp. 272-281.
(a) An examination of Hill v. Smith, 260 U. S. 592, 594, and other
relevant cases, as well as contemporary evidence treatises, demon-
*Together with Director, Office of Workers' Compensation Programs,
Department of Labor v. Maker Terminals, Inc., et al., also on certiorari
to the same court (see this Court's Rule 12.2).
268 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS u GREENWICH COLLIERIES
Syllabus
strates that, in 1946, the year the APA was enacted, the ordinary mean-
ing of § 7(c)'s "burden of proof" phrase was burden of persuasion (I e.,
the obligation to persuade the trier of fact of the truth of a proposition),
not simply burden of production (i. e., the obligation to come forward
with evidence to support a claim). This Court presumes that Congress
intended the phrase to have the meaning generally accepted in the legal
community at the time of enactment. See, e. g., Holmes v. Securities
Investor Protection Corporation, 503 U. S. 258, 268. Because the true
doubt rule places the burden of persuasion on the party opposing a bene-
fits award, it violates § 7(c)'s requirement that that burden rest with the
party seeking the award. Pp. 272-276.
(b) In light of the foregoing, the cursory conclusion set forth in
NLRB v. Transportation Management Corp., 462 U. S. 393, 404, n. 7 —
in which the Court stated that § 7(c) determines only the burden of going
forward, not the burden of persuasion — cannot withstand scrutiny.
Pp. 276-278.
(c) The Department's reliance on imprecise and marginally relevant
passages from the APA's legislative history is unavailing. Pp. 278-280.
(d) The true doubt rule runs afoul of the APA's goal of greater
uniformity of procedure and standardization of administrative practice
among the diverse federal agencies, for under the Department's reading
each agency would be free to decide who bears the burden of persua-
sion. Pp. 280-281.
3. Because these cases are decided on the basis of § 7(c), this Court
need not address the Court of Appeals' holding that the true doubt rule
conflicts with ELBA regulations and Mullins Coal. P. 281.
990 F. 2d 730 (first case) and 992 F. 2d 1277 (second case), affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST,
C, J., and SCALIA, KENNEDY, THOMAS, and GINSBURG, JJ., joined. Sou-
TER, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ.,
joined, post, p. 281.
Edward C. DuMont argued the cause for petitioner in both
cases. With him on the briefs were Solicitor General Days,
Deputy Solicitor General Kneedler, Steven J. Mandely and
Edward D. Sieger.
Mark E. Solomons argued the cause for respondents in
both cases- With him on the brief for respondent Greenwich
Collieries were Laura Metcoff Klaus and John J, Bagnato.
Joseph T. Stearns filed a brief for respondent Maher Termi-
Cite as: 512 U, S. 267 (1994) 269
Opinion of the Court
nals, Inc. Philip J. Rooney filed a brief for respondent
Pasqualina Santoro.t
JUSTICE O'CONNOR delivered the opinion of the Court.
In adjudicating benefits claims under the Black Lung Ben-
efits Act (ELBA), 83 Stat. 792, as amended, 30 U. S. CL §901
et seq. (1988 ed. and Supp. IV), and the Longshore and Har-
bor Workers' Compensation Act (LHWCA), 44 Stat. 1424, as
amended, 33 U. S. C. §901 et seq., the Department of Labor
applies what it calls the "true doubt" rule. This rule essen-
tially shifts the burden of persuasion to the party opposing
the benefits claim — when the evidence is evenly balanced,
the benefits claimant wins. This litigation presents the
question whether the rule is consistent with § 7(c) of the Ad-
ministrative Procedure Act (APA), which states that "[e]x-
cept as otherwise provided by statute, the proponent of a
rule or order has the burden of proof 5 U. S. C. §556(d).
I
We review two separate decisions of the Court of Appeals
for the Third Circuit. In one, Andrew Ondecko applied for
disability benefits under the BLBA after working as a coal
miner for 31 years. The Administrative Law Judge (ALJ)
determined that Ondecko had pneumoconiosis (or black lung
disease), that he was totally disabled by the disease, and that
the disease resulted from coal mine employment. In resolv-
ing the first two issues, the ALJ relied on the true doubt
rule. In resolving the third, she relied on the rebuttable
presumption that a miner with pneumoconiosis who worked
in the mines for at least 10 years developed the disease be-
tBriefs of amid curiae urging affirmance were filed for the American
Insurance Association by William J. Kilberg, Theodore J. Boutrous, Jr.,
Craig A. Berrington, and Bruce C. Wood; for the National Association of
Waterfront Employers et al. by Charles T. Carroll, Jr., Thomas D. Wilcox,
and Franklin W. Losey; and for the National Coal Association by Harold
P. Quinn, Jr.
270 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS v. GREENWICH COLLIERIES
Opinion of the Court
cause of his employment. 20 CFR § 718.203(b) (1993). The
Department's Benefits Review Board affirmed, concluding
that the ALJ had considered all the evidence, had found each
side's evidence to be equally probative, and had properly re-
solved the dispute in Ondecko's favor under the true doubt
rule. The Court of Appeals vacated the Board's decision,
holding that the true doubt rule is inconsistent with the
Department's own regulations under the ELBA, §718.403,
as well as with Mullins Coal Co. of Va. v. Director, Office
of Workers9 Compensation Programs, 484 U. S. 135 (1987).
990 F. 2d 730 (1993).
In the other case, Michael Santoro suffered a work-related
back and neck injury while employed by respondent Maher
Terminals. Within a few months Santoro was diagnosed
with nerve cancer, and he died shortly thereafter. His
widow filed a claim under the LHWCA alleging that the
work injury had rendered her husband disabled and caused
his death. After reviewing the evidence for both sides, the
ALJ found it equally probative and, relying on the true
doubt rule, awarded benefits to the claimant. The Board
affirmed, finding no error in the ALJ's analysis or his applica-
tion of the true doubt rule. The Court of Appeals reversed,
holding that the true doubt rule is inconsistent with §7(c)
of the APA. 992 F. 2d 1277 (1993). In so holding, the
court expressly disagreed with Freeman United Coal Min-
ing Co. v. Office of Workers' Compensation Programs, 988
F. 2d 706 (CA7 1993), We granted certiorari to resolve the
conflict. 510 U. S. 1068 (1994).
II
As a threshold matter, we must decide whether § 7(c)'s bur-
den of proof provision applies to adjudications under the
LHWCA and the ELBA. Section 7(c) of the APA applies
"[e]xcept as otherwise provided by statute," and the Depart-
ment argues that the statutes at issue here make clear that
§ 7(c) does not apply. We disagree.
Cite as: 512 U. S. 267 (1994) 271
Opinion of the Court
The Department points out that in conducting investiga-
tions or hearings pursuant to the LHWCA, the "Board shall
not be bound by common law or statutory rules of evidence
or by technical or formal rules of procedure, except as pro-
vided by this chapter." 33 U. S, Q § 923(a). But the assign-
ment of the burden of proof is a rule of substantive law,
American Dredging Co. v. Miller, 510 U. S. 443, 454 (1994),
so it is unclear whether this exception even applies. More
importantly, §923 by its terms applies "except as provided
by this chapter," and the chapter provides that § 7(c) does
indeed apply to the LHWCA. 33 U. S. C. § 919(d) ("Notwith-
standing any other provisions of this chapter, any hearing
held under this chapter shall be conducted in accordance
with [the APA]"); 5 U. S. C. §554(c)(2). We do not lightly
presume exemptions to the APA, Brownell v. Tom We
Shung, 352 U. S. 180, 185 (1956), and we do not think §923
by its terms exempts the LHWCA from § 7(c).
The Department's argument under the ELBA fares no bet-
ter. The ELBA also incorporates the APA (by incorporat-
ing parts of the LHWCA), but it does so "except as other-
wise provided ... by regulations of the Secretary." 30
U. S. C. § 932(a). The Department argues that the following
ELBA regulation so provides: "In enacting [the BLBA], Con-
gress intended that claimants be given the benefit of all rea-
sonable doubt as to the existence of total or partial disability
or death due to pneumoconiosis." 20 CFR §718.3(c) (1993).
But we do not think this regulation can fairly be read as
authorizing the true doubt rule and rejecting the APA's bur-
den of proof provision. Not only does the regulation fail
to mention the true doubt rule or §7(c), it does not even
mention the concept of burden shifting or burdens of proot
Accordingly — and assuming, arguendo, that the Department
has the authority to displace § 7(c) through regulation— this
ambiguous regulation does not overcome the presumption
that these adjudications under the BLBA are subject to
§ 7(c)'s burden of proof provision.
272 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS v. GREENWICH COLLIERIES
Opinion of the Court
III
We turn now to the meaning of "burden of proof " as used
in §7(c). Respondents contend that the Court of Appeals
was correct in reading "burden of proof" to include the bur-
den of persuasion. The Department disagrees, contending
that "burden of proof" imposes only the burden of produc-
tion (i. e.9 the burden of going forward with evidence). The
cases turn on this dispute, for if respondents are correct, the
true doubt rule must fall: because the true doubt rule places
the burden of persuasion on the party opposing the benefits
award, it would violate § 7(c)'s requirement that the burden
of persuasion rest with the party seeking the award.
Because the term "burden of proof " is nowhere defined in
the APA, our task is to construe it in accord with its ordinary
or natural meaning. Smith v. United States, 508 U. S. 223,
228 (1993). It is easier to state this task than to accomplish
it, for the meaning of words may change over time, and many
words have several meanings even at a fixed point in time.
Victor v. Nebraska, 511 U. S. 1, 13-14 (1994); see generally
Cunningham, Levi, Green, & Kaplan, Plain Meaning and
Hard Cases, 103 Yale L. J. 1561 (1994). Here we must seek
to ascertain the ordinary meaning of "burden of proof" in
1946, the year the APA was enacted.
For many years the term "burden of proof" was ambigu-
ous because the term was used to describe two distinct con-
cepts. Burden of proof was frequently used to refer to what
we now call the burden of persuasion — the notion that if the
evidence is evenly balanced, the party that bears the burden
of persuasion must lose. But it was also used to refer to
what we now call the burden of production — a party's obliga-
tion to come forward with evidence to support its claim.
See J. Thayer, Evidence at the Common Law 355-384 (1898)
(detailing various uses of the term "burden of proof" among
19th-century English and American courts).
Cite as: 512 U. S. 267 (1994) 273
Opinion of the Court
The Supreme Judicial Court of Massachusetts was the
leading proponent of the view that burden of proof should be
limited to burden of persuasion. In what became an oft-
cited case, Chief Justice Lemuel Shaw attempted to distin-
guish the burden of proof from the burden of producing evi-
dence. Powers v. Russell, 30 Mass. 69 (1833). According to
the Massachusetts court, "the party whose case requires the
proof of [a] fact, has all along the burden of proof/' Id, at
76. Though the burden of proving the fact remains where
it started, once the party with this burden establishes a
prima facie case, the burden to "produce evidence" shifts.
Ibid. The only time the burden of proof— as opposed to the
burden to produce evidence — might shift is in the case of
affirmative defenses. Id., at 77. In the century after Pow-
ers, the Supreme Judicial Court of Massachusetts continued
to carefully distinguish between the burden of proof and the
burden of production. See, e. g., Smith v. Hill, 232 Mass.
188, 122 N. E. 310 (1919).
Despite the efforts of the Massachusetts court, the dual
use of the term continued throughout the late 19th and early
20th centuries. See 4 J. Wigmore, Evidence §§2486-2487,
pp. 3524-3529 (1905); Thayer, supra, at 355; 1 B. Elliott
& W. Elliott, Law of Evidence § 129, pp. 184-185 (1904); 2
C. Chamberlayne, Modern Law of Evidence § 936, pp. 1096-
1098 (1911). The ambiguity confounded the treatise writers,
who despaired over the "lamentable ambiguity of phrase
and confusion of terminology under which our law has so
long suffered/' Wigmore, supra, at 3521-3522. The writ-
ers praised the "clear-thinking" efforts of courts like the
Supreme Judicial Court of Massachusetts, Chamberlayne,
supra, at 1097, n. 3, and agreed that the legal profession
should endeavor to clarify one of its most basic terms. Ac-
cording to Thayer, supra, at 384-385, "[i]t seems impossible
to approve a continuance of the present state of things, under
which such different ideas, of great practical importance and
of frequent application, are indicated by this single ambigu-
274 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
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Opinion of the Court
ous expression." See also Chamberlayne, supra, at 1098.
To remedy this problem, writers suggested that the term
"burden of proof" be limited to the concept of burden of per-
suasion, while some other term — such as "burden of proceed-
ing" or "burden of evidence" — be used to refer to the concept
of burden of production. Chamberlayne, supra, § 936; El-
liott & Elliott, supra, at 185, n. 3. Despite the efforts at
clarification, however, a dwindling number of courts contin-
ued to obscure the distinction. See Annot., 2 A. L. R. 1672
(1919) (noting that some courts still fail to properly distin-
guish "between the burden of proof and the duty of going
forward with the evidence").
This Court tried to eliminate the ambiguity in the term
"burden of proof" when it adopted the Massachusetts ap-
proach. Hill v. Smith, 260 U. S. 592 (1923). Justice Holmes
wrote for a unanimous Court that "it will not be necessary
to repeat the distinction, familiar in Massachusetts since the
time of Chief Justice Shaw, [Powers, supra], and elaborated
in the opinion below, between the burden of proof and the
necessity of producing evidence to meet that already
produced. The distinction is now very generally accepted,
although often blurred by careless speech." Id., at 594.
In the two decades after Hill, our opinions consistently
distinguished between burden of proof, which we defined as
burden of persuasion, and an alternative concept, which we
increasingly referred to as the burden of production or the
burden of going forward with the evidence. See, e. g., Bros-
nan v. Brosnan, 263 U. S. 345, 349 (1923) (imposition of bur-
den of proof imposes the burden of persuasion, not simply
the burden of establishing a prima facie case); Radio Corp.
of America v. Radio Engineering Laboratories, Inc., 293
U. S. 1, 7-8 (1934) (party who bears the burden of proof
"bears a heavy burden of persuasion"); Commercial Molas-
ses Corp. v. New York Tank Barge Corp., 314 U. S. 104, 111
(1941) (party with the burden of proof bears the "burden of
persuasion," though the opposing party may bear a burden
Cite as: 512 U. S. 267 (1994) 275
Opinion of the Court
to "go forward with evidence"); Webre Steib Co. v. Commis-
sioner, 324 U. S. 164, 171 (1945) (claimant bears a "burden
of going forward with evidence . . . as well as the burden of
proof") (emphasis added). During this period the Courts of
Appeals also limited the meaning of burden of proof to bur-
den of persuasion, and explicitly distinguished this concept
from the burden of production.*
The emerging consensus on a definition of burden of proof
was reflected in the evidence treatises of the 1930's and
1940's. "The burden of proof is the obligation which rests
on one of the parties to an action to persuade the trier of the
facts, generally the jury, of the truth of a proposition which
he has affirmatively asserted by the pleadings." W. Rich-
ardson, Evidence 143 (6th ed. 1944); see also 1 B. Jones, Law
of Evidence in Civil Cases 310 (4th ed. 1938) ("The modern
authorities are substantially agreed that, in its strict
primary sense, 'burden of proof signifies the duty or obliga-
tion of establishing, in the mind of the trier of facts, convic-
tion on the ultimate issue"); J- McKelvey, Evidence 64 (4th
ed. 1932) ("[T]he proper meaning of [burden of proof]" is
"the duty of the person alleging the case to prove it," rather
than "the duty of the one party or the other to introduce
evidence").
We interpret Congress* use of the term "burden of proof "
in light of this history, and presume Congress intended the
phrase to have the meaning generally accepted in the legal
community at the time of enactment. Holmes v. Securities
Investor Protection Corporation, 503 U. S. 258, 268 (1992);
Miles v. Apex Marine Corp., 498 U. S. 19, 32 (1990); Cannon
*See, e. g., Lee v. State Bank & Trust Co., 38 R 2d 45, 48 (CA2 1930);
United States v. Knoles, 75 F. 2d 557, 561 (CAS 1935); Department of
Water and Power of Los Angeles v. Anderson, 95 F. 2d 577, 583 (CAS
1938); Rossman v. Blunt, 104 F. 2d 877, 880 (CA6 1939); Cory v. Commis-
sioner, 126 F. 2d 689, 694 (CA3 1942); Commissioner v. Bain Peanut Co.
of Tex., 134 R 2d 853, 860, n. 2 (CAS 1943); New York Life Ins. Co. v.
Taylor, 147 R 2d 297, 301 (CADC 1945).
276 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
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Opinion of the Court
v. University of Chicago, 441 IL S. 677, 696-698 (1979).
These principles lead us to conclude that the drafters of the
APA used the term "burden of proof" to mean the burden of
persuasion. As we have explained, though the term had
once been ambiguous, that ambiguity had largely been elimi-
nated by the early 20th century. After Hill, courts and
commentators almost unanimously agreed that the definition
was settled. And Congress indicated that it shared this set-
tled understanding, when in the Communications Act of 1934
it explicitly distinguished between the burden of proof and
the burden of production. 47 U. S. C. §§309(e) and 312(d) (a
party has both the "burden of proceeding with the introduc-
tion of evidence and the burden of proof "). Accordingly, we
conclude that as of 1946 the ordinary meaning of burden of
proof was burden of persuasion, and we understand the
APA's unadorned reference to "burden of proof" to refer to
the burden of persuasion.
B
We recognize that we have previously asserted the con-
trary conclusion as to the meaning of burden of proof in § 7(c)
of the APA. In NLRB v. Transportation Management
Corp., 462 U. S. 393 (1983), we reviewed the National Labor
Relations Board's (NLRB's) conclusion that the employer had
discharged the employee because of the employee's protected
union activity. In such cases the NLRB employed a burden
shifting formula typical in dual motive cases: The employee
had the burden of persuading the NLRB that antiunion ani-
mus contributed to the employer's firing decision; the burden
then shifted to the employer to establish as an affirmative
defense that it would have fired the employee for permissible
reasons even if the employee had not been involved in union
activity. Id., at 401-402. The employer claimed that the
NLRB's burden shifting formula was inconsistent with the
National Labor Relations Act (NLRA), but we upheld it as
a reasonable construction of the NLRA. Id., at 402-403.
Cite as: 512 U. S. 267 (1994) 277
Opinion of the Court
The employer in Transportation Management argued that
the NLRB's approach violated §7(c)'s burden of proof provi-
sion, which the employer read as imposing the burden of per-
suasion on the employee. In a footnote, we summarily re-
jected this argument, concluding that "[§7(c)] . . . determines
only the burden of going forward, not the burden of persua-
sion. Environmental Defense Fund, Inc. v. EPA, [548 R 2d
998, 1004, 1013-1015 (CADC 1976)]." Id, at 404, n. 7. In
light of our discussion in Part II-A above, we do not think
our cursory conclusion in the Transportation Management
footnote withstands scrutiny. The central issue in Trans-
portation Management was whether the NLRB's burden
shifting approach was consistent with the NLRA. The par-
ties and the amid in Transportation Management treated
the APA argument as an afterthought, devoting only one or
two sentences to the question. None of the briefs in the
case attempted to explain the ordinary meaning of the term.
Transportation Managements cursory answer to an ancil-
lary and largely unbriefed question does not warrant the
same level of deference we typically give our precedents.
Moreover, Transportation Management reached its con-
clusion without referring to Steadman v. SEC, 450 U. S. 91
(1981), our principal decision interpreting the meaning of
§ 7(c). In Steadman we considered what standard of proof
§ 7(c) required, and we held that the proponent of a rule or
order under § 7(c) had to meet its burden by a preponderance
of the evidence, not by clear and convincing evidence.
Though we did not explicitly state that §7(c) imposes the
burden of persuasion on the party seeking the rule or order,
our reasoning strongly implied that this must be so. We
assumed that burden of proof meant burden of persuasion
when we said that we had to decide "the degree of proof
which must be adduced by the proponent of a rule or order
to carry its burden of persuasion in an administrative pro-
ceeding." Id., at 95 (emphasis added). More important, our
holding that the party with the burden of proof must prove
278 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
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Opinion of the Court
its case by a preponderance only makes sense if the burden
of proof means the burden of persuasion. A standard of
proof, such as preponderance of the evidence, can apply only
to a burden of persuasion, not to a burden of production.
We do not slight the importance of adhering to precedent,
particularly in a case involving statutory interpretation.
But here our precedents are in tension, and we think our
approach in Steadman makes more sense than does the
Transportation Management footnote. And although we
reject Transportation Management's reading of §7(c), the
holding in that case remains intact. The NLRB's approach
in Transportation Management is consistent with § 7(c) be-
cause the NLRB first required the employee to persuade it
that antiunion sentiment contributed to the employer's deci-
sion. Only then did the NLRB place the burden of persua-
sion on the employer as to its affirmative defense.
C
In addition to the Transportation Management footnote,
the Department relies on the Senate and House Judiciary
Committee Reports on the APA to support its claim that
burden of proof means only burden of production. See En-
vironmental Defense Fund v. EPA, 548 F. 2d, at 1014-1015
(accepting this argument), cited in Transportation Manage-
ment, supra, at 404, n. 7. We find this legislative history
unavailing. The Senate Judiciary Committee Report on the
APA states as follows:
"That the proponent of a rule or order has the burden
of proof means not only that the party initiating the pro-
ceeding has the general burden of coming forward with
a prima facie case but that other parties, who are propo-
nents of some different result, also for that purpose have
a burden to maintain. Similarly the requirement that
no sanction be imposed or rule or order be issued except
upon evidence of the kind specified means that the pro-
ponents of a denial of relief must sustain such denial by
Cite as: 512 U. S. 267 (1994) 279
Opinion of the Court
that kind of evidence. For example, credible and cred-
ited evidence submitted by the applicant for a license
may not be ignored except upon the requisite kind and
quality of contrary evidence. No agency is authorized
to stand mute and arbitrarily disbelieve credible evi-
dence. Except as applicants for a license or other privi-
lege may be required to come forward with a prima facie
showing, no agency is entitled to presume that the con-
duct of any person or status of any enterprise is unlaw-
ful or improper/' S. Rep. No. 752, 79th Cong., 1st Sess.,
22 (1945).
The House Judiciary Committee Report contains identical
language, along with the following:
"In other words, this section means that every propo-
nent of a rule or order or the denial thereof has the
burden of coming forward with sufficient evidence there-
for; and in determining applications for licenses or other
relief any fact, conduct, or status so shown by credible
and credited evidence must be accepted as true except
as the contrary has been shown or such evidence has
been rebutted or impeached by duly credited evidence
or by facts officially noticed and stated." HL R. Rep.
No. 1980, 79th Cong., 2d Sess., 36 (1946).
The Department argues that this legislative history indi-
cates congressional intent to impose a burden of production
on the proponent. But even if that is so, it does not mean
that § 7(c) is concerned only with imposing a burden of pro-
duction. That Congress intended to impose a burden of pro-
duction does not mean that Congress did not also intend to
impose a burden of persuasion.
Moreover, these passages are subject to a natural inter-
pretation compatible with congressional intent to impose a
burden of persuasion on the party seeking an order. The
primary purpose of these passages is not to define or allocate
the burden of proof. The quoted passages are primarily
280 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
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Opinion of the Court
concerned with the burden placed on the opponent in admin-
istrative hearings ("other parties . . . have a burden to main-
tain"), particularly where the opponent is the Government.
The Committee appeared concerned with those cases in
which the "proponent" seeks a license or other privilege from
the Government, and in such cases did not want to allow
the agency "to stand mute and arbitrarily disbelieve credible
evidence." The Reports make clear that once the licensee
establishes a prima facie case, the burden shifts to the Gov-
ernment to rebut it. This is perfectly compatible with a rule
placing the burden of persuasion on the applicant, because
when the party with the burden of persuasion establishes a
prima facie case supported by "credible and credited evi-
dence, " it must either be rebutted or accepted as true.
The legislative history the Department relies on is impre-
cise and only marginally relevant. Congress chose to use
the term "burden of proof" in the text of the statute, and
given the substantial evidence that the ordinary meaning of
burden of proof was burden of persuasion, this legislative
history cannot carry the day.
In part due to Congress' recognition that claims such as
those involved here would be difficult to prove, claimants in
adjudications under these statutes benefit from certain stat-
utory presumptions easing their burden. See 33 U. S. C.
§920; 30 U. S. C. §921(c); Del Vecchio v. Bowers, 296 U. S.
280, 286 (1935). Similarly, the Department's solicitude for
benefits claimants is reflected in the regulations adopting
additional presumptions. See 20 CFR §§718.301-718.306
(1993); Mullins Coal, 484 U. S., at 158. But with the true
doubt rule the Department attempts to go one step further.
In so doing, it runs afoul of the APA, a statute designed
"to introduce greater uniformity of procedure and stand-
ardization of administrative practice among the diverse
Cite as: 512 U. S. 267 (1994) 281
SOUTEK, J., dissenting
agencies whose customs had departed widely from each
other. " Wong Yang Sung v. McGrath, 339 U.S. 33, 41
(1950). That concern is directly implicated here, for under
the Department's reading each agency would be free to de-
cide who shall bear the burden of persuasion. Accordingly,
the Department cannot allocate the burden of persuasion in
a manner that conflicts with the APA.
IV
Under the Department's true doubt rule, when the evi-
dence is evenly balanced the claimant wins. Under §7(c),
however, when the evidence is evenly balanced, the benefits
claimant must lose. Accordingly, we hold that the true
doubt rule violates § 7(c) of the APA.
Because we decide these cases on the basis of §7(c), we
need not address the Court of Appeals' holding in Greenwich
Collieries that the true doubt rule conflicts with § 718.403 or
with Mullins Coal, supra.
Affirmed.
JUSTICE SOUTER, with whom JUSTICE BLACKMUN and
JUSTICE STEVENS join, dissenting.
For more than 50 years, in adjudicating benefits claims
under the Longshore and Harbor Workers* Compensation
Act (LHWCA), 33 U. S. C. § 901 et seq., and for more than 15
years under the Black Lung Benefits Act (ELBA), 30 U. S. C.
§901 et seq. (1988 ed. and Supp. IV), the Department of
Labor has applied the "true doubt" rule, providing that when
the evidence submitted by a claimant and by a party oppos-
ing the award is of equal weight, the claimant wins. The
rule thus places the risk of nonpersuasion on the opponent
of the benefits claim. Today, the Court strikes the rule
down as conflicting with § 7(c) of the Administrative Proce-
dure Act (APA), 5 U. S. C. §556(d), passed by Congress in
1946. I respectfully dissent.
282 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
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SOUTER, J., dissenting
So far as relevant, § 7(c) of the APA states that
"[ejxcept as otherwise provided by statute, the propo-
nent of a rule or order has the burden of proof. Any
oral or documentary evidence may be received, but the
agency as a matter of policy shall provide for the exclu-
sion of irrelevant, immaterial, or unduly repetitious evi-
dence. A sanction may not be imposed or rule or order
issued except on consideration of the whole record or
those parts thereof cited by a party and supported by
and in accordance with the reliable, probative, and sub-
stantial evidence." 5 U. S. C. §556(d).
The majority's holding that "burden of proof" in the first
sentence of this provision means "burden of persuasion"
surely carries the force of the preferred meaning of the term
in today's general usage, as the Court's opinion demon-
strates. But we are concerned here not with the commonly
preferred meaning of the term today, but with its meaning
as understood and intended by Congress in enacting § 7(c) of
the APA in 1946. That is not a matter about which prefer-
ence has been constant, or Congress silent, or even a subject
of first impression for this Court.
The phrase "burden of proof" has been used in two ways,
to mean either the burden of persuasion (the risk of nonper-
suasion), see 9 J. Wigmore, Evidence §2486 (J. Chadbourn
rev. 1981) (hereinafter Wigmore), or the burden of produc-
tion (of going forward with evidence), see id., § 2487. The
latter sense arose from the standard common-law rule that
in order "to keep the jury within the bounds of reasonable
action," the party bearing the burden of production had to
put forth enough evidence to make a prima facie case in
order to get to the jury. Ibid. At the turn of the century,
Thayer noted that burden of proof, in the sense of "going
forward with argument or evidence," is "the meaning of the
term in common speech . . . [and] also a familiar legal
Cite as: 512 U. S, 267 (1994) 283
SOUTER, J., dissenting
usage . . . ." J. Thayer, A Preliminary Treatise on Evidence
at the Common Law 385-386 (1898). Thayer described
Chief Justice Shaw's unsuccessful attempts to restrict the
Massachusetts courts to the other (burden of persuasion)
meaning of the phrase, id., at 355-357, 385-387, and n. 1, and
argued that since the "widest legal usage" of the phrase and
"the use of the phrase in ordinary discourse" was to mean
burden of production, burden of proof should only be used in
that sense, see Thayer, The Burden of Proof, 4 Harv. L. Rev.
45, 69 (1890).
Although the Court works hard to show that the phrase
had acquired a settled meaning in the alternative sense by
the time the APA was passed in 1946, there is good evidence
that the courts were still using the term either way and that
Congress followed Thayer. Indeed, just nine years after
H ill v. Smith, 260 U. S. 592 (1923), in which Justice Holmes
is said to have firmed up the use of "burden of proof'7 to
mean burden of persuasion, this Court reverted to using the
phrase in its burden of production sense instead.1 See
Heiner v. Donnan, 285 U. S. 312, 329 (1932) ("A rebuttable
[prima facie] presumption clearly is a rule of evidence which
has the effect of shifting the burden of proof") (citing Mobile,
J.&K.C. R. Co. v. Turnipseed, 219 U. S. 35, 43 (1910) (stating
that "[t]he only legal effect of this [presumption] is to cast
upon [defendant] the duty of producing some evidence to the
contrary"))- In such usage Heiner appears in line with
Hawes v. Georgia, 258 U. S. 1 (1922) (upholding rebuttable
presumption casting "burden of proof" on defendant in crimi-
nal case); see Tot v. United States, 319 U S. 463, 470-471
(1943) (describing Hawes as involving statutory provision
that permissibly "shift[ed] the burden of proof" once a prima
facie case was made by prosecution). And courts just three
years before the passage of the APA held that burden of
proof was at least sometimes used by Congress to mean
1 One can hardly blame the great Justice, who had left the bench at the
beginning of that year.
284 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS v GREENWICH COLLIERIES
SOUTER, J., dissenting
"burden of going forward with the evidence," and not burden
of persuasion. Northwestern Elec. Co. v. Federal Power
Comm'n, 134 F. 2d 740, 743 (CA9 1943) (interpreting "burden
of proof" in Federal Power Act, 16 U. S. C. §825(a)), aff'd,
321 U. S. 119 (1944).
Contrary to the Court's understanding, commentators did
not think the ambiguity of the phrase had disappeared before
passage of the APA, and, at the time, some even thought it
unsettled whether burden of persuasion or of going forward
with the evidence was the primary meaning of the phrase.
As one commentator (relied on by the majority here) ex-
plained in 1938, although in its "strict primary sense, 'burden
of proof signifies" burden of persuasion, "[i]n its secondary
sense, the expression 'burden of proof signifies the duty that
rests upon a party of going forward with the evidence at any
given stage of the case — although eminent authority holds
that this is, or should be, its primary sense." 1 B. Jones,
Law of Evidence in Civil Cases § 176, p. 310 (4th ed. 1938)
(citing Thayer). He noted: "The expression 'burden of
proof has not a fixed and unvarying meaning and applica-
tion. On the contrary, it is used, at times indiscriminately,
to signify one or both of two distinct and separate ideas.
Courts and commentators have striven to correct this vari-
able usage and bring clarity and uniformity to the sub-
ject, but without noticeable success." Jones, supra, at 309
(footnote omitted). That commentary retained substantially
the same description 20 years later, and thereafter, see
1 B. Jones, Law of Evidence, Civil and Criminal, §204,
pp. 361-363 (5th ed. 1958); 1 S. Gard, Jones on Evidence § 5:1,
pp. 519-520 (6th ed. 1972). Other commentators noted the
persistent confusion of the terms in the 1940's. See, e. g., W.
Richardson, Law of Evidence § 172 (6th ed. 1944) (" '[BJurden
of proof is frequently misused by our courts"); J. Maguire,
Evidence, Common Sense and Common Law 175 (1947)
("Under our law the term burden of proof has been used to
express two rather different ideas, and as might be expected
Cite as: 512 U. S. 267 (1994) 285
SOXJTER, J., dissenting
this usage has led to a jumble"). Further, at the time of the
APA's passage, the American Law Institute, Model Code of
Evidence (1942), noted both meanings, see Wigmore §2485,
at 284, comments. Thus, courts and commentators contin-
ued to note the two meanings both before and long after the
enactment of the APA, and use of "burden of proof" in either
of its senses continued to create "the lamentable ambiguity
of phrase and confusion of terminology under which our law
has so long suffered," td, §2485.
Although standard usage had not made a choice of mean-
ings by 1946, Congress did make one, and the meaning it
chose for the phrase as used in § 7(c) was "burden of produc-
tion." In extensive Reports on the pending legislation, both
the Senate and the House explained the meaning of §7(c):
"That the proponent of a rule or order has the burden
of proof means not only that the party initiating the pro-
ceeding has the general burden of coming forward with
a prima facie case but that other parties, who are propo-
nents of some different result, also for that purpose have
a burden to maintain. Similarly the requirement that
no sanction be imposed or rule or order be issued except
upon evidence of the kind specified means that the pro-
ponents of a denial of relief must sustain such denial by
that kind of evidence " S. Rep. No. 752, 79th Cong.,
1st Sess., 22 (1945), reprinted in Legislative History of
the Administrative Procedure Act, S. Doc. No. 248, 79th
Cong., 2d Sess., 208 (1946) (hereinafter Leg. Hist.); H. R.
Rep. No. 1980, 79th Cong., 2d Sess., 36 (1946), Leg.
Hist. 270-271.
The House Report added that,
"[i]n other words, this section means that every propo-
nent of a rule or order or the denial thereof has the
burden of coming forward with sufficient evidence there-
for ....
286 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
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SOUTER, J., dissenting
"The first and second sentences of the section there-
fore mean that, where a party having the burden of
proceeding has come forward with a prima facie and
substantial case, he will prevail unless his evidence
is discredited or rebutted." Id., at 36-37, Leg. Hist
270-271.2
Because Congress stated that "burden of proof means" a
"burden of coming forward," and further explained that the
burden could be shouldered by both proponents and oppo-
nents of a rule or order, the strong probability is that Con-
gress meant to use "burden of proof " to mean burden of com-
ing forward and not burden of persuasion, for a burden of
persuasion cannot simultaneously rest on both parties. See
generally Wigmore § 2489. The commentators agree. "The
legislative history suggests that the term 'burden of proof
was intended to denote the 'burden of going forward/" 1
C. Koch, Administrative Law and Practice §6.42, p. 486
(1985); "The legislative history of the A. R A. burden of proof
provision states that the party initiating the proceeding has,
at a minimum, the burden of establishing a prima facie case,
but a burden of proof may also rest on other parties seeking
a different decision by the agency." 4 J. Stein, G. Mitchell,
& B. Mezines, Administrative Law §24.02, p. 24-25 (1994);
accord, 3 K. Davis, Administrative Law Treatise § 16.9,
pp. 257-258 (2d ed. 1980) (citing a lower court's "analysis of
the Senate and House reports on the APA and the Attorney
General's Manual").
2 The Attorney General found the phrase ambiguous, noting that "[t]here
is some indication that the term 'burden of proof was not employed in
any strict sense, but rather as synonymous with the 'burden of going for-
ward/ In either case, it is clear from the introductory clause that this
general statement was not intended to repeal specific provisions of other
statutes which, as by establishing presumptions, alter what would other-
wise be the 'burden of proof or the 'burden of going forward.' " Attorney
General's Manual on the Administrative Procedure Act 75 (1947) (foot-
note omitted).
Cite as: 512 U. S. 267 (1994) 287
SOUTEK, J., dissenting
The congressional choice of the burden of production
meaning was in fact understood from the first and was the
subject of some lament by commentators, who criticized the
first sentence of § 7(c) (already in its current formulation as
"the proponent of a rule or order has the burden of proof ")
as unhelpful:
"The first sentence is confusing, and is at best
unimportant. . . . For example, where a hearing is called
to determine whether or not a license application should
be granted, the 'proponent' of the 'order" would seem to
be the applicant if the order turns out to be an order
granting the application, or the agency if the order turns
out to be an order denying the application. We con-
clude that this sentence should be eliminated from the
bill." Committee on Administrative Law of New York
State Bar Assn. and Association of the Bar of the City
of New York, Joint Report on Proposed Federal Admin-
istrative Procedure Act 16 (Dec. 26, 1945).
It was certainly not their understanding that this provision
established a uniform burden of persuasion.3
II
Until today, this Court's reading of §7(c) has been con-
sonant with the congressional understanding. In NLRB v.
8 Congressional intent that in § 7(c) burden of proof mean burden of pro-
duction is further confirmed by the fact that as originally introduced in
the House, § 7(c) stated that "[t]he proponent of a rule or order shall have
the burden of proceeding except as statutes otherwise provide." H. R.
1203, 79th Cong., 1st Sess., §7(c), (introduced Jan. 1945), Leg. Hist. 158;
see Leg. Hist. 11, 300. Congress prepared extensive side-by-side compar-
isons of the bill as introduced and as amended into its enacted form, but
neither Congress nor any of the commentators gave any indication that
the change in language was intended to change the meaning of the sen-
tence. See generally Senate Judiciary Committee, Text of S. 7, Respect-
ing Federal Administrative Procedure and Judicial Review and Revised
Text, 79th Cong., 1st Sess. (Comm. Print 1945).
288 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS v. GREENWICH COLLIERIES
SOUTER, J., dissenting
Transportation Management Corp., 462 U. S. 393 (1983), this
Court considered the phrase "burden of proof" as used in
that section and rejected the position the Court now takes.
In Transportation Management, the Court upheld the rule
of the National Labor Relations Board (Board), that its Gen-
eral Counsel has the burden of persuading the Board that
antiunion animus contributed to an employer's decision to
fire the employee, and that the burden of persuasion then
shifts to the employer to prove that the employee would
have been fired even without involvement in protected union
activities. Confronting the employer's argument that § 7(c)
barred the Board from ever shifting the burden of persua-
sion to the employer, the Court rejected it, on the ground
that § 7(c) "determines only the burden of going forward, not
the burden of persuasion." Id., at 404, n. 7 (citing Environ-
mental Defense Fund, Inc. v. EPA, 548 F. 2d 998, 1004, 1013-
1015 (CADC 1976) (Leventhal, J.)).
Today's abandonment of Transportation Management's
holding is not only a mistake, but one that puts the Court
at odds with that fundamental principle of precedent that
"[considerations of stare decisis have special force in the
area of statutory interpretation, for ... Congress remains
free to alter what we have done." Patterson v. McLean
Credit Union, 491 U. S. 164, 172-173 (1989); accord, Square
D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U. S. 409,
424 (1986); Illinois Brick Co. v. Illinois, 431 U. S. 720, 736
(1977).4 Even on the assumption that the conclusion reached
in Transportation Management was debatable at the time
the case was decided, it was undoubtedly a reasonable con-
struction of a phrase that (as shown above) was ambiguous
4 1 note in this regard that none of the parties argued for overruling
Transportation Management; only amicus American Insurance Associa-
tion did so; and the courts below did not pass on the question. Rather,
respondents argue that Transportation Management does not bar the
conclusion that a different sentence of § 7(c) places the burden of persua-
sion on the proponent of an order.
Cite as: 512 U. S. 267 (1994) 289
SOUTER, J., dissenting
in the general usage of 1946, and in the 11 years since the
construction was settled by Transportation Management,
Congress has not seen fit to disturb it by amending §7(c).
Compare, e. g., Johnson v. Transportation Agency, Santa
Clara Cty., 480 U. S. 616, 629-630, n. 7 (1987), with Califano
v. Sanders, 430 U. S. 99, 105-107 (1977). The settled con-
struction should therefore stand.
This Court, like the court below, tries to avoid Transporta-
tion Management by implying that the Court's definition of
burden of proof in § 7(c) as burden of production was inessen-
tial to its holding, since the Court only allowed the burden
of persuasion to be placed on the employer after the NLRB
had met its burden of persuasion on the elements of an unfair
labor practice. 992 R 2d 1277, 1281-1284 (CAS 1993); cf.
ante, at 278 ("[T]he holding in that ease remains intact").
The problem with this reading of Transportation Manage-
ment, however, is that it is not at all what this Court said,
or could have said. The reasoning chosen by the Court to
justify its conclusion was that burden of proof in § 7(c) means
burden of production, and thus is no impediment to the
Board's rule. And in so explaining, the Court cited the lead-
ing case from the Court of Appeals for the District of Colum-
bia Circuit that had held "proof" synonymous with "pro-
duction" in the text under examination. Environmental
Defense Fund, supra.
The Court also reasons that the burden of proof holding of
Transportation Management should be abandoned as con-
flicting with Steadman v. SEC, 450 U. S. 91 (1981), a decision
announced just two Terms prior to Transportation Manage-
ment. But Steadman and Transportation Management are
simply not inconsistent with each other. Indeed, neither the
parties to Transportation Management nor the Court itself
saw Steadman as even relevant to the questions presented
in Transportation Management. In Steadman, a mutual
funds manager argued that in a disciplinary proceeding to
determine whether he had violated the federal securities
290 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS v GREENWICH COLLIERIES
SOUTER, J., dissenting
laws, the Securities and Exchange Commission had no choice
but to use the clear-and-convincing standard of proof, rather
than the standard of preponderance of the evidence. Stead-
man read the third sentence of § 7(c) (a rule or order must
be "supported by and in accordance with the reliable, proba-
tive, and substantial evidence") to mean that preponderance
of the evidence, not the clear-and-convincing standard, ap-
plies in adjudications under the APA. Steadman thus holds
that the party with the burden of persuasion must satisfy it
by a preponderance, but does not purport to define "burden
of proof" under the APA or to decide who bears the burden
of persuasion, since it was uncontested in that case that the
burden of persuasion was on the Government in a securities
disciplinary proceeding. Transportation Management, on
the other hand, holds that "burden of proof" in § 7(c) means
burden of production. The question left open by each deci-
sion is who bears the burden of persuasion. As to that, § 7(c)
is silent.
It is also worth remarking that Transportation Manage-
ment came as no surprise when it was decided, other federal
courts having anticipated this Court's reading of the § 7(c)
burden as one of production. See, e. g., Environmental
Defense Fund, Inc. v. EPA, 548 R 2d, at 1013 ("'burden
of proof [§ 7(c)] casts upon the 'proponent' is the burden of
coming forward with proof, and not the ultimate burden of
persuasion"); Old Ben Coal Corp. v. Interior Bd. of Mine
Operations Appeals, United States Dept. of Interior, 523
F. 2d 25, 40 (CA7 1975) ("burden of putting forth a prima
facie case"); Maine v. United States Dept. of Labor, 669 F. 2d
827, 829 (CA1 1982) (burden "of producing sufficient evidence
to make out a prima facie case"); but cf. Kerner v. Flemming,
283 F. 2d 916, 921-922, and n. 8 (CA2 1960) (assuming, argu-
endo, the term meant burden of persuasion). And at least
since Transportation Management, every Court of Appeals
(except the one below in this case) to have reached the issue
has understood that the question was firmly settled by
Cite as: 512 IL S. 267 (1994) 291
SOUTER, J., dissenting
Transportation Management and its predecessor in the Dis-
trict of Columbia Circuit, Environmental Defense Fund.
See, e. g., Freeman United Coal Mining Co. v. Office of
Workers' Compensation Programs, 988 R 2d 706, 711 (CA7
1993) ("The Supreme Court has resolved this ambiguity [in
§7(c)]. 'Burden of proof as that term is used in the APA
means the burden of going forward, not the burden of per-
suasion"); Hazardous Waste Treatment Council v. EPA, 886
F. 2d 355, 366 (CADC 1989) (per curiam) ("initial burden of
going forward with a prima facie case"), cert, denied, 498
U. S. 849 (1990); Merritt v. United States, 960 F. 2d 15, 18
(C A2 1992) ("refers only to the burden of going forward with
evidence, not the burden of persuasion"); Bosma v. United
States Dept of ' Agriculture, 754 P. 2d 804, 810 (CA9 1984)
("burden of going forward with evidence"); Alameda Cty.
Training and Employment Bd./ Associated Community Ac-
tion Program v. Donovan, 743 R 2d 1267, 1269 (CA9 1984)
("merely places the burden of production on [proponent], not
the ultimate burden of persuasion"); Dazzio v. FDIC, 970
F. 2d 71, 77 (CA5 1992) ("refers only to the burden of going
forward with evidence, not the ultimate burden of persua-
sion"); Skukan v. Consolidation Coal Co., 993 F. 2d 1228,
1236-1238 (CA6 1993) ("burden of production"). Moreover,
the lower courts' views were in accord with the commenta-
tors. See, e. g.y 3 Davis, Administrative Law Treatise § 16.9,
at 257 (burden of proof in § 7(c) means only "burden of going
forward" and not burden of persuasion) (citing Environ-
mental Defense Fund, supra)} 1 Koch, Administrative Law
and Practice §6.42, at 245 (1994 Supp.) ("The phrase 'burden
of proof as used in the APA § 556(d) means the burden of
going forward with evidence. That phrase in the context of
the APA does not mean the ultimate burden of persuasion")
(footnote omitted); 4 Stein, Mitchell, & Mezines, Adminis-
trative Law §24.02, at 24-21, n. 3 (§7(c) "only directs that
the [proponent] has the burden of production"); G. Edles &
J. Nelson, Federal Regulatory Process §6.7, pp. 151-152 (2d
292 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS v. GREENWICH COLLIERIES
SOUTER, J., dissenting
ed. 1992) ("[T]he burden of proof under the APA refers only
to the burden of going forward with evidence") (each citing
Transportation Management, 462 U. S., at 403, n. 7).
Nor is there any argument that the vitality has gone out of
Transportation Management over the last 11 years. This
Court, indeed, has cited the case for the very proposition
that the Court now repudiates, in the course of explaining
that we ourselves had used the term "burden of proof" in
Title VII suits to mean burden of production, not burden
of persuasion:
"[T]o the extent that those cases speak of an employer's
'burden of proof ' with respect to a legitimate business
justification defense . . . they should have been under-
stood to mean an employer's production — but not per-
suasion— burden. Cf., e. g., NLRB v. Transportation
Management Corp., 462 U.S. 393, 404, n. 7 (1983)."
Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 660
(1989).
If the Wards Cove Court could rely on Transportation Man-
agement to hold that in innumerable Title VII disparate-
impact cases over many years we (and the lower courts) had
used the term "burden of proof" to mean only "burden of
production" it is hard to place much weight on the majority's
reference to a consistent practice to the contrary since 1923.
Today's decision to repudiate Transportation Manage-
ment is made more regrettable by the fact that the Court's
adherence to the case in Ward9s Cove came after the Court
had been made aware of the role of the true doubt rule in
black lung litigation, which presupposed Transportation
Managements reading of § 7(c). In Mullins Coal Co. of Va.
v. Director, Office of Workers7 Compensation Programs, 484
U. S. 135 (1987), upholding the Secretary of Labor's interpre-
tation of a ELBA interim regulation about the prima facie
standard for invoking a statutory presumption of eligibility,
this Court explicitly noted the operation of the true doubt
Cite as: 512 U. S. 267 (1994) 293
SOUTER, J., dissenting
rule once both parties' evidence had been introduced and (as
here) the presumption had dropped out of the case. See id.,
at 144, n. 12 (true doubt rule "ensures that the employer
will win, on invocation or rebuttal, only when its evidence is
stronger than the claimant's"). We acknowledged the Secre-
tary's position that the ELBA " 'embodies the principle that
doubt is to be resolved in favor of the claimant, [which] plays
an important role in claims determinations ...[,]'" id., at
156, n. 29 (quoting 43 Fed. Reg. 36826 (1978)), and that the
Benefits Review Board "has consistently upheld the principle
that, where true doubt exists, that doubt shall be resolved
in favor of the claimant," 484 U. S., at 144, n. 12 (internal
quotation marks and citation omitted).
Had we, indeed, suggested otherwise, we would have been
bucking the strong tide that the Court turns back today, for
the other federal courts have been applying some form of the
true doubt rule, either as judicial statutory interpretation or
as the agency's rule, in adjudicating claims after enactment
of the APA, as well as before it, for a good 50 years. See,
e. g., Friend v. Britton, 220 R 2d 820, 821 (CADC 1955)
("Doubts, including the factual, are to be resolved in favor of
the employee or his dependent family"); Bath Iron Works
Corp. v. White, 584 F. 2d 569, 574 (CA1 1978) ("[T]he judicial
policy [is] that 'all doubtful questions are to be resolved in
favor of the injured employee' ... in order to place the bur-
den of possible error on the employer who is better able to
bear it"); Volpe v. Northeast Marine Terminals, 671 F. 2d
697, 701 (CA2 1982) ("[A]ll doubtful questions of fact [are
to] be resolved in favor of the injured employee") (internal
quotation marks omitted);5 Adkins v. Director, Office of
6 Until the decision below, the Court of Appeals for the Third Circuit
itself applied the true doubt rule. See, e. g., Bonessa v. United States
Steel Corp., 884 F. 2d 726, 730 (1989) ("The [Adniinistrative Law Judge]
noted that the contradictory nature of the x-ray evidence established 'true
doubt' as to the existence of pneumoconiosis and resolved that doubt, as
is proper, in favor of [claimant]*').
294 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS v. GREENWICH COLLIERIES
SOUTBR, J.f dissenting
Workers9 Compensation Programs ; Dept. of Labor, 958 F. 2d
49, 52, n. 4 (CA4 1992) (*AKqually probative evidence creates
a 'true doubt/ which must be resolved In favor of the
miner"); Greer v. Director^ Office of Workers* Compensation
Programs, Dept of Labor, 940 R 2d 88, 91 (CA4 1991) ("We
have a true doubt We give [claimant] the benefit of that
doubt"); Army & Air Force v, Greemuood,
585 R 2d 791, 794 (CAS 1978) ("[T]he judicial policy has long
been to resolve all doubts in favor of the employ^ and his
family"); Skukan v. Consolidation Coal Orx, 993 R 2df at
1239 ("true doubt rule is utilized to have equally probative
but conflicting evidence weighed in favor of the* claimant");
Freeman United Coal Mining Co, v. of Workers9 Com-
pensation Program^ 988 R 2d, at 711 (applying doubt
rule as "judicial assignment of the burden of persuasion to
the employer*'); v. Director, Office of Com-
pensation Pwffmfm, Dept of Labor, 977 R 2d 1106f 1109
(CA7 1992) (true doubt rule ^burden of error
on those best able to bear it,** 1 €., employers); v. Direc-
tor, Office of Workers9 Froymt/ts, of
Labor, 814 R 2d 614, 517 should
be resolved in favor of the miner**); Corp, of
CaL v. Director, Office of Workers* Compensation /Vor/m w.s%
Dept of Labor, 619 P. 2d 88» 41 ("si atutory policy
that all doubtfal questions of be in of the
injured employee**); v. of Workers*
Compensation Programs* §84 P. 2d 360
(CA10 199S) ("'true doubt1 role
tive but contradictory documentation
v. Twin Coal Ca, Si2 F. 2d 1478f 1476
("Il)]oubts should be in of the
miner1*); Stomps v. Dimeter* of Workers* COM/H'HMI-
twn Programs, of Laimr, 816 F. 2d 15*14 (CA11
1987) (same); for a sampling of the pre-APA & g*t
F. H. & Ca v. £0104 145 F. 2d 886V 887t n. 2, ^8
(CA2 1944) (upholding policy "doubtftil <jm*stions
Cite as: 512 U. S. 267 (1994) 295
SOUTER, J., dissenting
incapable of scientific resolution are to be resolved in favor
of the workman" under LHWCA); Southern S. S. Co. v. Nor-
ton, 101 F. 2d 825, 827 (CAS 1939) ("doubts should be re-
solved in [claimant's] favor" under LHWCA); Southern Pac.
Co. v. Sheppeard, 112 F. 2d 147, 148 (CAS 1940) ("[W]here
there is doubt it should be resolved in favor of the injured
employee or his family" under LHWCA).
Ill
Because §7(c) is silent on the burden of persuasion, the job
of placing it is left to the bounded discretion of the agencies,
subject to judicial review, when interpreting their organic
statutes, by customary reference to statutory text, congres-
sional intent, experience, policy, and relevant evidentiary
probabilities. See 3 Davis, Administrative Law §16.9, at
257-258.e This is only to be expected, since the issue of who
bears the risk of nonpersuasion raises a traditional "question
of policy and fairness based on experience in ... different
situations." Keyes v. School Dist No. 1, Denver, 413 U. S.
189, 209 (1973) (quoting 9 J. Wigmore, Evidence § 2486, p. 275
(3d e<L 1940)); accord, 2 J. Strong, McCormick on Evidence
§337, p. 427 (4th ed 1992), not a matter readily lumped in
with the formalities of procedure. While the APA was
meant to provide for uniform procedures in administrative
adjudications, it is unremarkable that it stopped short of
making a substantive policy choice that in every formal hear-
ing the burden of persuasion must rest on one party or the
other.
6 See, e. g.* NLRB v. Transportation Management Corp., 462 U. S. 393,
401-403 (1983); NLRB v, Curtin Matheson Scientific, Inc., 494 U. S. 775,
786-7% (1990); Bowen v. Yuckert, 482 U. S. 137, 146-147, n. 5 (1987); Gar-
rett v. Moore-McCormack Co., 317 U. S. 239, 246-249 (1942); Concrete
Pipe & Prodwts o/CaL, Inc. v. Construction Laborers Pension Trust for
Southern Cal, 608 U. S. 602, 621-631 (1993); 38 CFR §3.102 (1993) (doubts
in veteran's benefits adjudications resolved in favor of claimant); 38
U S. C. §6107 (1988 edL, Supp. IV) (same).
296 DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS v. GREENWICH COLLIERIES
SOUTER, J., dissenting
Nor, apart from § 7(c), are the choices made under the stat-
utes in question here vulnerable on judicial scrutiny. In
LHWCA cases over the last 50 years, the assignment to the
employer of the risk of nonpersuasion can be seen as placing
it on "those best able to bear it/1 F. H« McGraw & Co., supra,
at 887, 888, and as comporting with both the remedial nature
of the LHWCA, see Northeast Marine Terminal Co. v* Ca-
puto, 432 U. S. 249, 268 (1977), and the dangerous nature of
longshoring, see S. Rep, No. 92-1125, p. 2 (1972). As to the
ELBA, there is no question about the consistency of congres-
sional intent with the recitation in the Secretary's regula-
tion, 20 CFR §718.3(c) (1993), that "Congress intended that
[ELBA] claimants be given the benefit of all reasonable
doubt as to the existence of total or partial disability or death
due to pneumoconiosis." As Congress explained, the BLBA
"is intended to be a remedial law. ... In the absence of defin-
itive medical conclusions there is a clear need to resolve
doubts in favor of the disabled miner or his survivors." S*
Rep. No. 92-743, p. 11 (1972). The true doubt rule has been
applied in these benefits adjudications for more than 15
years, see, e. g.y Black Lung — A Study in Occupational Dis-
ease Compensation (1976), reprinted in Black Lung Benefits
Reform Act, 1976: Hearings on HL R, 10760 and S. 3183 be-
fore the Subcommittee on Labor of the Senate Committee on
Labor and Public Welfare, 94th Cong,, 2d Seas., 459, 488-489
(1976) ("[Conflicts in the evidence are required to be re-
solved by the adjudicator in favor of the claimant**); Pro-
vance v. United States Steel Corp., 1 BLR 1-483,
(Benefits Rev. Bd. 1978), and the Secretary^ true doubt rule
fully comports with Congress's "expectation that the Secre-
tary of Labor will promulgate standards which give the ben-
efit of any doubt to the coal miner/' S. Rep* No* 95-209,
p. 13 (1977); see 43 Fed. Reg, (1978).
The court below did not deny the harmony of the true
doubt rule with congressional policy in these cases, but it
held instead that the use of the true doubt rule in BLBA
Cite as: 512 II S, 267 (1994) 297
cases conflict* with 2(1 CFR §718.403 (1993), a Department
of Labor regulation providing that "[e]xcept as provided in
thi» Hubehapt4kr. the burden of proving a fact alleged in con-
nection with any provision of this part shall rest with the
party allegation/1 But the phrase "burden
of proving," like itn "burden of proof," is suscept-
ible of two including the meaning given by the
agency interpretation, m imposing only the burden of pro-
ducing i»vi<k*nw, Th«* Department of Labor is entitled to
"substantial dtftwmV* in the interpretation of its own regu-
lation^ and th«' agency's interpretation need only be reason-
able in of th*» regulations text and purpose, Martin v.
(kcitputiuMiI &*frt!( <wd Health Comm*n9 499 U. S.
144, !W)-ir>l I; iicwmi, v, Rock & Sand
fnf 325 US. 410* 414 (1945), The interpretation
of it« i*^ here, given our own
prior inttTprHatiun of "burden of proof* as referring only
to production.
Tin* I)«*|iiirtiiii»3nt uf in the true doubt rule,
to tho of to the employer in eases
to in the* and coal mining
in and free from conflict with
cif thr* AI*A, I the Department's rule,
and this
298 OCTOBER TERM, 1998
Syllabus
BARCLAYS BANK PLC v. FRANCHISE TAX BOARD
OF CALIFORNIA
CERTIORARI TO THE COURT OF APPEAL OP CALIFORNIA,
THIRD APPELLATE DISTRICT
No. 92-1384, Argued March 28, 1994— Decided June 20, 1994*
During the years at Issue in these consolidated cases, California used a
"worldwide combined reporting" method to determine the corporate
franchise tax owed by unitary multinational corporate group members
doing business in California. California's method first looked to the
worldwide income of the unitary business, and then taxed a percentage
of that income equal to the average of the proportions of worldwide
payroll, property, and sales located within California. In contrast^ the
Federal Government employs a "separate accounting" method, which
treats each corporate entity discretely for the purpose of determining
income tax liability. In Container Corp. of America v. Franchise Tax
Bd.f 463 U S. 159, this Court upheld the California scheme as applied to
domestic-based multinationals* but did not address the constitutionality
of the scheme as applied to domestic corporations with foreign parents
or to foreign corporations with foreign parents or foreign subsidiaries.
Both petitioner Barclays Bank PLC (Barclays)— a foreign multina-
tional—mid petitioner Colgate-Palmolive Co. (Colgate)— a domestic mul-
tinational— have operations in California. In two mem-
bers of the Barclays group Colgate were denied reftinds by the
California authorities.
Held: The Constitution does not impede application of California^ tax to
Barclays and Colgate. Pp. 310-331.
(a) Absent congressional approval, a tax on or foreign
commerce will not survive Commerce Clause scrutiny if the taxpayer
demonstrates that the tax (1) applies to an activity lacking a substantial
nexus to the taxing State; (2) is not fairly apportioned; (8) discriminates
against interstate commerce; or (4) In not fidrly to the services
the State provides. Auto Tmtwit* Inc. v* Brady, 430 U S.
274, 279* A tax affecting foreign commerce two additional con-
cerns: one prompted by the ^enhanced risk of multiple taxation/* Con-
tainer Corp., 463 US., at 185, and the other related to the Fed-
eral Government's capadty to ** %peak with one voice whan regulating
Together with No. 92-1889, ColgafaPalmoliv* Ca v. Tax
Board of California* also on eertiorari to the eoturt
Cite as: 512 U. S. 298 (1994) 299
Syllabus
commercial relations with foreign governments/" Japan Line, Ltd. v.
County of Los Angeles, 441 U. S. 434, 449. California's tax easily meets
all but the third of the Complete Auto criteria. As to the third,
Barclays has not shown that the system in fact operates to impose
inordinate compliance burdens on foreign enterprises, and its claim of
unconstitutional discrimination against foreign commerce thus fails.
Pp. 310-314.
(b) Nor has Barclays shown that California's "reasonable approxima-
tions" method of reducing the compliance burden is incompatible with
due process. Barclays argues that California employs no standard to
determine what approximations will be accepted, but Barclays has pre-
sented no example of an approximation California rejected as unreason-
able. Furthermore, the state judiciary has construed California law to
curtail the discretion of state tax officials, and the State has afforded
Barclays the opportunity to seek clarification of the meaning of the rele-
vant regulations. Rules governing international multijurisdictional in-
come allocation have an inescapable imprecision given the subject mat-
ter's complexity, and rules against vagueness are not mechanically
applied; rather, their application is tied to the nature of the enactment.
Pp. 314-316.
(c) California's system does not expose foreign multinationals, such
as Barclays, to constitutionally intolerable multiple taxation. In the
face of a similar challenge, Container Corp. approved this very tax when
applied to a domestic-based multinational. The considerations that in-
formed the Container Corp, decision are not dispositively diminished
when the tax is applied to a foreign-based enterprise. Multiple taxa-
tion is not the inevitable result of California's tax, and the alternative
reasonably available to the State — separate accounting — cannot elimi-
nate, and in some eases may even enhance, the risk of double taxation.
Pp. 316-320.
(d) California's scheme also does not prevent the Federal Government
from speaking with **one voice" in international trade. Congress holds
the control rein in this area. In the 11 years since Container Corp.,
Congress has not barred States from using the worldwide combined
reporting method. In the past three decades, aware that foreign gov-
ernments deplored use of the method, Congress nevertheless failed to
enact any of numerous bills, or to ratify a treaty provision, that would
have prohibited the practice. Executive Branch actions, statements,
and amieus filings do not supply the requisite federal directive proscrib-
ing States' use of worldwide combined reporting, for the regulatory au-
thority is Congress' to wield. Executive Branch communications that
express federal policy but lack the force of law cannot render unconstitu-
800 BARCLAYS BANK PLC n FUANVHISK TAX BD. OF CAL.
Syllabus
tiona! California^ otherwise* valid, congressional ly condoned Hcheme.
Pp. 820-881.
No, 92-1884, 10 Cal. App. 4th 1742, 14 Cal Rptr. 2cl 537t and No. 92-1889,
10 Cal. App. 4th 1768, 18 Oal. Rptr, 2c! 761. affirm**!.
GXNSBXJRG, J*» delivered the opinion of the Court, in which REHNQUIST,
C. Jn and BLACKMUN, STEVENS, KENNEDY, and KOIJTKE, JJ.t joined, and
in all but Part IV-B of which SCAUA, J., joined. BLACKMUN, J.» fikxl a
concurring opinion, post, p. SSL SCAUA, J.t filed an opinion concurring in
part and concurring in the judgment, jwoaf, p, SIL O'CONNOR, J., filed an
opinion concurring in the jiju!$rnw*nt in part and diBtwntmg in i>art, In which
THOMAS, J.f joinedt
Joanne M. Garvey argued the for petitioner in No,
92-1384, With her on the briefs were Joan. K. Irian,
N. Rut lib?, ry, Terem A, Maloney* l\ Kl#ier ar-
gued the for in No, i>2 -IM51). With him
on the briefs were Walter tfeltertttein, P re /i tips Willsoii,
Jr., Clare M, Rathbon^^ Franklin C. Latcfntnt
Timothy G* Attorney Oc^neral of Cali-
fornia, argued the for in both With
him on the brief for in Na Daniel
E« Luttyrrn* Attorney Ooiu*rul of CaUforni^ /I
Milam* Deputy Attorney Ot*m»r;ilt 7?r^/V*////// fl
Mr, Lungren, Lmrrww K. Supt«rvisinjr Deputy At-
torney Genera! of California, John D« Schfll* Deputy Attor-
ney General, K. a brief for n*Hpond-
ent In Na
Solicitor the for the United
ms in
With him on the At1nrn**y (
Argrett Pry>///// fit wrttt
I, and £t i!«i a for tiu» (Jom-
on t» in
of In Ha for the
G0venM»nt of the by B, mud J5t
for the of the «t »L by
Ubin a«d tor d€ by £1 Cituo-
/orrf and n for the of by
JSr. for the of by
Cite as: 512 U. S. 298 (1994) 301
Opinion of the Court
JUSTICE GINSBURG delivered the opinion of the Court.
Eleven years ago, in Container Corp. of America v. Fran-
chise Tax Bd., 463 U. S. 159 (1983), this Court upheld Califor-
nia's income-based corporate franchise tax, as applied to a
F. Eugene Wirwahn; for the Federation of German Industries et al. by Mr.
Wirwahn; for Keidanren (Japan Federation of Economic Organizations) by
C David Swenson, Dennis I Meyer, Leonard B. Terr, and Harry A
Franks, Jr.; for the Japan Tax Association by John A. Sturgeon; for the Or-
ganization for International Investment Inc. et al. by James Merle Carter;
for Reuters Ltd. by Steven Alan Reiss and Philip T. Kaplan; and for the
Washington Legal Foundation by Daniel J. Popeo and Richard A. Samp*
Briefs of amici curiae urging reversal in No. 92-1839 were filed for the
Chamber of Commerce of the United States by Timothy B. Dyk, Beth
Heifetz, Robin S Conrad, Mona C. Zeiberg, and Jan S. Amundson; and
for the National Foreign Trade Council, Inc., et al. by Philip D. Morrison
and Mary C. Bennett.
Briefs of amid curiae urging affirmance in both cases were filed for the
State of Alaska et al. by Bruce M. Botelho, Attorney General of Alaska,
and Lauri J. Adams, Assistant Attorney General, and by the Attorneys
General for their respective States as follows: Joseph P. Mazurek of Mon-
tana, Jeffrey R. Howard of New Hampshire, and Theodore R. Kulongoski
of Oregon; for the State of New Mexico et al. by Tom Udall, Attorney
General of New Mexico, Daniel Yohalen, Assistant Attorney General, and
Bruce J. Fort and Frank D. Katz, Special Assistant Attorneys General,
and by the Attorneys General for their respective States as follows: Win-
ston Bryant of Arkansas, Gale A. Norton of Colorado, Larry Echo Hawk
of Idaho, Michael E. Carpenter of Maine, and Jeffrey B. Pine of Rhode
Island; for the State of North Dakota et al. by M. K. Heidi Heitkamp,
Attorney General of North Dakota, and Donnita A Wald, Assistant At-
torney General, Robert A. Marks, Attorney General of Hawaii, and Kevin
T. Wakayama, Supervising Deputy Attorney General, and Robert T. Ste-
phan, Attorney General of Kansas; for the California Legislature by Bion
M. Gregory, James A Marsala, Bald&v S. Heir, and Michael R. Kelly; for
the California Tax Reform Association et al. by Jack A. Blum and Martin
Lobel; for Citizens for Tax Justice by Jonathan P. Hiatt; for the Council
of State Governments et al. by Richard Ruda and Lee Fennell; for the
Multistate Tax Commission by Alan H. Friedman and Paull Mines; for
Senator Dorgan et al. by Charles Rothwell Nesson; and for Congressman
Edwards et al. by Martin Lobel, Jack A. Blum, and Dina R. Lassow.
Eric J. Miethke, John E. Mueller, and Sheridan M. Cranmer filed a
brief for Litton Industries, Inc., et al. as amid curiae urging affirmance
in No. 92-1839.
S02 BARCLAYS BANK PLC n FRANVHMR TAX BD. OP CAL.
Opinion of the Court
multinational enterprises a comprehensive challenge
made under the Due Process and Commerce Clauses of the
Federal Constitution. Corp. involved a corporate
taxpayer domiciled and headquartered in the United States;
in addition to its components, the taxpayer had a
number of overseas incorporated in the coun-
tries in which they operated. The Court's decision in Con-
tainer Corp, did not the constitutionality of Califor-
nia's taxing scheme as applied to "domestic corporations with
foreign parents or fto) foreign corporations with either for-
eign parents or foreign subsidiaries/* M» at 189, n. 26. In
the consolidated us, we return to the taxing
scheme earlier considered in Corp. resolve
matters left open in that
The petitioner in No. PLC (Bar-
clays), is a United Kingdom corporation in the Barclays
Group, a multinational The petitioner
in No. 92-1&J9, Colgate- PHlmolive Co* is the
United multinational
and enterprise. in
California. During the at California deter-
mined the corporate* for opera-
tions under a method known as "worldwide report-
ing/* California's to the worldwide
income of the multinational enterprise, attributed
a portion of to the of the propor-
tions of worldwide payroll, property, mud in Cal-
ifornia) to the imposed its
tax on the income to Barclays*
California
Barclays tax distinctively
burdens multinationals in double
international taxation, In violation of the Commons Due
Process Both that
the sdieme the by the
Federal Government^ to with one when
Cite as: 512 U. S. 298 (1994) 303
Opinion of the Court
regulating commercial relations with foreign governments/'
Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 449
(1979) (internal quotation marks omitted). We reject these
arguments, and hold that the Constitution does not impede
application of California's corporate franchise tax to Barclays
and Colgate. Accordingly, we affirm the judgments of the
California Court of Appeal.
I
A
The Due Process and Commerce Clauses of the Constitu-
tion, this Court has held, prevent States that impose an
income-based tax on nonresidents from "tax[ing] value
earned outside [the taxing State's] borders. " ASARCO Inc.
v. Idaho Tax Comm'n, 458 U. S. 307, 315 (1982). But when
a business enterprise operates in more than one taxing juris-
diction, arriving at "precise territorial allocations of Value'
is often an elusive goal, both in theory and in practice. " Con-
tainer Corp., 463 U. S., at 164. Every method of allocation
devised involves some degree of arbitrariness. See id*, at
182.
One means of deriving locally taxable income, generally
used by States that collect corporate income-based taxes, is
the "unitary business" method. As explained in Container
Corp., unitary taxation "rejects geographical or transac-
tional accounting/' which is "subject to manipulation" and
does not fully capture "the many subtle and largely unquan-
tillable transfers of value that take place among the compo-
nents of a single enterprise." Id, at 164-165. The "unitary
business/formula apportionment" method
"calculates the local tax base by first defining the scope
of the 'unitary business' of which the taxed enterprise's
activities in the taxing jurisdiction form one part, and
then apportioning the total income of that 'unitary busi-
ness' between the taxing jurisdiction and the rest of the
world on the basis of a formula taking into account ob-
804 BARCLAYS BANK PLC v. FRANCHISE TAX BD. OF GAL.
Opinion of the Court
jective measures of the corporation's activities within
and without the jurisdiction/1 Id., at 165, l
During the income years at issue in these — 1977 for
Barclays, 1970-1973 for Colgate — California its cor-
porate franchise tax by employing a ^worldwide combined
reporting" method. California's scheme required the tax-
payer to aggregate the income of all corporate entities com-
posing the unitary business enterprise, including in the
aggregation both affiliates operating abroad and those
operating within the United States, Having defined the
scope of the "unitary business** thus broadly, California used
a long-accepted method of apportionment* commonly called
the "three-factor" formula, to arrive at the amount of Income
attributable to the operations of the enterprise in California,
Under the three-factor formula, California taxed a percent-
age of worldwide income equal to the arithmetic average* of
the proportions of worldwide payroll, property, and lo-
cated inside the State. Cal Rev. & Tax. Code Ann, §25128
IThis Court first the "unitary hutilntss priwijil**" in 1H07,
Co, v, 165 11 S. 194, 220-221; we re-
visited this **settled jurisprudence** recently in Allied-Signal, Inc. v.
Director, Dm of 504 II 8. 768, S«s generally
1 J* HetterBtein & W* Ibxation; and
ftranchiae 1 aOB, p. 8-29 C2d edL id., 1 8.06. On the determi-
nation whether a in "unitary/* nee Atthrl Siy/nil, §04 U. 8,, at
781-782 may be as unitary, compatibly with constitu-
tional limitations, if it functional of
management, and California Inc. v*
SO Cal. 2d 472, 481, IBS P. 2d 16, 21 ("If the of
the portion of the within the to upon or
contributes to the operation of the without the the opera-
tions are unitary."); v, MrCntuun, 17 €al 2d ^4# 678? III
R 2d M4f 841 (1941) {A is unitary if is "CD i^Jnity of owner-
ship; (2) lujraty of operation as by central pun*ha>inftr, idvertin*
Ing, accounting and managi*ment and (3) unity of use of ite
tralized asceotti^e 815 U* S,
801
Cite as: 512 U. S. 298 (1994) 305
Opinion of the Court
(West 1992). Thus, if a unitary business had 8% of its pay-
roll, 3% of its property, and 4% of its sales in California, the
State took the average — 5% — and imposed its tax on that
percentage of the business' total income.2
B
The corporate income tax imposed by the United States
employs a "separate accounting" method, a means of appor-
tioning income among taxing sovereigns used by all major
developed nations. In contrast to combined reporting, sepa-
rate accounting treats each corporate entity discretely for
the purpose of determining income tax liability.3
Separate accounting poses the risk that a conglomerate
will manipulate transfers of value among its components to
minimize its total tax liability. To guard against such ma-
nipulation, transactions between affiliated corporations must
be scrutinized to ensure that they are reported on an "arm's-
length" basis, 1 e., at a price reflecting their true market
value. See 26 U. S. a §482; Treas. Reg. § 1.482~lT(b), 26
CFE § 1.482-lT(b) (1993).4 Assuming that all transactions
are assigned their arm's-length values in the corporate ac-
counts, a jurisdiction using separate accounting taxes corpo-
rations that operate within its borders only on the income
2 In 1993, California modified the formula to double the weight of the
sales factor. Cal. Rev. & Tax, Code Ann. §25128 (West Supp. 1994); 1993
CaL Stats., ch. 946, §1.
8 An affiliated group of domestic corporations may, however, elect to file
a consolidated federal tax return in lieu of separate returns. 26 U. S. C.
§ 1501.
4 Effective enforcement of arm's-length standards requires exacting
scrutiny by the taxing jurisdiction, and some commentators maintain that
the results are arbitrary in any event. See 1 Hellerstein & Hellerstein,
supra, 1f 8.03 (describing "three inherent defects" of separate accounting:
compliance expense, impracticability, and the difficulty of arriving at
"arm's-length" prices).
306 BARCLAYS BANK PLC *'. FRANrHISK TAX BD. OF CAL.
Opinion of the Court
those corporations recognize on their own books. Con-
tainer Corp., 463 U. S.f at 186.§
At one time, a number of worldwide* combined
reporting, as California did during the at In
recent years, such States, including California, have modified
their systems at least to allow corporate election of some
variant of an approach that confines combined reporting to
the United "water V edge" See 1 Hellerstein & Hell-
erstein, supra n. 1, 18.16, at to 8-187, California's
1986 modification of its corporate franchise tax, effective in
1986 Cal. Stats., eh, 660, §6f made it nearly the last
State to give way. 1 Hellerstein & Hellers tern, supm n, 1,
18.16, at 8-187.
California corporate taxpayers, under the water's
alternative^ may to limit their reporting
group to corporations in the unitary business individ-
ual presence in the United surpass**,-* a thresh-
old. Cal. Rev. & Tax. Ann. see
Leegstra, & The California Water's -Edge
Election, 6 J. St. Taxfn 195 (1987) ^explaining of
Califorma% The amendment
conditioned a corporate on pay-
ment of a fee, the Fran-
chise Tax Board (Tax to disregard a
election under circumstance. In California
modified its corporate* tax
to allow to
without payment of a fee without the
of disregard. 10§3 Cal. eh- 31t § S3; id, ch, 881,
5 Under the Internal a rurpnrufion only
income derived a United or c0nt-
with the corp0mtl0»% conduct of a or
28 U S. C. 882, 884, corporal ions til
ineonne, whether the in or 111, re-
ceive a tax for qualifying to 28
U. S. G *d. and IV),
Cite as: 512 U. S. 298 (1994) 307
Opinion of the Court
§22. See Cal. Rev. & Tax. Code Ann. §25110 (West Supp.
1994). The new amendments became effective in January
1994.
C
The first of these consolidated cases, No. 92-1384, is a tax
refund suit brought by two members of the Barclays Group,
a multinational banking enterprise. Based in the United
Kingdom, the Barclays Group includes more than 220 corpo-
rations doing business in some 60 nations. The two refund-
seeking members of the Barclays corporate family did busi-
ness in California and were therefore subject to California's
franchise tax. Barclays Bank of California (Barcal), one of
the two taxpayers, was a California banking corporation
wholly owned by Barclays Bank International Limited
(BBI), the second taxpayer. BBI, a United Kingdom corpo-
ration, did business in the United Kingdom and in more than
33 other nations and territories.
In computing its California franchise tax based on 1977
income, Barcal reported only the income from its own op-
erations. BBI reported income on the assumption that it
participated in a unitary business composed of itself and its
subsidiaries, but not its parent corporation and the parent's
other subsidiaries. After auditing BBFs and BarcaPs 1977
income year franchise tax returns, the Tax Board, respond-
ent here, determined that both were part of a worldwide
unitary business, the Barclays Group. Ultimately, the Tax
Board assessed additional tax liability of $1,678 for BBI and
$152,420 for Barcal.6
6 The figures used by the Tax Board were:
Worldwide California
Taxable Formula Business Franchise
taxpayer Income Percentage Income Tax
Barcal $401,566,973 .0139032% $6,583,066 $693,696
BBI 401,566,973 .0003232% 129,786 16,126
App. in No. 92-1384, pp. A-13 to A-14 (Joint Stipulation of Facts 1f 22).
308 BARCLAYS BANK PLC u FRANCHISE TAX BD. OP CAL.
Opinion of the Court
Barcal and BBI paid the assessments and sued for refunds.
They prevailed in California^ lower courts, but were unsuc-
cessful in California's Supreme Court. The California Su-
preme Court held that the tax did not impair the Federal
Government^ ability to "speak with one voice** in regulating
foreign commerce, see Japan Line, Ltd. v. County of Los
Angeles, 441 IX S., at 449T and therefore did not violate the
Commerce Clause, Having so concluded, the California Su-
preme Court remanded the to the Court of Appeal for
further development of Barclay^* claim that the compliance
burden on foreign-based multinationals imposed by Califor-
nia's tax violated both the Due Process Clause and the non-
discrimination requirement of the Commerce Clause. Bar-
clay's Bank Int*lf Ltd, v. 1hz Bd., 2 Cat 4th 708,
829 R 2d 279, cert denied, f>06 U. S. 870 On remand,
the Court of Appeal decided the compliance burden
against Barclays, 10 Gal. App. 4th 1742, 14 CaL Rptn 2d 537
(3d Diet. 1992), and the California Supremo Court
further review. The is therefore us on writ of
certiorari to the California Court of 510 11 S* 942
(1998), Barclays conceded, for of liti-
gation, that the entire Group formed a worldwide
unitary business in 1977.7
The petitioner in No. 92-1839, Colgate-Palmolive Co., is a
Delaware corporation In New York. Colgate
and Its doing business in the
principally in the distribution of
household and products. In addition,
Colgate owned 75 corporations entirely
outside the United
primarily in the manufacture distribution of
household and hygiene products. When Colgate
7 The petitioner in No. PLC» to the in
to the tax reftmd of and BBL For conven-
ience, this opinion "Barclays1* to to the
and the petitioner in No,
Cite as: 512 U. S. 298 (1994) 309
Opinion of the Court
filed California franchise tax returns based on 1970-1973 in-
come, it reported the income earned from its foreign opera-
tions on a separate accounting basis. Essentially, Colgate
maintained that the Constitution compelled California to
limit the reach of its unitary principle to the United States'
water's edge. See supra, at 306. The Tax Board deter-
mined that Colgate's taxes should be computed on the basis
of worldwide combined reporting, and assessed a 4-year de-
ficiency of $604,765.8 Colgate paid the tax and sued for a
refund.
Colgate prevailed in the California Superior Court, which
found that the Federal Government had condemned world-
wide combined reporting as impermissibly intrusive upon
the Nation's ability uniformly to regulate foreign commercial
relations. No. 319715 (Super. Ct. Sacramento Cty., Apr. 19,
1989) (reprinted in App. to Pet for Cert, in No. 92-1839,
pp. 88a-102a). The Court of Appeal reversed, concluding
8 Colgate offered the following figures, using a water's edge approach:
Water's edge California
Income Taxable Formula Business Franchise
Year Income Percentage Income Tax
1970 $25,652,055 9.31920% $2,390,566 $167,340
1971 27,520,141 9.01730% 2,481,574 173,710
1972 32,440,358 9.21640% 2,989,833 227,227
1973 36,554,060 8.88730% 3,248,669 269,640
No. 319715 (Super. Ct. Sacramento Cty., Apr. 19, 1989) (reprinted in App.
to Pet. for Cert, in No. 92-1839, p. 85a).
Under California's worldwide combined reporting method, the computa-
tions were:
Worldwide California
Income Taxable Formula Business Franchise
Year Income Percentage Income Tax
1970
$ 91,566,729
4.42075%
$4,047,936
$283,356
1971
108,177,612
4.12017%
4,457,101
311,997
1972
123,779,352
4.03444%
4,993,803
379,529
1973
151,585,860
3.71812%
5,636,144
467,800
Id, at 84a.
810 BARCLAYS BANK PLC n FRANC'HISK TAX BD. OF CAL.
Opinion of the Court
that evidence of the Federal Executive's opposition to the
tax was insufficient 4 Cal. App. 4th 1700-1712, 284
Cai Rptr, 780f (3d Diet 1991), The California Su-
preme Court returned the to the Court of Appeal with
instructions "to vacate its decision and to the opinion
after modification in light offf that Court's decision in Bar-
days, 9 Cal. Rptr. 2d 358f 831 E 2d 79B In its
second decision, the Court of Appeal ruled against
Colgate, 10 Cal. App. 4th 13 Cal. Rptr, 2d 761 (3d
Dist. 1092). The California Supreme Court denied further
review, and the is before us on writ of certlorari to
the Court of Appeal 510 U. 3. §42 (1993). Like Barclays,
Colgate concedes, for purposes of litigation, during
the years in question, its business, worldwide, unitary.
II
The Commerce dmjjmss power
**[t]o regulate Commerce with Nation,-, and among
the U S. Art lf §8, cl 3. It has
long been understood, as well, to provide "protection from
legislation inimical to the national commerce [even]
where has not .*„„** 5?o//M<>r// Ca
v. Arizona ez rel 5?//7Jm/w, 825 U. & 761, 789 see also
Hifffnrnii v« /?/•'>//; f»\ Incn
30S U, S. 177P 185 "by its own
prohibits discrimination against commerce*1)*0
The not (or commerce
from its "feir of the tax burden/*
of of v. of
Cos,, 435 U. S* 734f 750 congressional ap-
proval, however, a tax on commerce will not sur-
vive Commerce If the taxpayer demon-
that the tax (1) to an activity a
sutetantial nexus to the (2) Is not appor-
f Our jurisprudence to the fi?!f-ax?cuting of the
m the wd0r«E»fttw or
Cite as: 512 U. S. 298 (1994) 311
Opinion of the Court
tioned; (3) discriminates against interstate commerce; or (4)
is not fairly related to the services provided by the State.
Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 279
(1977).
In "the unique context of foreign commerce/' a State's
power is further constrained because of "the special need for
federal uniformity." Wardair Canada Inc. v. Florida Dept.
of Revenue, 477 U.S. 1, 8 (1986). "In international rela-
tions and with respect to foreign intercourse and trade the
people of the United States act through a single government
with unified and adequate national power.'" Japan Line,
Ltd. v. County of Los Angeles, 441 U. S., at 448, quoting
Board of Trustees of Univ. of III. v. United States, 289 U. S.
48, 59 (1933). A tax affecting foreign commerce therefore
raises two concerns in addition to the four delineated in
Complete Auto. The first is prompted by "the enhanced
risk of multiple taxation." Container Corp., 463 U. S., at
185. The second relates to the Federal Government's capac-
ity to "'speak with one voice when regulating commercial
relations with foreign governments.'" Japan Line, 441
U. S., at 449, quoting Michelin Tire Corp. v. Wages, 423 U. S.
276, 285 (1976).
California's worldwide combined reporting system easily
meets three of the four Complete Auto criteria. The nexus
requirement is met by the business all three taxpayers —
Barcal, BBI, and Colgate — did in California during the years
in question* See Mobil Oil Corp. v. Commissioner of Taxes
of Vt, 445 U. S. 425, 436-437 (1980).10 The "fair apportion-
10 Amicus curiae the Government of the United Kingdom points to
Quill Corp. v. North Dakota, 604 U. S. 298 (1992), which held that the
Commerce Clause demands more of a connection than the "minimtim con-
tacts" that suffice to satisfy the due process nexus requirement for asser-
tion of judicial jurisdiction. Brief for Government of United Kingdom as
Amicus Curiae in No. 92-1384, pp. 24-25. Noting the absence of "any
meaningful contact" between California and the activities of Barclays
Group members operating exclusively outside the United States, id., at
26, the United Kingdom asserts that the trial court erred if it concluded
312 BARCLAYS BANK PLC v. FRANCHISE TAX BD. OP CAL.
Opinion of the Court
ment" standard is also satisfied. Neither Barclays nor Col-
gate has demonstrated the lack of a "rational relationship
between the income attributed to the and the intra-
state values of the enterprise/' Container Corp., 463 U. Sv
at 180-181 (internal quotation marks omitted); nor have the
petitioners shown that the income attributed to California is
"out of all appropriate proportion to the transacted
by the [taxpayers] in that State/1 /d.f at 181 (internal quo-
tation marks omitted). We note in this that, "if ap-
plied by every jurisdiction,1* California's method "would re-
sult in no more than all of the unitary business* income being
taxed/* Id*, at 169. And surely California has afforded
Colgate and the Barclays taxpayers "protection, opportuni-
ties and benefits" for which the can a return.
Wisconsin v. /- C Caf 311 U S. 435, 444 (1940); see
Inc. v. Tax Co ////>/ V 4ft8 U. 8M at 315.
Barclays (but not Colgate) vigorously however,
that California's worldwide combined ivporf mjjc scheme* vio-
the antidiscrimination component of the Cow^ctr
that ^California had the with of the Bar-
elayti group, w id., at 2? tomphaitta
The trial court, faowavtr* did not the the United King-
dom it did, nor tor it §o to do, A* the
Kingdom njwgni&Ks the thtory underlying k "cer-
tain IntungfW<* of vmlna* within the to link the
various as if a entity."
7dt at 28* of the of a inuttijiiriwlir-
tional (but unitary) If the Mi«-
within a AVwl*Fiywii. v. Dm of
5M U. &» at ma i«rincipl<*w t» **iin
approprfata for distin^uishinK gi!Hi*rnl^d within a
and Inrome without9*). the
Clause a "phyMcal pn^fm-c** in the taxing jurlMliction
that jurihdiction <mn * tine tax* W4 11 8.,
at 317, The CMIferniii of Hie u* i»
»nd we find notWng in to not
the of corporations taxpny<*!> tre
intertwii^i in orttr to the
Cite as: 512 U. S. 298 (1994) 313
Opinion of the Court
test. Barclays maintains that a foreign owner of a taxpayer
filing a California tax return "is forced to convert its diverse
financial and accounting records from around the world into
the language, currency, and accounting principles of the
United States" at "prohibitiv[e]" expense. Brief for Peti-
tioner in No. 92-1384, p. 44.11 Domestic-owned taxpayers,
by contrast, need not incur such expense because they "al-
ready keep most of their records in English, in United States
currency, and in accord with United States accounting princi-
ples. " Id., Sit 45. Barclays urges that imposing this "pro-
hibitive administrative burden," id., at 43, on foreign-owned
enterprises gives a competitive advantage to their United
States-owned counterparts and constitutes "economic pro-
tectionism" of the kind this Court has often condemned.
Id, at 43-46.
Compliance burdens, if disproportionately imposed on
out-of-jurisdiction enterprises, may indeed be inconsonant
with the Commerce Clause. See, e. g., Hunt v. Washington
State Apple Advertising Comm'n, 432 U. S. 333, 350-351
(1977) (increased costs imposed by North Carolina statute on
out-of-state apple producers "would tend to shield the local
apple industry from the competition of Washington apple
growers," thereby discriminating against those growers).
The factual predicate of Barclays' discrimination claim, how-
ever, is infirm.
Barclays points to provisions of California's implementing
regulations setting out three discrete means for a taxpayer
to fulfill its franchise tax reporting requirements. Each of
these modes of compliance would require Barclays to gather
and present much information not maintained by the unitary
11 Barclays estimates, and the trial court found, that an accounting sys-
tem capable of conveying the information Barclays thought California's
worldwide reporting scheme required for all of the enterprise's foreign
affiliates would cost more than $6 million to set up, and more than $2
million annually to maintain. Brief for Petitioner in No. 92-1384, p. 44,
n. 13; Nos, 325059 and 325061 (Super. Ct Sacramento Cty., Aug. 20, 1987)
/Wi™.;****/! i-n AW fn P^t fhr fVrt. in No. 92-1384. DD. A-27 to A-28).
314 BARCLAYS BANK PLC v. FRANCHISE TAX BD. OF CAL,
Opinion of the Court
group in the ordinary course of business.12 California's reg-
ulations, however, also provide that the Tax Board "shall
consider the effort and expense required to obtain the neces-
sary information** andf in "appropriate such as when
the necessary data cannot be developed from financial rec-
ords maintained in the regular course of business/" may ac-
cept "reasonable approximations/1 Cal Code of Regs.f Title
18, §25137-6(e)(l) (1985). As the Court of Appeal compre-
hended, in determining Barclays1 1977 worldwide income^
Barclays and the Tax Board "used flatter! provisions
and [made] computations on reasonable approxima-
tions/1 10 Cal. App. 4thf at 1756, 14 Gal Rpte. 2d? at §45f thus
allowing Barclays to avoid the compliance of
which it complains.13 Barclays has not shown that Califor-
nia% provision for "reasonable approximations" systemati-
cally "overtaxes" foreign corporations generally or BBI or
Bareal in particular.
In sum, Barclays has not California's
tax system in fact to compliance*
burdens on foreign Barclay >* of unconsti-
tutional discrimination foreign commcTiv
Mis.
Ill
Barclays additionally California's
approximations** method of reducing the compliance* burden
18 Under the to * Unitary
with in its
upon (1) **fmj . . . for
or corporation/1 Cmi of Title 18,
(2) the ^consolidated for tht
corporation** of which the unitary in a which is pivpurod
for filing with the and r«mm«i->ic>n,w I
or (3) *the and pn-paml tor reporting
to and to by an auditor/* ibid.
ISThe C&liforiHa Court of Barclay**' ac-
tual eompliance tht prior
to her© at to per annum, for BBL
Sl»*» 1^ rial Ar%
Cite as: 512 U. S. 298 (1994) 315
Opinion of the Court
is incompatible with due process. "Foreign multinationals,"
Barclays maintains, "remain at peril in filing their tax re-
turns because there is no standard to determine what 'ap-
proximations' will be accepted." Brief for Petitioner in No.
92-1384, at 49. Barclays presents no substantive grievance
concerning the treatment it has received, i. e., no example of
an approximation rejected by the Tax Board as unreason-
able. Barclays instead complains that u[t]he grant of stand-
ardless discretion itself violates due process," so that the
taxpayer need not show "actual harm from arbitrary applica-
tion." Ibid.
We note, initially, that "reasonableness" is a guide admit-
ting effective judicial review in myriad settings, from en-
counters between the police and the citizenry, see Terry v.
Ohio, 392 U. S. 1, 27 (1968) (Fourth Amendment permits po-
lice officer's limited search for weapons in circumstances
where "reasonably prudent man . . . would be warranted in
the belief that his safety or that of others was in danger"
based upon "reasonable inferences . . . draw[n] from the facts
in light of [officer's] experience"), to the more closely analo-
gous federal income tax context. See, e. g., 26 U. S. C.
§162(a)(l) (allowing deductions for ordinary business ex-
penses, including a "reasonable allowance for salaries or
other compensation"); § 167(a) (permitting a "reasonable al-
lowance" for wear and tear as a depreciation deduction); see
also United States v. Ragen, 314 U. S. 513, 522 (1942) (noting
that determinations "by reference to a standard of 'reason-
ableness' [are] not unusual under federal income tax laws").
We next observe that California's judiciary has construed
the California law to curtail the discretion of California tax
officials. See 10 Cal. App. 4th, at 1762, 14 Cal. Rptr. 2d, at
549 (the Tax Board must consider "regularly-maintained or
other readily-accessibly corporate documents" in deciding
whether the "cost and effort of producing [worldwide com-
bined reporting] information" justifies submission of "reason-
able approximations"). We note, furthermore, that Cali-
^^A^A T> o •**/»! Q-X re +ho rfcTvnnH"nrritv "to elarifv the
316 BARCLAYS BANK PLC v. FRANCHISE TAX BD. OF CAL.
Opinion of the Court
meaning of the regulation[s] by its own inquiry, or by resort
to an administrative process/7 See Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U. S. 489, 498 (1982).
Taxpayers, under the State's scheme, may seek "an advance
determination" from the Tax Board regarding the tax conse-
quences of a proposed course of action. Cal. Code of Regs.,
Title 18, §25137-6(e)(2) (1985).
Rules governing international multyurisdictional income
allocation have an inescapable imprecision given the com-
plexity of the subject matter. See Container Corp., 463
U. S., at 192 (allocation ''bears some resemblance ... to
slicing a shadow").14 Mindful that rules against vagueness
are not "mechanically applied" but depend, in their applica-
tion, on "the nature of the enactment," Hoffman Estates,
455 U. S., at 498, we hold that California's scheme does not
transgress constitutional limitations in this regard, and that
Barclays' due process argument is no more weighty than
its claim of discrimination first placed under a Commerce
Clause heading.
IV
Satisfied that California's corporate franchise tax is
"proper and fair" as tested under Complete Auto*B guides,
14 As noted by the California Court of Appeal, even the
accounting scheme preferred by Barclays entails recourse to a
"akin to reasonable approximation/' 10 CaL App, 4th 1742, 1768, 14 Cai
Rptr. 2d 537, 550 (1998). The Internal Revenue Code allows the Secre-
tary of Treasury to ^distribute, apportion, or allocate income* deduc-
tions, credits, or allowances'1 among a controlled group of **i£
he determines that such distribution, apportionment, or allocation is
sary in order to prevent evasion of taxes or dearly to reflect the income**
of such businesses. 26 U. S* CX §482; see App. in No* p,
(testimony of Barclays' expert witness that §482 requires "reasonable ap~
proximation£s]w of armVlength prices); Peck v* 762 E 2d
469, 472 (CA9 1985) (under §482, Internal Revenue Service determination
of araVlength prices will be sustained unless unreasonable, arbitrary* or
capricious).
Cite as: 512 U. S. 298 (1994) 317
Opinion of the Court
see Container Corp., 463 U. S., at 184, we proceed to the
"additional scrutiny" required when a State seeks to tax for-
eign commerce. Id., at 185. First of the two additional
considerations is "the enhanced risk of multiple taxation. "
Ibid.
In Container Corp., we upheld application of California's
combined reporting obligation to "foreign subsidiaries of
domestic corporations," id., at 193 (emphasis added), against
a charge that such application unconstitutionally exposed
those subsidiaries to a risk of multiple international taxa-
tion.15 Barclays contends that its situation compels a differ-
ent outcome, because application of the combined reporting
obligation to foreign multinationals creates a " 'more aggra-
vated' risk ... of double taxation." Brief for Petitioner in
No. 92-1384, at 32, quoting Nos. 325059 and 325061 (Super.
Ct. Sacramento Cty., Aug. 20, 1987) (reprinted in App. to
Pet. for Cert, in No. 92-1384, p. A-26). Barclays rests its
argument on the observation that "foreign multinationals
typically have more of their operations and entities outside
of the United States [compared to] domestic multinationals,
which typically have a smaller share of their operations and
entities outside of the United States." Brief for Petitioner
in No. 92-1384, at 33.16 As a result, a higher proportion of
the income of a foreign multinational is subject to taxation
by foreign sovereigns. This reality, Barclays concludes,
means that for the foreign multinational, which must include
all its foreign operations in the California combined report-
ing group, "the breadth of double taxation and the degree of
burden on foreign commerce are greater than in the case of
domestic multinationals." Ibid.
15 We reserved judgment on whether an altered analysis would be re-
quired where the taxpayer was part of a foreign-based enterprise. See
Container Corp., 463 U. S., at 189, n. 26; id., at 195, n. 32.
16 To illustrate, Barclays points to its own operations: only 3 of the more
than 220 entities in the Barclays Group did any business in the United
States. Brief for Petitioner in No. 92-1384, at 33.
318 BARCLAYS BANK PLC v. FRANCHISE TAX BD. OF CAL.
Opinion of the Court
We do not question Barclays" assertion that multinational
enterprises with a high proportion of income taxed by juris-
dictions with wage rates, property values, and prices
lower than California's face a correspondingly high risk of
multiple international taxation, See Container Corp*, 463
U. S., at 187; ct id, at 190-200 (Powell, Xf dissenting) (de-
scribing how formulary apportionment leads to multiple tax-
ation), Nor do we question that foreign-based multination-
als have a higher proportion of such income, on average, than
do their United States counterparts. But Corp/s
approval of this very tax, in the face of a multiple taxation
challenge, did not rest on any insufficiency in the evidence
that multiple taxation might occur, indeed, we accepted in
that case the taxpayer's assertion that multiple taxation in
fact had occurred. /dL, at 187 ("[Tjhe tax imposed like
the tax in Japan Line, has in actual double taxation,
in the sense that some of the income without appor-
tionment by foreign nations as to appellant's for-
eign subsidiaries also taxed by California as attributable
to the State's share of the total income of the unitary busi-
ness of which those a part."); id** at
187, n. 22.
Container Corps's holding on multiple on
two considerations: that multiple not the
"inevitable result" of the California xt and, that
the walternativ[e] reasonably available to the State"
(i e.9 some version of the separate accounting/"armV length"
17 The Court TOhe In this
is not the *imvitabl[e]* result of the California taxing **hen»«». „ * - JW]e «re
with two distinct method! of the of a
enterprise. The 'amfe-length* approach the pie on the of
formal accounting principles. The formula apportionment method
the pte on the of a the
combination of the two method* in the
twice or in some portion of not at all ia
solely on the of the tedivWimi 48S U- a, at
188 (citation omitted).
Cite as: 512 U. S. 298 (1994) 319
Opinion of the Court
approach), id., at 188-189, "could not eliminate the risk of
double taxation" and might in some cases enhance that risk.
Id., at 191. 18 We underscored that "even though most na-
tions have adopted the arm's-length approach in its general
outlines, the precise rules under which they reallocate in-
come among affiliated corporations often differ substantially,
and whenever that difference exists, the possibility of double
taxation also exists/9 Ibid, (emphasis added); see also id.,
at 192 ("California would have trouble avoiding multiple tax-
ation even if it adopted the 'arm's-length' approach . . . .")•
These considerations are not dispositively diminished
when California's tax is applied to the components of foreign,
as opposed to domestic, multinationals. Multiple taxation of
such entities because of California's scheme is not "inevita-
ble"; the existence vel non of actual multiple taxation of in-
come remains, as in Container Corp., dependent "on the facts
of the individual case." Id., at 188. And if, as we have held,
adoption of a separate accounting system does not disposi-
tively lessen the risk of multiple taxation of the income
earned by foreign affiliates of domestic-owned corporations,
we see no reason why it would do so in respect of the income
earned by foreign affiliates of foreign-owned corporations.
We refused in Container Corp. "to require California to give
up one allocation method that sometimes results in double
taxation in favor of another allocation method that also
sometimes results in double taxation." Id., at 193. The
18 The Court's decision in Container Corp. effectively modified, for pur-
poses of income taxation, the Commerce Clause multiple taxation inquiry
described in Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434
(1979) (holding unconstitutional application of California's ad valorem
property tax to cargo containers based in Japan and used exclusively in
foreign commerce). In Japan Line, confronting a property tax on con-
tainers used as "instrumentalities of [foreign] commerce," not an income
tax on companies, we said that a state tax is incompatible with the Com-
merce Clause if it "creates a substantial risk of international multiple taxa-
tion/' 7d, at 451.
320 BARCLAYS BANK PLC v. FRANCHISE TAX BD. OF CAL.
Opinion of the Court
foreign domicile of the taxpayer (or the taxpayer^ parent) is
a factor inadequate to warrant retraction of that position,
Recognizing that multiple taxation of international enter-
prise may occur whatever taxing scheme the State adopts,
JUSTICE O'CONNOR, dissenting in No, 92-1384, finds imper-
missible under "the [dormant] Foreign Commerce Clause"
only double taxation that (1) burdens a foreign corporation
in need of protection for lack of access to the political proc-
ess, and (2) occurs "because [the State] does not conform to
international practice/' Post* at 336. But the image of a
politically impotent foreign transactor is surely belied by the
battalion of foreign governments that has marched to Bar-
clays* aid, deploring worldwide combined reporting in diplo-
matic notes, amicus briefs, and even retaliatory legislation.
See infra, at 324, n. 22; post, at 337. Indeed, California
responded to this impressive* political activity when it
eliminated mandatory worldwide combined reporting. See
supra, at 306. In view of this activity, and the control rein
Congress holds, see infra, at 329-381 f we cannot that
^international practice" has such force as to dictate this
Court's Commerce Clause jurisprudence. We therefore
adhere to the precedent set in Corp.
B
We turn, finally, to the question ultimately and most ener-
getically presented: Did Callfomia% worldwide combined re-
porting requirement, as applied to Barcal, BBI, and Colgate,
"impair federal uniformity in an where uniform-
ity is essential/1 441 U. S.» at in particular*
did the State's taxing scheme *'preven[t] the Govern-
ment firom %peaking with one voice* in international trade**?
Id., at 453, quoting Tim Corp, v. Wages, 423 U S.f
at 286,
1
Two decisions principally inform our judgment: this
Court's 1988 determination in Corp,; second,
OUF dfttHRinn thrAA VAStircs latai* In Ws**rfs»4** r*/**** ^^ JW*/» i*
Cite as: 512 U. S. 298 (1994) 321
Opinion of the Court
Florida Dept of Revenue, 477 U. S. 1 (1986). Container
Corp. held that California's worldwide combined reporting
requirement, as applied to domestic corporations with for-
eign subsidiaries, did not violate the "one voice" standard.
Container Corp. bears on Colgate's case, but not BarcaFs or
BBFs, to this extent: "[T]he tax [in Container Corp.] was
imposed, not on a foreign entity . . . , but on a domestic
corporation." 463 U. Sv at 195.19 Other factors emphasized
in Container Corp., however, are relevant to the complaints
of all three taxpayers in the consolidated cases now before
us.20 Most significantly, the Court found no "specific indi-
cations of congressional intent" to preempt California's tax:
"First, there is no claim here that the federal tax stat-
utes themselves provide the necessary pre-emptive
force. Second, although the United States is a party to
a great number of tax treaties that require the Federal
Government to adopt some form of 'arm's-length' analy-
sis in taxing the domestic income of multinational enter-
prises, that requirement is generally waived with re-
spect to the taxes imposed by each of the contracting
nations on its own domestic corporations. . . . Third, the
tax treaties into which the United States has entered do
not generally cover the taxing activities of subnational
governmental units such as States, and in none of the
19 Container Corp. noted:
"We recognize that the fact that legal incidence of a tax falls on a corpo-
ration whose formal corporate domicile is domestic might be less signifi-
cant in the case of a domestic corporation that was owned by foreign inter-
ests. We need not decide here whether such a case would require us to
alter our analysis." 463 U. S., at 195, n. 32.
20 Container Corp. observed that "the tax here does not create an auto-
matic 'asymmetry' ... in international taxation," id., at 194-195, quoting
Japan Line, 441 U. S., at 453 — i. e., it does not inevitably lead to double
taxation. See supra, at 319-320, and n. 17. Furthermore, Colgate, Bar-
cal, and BBI are "without a doubt amenable to be taxed in California in
one way or another," and "the amount of tax [they] pa[y] is much more
the function of California's tax rate than of its allocation method." 463
TT a at
822 BARCLAYS BANK PLC r FRANCHISE TAX BD. OF CAL.
Opinion of the Court
treaties does the restriction on *non-arm%-length? meth-
ods of taxation apply to the Moreover, the Sen-
ate has on at least one occasion, in considering a pro-
posed treaty, attached a reservation declining to give
its consent to a provision in the treaty that would have
extended that restriction to the Finally, . . .
Congress has long debated, bat has not enacted, legisla-
tion designed to regulate taxation of income/1
/d, at 196-197 (footnotes and Internal quotation marks
omitted).
The Court again confronted a "one voice" argument in
Wardair Canada Inc. v. Florida Dept, 0//?r'v////r, 477 U. 8.
1 (1986), and there rejected a Commerce to
Florida's tax on the of fuel to common carriers, including
airlines, Air carriers were on all aviation fuel pur-
chased in Florida, without to the amount the carrier
consumed within the or the amount of its busi-
ness. The carrier in Wanlairf a oper-
ated charter flights to from the conceded
that the challenged tax the d >//////« fc Auto criteria
and entailed no threat of multiple taxation,
Joined by the United as (ttnicus however* the
carrier urged that Florida's tax "threatened] the ability of
the Federal Government to with voice/" 47?
U* S., at 9. There is "a policy/1 the asserted,
"of reciprocal tax for equipment, and
supplies, including aviation ftael, that the instru-
mentalities of international air traffic11; policy, the
rier argued, the the voice1
of the Federal Government to make/1 a
"threatened by [Florida's tax],"
This Court disagreed, the evi-
dence disclosed no policy of the kind and
Indeed demonstrated that the Federal Oo\vrmm*nt
to permit the to on aviation fuel.
The international convention and and
Cite as: 512 U. S. 298 (1994) 323
Opinion of the Court
United States policy of tax exemption for the instrumentali-
ties of international air traffic, the Court explained, in fact
indicated far less: "[W]hile there appears to be an interna-
tional aspiration on the one hand to eliminate all impedi-
ments to foreign air travel — including taxation of fuel — the
law as it presently stands acquiesces in taxation of the sale
of that fuel by political subdivisions of countries." Id., at
10 (emphasis in original). Most of the bilateral agreements
prohibited the Federal Government from imposing national
taxes on aviation fuel used by foreign carriers, but none pro-
hibited the States or their subdivisions from taxing the sale
of fuel to foreign airlines. The Court concluded that "[b]y
negative implication arising out of [these international ac-
cords,] the United States has at least acquiesced in state tax-
ation of fuel used by foreign carriers in international travel,"
and therefore upheld Florida's tax. 7dv at 12.
In both Wardair and Container Corp., the Court consid-
ered the "one voice" argument only after determining that
the challenged state action was otherwise constitutional.
An important premise underlying both decisions21 is this:
Congress may more passively indicate that certain state
practices do not "impair federal uniformity in an area where
federal uniformity is essential," Japan Line, 441 U. S., at
448; it need not convey its intent with the unmistakable clar-
ity required to permit state regulation that discriminates
against interstate commerce or otherwise falls short under
Complete Auto inspection. See, e. g.y Maine v. Taylor, 477
U. S. 131, 139 (1986) (requiring an "unambiguous indication
of congressional intent" to insulate "otherwise invalid state
legislation" from judicial dormant Commerce Clause scru-
21 See also Itel Containers InVl Corp. v. Huddleston, 507 U. S. 60, 75
(1993) (upholding Tennessee's tax on lease of cargo containers used exclu-
sively in international shipping; because tax in question was not among
those proscribed by "various conventions, statutes, and regulations[,] . . .
the most rational inference to be drawn is that th[e] tax, one quite distinct
p-Aneral class of import duties, is permitted").
324 BARCLAYS BANK PLC n Ki: A!v 'UTSi* TAX BD, OK CAL.
Opinion of th«* ( Vmrt
tiny); Northwest Inc. v. of Kent, 510 US.
355, 373, and n. 19
2
As in Corp. Wards* ir, we no "specific
indications of congressional intent*' to bar the* action
here challenged. Our dtvihinn uphnMimr rallforniaV fran-
chise tax in Container Corp. left the hall in ronjrrvss* court;
had Congress, the branch n^p^iir !?»!«• for tho n ^ulntiun of
foreign commerce, see U. S. Const., Art, If §St el Hf consid-
ered nationally uniform of separati* accounting "essen-
tial," Japan Line, 441 IX S.» at 448f it could have*
legislation prohibiting the Corpora! *> in-
come on the worldwide rv purling method.
In the 11 that elap^^cl our clwisicm in Con-
Carp*, to
In the and Con-
tainer for/; — fonfrnv^, P>
were with worldwide
requirements^ has on
38 The governmentii of of 0ur (*xpn\s^*»d
their strong dfsapprovml of of HH cii*mc«i-
ntrated bj th« in of th«* CJavurniw^nt
of the Uni^i Kii^dom, Uie of the Kur^j*t*an
Communities (Bi*1^iuni, DMunarL, G^rmanj, Italy,
Luxembourg* the Portugal mud and the* 4'<i\»'nimt*ut^
of Ai»tratiiif Am^la^ and
la» 0w to m of
the tax. See, a. fn in No, 92 at
to A-12S, A-127 to to «^e ateci p, from
Seo^etoy of to rv»il.ui*'ji:w
(Jan, SO, {**T1i« D»*par tnir*nt haa ciiplomatir
complaining mbowt uae of rite of
from virtually every {n the world/*). Th« Par-
Uament has goaa fiirtherf if
implemented, tax c*ori>orati<in?- 0n
from toair United Stt Act pt 2,
ch* lf §64» md sefcu 13, 15 (Eng>)» in awl
Act pt 18, eh* 8, and aek 80f 21
Cite as: 512 U. S. 298 (1994) 325
Opinion of the Court
of multinational enterprises.23 The numerous bills intro-
duced have varied, but all would have prohibited the Califor-
nia reporting requirement here challenged. One group of
bills would have prohibited States using combined reporting
from compelling inclusion, in the combined reporting group,
of corporate affiliates whose income was derived substan-
28 Pursuant to §201 of Pub. L. 86-272, 73 Stat. 556, in which Congress
undertook to "make Ml and complete studies of all matters pertaining to
the taxation ... of interstate commerce ... by the States," the House
Committee on the Judiciary held extensive hearings on the (primarily do-
mestic) implications of alternative tax apportionment schemes. See State
Income Taxation of Mercantile and Manufacturing Corporations: Hearings
before the Special Subcommittee on State Taxation of Interstate Com-
merce of the House Committee on the Judiciary, 87th Cong., 1st Sess.
(1961). The Subcommittee's comprehensive final Report recommended,
inter alia, that "formula apportionment be used as the sole method of
dividing income among the States for tax purposes," State Taxation of
Interstate Commerce: Report of the Special Subcommittee on State Taxa-
tion of Interstate Commerce, House Committee on the Judiciary, H. R.
Rep. No. 952, 89th Cong., 1st Sess., 1144 (1965), and that States be required
to refrain from taxing any foreign income exempt from federal taxation.
Id., at 1135. Congress, however, enacted no legislation embodying these
recommendations.
Congress continued to study and debate this matter over the next two
decades. See Interstate Taxation Act, H. R. 11798 and Companion Bills:
Hearings before the Special Subcommittee on State Taxation of Interstate
Commerce of the House Committee on the Judiciary, 89th Cong., 2d Sess.
(1966); State Taxation of Interstate Commerce: Hearings before the Sub-
committee on State Taxation of Interstate Commerce of the Senate Com-
mittee on Finance, 93d Cong., 1st Sess. (1973); Interstate Taxation, S. 1273:
Hearings before the Senate Committee on the Judiciary, 95th Cong., 1st
and 2d Sess. (1977-1978); Recommendations of the Task Force on Foreign
Source Income, House Committee on Ways and Means, 95th Cong., 1st
Sess. (Comm. Print 1977); State Taxation of Foreign Source Income, 1980:
Hearings on H. R. 5076 before the House Committee on Ways and Means,
96th Cong., 2d Sess. (1980); State Taxation of Interstate Commerce and
Worldwide Corporate Income, Hearings on S. 983 and S. 1688 before the
Subcommittee on Taxation and Debt Management Generally of the Senate
Committee on Finance, 96th Cong., 2d Sess. (1980); Unitary Taxation:
Hearing before the Subcommittee on International Economic Policy of the
Senate Committee on Foreign Relations, 98th Cong., 2d Sess. (1984).
326 BARCLAYS BANK PLC u FRANCHISE TAX BD. OF CAL.
Opinion of the Court
tially from sources outside the United States.24 Another set
would have barred the States from requiring taxpayers to
report any income that was not subject to income
tax;26 thus, ^foreign source income11 of foreign corporations
ordinarily would not be reported. See aupm, at 306, n. 5.
None of these bills, however, was enacted,
The history of Senate action on a United States/United
Kingdom tax treaty, to which we referred in Container
Corp.* see 463 IX S., at 196, reinforces our conclusion that
Congress implicitly has the States to the
worldwide combined reporting method. As originally nego-
tiated by the President, this treaty — known as the Conven-
tion for Avoidance of Double Taxation and the Prevention of
Fiscal Evasion with Respect to Taxes on Income Capital
Gains— would have precluded from requiring that
United Kingdom-controlled use com-
bined reporting to compute their income. Art,
9(4), 31 U. a T. 5670, 56T7f T. L A, S. No, The
B. &, 8. 1245, 93d Cong., 1st S, 2178* 95th Cong., 1st
(1978); H. EL 6146, 96th Cong,, 2d H. R. Cong.,
2d a 9061, 98th Cong:*, 2d 8, 1074, 99th Cong.,
1st H. R, 99th Cong., 1st Sens, a 1139, 101st
Cong,, 1st Seas* a 1776, 102d 1st
«, g., H. ft 11798, 89tfa lit H. R, 96th
Cong,, 1st Sens. (1&70); a 96th Cong,, lit H, R,
96th Cong*f 2d See*. R it 1968, »7th l8t H, R.
96th Cong* 1st a 122§f 96th 1st
S* 1113, 99th Cong., 1st
88 Article §(4) would provided;
**Except as to thi8 In di>tt*rmining the tax
liability of an enterprise to a or in a
cr oft Con-
tracting State, or not into
account the income, deduetioiw, or of a entar-
pine of the other Contimtteg or of an third
related to any enterprise of the Contemcting (
Cite as: 512 U. S. 298 (1994) 327
Opinion of the Court
rejected this version of the treaty, 124 Cong. Rec. 18670
(1978), and ultimately ratified the agreement, id., at 19076,
"subject to the reservation that the provisions of [Article
9(4)] . . . shall not apply to any political subdivision or local
authority of the United States," id., at 18416. The final ver-
sion of the treaty prohibited state tax discrimination against
British nationals, Art. 2(4), 31 U. S. T. 5671; Art. 24, id., at
5687-568S,27 but did not require States to use separate ac-
counting or water's edge apportionment of income, id., at
5709.
Given these indicia of Congress3 willingness to tolerate
States' worldwide combined reporting mandates, even when
those mandates are applied to foreign corporations and do-
mestic corporations with foreign parents, we cannot conclude
that "the foreign policy of the United States — whose nuances
. . . are much more the province of the Executive Branch and
Congress than of this Court — is [so] seriously threatened,"
Container Corp., 463 U. S., at 196, by California's practice as
to warrant our intervention.28 For this reason, Barclays'
and its amici's argument that California's worldwide com-
bined reporting requirement is unconstitutional because it is
^Article 2(4) provides: "For the purpose of Article 24 (Non-
discrimination), this Convention shall also apply to taxes of every kind
and description imposed by each Contracting State, or by its political sub-
divisions or local authorities."
28 That "federal law has long embodied a preference for the arm's length
method, in the sense that this method is used in computing the federal
income tax liability of multinational corporations," does not render a
State's use of a different method unconstitutional, as the Solicitor General
points out. Brief for United States as Amicus Curiae 17-18 (emphasis in
original), citing Mobil Oil Corp. v. Commissioner of Taxes ofVk, 445 U. S.
426, 448 (1980) ("Concurrent federal and state taxation of income, of
course, is a well-established norm. Absent some explicit directive from
Congress, we cannot infer that treatment of foreign income at the federal
level mandates identical treatment by the States.")*
328 BARCLAYS BANK PLC v. FRANCHISE TAX BD, OF CAL.
Opinion of the Court
likely to provoke retaliatory action by foreign
is directed to the wrong forum. The judiciary is not vested
with power to decide "how to balance a particular risk of
retaliation against the sovereign right of the United States
as a whole to let the States tax as they please/' Id., at 194.
To support its argument that California's worldwide com-
bined reporting method impcrmissibly interferes with the
Federal Government's ability to I4speak with one voice," and
to distinguish Container Corp., Colgate points to a
of Executive Branch actions, statements, and amh*n$ filings,
made both before and after our decision in Container Corp,**
Colgate contends that, taken together, Executive pro-
nouncements constitute a "clear directive" proscrib-
ing States^ use of worldwide combined reporting. Brief for
Petitioner in No- 92-1889, p. 86f quoting fWf ////«•/• Corp., 463
IX a, at 194.
The Executim statements to which how-
ever, cannot perform the for which would
» Sea, *. $, Brief for Petitioner In No, at for Gov-
ernment of United Kingdom as in No, at 10-24;
Brief for Member of European tt ml mi Amiri Curia*
in No. 92-1384, pp. 16-17.
10 Colgate dtes, for example* to
legislation confining to a of
Multinational Ctaixmtf ons, 21 Comp* of Doc. 8,
1986) (statement of by of the
Reagan and Bush to the of and the
Chainn&n of the ^\pn'>-InK the
Gr0vernmant% opposition to n-ixtrtuw, to
No, ft2-188% pp. 9-£7; and of in
Oils Court, arguing that the worldwide r^urtlw vi0*
ktas the dormant Commerce *. gn for **
eta Curme in Chicago & Ca v. Ca» O. T.
1962, Na 81-54% cert ^3 U. S. 1220 1 ias:j i; for
as Awiew Cwri« in PLC v. Jto Bd of
O. T. 1992, No, 92-212, eert denied, 506 U. S, 870
Cite as: 512 U. S. 298 (1994) 329
Opinion of the Court
enlist them. The Constitution expressly grants Congress,
not the President, the power to "regulate Commerce with
foreign Nations." U.S. Const., Art. I, §8, cl. 3. As we
have detailed, supra, at 324-327, and nn. 23-27, Congress
has focused its attention on this issue, but has refrained from
exercising its authority to prohibit state-mandated world-
wide combined reporting. That the Executive Branch pro-
posed legislation to outlaw a state taxation practice, but en-
countered an unreceptive Congress, is not evidence that the
practice interfered with the Nation's ability to speak with
one voice, but is rather evidence that the preeminent speaker
decided to yield the floor to others, Cl Itel Containers Int'l
Corp. v. Huddleston, 507 U. S. 60, 81 (1993) (SCALIA, J., con-
curring in part and concurring in judgment) ("[The Presi-
dent] is better able to decide than we are which state regula-
tory interests should currently be subordinated to our
national interest in foreign commerce. Under the Constitu-
tion, however, neither he nor we were to make that decision,
but only Congress. ").
Congress may "delegate very large grants of its power
over foreign commerce to the President," who "also pos-
sesses in his own right certain powers conferred by the Con-
stitution on him as Commander-in-Chief and as the Nation's
organ in foreign affairs/' Chicago & Southern Air Lines,
Inc. v. Waterman S. S. Corp., 333 U. S. 103, 109 (1948). We
need not here consider the scope of the President's power
to preempt state law pursuant to authority delegated by a
statute or a ratified treaty; nor do we address whether the
President may displace state law pursuant to legally binding
executive agreements with foreign nations81 made "in the
absence of either a congressional grant or denial of authority,
[where] he can only rely upon his own independent powers."
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637
(1952) (Jackson, J., concurring). The Executive Branch ac-
31 See United States v. Belmont, 301 U. S. 324, 331-332 (1937).
380 BARCLAYS PLC r. f K^NrHISL TAX BIX OF OAL.
Opinion of th** Court
s— press and which
Colgate are merely Executive* Branch
communications that policy but the force
of law cannot render Cfallfwniafs otherwise
valid, eonKri^mnnlly condoned, of u«»rM\ud*- combined
reporting/12
* # #
The* Constitution does "'not the judiciary the* over-
seer of our government/** Itomrs it Mnow \\ Kegan, 453
U. 8. 654, 660 (1081), rjucitlng Yiningztmvn & Tub* Co, v.
$a<ry( /; 348 U 8., at 594 (Frankfurter, Jn t^ »Tu*urri:ij' X Hav-
Ing determined the ta\;»;i;**'r; lH*fori* us had an adequate
nexus with the State, -AnrM^ ii!*' eiimhlimtt! n*parting led
to taxation which uJT:«SiHTiminaJoryF
fairly to the -rrv:<n^ pruvlilru! by the State, that
its imposition did not in
- Solicitor a **wh«thi»r a
tax thi* / •-• n,!,,. :/* t« oni*
. . . tht of arc* to
(*vifl«*nti:iry wtight,** a^ <*Mfiri*» li, tint he
tht of m bt* a»-
arr>nlin^ to th^ if In at III!* tht
rlialVnjr***! Hi* not
» oT»j*.i I;ij' iKf* by the* of
to tht RiitJ IH-H" . awl tltt to
0m the n» of
wan not tbf* at if
it In (a iia tut no
g*e Tn 0n th*
the la Ui» Imx I* by
the aufJinrltv, i»r "** -t!:j;/ if t..-*-.- ary, not
Hie Ux f«M»J,raraJ!y for
in Ma p. 7, und In th« a
n-[i»r*:r4i' haii an of
HiTci ii*Tii. Mi, at 9. Wt not thin w
that the f r itHziiw IMP of
r<»portinff d0 in of r**»vr- * aw juif*;»rHw<* in the
Cite as: 512 U. S. 298 (1994) 331
Opinion of SCALIA, J.
we leave it to Congress — whose voice, in this area, is the
Nation's — to evaluate whether the national interest is best
served by tax uniformity, or state autonomy. Accordingly,
the judgments of the California Court of Appeal are
Affirmed.
JUSTICE BLACKMUN, concurring.
Last Term, in Itel Containers Int'l Corp. v. Huddleston,
507 U. S. 60, 85 (1993) (BLACKMUN, J., dissenting), I ex-
pressed my disagreement with the Court's willingness, in
applying the "one voice" test, to "infe[r] permission for [a]
tax from Congress' supposed failure to prohibit it." See also
Wardair Canada Inc. v. Florida Dept. of Revenue, 477 U. S.
1, 18 (1986) (BLACKMUN, J., dissenting). I accordingly would
not rely in the present cases on congressional inaction to
conclude that "Congress implicitly has permitted the States
to use the worldwide combined reporting method." Ante,
at 326. Nevertheless, because today's holding largely is con-
trolled by Container Corp. of America v. Franchise Tax Bd.,
463 U. S. 159 (1983), and because California's corporate fran-
chise tax does not directly burden the instrumentalities of
foreign commerce, see Itel, supra; Wardair, supra; and
Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434
(1979), I agree that the tax does not "impair federal uniform-
ity in an area where federal uniformity is essential," id., at
448. I therefore join the opinion of the Court.
JUSTICE SCALIA, concurring in part and concurring in the
judgment.
I concur in the judgment of the Court and join all of its
opinion except Part IV-B, which disposes of the petitioners'
"negative" Foreign Commerce Clause argument by applying
the "speak with one voice" test of Japan Line, Ltd. v. County
of Los Angeles, 441 U. S. 434 (1979).
As I stated last Term in Itel Containers Int'l Corp. v. Hud-
dleston, 507 U. S. 60, 78 (1993) (opinion concurring in part
832 BARCLAYS PLC r, FK \N< '*HSK BD. OF OAL.
Opinion of OVoNNcm, J.
and concurring in Judgment), 4<! will a self-executing,
^negative* Commerce Clause In two (1)
a law diHcriininat^s against Inter-
[or foreign] coinnu*nv, (2) airnin-f a law that
Is Indistinguishable from a of law previously uncon-
stitutional by this Court." Id., at 78-79 (footnote omitted).
Absent one of these dmanstaiuvs, I will permit the
to employ whatever of thc*y Insofar as
the Commerce Clause in concerned. circumstance
here, the California tax therefore* survives Com-
merce Clause attack,
I am not the Court's opinion which re-
quires no more legislative tci
"Congress implicitly //* /•//>/* W the to a
particular on at 326f will
prove much diftVivnt my approach in Ita
It is, moreover, an unj>n»vement
voice*11 anahrU of opinion
the to the rcinstitutiimalit^
law to the Branch, see 507 II SM at HO (ScAUA, J,,
concurring in concurring In juiltf!m»nt )t opin-
ion the to In a
it to be t-M'msnl by
0?roNNoK, JI-STH*K Joins,
concurring in the jud^rm*nt In <ii>st»!ituig in
1 In In Corp. o/
v, fkc Bd, 463 U 8. 1B9 a«d I
continue to the in
use of worldwide combined reporting In the
of a lu-i'aust* the
and 0n the
tionality of taking corporaf«ron^, Tongn\s< has not
fit to ov<*rri<l<* d(*eislon, 1 the Court that
not be i>v4-rrul*Hl, e£ v,
W4 U.a 2»8f snd that It
Cite as: 512 U. S. 298 (1994) 333
Opinion of O'CONNOR, J.
resolves the constitutional challenge raised by Colgate-
Palmolive. I therefore concur in the judgment in No. 92-
1839. Barclays Bank, on the other hand, is a/oreigw-based
parent company of a multinational corporate group, and our
holding in Container Corp. expressly does not extend to this
situation. See 463 U. S., at 189, n. 26, and 195, n. 32. In my
view, the California tax cannot constitutionally be applied
to foreign corporations. I therefore respectfully dissent in
No. 92-1384.
A state tax on interstate commerce must meet four re-
quirements under our negative Commerce Clause prece-
dents: the tax must be on an activity with a substantial
nexus to the taxing State, it must be fairly apportioned, it
must not discriminate against interstate commerce, and it
must be fairly related to the services provided by the State.
Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 279
(1977). Substantially for the reasons explained by the
Court, see ante, at 311-314, I agree that imposition of the
California tax complies with the four Complete Auto factors.
(I also agree that California's practice of accepting "reason-
able approximations" of the statutorily required financial
data does not violate due process. See ante, at 314-316.)
A state tax on foreign commerce, however, must satisfy two
additional inquiries: "first, whether the tax, notwithstanding
apportionment, creates a substantial risk of international
multiple taxation, and, second, whether the tax prevents the
Federal Government from 'speaking with one voice when
regulating commercial relations with foreign governments.'
If a state tax contravenes either of these precepts, it is
unconstitutional under the Commerce Clause." Japan Line,
Ltd. v. County of Los Angeles, 441 U. S. 434, 451 (1979) (em-
phasis added).
I am in general agreement with the Court, see ante, at
320-329, that the second Japan Line factor— the purported
need for federal uniformity — does not prevent the use of
worldwide combined reporting in taxing foreign corpora-
S34 BARCLAYS PLC r. FliANVHISF TAX Bl). OF CAL.
Opinion of « »'< 'OXNOK. J.
tions. The Congress, not the E \t*eut I\ *• or the Judiciary, has
been given the to comm^m*. tl S. Const,
Art I, §8, ei 3. The Legislature has approv<»<l nor
disapproved the falifornia Although in circum-
stances courts the to for consis-
tency with our Oommi'm* Jurisprudence,
this determination should be on the of the objec-
tive factors outlined in (and, in the foreign
commerce context, the multiple taxation analysis
in Japan not made* and by offi-
cials in the Executive Branch. Ct IM Int'l
Corp. v. 507 U S. 00, (KcAUA, J.f
concurring in part fom'unring in ju<!vi*;rnentX Indeed,
the inconsistent position** by thi* Solicitor Central in
the of to the illus-
trate the of constitutional determinations on
such "evidence/* fompan- EM
cu$ 21-254 far^uin^ the tax
tutionally to tht tax in
tion)f with for us /t////r//>- in
v. r/vn/r///.si Tor O. T. Mo, 92-
212, pp. 9-16 CarKuinp: the imposition cif the
tax on Barclays
But I cannot the n-sohil i«»n of the other
to mul-
tiple taxation. at :tl«-:t2u. of
ita business in the Call-
fornia, of v\or!<hvidt*
ing, of incunu*. aa
a fact "ftTli^rcfc is a of, as mi
double here/* to Pet for in Na 92 i:$84,
p, A-25* This because has
adopted a Is the
method by for-
mula a of fco jurisdictions
where and are
Cite as: 512 U. S. 298 (1994) 335
Opinion of O'CONNOR, J.
higher; to the extent that California is such a jurisdiction
(and it usually will be) the formula inherently leads to double
taxation. And whenever the three factors are higher in Cal-
ifornia, the State will tax income under its formula that
already has been taxed by another country under accepted
international practice.
In Container Corp., we recognized that the California tax
"ha[d] resulted in actual double taxation . . . stem[ming] from
a serious divergence in the taxing schemes adopted by Cali-
fornia and the foreign taxing authorities," and that "the tax-
ing method adopted by those foreign taxing authorities is
consistent with accepted international practice." 463 U. S.,
at 187. We nevertheless held that the tax did not violate
the Japan Line principle. Two of the factors on which we
relied — that the tax was on income rather than property, and
that the multiple taxation was not "inevitable" — carry no
more force today than they did 11 Terms ago, see 463 U. S.,
at 198-201 (Powell, J., dissenting), but they are present here
as well.
We also relied on a third ground to distinguish the tax
upheld in Container Corp. from the tax invalidated in Japan
Line: "[T]he tax here falls, not on the foreign owners of an
instrumentality of foreign commerce, but on a corporation
domiciled and headquartered in the United States. We spe-
cifically left open in Japan Line the application of that case
to 'domestically owned instrumentalities engaged in foreign
commerce/ and . . . this case falls clearly within that reserva-
tion." 463 U* S., at 188-189, quoting Japan Line, supra, at
444, n. 7 (citation omitted). In a footnote, we continued: "We
have no need to address in this opinion the constitutionality
of [the California tax] with respect to state taxation of do-
mestic corporations with foreign parents or foreign corpora-
tions with either foreign parents or foreign subsidiaries."
463 U. S., at 189, n. 26; see also id., at 195, and n. 32. As the
Court recognizes, ante, at 317, and n. 15, Barclays' challenge
to the California tax therefore presents the question we ex-
336 BARCLAYS FIX' r. KK \\"< 'JHSK BI» OF C*AL,
Opinion *)f « »** »»v. V»j;, J,
pressly left open in Container Corp.: It a const it u-
tiona! difference that the multiple* resulting from
California's use of worldwide falls on
a foreign corporation rather a one? In my
view, the is
Japan Lin* where the of
commerce — and analogously, cor|>orat** domicile*-— is for-
eign, the multiple a taxing
scheme may violate* the* Commerce C'laiuu* c*v«*n though the
same* tax would hi1 constitutional a$ to a domestic
corporation. 441 II. S.t at 447-44K When worldwide* com-
bined reporting is to American i-nrjmralf
with foreign aftiliati*^, aa in Corp., attrib-
utable to coinjiunitv will be by (California,
though are to tax In nmnf rii*s.
But in the of the tax on the
tic parent c-nrpriraticni a to full
in the Unitecl the* of its in-
When the ralifnrniu tax m to a corpo-
rate with Eftd affiliate, of
the of the rompanu*.- bt* by
ralifornia. ^e of the tax in on a
c:orpuratii»n, thtt its
jr«*vi*rnm*'iit^ Is to tax the
In my the are prohibit^!
greKHional by the (%injnu»nv
from a of f«*rauy*- it not
conform to international practice, in
Won of corpfjrations, it be a
"leavo[sj California to a I1*»lawarc»
corpc»ration in of an o\vm*as ror}M»ration,tf Ciwlnhirr
Corp., 46S U S.f at 20S lf dissenting), but the
for is obvious,
era to the at the and
that f^r^i^in do eniov*
Cite as: 512 U. S. 298 (1994) 337
Opinion of O'CONNOR, J.
If California's tax results in intolerable double taxation of
domestic corporations, those companies can seek redress
through the normal channels. Cf. Minnesota v. Clover Leaf
Creamery Co., 449 U. S. 456, 473, n. 17 (1981); Raymond
Motor Transp., Inc. v. Rice, 434 U. S. 429, 444, n. 18 (1978).
It is all too easy, however, for the state legislature to fill the
State's coffers at the expense of outsiders.
Most of the United States' trading partners have objected
to California's use of worldwide combined reporting. See
Demarche from Danish Embassy, on behalf of Governments
of European Community (Mar. 26, 1993) ("The views of the
EC Member States on worldwide unitary taxation are well
known to the United States Government. All Member
States have expressed their strong opposition to [the Califor-
nia] tax in a number of diplomatic communiques to the
United States Government from 1980 to the present date");
Demarche from Belgian Embassy, on behalf of Governments
of Member States of European Community and of Australia,
Austria, Canada, Finland, Japan, Norway, Sweden, and Swit-
zerland (Sept. 23, 1993). At least one country has already
enacted retaliatory legislation. See Brief for Government
of United Kingdom as Amicus Curiae 19-23. Moreover, the
possibility of multiple taxation undoubtedly deters foreign
investment in this country. See Brief for Member States
of European Communities et al. as Amid Curiae 14-16.
These adverse consequences, which affect the Nation as a
whole, result solely from California's refusal to conform its
taxing practices to the internationally accepted standard.
Unlike the Court, see ante, at 319, 1 would not dismiss these
difficulties solely by relying on our observation in Container
Corp. that "it would be perverse, simply for the sake of
avoiding double taxation, to require California to give up one
allocation method that sometimes results in double taxation
in favor of another allocation method that also sometimes
results in double taxation." 463 U. S., at 193. In addition
to being factually incorrect, see id., at 199, n. 1 (Powell, J.,
338 BARCLAYS BANK PLC v. FRANCHISE TAX BD. OF GAL.
Opinion of O'CONNOR, J.
dissenting), our discussion of alternatives in Container Corp.
proceeded from the well-established proposition that States
need not conform their taxing practices to those of their
neighbors, at least so far as domestic commerce is concerned.
See, e. g.9 Moorman Mfg. Co. v. Bair, 437 U. S. 267, 277-281
(1978), Multiple taxation of domestic companies is avoided,
to the extent necessary, by the fair apportionment require-
ment. See Container Corp., supra, at 185; General Motors
Corp. v. Washington, 377 U. S. 436, 440 (1964).
But in Japan Line we squarely rejected the argument that
the same principle applies to taxes imposed on foreign-
owned instrumentalities:
"[N]either this Court nor this Nation can ensure full ap-
portionment when one of the taxing entities is a foreign
sovereign. If an instrumentality of commerce is domi-
ciled abroad, the country of domicile may have the right,
consistently with the custom of nations, to impose a tax
on its full value. If a State should seek to tax the same
instrumentality on an apportioned basis, multiple taxa-
tion inevitably results. . . . Due to the absence of an
authoritative tribunal capable of ensuring that the ag-
gregation of taxes is computed on no more than one full
value, a state tax, even though fairly apportioned' to
reflect an instrumentality's presence within the State,
may subject foreign commerce to the risk of a double
tax burden to which [domestic] commerce is not
exposed, and which the commerce clause forbids/1 441
U. S,, at 447-448 (footnote and internal quotation
marks omitted).
In my view, the risk of multiple taxation created by Cali-
fornia's use of worldwide combined reporting — a risk that
has materialized with respect to Barclays — is sufficient to
render the California tax constitutionally infirm. I there-
fore respectfully dissent from the Court's conclusion to the
OCTOBER TERM, 1993 339
Syllabus
REED v. FARLEY, SUPERINTENDENT, INDIANA
STATE PRISON, ET AL.
CERTIORARI TO THE UNITED STATES COURT OP APPEALS FOR
THE SEVENTH CIRCUIT
No. 93-5418. Argued March 28, 1994— Decided June 20, 1994
The Interstate Agreement on Detainers Act (IAD), a compact among 48
States, the District of Columbia, and the Federal Government, provides
that the trial of a prisoner transferred from one participating jurisdic-
tion to another shall commence within 120 days of the prisoner's arrival
in the receiving State, Article IV(c), and directs dismissal with prejudice
when trial does not occur within the time prescribed, Article V(c). Peti-
tioner Reed was transferred in April 1983 from a federal prison in Indi-
ana to state custody pursuant to an IAD detainer lodged by Indiana
officials. Trial on the state charges was originally set for a date 19
days beyond the 120-day IAD period and was subsequently postponed
for an additional 35 days. Although Reed's many and wide-ranging
pretrial motions contained a few general references to the IAD time
limit, he did not specifically object to his trial date until four days after
the 120-day period expired. The trial court denied Reed's petition for
discharge on the grounds that the judge had previously been unaware
of the 120-day limitation and that Reed had not earlier objected to the
trial date or requested a speedier trial. Reed then successfully moved
for a continuance to enable him to prepare his defense. After his trial
and conviction in October 1983, Reed unsuccesfully pursued an appeal
and sought postconviction relief in Indiana's courts. He then petitioned
for a federal writ of habeas corpus under 28 U. S. C. §2254. The Dis-
trict Court denied relief, and the Court of Appeals affirmed.
Held: The judgment is affirmed.
984 R 2d 209, affirmed.
JUSTICE GINSBURG delivered the opinion of the Court with respect
to Parts I, III, and all but the final paragraph of Part IV, concluding
that a state court's failure to observe IAD Article IV(c)'s 120-day rule
is not cognizable under §2254 when the defendant registered no objec-
tion to the trial date at the time it was set, and suffered no prejudice
attributable to the delayed commencement. Because Reed failed to
make the requisite showing of prejudice, he cannot tenably maintain
that his Sixth Amendment speedy trial right was violated. See Barker
v. Wingo, 407 U. S. 514, 530. Reed's petition is properly considered
under the "fundamental defect" standard set forth in Hill v. Umted
340 REED u FARLEY
Syllabus
States, 368 U. S. 424, 428. Reed urges that the Hill standard applies
only to federal prisoners under §2255, not to state, prisoners under
§2254, This Court's decisions have recognized, however, that, at least
where only statutory violations are at issue, §§2264 and 2256 mirror
each other in operative effect, see Davis v. United States 417 U. S. 333,
344; Hill controls collateral review — under both §§ 2254 and 22SS— when
a federal statute, but not the Constitution, is the for the postconvic-
tion attack. See, e. ff*y Stone v. Powell, 428 U, S. 466, 477, n, 10. There
is no reason to afford habeas review to a state prisoner like Reed, who
let a time clock run without alerting the trial court, yet deny collateral
review to a federal prisoner similarly situated. Pp. 341-346, 358-355.
JUSTICE GINSBXJRG, joined by THE CHIEF JUSTICE and JUSTICE
O'CONNOR, concluded in Part II and the final paragraph of Part IV that
habeas review is not available to check the trial court's failure to comply
with Article IV(e). That failure does not qualify aa a "fundamental de-
fect wMeh inherently results in a complete misearriap* of justice, [ojr an
omission inconsistent with the rudimentary demands of fair procedure/'
Hill, 368 U. S,, at 428. When a defendant obscures Article IV(efs time
prescription and avoids clear objection until the clock run, an unwit-
ting judicial slip of the kind Involved here ranks with similar noneomtl-
tutional lapses that sure not cognisable in a postconviction proceeding.
See, e. g»f id, at 429. Because Reed did not alert the trial judge to the
120-day period until four days after the period expired, the Court has
no cause to consider whether an omission of the kind contemplated in
Hill would occur if a state court, presented with a timely to set
a trial date within the IAD's 120-day period, nonetheless refused to
comply with Article IV(c). The reservation of that question, together
with the I AD's status as both federal kw the law of Indians* mutes
Reed% concern that courts might be hostile 10 the taw here
at stake. Pp. 347-862, 8S§*
JUSTICE SCALIA, joined by THOMAS, the "funda-
mental defect" test of Hill v* 868 U. S, 424, 428, Is the
appropriate standard for evaluating
both §12254 and but concluded that the in
broader than the principal opinion The of nonconatitu*
tional procedural rights that are inherently to avoid Ma eom-
plete ndsearrkifa of justice," or numbered among "the rudimentary de-
mands of Mr procedtire/1 is no doubt a small one, if it is not a null set
If there was ever a technical rule, it is the 120-day limit net forth in
Article IV(c) of the Interstate Agreement on Detainer!. Declining to
state the obvious produces eonftision: Viotetion of
intentional or unintentional, is no for
Cite as: 512 U. S. 339 (1994) 341
Opinion of the Court
GINSBURG, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, III, and all but the final
paragraph of Part IV, in which REHNQUIST, C. J., and O'CONNOR, SCALJA,
and THOMAS, JJ., joined, and an opinion with respect to Part II and the
final paragraph of Part IV, in which REHNQUIST, C. J., and O'CONNOR, J.,
joined. SCALIA, J., filed an opinion concurring in part and concurring in
the judgment, in which THOMAS, J., joined, post, p. 355. BLACKMUN, J.,
filed a dissenting opinion, in which STEVENS, KENNEDY, and SOUTER, JJ.,
joined, post, p. 359.
Jerold S. Solovy argued the cause for petitioner. With
him on the briefs were Barry Levenstam, Ellen R. Kordik,
and Douglas A. Graham.
Arend J. Abel, Deputy Attorney General of Indiana, ar-
gued the cause for respondents. With him on the brief were
Pamela Carter, Attorney General, and Matthew R. Gutwein,
Wayne E. Uhl, and Suzann Weber Lupton, Deputy Attor-
neys General.*
JUSTICE GINSBURG announced the judgment of the Court
and delivered the opinion of the Court with respect to Parts
I, III, and all but the final paragraph of Part IV, and an
opinion with respect to Part II and the final paragraph of
Part IV, in which THE CHIEF JUSTICE and JUSTICE O'CON-
NOR join.
The Interstate Agreement on Detainers Act (IAD), 18
U. S. C. App. § 2, is a compact among 48 States, the District
of Columbia, and the Federal Government. It enables a par-
ticipating State to gain custody of a prisoner incarcerated in
another jurisdiction, in order to try him on criminal charges.
Article IV(c) of the IAD provides that trial of a transferred
prisoner "shall be commenced within one hundred and
twenty days of the arrival of the prisoner in the receiving
State, but for good cause shown in open court, . . . the court
* Solicitor General Days, Assistant Attorney General Harris, Deputy
Solicitor General Bryson, and Richard H. Seamon filed a brief for the
urcrmor affirmance.
342 REED u PAELEY
Opinion of the Court
having jurisdiction of the matter may grant any necessary or
reasonable continuance/' IAD Article V(c) states that when
trial does not occur within the time prescribed, the charges
shall be dismissed with prejudice.
The petitioner in this case, Orrin Scott Reed, was trans-
ferred in April 1983 from a federal prison in Indiana to state
custody pursuant to an IAD request made by Indiana offi-
cials. Reed was tried in October of that year, following
postponements made and explained in his presence in open
court, Reed's petition raises the question whether a state
prisoner, asserting a violation of IAD Article I V(c)'s 120-day
limitation, may enforce that speedy trial prescription in a
federal habeas corpus action under 28 U. S. C. §2254.
We hold that a state court's failure to observe the 120-day
rule of IAD Article IV(c) is not cognizable under §2254 when
the defendant registered no objection to the trial date at the
time it was set, and suffered no prejudice attributable to the
delayed commencement. Accordingly, we affirm the judg-
ment of the Court of Appeals,
I
In December 1982, while petitioner Reed was serving
time in a Terre Haute, Indiana, federal prison, the State of
Indiana charged him with theft mid habitual offender status.
Indiana authorities lodged a detainer1 Reed and, on
April 27, 1983, took custody of him. The 120-day rale of
IAD Article IV(c) thus instructed that, absent any contin-
uance, Reed's trial was to commence on or before August
25, 198S,
At two pretrial conferences, one on June 27? the other on
August 1, the trial judge discussed with Reed (who chose to
represent himself) and the prosecutor the number of days
needed for the trial and the opening date* At the June 27
1 A detainer is aa request filed by a oritoiiMa with the
institution in which a prisoner is Incarcerated, asking . , . either to hold
Cite as: 512 U. S. 339 (1994) 343
Opinion of the Court
conference, the court set a July 18 deadline for submission
of the many threshold motions Reed said he wished to file,
and September 13 as the trial date. That trial date ex-
ceeded IAD Article IV(c)'s 120-day limit, but neither the
prosecutor nor Reed called the IAD limit to the attention of
the judge, and neither asked for a different trial date. Reed
did indicate a preference for trial at a time when he would
be out of jail on bond (or on his own recognizance); he in-
formed the court that he would be released from federal
custody two weeks before September 13, unless federal
authorities revoked his "good days" credits, in which case
he would be paroled on September 14, App. 39; see id.,
B,t 76.
At the August 1 pretrial conference, Reed noted his immi-
nent release from federal custody and asked the court to set
bond, IdL, at 76-79. In response, the court set bond at
$25,000. Also, because of a calendar conflict, the court reset
the trial date to September 19. Id, at 79-81.2 Reed in-
quired about witness subpoenas and requested books on pro-
cedure, but again, he said nothing at the conference to alert
the judge to Article IV(c)'s 120-day limit, nor did he express
any other objection to the September 19 trial date.
Interspersed in Reed's many written and oral pretrial mo-
tions are references to IAD provisions other than Article
IV(c). See id, at 28-31, 44 (alleging illegality of transfer
from federal to state custody without a pretransfer hearing);
id, at 46 (asserting failure to provide hygienic care in viola-
tion of IAD Article V), Reed did refer to the IAD prescrip-
tion on trial commencement in three of the written motions
he filed during the 120-day period; indeed, one of these mo-
tions was filed on the very day of the August 1 pretrial con-
ference.3 In none of the three motions, however, did Reed
posted bond by corporate surety on September 28 and was there-
upon released from pretrial incarceration* See App. 148*
»See Petition for Belief of Violations (filed July 26, 1988), id., at 66 (re-
questing that "trial be held within the legal guidelines of the [IAD]" and
asserting that the State was "forcing [him] to be tried beyond the limits
344 REED v. FARLEY
Opinion of the Court
mention Article IV(c) or the September 13 trial date pre-
viously set. In contrast, on August 29, four days after the
120-day period expired, Reed presented a clear statement
and citation. In a "Petition for Discharge/' he alleged that
Indiana had failed to try him within 120 days of his transfer
to state custody, and therefore had violated Article IV(c);4
consequently, he urged, the IAD mandated his immediate
release.5 The trial judge denied the petition, explaining:
"Today is the first day I was aware that there was a
120 day limitation on the Detainer Act, The Court
made its setting and while there has been a request for
moving the trial forward, there has not been any speedy
trial request filed, nor has there been anything in the
nature of an objection to the trial setting, but only an
urging that it be done within the guidelines that have
been set out/' Id, at 113-114.
The morning trial was to commence, September 19, Reed
filed a motion for continuance, saying he needed additional
time for trial preparation* Id, at 128. A newspaper article
published two days earlier had listed the names of persons
as set forth in the [IADH; Petition for Revision of Pre-trial Procedure
and Relief of "Violations (filed Aug. 1, 1968), id., at 88 of
charges, referring, inter alia, to <4the limited time left for trial within the
laws1"*); Petition for Subpoena for Depositions upon Oral Examination, and
for Production of Documentary Evidence Aug. 11, 1983), &, at 91
(requesting action "as soon as possible due to approaching
Detainer Act time Emits**)*
4 Id, at 94, Specifically, Reed wrote: That petitioner is
contrary to Indiana law and procedure: 35-4$-l,0~4y 4(c) * . , trial
shall be commenced within one hundred twenty (120) of arrival of
the prisoner in the receiving state * . * .**
sThe prosecutor, in response, pointed out that Article IV(c)
"any necessary or reasonable continuance, " and that had not ob-
jected at the time the trial court set the date, /d, at 113, He ex-
pressed confusion about the effect of the 120-day rate and its
to the 180-day time limit prescribed by a different IAD provision, /<!, at
114; see n. 6, infra.
Cite as: 512 U. S. 339 (1994) 345
Opinion of the Court
called for jury duty and the 1954 to 1980 time frame of Reed's
alleged prior felony convictions. Concerned that the article
might jeopardize the fairness of the trial, the judge offered
Reed three options: (1) start the trial on schedule; (2) post-
pone it for one week; or (3) continue it to a late October date.
Reed chose the third option, id., at 134, 142, and the trial
began on October 18; the jury convicted Reed of theft, and
found him a habitual offender. He received a sentence of 4
years in prison on the theft conviction, and 30 years on the
habitual offender conviction, the terms to run consecutively.
The Indiana Supreme Court affirmed the convictions.
Reed v. State, 491 N. E. 2d 182 (1986). Concerning Reed's
objection that the trial commenced after the 120-day period
specified in IAD Article IV(c), the Indiana Supreme Court
stressed the timing of Reed's pleas in court: Reed had vigor-
ously urged at the August 1 pretrial conference other alleged
IAD violations (particularly, his asserted right to a hearing
in advance of the federal transfer to state custody), but he
did not then object to the trial date. Id., at 184-185; see
App. 67-74. "The relevant times when [Reed] should have
objected were on June 27, 1983, the date the trial was set,
and August 1, 1983, the date the trial was reset," the Indiana
Supreme Court concluded. 491 N. E. 2d, at 185.
Reed unsuccessfully sought postconviction relief in the In-
diana courts, and then petitioned under 28 U. S. C. § 2254 for
a federal writ of habeas corpus. The District Court denied
the petition. Examining the record, that court concluded
that "a significant amount of the delay of trial is attributable
to the many motions filed ... by [Reed] or filed on [Reed's]
behalf"; delay chargeable to Reed, the court held, was
excludable from the 120-day period. Reed v. Clark, Civ.
No. S 90-226 (ND Ind., Sept 21, 1990), App. 195-196.
The Court of Appeals for the Seventh Circuit affirmed.
Reed v. Clark, 984 F. 2d 209 (1993). Preliminarily, the Court
of Appeals recognized that the IAD, although state law, is
also a "law of the United States" within the meaning of
346 REED v. FARLEY
Opinion of the Court
§2254(a). /d, at 210. Nonetheless, that court held collat-
eral relief unavailable because Reed's IAD speedy trial ar-
guments and remedial contentions had been considered and
rejected by the Indiana courts. Stone v. Powell, 428 U. S.
465 (1976), the Court of Appeals concluded, "establishes
the proper framework for evaluating claims under the IAD,"
984 R 2d, at 213. In Stone, this Court held that the exclu-
sionary rule, devised to promote police respect for the
Fourth Amendment rights of suspects, should not be applied
on collateral review unless the state court failed to consider
the defendant's arguments. We granted certiorarif 510 IX S.
963 (1993), to resolve a conflict among the Courts of Appeals
on the availability of habeas review of IAD speedy trial
claims.6
®The IADfs other speedy trial provision. Article IIKa), rtquires that a
prisoner against whom a detainer has been be tried within 180
days of the prosecuting State's receipt of the pr&oner's
speedy disposition of the charges. Pex v, Mirhiynit, 607 U S, 43 (1993).
The Seventh Circuit^ rationale is one of approaches taken by
Courts of Appeals addressing the availability of ravitw for viola-
tions of Articles IV(c) and III(a), courts relief without
regard to whethar the petitioner alerted the trial court to the !ADfB
speedy trial provisions, In this IAD
speedy trial claims are never cogninble undtr §2254, IAD
trial violations do not constitute a "fundamental which Inherently
results in a complete of justice," Mill v.
368 U S, 424, 428 See, *. f.# v* PCI
947 R 2d 43, 44-4S (CA2 fptr curiam); v, 816 F. 2d
556, (CA1 applying the
said §2264 is not available for failure to IAD .specifica-
tions unless the petitioner *. g,9 v.
AMbamcb, 846 R 2d 1866, 135U- ia»») (CA11 K^rr v, ?S7
R 2d 604, 607 (CA4 Still the of
IAD speedy trial contentions in
*g.t v# 988 R 2d 1882
Court's grant of the writ, where court to comply with IAD
Article IH(a) in spite of petitioner's for with
the 180-day rule); Cbc% v. Morris, 101, 108
ing to District Court for resolution of fiustual over
Cite as: 512 U. S. 339 (1994) 347
Opinion of GiNSBURG, J.
II
A state prisoner may obtain federal habeas corpus relief
"only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States." 28
U. S. C. § 2254(a) (emphasis added). Respondent Indiana ini-
tially argues that the IAD is a voluntary interstate agree-
ment, not a "la[w] ... of the United States" within the mean-
ing of §2254(a). Our precedent, however, has settled that
issue: While the IAD is indeed state law, it is a law of the
United States as well. See Carchman v. Nash, 473 U. S.
716, 719 (1985) (§2254 case, holding that the IAD "is a
congressionally sanctioned interstate compact within the
Compact Clause, U. S. Const., Art. I, § 10, cl. 3, and thus
is a federal law subject to federal construction"); Cuyler v.
Adams, 449 U. S. 433, 438-442 (1981) ("congressional consent
transforms an interstate compact . . . into a law of the
United States").
The Court of Appeals recognized that the IAD is both a
law of Indiana and a federal statute. 984 F. 2d, at 210.
Adopting Stone v. Powell, 428 U. S. 465 (1976), as its frame-
work, however, that court held relief under § 2254 unavail-
able to Reed. 984 F. 2d, at 213. Stone holds that a federal
court may not, under § 2254, consider a claim that evidence
from an unconstitutional search was introduced at a state
prisoner's trial if the prisoner had "an opportunity for full
and fair litigation of [the] claim in the state courts." 428
U. S., at 469. Our opinion in Stone concentrated on "the
nature and purpose of the Fourth Amendment exclusionary
rule." Id., at 481. The Court emphasized that its decision
confined the exclusionary rule, not the scope of §2254
generally:
petitioner had been tried within Article IV(c)'s 120-day limit); United
States ex rel Esola v. Groomes, 520 R 2d 830, 839 (CA3 1975) (remanding
to District Court for determination on whether state trial court had
granted continuance for good cause pursuant to Article IV(c)).
348 REED m FARLEY
Opinion of GINSBURG, J.
"Our decision today is not concerned with the scope of
the habeas corpus statute as authority for litigating con-
stitutional claims generally. We do reaffirm that the
exclusionary rule is a judicially created remedy rather
than a personal constitutional right, „ „ . and we empha-
size the minimal utility of the rule when sought to be
applied to Fourth Amendment claims in a corpus
proceeding/' /&, at 495f n. 37 (emphasis in original).
We have "repeatedly declined to extend the rule in Stone
beyond its original bounds," Withrow v. WilUtnns* 507 U. S,
680, 687 (1993) (holding that not apply to a state
prisoner's claim that his conviction on ob-
tained in violation of the set out in Mini Hfta v,
Arizona, 384 II S. 436 (1966)).7 Because precedent already
in place suffices to resolve we do not adopt the
Seventh Circuit's rationale.
We have stated that review Is to cheek
violations of federal when the as "a fun-
damental defect which inherently in a complete mis-
carriage of justice [or] an omission with the rudi-
mentary demands of fair procedure/1 Hill v,
868 U. 3. 424, 428 (1962); accord, v.
441 U S. 780, 783 (1979); v. 417 U, &
333, 346 (1974), The IAD's pur^se—providing a nationally
uniform means of transfeiring prisoners jurisdic-
tions—can be effectuated only by nationally inter-
pretation. See 984 F. 2d, at 214 IRipplt*, lf
denial of rehearing in bane). the argument that
7 See also v. Aforr/jw//f 47? U* S. .'WW, 375 :*77
does not bar review of claim of of
based on counsel's feilioune to file a timely motion); v,
Mitchell, 443 U, S. 545, to to
protection daim of discrimination In of jury
foreman); Jacfmon v* 4M U. & S07f dots
not bar habeas review of of of
supporting conviction)*
Cite as: 512 U. S. 339 (1994) 349
Opinion of GlNSBURG, J.
the compact would be undermined if a State's courts resisted
steadfast enforcement, with total insulation from §2254 re-
view, is not without force. Cf. Stone v. Powell, 428 U. S., at
526 (Brennan, J., dissenting) (institutional constraints pre-
clude Supreme Court from overseeing adequately whether
state courts have properly applied federal law). This case,
however, gives us no cause to consider whether we would
confront an omission of the kind contemplated in Hill,
Timmreck, or Davis, if a state court, presented with a timely
request to set a trial date within the IAD's 120-day period,
nonetheless refused to comply with Article IV(c).
When a defendant obscures Article IV(cys time prescrip-
tion and avoids clear objection until the clock has run, cause
for collateral review scarcely exists. An unwitting judicial
slip of the kind involved here ranks with the nonconstitu-
tional lapses we have held not cognizable in a postconviction
proceeding. In Hill, for example, a federal prisoner sought
collateral relief, under 28 U. S. C. §2255,8 based on the trial
court's failure at sentencing to afford him an opportunity to
make a statement and present information in mitigation of
punishment, as required by Rule 32(a) of the Federal Rules
of Criminal Procedure. The petitioner, however, had not
sought to assert his Rule 32(a) rights at the time of sentenc-
ing, a point we stressed:
"[W]e are not dealing here with a case where the de-
fendant was affirmatively denied an opportunity to
speak during the hearing at which his sentence was
imposed. Nor is it suggested that in imposing the
sentence the District Judge was either misinformed or
uninformed as to any relevant circumstances. Indeed,
there is no claim that the defendant would have had
anything at all to say if he had been formally invited
to speak." 368 U. S., at 429.
8 The text of §2255, in relevant part, is set out at n. 12, infra.
350 n
Opinion of J.
"{W]heu all is is a to with the
formal requirements" of we relief
is not available,11 Ibid. we left the question
whether "[collateral] be available If a violation
of Rule in the of aggravating
circumstances. f f Ib id.
Hill controlled our in v* Tiwmreck,
441 IX S. 780 (1979), a prisoner collat-
eral review, under §2B*5f3t to set a ronvirfion on
a guilty The complainant in T'*»nnrcrk that
the judge who his to inform him, in viola-
tion of Rule 11 of the of Criminal Procedure,
that he a mandatory poslinrareeratum parole
term. We the collateral uK-ervmg the
violation of 11 and did not "resul£t) in
a miscarriage or in a proceeding 'incon-
sistent with the rudimentary of procedure/"
/d, at 784, Hill, &, at 428. flA8 in Hill? we
found it unnecessary to "f post conviction)
relief would be avuilahl** if a of 11 occurred in
the aggravating circumstances." 441 U. S*f
at
"aKKnivatln^ cirnin>sta»cosff
rcmlering "'the for the by the writ of
. , . apparent/" 368 U, SLf at 428» quot-
ing v, 806 U, S* 19f 2? had
two to the In if ha
his fco on or 26,
He let both opportunities by. At the hearings
at which the set and rescheduled, on 27
and lf not to the
limit; he a preference* for the his
firom Imprisonment, which to occur
the 120 expired. See at 842* Then, m
the (2a% it n0 to
Cite as: 512 U. S. 339 (1994) 351
Opinion of GINSBURG, J.
IV(c)'s deadline, Reed produced his meticulously precise
"Petition for Discharge.'* See supra, at 344, and n. 4.9
As the Court of Appeals observed, had Reed objected to
the trial date on June 27 or August 1 "instead of burying his
demand in a flood of other documents, the [trial] court could
have complied with the IAD's requirements." 984 F. 2d, at
209-210. The Court of Appeals further elaborated:
"During the pretrial conference of August 1, 1983, Reed
presented several arguments based on the IAD, includ-
ing claims that the federal government should have held
a hearing before turning him over to the state and that
his treatment in Indiana fell short of the state's obliga-
tions under Art. V(d) and (h). Reed did not mention
the fact that the date set for trial would fall outside the
120 days allowed by Art. IV(c). Courts often require
litigants to flag important issues orally rather than bury
vital (and easily addressed) problems in reams of paper,
as Reed did. E. g., Fed. R. Grim. P. 30 (requiring a dis-
tinct objection to jury instructions); c£ Fed. R. Grim. P.
12(b) (a district judge may require motions to be made
orally). It would not have been difficult for the judge
to advance the date of the trial or make a finding on
the record of good cause, either of which would have
satisfied Art. IV(c). Because the subject never came
up, however, the trial judge overlooked the problem."
Id., at 213.
Reed regards the Court of Appeals' description of his liti-
gation conduct, even if true, as irrelevant. He maintains
9 In contrast, the defendant in United States v. Ford, 550 R 2d 732 (CA2
1977), aff'd sub nom. United States v. Mauro, 436 U. S. 340 (1978), made
"[timely and] vigorous protests/' to several Government-requested contin-
uances, yet was tried 13 months after Article IV(c)'s 120-day period ex-
pired. 550 P. 2d, at 735. Reed's trial occurred within two months of the
period's expiration. See infra, at 353.
352 REED u FARLEY
Opinion of the Court
that the IAD dictates the result we must reach, for Article
V(c) directs dismissal with prejudice when Article IV(c)'s
time limit has passed.10 Article V(c) instructs only that "the
appropriate court of the jurisdiction where the indictment
. . . has been pending" — i e., the original trial court — shall
dismiss the charges if trial does not commence within the
time Article IV(c) prescribes. Article V(c) does not address
the discrete question whether relief for violations of the
IAD's speedy trial provisions is available on collateral re-
view. That matter is governed instead by the principles and
precedent generally controlling availability of the great writ.
See id., at 212. Referring to those guides, and particularly
the Hill and Timmreek decisions, we conclude that a state
court's failure to observe the 120-day rule of IAD Article
IV(c) is not cognizable under §2254 when the defendant
registered no objection to the trial date at the time it was
set, and suffered no prejudice attributable to the delayed
commencement*
III
Reed argues that he is entitled to relief because
the IAD's speedy trial provision "effectuates a constitutional
right/' the Sixth Amendment guarantee of a speedy trial
Brief for Petitioner 26* Accordingly, he maintains, the al-
leged IAD violation should be treated as a constitutional vio-
lation or as a "fundamental defect*' satisfying the Hill stand-
ard, not as a mere technical error. argument is
insubstantial for, as he concedes, his constitutional right to a
speedy trial was in no way violated* Tr» of Oral Arg» 7.
10 Article V(c) provides in relevant part:
a[I]n the event that an action on the indictment, information, or complaint
on the basis of which the detainer has teen lodged is not brought to trial
witMn the period provided in article III or article IV hereof, the appro-
priate court of the jurisdiction where the ii^letoent* infbrnurtton, or com-
plaint has been pending shall enter an order the with
prejudice, and any detainer thai-eon to be of any fore©
or effect/"
Cite as: 512 U. S. 339 (1994) 353
Opinion of the Court
Reed's trial commenced 54 days after the 120-day period
expired. He does not suggest that his ability to present a
defense was prejudiced by the delay. Nor could he plausibly
make such a claim.11 Indeed, asserting a need for more time
to prepare for a trial that would be "fair and meaningful,"
App. 128, Reed himself requested a delay beyond the sched-
uled September 19 opening. A showing of prejudice is re-
quired to establish a violation of the Sixth Amendment
Speedy Trial Clause, and that necessary ingredient is en-
tirely missing here. See Barker v. Wingo, 407 U. S. 514, 530
(1972) (four factors figure in the determination of Sixth
Amendment speedy trial claims; one of the four is "prejudice
to the defendant").
IV
More strenuously, Reed argues that Hill and similar deci-
sions establish a standard for federal prisoners seeking relief
under 28 U. S. C. § 2255,12 not for state prisoners seeking re-
lief under § 2254. But it is scarcely doubted that, at least
where mere statutory violations are at issue, "§2255 was
intended to mirror §2254 in operative effect." Davis v.
United States, 417 U. S. 333, 344 (1974). Far from suggest-
ing that the Hill standard is inapplicable to § 2254 cases, our
decisions assume that Hill controls collateral review — under
both §§2254 and 2255— when a federal statute, but not the
11 As the Court of Appeals noted:
"Had Indiana put Reed to trial within 120 days of his transfer from federal
prison, everything would have proceeded as it did. Reed does not con-
tend that vital evidence fell into the prosecutor's hands (or slipped through
his own fingers) between August 26 and September 19, 1983." 984 P. 2d,
at 212.
12 Section 2256 provides in pertinent part:
"A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the sen-
tence was imposed in violation of the Constitution or laws of the United
States, . . . may move the court which imposed the sentence to vacate, set
aside or correct the sentence*"
354 REED u PARLEY
Opinion of the Court
Constitution, is the basis for the postconviction attack. For
example, in Stone v. Powell, a §2254 case, we recalled "the
established rule with respect to noneonstitutional claims" as
follows: a[N]onconstitutional claims . * . can be on col-
lateral review only if the alleged error constituted a '"funda-
mental defect which inherently results in a complete miscar-
riage of justice." '" 428 II S., at 477f n. 10, quoting Davis,
417 U S., at 346, quoting Hill, 368 U S.f at 428. m
Reed nevertheless suggests that we invoked the funda-
mental defect standard in Hill and Timmreck for this sole
reason: "So far as conviction in courts
are concerned, the general rule is that the writ of
corpus will not be allowed to do service for an appeal/9
Sunal v. Large, 332 U. S. 174, 178 (1947) (emphasis added).
The same "general rule/' however, applies to §2254. Where
the petitioner — whether a or federal prisoner — failed
properly to raise his claim on direct review, the writ is avail-
able only if the petitioner establishes "cause*1 for the waiver
and shows "actual prejudice resulting from the . . .
violation/' Wainwright v. 433 U, S* 72, 84 (1977); id,
at 87.
We see no reason to afford review to a pris-
oner like Reed, who let a time clock run without alerting the
trial court, yet deny collateral review to a prisoner
similarly situated. See v. 426 U. S. 686,
542 (1976) ('"Plainly the interest in finality is the with
regard to both federal and . . . is no
mSee also United % 442 U, a 178 (1979), in which we
reiterated that the Hill standard governs of all of
federal statutory errorf citing
"[UJntess the cMm alleges a lade of jurisdiction or oonstltutioittl error,
the scope of collateral attack has remained fer limited. v*
Powell, 428 U & 465, 477, nu 10, The Court haa m of
law does mot provide a for collateral attack the nrror
constituted % fkmdameoital defect which inherently in a
miscarriage of justice/ " 442 U, a, at 185, quoting Mill, 888 U. S.t *t 428,
Cite as: 512 U. S. 339 (1994) 355
Opinion of SCALIA, J.
reason to ... give greater preclusive effect to procedural
defaults by federal defendants than to similar defaults by
state defendants/ ") (quoting Kaufman v. United States, 394
U. S. 217, 228 (1969)); see also United States v. Frady, 456
U. S. 152, 167-168 (1982) (collateral review of procedurally
defaulted claims is subject to same "cause and actual preju-
dice" standard, whether the claim is brought by a state pris-
oner under § 2254 or a federal prisoner under § 2255).
Reed contends that the scope of review should be broader
under § 2254 than under § 2255, because state prisoners, un-
like their federal counterparts, have "had no meaningful op-
portunity to have a federal court consider any federal claim. "
Brief for Petitioner 34. But concern that state courts might
be hostile to the federal law here at stake is muted by two
considerations. First, we have reserved the question
whether federal habeas review is available to check viola-
tions of the IAD's speedy trial prescriptions when the state
court disregards timely pleas for their application. See
supra, at 349. Second, the IAD is both federal law and the
law of Indiana. Ind. Code §35-33-10-4 (1993). As the
Court of Appeals noted: "We have no more reason to suppose
that the Supreme Court of Indiana seeks to undermine the
IAD than we have to suppose that it seeks to undermine any
other law of Indiana." 984 F. 2d, at 211.
For the reasons stated, the judgment of the Court of
Appeals is
Affirmed,
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring in part and concurring in the judgment.
I join all the Court's opinion except Part II, and the last
paragraph of Part IV (which incorporates some of the analy-
sis of Part II). I thus agree that the "fundamental defect"
test of Hill v. United States, 368 U. S. 424, 428 (1962), is the
356 REED n FARLEY
Opinion of SCAUA, J.
appropriate standard for evaluating statutory viola-
tions under both §§2254 and see at 352-354, but
I disagree with what to me (in Part II) too parsimoni-
ous an application of that standard.
I
This Court has long applied equitable limitations to nar-
row the broad of jurisdiction. See
Withrow v. Williams, 50? U a 680, 715-721 (SCAUA,
J.f concurring in part and in part). One of
those limitations of substantive restrictions upon
the type of claim that will be entertained* //ill, for exam-
ple, holds that the claim of a statutory violation will
not be reviewed it wa defect
which inherently in a complete miscarriage of justice
[o]r an omission with the rudimentary demands
of fair procedure1* 368 U* S.f at viola-
tions, at when they do not **in the of other
aggravating circumstances/1 ars not important
enough to invoke the extraordinary jurisdid ion. Id,,
at 429, See also v* Thnn,n*ck. 441 il S. 780,
(1979).
Althomgh JUSTICE GINSHI;KC; concludes that an
unobjected-to violation of the Interstate Agreement on De-
tainers Act (IAD), 18 U, 3* C. not *4 %
defect which inherently In a miscarriage* of
justice for] an inconsistent the rudimentary
demands of fair procedure,* fl she to
that judgment would be 4<if a presented
with a timely to set m the
120-day period, to
IV(e)/f ante, at 348, 349, To the she
conducts an analysis of his IAD
rights. See at The avoided is not
a constitutional and the of it the
is so obvious) mmy invite a misunderstanding of the
Cite as: 512 U. S. 339 (1994) 357
Opinion of SCALIA, J.
The class of procedural rights that are not guaranteed by
the Constitution (which includes the Due Process Clauses),
but that nonetheless are inherently necessary to avoid "a
complete miscarriage of justice/' or numbered among "the
rudimentary demands of fair procedure," is no doubt a small
one, if it is indeed not a null set. The guarantee of trial
within 120 days of interjurisdictional transfer unless good
cause is shown — a provision with no application to prisoners
involved with only a single jurisdiction or incarcerated in one
of the two States that do not participate in the voluntary
IAD compact — simply cannot be among that select class of
statutory rights.
As for Hill and Timmreck's reservation of the question
whether habeas would be available "in the context of other
aggravating circumstances," that seems to me clearly a ref-
erence to circumstances that cause additional prejudice to
the defendant, thereby elevating the error to a fundamental
defect or a denial of rudimentary procedural requirements —
not a reference to circumstances that make the trial judge's
behavior more willful or egregious. I thus think it wrong
to suggest that if only petitioner had not waived his IAD
speedy trial rights by failing to assert them in a timely fash-
ion, "aggravating circumstances" might exist. See ante, at
349, 350-351. That says, in effect, that "aggravating cir-
cumstances" which can entitle a mere statutory violation to
habeas review may consist of the mere fact that the statu-
tory violation was not waived. Surely that sucks the life out
of Hill* Nor do I accept JUSTICE GINSBURG'S suggestion
that an interest in uniform interpretation of the IAD might
*Many courts, including the Indiana Supreme Court in evaluating this
petitioner's claim, see Reed v. State, 491 N. E. 2d 182, 185 (Ind. 1986), have
held that a prisoner's waiver of the 120-day limit will prevent violation of
the IAD, or will preclude the remedy of dismissal with prejudice. See,
e. g., United States v. Odom, 674 R 2d 228 (CA4 1982). Perhaps, there-
fore, JUSTICE GINSBURG'S effort to decide the jurisdictional issue on as
narrow a ground as possible has caused her to decide the merits.
358 REED v. FARLEY
Opinion of SCAJLIA, J,
counsel in favor of habeas review in a nonwaiver situation.
See ante, at 348-349. I see no reason why this Court's di-
rect review of state and federal decisions will not suffice for
that purpose, as it does in most other contexts. Cf. Cuyler
v. Adams, 449 U. S. 433, 442 (1981). More importantly, how-
ever, federal habeas jurisdiction was not created with the
intent, nor should we seek to give it the effect, of altering the
fundamental disposition that Court, and not individual
federal district judges, has appellate jurisdiction, as to fed-
eral questions, over the supreme courts of the States.
If there was ever a technical rule, the IAD's 120-day limit
is one. I think we produce confusion by declining to state
the obvious: that violation of that technicality, intentional or
unintentional, neither produces nor is analogous to (1) lack
of jurisdiction of the convicting court, (2) constitutional viola-
tion,, or (3) miscarriage of justice or denial of rudimentary
procedures. It is no basis for federal
II
In addition to substantive limitations on the ex-
ercise of habeas jurisdiction, the Court imposed proce-
dural restrictions. For example, a claim cognizable
under §1SJ55 (the correlative of for prisoners),
such as a constitutional claim, will not be if it
procedurally defaulted below, a showing of and
actual prejudice. See v. 456 U. 8, 162,
167-168 (1982). And claims will ordinarily not be enter-
tained under §2255 that have already rejected on direct
review. See Kaufman v. 894 U- S. 217, 227,
IL 8 (1969); see also Withrow, 507 U. S.f at 720-721 (SCAL1A,
J., concurring in part and In
showing that lower courts have uniformly followed the Kauf-
man dictum). Together, two lfm prior
opportunity for Ml and Mr litigation is normally
of a federal prisoner's claim/1 507 U* S., at 721.
Cite as: 512 U. S. 339 (1994) 359
BLACKMUN, J., dissenting
Although this procedural limitation has not been raised as
a defense in the present case, I note my view that, at least
where mere statutory violations are at issue, a prior oppor-
tunity for full and fair litigation precludes a state-prisoner
petition no less than a federal-prisoner petition. As the
Court today reaffirms, " '§ 2255 was intended to mirror § 2254
in operative effect.'" Ante, at 353, quoting Davis v. United
States, 417 U. S. 333, 344 (1974). Cf. Frady, supra, at 166.
Otherwise a prisoner, like petitioner, transferred from fed-
eral to state prison under the IAD would have three chances
to raise his claim (state direct, state habeas, and §2254) while
a prisoner transferred from state to federal prison under the
IAD would have only one. Since the present petitioner
raised his IAD claim on direct appeal in the Indiana courts
and on state habeas review, his federal habeas claim could
have been rejected on the ground that the writ ordinarily
will not be used to readjudicate fully litigated statutory
claims.
JUSTICE BLACKMUN, with whom JUSTICE STEVENS, JUS-
TICE KENNEDY, and JUSTICE SOUTER join, dissenting.
The federal habeas corpus statute allows a state prisoner
to challenge his conviction on the ground that he is "in cus-
tody in violation of the Constitution or laws or treaties of
the United States." 28 U. S. C. §2254(a). The Court ac-
knowledges, as it must, that the Interstate Agreement on
Detainers (IAD) is a "la[w] ... of the United States" under
this statute. See Carchman v. Nash, 473 U.S. 716, 719
(1985); Cuyler v. Adams, 449 U. S. 433, 438-442 (1981). In
addition, respondents concede that a defendant tried in clear
violation of the IAD's 120-day limit would be held in custody
in violation of a law of the United States. Tr. of Oral Arg.
37. Nevertheless, the Court appears to conclude that a vio-
lation of the IAD is simply not serious enough to warrant
collateral relief, at least where the defendant fails to invoke
S60 REED r. FARLEY
BLACKMUN, J.f disrating
his IAD rights according to the rules the Court
announces for the first time today.
The Court purports to resolve this by relying on
"precedent already in place," ante, at 348, referring to "prin-
ciples and precedent generally controlling availability of the
great writ/1 at 352, Our pivmicnt, on ite does
not reach nearly so far, and its to this is
unwarranted under gon^ral corpus principles. Most
seriously, the Court disregards Congress' unambiguous judg-
ment about the severity of, and the n-nu'dy for,
a violation of the IAD time limits. 1 respectfully dissent
1
The Court purports to resolve this by relying on the
Hill-Timmreck line of cases. Sue Hill v. United 368
U. S. 424 (1962); Davis v, 417 11 S. 338 (1974);
United v. Timmreck, 441 US. 780 see also
Sunal v. Large, 332 U, S. 174 v,
456 U.S. 152 the narrow rw^s of
the Court's ultimate holding, however, its
certain the of of
court judgments do not analysis.
Each of the on by the majority— Mllt Timm-
reckf />j/'/V •• eona-mec! & fnft wl prisoner's
under 28 U S. C for de-
fects in his trial had
applied to bar of a petition.1
It so now without a fail of, or appreciation
for^ the different policy the
of courts* in §
irnie majority at 354, that the If ill IB v.
ftnwtft 428 U. a 465t 477f a 10 a § 2254 cam The in th&t
however, not OR Hill, but on to the
exclusionary rule
Cite as: 512 U. S. 339 (1994) 361
BLACKMUN, J., dissenting
While there are stray remarks in our opinions suggesting
that this Court has treated §§2254 and 2255 as equivalents,2
there are other indications to the contrary, see, e. g., Withrow
v. Williams, 507 U. S. 680, 715 (1993) (ScAUA, J., concurring
in part and dissenting in part). In any event, there are
sound reasons to refrain from treating the two as identical.
Primary among them is the importance under § 2254 of pro-
viding a federal forum for review of state prisoners' federal
claims, not only in order to ensure the enforcement of federal
rights, but also to promote uniformity in the state courts'
interpretation and application of federal law.3
We recognized in United States v. Frady, 456 U. S., at 166,
that the "federal prisoner . . . , unlike his state counterparts,
has already had an opportunity to present his federal claims
in federal trial and appellate forums." For the federal pris-
2 The Court relies, for instance, on the remark in Davis that "*§2255
was intended to mirror § 2254 in operative effect.' " Ante, at 353, quoting
Davis v. United States, 417 U. S. 333, 344 (1974). That statement, how-
ever, did no more than parry the suggestion that federal prisoners, unlike
state prisoners, were restricted to bringing claims "of constitutional di-
mension," and not those grounded in statutes. Ibid. The Davis Court
was addressing only the threshold statutory basis for relief— specifically
whether relief was available to federal prisoners for violations of "laws"
of the United States. It said nothing about the equitable considerations
that might guide the Court's exercise of its discretion to grant or deny
relief. In other words, Davis concerned jurisdictional, not prudential,
limits on habeas review. See Withrow v. Williams, 507 U. S. 680, 716
(1993) (SCAUA, J., concurring in part and dissenting in part) (the "sweep-
ing" breadth of habeas jurisdiction is "tempered by the restraints that
accompany the exercise of equitable discretion").
8 As a practical matter, this Court's direct review of state court decisions
cannot adequately ensure uniformity. See id., at 721, n. (SCALIA, J., con-
curring in part and dissenting in part) ("Of course a federal forum is theo-
retically available in this Court, by writ of certiorari. Quite obviously,
however, this mode of review cannot be generally applied due to practical
limitations") (citation omitted).
362 REED n FARLEY
BLACKMUN, JM dissenting
oner claiming statutory violations, habeas courts serve less
to guarantee uniformity of federal law or to satisfy a thresh-
old need for a federal forum than to provide a backstop to
catch and correct certain nonconstitutional errors that
evaded the trial and appellate courts.4 Thus, this Court has
determined that "where the trial or appellate court has had
a *say? on a federal prisoner's claim, it may be open to the
§2255 court to determine that . . . *the prisoner is entitled to
no relief/" Kaufman v. 394 U.S. 217, 227,
n. 8 (1969) (citation omitted)- Under Hill and Timmreck,
relief may be limited to the correction of **fundamental de~
fectfs]" or "omission[s] inconsistent with thc^ rudimentary de-
mands of fair procedure." Hill, 368 U. S., at 428. The Hill
principle, in short, is that where the error Is not e^re^ious,
the habeas court need not cover the ground covered
by other federal courts.
For the state prisoner^ by contrast, a primary purpose* of
§2254 is to provide a federal forum to review a prison-
er*s claimed violations of law, were, of
necessity, addressed to the courts. v.
Allen, 344 U. S. 443, 608 (opinion of Frankfurter, X)
(§2254 collateral review is necessary to permit a federal
court to have the "last say*1 with n^peet to questions of fed-
eral law); Vazquez v. UiHrry, 474 U. S. 254 (1986) (requiring
exhaustion of federal in courts). Thus, §
motions anticipate that the court will an
independent review of the work of the
where the federal claim fully and
Wright v. West, 60S U. S, 277 J.f concur-
ring in judgment) (affirming a <letermina-
4 In feet, §2256 requires a prisoner to file his in the court that
imposed his sentence as a farther in his criminal
rate civil action, Advisory on Rule 1,
28 U, S. C., p. 418 (governing
Cite as; 512 U. S. 339 (1994) 363
BLACKMUN, J., dissenting
tion of federal law and of mixed questions of federal law and
fact are entitled to de novo review by federal habeas court).5
Even if we recognize valid reasons for limiting this review
to claims of serious or substantial error, where no federal
court previously has addressed the § 2254 petitioner's federal
claims, there is less reason to sift these claims through so
fine a screen as Hill and Timmreck provide.
Similarly, prudential justifications for Hill's "fundamental
error" standard may differ from state to federal proceedings.
In a federal trial and appeal, virtually any procedural error,
however minor, will violate a "law" of the United States. In
this context, it is both impracticable and unnecessary to
allow collateral review of all claims of error, particularly
since the defendant has had the opportunity both to raise
them in and to appeal them to a federal forum. It is hardly
surprising, therefore, that the Hill-Timmreck screening de-
vice, which sorts the substantial errors from the mere techni-
cal violations, was developed in § 2255. A state trial, by con-
trast, implicates few federal laws outside the Constitution.
On the extraordinary occasions when Congress does consider
a federal law to be so important as to warrant its application
in state proceedings, this alone counsels an approach other
6 JUSTICE SCALIA proposes to foreclose §2254 review of federal noncon-
stitutional claims where the state prisoner was afforded a full and fair
opportunity to litigate those claims in state court. This proposal fails for
obvious reasons. To hold that full and fair litigation in state courts is a
substitute for a federal forum would be, to borrow a phrase, to "suc[k] the
life out of [§2254]." See ante, at 357 (concurring opinion). At the heart
of § 2254 is federal court review of state court decisions on federal law.
With one notable exception, see Stone v. Powell, 428 U. S. 465, 486-496
(1976), this Court uniformly has rejected a "full and fair opportunity to
litigate" as a bar to § 2254 review. See Withrow v. Williams, supra; Kim-
melman v. Morrison, 477 U. S. 365 (1986); Rose v. Mitchell, 443 U. S. 545
(1979); Jackson v. Virginia, 443 U. S. 307 (1979); see also Wright v. West,
505 U. S. 277, 299 (1992) (O'CONNOR, J., concurring in judgment) (disputing
that a "full and fair hearing in the state courts" required deferential
review in habeas).
364 REED u FARLEY
BLACKMUN, J.f dissenting
than Hill-Timmreck to determine whether a violation of that
law warrants federal court review and enforcement.6
The difference in the roles that play in
state and federal criminal proceedings points to another dan-
ger attendant to the uncritical application of the Hill stand-
ard in §2254. Hill has been to disfavor review
of federal statutory violations as a <?, g., at
356 (concurring opinion) (reading Hill for the proposition
that "[mjost statutory violations . . . are simply not important
enough to invoke the extraordinary jurisdiction").
This distinction between statutory and constitutional viola-
tions, exaggerated even in the context of §22f>Sf7 has even
less justification under §2254,
11 There is an additional to question tha of the Hill*
Timmwck wftiwiamentml error" or "mi.-carriajjr of justice** to
Reed's §lffi§4 claim- In both Hill and Timmrcrk> a by-
passed an available federal ami Court the of
Sunal v. Large, 332 U. S. 174, 178 thai "do
service for an appeal." Set Hill, 868 U S,f at
the reasoning in Sunal, 332 U S., at 17S# that ***lw|fae
tion of the federal courts* " a
to supplant appeals); 441 U. S.f at 7S4 **no
for allowing collateral attack *to do ntnrlce for mn apjwar") (q«otti^g
332 U, S., at 178); set also 368 U a, at that
* *pn>vidtd a regular, orderly tor w of
by u 'pmntii^g mn to the of and by us
with certioimri jurMiction* r* and if to
this orderly method, ***fi}iT0r which waa TO!
adequate to wanmnt an would lf)
5ww^i, 8S2 U. a, at 18M82). this to
based In part on principle*.* of Oar
'quentiy \m imposed a procedural bur in
v, SyA«rt 483 U, S* 72, 84, 87 (1977), and that tar was not to
7Hiii and Timmricfc can be for the propuj-ilitm tt
noneomtitutioiml iriolmtioia **are not Important to wiurwmt
habeas relief In Hittt for a dM not
Ms conviction was not permitted to on tha
sentencing court's "firilur* to comply with the mium-m^nts* of
Cite as: 512 U. S. 339 (1994) 365
BLACKMUN, J., dissenting
The language of §2254 itself permits a state prisoner to
seek relief for a violation "of the Constitution or laws or trea-
ties of the United States/' By its own terms, then, §2254
applies equally to claims of statutory or constitutional viola-
tions. When construing the similar language of Rev. Stat.
§ 1979, 42 U. S. C. § 1983, which permits civil actions against
state actors for "deprivation of any rights, privileges, or im-
munities secured by the Constitution and laws" of the United
States, we concluded that "the phrase 'and laws/ as used in
§ 1983, means what it says." Maine v. Thiboutot, 448 U. S.
Federal Rule of Criminal Procedure 32(a), which commands that every
defendant be allowed to make a statement before he is sentenced. 368
U. S., at 429. Similarly, in Timmreck, the Court held that a federal pris-
oner who did not appeal the validity of his guilty plea could not obtain
collateral relief under §2255 for technical violation of Federal Rule of
Criminal Procedure 11, which requires the court to ask a defendant repre-
sented by an attorney whether he wishes to say anything on his own
behalf. 441 U. S., at 784.
These cases could also be read narrowly as relying on the habeas peti-
tioner's default on direct review, see n. 6, supra, or as encompassing only
violations of procedural rules. But even if read to establish a line be-
tween "important" and "merely technical" violations, this line is not identi-
cal to the line between statutory and constitutional violations. We made
this point clear in Davis v. United States, 417 U. S., at 345-346:
"[T]here is no support in the prior holdings of this Court for the proposi-
tion that a claim is not cognizable under §2255 merely because it is
grounded in the 'laws of the United States' rather than the Constitution.
It is true, of course, that in Sunal v. Large, 332 U. S. 174 (1947), the Court
held that the nonconstitutional claim in that case could not be asserted to
set aside a conviction on collateral attack. But Sunal was merely an ex-
ample of 'the general rule . . . that the writ of habeas corpus will not be
allowed to do service for an appeal.' . . . Thus, Sunal cannot be read to
stand for the broad proposition that nonconstitutional claims can never
be asserted in collateral attacks upon criminal convictions. Rather, the
implication would seem to be that, absent the particular considerations
regarded as dispositive in that case, the fact that a contention is grounded
not in the Constitution, but in the 'laws of the United States' would not
preclude its assertion in a §2255 proceeding."
366 REED u FARLEY
BLACKMUN, J,, dissenting
1, 4 (1980) (refusing to construe *'and laws" as limited to civil
rights or equal protection laws); Hague v. CIO, 807 U. S. 496,
525-526 (1939) (§ 1983 "include[s] rights, privileges and im-
munities secured by the laws of the United States as well as
by the Constitution")* Section 1983 was enacted contempo-
raneously with §2254, and it shares the common purpose of
making the federal courts available for the uniform interpre-
tation and enforcement of federal rights in state settings.
There is no reason to read § 1983 as placing statutes on a par
with the Constitution, but to read §2254 as largely indiffer-
ent to violations of statutes.
Moreover, at least until today, this Court never had held
that a properly preserved claim of a violation of a federal
statute should be treated differently in a §2254 proceeding
from a claim of a violation of the Constitution* Nor is there
any reason to do so. Congress' decision to apply a federal
statute to state criminal proceedings , which ordinarily am
the exclusive province of state legislatures, generally should
be read to reflect the congressional determination that im-
portant national interests are at stake. Where Congress
has made this determination, the federal courts should be
open to ensure the uniform enforcement and interpretation
of these interests,
It should be clear, then, that the distinction drawn In
§2255 between fundamental errors and "omissionfe] of the
kind contemplated in Hill, Timmreekf or Davit," at
349, simply does not support a distinction in §2254 between
constitutional and statutory violations*
II
Even putting aside any misgivings about the general ex-
tension of Hill to §2254 proceedings, there is a specific, and
I believe insurmountable, obstacle to applying this standard
to violations of the IAD* In concluding that an "unwitting
judicial slip of the kind involved here ranks with the nonoon-
stitutional lapses we have held not cognisable/1 ante, at 349,
Cite as: 512 U. S. 339 (1994) 367
BLACKMUN, J., dissenting
in Hill and Timmreck, the majority overlooks Congress' own
determination about the seriousness of such a "slip" and its
consequences.
Congress spoke with unmistakable clarity when it pre-
scribed both the time limits for trying a prisoner whose cus-
tody was obtained under the IAD and the remedy for a viola-
tion of those limits. Article IV(c) of the IAD provides that
the trial of a transferred prisoner "shall be commenced
within one hundred and twenty days" of his arrival in the
receiving jurisdiction.8 The IAD is equally clear about the
consequences of a failure to bring a defendant to trial within
the prescribed time limits. Article V(c) states:
"[I]n the event that an action on the indictment, infor-
mation, or complaint on the basis of which the detainer
has been lodged is not brought to trial within the period
provided in article III or article IV hereof, the appro-
priate court of the jurisdiction where the indictment,
information, or complaint has been pending shall enter
an order dismissing the same with prejudice, and any
detainer based thereon shall cease to be of any force
or effect."
Quite simply, Congress has determined that a receiving
State must try the defendant within 120 days or not at all.
This determination undermines the majority's approach for
two reasons.
8 This command is subject to only two qualifications. First, Article
IV(c) itself provides that "for good cause shown in open court, the prisoner
or his counsel being present, the court having jurisdiction of the matter
may grant any necessary or reasonable continuance." Second, Article
VI(a) provides: "In determining the duration and expiration dates of the
time periods provided in articles III and IV of this agreement, the running
of said time periods shall be tolled whenever and for as long as the pris-
oner is unable to stand trial, as determined by the court having jurisdic-
tion of the matter." The majority relies on neither qualification, nor did
the Indiana state courts.
368 REED u FARLEY
BLACKMUN, J., dissenting
First, the congressional imposition of the drastic sanction
of dismissal forecloses any argument that a violation of the
IAD time limits is somehow a mere "technical" violation too
trivial to warrant habeas review. The dismissal with preju-
dice of criminal charges is a remedy rarely seen in criminal
law, even for constitutional violations. See, e. g., Barker v.
Wingo, 407 U, S. 514 (1972) (violation of Sixth Amendment
speedy trial right); Oregon v. Kennedy, 456 U. S. 667 (1982)
(violation of Double Jeopardy Clause), In fact, there are
countless constitutional violations for which habeas review is
allowed, but dismissal is not required. However this Court
might have assessed the "fundamentally" of a violation of
the IAD time limits in the absence of this sanction, this con-
gressional directive does not leave us free to determine that
violating the IAD time limits is no more serious than failure
to comply with the technical requirements of Federal Rule
of Criminal Procedure 11, United States v. Timmreck, 441
U. S. 780 (1979), or the formal requirements of Federal Rule
of Criminal Procedure 32(a), Hittf 368 U. S., at 428,
Surely, a violation that Congress found troubling enough
to warrant the severe remedy of dismissal cannot become
trivial simply because the defendant did not utter what this
Court later determines to be the magic words at the magic
moment, particularly in the absence of any congressional re-
quirement that the defendant either invoke his right to a
timely trial or object to the setting of an untimely trial date.
In the absence of any suggestion that Reed procedurally de-
faulted on his IAD claim so as to deprive him of relief on
direct review, it is curious, to say the least, to deny habeas
relief based krgely on a sort of "quasi-defeult" standard*
Such a two-tiered "default'1 standard is unwarranted, and to
my knowledge, unprecedented,9 Ci Davu v. United States,
®Sunal, Hill, and Timmreek, in which the defendant took no appeal
from a federal conviction, provide no support for this quasi-waiver stand-
ard- None of these cases presents a situation in which the defendant's
Cite as: 512 U. S. 339 (1994) 369
BLACKMUN, J., dissenting
411 U. S. 233, 239, n. 6 (1973) (finding it "difficult to conceptu-
alize the application of one waiver rule for purposes of fed-
eral appeal and another for purposes of federal habeas
corpus")-
Second, Congress' clear mandate of the remedy of dis-
missal can be read to constrain this Court's equitable or
supervisory powers to determine an appropriate remedy,
either on direct review or on habeas.10 Nothing in our case
law even suggests that, where Congress has mandated a
remedy for the violation of a federal law, a habeas court is
free to cast about for a different remedy. The remedy pre-
scribed by the statute must be the remedy that "law and
justice require." 28 U. S. C. §2243. In other words, the
prerogative writ of habeas corpus should be exercised in ac-
cord with an express legislative command. See IAD, Art.
IX, § 5 (directing "[a]ll courts ... of the United States ... to
enforce the agreement on detainers and to cooperate . . . with
all party States in enforcing the agreement and effectuating
its purpose"). At the very least, the drastic remedy of
dismissal saves the IAD from falling below the Hill funda-
mentality line.
conduct was sufficient to present and preserve an issue for appeal, but was
found somehow wanting for habeas purposes.
10 McCarthy v. United States, 394 U.S. 459, 464, 468-472 (1969), and
Timmreck, 441 U. S., at 784, are not to the contrary. In McCarthy, the
Court looked to the language and purposes of Federal Rule of Criminal
Procedure 11 and to the lower courts' varying responses to noncompliance
before requiring, as an exercise of the Court's supervisory powers, relief
for Rule 11 violations raised on direct review. In Timmreck, the Court
denied relief on collateral review for a comparable Rule 11 violation, in
part because, under McCarthy, the defendant could have challenged it on
direct appeal, but did not. In these cases, of course, the remedy for a
violation was left to the Court. In requiring relief on direct review, but
not on habeas, the Court was at most differing with itself. It was not
disregarding a congressional directive.
370 v. FARLEY
BLACKMUN, J.f ditwenting
In sum, under a faithful reading of the IAD, the trial
court was required to with prejudice* all charges
against Reed because his trial did not commence within 120
days of his transfer to Indiana custody. Faced with
the state courts* failure to remedy, the federal
habeas court should have done so.
Ill
A final word is in order about the Court's emphasis on
Reed's conduct and its suggestion that relief might be in
order if only Reed had objected at the "relevant" moments.
Under one reading of the majority opinion, the Court
concludes that Reed's failure to make oral objections at the
pretrial hearings somehow the seriousnesB of the
failure to bring him to trial within the !AD time limits.
In other wordsf the majority suggests that it is the
aunobjeeted-tofl nature of the violation, at 356 (concur-
ring opinion), that it to the of a HUt-Timmmek
error, one with which the court should not concern
itself. But as already the not
permit this Court to the significance* of the
violation,
It is also possible, however, to the opinion
as relying on a theory of waiver or procedural This
theory is equally untenable, particularly
ation is given not only to the of the IAD, but
to to its The
IAD itself not require tor a violation of its
120-day limit only "upon motion of the much less
"upon defendant^ timely to the of the
trial date/1 Instead, the unambiguously
courts to dismiss when the time limits are
This arguably puts the responsibility on to
police the applicable time limits. This is a choice
for Congress to make. are
who can be expected to know the IAD's straightforward re-
Cite as: 512 U. S. 339 (1994) 371
BLACKMUN, J., dissenting
quirements and to make a simple time calculation at the out-
set of the proceedings against a transferred defendant.
Indeed, in this case, the trial court and prosecutor both
had constructive notice of the IAD time limits. The Fulton
County Circuit Court signed and certified that the request
for temporary custody was transmitted "for action in accord-
ance with its terms and the provisions of the Agreement on
Detainers" App. 5-6 (emphasis added). The State's re-
quest stated: "I propose to bring this person to trial on this
[information] within the time period specified in Article IV(c)
of the [IAD]." Id, at 5.
Even assuming, however, that a defendant must invoke the
IAD's time limits in order to obtain its protections, Reed
clearly did so here. In United States v. Mauro, 436 U. S.
340 (1978), this Court agreed that the defendant's "failure to
invoke the [IAD] in specific terms in his speedy trial motions
before the District Court did not result in a waiver" of his
claim that the Government violated the IAD. Id., at 364
(emphasis added). We concluded, instead, that the prosecu-
tion and the court were "on notice of the substance" of an
inmate's IAD claims when he "persistently requested that
he be given a speedy trial" and "sought the dismissal of his
indictment on the ground that the delay in bringing him to
trial while the detainer remained lodged against him was
causing him to be denied certain privileges at the state
prison." Id., at 364, 365. Reed did no less.
On May 9, 1983, at his first appearance before the court,
Reed, appearing without counsel, informed the court that he
would be in a halfway house but for the detainer. App. 12.
The court acknowledged that there is a "world of difference"
between a halfway house and the Fulton County jail. JcL,
at 14. The court later observed that Reed's incarceration
rendered him incapable of preparing his defense. Id., at 54.
At the June 27 pretrial conference, Reed asked the court
if it would prefer future motions orally or in writing. The
court responded, "I want it in writing," and "I read better
372 REED v. FARLEY
BLACKMUN, J., dissenting
than I listen/' Id, at 39-40; see also id., at 123 (noting pref-
erence for written motions). Conforming to this request,
Reed filed a motion on July 25, requesting that " trial be held
within the legal guidelines of the Agreement on Detainer
Act." Id., at 56. Clarifying his concerns, Reed complained
that the State of Indiana was "forcing [him] to be tried be-
yond the limits as set forth in the Agreement on Detainer
Act/7 and specifically "requested that] no extension of time
be granted beyond those guidelines." Ibid. This pro se
motion was filed 31 days before the 120-day period expired,
Three days later, Reed filed a motion stating that there
was "limited time left for trial within the laws." Id., at 88,
This pro se motion was filed 28 days before the IAD clock
ran out. Finally, on August 11, he filed a motion for subpoe-
nas that sought prompt relief because the "Detainer Act time
limits" were "approaching/' Id., at 91. This pro se motion
was filed 15 days before the 120-day IAD time limit expired.
Thus, after being instructed that the court wanted all mo-
tions in writing, Reed filed three timely written motions in-
dicating his desire to be tried within the IAD time limits.
The Supreme Court of Indiana concluded that Reed% July 26
motion constituted "a general demand that trial be held
within the time limits of the IAD," 491 N. E. 2d 182, 185
(1998). Under Maura, this was enough to put the court on
notice of his demands. Even as an original matter, when a
trial court instructs a pro se defendant to put his motions in
writing, and the defendant does so, not once, but times,
it is wholly unwarranted then to penalize him for failing to
object orally at what this Court later out as the
magic moment.11
11 The Court* referring to the "clarity*" of August 29 motion
ing discharge of the indictment* that ha <lc*libcTataly obscured Ms
request until after the dock had run, at S44f 349* The Court
to mention, however, that Reed prepared his earlier motions both without
counsel and without adequate to legal materials. It only at
tho Atienust l oretrial conference that the court orfered the sheriff to pro-
Cite as: 512 IL S. 339 (1994) 373
BLACKMUN, J., dissenting
This should be a simple matter. Reed invoked, and the
trial court denied, his right to be tried within the IAD's 120-
day time limit. Section 2254 authorizes federal courts to
grant for such a violation whatever relief law and justice
require. The IAD requires dismissal of the indictment.
Nothing in the IAD, in § 2254, or in our precedent requires
or even suggests that federal courts should refrain from en-
tertaining a state prisoner's claims of a violation of the IAD.
Accordingly, I respectfully dissent.
vide Reed with access to legal materials. App. 85. On August 9, Reed
was given two lawbooks, including one on Indiana criminal procedure, and
thereafter his draftsmanship improved.
374 OCTOBER 1993
Syllabus
DOLAN v. CITY OF TIGARD
CERTIORARI TO THE SITRKMK COURT OF OREGON
No, 98-518. Argued 28, June 24, 1994
The City Planning Commission of Tv^pomlenf city conditioned approval of
petitioner Dolan'f* application to expand her and pave her parking
lot upon her compliance with dedication of land (1) for a public
along Fanno Creek to minimise flooding that would be by
the increases in impervious fturfacen with her di»vi»lopnu*nt
and (2) for a pedr^trian/birvrh* pathway intendtnl to relieve traffic con-
gestion in the city's Central BwineHft District, Sh«* appealed the com-
mission's denial of her request for from to the
Land Use Board of Appeals (LUBA), the dedication
requirements were not relate to the proj>oM><l ilrvflnpinmt and there-
fore constituted an uncotn]H*n>at**d of her property tinder the
Fifth Amendment LUBA found a relationship between (1)
the development and the ivquhvm**ni to for a ^n-«*nw;iyt
since the larger building lot would the impervious
surfaceB and thus the runoff the* and (2) alleviating the Im-
pact of from the *lrv*4opm< w atrtci the provi-
sion of a pathway as an alternative of transportation. Both the
Oregon Court of and the Court
Held: The city's dedication requirements an uncom{MMiK»ted
taking of property* Pp,
(a) Under the of *%«c0Mtitutii>fiaI comUtionnyn
the governn^nt may not a to up a constitutional
right in exchange tor a fliMTHiunary by the govern-
merit the property ham or no to the
fit. In evaluating Dotarfii it be determinDd wtother an ^es-
sential nexufi1* a mud fctta
condition. JVoItow v. 488 U S. 825y 887.
If one does, tihen it must be tha of the*
tlons demanded by the j»rmit tho requlr«*d relation»hip
to the projected impact of the (fovelopnumt. /rl.f at HS4.
Pp.
(b) Inventing flooding llaiino and con-
gestion in the district are public pur post •**; m
between tibte first wad the
Cite as: 512 U. S. 374 (1994) 375
Syllabus
floodplain and between the second purpose and providing for alternative
means of transportation. Pp. 386-388.
(c) In deciding the second question — whether the city's findings are
constitutionally sufficient to justify the conditions imposed on Dolan's
permit — the necessary connection required by the Fifth Amendment is
"rough proportionality." No precise mathematical calculation is re-
quired, but the city must make some sort of individualized determina-
tion that the required dedication is related both in nature and extent
to the proposed development's impact. This is essentially the "reason-
able relationship" test adopted by the majority of the state courts.
Pp. 388-391.
(d) The findings upon which the city relies do not show the required
reasonable relationship between the floodplain easement and Dolan's
proposed building. The Community Development Code already re-
quired that Dolan leave 15% of her property as open space, and the
undeveloped floodplain would have nearly satisfied that requirement.
However, the city has never said why a public, as opposed to a private,
greenway is required in the interest of flood control. The difference to
Dolan is the loss of her ability to exclude others from her property, yet
the city has not attempted to make any individualized determination to
support this part of its request. The city has also not met its burden
of demonstrating that the additional number of vehicle and bicycle trips
generated by Dolan's development reasonably relates to the city's re-
quirement for a dedication of the pathway easement. The city must
quantify its finding beyond a conclusory statement that the dedication
could offset some of the traffic demand generated by the development.
Pp. 392-396.
317 Ore. 110, 854 P. 2d 437, reversed and remanded.
REHNQUIST, C. J,, delivered the opinion of the Court, in which O'CoN-
NOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a
dissenting opinion, in which BLACKMUN and GINSBURG, JJ., joined, post,
p. 396. SOUTER, J., filed a dissenting opinion, post, p. 411.
David B. Smith argued the cause and filed briefs for
petitioner.
Timothy V. Ramis argued the cause for respondent.
With him on the brief were James M. Coleman and Richard
J. Lazarus.
376 DOLAN u CITY OF TIGARD
Counsel
Deputy Solicitor General Kneedler argued the cause for
the United States as amicm curiae urging affirmance.
With him on the brief were Solicitor General Days, Acting
Assistant Attorney General Schiffer* James E. Brookskire,
and Martin W. Matzen**
*Briefs of amid curias urging reversal were filed for the American
Farm Bureau Federation et al. by James Di Holzkazter, Tiwmthy S.
Bishop, John J. R&demacher, and Richard L* Krause; for Defenders of
Property Rights et al by Namie G. Marzulla; for the Georgia Public
Policy Foundation et aL by G, Stephen Parker; for the Institute for Justice
by William H. Mellor III, Clint Bolick, and Richard A Epstein; for the
National Association of Home Builders et al. by William H. Ethier, Mary
DiCre$cenzof and Stephanie McEvily; for the National Association of
Realtors et aL by Richard M, Stephens; for the Pacific Legal Foundation
by Ronald A Zumbrun, Robin L* Rivett, Jame® S* Burling* D^bmnh J.
La Fetra, and John M, Gram; for the Washir^ton Legal Foundation et al.
by Daniel J, Popeo and Paid R for Jon A* Chandler, pro te;
and for Terence Wellner et al. by Banwl G,
Briefs of amid curias urging affirmance ware filed for the of New
Jersey et aL by Deborah T. Parity Attorney General of New Jersey, Jack
M, Sabatino and Mary Carol Jacobson, Assistant Attorneys General, and
Rachel J» Horowitz, Deputy Attorney General, and by the Attorneys Gen-
eral for their respective jurisdictions as follows; Grant Woods of Ati^onm,
Richard Blnmenthal of Connecticut, Robert A Buttm*warth of Florida,
Elizabeth Barrett-Anderson of Guam, A of Hawaii, Mi-
chael E. Carpenter of Maine, Scott Harshbarger of Fmnfc
J* Kelley of Michigan, /otepft F« of Montana, PranJkw Del
Papa of Nevada, Tbm Udall of New Me)cicot G. Oliver of New
York, Lee Fwh&r of Ohio, B. of Rhode W
Bnrson of Tennessee, Romlw S, of the Virgin and
Jomph B, Meyer of Wyoming; for the of Oregon by &
Khdonff&skit Attorney General, Th®ma$ A Deputy Attorney Gen-
eral» Virginia L Lind&r* Solicitor Genaml, and D, and
John T« Bogg, Assistawt Attorneys General; for Broward County by John
£ Capstan, Jr., and Anthony C. for the City of New York by Paul
A Crotty, Leonard J. Koenwr* JST, for the Ameriom
Federation of Labor and Congress of Industrial by Robert
Af, Weinbery, WalUr Kamdat* and for tim of
State Ploodpkn Blanagers by J. for the Eaite-to^TVaili Con-
servancy et Bl by Andrea C. L* and P.
*- - » A-.^.J^^^ ^ r*A.mfi4i« At ML bv Richard
Cite as: 512 U. S. 374 (1994) 377
Opinion of the Court
CHIEF JUSTICE REHNQUIST delivered the opinion of the
Court.
Petitioner challenges the decision of the Oregon Supreme
Court which held that the city of Tigard could condition the
approval of her building permit on the dedication of a portion
of her property for flood control and traffic improvements.
317 Ore. 110, 854 P. 2d 437 (1993). We granted certiorari
to resolve a question left open by our decision in Nollan v.
California Coastal Comm'n, 483 U. S. 825 (1987), of what
is the required degree of connection between the exactions
imposed by the city and the projected impacts of the pro-
posed development.
I
The State of Oregon enacted a comprehensive land use
management program in 1973. Ore. Rev. Stat. §§ 197.005-
197.860 (1991). The program required all Oregon cities
and counties to adopt new comprehensive land use plans
that were consistent with the statewide planning goals.
§§ 197.175(1), 197.250. The plans are implemented by land
use regulations which are part of an integrated hierarchy
of legally binding goals, plans, and regulations. §§197.175,
197.175(2)(b). Pursuant to the State's requirements, the city
of Tigard, a community of some 30,000 residents on the
southwest edge of Portland, developed a comprehensive plan
and codified it in its Community Development Code (CDC).
The CDC requires property owners in the area zoned Cen-
tral Business District to comply with a 15% open space and
landscaping requirement, which limits total site coverage, in-
cluding all structures and paved parking, to 85% of the par-
cel. CDC, ch. 18.66, App. to Pet. for Cert. G-16 to G-17.
After the completion of a transportation study that identified
Society by John & Echeverria; and for 1000 Friends of Oregon et al. by
H Bissell Carey III, Dwight H. Merriam, and Edward J. Sullivan.
Briefs of amid curiae were filed for the Mountain States Legal Founda-
tion et al. by William Perry Pendley; for the Northwest Legal Foundation
-. * mi „ TT XT Alarm <n<rn <5fi. et l.
378 DOLAN n CITY OF TIGARD
of the (burl
congestion In the Central T?usin*^s District as a particular
problem, the city adopted a plan for a pedestrian/ bicycle
pathway Intended to alternatives to automobile
transportation for short trips. The CDC that new
development facilitate this by land for pedes-
trian pathways where provided for in the pedestrian/ bicycle
pathway plan.1
The city also adopted a Drainage Plan (Drainage
Plan). The Drainage Plan noted that flooding occurred in
several areas along Fanno Greek, including near peti-
tioner's property. Record, Doe. No, Ff ch. 2f pp. 2-5 to 2-8;
4-2 to 4-6; Figure 4-1. The Drainage Plan established
that the increase in impervious with con-
tinued urbanization would loading prob-
lems, To combat the Drainage Plan a
series of improvements to the Fanno including
channel excavation in the to ju'tiilnnt»rV property*
App. to Pet for Cert, G-13,
included ensuring that the remains of struc-
tures and that it be preserved as grcvnways to minimize
flood damage to structure's. Record, D0c, No. F, eh, 6,
pp. 5-16 to 5-21* The Plan the cost
of these improvements be on direct
and indirect with property atong the water-
ways paying more to the they would
receive, Id, eh. 8f p. 8-11, CDC Chapters and
*CDC § 1&86.040 JLl.b provides: development
pedestxiaB/blcyete circulation If the site in on a with
nated bflcepaths or to a designated
Specific items to be [indudej: (I) of conven-
ient and continuous and bkycte drralation
linking developments by requiring and coiurtraetkm of
trian and bikepaths identified in the oompr«*h<*n.sive plan, If dureet wn-
nectiom mimot be made, require that in the amount of the construc-
tion cost be deposited into an for the of
paths/ App* to Brief for Respondent to B-44
Cite as: 512 U. S. 374 (1994) 379
Opinion of the Court
and CDC §18.164.100 and the Tigard Park Plan carry out
these recommendations.
Petitioner Florence Dolan owns a plumbing and electric
supply store located on Main Street in the Central Business
District of the city. The store covers approximately 9,700
square feet on the eastern side of a 1.67-acre parcel, which
includes a gravel parking lot. Fanno Creek flows through
the southwestern corner of the lot and along its western
boundary. The year-round flow of the creek renders the
area within the creek's 100-year floodplain virtually unusable
for commercial development. The city's comprehensive plan
includes the Fanno Creek floodplain as part of the city's
greenway system.
Petitioner applied to the city for a permit to redevelop the
site. Her proposed plans called for nearly doubling the size
of the store to 17,600 square feet and paving a 39-space park-
ing lot. The existing store, located on the opposite side of
the parcel, would be razed in sections as construction pro-
gressed on the new building. In the second phase of the
project, petitioner proposed to build an additional structure
on the northeast side of the site for complementary busi-
nesses and to provide more parking. The proposed expan-
sion and intensified use are consistent with the city's zoning
scheme in the Central Business District. CDC § 18.66.030,
App. to Brief for Petitioner C-l to C~3.
The City Planning Commission (Commission) granted peti-
tioner's permit application subject to conditions imposed by
the city's CDC. The CDC establishes the following stand-
ard for site development review approval:
"Where landfill and/or development is allowed within
and adjacent to the 100-year floodplain, the City shall
require the dedication of sufficient open land area for
greenway adjoining and within the floodplain. This
area shall include portions at a suitable elevation for the
construction of a pedestrian/bicycle pathway within the
380 DOLAN n CITY OF TIGARD
Opinion of the Court
floodplaln in accordance with the pedestrian/
bicycle plan." CDC §18. 120.180. A.8, App, to Brief for
Respondent B-45 to B-46.
Thus, the Commission required that petitioner dedicate the
portion of her property lying within the 100-year floodplain
for improvement of a storm drainage along Fanno
Creek and that she dedicate an additional 15-foot strip of
land adjacent to the floodplain as a pedestrian/ bicycle path-
way.2 The dedication required by that condition encom-
approximately 7,000 or roughly 10% of
the property. In accordance with city praotkv, petitioner
could rely on the property to the open
and land>capin^ requirement by the city's
zoning scheme App, to Pat for Cert, to G-29. The
city would bear the of a buffer
between the the /dL, at G-44
toG-45.
Petitioner requested variances the CDC
Variances are grant pel only it can be that,
owing to dreumritamvs to a of
the land» the literal of the applicable
provisions would or unmnv^ury
the is granted CDC § 18. 134.0*10, to
Brief for 3B-47*3 alterna-
the **L The
to the w all of the site
that fell within the lof (i. cf all
portions of the property 150.0) itttd mil 15
above (to the of) the
be so as not to into the K^-mvay to
Pet for Cert CMS.
*CDC § the the
maklrig authority mm w m vari-
ance
"(1) Hw will not be to the pur-
Cite as: 512 U. S. 374 (1994) 381
Opinion of the Court
tive mitigating measures to offset the expected impacts of
her proposed development, as allowed under the CDC, peti-
tioner simply argued that her proposed development would
not conflict with the policies of the comprehensive plan. Id.,
at E-4. The Commission denied the request.
The Commission made a series of findings concerning the
relationship between the dedicated conditions and the pro-
jected impacts of petitioner's project. First, the Commis-
sion noted that "[i]t is reasonable to assume that customers
and employees of the future uses of this site could utilize a
pedestrian/ bicycle pathway adjacent to this development for
their transportation and recreational needs." City of Ti-
gard Planning Commission Final Order No. 91-09 PC, App.
to Pet. for Cert. G-24. The Commission noted that the site
plan has provided for bicycle parking in a rack in front of the
proposed building and "[i]t is reasonable to expect that some
of the users of the bicycle parking provided for by the site
plan will use the pathway adjacent to Fanno Creek if it is
constructed." Ibid. In addition, the Commission found
that creation of a convenient, safe pedestrian/ bicycle path-
way system as an alternative means of transportation "could
plan, to any other applicable policies and standards, and to other proper-
ties in the same zoning district or vicinity;
"(2) There are special circumstances that exist which are peculiar to the
lot size or shape, topography or other circumstances over which the appli-
cant has no control, and which are not applicable to other properties in
the same zoning district;
"(3) The use proposed will be the same as permitted under this title and
City standards will be maintained to the greatest extent possible, while
permitting some economic use of the land;
"(4) Existing physical and natural systems, such as but not limited to traf-
fic, drainage, dramatic land forms, or parks will not be adversely affected
any more than would occur if the development were located as specified
in the title; and
"(5) The hardship is not self-imposed and the variance requested is the
minimum variance which would alleviate the hardship." App. to Brief for
Respondent B-49 to B-50.
382 DOLAN v. CITY OF TIGARD
Opinion of the Court
offset some of the traffic demand on [nearby] streets and
lessen the increase in traffic congestion/' Ibid.
The Commission went on to note that the required flood-
plain dedication would be reasonably related to petitioner's
request to intensify the use of the site given the increase
in the impervious surface. The Commission stated that the
"anticipated increased storm water flow from the subject
property to an already strained creek and drainage basin can
only add to the public need to manage the stream channel
and floodplain for drainage purposes." Id., at G-37. Based
on this anticipated increased storm water flow, the Commis-
sion concluded that "the requirement of dedication of the
floodplain area on the site is related to the applicant's plan to
intensify development on the site/' Ibid. The Tigard City
Council approved the Commission's final order, subject to
one minor modification; the city council reassigned the re-
sponsibility for surveying and marking the floodplain area
from petitioner to the city's engineering department. Id.,
at G-7.
Petitioner appealed to the Land Use Board of Appeals
(LUBA) on the ground that the city's dedication require-
ments were not related to the proposed development, and,
therefore, those requirements constituted an uncompensated
taking of her property under the Fifth Amendment. In
evaluating the federal taking claim, LUBA assumed that the
city's findings about the impacts of the proposed develop-
ment were supported by substantial evidence. Dolan v. Ti-
gard, LUBA 91-161 (Jan. 7, 1992), reprinted at App. to Pet.
for Cert. D-15, n. 9. Given the undisputed fact that the pro-
posed larger building and paved parking area would increase
the amount of impervious surfaces and the runoff into Fanno
Creek, LUBA concluded that "there is a 'reasonable relation-
ship' between the proposed development and the require-
ment to dedicate land along Fanno Creek for a greenway."
Id., at D-16. With respect to the pedestrian/bicycle path-
way, LUBA noted the Commission's finding that a signifi-
Cite as: 512 U. S. 374 (1994) 383
Opinion of the Court
cantly larger retail sales building and parking lot would at-
tract larger numbers of customers and employees and their
vehicles. It again found a "reasonable relationship" be-
tween alleviating the impacts of increased traffic from the
development and facilitating the provision of a pedestrian/
bicycle pathway as an alternative means of transportation.
Ibid.
The Oregon Court of Appeals affirmed, rejecting peti-
tioner's contention that in Nollan v. California Coastal
Comm'n, 483 U. S. 825 (1987), we had abandoned the "reason-
able relationship" test in favor of a stricter "essential nexus"
test. 113 Ore. App. 162, 832 R 2d 853 (1992). The Oregon
Supreme Court affirmed, 317 Ore. 110, 854 P. 2d 437 (1993).
The court also disagreed with petitioner's contention that
the Nollan Court abandoned the "reasonably related" test.
317 Ore., at 118, 854 P. 2d, at 442. Instead, the court read
Nollan to mean that an "exaction is reasonably related to an
impact if the exaction serves the same purpose that a denial
of the permit would serve." 317 Ore., at 120, 854 R 2d, at
443. The court decided that both the pedestrian/bicycle
pathway condition and the storm drainage dedication had an
essential nexus to the development of the proposed site. Id.,
at 121, 854 R 2d, at 443. Therefore, the court found the
conditions to be reasonably related to the impact of the
expansion of petitioner's business. Ibid.4 We granted cer-
tiorari, 510 U. S. 989 (1993), because of an alleged conflict
between the Oregon Supreme Court's decision and our deci-
sion in Nollan, supra.
II
The Takings Clause of the Fifth Amendment of the United
States Constitution, made applicable to the States through
the Fourteenth Amendment, Chicago, B. & Q. R. Co. v. Chi-
4 The Supreme Court of Oregon did not address the consequences of
petitioner's failure to provide alternative mitigation measures in her vari-
ance application and we take the case as it comes to us. Accordingly, we
Hn not nass on the constitutionality of the city's variance provisions.
384 DOLAN v CITY OF TIGARD
Opinion of the Court
capo, 166 U. S. 226, 239 (1897), provides: a[Nlor shall private
property be taken for public usey without just compensa-
tion/'5 One of the principal purposes of the Takings Clause
is "to bar 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." Armstrong v. United
States, 864 U. S. 40, 49 (1960). Without question, had the
city simply required petitioner to dedicate a strip of land
along Fanno Creek for public use, rather than conditioning
the grant of her permit to redevelop her property on such a
dedication, a taking would have occurred, Nollant supra,
at 881. Such public would deprive petitioner of the
right to exclude others, "one of the most sticks in
the bundle of rights that are commonly characterized as
property/1 Kaiser v. 444 U. S. 164,
176 (1979).
On the other side of the ledger, the authority of and
local governments to in land planning been
sustained against constitutional challenge as long ago as our
decision in Village ofBwiM v. COL, 272 U, S*
365 (1926). "Government hardly could go on if to ex-
tent values incident to property could not be diminished
s JUSTICE STEVENS* thla is actually grounded
in "substantive" due rmther in the view the Takings
Clause of the Fifth Amendment to the by the
Fourteenth Amenimant But is no
that the Fourteenth Amendment the of the
Fifth Amendment applicable to the aee Ca
v. New York City, 488 If. S. 104, in v* Califonntt
Camm'n, 483 U S* 826, 827 Nor to my
have relied upon B, & Q. JR. Ca v* 166 U. S. 220
(1897), to reach that result 0 . g., at 122 f*Ttie
isiuje] presented , . . [te] whether the by York
City's kw upom appellants1 exploitation of the site a *Uk-
ing* of appellants* property for a public use within the of the
Fifth Amezidhnant^ wMeh of is to th«
through the Fourteenth Amendment, see B» & Q, R* C& v* CM*
Cite as: 512 U. S. 374 (1994) 385
Opinion of the Court
without paying for every such change in the general
Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922).
A land use regulation does not effect a taking if it "substan-
tially advance[s] legitimate state interests" and does not
"den[y] an owner economically viable use of his land."
Agins v. City of Tiburon, 447 U. S. 255, 260 (1980).6
The sort of land use regulations discussed in the cases just
cited, however, differ in two relevant particulars from the
present case. First, they involved essentially legislative de-
terminations classifying entire areas of the city, whereas
here the city made an adjudicative decision to condition peti-
tioner's application for a building permit on an individual
parcel. Second, the conditions imposed were not simply a
limitation on the use petitioner might make of her own par-
cel, but a requirement that she deed portions of the property
to the city. In Nollan, supra, we held that governmental
authority to exact such a condition was circumscribed by the
Fifth and Fourteenth Amendments. Under the well-settled
doctrine of "unconstitutional conditions," the government
may not require a person to give up a constitutional right —
here the right to receive just compensation when property
is taken for a public use — in exchange for a discretionary
benefit conferred by the government where the benefit
sought has little or no relationship to the property. See
Perry v. Sindermann, 408 U. S. 593 (1972); Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty.>
391 U. S. 563, 568 (1968).
Petitioner contends that the city has forced her to choose
between the building permit and her right under the Fifth
6 There can be no argument that the permit conditions would deprive
petitioner of "economically beneficial us[e]w of her property as she cur-
rently operates a retail store on the lot. Petitioner assuredly is able to
derive some economic use from her property. See, e. g., Lucas v. South
Carolina Coastal Council, 505 U. S. 1003, 1019 (1992); Kaiser Aetna v.
United States, 444 U. S. 164, 175 (1979); Penn Central Transp. Co. v. New
York City, supra, at 124.
386 DOLAN r. CITY OF THJARD
Opinion of the Court
Amendment to just compensation for the public easements.
Petitioner does not quarrel with the city's authority to exact
some forms of dedication as a condition for the grant of a
building permit, but the showing by the city
to justify these exactions. She the city has
identified "no special confirm! -on her, has not
identified any "special quantifiable bunl«>n>" by her
new store that would justify the particular dedications re-
quired from her which are not required from the public at
large.
Ill
In evaluating petitioner^ claim, we cMt-rmine
whether the "essential nexus" the "legitimate
state interest" and the permit «*\urf«»<l by the city.
Nollan, 483 U* S., at 837. If we find a we
must then decide the requires! of cnnwcf inn
the exactions and the projected of the propose! de-
velopment We not required to in
Noltan9 we concluded the mnwrtion did not
meet even the standard. Id.* at how-
ever, we must
We the essential in
The California Commission a pub-
lic easement the lot In
for a permit to an bungalow it
with a three-bedroom Id., at
ment to
separated by the The rommLs-
sion had that «?as<*mcnt im-
posed to promote the of
the "blockage of the view of the by construc-
tion of the larger
We agreed that the Commission's concern with
Brotectincr visual to tihe a
Cite as: 512 U. S. 374 (1994) 387
Opinion of the Court
public interest. Id., at 835. We also agreed that the permit
condition would have been constitutional "even if it consisted
of the requirement that the Nollans provide a viewing spot
on their property for passersby with whose sighting of the
ocean their new house would interfere/' Id., at 836. We
resolved, however, that the Coastal Commission's regulatory
authority was set completely adrift from its constitutional
moorings when it claimed that a nexus existed between vis-
ual access to the ocean and a permit condition requiring lat-
eral public access along the Nollans' beachfront lot. Id., at
837. How enhancing the public's ability to "traverse to and
along the shorefront" served the same governmental pur-
pose of "visual access to the ocean" from the roadway was
beyond our ability to countenance. The absence of a nexus
left the Coastal Commission in the position of simply trying
to obtain an easement through gimmickry, which converted
a valid regulation of land use into " 'an out-and-out plan of
extortion.' " Ibid., quoting J. E. D. Associates, Inc. v. Atkin-
son, 121 N. H. 581, 584, 432 A. 2d 12, 14-15 (1981).
No such gimmicks are associated with the permit condi-
tions imposed by the city in this case. Undoubtedly, the
prevention of flooding along Fanno Creek and the reduction
of traffic congestion in the Central Business District qualify
as the type of legitimate public purposes we have upheld.
Agins, 447 U. S., at 260-262. It seems equally obvious that
a nexus exists between preventing flooding along Fanno
Creek and limiting development within the creek's 100-year
floodplain. Petitioner proposes to double the size of her re-
tail store and to pave her now-gravel parking lot, thereby
expanding the impervious surface on the property and in-
creasing the amount of storm water runoff into Fanno Creek.
The same may be said for the city's attempt to reduce traf-
fic congestion by providing for alternative means of transpor-
tation. In theory, a pedestrian/bicycle pathway provides a
useful alternative means of transportation for workers and
shoppers: "Pedestrians and bicyclists occupying dedicated
388 DOLAN r. CITY OF TKSARD
Opinion of the* Court
spaces for walking and/or bicycling . - . potential ve-
hicles from streets, resulting in an overall improvement in
total transportation flow/1 A, Public Provi-
sion of Pedestrian and Bicycle Ways: Public Policy
Rationale and the Nature of Private 11, Center for
Planning Development, Institute of Technology,
Working Paper (Jan, 1994). See Int€rmodal Sur-
face Transportation Efficiency Act of 1991, Pub. L. 102-240,
105 Stat. 1914 (recognizing and bicycle facilities
as necessary components of any to reduce traffic
congestion),
B
The second part of our analysis n»qum*> us to determine
whether the of the by the city's
permit conditions the required to the pro-
jected impact of proposed development. tfol~
Ian9 at Ca v.
York 438 U. S. 104, 12? (l4 4|A1 me may
constitute a "taking** if not neee^ury to the
tuation of a government purpose*")., the
Oregon Supreme Court to it t erined the "city's
unchallenged factual findings1" supporting the con-
ditions and found them to be to the Im-
pact of the of busmen. S17 Ore, at
120-121, 854 R 2df at 443*
The city required 4ito the City as
Greanway all of the site fall the
l<X»~year looclpMn [of „ * . and mil proper t> 15
feet above [the boundary.1* Id., at 118, n. 3» 854
R 2df at 489, n. 8* In the eity that the
retail store be so as not to the
way The eity on the Commission V
tlve findings that
er% property l4^ only add to the to manage the
[floodpkiii] for purposes** to support Its conclusion
thai the ^rftonitmnmiit of dfidieatibn of OH
Cite as: 512 U. S. 374 (1994) 389
Opinion of the Court
the site is related to the applicant's plan to intensify develop-
ment on the site." City of Tigard Planning Commission
Final Order No. 91-09 PC, App. to Pet. for Cert. G-37.
The city made the following specific findings relevant to
the pedestrian/ bicycle pathway:
"In addition, the proposed expanded use of this site is
anticipated to generate additional vehicular traffic
thereby increasing congestion on nearby collector
and arterial streets. Creation of a convenient, safe
pedestrian/ bicycle pathway system as an alternative
means of transportation could offset some of the traffic
demand on these nearby streets and lessen the increase
in traffic congestion." Id., at G-24.
The question for us is whether these findings are constitu-
tionally sufficient to justify the conditions imposed by the
city on petitioner's building permit. Since state courts have
been dealing with this question a good deal longer than we
have, we turn to representative decisions made by them.
In some States, very generalized statements as to the nec-
essary connection between the required dedication and the
proposed development seem to suffice. See, e. #., Billings
Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394
P. 2d 182 (1964); Jenad, Inc. v. Scarsdale, 18 N. Y. 2d 78, 218
N. E. 2d 673 (1966). We think this standard is too lax to
adequately protect petitioner's right to just compensation if
her property is taken for a public purpose.
Other state courts require a very exacting correspondence,
described as the "specific] and uniquely attributable" test.
The Supreme Court of Illinois first developed this test in
Pioneer Trust & Savings Bank v. Mount Prospect, 22 111. 2d
375, 380, 176 N. E. 2d 799, 802 (1961).7 Under this standard,
7 The "specifically and uniquely attributable" test has now been adopted
by a minority of other courts. See, e. g., J. E. D. Associates, Inc. v. Atkin-
son, 121 N. H, 581, 585, 432 A. 2d 12, 15 (1981); Divan Builders, Inc. v.
Planning Bd. of Twp. of Wayne, 66 N. J. 582, 600-601, 334 A. 2d 30, 40
390 DOLAN n CITY OF T1GARD
Opinion of the Court
if the local government cannot demonstrate that Its exaction
is directly proportional to the specifically need, the
exaction becomes "a veiled exercise of the power of eminent
domain and a confiscation of private property behind the de-
fense of police regulations." Jdf at 381, 178 N. E. 2d, at 802,
We do not think the Federal Constitution requires such ex-
acting scrutiny, given the nature of the involved.
A number of state courts have taken an intermediate posi-
tion, requiring the municipality to show a "reasonable rela-
tionship'1 between the required dedication and the impact of
the proposed development. Typical is the Supreme Court
of Nebraska's opinion in v. North 206 Neb.
240, 245, 292 R W. 2d 297, 301 that court
stated:
"The distinction, therefore, which be be-
tween an appropriate exercise of the power and
an improper of eminent is whether the
requirement has or
to the use to which the property is 0r is
merely being as an for property sim-
ply because at that particular moment the landowner is
asking the city for or permit/*
Thus, the court held that a city not require* a property
owner to for public
use as a condition of obtaining a
future use is not by the to
be permitted/1 /d, at 248f 2i2 N. W. 2d» at 802.
Some form of the reasonable has
adopted in many other jurisdictions. & #,, v.
m Wfe* 2d 008, 13?
v* 810 5, 246 N. W. 2d IS (1970)
(requiring a showing of a
(1975); v. City M 2d 171, 170,
270 N. EL M 870, 874 (1&71); Anuixi. Inc. % 107 E. L
Cite as: 512 U. S. 374 (1994) 391
Opinion of the Court
the planned subdivision and the municipality's need for land);
College Station v. Turtle Rock Corp., 680 S. W. 2d 802, 807
(Tex. 1984); Call v. West Jordan, 606 R 2d 217, 220 (Utah
1979) (affirming use of the reasonable relation test). Despite
any semantical differences, general agreement exists among
the courts "that the dedication should have some reasonable
relationship to the needs created by the [development]."
Ibid. See generally Note, "'Take' My Beach Please!":
Nollan v. California Coastal Commission and a Rational-
Nexus Constitutional Analysis of Development Exactions,
69 B. U. L. Rev. 823 (1989); see also Parks v. Watson, 716
F. 2d 646, 651-653 (CA9 1983).
We think the "reasonable relationship" test adopted by a
majority of the state courts is closer to the federal constitu-
tional norm than either of those previously discussed. But
we do not adopt it as such, partly because the term "rea-
sonable relationship" seems confusingly similar to the term
"rational basis" which describes the minimal level of scru-
tiny under the Equal Protection Clause of the Fourteenth
Amendment. We think a term such as "rough proportional-
ity" best encapsulates what we hold to be the requirement
of the Fifth Amendment. No precise mathematical calcula-
tion is required, but the city must make some sort of individ-
ualized determination that the required dedication is related
both in nature and extent to the impact of the proposed
development.8
8 JUSTICE STEVENS' dissent takes us to task for placing the burden on
the city to justify the required dedication. He is correct in arguing that
in evaluating most generally applicable zoning regulations, the burden
properly rests on the party challenging the regulation to prove that it
constitutes an arbitrary regulation of property rights. See, e. g., Village
of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). Here, by contrast,
the city made an adjudicative decision to condition petitioner's application
for a building permit on an individual parcel. In this situation, the burden
properly rests on the city. See Nollan, 483 U. S., at 836. This conclusion
is not, as he suggests, undermined by our decision in Moore v. East Cleve-
land, 481 U. S. 494 (1977), in which we struck down a housing ordinance
392 DOLAN u CITY OF TIGAKD
Opinion of the Court
JUSTICE STEVENS' dissent relies upon a law review article
for the proposition that the city's conditional demands for
part of petitioner's property are "a species of business regu-
lation that heretofore warranted a strong presumption of
constitutional validity/' Post, at 402. But simply denomi-
nating a governmental measure as a "business regulation"
does not immunize it from constitutional challenge on the
ground that it violates a provision of the Bill of Rights. In
Marshall v. Barlow's, Inc., 436 II S. 307 (1978), we held that
a statute authorizing a warrantless search of business prem-
ises in order to detect OSHA violations violated the Fourth
Amendment, See also Air Pollution Variance Bd. of Colo.
v. Western Alfalfa Corp., 416 U. S. 861 (1974); New York v.
Burger, 482 U. S. 691 (1987). And in Central Hudson Gas &
Elec. Corp. v. Public Serv* Common of N. Y, 447 U. S. 557
(1980), we held that an order of the New York Public Service
Commission, designed to cut down the use of electricity
because of a fuel shortage, violated the First Amendment
insofar as it prohibited advertising by a utility company to
promote the use of electricity We see no reason why the
Takings Clause of the Fifth Amendment, as much a part of
the Bill of Rights as the First Amendment or Fourth Amend-
ment, should be relegated to the status of a poor relation in
these comparable circumstances* We turn now to analy-
sis of whether the findings relied upon by the city here^
first with respect to the floodplain easement, and second
with respect to the pedestrian/ bicycle path, satisfied these
requirements.
It is axiomatic that increasing the amount of impervious
surface will increase the quantity and rate of storm water
flow from petitioner's property. Record, Doc. No. P, eh, 4,
that limited occupancy of a dwelling unit to members of a single fhmily as
violating the Due Process Clause of the Fourteenth Amendment The
ordinance at issue in Moore intruded on choices concerning fiamily living
arrangements, an area in which toe usual deference to the legislature
found to be inappropriate* /d, at 499.
Cite as: 512 U. S. 374 (1994) 393
Opinion of the Court
p. 4-29. Therefore, keeping the floodplain open and free
from development would likely confine the pressures on
Fanno Creek created by petitioner's development. In fact,
because petitioner's property lies within the Central Busi-
ness District, the CDC already required that petitioner leave
15% of it as open space and the undeveloped floodplain would
have nearly satisfied that requirement. App. to Pet. for
Cert. G-16 to G-17. But the city demanded more — it not
only wanted petitioner not to build in the floodplain, but it
also wanted petitioner's property along Fanno Creek for its
greenway system. The city has never said why a public
greenway, as opposed to a private one, was required in the
interest of flood control.
The difference to petitioner, of course, is the loss of her
ability to exclude others. As we have noted, this right to
exclude others is "one of the most essential sticks in the bun-
dle of rights that are commonly characterized as property."
Kaiser Aetna, 444 U. S., at 176. It is difficult to see why
recreational visitors trampling along petitioner's floodplain
easement are sufficiently related to the city's legitimate in-
terest in reducing flooding problems along Fanno Creek, and
the city has not attempted to make any individualized deter-
mination to support this part of its request.
The city contends that the recreational easement along the
greenway is only ancillary to the city's chief purpose in con-
trolling flood hazards. It further asserts that unlike the res-
idential property at issue in Nollan, petitioner's property is
commercial in character and, therefore, her right to exclude
others is compromised. Brief for Respondent 41, quoting
United States v. Orito, 413 U. S. 139, 142 (1973) ("'The Con-
stitution extends special safeguards to the privacy of the
home' "). The city maintains that "[t]here is nothing to sug-
gest that preventing [petitioner] from prohibiting [the ease-
ments] will unreasonably impair the value of [her] property
as a [retail store]." PruneYard Shopping Center v. Robins,
447 U. S. 74, 83 (1980).
394 DOLAN v CITY OF TIGARD
Opinion of the Court
Admittedly, petitioner wants to build a bigger store to
attract members of the public to her property. She also
wants, however, to be able to control the time and manner
in which they enter. The recreational easement on
greenway is different in character from the exercise of
state-protected rights of free expression and petition that;
we permitted in PruneYard. In PruneYard, we held that a,
major private shopping center that attracted more than
25,000 daily patrons had to provide access to persons exercis-
ing their state constitutional rights to distribute pamphlets
and ask passers-by to sign their petitions. Id., at 8JS* We
based our decision, in part, on the fact that the shopping"
center "may restrict expressive activity by adopting time,
place, and manner regulations that will minimize any in-
terference with its commercial functions." Id., at 83. By*
contrast, the city wants to impose a permanent
easement upon petitioner's property that borders Panno
Creek. Petitioner would lose all rights to
in which the public entered onto the greonway, of*
any interference it might pose with her retail Her*
right to exclude would not be regulated, it would b&
eviscerated.
If petitioner's proposed development had en-
croached on existing greenway space In the city, it
have been reasonable to require petitioner to
alternative greenway space for the public either on her prop-
erty or elsewhere. See Nollan, 488 U. S., at 836
such a requirement, constituting a permanent of con-
tinuous access to the property, would have to be considumt
a taking if it were not attached to a development permit, the?
Commission's assumed power to forbid construction of the
in order to protect the public's view of must
include the power to condition construction
concession by the owner, even a concession of
rights, that serves the same endfl). But that is not the
here. We conclude that the findings upon which the city re-
Cite as: 512 U. S. 374 (1994) 395
Opinion of the Court
lies do not show the required reasonable relationship be-
tween the floodplain easement and the petitioner's proposed
new building.
With respect to the pedestrian/bicycle pathway, we have
no doubt that the city was correct in finding that the larger
retail sales facility proposed by petitioner will increase traf-
fic on the streets of the Central Business District. The city
estimates that the proposed development would generate
roughly 435 additional trips per day.9 Dedications for
streets, sidewalks, and other public ways are generally rea-
sonable exactions to avoid excessive congestion from a pro-
posed property use. But on the record before us, the city
has not met its burden of demonstrating that the additional
number of vehicle and bicycle trips generated by petitioner's
development reasonably relate to the city's requirement for
a dedication of the pedestrian/ bicycle pathway easement.
The city simply found that the creation of the pathway "could
offset some of the traffic demand . . . and lessen the increase
in traffic congestion."10
As Justice Peterson of the Supreme Court of Oregon ex-
plained in his dissenting opinion, however, "[t]he findings of
fact that the bicycle pathway system 'could offset some of
the traffic demand' is a far cry from a finding that the bicycle
pathway system will, or is likely to, offset some of the traffic
demand." 317 Ore., at 127, 854 P. 2d, at 447 (emphasis in
original). No precise mathematical calculation is required,
but the city must make some effort to quantify its findings in
9 The city uses a weekday average trip rate of 53.21 trips per 1,000
square feet. Additional Trips Generated = 53.21 x (17,600 -9,720).
App. to Pet. for Cert. G-16.
10 In rejecting petitioner's request for a variance from the pathway dedi-
cation condition, the city stated that omitting the planned section of the
pathway across petitioner's property would conflict with its adopted policy
of providing a continuous pathway system. But the Takings Clause re-
quires the city to implement its policy by condemnation unless the re-
quired relationship between petitioner's development and added traffic is
shown.
396 DOLAN u CITY OF TIGARD
STEVENS, J., dissenting
support of the dedication for the pedestrian/bicycle pathway
beyond the conclusory statement that it could offset some of
the traffic demand generated.
IV
Cities have long engaged in the commendable task of land
use planning, made necessary by increasing urbanization,
particularly in metropolitan areas such as Portland. The
city's goals of reducing flooding hazards and traffic conges-
tion, and providing for public greenways, are laudable, but
there are outer limits to how this may be done. aA strong
public desire to improve the public condition [will not] war-
rant achieving the desire by a shorter cut than the constitu-
tional way of paying for the change." Pennsylvania Coal,
260 U. S., at 416,
The judgment of the Supreme Court of Oregon is reversed,
and the case is remanded for further proceedings not incon-
sistent with this opinion.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN and
JUSTICE GINSBURG join, dissenting.
The record does not tell us the dollar value of petitioner
Florence Dolan's interest in excluding the public from the
greenway adjacent to her hardware business. The moun-
tain of briefs that the case has generated nevertheless makes
it obvious that the pecuniary value of her victory is far less
important than the rule of law that this case has been used
to establish. It is unquestionably an important ease.
Certain propositions are not in dispute. The enlargement
of the Tigard unit in Dolan's chain of hardware stores will
have an adverse impact on the city*s legitimate and substan-
tial interests in controlling drainage in Fanno Creek and
minimizing traffic congestion in Tigard's business district
That impact is sufficient to justify an outright denial of her
application for approval of the expansion. The city has nev-
Cite as: 512 U. S. 374 (1994) 397
STEVENS, J., dissenting
ertheless agreed to grant Dolan's application if she will com-
ply with two conditions, each of which admittedly will miti-
gate the adverse effects of her proposed development. The
disputed question is whether the city has violated the Four-
teenth Amendment to the Federal Constitution by refusing
to allow Dolan's planned construction to proceed unless those
conditions are met.
The Court is correct in concluding that the city may not
attach arbitrary conditions to a building permit or to a vari-
ance even when it can rightfully deny the application out-
right. I also agree that state court decisions dealing with
ordinances that govern municipal development plans provide
useful guidance in a case of this kind. Yet the Court's de-
scription of the doctrinal underpinnings of its decision, the
phrasing of its fledgling test of "rough proportionality," and
the application of that test to this case run contrary to the
traditional treatment of these cases and break considerable
and unpropitious new ground.
Candidly acknowledging the lack of federal precedent for
its exercise in rulemaking, the Court purports to find guid-
ance in 12 "representative" state court decisions. To do so
is certainly appropriate.1 The state cases the Court con-
sults, however, either fail to support or decidedly undermine
the Court's conclusions in key respects.
First, although discussion of the state cases permeates the
Court's analysis of the appropriate test to apply in this case,
the test on which the Court settles is not naturally derived
from those courts' decisions. The Court recognizes as an
initial matter that the city's conditions satisfy the "essential
nexus" requirement announced in Nollan v. California
Coastal Comm'n, 483 U. S. 825 (1987), because they serve
the legitimate interests in minimizing floods and traffic con-
1 Cf. Moore v. East Cleveland, 431 U. S. 494, 513-521 (1977) (STEVENS,
J., concurring in judgment).
398 DOLAN r CITY OF TIGARD
STEVENS, J,t dfc>M»ntiiur
gestlons. Ante, at 38T-388,2 The Court on, however,
to erect a new constitutional hurdle in the path of con-
ditions. In addition to showing a rational nexus to a public
purpose that would justify an outright denial of the permit,
the city must also demonstrate "rough proportionality11 be-
tween the harm by the new land use and the benefit
obtained by the condition. Ante, at 39L The Court also
decides for the first time that the city has the burden of es-
tablishing the constitutionality of Its conditions by making
an "individualized determination*1 the condition In ques-
tion the proportionality ivquin-mcnf,. See ibid.
Not one of the by the Court announces
anything akin to a "rough proportionality" requirement.
For the most part, moreover, invalidated
municipal ordinances did so on or
grounds roughly eqtmalt<nf to nexueff re-
quirement, e.g., St/t'ftfut' v. Platte, Nek
240, 292 N. W. 2d 297f :?01 iMtt fnnlinamv
lacking "reasonable relationship** or "rational nexus" to prop-
erty's violated Constitution); J. K. D.
/we. v, Atkinson, 121 M HL 681, risit r>s%, 432 A, 2d 12,
14-15 (1981) ^rntauli^). One pur-
*In the Court *•*•«•* ti'uVj*'! a the
grant of A une cjn th« of a |»r**ii.-rf - if the
il IH ^lIi-M JMV,*.J A
to the Uw };t*v.«";i'r. It
a condition is if the to a
goal that tho 4*B II 8., at HS7. In th*
Courts viewf a be If it the
to t for pa »*r- Jiy of tilt
was by /A, at 886* a re-
quireniMit^ n prni'i,\?i«>iit of to the
property, would to be * if it mil to
a development permit the to con-
struction of the In to the of the
must the to
by the a of the
Cite as: 512 U. S. 374 (1994) 399
STEVENS, J., dissenting
Porting to apply the strict "specifically and uniquely attribut-
able" test established by Pioneer Trust & Savings Bank v,
Mount Prospect, 22 111. 2d 375, 176 N. K 2d 799 (1961), never-
theless found that test was satisfied because the legislature
had decided that the subdivision at issue created the need
for a park or parks. Billings Properties, Inc. v. Yellowstone
County, 144 Mont 25, 33-36, 394 P. 2d 182, 187-188 (1964).
In only one of the seven cases upholding a land use regula-
tion did the losing property owner petition this Court for
certiorari. See Jordan v. Menomonee Falls, 28 Wis. 2d 608,
137 N. W. 2d 442 (1965), appeal dism'd, 385 U. S. 4 (1966)
(want of substantial federal question). Although 4 of the 12
ppinions mention the Federal Constitution — 2 of those only
in passing — it is quite obvious that neither the courts nor
the litigants imagined they might be participating in the
development of a new rule of federal law. Thus, although
these state cases do lend support to the Court's reaffirmance
°f Nollan's reasonable nexus requirement, the role the Court
Accords them in the announcement of its newly minted
second phase of the constitutional inquiry is remarkably
inventive.
In addition, the Court ignores the state courts' willingness
to consider what the property owner gains from the ex-
change in question. The Supreme Court of Wisconsin, for
example, found it significant that the village's approval of a
Proposed subdivision plat "enables the subdivider to profit
financially by selling the subdivision lots as home-building
sites and thus realizing a greater price than could have been
°btained if he had sold his property as unplatted lands."
Jordan v. Menomonee Falls, 28 Wis. 2d, at 619-620; 137
N. W. 2d, at 448. The required dedication as a condition of
that approval was permissible "[i]n return for this benefit."
Ibid. See also Collis v. Bloomington, 310 Minn. 5, 11-13,
246 N. W. 2d 19, 23-24 (1976) (citing Jordan); College Station
v. Turtle Rock Corp., 680 S. W. 2d 802, 806 (Tex. 1984) (dedi-
cation requirement only triggered when developer chooses
400 DOLAN r. CITY OF TIGARD
STEVENS, JL, <!i.-M>nling
to develop land). In this case, moreover, Dolarfs acceptance
of the permit^ with its attached conditions, would provide
her with benefits that may well go beyond any advantage
she gets from expanding her business. As the United
States pointed oat at oral argument, the improvement that
the city's drainage plan contemplates would widen the chan-
nel and reinforce the to increase the c-arrying capacity
during serious floods, "conferring] considerable benefits on
the property owners immediately adjacent to the creek/'
Tr. of Oral Arg, 41-42,
The state court decisions are enlightening in the ex-
tent to which they required that the parcel be given
controlling importance. All but one of the involve
challenges to provisions in municipal ordinances requiring
developers to dedicate either a percentage of the entire par-
cel (usually 7 or 10 percent of the subdivision) or an
equivalent value in (usually a dollar amount
per lot) to help the of utilities,
schools, parks^ and playgrounds. In assessing the legality
of the conditions, the no the
transfer of an interest in objectionable
than a payment. e. g** ln$. v. $car$tJuli\ 18
R Z 2d 78, 218 N. E. 2d 673 v. Mwowonce
28 Wis. 2d 608, 137 N, W 2d 442 v.
310 5# 10 of
the decisions the surrender of the fee owner's
''power to exclude" as *<ign I Ik-ana*. In-
the uniformly examined the rharueh-r of the
entire economic
II
It is not merely but our as well* that
require the to on the of the
on the entire of private In
Co. v, Nm/ 488 U S, 104 we
that takings jurisprudence not a
Cite as: 512 U. S. 374 (1994) 401
STEVENS, J., dissenting
into discrete segments and attempt to determine whether
rights in a particular segment have been entirely abro-
gated." 7d, at 130-131. Instead, this Court focuses "both
on the character of the action and on the nature and extent
of the interference with rights in the parcel as a whole."
Ibid. Andrus v. Allard, 444 U. S. 51 (1979), reaffirmed the
nondivisibility principle outlined in Penn Central, stating
that "[a]t least where an owner possesses a full 'bundle' of
property rights, the destruction of one 'strand' of the bundle
is not a taking, because the aggregate must be viewed in its
entirety." 444 U. S., at 65-66.3 As recently as last Term,
we approved the principle again. See Concrete Pipe &
Products of CaL, Inc. v. Construction Laborers Pension
Trust for Southern CaL, 508 U. S. 602, 644 (1993) (explaining
that "a claimant's parcel of property [cannot] first be divided
into what was taken and what was left" to demonstrate a
compensable taking). Although limitation of the right to ex-
clude others undoubtedly constitutes a significant infringe-
ment upon property ownership, Kaiser Aetna v. United
States, 444 U. S. 164, 179-180 (1979), restrictions on that
right do not alone constitute a taking, and do not do so in
any event unless they "unreasonably impair the value or use"
of the property. PruneYard Shopping Center v. Robins, 447
U. S. 74, 82-84 (1980).
The Court's narrow focus on one strand in the property
owner's bundle of rights is particularly misguided in a case
involving the development of commercial property. As Pro-
fessor Johnston has noted:
"The subdivider is a manufacturer, processer, and
marketer of a product; land is but one of his raw materi-
als. In subdivision control disputes, the developer is
8 Similarly, in Keystone Bituminous Coal Assn. v. DeBenedictis, 480
U. S. 470, 498-499 (1987), we concluded that "[t]he 27 million tons of coal
do not constitute a separate segment of property for takings law pur-
poses" and that "[t]here is no basis for treating the less than 2% of petition-
ers' coal as a separate parcel of property."
402 DOLAN u CITY OF TIGARD
STEVENS, J., dissenting
not defending hearth and home against the king's intru-
sion, but simply attempting to maximize his profits from
the sale of a finished product, As applied to him, subdi-
vision control exactions are actually business regula-
tions." Johnston, Constitutionality of Subdivision Con-
trol Exactions: The Quest for A Rationale, 52 Cornell L.
Q. 871, 923 (1967).4
The exactions associated with the development of a retail
business are likewise a species of business regulation that
heretofore warranted a strong presumption of constitu-
tional validity.
In Johnston's view, "if the municipality can demonstrate
that its assessment of financial burdens against subdividers
is rational, Impartial^ and conducive to fulfillment of author-
ized planning objectives, its action need be invalidated only
in those extreme and presumably rare where the bur-
den of compliance is sufficiently great to deter the owner
from proceeding with his planned development/" /<£, at 917.
The city of Tigard has demonstrated that its plan is rational
and impartial and that the conditions at are "conducive
to fulfillment of authorized planning objectives/' Dokn, on
the other hand, has offered no evidence that her burden of
compliance has any impact at all on the value or profitability
of her planned development. Following the teaching of the
cases on which it purports to rely, the Court should not iso-
late the burden associated with the of the to ax-
4 Johnston's article also forth a Mr nummary of the from
which the Court purports to derive its **r0ugh projx>rtl<malily** See
52 Cornell L. Q., at 917. Like the Court, Johnston that
requiring a **rational nerosw between exactions public ersated
by the new subdivision— especially Jordan v. 28 Wia.
2d 008, 137 N. W. 2d 442 (1966)— a the
*4judidal obatracttoiidsm11 of Trmt & v.
Prnsjmt, 22 III 2d 87S, 176 N. E. 2d 799 (1961), and the
ease* of Billings Pwp@Him9 Inc. v. 144 Mont 26, S94
R 2d 182 Q964X 62 Cornell L* Q., at 917,
Cite as: 512 U. S. 374 (1994) 403
STEVENS, J., dissenting
elude from an evaluation of the benefit to be derived from
the permit to enlarge the store and the parking lot.
The Court's assurances that its "rough proportionality"
test leaves ample room for cities to pursue the "commendable
task of land use planning," ante, at 396 — even twice avowing
that "[n]o precise mathematical calculation is required," ante,
at 391, 395 — are wanting given the result that test compels
here. Under the Court's approach, a city must not only
"quantify its findings," ante, at 395, and make "individualized
determination^]" with respect to the nature and the extent
of the relationship between the conditions and the impact,
ante, at 391, 393, but also demonstrate "proportionality."
The correct inquiry should instead concentrate on whether
the required nexus is present and venture beyond considera-
tions of a condition's nature or germaneness only if the devel-
oper establishes that a concededly germane condition is so
grossly disproportionate to the proposed development's ad-
verse effects that it manifests motives other than land use
regulation on the part of the city.5 The heightened require-
ment the Court imposes on cities is even more unjustified
when all the tools needed to resolve the questions presented
by this case can be garnered from our existing case law.
Ill
Applying its new standard, the Court finds two defects
in the city's case. First, while the record would adequately
support a requirement that Dolan maintain the portion of
the floodplain on her property as undeveloped open space, it
does not support the additional requirement that the flood-
plain be dedicated to the city. Ante, at 392-395. Second,
6Dolan's attorney overstated the danger when he suggested at oral
argument that without some requirement for proportionality, "[t]he City
could have found that Mrs. Dolan's new store would have increased traffic
by one additional vehicle trip per day [and] could have required her to
dedicate 75, 95 percent of her land for a widening of Main Street." Tr. of
Oral Arg. 62-53.
404 DOLAN u CITY OF T1GARD
STEVENS, J., dissenting
while the city adequately established the traffic increase that
the proposed development would generate, it failed to quan-
tify the offsetting decrease in automobile traffic that the bike
path will produce. Ante, at S95-396. Even under the
Court's new rule, both defects are, at most, nothing more
than harmless error.
In her objections to the floodplain condition, Dolan made
no effort to demonstrate that the dedication of that portion
of her property would be any more onerous than a simple
prohibition against any development on that portion of her
property. Given the commercial character of both the exist-
ing and the proposed use of the property as a retail store, it
seems likely that potential customers "trampling along pe-
titioner's fioodplain/1 ante, at 393r are more valuable than
a useless parcel of vacant land- Moreover, the duty to pay
taxes and the responsibility for potential tort liability may
well make ownership of the fee interest in land a
liability rather than an That may explain why Dolan
never conceded that she could be from building
on the floodplain. The city attorney also pointed out that
absent a dedication, property owners would be required to
"build on their own land" and "with their own money" a stor-
age facility for the water runoff. Tr» of Oral Arg. 30-31.
Dolan apparently "did have that option/* but chose not to
seek it. Id, at 31. If Dolan might entitled to a
variance confining the city's condition in a manner this Court
would accept, her failure to that narrower form of relief
at any of the judicial proceed-
ings clearly should preclude that in Court now
The Court's rejection of the condition amounts
to nothing more than a on words* Everyone
that the bike path "could" of the traffic
flow that the larger store will but the findings do
not unequivocally that it do so, or tell us just how
many cyelists will Predictions on such
matters are inherently nothing more than estimates. Cer-
Cite as: 512 U. S. 374 (1994) 405
STEVENS, J., dissenting
tainly the assumption that there will be an offsetting benefit
here is entirely reasonable and should suffice whether it
amounts to 100 percent, 35 percent, or only 5 percent of
the increase in automobile traffic that would otherwise occur.
If the Court proposes to have the federal judiciary micro-
manage state decisions of this kind, it is indeed extending
its welcome mat to a significant new class of litigants. Al-
though there is no reason to believe that state courts have
failed to rise to the task, property owners have surely found
a new friend today.
IV
The Court has made a serious error by abandoning the
traditional presumption of constitutionality and imposing a
novel burden of proof on a city implementing an admittedly
valid comprehensive land use plan. Even more consequen-
tial than its incorrect disposition of this case, however, is the
Court's resurrection of a species of substantive due process
analysis that it firmly rejected decades ago.6
The Court begins its constitutional analysis by citing Chi-
cago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 239 (1897), for
the proposition that the Takings Clause of the Fifth Amend-
ment is "applicable to the States through the Fourteenth
Amendment." Ante, at 383. That opinion, however, con-
tains no mention of either the Takings Clause or the Fifth
Amendment; 7 it held that the protection afforded by the Due
Process Clause of the Fourteenth Amendment extends to
matters of substance as well as procedure,8 and that the sub-
6 See, e. g.9 Ferguson v. Skrupa, 372 U. S. 726 (1963).
7 An earlier case deemed it "well settled" that the Takings Clause "is a
limitation on the power of the Federal government, and not on the States."
Pumpelly v. Green Bay Co., 13 Wall. 166, 177 (1872).
8 The Court held that a State "may not, by any of its agencies, disregard
the prohibitions of the Fourteenth Amendment. Its judicial authorities
may keep within the letter of the statute prescribing forms of procedure
in the courts and give the parties interested the fullest opportunity to be
heard, and yet it might be that its final action would be inconsistent with
that amendment. In determining what is due process of law regard must
406 DOLAN 11 CITY OF TIGARD
STEVENS, J.f dissenting'
stance of "the due process of law enjoined by the Fourteenth
Amendment requires compensation to be made or adequately
secured to the owner of private property taken for public
use under the authority of a State." 166 U S., at 285, 236-
241. It applied the kind of substantive due process
analysis more frequently identified with a better known case
that accorded similar substantive protection to a baker's
liberty interest in working 60 hours a week 10 hours a
day. See Lockmr v. New Yorkf 198 U S. 45
Later have interpreted the Fourteenth Amend-
ment's substantive protection against uncGmpensatedi depri-
vations of private property by the as though it incor-
porated the text of the Fifth Amendment^ Takings Clause.
See, e. g^ Coal v*
480 H S. 470f 481, n. 10 (1987). was nothing problem-
atic about that interpretation in the Four-
teenth Amendment that involved the
actual physical invasion of v.
Corp., 4m U. S. 419, 427-
4S3 (1982); v. 444 U S-f at
178-180. Justice a significant new course^
however, when he a law making
it "commercially impracticable fco
I4very nearly the for purposes as
appropriating or destroy in^ it/f Pi>HHx9j1witnn Co. v*
260 U. a 888f 414 The
be to not to form." E <ft Q. K. Cta, v,
166 U. a 226,
fThe Court to a
connection the and the in the
public haaltk 198 U- &, at 60*61. A to a
ciant an a lot
and the in minintking the of and con-
gestion to the in this the
Courft novel approsdiu
Cite as: 512 U. S. 374 (1994) 407
STEVENS, J., dissenting
takings" doctrine that the Holmes dictum10 kindled has an
obvious kinship with the line of substantive due process
cases that Lochner exemplified. Besides having similar an-
cestry, both doctrines are potentially open-ended sources of
judicial power to invalidate state economic regulations that
Members of this Court view as unwise or unfair.
This case inaugurates an even more recent judicial innova-
tion than the regulatory takings doctrine: the application of
the "unconstitutional conditions" label to a mutually benefi-
cial transaction between a property owner and a city The
Court tells us that the city's refusal to grant Dolan a discre-
tionary benefit infringes her right to receive just compensa-
tion for the property interests that she has refused to dedi-
cate to the city "where the property sought has little or no
relationship to the benefit."11 Although it is well settled
that a government cannot deny a benefit on a basis that
infringes constitutionally protected interests — "especially
[one's] interest in freedom of speech," Perry v. Sindermann,
408 U. S. 593, 597 (1972)— the "unconstitutional conditions"
doctrine provides an inadequate framework in which to ana-
lyze this case.12
10 See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S., at
484 (explaining why this portion of the opinion was merely "advisory").
11 Ante, at 385. The Court's entire explanation reads: "Under the well-
settled doctrine of 'unconstitutional conditions/ the government may not
require a person to give up a constitutional right — here the right to re-
ceive just compensation when property is taken for a public use — in ex-
change for a discretionary benefit conferred by the government where the
benefit sought has little or no relationship to the property."
12 Although it has a long history, see Home Ins. Co. v. Morse, 20 Wall.
445, 451 (1874), the "unconstitutional conditions" doctrine has for just as
long suffered from notoriously inconsistent application; it has never been
an overarching principle of constitutional law that operates with equal
force regardless of the nature of the rights and powers in question. See,
e. g., Sunstein, Why the Unconstitutional Conditions Doctrine is an Anach-
ronism, 70 B. U. L. Rev. 593, 620 (1990) (doctrine is "too crude and too
general to provide help "in contested cases"); Sullivan, Unconstitutional
408 DOLAN u CITY OF TIGARD
STEVENS, J., dissenting
Dolan has no right to be compensated for a taking unless
the city acquires the property interests that she has refused
to surrender. Since no taking has yet occurred, there has
not been any infringement of her constitutional right to com-
pensation. See Preseault v. ICC, 494 U. S. 1, 11-17 (1990)
(finding takings claim premature because property owner
had not yet sought compensation under Tucker Act); Hodel
v. Virginia Surface Mining & Reclamation Assn., Inc., 452
U. S. 264, 294-295 (1981) (no taking where no one "identified
any property . . . that has allegedly been taken").
Even if Dolan should accept the city's conditions in ex-
change for the benefit that she seeks, it would not necessarily
follow that she had been denied "just compensation" since it
would be appropriate to consider the receipt of that benefit
in any calculation of "just compensation," See Pennsylva-
nia Coal Co. v. Mahon, 260 U. S., at 415 (noting that an "av-
erage reciprocity of advantage" was deemed to justify many
laws); Hodel v. Irving, 481 U S. 704, 715 (1987) (such "'reci-
procity of advantage' " weighed in favor of a statute's consti-
Conditions, 102 Harv. L. Rev. 1415, 1416 (1989) (doctrine is "riven with
inconsistencies"); Hale, Unconstitutional Conditions and Constitutional
Rights, 35 Colum. L, Rev. 321, 322 (1935) ("The Supreme Court has sus-
tained many such exertions of power even after announcing the broad
doctrine that would invalidate them")- As the majority's case citations
suggest, ante, at 385, modern decisions invoking the doctrine have most
frequently involved First Amendment liberties, see also, e, g.f Connick v.
Myers, 461 U. S. 138, 143-144 (1983); Elrod v. Bums, 427 U S. 347, 361-363
(1976) (plurality opinion); Sherbert v. Vemer, 374 U. S. 398, 404 (1963);
Speiser v. Randall, 357 U S. 513, 518-619 (1958). But see Posadas de
Puerto Rico Associates v. Tourism Ca of P. R., 478 U* S. 328, 346-346
(1986) ("[T]he greater power to completely ban casino gambling necessar-
ily includes the lesser power to ban advertising of casino gambling**). The
necessary and traditional breadth of municipalities' power to regulate
property development, together with the absence here of fragile and easily
"chilled" constitutional rights such as that of free speech, make it quite
clear that the Court is really writing on a dean slate rather than merely
applying "well-settled" doctrina Ante, at 386,
Cite as: 512 U. S. 374 (1994) 409
STEVENS, X, dissenting
tutionality). Particularly in the absence of any evidence on
the point, we should not presume that the discretionary ben-
efit the city has offered is less valuable than the property
interests that Dolan can retain or surrender at her option.
But even if that discretionary benefit were so trifling that it
could not be considered just compensation when it has "little
or no relationship" to the property, the Court fails to explain
why the same value would suffice when the required nexus
is present. In this respect, the Court's reliance on the "un-
constitutional conditions" doctrine is assuredly novel, and
arguably incoherent. The city's conditions are by no means
immune from constitutional scrutiny. The level of scrutiny,
however, does not approximate the kind of review that would
apply if the city had insisted on a surrender of Dolan's First
Amendment rights in exchange for a building permit. One
can only hope that the Court's reliance today on First
Amendment cases, see ante, at 385 (citing Perry v. Binder-
mann, supra, and Pickering v. Board of Ed. of Township
High School Dist 205, Will Cty., 391 U. S. 563, 568 (1968)),
and its candid disavowal of the term "rational basis" to de-
scribe its new standard of review, see ante, at 391, do not
signify a reassertion of the kind of superlegislative power
the Court exercised during the Lochner era.
The Court has decided to apply its heightened scrutiny to
a single strand — the power to exclude — in the bundle of
rights that enables a commercial enterprise to flourish in an
urban environment. That intangible interest is undoubtedly
worthy of constitutional protection — much like the grand-
mother's interest in deciding which of her relatives may
share her home in Moore v. East Cleveland, 431 U. S. 494
(1977). Both interests are protected from arbitrary state
action by the Due Process Clause of the Fourteenth Amend-
ment. It is, however, a curious irony that Members of the
majority in this case would impose an almost insurmountable
burden of proof on the property owner in the Moore case
410 DOLAN u CITY OF TIGARD
STEVENS, J., dissenting
while saddling the city with a heightened burden in this
case.13
In its application of what is essentially the doctrine of
substantive due process, the Court confuses the past with
the present. On November 13, 1922, the village of Euclid,
Ohio, adopted a zoning ordinance that effectively confiscated
75 percent of the value of property owned by the Ambler
Realty Company. Despite its recognition that such an ordi-
nance "would have been rejected as arbitrary and oppres-
sive" at an earlier date, the Court (over the dissent of
Justices Van Devanter, McReynolds, and Butler) upheld
the ordinance. Today's majority should heed the words of
Justice Sutherland:
"Such regulations are sustained, under the complex con-
ditions of our day, for reasons analogous to those which
justify traffic regulations, which, before the advent of
automobiles and rapid transit street railways, would
have been condemned as fatally arbitrary and unreason-
able. And in this there is no inconsistency, for while
the meaning of constitutional guaranties never varies,
the scope of their application must expand or contract
13 The author of today's opinion joined Justice Stewart's dissent in Moore
v. East Cleveland, 431 U. S. 494 (1977). There the dissenters found it
sufficient, In response to my argument that the zoning ordinance was an
arbitrary regulation of property rights, that "if the ordinance is a rational
attempt to promote 'the city's interest in preserving the character of its
neighborhoods/ Young v. American Mini Theatre®, [Inc.J 427 U. 8, 50,
71 (opinion of STEVENS, Jl), It is ... a permissible restriction on the use of
private property under Bwlid v. Ambler Realty Co*, 272 U. S. 365, and
Nectow v. Cambridge, 277 U. S. 188." Id,, at 640, ru 10- The dissent went
on to state that my calling the city to task for MHng to expiate the need
for enacting the ordinance "place{d] the burden on the wrong party."
Ibid, (emphasis added). Recently, two other Members of today's majority
severely criticized the holding in Moore. See Unit0d Statm v, Carlton,
512 U. S. 26, 40-42 (1994) (SCAUA, J., concurring In judgment); see also
id, at 39 (SCAXJA, J,, concurring in judgment) (calling the doctrine of sub-
stantive due process **an oxymoron").
Cite as: 512 U. S. 374 (1994) 411
SOUTER, J., dissenting
to meet the new and different conditions which are
constantly coming within the field of their operation.
In a changing world, it is impossible that it should be
otherwise." Village of Euclid v. Ambler Realty Co.,
272 U. S. 365, 387 (1926).
In our changing world one thing is certain: uncertainty
will characterize predictions about the impact of new urban
developments on the risks of floods, earthquakes, traffic con-
gestion, or environmental harms. When there is doubt con-
cerning the magnitude of those impacts, the public interest
in averting them must outweigh the private interest of the
commercial entrepreneur. If the government can demon-
strate that the conditions it has imposed in a land use permit
are rational, impartial and conducive to fulfilling the aims of
a valid land use plan, a strong presumption of validity should
attach to those conditions. The burden of demonstrating
that those conditions have unreasonably impaired the eco-
nomic value of the proposed improvement belongs squarely
on the shoulders of the party challenging the state action's
constitutionality. That allocation of burdens has served us
well in the past. The Court has stumbled badly today by
reversing it.
I respectfully dissent.
JUSTICE SOUTER, dissenting.
This case, like Nollan v. California Coastal Comm'n, 483
U. S. 825 (1987), invites the Court to examine the relation-
ship between conditions imposed by development permits,
requiring landowners to dedicate portions of their land for
use by the public, and governmental interests in mitigating
the adverse effects of such development. Nollan declared
the need for a nexus between the nature of an exaction of an
interest in land (a beach easement) and the nature of govern-
mental interests. The Court treats this case as raising a
further question, not about the nature, but about the degree,
of connection required between such an exaction and the
412 DOLAN u CITY OF TIGARD
SQUTBR, J.> dissenting
adverse effects of development. The Court's opinion an-
nounces a test to address this question, but as I read the
opinion, the Court does not apply that test to these facts,
which do not raise the question the Court addresses,
First, as to the floodplain and greenway, the Court ac-
knowledges that an easement of this land for open space (and
presumably including the five feet required for needed creek
channel improvements) is reasonably related to flood control,
see ante, at 387, 392-393, but argues that the "permanent
recreational easement** for the public on the greenway is not
so related, see ante, at 393-395. If that is so, it is not be-
cause of any lack of proportionality between permit condition
and adverse effect, but because of a lack of any rational con-
nection at all between exaction of a public recreational area
mid the governmental interest in providing for the effect of
increased water runoff. That is merely an application of Noi-
lan*B nexus analysis. As the Court M[i]f petitioner %
proposed development had somehow encroached on existing
greenway in the city, it would have to
require petitioner to provide some alternative greenway
space for the public/* Ante, at 394. But that, of course!
was not the fact, and the city of Tigard never sought to jus-
tify the public portion of the is to
flood control It merely that whatever recreational
uses were made of the bicycle pith and the 1-foot on
either side incidental to the permit condition requiring
dedication of the 15-foot for an 8-foot-wide bicycle
path and for flood eontrolf Including requirements
and relocation of the bank of the river by 5 It
seems to me such incidental use can or Ml
with the bicycle path, which the city justified by to
traffic congestion. As to the relationship the Court
ines, between the recreational a purpose
put forth as a justification by the city, the Court unsurpris-
ingly finds a recreation to be to control.
Cite as: 512 U. S. 374 (1994) 413
SOUTER, J., dissenting
Second, as to the bicycle path, the Court again acknowl-
edges the "theoretically]" reasonable relationship between
"the city's attempt to reduce traffic congestion by providing
[a bicycle path] for alternative means of transportation,"
ante, at 387, and the "correct" finding of the city that "the
larger retail sales facility proposed by petitioner will in-
crease traffic on the streets of the Central Business Dis-
trict," ante, at 395. The Court only faults the city for saying
that the bicycle path "could" rather than "would" offset the
increased traffic from the store, ante, at 396. That again, as
far as I can tell, is an application of Nollan, for the Court
holds that the stated connection ("could offset") between
traffic congestion and bicycle paths is too tenuous; only if
the bicycle path "would" offset the increased traffic by some
amount could the bicycle path be said to be related to the
city's legitimate interest in reducing traffic congestion.
I cannot agree that the application of Nollan is a sound one
here, since it appears that the Court has placed the burden of
producing evidence of relationship on the city, despite the
usual rule in cases involving the police power that the gov-
ernment is presumed to have acted constitutionally.* Hav-
ing thus assigned the burden, the Court concludes that the
city loses based on one word ("could" instead of "would"),
and despite the fact that this record shows the connection
the Court looks for. Dolan has put forward no evidence that
*See, e. g., Goldblatt v. Hempstead, 369 U. S. 590, 594-596 (1962); United
States v. Sperry Corp., 493 U. S. 52, 60 (1989). The majority characterizes
this case as involving an "adjudicative decision" to impose permit condi-
tions, ante, at 391, n. 8, but the permit conditions were imposed pursuant
to Tigard's Community Development Code. See, e. g., § 18.84.040, App. to
Brief for Respondent B-26. The adjudication here was of Dolan's re-
quested variance from the permit conditions otherwise required to be im-
posed by the Code. This case raises no question about discriminatory, or
"reverse spot," zoning, which "singles out a particular parcel for different,
less favorable treatment than the neighboring ones." Penn Central
Tramp. Co. v. New York City, 438 U. S. 104, 132 (1978).
414 n CITY OK
J.,
the burden of a for the bicycle path Is
unrelated in kind to the anticipator! In traffic conges-
tion, nor, if a the relationship
be In dwnvc, has the fails
any such The city, by the in-
flow would Doian's proposed
development to be 4#5 |M?r day, and its Comprehensive
Plan, here, 011 -huuing the link be-
tween alternative of transportation, including bicycle
and & 0., App,
to Brief for A~5, quoting City of Tigard's Com-
prehc»nsive Plan (MIRiryrle mid
will in of within the
community**1). Is and on that
assumption the not be to fail a
further nr any might
be devised to to the «v*n>t{fsi*it»nal As
common
ivtiuirhitf sulxlhitlHY to , , ,
to public are In our constitutional
because the property use other-
be the of 4*x<vsslve ronp^tiun/1 v. Saw
486 US. 1, 20 Xf concurring in part
and in The condition
Is w>
In my m my r< wlin& the conclusion**
the the n0 Afoi-
lan hw and I do net thin aa a
for the law The ease
for the enunciation of to
Set v, Carolina rv*////r/7> PS U S. 1008,
1076 of foirTKK. J.),
OCTOBER TERM, 1993 415
Syllabus
HONDA MOTOR CO., LTD., ET AL. v. OBERG
CERTIORARI TO THE SUPREME COURT OF OREGON
No. 93-644. Argued April 20, 1994— Decided June 24, 1994
After finding petitioner Honda Motor Co., Ltd., liable for injuries re-
spondent Oberg received while driving a three-wheeled all-terrain vehi-
cle manufactured and sold by Honda, an Oregon jury awarded Oberg
$5 million in punitive damages, over five times the amount of his
compensatory damages award. In affirming, both the State Court of
Appeals and the State Supreme Court rejected Honda's argument that
the punitive damages award violated due process because it was ex-
cessive and because Oregon courts have no power to correct excessive
verdicts under a 1910 amendment to the State Constitution, which pro-
hibits judicial review of the amount of punitive damages awarded by a
jury "unless the court can affirmatively say there is no evidence to
support the verdict." The latter court relied heavily on the fact that
the State's product liability punitive damages statute and the jury in-
structions in this case provided at least as much guidance as those
upheld in Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1. The court
also declined to interpret Haslip to hold that due process requires the
amount of a punitive damages award to be subject to postverdict or
appellate review, and noted that Oregon courts are not powerless be-
cause they may vacate a judgment if there is no evidence supporting
the jury's decision, and because appellate review is available to test the
sufficiency of jury instructions.
Held: Oregon's denial of review of the size of punitive damages awards vio-
lates the Fourteenth Amendment's Due Process Clause. Pp. 420-435.
(a) The Constitution imposes a substantive limit on the size of puni-
tive damages awards. Pacific Mut Life Ins. Co. v. Haslip, 499 U. S. 1;
TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443. The
opinions in these cases strongly emphasized the importance of the pro-
cedural component of the Due Process Clause, and suggest that the
analysis here should focus on Oregon's departure from traditional pro-
cedures. Pp. 420-421.
(b) Judicial review of the size of punitive damages awards was a safe-
guard against excessive awards under the common law, see, e. g., Blunt
v. Little, 3 R Cas. 760, 761-762, and in modern practice in the federal
courts and every State, except Oregon, judges review the size of such
awards. See, e. g., Dagnello v. Long Island R. Co., 289 F. 2d 797, 799-
800, n. 1. Pp. 421-426.
416 CO. n
fyllabu*
(c) Thc»r«* i«* a rrww under the
law and thi* of an At otace
the* Court the 1910 in
Vtt« Lorn v* Ih7 Or**, #Sf 210 P. 2rJ 461, Oregon kw has
provided no for or a punitive
the for ii* the No Ore-
court fur ha$ or prejudice
the iizi1 of i awl no In g
ha» even it the to do «t. If courts
had the ftij ?•••!:,• Court it in
to ,ijv*,j::*« :/ in vi»ry Thf* review ig
in to punitive
not the i*%?if!i*nei* the
leaving the a IM* pun-
Pp.
(d; Thin Court hm not In flw! ;>ruo^'djii,; vit.Ltive of due
a han »»j ;* «'•;) »-, tahji luul common-
arbitrary :i'!;*»rH»Mf ion fe gn
v. 0lii£i, 273 IX 8. an
of t!**j«r"va*i"! of j»r ,jirT*y. typically
the in mwl evi-
dence of a net llii> will
use til big h§8
one of the few procwtural the kw
I rMvMii;/
and any th** ilung^r han in miy
v. 111) 11 8,
Ca v, 826 11 a 310* *M t:!i;*:.; h»-l 1*^
(6) i affiMiarl,* haa limi-
tation of to th* in the
ttit mud of Jin--."! 'IiVi of
ft:i!:.:ur^ , mil
d0 not Mift*giiar«! ar!*^niry Nw the
ftat a to a with
a in a for in civil
The Due iurbitrary of
but Its to to of
Or iTojrtTty. P^
316 Om 263» SSI E £d awl
lf the of the in
T ?i »THIKK, .iiifi THUMAS. JJ., >nw*d,
Cite as: 512 U. S. 415 (1994) 417
Syllabus
J., filed a concurring opinion, post, p. 435, GINSBURG, J., filed a dissent-
ing opinion, in which REHNQUIST, C. J., joined, post, p. 436.
Andrew L. Frey argued the cause for petitioners. With
him on the briefs were Kenneth S. Getter, Charles A. Roth-
feld, Evan M. Tager, Thomas W. Brown, Jeffrey R. Brooke,
and Paul G. Cereghini.
Laurence H. Tribe argued the cause for respondent.
With him on the brief were William A. Gaylord, Kenneth
J. Chesebro, Michael H. Gottesman, and Raymond F.
Thomas*
*Briefs of amid curiae urging reversal were filed for the American
Council of Life Insurance et al. by Erwin N. Griswold, Patricia A Dunn,
Stephen J. Goodman, Richard E. Barnsback, Phillip E. Stano, and Pat-
rick J. McNally; for the Equal Employment Advisory Council by Dowlas
S. McDowell and Kimberly L. Japinga; for the Product Liability Advisory
Council, Inc., et al. by Malcolm E. "Wheeler; for Snap-on Tools Corp. et al.
by Gary M. Elden and Donald A Vogelsang; and for the Washington
Legal Foundation by Arvin Maskin, Steven Alan Reiss, Peter A Anto-
nucci, Daniel J. Popeo, and Paul D. Kamenar.
Briefs of amid curiae urging affirmance were filed for the State of
Hawaii et al. by Theodore R. Kulongoski, Attorney General of Oregon,
Thomas A Balmer, Deputy Attorney General, Virginia L. Linder, Solici-
tor General, and Rives Kistler, Assistant Attorney General, Robert A
Marks, Attorney General of Hawaii, Robert 7! Stephan, Attorney General
of Kansas, Hubert H. Humphrey III, Attorney General of Minnesota, Mike
Moore, Attorney General of Mississippi, and Joseph P. Mazurek, Attorney
General of Montana; for the Association of Trial Lawyers of America by
Jeffrey Robert White, Cheryl Flax-Davidson, and Barry J. Nace; and for
Trial Lawyers for Public Justice by Arthur H. Bryant, Leslie Brueckner,
and Michael Rustad.
Briefs of amici curiae were filed for CBS Inc. et al. by R Cameron
DeVore, Marshall J. Nelson, Douglas R Jacobs, David C. Kohler, Dever-
eaux Chatillon, Mark L. Tuft, Harold W. Fuson, Jr., R. Bruce Rich, Ken-
neth M. Vittor, Slade R. Metcalf, John F. Sturm, Ren4 P. Milam, J.
Laurent Scharff, Jane E. Kirtley, Bruce W. Sanford, and Henry S. Hober-
man; for Legal Historian Daniel R, Coquillette et aL by Arthur F. McEvoy
III; and for the Oregon Trial Lawyers Association by Kathryn H. Clarke
and Maureen Leonard.
418 HONDA MOTOR CO. v. OBERG
Opinion of the Court
JUSTICE STEVENS delivered the opinion of the Court.
An amendment to the Oregon Constitution prohibits judi-
cial review of the amount of punitive damages awarded by
a jury "unless the court can affirmatively say there is no
evidence to support the verdict." The question presented
is whether that prohibition is consistent with the Due Proc-
ess Clause of the Fourteenth Amendment. We hold that it
is not.
I
Petitioner Honda Motor Co., Ltd., manufactured and sold
the three-wheeled all-terrain vehicle that overturned while
respondent was driving it, causing him severe and perma-
nent injuries. Respondent brought suit alleging that peti-
tioner knew or should have known that the vehicle had an
inherently and unreasonably dangerous design* The jury
found petitioner liable and awarded respondent $919,890.39
in compensatory damages and punitive damages of $5 mil-
lion. The compensatory damages, however, were reduced
by 20% to $735,512.81, because respondent's own negligence
contributed to the accident. On appeal, relying on our
then-recent decision in Pacific Mut. Life Ins, Co. v. Hou&lip,
499 U. S. 1 (1991), petitioner argued that the award of puni-
tive damages violated the Due Process Clause of the Four-
teenth Amendment, because the punitive damages were ex-
cessive and because Oregon courts lacked the power to
correct excessive verdicts.
The Oregon Court of Appeals affirmed, as did the Oregon
Supreme Court, The latter court relied heavily on the fact
that the Oregon statute governing the award of punitive
damages in product liability actions and the jury instruc-
tions in this case * contain substantive criteria that provide
1 The jury instructions, in relevant port, read: ** 'Punitive damages may
be awarded to the plaintiff in addition to general to punish
wrongdoers and to discourage wanton misconduct. In order for plaintiff
to recover punitive damages against the defendantfsj, the plaintiff must
Cite as: 512 U. S. 415 (1994) 419
Opinion of the Court
at least as much guidance to the factfinders as the Alabama
statute and jury instructions that we upheld in Haslip. The
Oregon Supreme Court also noted that Oregon law provides
an additional protection by requiring the plaintiff to prove
entitlement to punitive damages by clear and convincing evi-
dence rather than a mere preponderance. Recognizing that
other state courts had interpreted Haslip as including a
"clear . . . constitutional mandate for meaningful judicial
scrutiny of punitive damage awards," Adams v. Murakami,
54 CaL 3d 105, 118, 813 P. 2d 1348, 1356 (1991); see also
Alexander & Alexander, Inc. v. B. Dixon Evander & Assocs.,
Inc., 88 Md. App. 672, 596 A. 2d 687 (1991), the court never-
theless declined to "interpret Haslip to hold that an award
of punitive damages, to comport with the requirements of
the Due Process Clause, always must be subject to a form
of post-verdict or appellate review that includes the possi-
bility of remittitur." 316 Ore. 263, 284, 851 P. 2d 1084, 1096
(1993). It also noted that trial and appellate courts were
"not entirely powerless" because a judgment may be vacated
if "there is no evidence to support the jury's decision," and
because "appellate review is available to test the suffi-
ciency of the jury instructions." Id., at 285, 851 P. 2d, at
1096-1097.
prove by clear and convincing evidence that defendants have] shown wan-
ton disregard for the health, safety, and welfare of others. ... If you de-
cide this issue against the defendants], you may award punitive dam-
ages, although you are not required to do so, because punitive damages
are discretionary, In the exercise of that discretion, you shall consider
evidence, if any, of the following: First, the likelihood at the time of the
sale [of the three-wheeled vehicle] that serious harm would arise from
defendants' misconduct. Number two, the degree of the defendants'
awareness of that likelihood. Number three, the duration of the miscon-
duct. Number four, the attitude and conduct of the defendants] upon
notice of the alleged condition of the vehicle. Number five, the financial
condition of the defendants]. And the amount of punitive damages may
not exceed the sum of $6 million.' " 316 Ore. 263, 282, n. 11, 851 P. 2d
1084, 1095, n. 11 (1993).
420 HONDA MOTOR CO. u OBERG
Opinion of the Court
We granted certiorari, 510 U. S. 1068 (1994), to consider
whether Oregon's limited judicial review of the size of pu-
nitive damages awards is consistent with our decision in
Haslip*
II
Our recent cases have recognized that the Constitution
imposes a substantive limit on the size of punitive damages
awards. Pacific Mut Life Ins. Co. v. Haslip, 499 U. S. 1
(1991); TXO Production Corp. v. Alliance Resources Corp.,
509 U. S. 448 (1993). Although they fail to "draw a mathe-
matical bright line between the constitutionally acceptable
and the constitutionally unacceptable/* id., at 458; Haslip,
499 U* S., at 18, a majority of the Justices agreed that the
Due Process Clause imposes a limit on punitive damages
awards. A plurality in TXO assented to the proposition that
"grossly excessive" punitive damages would violate due
process, 509 U. S., at 453-455, while JUSTICE O'CONNOR, who
dissented because she favored more rigorous standards,
noted that "[i]t is thus common ground that an award may
be so excessive as to violate due process/1 id»> at 480* In
the case before us today we are not directly concerned with
the character of the standard that will identify unconstitu-
tionally excessive awards; rather, we are confronted with the
question of what procedures are necessary to ensure that
punitive damages are not imposed in an arbitrary manner.
More specifically, the question is whether the Due Process
Clause requires judicial review of the amount of punitive
damages awards*
The opinions in both Haslip mid TXO strongly empha-
sized the importance of the procedural component of the
Due Process Clause. In Haslip* the Court held that the
common-law method of assessing punitive damages did not
violate procedural due process* In so holding, the Court
stressed the availability of both "meaningfal and adequate
review by the trial court" and subsequent appellate review*
499 U. S., at 20. Similarly, in TXO, the plurality opinion
Cite as: 512 U. S. 415 (1994) 421
Opinion of the Court
found that the fact that the "award was reviewed and up-
held by the trial judge" and unanimously affirmed on ap-
peal gave rise "to a strong presumption of validity. " 509
U. S., at 457. Concurring in the judgment, JUSTICE SCALIA
(joined by JUSTICE THOMAS) considered it sufficient that
traditional common-law procedures were followed. In par-
ticular, he noted that " 'procedural due process' requires judi-
cial review of punitive damages awards for reasonableness."
Id., at 471.
All of those opinions suggest that our analysis in this
case should focus on Oregon's departure from traditional pro-
cedures. We therefore first contrast the relevant common-
law practice with Oregon's procedure, which that State's
Supreme Court once described as "a system of trial by jury-
in which the judge is reduced to the status of a mere moni-
tor." Van Lorn v. Schneiderman, 187 Ore. 89, 113, 210 P. 2d
461, 471 (1949). We then examine the constitutional impli-
cations of Oregon's deviation from established common-law
procedures.
Ill
Judicial review of the size of punitive damages awards
has been a safeguard against excessive verdicts for as long
as punitive damages have been awarded. One of the ear-
liest reported cases involving exemplary damages, Huckle
v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (C. P. 1763), arose
out of King George Ill's attempt to punish the publishers
of the allegedly seditious North Briton, No. 45. The Bang's
agents arrested the plaintiff, a journeyman printer, in his
home and detained him for six hours. Although the de-
fendants treated the plaintiff rather well, feeding him "beef
steakes and beer, so that he suffered very little or no dam-
ages," 2 Wils., at 205, 95 Eng. Rep., at 768, the jury awarded
him £300, an enormous sum almost 300 times the plain-
tiff's weekly wage. The defendant's lawyer requested a new
trial, arguing that the jury's award was excessive. Plain-
422 HONDA CO, n
Opinion of the Court
tiff's counsel, on the other handf argued that 4lin cases of
tort . „ „ the court will never interpose in ver-
dicts for Id., at 208 ? 95 Eng, Rep.,
at 788. While the court the motion for new trial,
the Chief Justice explicitly plaintiff's absolute rule
review of amounts. he that
when the are <4outrage0U8tf "all mankind at first
blush must think so/1 a court may a new trial "for
*«xcvsslve damages/1 Id, at 207» 95 Eng, Rep., at 769, In
accord with his view the of an rele-
vant to the motion for a new trial, the Chief Justice noted
that "[ulpon the whole I am of opinion the are not
excessive/1 /did
while tft*m>rally deferring to
the jury's determination of damu^i*^ the
court's power to on the that
the too high, v, 2 Black.
W. 929, 96 Bug, Eep, fi49 (C. E be so
and <*xrc*s.si\v, as to be in an evi-
dence of or in the jur\ #>V* v* Briee,
2 W. 942, 96 Eng, Rep. §57 CCL E ("It has never
downf the Court will not a trial for
i»xee*ssi\v in of tart11); v. Pope, 2
W. 1327, 96 Eng. Eep, 777, 778 (Cl E (w[I]n
of tort the Court will not on of the
largHM^s are so flagrantly
as to an <*vi<li*mv pn*j*iulin* portial*
8 An in ll is
0r rnm|if*nc-:iiory
is no rliflfi-r*'nt of
for and rmnprn^atMry the 20th ceidh
lury# no haii to out the two of
Sue Brief for E. «t al. an
2f 3, S*7» IS f(Ii;-eu.-Ht-iri^ injuryf and
Cite as: 512 U. S. 415 (1994) 423
Opinion of the Court
ity of the jury"); Jones v. Sparrow, 5 T. R. 257, 101 Eng. Rep.
144 (K. B. 1793) (new trial granted for excessive damages);
Goldsmith v. Lord Sefton, 3 Anst. 808, 145 Eng. Rep. 1046
(Exch. 1796) (same); Hewlett v. Cruchley, 5 Taunt. 277, 281,
128 Eng. Rep. 696, 698 (C. P. 1813) ("[I]t is now well acknowl-
edged in all the Courts of Westminster-hall, that whether
in actions for criminal conversation, malicious prosecutions,
words, or any other matter, if the damages are clearly too
large, the Courts will send the inquiry to another jury").
Respondent calls to our attention the case of Beardmore
v. Carrington, 2 Wils. 244, 95 Eng. Rep. 790 (C. P. 1764),
in which the court asserted that "there is not one single
case, (that is law), in all the books to be found, where the
court has granted a new trial for excessive damages in ac-
tions for torts/' Id., at 249, 95 Eng. Rep., at 793. Re-
spondent would infer from that statement that 18th-century
common law did not provide for judicial review of damages.
Respondent's argument overlooks several crucial facts.
First, the Beardmore case antedates all but one of the cases
cited in the previous paragraph. Even if respondent's in-
terpretation of the case were correct, it would be an in-
terpretation the English courts rejected soon thereafter.
Second, Beardmore itself cites at least one case that it con-
cedes granted a new trial for excessive damages, Chambers
v. Robinson, 2 Str. 691, 93 Eng. Rep. 787 (K. B. 1726), al-
though it characterizes the case as wrongly decided. Third,
to say that "there is not one single case ... in all the books"
is to say very little, because then, much more so than now,
only a small proportion of decided cases was reported. For
example, for 1764, the year Beardmore was decided, only 16
Common Pleas cases are recorded in the standard reporter.
2 Wils. 208-257, 95 Eng. Rep. 769-797. Finally, the infer-
ence respondent would draw, that 18th-century English com-
mon law did not permit a judge to order new trials for exces-
sive damages, is explicitly rejected by Beardmore itself,
424 HONDA MOTOR CO. r. OBERO
Opinion of the Court
which cautioned against that very inference*: **We desired to
be understood that this court not say, or lay down any
rule that there can never happen a of such excessive
damages in tort where the court may not grant a new trial/'
2 Wils., at 250t 95 Bng, Rep., at 7911
Common-law courts in the United followed their
English predecessors in providing judicial review of the size
of damages awards. They too emphasized the deference
ordinarily afforded jury verdicts^ but they recognized that
juries sometimes awarded HO high as to require
correction. Thus, in 1822, Justice Story, sitting as Circuit
Justice, ordered a new trial unless the plaintiff agreed to
a reduction in his damages.3 In explaining his ruling, he
noted:
"As to the of i*xtvssivfi damages, ! that
the court may grant a trial for «*x< vssix ** damages. . „ .
It is an of full of and
difficulty, But if it the jury
committed a errort or from im-
proper motives, or damage c»\n»ssivo in
relation to the or the injury, it in as much the
duty of the court to to prevent the wrong,
as in any v* Little, 3 F. Gas. 760,
761-7(52 (No. (CO
See also Whippl? v. €b»f 29 F. 934,
(No. 17, 516) (CC Me
8 White of a in with
prmvdutv, the n*»MttIfur withdrawal of
trial if the plaintiff to m of flaina^* may
m innovation. S«t v. 2S» U 8> 47 i, 4x: 4xfi <
On tJbe other haadf m than
previously thought. See v* 2 T, R. 100 Eep*
106 (K. B. f 10Jn m in the to «tt the
verdict for . , . the Court m eornpro-
end OB to <li.-Thur>n»<l
the rule**).
Cite as: 512 U. S. 415 (1994) 425
Opinion of the Court
In the 19th century, both before and after the ratification
of the Fourteenth Amendment, many American courts re-
viewed damages for "partiality" or "passion and prejudice."
Nevertheless, because of the difficulty of probing juror rea-
soning, passion and prejudice review was, in fact, review of
the amount of awards. Judges would infer passion, preju-
dice, or partiality from the size of the award.4 Coffin v. Cof-
fin, 4 Mass. 1, 41 (1808) (In cases of personal injury, "a verdict
may be set aside for excessive damages" when "from the
exorbitancy of them the court must conclude that the jury
acted from passion, partiality, or corruption"); Taylor v.
Giger, 3 Ky. 586, 587 (1808) ("In actions of tort ... a new
trial ought not to be granted for excessiveness of damages,
unless the damages found are so enormous as to shew that
the jury were under some improper influence, or were led
astray by the violence of prejudice or passion"); McConnell
v. Hampton, 12 Johns. 234, 235 (N. Y. 1815) (granting new
trial for excessive damages and noting: "That Courts have
a legal right to grant new trials, for excessive damages in
actions for torts, is no where denied . . ."); Belknap v. Bos-
ton & Maine R. Co., 49 N. H. 358, 374 (1870) (setting aside
both compensatory and punitive damages, because "[w]e
think it evident that the jury were affected by some partial-
ity or prejudice").
Nineteenth-century treatises similarly recognized judges'
authority to award new trials on the basis of the size of dam-
ages awards. 1 D. Graham, A Treatise on the Law of New
Trials 442 (2d ed. 1855) ("[E]ven in personal torts, where
the jury find outrageous damages, clearly evincing partiality,
prejudice and passion, the court will interfere for the relief
4 This aspect of passion and prejudice review has been recognized in
many opinions of this Court Browning-Ferris Industries of Vt, Inc. v.
Kelco Disposal, Inc., 492 U. S. 257, 272 (1989); Pacific Mut. Life Ins. Co. v.
Haslip, 499 U. S, 1, 21, n. 10 (1991); id, at 27 (SCAUA, J., concurring); TXO
Production Corp. v. Alliance Resources Corp., 609 U. S. 448, 467 (1993)
(KENNEDY, J., concurring); id., at 476-478 (O'CONNOR, J., dissenting).
426 HONDA MOTOR OCX r.
Opinion of the Court
of the defendant, and order a new trial1*); T, Redjrwick, A
Treatise on the of 707 (5th eel 1869) ("The
court again holds itself at liberty to set verdicts and
grant new trials - . . whenever the are so excessive
as to create the belief that the jury have misled either
by passion, prejudice, or ignorance*1); 3 J. Sutherland, A
Treatise on the Law of (1883) (When punitive
damages are submitted to the jury, "the amount which they
may think proper to allow will be accepted by the court,
unless so exorbitant as to indicate that they have been Influ-
enced by passion, prejudice or a perverted judgment11)*
Modern practice Is consistent with earlier authori-
ties. In the federal courts and in every Btate, Ore-
gon, judges review the of awards. £tagr-
nello v. Long R. Ca, 289 R 2d 797, 71)9- S0of n. 1,
(CA2 1961) (citing from all 50 Alaska,
Maryland, and Oregon V, v. Ailak, §70 E 2d 162t 178-
174 (Alaska 1977); Ah snwh-r & v. B.
& Assoc**., Inc., m Md. App,, at 596 A, 2d»
at 709-711, cert 605 A, M 137 CUd
Inc. v. CJaf 729 S. W. M 76«
v. M0£0r Ca, 119 Cal. 3d 757, 174 CaL Rpte
(1981); Braperf Exa*s.-l\eiu^s or of Punitive
Awarded in JVrsonal Injuiry or 12
A. L* R, 5th 195 (1993); Against Juries-
Appellate of Civil Jury Wis.
L. Rev. 237.
IV
There Is a the
of punitive damages the common law the
of review in Oregon. An judgef
or mm Oregon appellate m trial if the
jury not properly if error occurred during
the trial, or If is no evidence to support any punitive
damages at all But if the for
is the of punitive the jury Oregon
Cite as: 512 U. S. 415 (1994) 427
Opinion of the Court
provides no procedure for reducing or setting aside that
award. This has been the law in Oregon at least since 1949
when the State Supreme Court announced its opinion in Van
Lorn v. Schneiderman, 187 Ore, 89, 210 R 2d 461 (1949),
definitively construing the 1910 amendment to the Oregon
Constitution.5
In that case the court held that it had no power to reduce
or set aside an award of both compensatory and punitive
damages that was admittedly excessive.6 It recognized that
the constitutional amendment placing a limitation on its
power was a departure from the traditional common-law ap-
proach.7 That opinion's characterization of Oregon's "lonely
eminence" in this regard, id., at 113, 210 R 2d, at 471, is still
an accurate portrayal of its unique position. Every other
State in the Union affords postverdict judicial review of the
5 The amended Article VII, § 3, of the Oregon Constitution provides: "In
actions at law, where the value in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved, and no fact tried by a jury
shall be otherwise re-examined in any court of this State, unless the court
can affirmatively say there is no evidence to support the verdict."
6 "The court is of the opinion that the verdict of $10,000.00 is excessive.
Some members of the court think that only the award of punitive damages
is excessive; others that both the awards of compensatory and punitive
damages are excessive. Since a majority are of the opinion that this court
has no power to disturb the verdict, it is not deemed necessary to discuss
the grounds for these divergent views." Van Lorn v. Schneiderman, 187
Ore., at 93, 210 R 2d, at 462 (1949).
7 «The guaranty of the right to jury trial in suits at common law, incorpo-
rated in the Bill of Rights as one of the first ten amendments of the Consti-
tution of the United States, was interpreted by the Supreme Court of the
United States to refer to jury trial as it had been theretofore known in
England; and so it is that the federal judges, like the English judges, have
always exercised the prerogative of granting a new trial when the verdict
was clearly against the weight of the evidence, whether it be because
excessive damages were awarded or for any other reason. The state
courts were conceded similar powers. . . . [U]p to 1910, when the people
adopted Art. VII, § 3, of our Constitution, there was no state in the union,
so far as we are advised, where this method of control of the jury did not
prevail." Id, at 112-113, 210 R 2d, at 471.
428 HONDA MOTOR CO. v. OBERG
Opinion of the Court
amount of a punitive damages award? see supra, at 426, and
subsequent decisions have reaffirmed Oregon judges1 lack of
authority to order new trials or other relief to remedy exces-
sive damages. Fowler v. Courtemanche, 202 Ore, 418, 448,
274 P. 2d 258, 275 (1954) ("If this court were authorized to
exercise its common law powers, we would unhesitatingly
hold that the award of $35,000 as punitive damages was
excessive . * ."); Tenold v. Weyerhaev&er Co., 127 Ore. App.
511, 873 R 2d 413 (1994) (Oregon court cannot examine jury-
award to ensure compliance with $500,000 statutory limit on
noneconomic damages).
Respondent argues that Oregon% procedures do not devi-
ate from common-law practice, because Oregon judges have
the power to examine the size of the award to determine
whether the jury was influenced by and prejudice.
This is simply incorrect. The earliest Oregon inter-
preting the 1910 amendment squarely held that Oregon
courts lack precisely that power, Timmins v. Hale, 122 Ore.
24, 43^44, 256 P. 770, 776 (1927); v,
Bakery, Inc., 141 Ore. 460, 13 P. 2d 226f 228
Although dicta in later have that the
might eventually be revisited, see Van Lorn, 187 Ore*, at 106,
210 R 2d, at 468^ the earlier holdings remain Oregon law*
No Oregon court for more than half a century inferred
passion and prejudice from the of a awardf and
no court in more than a even hinted that courts
might the power to do Finally; if Oregon courts
n The last reported decision to that a new trial might be
because the of the award ZVttn-
try v. Score, 45 Ore, App, 811, 61S, 388, 889 that
*(i]t to doubtfiil" that and review to be avail-
able); sea also fbtey v* 264 Ore* 810V 60S E 2d 470 (1972), More
recent decisions that the type of and review
envisioned by the common law mud formtr Ore. Em, § 17,610 (re-
pealed by 1979 Ore. Laws, eh- 284, 1 199) te no longer Set
old v, Ox, 127 Ore Apjx 511, 873 R 2d 418
Cite as: 512 U. S. 415 (1994) 429
Opinion of the Court
could evaluate the excessiveness of punitive damages awards
through passion and prejudice review, the Oregon Supreme
Court would have mentioned that power in this very case.
Petitioners argued that Oregon procedures were unconsti-
tutional precisely because they failed to provide judicial re-
view of the size of punitive damages awards. The Oregon
Supreme Court responded by rejecting the idea that judicial
review of the size of punitive damages awards was required
by Haslip. 316 Ore., at 263, 851 P. 2d, at 1084. As the
court noted, two state appellate courts, including the Cali-
fornia Supreme Court, had reached the opposite conclusion.
Id., at 284, n. 13, 851 P. 2d, at 1096, n. 13. If, as respond-
ent claims, Oregon law provides passion and prejudice re-
view of excessive verdicts, the Oregon Supreme Court would
have had a more obvious response to petitioners' argument.
Respondent also argues that Oregon provides adequate re-
view, because the trial judge can overturn a punitive dam-
ages award if there is no substantial evidence to support an
award of punitive damages. See Fowler v. Courtemanche,
202 Ore., at 448-449, 274 P. 2d, at 275. This argument is
unconvincing, because the review provided by Oregon courts
ensures only that there is evidence to support some punitive
damages, not that there is evidence to support the amount
actually awarded. While Oregon's judicial review ensures
that punitive damages are not awarded against defendants
entirely innocent of conduct warranting exemplary damages,
Oregon, unlike the common law, provides no assurance that
those whose conduct is sanctionable by punitive damages are
not subjected to punitive damages of arbitrary amounts.
What we are concerned with is the possibility that a cul-
pable defendant may be unjustly punished; evidence of culpa-
bility warranting some punishment is not a substitute for
evidence providing at least a rational basis for the particular
deprivation of property imposed by the State to deter fu-
ture wrongdoing.
430 HONDA MOTOR CO. v. OBERG
Opinion of the Court
V
Oregon's abrogation of a well-established common-law pro-
tection against arbitrary deprivations of property raises a
presumption that its procedures violate the Due Process
Clause. As this Court has stated from its first due process
cases, traditional practice provides a touchstone for constitu-
tional analysis. Murray's Lessee v. Hoboken Land & Im-
provement Co., 18 How. 272 (1856); Tumey v. Ohio, 273 U. S.
510 (1927); Brown v. Mississippi, 297 U. S. 278 (1986); In re
Winship, 397 U, S. 358, 361 (1970); Burnham v. Superior
Court ofCal, County ofMarin, 495 U, S. 604 (1990); Pacific
Mut Life Ins. Co. v. Haslip, 499 U. S. 1 (1991). Because the
basic procedural protections of the common law have been
regarded as so fundamental, very few cases have arisen in
which a party has complained of their denial In fact, most
of our due process decisions involve arguments that tradi-
tional procedures provide too little protection and that addi-
tional safeguards are necessary to ensure compliance with
the Constitution. Ownbey v. Morgan, 256 U. S. 94 (1921);
Burnham v. Superior Court of Cal, County of Marin, 495
U. S. 604 (1990); Pacific Mut Life Ins. Co. v. Haslip, 499 U. S,
1 (1991),
Nevertheless, there are a handful of cases in which a party
has been deprived of liberty or property without the safe-
guards of common-law procedure. Hurtado v, California?
110 U. S, 516 (1884); Tumey v. Ohio, 273 U. S. 510 (1927);
Brown v. Mississippi, 297 U. S. 278 (1936); In re Oliver, 338
U. S. 257 (1948); In re Winship, 897 U. S,, at 361. When the
absent procedures would have provided protection against
arbitrary and inaccurate adjudication, this Court has not
hesitated to find the proceedings violative of due process.
Tumey v. Ohio, 273 U. S, 510 (1927); Brown v. Mississippi
297 U. S. 278 (1936); In re Oliver, 333 U. S. 257 (1948); In re
Winship, 397 U. S., at 861. Of course, not all deviations
from established procedures result in constitutional infir-
mity. As the Court noted in Hurtodo, to hold all procedural
Cite as: 512 U. S. 415 (1994) 431
Opinion of the Court
change unconstitutional "would be to deny every quality of
the law but its age, and to render it incapable of progress or
improvement." 110 U. S., at 529. A review of the cases,
however, suggests that the case before us is unlike those
in which abrogations of common-law procedures have been
upheld.
In Hurtado, for example, examination by a neutral mag-
istrate provided criminal defendants with nearly the same
protection as the abrogated common-law grand jury proce-
dure. Id., at 538. Oregon, by contrast, has provided no
similar substitute for the protection provided by judicial re-
view of the amount awarded by the jury in punitive damages.
Similarly, in International Shoe Co. v. Washington, 326 U. S.
310 (1945), this Court upheld the extension of state-court
jurisdiction over persons not physically present, in spite
of contrary well-established prior practice. That change,
however, was necessitated by the growth of a new business
entity, the corporation, whose ability to conduct business
without physical presence had created new problems not en-
visioned by rules developed in another era. See Burnham,
495 U. S., at 617. In addition, the dramatic improvements
in communication and transportation made litigation in a
distant forum less onerous. No similar social changes sug-
gest the need for Oregon's abrogation of judicial review,
nor do improvements in technology render unchecked pu-
nitive damages any less onerous. If anything, the rise of
large, interstate and multinational corporations has ag-
gravated the problem of arbitrary awards and potentially
biased juries.9
9 Respondent cites as support for his argument Chicago, R. I. & P. R.
Co. v. Cole, 251 U. S. 54, 55 (1919) (Holmes, J.). In that case, the Court
upheld a provision of the Oklahoma Constitution providing that "'the
defense of contributory negligence . . . shall ... be left to the jury/"
Chicago, R. I. provides little support for respondent's case. Justice
Holmes' reasoning relied on the fact that a State could completely abolish
the defense of contributory negligence. This case, however, is different,
432 HONDA MOTOR CO. u OBERG
Opinion of the Court
Punitive damages pose an acute danger of arbitrary dep-
rivation of property. Jury instructions typically leave the
jury with wide discretion in choosing amounts, and the pres-
entation of evidence of a defendant's net worth creates the
potential that juries will use their verdicts to express biases
against big businesses, particularly those without strong
local presences. Judicial review of the amount awarded was
one of the few procedural safeguards which the common law
provided against that danger. Oregon has removed that
safeguard without providing any substitute procedure and
without any indication that the danger of arbitrary awards
has in any way subsided over time. For these reasons, we
hold that Oregon's denial of judicial review of the size of
punitive damages awards violates the Due Process Clause
of the Fourteenth Amendment.10
VI
Respondent argues that Oregon has provided other safe-
guards against arbitrary awards and that, in any event, the
exercise of this unreviewable power by the jury is consistent
with the jury's historic role in our judicial system.
Respondent points to four safeguards provided in the Ore-
gon courts: the limitation of punitive damages to the amount
specified in the complaint, the clear and convincing standard
of proof, preverdict determination of maximum allowable pu-
nitive damages, and detailed jury instructions. The first,
because the TXO and Haslip opinions establish that States cannot abolish
limits on the award of punitive damages.
10 This case does not pose the more difficult question of what standard
of review is constitutionally required. Although courts adopting a more
deferential approach use different verbal formulations, there may not be
much practical difference between review that focuses on "passion and
prejudice," "gross excessiveness," or whether the verdict was "against the
great weight of the evidence/1 All of these may be rough equivalents
of the standard this Court articulated in Jackson v. Virginia, 443, U. S,
307, 324 (1979) (whether "no rational trier of feet could have* reached the
same verdict).
Cite as: 512 U. S. 415 (1994) 433
Opinion of the Court
limitation of punitive damages to the amount specified, is
hardly a constraint at all, because there is no limit to the
amount the plaintiff can request, and it is unclear whether
an award exceeding the amount requested could be set aside.
See Tenold v. Weyerhaeuser Co., 127 Ore. App. 511, 873 P. 2d
413 (1994) (Oregon Constitution bars court from examining
jury award to ensure compliance with $500,000 statutory
limit on noneconomic damages). The second safeguard, the
clear and convincing standard of proof, is an important check
against unwarranted imposition of punitive damages, but,
like the "no substantial evidence" review discussed supra,
at 429, it provides no assurance that those whose conduct is
sanctionable by punitive damages are not subjected to puni-
tive damages of arbitrary amounts. Regarding the third
purported constraint, respondent cites no cases to support
the idea that Oregon courts do or can set maximum punitive
damages awards in advance of the verdict. Nor are we
aware of any court which implements that procedure. Re-
spondent's final safeguard, proper jury instruction, is a well-
established and, of course, important check against excessive
awards. The problem that concerns us, however, is the pos-
sibility that a jury will not follow those instructions and may
return a lawless, biased, or arbitrary verdict.11
11 Respondent also argues that empirical evidence supports the effec-
tiveness of these safeguards. It points to the analysis of an amieus show-
ing that the average punitive damages award in a products liability case
in Oregon is less than the national average. Brief for Trial Lawyers
for Public Justice as Amieus Curiae. While we welcome respondent's
introduction of empirical evidence on the effectiveness of Oregon's legal
rules, its statistics are undermined by the fact that the Oregon average
is computed from only two punitive damages awards. It is well known
that one cannot draw valid statistical inferences from such a small number
of observations.
Empirical evidence, in fact, supports the importance of judicial review
of the size of punitive damages awards. The most exhaustive study of
punitive damages establishes that over half of punitive damages awards
were appealed, and that more than half of those appealed resulted in re-
ductions or reversals of the punitive damages. In over 10% of the cases
484 HONDA MOTOR CO. v. OBERG
Opinion of the Court
In support of his argument that there is a historic basis
for making the jury the final arbiter of the amount of puni-
tive damages, respondent calls our attention to early civil
and criminal cases in which the jury was allowed to judge
the law as well as the facts. See Johnson v. Louisiana, 406
U. S. 356, 374, n. 11 (1972) (Powell, J., concurring). As we
have already explained, in civil cases, the jury's discretion to
determine the amount of damages was constrained by judi-
cial review.12 The criminal cases do establish — as does our
practice today — that a jury's arbitrary decision to acquit a
defendant charged with a crime is completely unreviewable.
There is, however, a vast difference between arbitrary
grants of freedom and arbitrary deprivations of liberty or
property. The Due Process Clause has nothing to say about
the former, but its whole purpose is to prevent the latter.
A decision to punish a tortfeasor by means of an exaction of
appealed, the judge found the damages to be excessive. Rustad, In De-
fense of Punitive Damages in Products Liability: Testing Tort Anecdotes
with Empirical Data, 78 Iowa L. Rev, lt 57 (1992)* The above statistics
understate the importance of judicial review, because they consider only
appellate review, rather than review by the trial court, which may be even
more significant, and because they ignore the fact that plaintiffs often
settle for less than the amount awarded because they tear appellate reduc-
tion of damages. See ibid.
12 Judicial deference to jury verdicts may have been stronger in 18th-
century America than in England, and judges* power to order new trials
for excessive damages more contested. See Nelson, The Eighteenth-
Century Background of John Marshall's Constitutional Jurisprudence 70
Mich* L. Rev. 898, 904-917 (1978); M. Horwlte, The Tmnsformation of
American Law, 1780-1860, p. 142 (1977). Nevertheless, this
concerns the Due Process Clause of the Fourteenth Amendment, 19th-
century American practice is the "crucial time for purposes.11
Burnham v. Superior Court ofGaL, County ofMarin, 495 U- S. 604f 611
(1990), As demonstrated mpm, at 424-426, by the time the Pourteenth
Amendment was ratified in 1868, the power of judges to order new trials
for excessive damages was well in American courts* In addi-
tion, the idea that jurors can find law as well as fact is not inconsistent
with judicial review for excessive See Coffin v. Coffin* 4
1, 25, 41 (1808)-
Cite as: 512 U. S. 415 (1994) 435
SCALIA, J., concurring
exemplary damages is an exercise of state power that must
comply with the Due Process Clause of the Fourteenth
Amendment. The common-law practice, the procedures ap-
plied by every other State, the strong presumption favoring
judicial review that we have applied in other areas of the
law, and elementary considerations of justice all support the
conclusion that such a decision should not be committed to
the unreviewable discretion of a jury.
The judgment is reversed, and the case is remanded to the
Oregon Supreme Court for further proceedings not incon-
sistent with this opinion.
It is so ordered.
JUSTICE SCALIA, concurring.
I join the opinion of the Court, but a full explanation of
why requires that I supplement briefly the description of
what has occurred here.
Before the 1910 amendment to Article VII, §3, of the Ore-
gon Constitution, Oregon courts had developed and were
applying common-law standards that limited the size of dam-
ages awards. See, e. g., Adcock v. Oregon R. Co., 45 Ore.
173, 179-182, 77 P. 78, 80 (1904) (approving trial court's deci-
sion to grant a remittitur because the jury's damages award
was excessive); see also Van Lorn v. Schneiderman, 187 Ore.
89, 96-98, 112-113, 210 P. 2d 461, 464, 471 (1949). The 1910
amendment, by its terms, did not eliminate those substantive
standards but altered the procedures of judicial review:
"[NJo fact tried by a jury shall be otherwise re-examined
in any court of this state, unless the court can affirmatively
say there is no evidence to support the verdict" (emphasis
added). The Oregon courts appear to believe that a state-
law "reasonableness" limit upon the amount of punitive dam-
ages subsists, but cannot be enforced through the process
of judicial review. In Van Lorn, for example, the Oregon
Supreme Court had no trouble concluding that the damages
award was excessive, see 187 Ore., at 91-93, 210 P. 2d, at
436 HONDA MOTOR CO. u OBERG
GINSBUEG, X, dissenting
462, but held that the amendment had removed its "power
to correct a miscarriage of justice by ordering a new trial/'
id., at 112-113, 210 P. 2d, at 471.
The Court's opinion establishes that the right of review
eliminated by the amendment was a procedure tradition-
ally accorded at common law* The deprivation of property
without observing (or providing a reasonable substitute for)
an important traditional procedure for enforcing state-
prescribed limits upon such deprivation violates the Due
Process Clause.
JUSTICE GINSBURG, with whom THE CHIEF JUSTICE
joins, dissenting.
In product liability cases, Oregon guides and limits the
factfinder's discretion on the availability and amount of pu-
nitive damages* The plaintiff must establish entitlement to
punitive damages, under specific substantive criteria, by
clear and convincing evidence Where the factftnder is a
jury, its decision is subject to judicial review to this extent;
The trial court, or an appellate court, may nullify the verdict
if reversible error occurred during the trial, if the jury was
improperly or inadequately instructed, or if there is no evi-
dence to support the verdict. Absent trial error, and if
there is evidence to support the award of punitive damages,
however, Oregon's Constitution, Article VII, §8, provides
that a properly instructed jury's verdict shall not be reexam-
inedL* Oregon's procedures, I conclude, are to
the Constitution's due process threshold. I therefore dis-
sent from the Court's judgment upsetting Oregon's disposi-
tion In this case.
1 Article VII, §3, of the Ortgon Cosu»titution
In actions at law, where the value In controversy $20Qt the
right of trial by jury shall be preserved, and no fact by a jury shall
be otherwise re^xamitted in any court of this the court can
say there is no to support the verdict **
Cite as: 512 U. S. 415 (1994) 437
GINSBURG, J., dissenting
I
A
To assess the constitutionality of Oregon's scheme, I turn
first to this Court's recent opinions in Pacific Mut. Life Ins.
Co. v. Haslip, 499 U. S. 1 (1991), and TXO Production Corp. v.
Alliance Resources Corp., 509 U. S, 443 (1993). The Court
upheld punitive damage awards in both cases, but indicated
that due process imposes an outer limit on remedies of this
type. Significantly, neither decision declared any specific
procedures or substantive criteria essential to satisfy due
process. In Haslip, the Court expressed concerns about
"unlimited jury discretion — or unlimited judicial discretion
for that matter — in the fixing of punitive damages/' but re-
fused to "draw a mathematical bright line between the con-
stitutionally acceptable and the constitutionally unaccept-
able." 499 U. S., at 18. Regarding the components of "the
constitutional calculus," the Court simply referred to "gen-
eral concerns of reasonableness and [the need for] adequate
guidance from the court when the case is tried to a jury."
Ibid.
And in TXO, a majority agreed that a punitive damage
award may be so grossly excessive as to violate the Due
Process Clause. 509 U. S., at 453-454, 458 (plurality opin-
ion); id., at 466-467 (KENNEDY, J., concurring in part and
concurring in judgment); id., at 479-480 (O'CONNOR, J., dis-
senting). In the plurality's view, however, "a judgment that
is a product" of "fair procedures ... is entitled to a strong
presumption of validity"; this presumption, "persuasive rea-
sons" indicated, "should be irrebuttable, ... or virtually so."
Id., at 457, citing Haslip, 499 U. S., at 24-40 (ScALiA, J.,
concurring in judgment), and id., at 40-42 (KENNEDY, J., con-
curring in judgment). The opinion stating the plurality po-
sition recalled Haslip's touchstone: A "'concern [for] rea-
sonableness' " is what due process essentially requires. 509
438 HONDA MOTOR CO. v. OBERG
GINSBURG, J., dissenting
U. S., at 458, quoting Haslip, 499 U. S., at 18. Writing for
the plurality, JUSTICE STEVENS explained:
"[W]e do not suggest that a defendant has a substan-
tive due process right to a correct determination of the
'reasonableness' of a punitive damages award. As JUS-
TICE O'CONNOR points out, state law generally imposes
a requirement that punitive damages be 'reasonable.'
A violation of a state law 'reasonableness* requirement
would not, however, necessarily establish that the award
is so 'grossly excessive' as to violate the Federal Consti-
tution." 509 U. S,, at 458, n. 24 (citation omitted).
B
The procedures Oregon's courts followed in this case sat-
isfy the due process limits indicated in Haslip and TXO; the
jurors were adequately guided by the trial court's Instruc-
tions, and Honda has not maintained, in its full presentation
to this Court, that the award in question was "so 'grossly
excessive' as to violate the Federal Constitution/* TXO,
509 U. S., at 458, n. 242
1
Several preverdict mechanisms channeled the jury's dis-
cretion more tightly in this case than in either Haslip or
TXO. First, providing at least some protection against un~
guided, utterly arbitrary jury awards, respondent Karl
Oberg was permitted to recover no more than the amounts
specified in the complaint, $919390-39 in compensatory dam-
ages and $5 million in punitive damages. See Ore- Rule Civ.
Proc, 18B (1994); Wiebe v. Seely, 215 Ore. 331, 356-858, 336
R 2d 379, 391 (1959); Laveyoy Specialty Hosp. v. Advocates
for Life, Inc., 121 Ore. App. 160, 167, 865 R 2d 159, 163 (1993).
The trial court properly instructed the jury on this damage
EThe Supreme Court of Oregon noted that ^procedural due process in
the context of an award of punitive damages relates to the requirement
that the procedure employed in making that award be fundamentally Mr/1
while the substantive limit declared by this Court relates to the of
award. 816 Ore. 26& 280. n. 10. S61 P. 2d 1084, 1094. n, 10 (1993)*
Cite as: 512 U. S. 415 (1994) 439
GINSBURG, J., dissenting
cap. See 316 Ore. 263, 282, n. 11, 851 P. 2d 1084, 1095, n. 11
(1993). No provision of Oregon law appears to preclude the
defendant from seeking an instruction setting a lower cap, if
the evidence at trial cannot support an award in the amount
demanded. Additionally, if the trial judge relates the incor-
rect maximum amount, a defendant who timely objects may
gain modification or nullification of the verdict. See Timber
Access Industries Co. v. U. S. Plywood-Champion Papers,
Inc., 263 Ore. 509, 525-528, 503 P. 2d 482, 490-491 (1972).3
Second, Oberg was not allowed to introduce evidence
regarding Honda's wealth until he "presented evidence suf-
ficient to justify to the court a prima facie claim of puni-
tive damages." Ore. Rev. Stat. §41.315(2) (1991); see also
§30.925(2) ("During the course of trial, evidence of the de-
fendant's ability to pay shall not be admitted unless and until
the party entitled to recover establishes a prima facie right
to recover [punitive damages].")- This evidentiary rule is
designed to lessen the risk "that juries will use their ver-
dicts to express biases against big businesses." Ante, at
432; see also Ore. Rev. Stat. § 30.925(3)(g) (1991) (requiring
factfinder to take into account "[t]he total deterrent effect of
other punishment imposed upon the defendant as a result
of the misconduct").
Third, and more significant, as the trial court instructed
the jury, Honda could not be found liable for punitive dam-
ages unless Oberg established by "clear and convincing evi-
dence" that Honda "show[ed] wanton disregard for the health,
safety and welfare of others." §30.925 (governing product
liability actions); see also §41.315(1) ("Except as otherwise
specifically provided by law, a claim for punitive damages
shall be established by clear and convincing evidence.").
8 The Court's contrary suggestion, ante, at 433, is based on Tenold v.
Weyerhaeuser Co., 127 Ore. App. 511, 873 P. 2d 413 (1994), a decision by
an intermediate appellate court, in which the defendant does not appear
to have objected to the trial court's instructions as inaccurate, incomplete,
or insufficient, for failure to inform the jury concerning a statutorily man-
dated $500,000 cap on noneconomic damages.
440 HONDA MOTOR CO. u OBERG
GINSBURG, J., dissenting
"[T]he clear-and-convincing evidence requirement/' which is
considerably more rigorous than the standards applied by
Alabama in Haslip* and West Virginia in TXOf "constraints]
the jury's discretion, limiting punitive damages to the more
egregious cases." Haslip, 499 U. S., at 58 (O'CONNOR, J.,
dissenting). Nothing in Oregon law appears to preclude a
new trial order if the trial judge, informed by the jury's ver-
dict, determines that his charge did not adequately explain
what the "clear and convincing" standard means. See Ore.
Rule Civ. Proc. 64G (1994) (authorizing court to grant new
trial "on its own initiative").
Fourth, and perhaps most important, in product liability
cases, Oregon requires that punitive damages, if any, be
awarded based on seven substantive criteria, set forth in
Ore. Rev. Stat. §30.925(3) (1991):
"(a) The likelihood at the time that serious harm would
arise from the defendant's misconduct;
"(b) The degree of the defendant's awareness of that
likelihood;
"(e) The profitability of the defendant's misconduct;
"(d) The duration of the misconduct and any conceal-
ment of it;
"(e) The attitude and conduct of the defendant upon
discovery of the misconduct;
"(f ) The financial condition of the defendant; and
"(g) The total deterrent effect of other punishment im-
posed upon the defendant as a result of the misconduct,
including, but not limited to, punitive damage awards to
4 The Ha$lip jury was told that it could sward punitive damages if " *rea-
sonably satisfied from the evidence1 ** that the defendant committed fraud
Pacific Mut Life Im. Co. v. Haslip, 499 U S« lf 6, a, 1 (1991)*
5 The TXO jury was instnaeted to apply a preponderance of the evidence
standard. See TXO Production Corp, v. Alliance Corp,, 509
U. S. 448, 468, n. 29 (1998).
Cite as: 512 II S. 415 (1994) 441
GINSBURG, J., dissenting
persons in situations similar to the claimant's and the
severity of criminal penalties to which the defendant has
been or may be subjected."
These substantive criteria, and the precise instructions de-
tailing them,6 gave the jurors "adequate guidance" in making
6 The trial court instructed the jury:
" 'Punitive damages: If you have found that plaintiff is entitled to gen-
eral damages, you must then consider whether to award punitive damages.
Punitive damages may be awarded to the plaintiff in addition to general
damages to punish wrongdoers and to discourage wanton misconduct.
" 'In order for plaintiff to recover punitive damages against the defend-
ant[s], the plaintiff must prove by clear and convincing evidence that de-
fendant[s have] shown wanton disregard for the health, safety, and welfare
of others. . . .
" 'If you decide this issue against the defendant^], you may award pu-
nitive damages, although you are not required to do so, because punitive
damages are discretionary.
" 'In the exercise of that discretion, you shall consider evidence, if any,
of the following:
" 'First, the likelihood at the time of the sale [of the all-terrain vehicle]
that serious harm would arise from defendants' misconduct.
"'Number two, the degree of the defendants' awareness of that
likelihood.
" 'Number three, the duration of the misconduct.
" 'Number four, the attitude and conduct of the defendants] upon notice
of the alleged condition of the vehicle.
"'Number five, the financial condition of the defendants]/ " 316 Ore.,
at 282, n. 11, 851 P. 2d, at 1095, n. 11.
The trial judge did not instruct the jury on § 30.925(3)(c), "profitability
of [Honda's] misconduct," or § 30.925(3)(g), the "total deterrent effect of
other punishment" to which Honda was subject. Honda objected to an
instruction on factor (3)(c), which it argued was phrased "to assume the
existence of misconduct," and expressly waived an instruction on fac-
tor (3)(g), on the ground that it had not previously been subject to puni-
tive damages. App. to Brief for Plaintiff-Respondent in Opposition in
No. S38436 (Ore.), p. 2. In its argument before the Supreme Court of
Oregon, Honda did not contend that the trial court failed to instruct the
jury concerning the "[§30.925(3)] criteria," or "that the jury did not prop-
erly apply those criteria." 316 Ore., at 282, n. 11, 851 P. 2d, at 1095, n. 11.
442 HONDA MOTOR CO. r. OBERG
GINSBIJRG, J.t dissenting
their award, see Haslip, 499 U. Sv at 18, far more guidance
than their counterparts in Haslip7 and TXOH received. In
Haslip, for example, the jury was told only the purpose of
7 The trial judge in Hatttip instructed the jury:
4lNowf if you find that fraud was perpetrated then in addition to com-
pensatory damages you may in your discretion, when I the word dis-
cretion, 1 say you don't have to even find fraud, you wouldn't have to, but
you may^ the law you may award an amount of money known as
punitive damages.
"Thin amount of money is awarded to the plaintiff but it is not to com-
pensate the plaintiff for any injury. It is to punish the defendant. Puni-
tive means to punish or it is called exemplary damages, which means
to make an example. So, if you fee! or not feel but if you are reasonably
satisfied from the evidence that the plaintifffa] . . , hafve] had a fraud
perpetrated upon them and at* a direct nwult they were injured [then]
in addition to eoimprTisdorv you may in your discretion award
punitive damages.
"Now, the purpose of awarding punitive or fx^mphtry damages is to
allow money recovery to the plaintiff*, . . . by way of punishment to the
defendant and for the of the public by deterring
the defendant from doing wrong in the fijtture. Imposi-
tion of punitive fe entirely with the* jury^ means
you don't have to award it thin jury that you should do no.
"Should you award punitive damage in the you must
take into consideration the character the of th« wrong as
shown by the of similar wrong/* 499
II, S.» at 6, EL 1 (internal quotation omitted),
"The jury instruction in TXO
14 In addition to or rmnp«*ii,-;ilon* the law the
jury, under to an of
in order to the wromjcbwr for hi* m!.-<k»n<lu<*t, to w an exam-
ple or to not to in to provide
additional compensation for the to which the injured have
.-.ul»jf*ct«*<!.
u*If you Hud a pr«fcprm«lrramv TXO Produc-
tion Corp. In guilty of wanton* wiiftil, or conduct which
an to the of you an
of punitive in
Uiln tlamuj/K-. if you into consider-
ation ail of the the in*
eluding the of the wnm^flmnK. Hit of the inflicted, the
Cite as: 512 U. S. 415 (1994) 443
GINSBURG, J., dissenting
punitive damages (punishment and deterrence) and that an
award was discretionary, not compulsory. We deemed those
instructions, notable for their generality, constitutionally
sufficient. 499 U. S., at 19-20.
The Court's opinion in Haslip went on to describe the
checks Alabama places on the jury's discretion postverdict —
through excessiveness review by the trial court, and appel-
late review, which tests the award against specific substan-
tive criteria. Id., at 20-23. While postverdict review of
that character is not available in Oregon, the seven factors
against which Alabama's Supreme Court tests punitive
awards9 strongly resemble the statutory criteria Oregon's
juries are instructed to apply. 316 Ore., at 283, and n. 12,
851 P. 2d, at 1095-1096, and n. 12. And this Court has often
acknowledged, and generally respected, the presumption
that juries follow the instructions they are given. See, e. g.,
intent of the party committing the act, the wealth of the perpetrator, as
well as any mitigating circumstances which may operate to reduce the
amount of the damages. The object of such punishment is to deter TXO
Production Corp. and others from committing like offenses in the future.
Therefore the law recognizes that to in fact deter such conduct may re-
quire a larger fine upon one of large means than it would upon one of
ordinary means under the same or similar circumstances.'" 509 U. S., at
463, n. 29.
9 The Alabama factors are:
"(a) whether there is a reasonable relationship between the punitive dam-
ages award and the harm likely to result from the defendant's conduct as
well as the harm that actually has occurred; (b) the degree of reprehensi-
bility of the defendant's conduct, the duration of that conduct, the defend-
ant's awareness, any concealment, and the existence and frequency of simi-
lar past conduct; (c) the profitability to the defendant of the wrongful
conduct and the desirability of removing that profit and of having the
defendant also sustain a loss; (d) the 'financial position' of the defendant;
(e) all the costs of litigation; (f) the imposition of criminal sanctions on the
defendant for its conduct, these to be taken in mitigation; and (g) the
existence of other civil awards against the defendant for the same conduct,
these also to be taken in mitigation." 499 U. S., at 21-22, citing Green
Oil Co. v. Hornsby, 539 So. 2d 218, 223-224 (Ala. 1989), and Central Ala-
bama Elec. Cooperative v. Tapley, 546 So. 2d 371, 376-377 (Ala. 1989).
444 HONDA MOTOR CO. u OBERG
GINSBURG, X, dissenting
Shannon v* United States, past, at 584-585; Richardson v.
Marsh, 481 U. S. 200, 206 (1987).
As the Supreme Court of Oregon observed, Haslip "deter-
mined only that the Alabama procedure* as a whole and in
its net effect, did not violate the Due Process Clause." 316
Ore., at 284, 851 R 2dy at 1096. The Oregon court also ob-
served, correctly, that the Due Process Clause does not re-
quire States to subject punitive damage awards to a form
of postverdict review "that includes the possibility of remit-
titur,"10 Ibid. Because Oregon requires the factftnder to
apply §30.925?s objective criteria, moreover, its procedures
are perhaps more likely to prompt rational and fair punitive
damage decisions than are the post hac checks employed
in jurisdictions following Alabama's pattern. See Haslip,
499 U. S.f at 52 (O'CONNOR, J,, dissenting) CtTJhe standards
[applied by the Alabama Supreme Court] could juries
to make Mr, rational decisions. Unfortunately, Alabama
courts do not give the[se] factors to the jury. Instead, the
jury has standardless discretion to impose punitive damages
whenever and in whatever amount it wants/*). As the
Oregon court concluded, "application of objective criteria
ensures that sufficiently definite and meaningful constraints
are imposed on the ftnder of faet/1 310 Ore., at 283, 861
P. 2d, at 1096. The Oregon court concluded that the
statutory criteria, by adequately guiding the jury, worked to
"ensur[e] that the resulting award is not disproportionate to
a defendant's conduct and to the to punish and deter."
Ibid.11
m Indeed, the compatibility of tJbe remittitur with the Stevtnth Amend-
ment was not settled until v. 298 U, & 474
"Oregon juriee, reported award punitive
damages* Between 1966 and the present, of punitive damages
have been reported fa* only two product liability Involving Oregon
law, including this one. See Brief for Trial for Public Justice m
Amim® Cnrim 10, mud n. 7- The punitive hi was about
6.4 times the amount of compensatory about 268 the
ont-of-poelcst TWs amount ia not fer distant from
Cite as: 512 U. S. 415 (1994) 445
GINSBURG, J., dissenting
The Supreme Court of Oregon's conclusions are buttressed
by the availability of at least some postverdict judicial re-
view of punitive damage awards. Oregon's courts ensure
that there is evidence to support the verdict:
"If there is no evidence to support the jury's decision —
in this context, no evidence that the statutory prerequi-
sites for the award of punitive damages were met — then
the trial court or the appellate courts can intervene to
vacate the award. See ORCP 64B(5) (trial court may
grant a new trial if the evidence is insufficient to justify
the verdict or is against law); Hill v. Garner, 277 Ore.
641, 643, 561 P. 2d 1016 (1977) (judgment notwithstand-
ing the verdict is to be granted when there is no evi-
dence to support the verdict); State v. Brown, 306 Ore.
599, 604, 761 P. 2d 1300 (1988) (a fact decided by a jury
may be re-examined when a reviewing court can say
affirmatively that there is no evidence to support the
jury's decision)." Id., at 285, 851 R 2d, at 1096-1097.
The State's courts have shown no reluctance to strike puni-
tive damage awards in cases where punitive liability is not
established, so that defendant qualifies for judgment on that
issue as a matter of law. See, e. g., Badger v. Paulson In-
vestment Co., 311 Ore. 14, 28-30, 803 P. 2d 1178, 1186-1187
(1991); Andor v. United Airlines, 303 Ore. 505, 739 P. 2d 18
(1987); Schmidt v. Pine Tree Land Development Co., 291 Ore.
462, 631 P. 2d 1373 (1981).
In addition, punitive damage awards may be set aside be-
cause of flaws in jury instructions. 316 Ore., at 285, 851
P. 2d, at 1097. See, e. g., Honeywell v. Sterling Furniture
the award upheld in Haslip, which was more than 4 times the amount of
compensatory damages and more than 200 times the plaintiff's out-of-
pocket expenses. See 499 U. S., at 23. The $10 million award this Court
sustained in TXO, in contrast, was more than 526 times greater than the
actual damages of $19,000. 509 U. S., at 453.
446 HONDA MOTOR CO. u OBERG
GINSBURG, J., dissenting
Co., 310 Ore. 206, 210-214, 797 P. 2d 1019, 1021-1023 (1990)
(setting aside punitive damage award because it was prejudi-
cial error to instruct jury that a portion of any award would
be used to pay plaintiffs attorney's fees and that another
portion would go to State's common injury fund). As the
Court acknowledges, "proper jury instructiofn] is a well-
established and, of course, important check against excessive
awards." Ante, at 433.
II
In short, Oregon has enacted legal standards confining pu-
nitive damage awards in product liability cases. These state
standards are judicially enforced by means of comparatively
comprehensive preverdict procedures but markedly limited
postverdict review, for Oregon has elected to make faetftnd-
ing, once supporting evidence is produced, the province of
the jury. C£ Chicago, R. L & R R* Co. v. Cole, 251 U S. 54,
56 (1919) (upholding against due process challenge Oklahoma
Constitution's assignment of contributory negligence and
assumption of risk defenses to jury*s unreviewable decision;
Court recognized State's prerogative to "confer larger pow-
ers upon a jury than those that generally prevail"); Minne-
sota v. Clover Leaf Creamery Co., 449 U, S. 456, 479 (1981)
(STEVENS, J., dissenting) (observing that "allocation of func-
tions within the structure of a government" is ordi-
narily <4a matter for the State to determine**). Hie Court
today invalidates this choice^ largely it concludes
that English and early American courts generally provided
judicial review of the of punitive damage awards. See
ante, at 421-426. The Court% account of the relevant his-
tory is not compelling.
A
I am not as confident as the Court about either the clarity
of early American common law or its import Tellingly, the
Court barely acknowledges the large authority exercised by
American juries in the 18th and Idth centuries, In the early
Cite as: 512 U. S. 415 (1994) 447
GINSBURG, J., dissenting
years of our Nation, juries "usually possessed the power to
determine both law and fact." Nelson, The Eighteenth-
Century Background of John MarshalFs Constitutional Juris-
prudence, 76 Mich. L. Rev. 893, 905 (1978); see, e. g., Georgia
v. Brailsford, 3 Ball 1, 4 (1794) (Chief Justice John Jay, try-
ing case in which State was party, instructed jury it had
authority "to determine the law as well as the fact in contro-
versy")-12 And at the time trial by jury was recognized as
the constitutional right of parties "[i]n [s]uits at common
law/' U. S. Const., Amdt. 7, the assessment of "uncertain
damages" was regarded, generally, as exclusively a jury func-
tion. See Note, Judicial Assessment of Punitive Damages,
the Seventh Amendment, and the Politics of Jury Power, 91
Colum. L. Rev. 142, 156, and n. 69 (1991); see also id., at
156-158, 163, and n. 112.
More revealing, the Court notably contracts the scope of
its inquiry. It asks: Did common-law judges claim the power
to overturn jury verdicts they viewed as excessive? But
full and fair historical inquiry ought to be wider. The Court
should inspect, comprehensively and comparatively, the pro-
cedures employed — at trial and on appeal — to fix the amount
of punitive damages.18 Evaluated in this manner, Oregon's
scheme affords defendants like Honda more procedural safe-
guards than 19th-century law provided.
As detailed supra, at 440-441, Oregon instructs juries to
decide punitive damage issues based on seven substantive
factors and a clear and convincing evidence standard. When
the Fourteenth Amendment was adopted in 1868, in con-
trast, "no particular procedures were deemed necessary to
circumscribe a jury's discretion regarding the award of [pu-
12 Not until Sparfv. United States, 156 U. S. 51, 102 (1895), was the jury's
power to decide the law conclusively rejected for the federal courts. See
Riggs, Constitutionalizing Punitive Damages: The Limits of Due Process,
52 Ohio St. L. J. 859, 900 (1991).
18 An inquiry of this order is akin to the one made in Haslip. See supra,
at 443-444.
448 HONDA MOTOR CO, v. OBERG
GXNSBURG, J,» diBHenting
nitive] damages, or their amount/1 HasLip, 499 U Sn at
27 (SCALIA, Xf concurring in judgment). The responsibility
entrusted to the jury surely was not guided by instructions
of the kind Oregon has enacted. Compare 1 J. Sutherland,
Law of Damages 720 (1882) ("If, in committing the wrong
complained of, [the defendant] acted recklessly, or wilfully
and maliciously, with a design to oppress and injure the
plaintiff, the jury in fixing the may disregard the
rule of compensation; and, beyond that, mayf as a punishment
of the defendant, and as a protection to society against a
violation of personal rights and social orderf award such ad-
ditional damages as in their discretion they may deem
proper/1), with Ore, Rev, Stat. §30-925 (1991) (requiring jury
to consider, alia, "likelihood at the time that serious
harm would from the defendant's misconduct"; "degree
of the defendant's awareness of that likelihood"; "profitability
of the misconduct*1; "duration of the misconduct
and any concealment of it1*).
Furthermore, common-law reviewed punitive dam-
age verdicts extremely if at all & #,, Day
v. 13 How. 363, 871 (assennment of "exem-
plary, punitive, or vindictive . . . has always
left to the of the jury, as the of punishment
to be thus inflicted on the circum-
stances of each Sffesouri R. Co. v. Ihntws, 115
U. S* 512, 521 of the jury in such
is not by any v*
116 U. S* 550t 56S (in for torts
where no of law the damages,
it is the function of the jury to determine the
amount by their verdict**)* Truet 10th-century judges occa-
sionally they had authority to overturn damage
awards upon concluding, from the of an awardf that the
juryfs must on **prtkllty>f or I4pas-
and prejudice/* at But
Cite as: 512 U. S. 416 (1994) 449
GINSBURG, J., dissenting
cised this authority. See T. Sedgwick, Measure of Damages
707 (5th ed. 1869) (power "very sparingly used").
B
Because Oregon's procedures assure "adequate guidance
from the court when the case is tried to a jury," Haslip, 499
U. S., at 18, this Court has no cause to disturb the judgment
in this instance, for Honda presses here only a procedural
due process claim. True, in a footnote to its petition for cer-
tiorari, not repeated in its briefs, Honda attributed to this
Court an "assumption that procedural due process requires
[judicial] review of both federal substantive due process and
state-law excessiveness challenges to the size of an award*"
Pet. for Cert. 16, n. 10 (emphasis in original). But the as-
sertion regarding "state-law excessiveness challenges" is
extraordinary, for this Court has never held that the Due
Process Clause requires a State's courts to police jury
factfindings to ensure their conformity with state law. See
Chicago, R. L & R R. Co. v. Cole, 251 U. S., at 56. And,
as earlier observed, see supra, at 438, the plurality opinion
in TXO disavowed the suggestion that a defendant has a
federal due process right to a correct determination under
state law of the "reasonableness" of a punitive damages
award. 509 U. S., at 458, n. 24.
Honda further asserted in its certiorari petition footnote:
"Surely . . . due process (not to mention Supremacy
Clause principles) requires, at a minimum, that state
courts entertain and pass on the federal-law contention
that a particular punitive verdict is so grossly excessive
as to violate substantive due process. Oregon's refusal
to provide even that limited form of review is particu-
larly indefensible." Pet. for Cert. 16, n. 10.
But Honda points to no definitive Oregon pronouncement
postdating this Court's precedent-setting decisions in Haslip
450 HONDA MOTOR CO. v. OBERG
GlNSBURG, J.,
and TXO demonstrating the hypothesized refusal to pass on
a federaHaw contention.14
It may be that Oregon's procedures guide juries so well
that the "grossly excessive" verdict Honda projects in its
certiorari petition footnote never materializes. Of. supra, at
444, n. 11 (between 1965 and the present, awards of punitive
damages in Oregon have been reported in only two product
liability cases, including this one). If, however, in some fu-
ture case, a plea is plausibly made that a particular punitive
damage award is not merely excessive, but 4<st> 4grossly ex-
cessive1 as to violate the Federal Constitution/1 TXO, 509
U. S., at 458, n. 24, and Oregon's judiciary nevertheless in-
sists that it is powerless to consider the plea, this Court
might have cause to grant review. Cf. Testa v. Katt, 330
U, S. 386 (1947) (ruling on obligation of courts to en-
force federal law). No such is before us today, nor does
Honda, in this Court, maintain otherwise, 316 Ore., at
286f n. 14, 851 E 2df at 1097, n, 14; at n. 11
(size of award against Honda not to be out of
line with awards upheld in and TXO).
To summarize: Oregon's procedures adequately guide the
jury charged with the responsibility to determine a plain-
tiff's qualification for, and the amount off punitive damages,
and on that account do not deny defendants procedural due
process; Oregon's Supreme Court correctly to rule
that "an award of punitive damages, to comport with the
requirements of the Due Process must be
subject to a form of post-verdict or review** for
exeesslveness, 316 Ore.f at 284, 851 R 2d, at (emphasis
14 IB its 1948 In Van Lorn v. &•//*«-;</<'/•///// w, 187 Ore. 89, 210
E 2d 461, the Supreme Court of it author-
ity to order a new trial though an of
tinder state See at (SeALlA, X, concurring). No fed-
anal limit had yet been recognized, the Van no
to consider its obligation to jury under
federal lam
Cite as: 512 U. S. 415 (1994) 451
GINSBURG, J., dissenting
added); the verdict in this particular case, considered in light
of this Court's decisions in Haslip and TXO, hardly appears
"so 'grossly excessive' as to violate the substantive com-
ponent of the Due Process Clause," TXO, 509 U. S., at 458.
Accordingly, the Court's procedural directive to the state
court is neither necessary nor proper. The Supreme Court
of Oregon has not refused to enforce federal law, and I
would affirm its judgment.
462 1993
v. STATKS
CKRTIORAIU TO THE UNITED STATKS COUET OF
MILITARY
No. 29, June 24, 1994
Petitioner, a member of the United Navy, initially waived his rights
to remain silent and to when hi» interviewed by Naval In-
vestigmtiw Service in connection with the murder of a sailor.
About an hour and a half into the interview, he <sMmybe I should
talk to a lawyer/1 However, when the inquired If h^ asking
tor m lawyer, he hi* not, They a short break, he
reminded of hia right*, and tht* interview continued for another
hour* until he to m anything
more. A military hi* to , »i>pn\ made
at tht interview, hit* of m during the interro-
gation not m for Hi* eonvic ted of murder, and,
ultimately, th«* Court of
L After a and of v,
Ariztnm, 884 II 8. Imw question-
ing until And a an A miipeet
in to the of interruption
the not for /d,
at 409-473. If the *t any tine police
must iiwn**cHat«*ty '|u«\-t^*n;r*K Witt an in
v, 461 11 8. 477, Tfw* rute
tht prMphylnHie purpo ** tjf $>n>v«*nf in^ i^fTh***!*, a
hii jm-viou^ly ami ite
ity to Iht
hift right to in an t»bj*H-tiv< n*quiriiiv
emu bt «»xpr4'^ion of a
tor an Htw**v«»r, If a in arnl»Jgu»u."> or
oquivowii in a In of Hit would
the be tht right to
not the
to A r»-nuiri*m»'iit would
tht Mifegtiardb* to
inviv-tipaliv*- by pn*v<*ntinK the police
a in tht of an if the
Cite as: 512 U. S. 452 (1994) 453
Syllabus
suspect does not wish to have one present. The Edwards rule provides
a bright line that can be applied by officers in the real world of investiga-
tion and interrogation without unduly hampering the gathering of infor-
mation. This clarity and ease of application would be lost if officers
were required to cease questioning based on an ambiguous or equivocal
reference to an attorney, since they would be forced to make difficult
judgment calls about what the suspect wants, with the threat of sup-
pression if they guess wrong. While it will often be good police prac-
tice for officers to clarify whether a suspect making an ambiguous state-
ment really wants an attorney, they are not required to ask clarifying
questions. Pp. 456-462.
2. There is no reason to disturb the conclusion of the courts below
that petitioner's remark — "Maybe I should talk to a lawyer" — was not
a request for counsel P. 462.
36 M. J. 337, affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST,
C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. SCAUA, J., filed a
concurring opinion, post, p. 462. SOUTER, J., filed an opinion concurring
in the judgment, in which BLACKMUN, STEVENS, and GINSBURG, JJ.,
joined, post, p. 466.
David S. Jonas argued the cause for petitioner. With
him on the briefs were Philip L. Sundel, Daniel S. Jonas,
and David Rudovsky.
Richard H. Seamon argued the cause for the United
States. With him on the briefs were Solicitor General
Days, Assistant Attorney General Harris, Deputy Solicitor
General Bryson, Joel M. Gershowitz, Theodore G. Hess, and
Brett D. Barkey.*
*Fred E. Inbau, Wayne W. Schmidt, James P. Manak, Richard M. Wein-
traub, William C. O'Malley, and Bernard J. Farber filed a brief for Ameri-
cans for Effective Law Enforcement, Inc., et al. as amid curiae urging
affirmance.
Briefs of amid curiae were filed for the National Association of Crimi-
nal Defense Lawyers by Janet E. Ainsworth; and for the Washington
Legal Foundation et al. by Paul G. Cassell, Daniel J. Popeo, and Paul
D. Kamenar.
454 DAVIS «, UNITED STATES
Opinion of the Court
JUSTICE O'CONNOR delivered the opinion of the Court.
In Edwards v. Arizona, 451 U. S. 477 (1981), we held that
law enforcement officers must immediately cease question-
ing a suspect who has clearly asserted his right to have coun-
sel present during custodial interrogation. In this case we
decide how law enforcement officers should respond when
a suspect makes a reference to counsel that is insuffi-
ciently clear to invoke the Edwards prohibition on further
questioning.
I
Pool brought trouble— not to River City, but to the
Charleston Naval Base, Petitioner, a member of the United
States Navy, spent the evening of October 2, 1988f shooting
pool at a club on the base. Another sailor^ Keith Shackleton,
lost a game and a $30 wager to petitioner, but Shackle-
ton refused to pay. After the club closed, Shackleton was
beaten to death with a pool cue on a loading dock behind the
commissary. The body was found early the next morning.
The investigation by the Naval Investigative Service
(NIS) gradually focused on petitioner. Investigative agents
determined that petitioner was at the dub that evening, and
that he was absent without authorization from his duty
station the next morning. The agents also learned that only
privately owned pool cues could be removed from the club
premises, and that petitioner owned two cues— one of which
had a bloodstain on it. The were told by various
people that petitioner either had admitted committing the
crime or had recounted details that clearly indicated his
involvement in the killing.
On November 4, 1988, petitioner interviewed at the
NIS office* As required by military law, the advised
petitioner that he was a suspect in the killing, that he was
not required to make a statement, that any statement could
be used against him at a trial by court-martial, and that he
was entitled to speak with an attorney and have an attorney
present during questioning. See Art 31, Uniform Code of
Cite as: 512 U. S. 452 (1994) 455
Opinion of the Court
Military Justice (UCMJ), 10 U. S. d §831; Mil. Rule EvicL
305; Manual for Courts-Martial A22-13 (1984). Petitioner
waived his rights to remain silent and to counsel, both orally
and in writing.
About an hour and a half into the interview, petitioner
said, "Maybe I should talk to a lawyer." App. 135. Accord-
ing to the uncontradicted testimony of one of the interview-
ing agents, the interview then proceeded as follows:
"[We m]ade it very clear that we're not here to violate
his rights, that if he wants a lawyer, then we will stop
any kind of questioning with him, that we weren't going
to pursue the matter unless we have it clarified is he
asking for a lawyer or is he just making a comment
about a lawyer, and he said, [*]No, I'm not asking for a
lawyer/ and then he continued on, and said, 'No, I don't
want a lawyer.'" Id., at 136.
After a short break, the agents reminded petitioner of his
rights to remain silent and to counsel. The interview then
continued for another hour, until petitioner said, "I think I
want a lawyer before I say anything else." Id., at 137. At
that point, questioning ceased.
At his general court-martial, petitioner moved to suppress
statements made during the November 4 interview. The
Military Judge denied the motion, holding that "the mention
of a lawyer by [petitioner] during the course of the interroga-
tion [was] not in the form of a request for counsel and . . .
the agents properly determined that [petitioner] was not in-
dicating a desire for or invoking his right to counsel." Id.,
at 164. Petitioner was convicted on one specification of
unpremeditated murder, in violation of Art. 118, UCMJ, 10
U. S. C. § 918. He was sentenced to confinement for life, a
dishonorable discharge, forfeiture of all pay and allowances,
and a reduction to the lowest pay grade. The convening
authority approved the findings and sentence. The Navy-
456 DAVIS u UNITED
Opinion of the Court
Marine Corps Court of Military Review affirmed- App, to
Pet. for Cert 12a-15a.
The United States Court of Military Appeals granted dis-
cretionary review and affirmed. 36 M. J. 337 (1993), The
court recognized that the state and federal courts have de-
veloped three different approaches to a suspect's ambiguous
or equivocal request for counsel;
"Some jurisdictions have held that any mention of
counsel, however ambiguous, is sufficient to require that
all questioning Others have attempted to define
a threshold standard of clarity for invoking the right to
counsel and have held that comments falling short of
the threshold do not invoke the right to counsel. Some
jurisdictions „ . . have held that all interrogation about
the offense must immediately whenever a suspect
mentions counsel, but they allow interrogators to ask
narrow questions to clarify the earlier state-
ment and the counsel."
Id., at 341 (internal quotation omitted)*
Applying the third approach, the court that petitioner's
comment was ambiguous, and that the N1S prop-
erly clarified petitioner's with to counsel be-
fore continuing questioning him the Id*, at
341-342.
Although we previously the varying ap-
proaches the lower courts with respect to am-
biguous or equivocal to counsel during custodial
interrogation, see Connecticut v* 479 IX S. 629-
5SO, n. 8 (1987); v. 469 U. S- 91, 90, n. 8
(per curiam), we have not the on the merits.
We granted certiorari, 510 U. S. 942 (1998), to do so,
II
The Sixth Amendment right to counsel only at
the initiation of adversary criminal see United
Cite as: 512 IX S. 452 (1994) 457
Opinion of the Court
States v. Gouveia, 467 U. S. 180, 188 (1984), and before pro-
ceedings are initiated a suspect in a criminal investigation
has no constitutional right to the assistance of counsel. Nev-
ertheless, we held in Miranda v. Arizona, 384 U. S. 436, 469-
473 (1966), that a suspect subject to custodial interrogation
has the right to consult with an attorney and to have counsel
present during questioning, and that the police must explain
this right to him before questioning begins. The right to
counsel established in Miranda was one of a "series of rec-
ommended 'procedural safeguards' . . . [that] were not them-
selves rights protected by the Constitution but were instead
measures to insure that the right against compulsory self-
incrimination was protected/' Michigan v. Tucker, 417
U. S, 433, 443-444 (1974); see U. S. Const., Amdt. 5 ("No
person . . . shall be compelled in any criminal case to be a
witness against himself").*
*We have never had occasion to consider whether the Fifth Amendment
privilege against self-incrimination, or the attendant right to counsel dur-
ing custodial interrogation, applies of its own force to the military, and we
need not do so here. The President, exercising his authority to prescribe
procedures for military criminal proceedings, see Art. 36(a), UCMJ, 10
U. S. C. § 836(a), has decreed that statements obtained in violation of the
Self-incrimination Clause are generally not admissible at trials by court-
martial. Mil. Rules Evid. 304(a) and (c)(3). Because the Court of Mili-
tary Appeals has held that our cases construing the Fifth Amendment
right to counsel apply to military interrogations and control the admissibil-
ity of evidence at trials by court-martial, see, e. g., United States v. Mc-
Laren, 38 M. J. 112, 115 (1993); United States v. Applewhite, 23 M. J. 196,
198 (1987), and the parties do not contest this point, we proceed on the
assumption that our precedents apply to courts-martial just as they apply
to state and federal criminal prosecutions.
We also note that the Government has not sought to rely in this case on
18 U. S. C. § 3501, "the statute governing the admissibility of confessions
in federal prosecutions," United States v. Alvarez-Sanchez, 511 U. S. 350,
351 (1994), and we therefore decline the invitation of some amid to con-
sider it. See Brief for Washington Legal Foundation et aL as Amid Cu-
riae 7-14. Although we will consider arguments raised only in an amicus
brief, see Teague v. Lane, 489 U. S. 288, 300 (1989) (plurality opinion), we
are reluctant to do so when the issue is one of first impression involving
4§8 DAVIS r. UNITED
Opinion of the Court
The right to counsel recognised in is sufficiently
important to suspects in criminal investigations, we have
held, that it "requires] the protection of the knowing
and intelligent waiver standard/' v. Arizona, 451
U. S,, at 488. See Oregon v, 462 U. & 1046-
1047 (1983) (plurality opinion); id., at 1051 (Powell, J.t concur-
ring in judgment). If the effectively waives his
right to counsel after receiving the warnings, law
enforcement are to question him. North Caro-
lina v. Butler, 441 U. S. 369, 372-376 (1979). But if a sus-
pect requests counsel at any time during the interview, he is
not subject to further questioning until a lawyer has been
made available or the supped himself reinitiates conversa-
tion* v, Arizona, aupra, at This "sec-
ond layer of pruphylaxl> for the to counsel/1
v. Wisconsin, 501 U- 8. 171, 176 (1901), is
to prevent police from a Into waiving
his previously M!mnrln Michiytu* v. Hat-
m% 494 U. a 344, 360 To that end, we held
that a suspect who invoked the right to cannot
be an attorney is
actually present. v, 3f^/^://^/, U.S. 146
v. 4B6 U. S. 676 4llt re-
however, on
tioning -like other of Mirnwlu iU not re-
by the Fifth jin»hn»i!Jnn on
but is by to its
prophylactic purpe^e/* v, at
528,
The of the prophvlurt ir of JBW-
nH{iain*s to ^dett^nnine whether the accused
his to eoun*u*l.w v,
at 95 v, C,
442 U, a 707f 719 T0 iljffu-ult i.* of to
of a tn Ito
j*Iy to a See Th «f
Cite as: 512 U. S. 452 (1994) 459
Opinion of the Court
provide guidance to officers conducting interrogations, this is
an objective inquiry. See Connecticut v. Barrett, supra, at
529. Invocation of the Miranda right to counsel "requires,
at a minimum, some statement that can reasonably be con-
strued to be an expression of a desire for the assistance of
an attorney/' McNeil v. Wisconsin, 501 U. S., at 178. But
if a suspect makes a reference to an attorney that is ambigu-
ous or equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect
might be invoking the right to counsel, our precedents do
not require the cessation of questioning. See ibid. ("[T]he
likelihood that a suspect would wish counsel to be present
is not the test for applicability of Edwards"); Edwards v.
Arizona, supra, at 485 (impermissible for authorities "to re-
interrogate an accused in custody if he has clearly asserted
his right to counsel") (emphasis added).
Rather, the suspect must unambiguously request counsel.
As we have observed, "a statement either is such an asser-
tion of the right to counsel or it is not." Smith v. Illinois,
469 U. S., at 97-98 (brackets and internal quotation marks
omitted). Although a suspect need not "speak with the dis-
crimination of an Oxford don," post, at 476 (SouTER, J., con-
curring in judgment), he must articulate his desire to have
counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement
to be a request for an attorney. If the statement fails to
meet the requisite level of clarity, Edwards does not require
that the officers stop questioning the suspect. See Moran
v. Burbine, 475 U. S. 412, 433, n. 4 (1986) ("[T]he interro-
gation must cease until an attorney is present only [i]f the
individual states that he wants an attorney") (citations and
internal quotation marks omitted).
We decline petitioner's invitation to extend Edwards and
require law enforcement officers to cease questioning imme-
diately upon the making of an ambiguous or equivocal refer-
ence to an attorney. See Arizona v. JRoberson, supra, at 688
460 n ' NT: I- ; »
of fht» (Vmrt
V, X» C*[T]ht» of Is our
rule, not a command; it In ciur obligation
to its e\pan?>!"?;MX The J?ef~
is the nvjMM'* a >u-p*^t*s wishes
re^anlmjr his to an pn>-t>i:i during custo-
dial interro;/ati«ai the ^'winding the
uurstloinmr reasonably <io licit or not the sus-
a lawyer, a ^'quirm-- the immediate
of th«* Mirntxhi
wholly to police
invi'stigaf ivi- activity/* v. .Ifox'. :/f 4EI U S, 96? 102
(1975), lu-cau^i* it r:*'»nl!*'— !y p!v\*T/ the from
a in thi* of *<nun?t>l if the
suspect did not to a rm*-»»!it. in
** rruuir^.- the* j»ri*vi-;o!. of muns**l to a sus|u*d who
s to the* of a law-
In .U'V'j'/MAjr wi* «-\{*nv-l> the
a law-
yer* pr«*>«*nl at all to pnVorn'rV1 JB4 U.S., at
474t and a >u,-p*n*f be of his right
to mn attorney prewnt h^ not be
invoking his to c^mnrt**!. We
if a Mi>prrf I§ "indivl^h** im M» for counHel,0 the
not qw^tiuwwr. M.f at
We roc«*gnizi' requiring a asstTti<m of the right
to jAU-p«-rf i who li^cause
of of or a of
mvons will not art irula! «• fco coim-
set to a
But the primary suhjVot to
interrogation Is the Hfinnnhi warnings themselves.
lll[F3wll comj>n*hension of the to and re-*
an attorney [is] to eoereion Is
Inherent In the interrogation proeeHH." v,
at 427. A sunset knowingly voluntarily
his to counsel explained
Cite as: 512 U. S. 452 (1994) 461
Opinion of the Court
to him has indicated his willingness to deal with the police
unassisted. Although Edwards provides an additional pro-
tection— if a suspect subsequently requests an attorney,
questioning must cease— it is one that must be affirmatively
invoked by the suspect.
In considering how a suspect must invoke the right to
counsel, we must consider the other side of the Miranda
equation: the need for effective law enforcement. Although
the courts ensure compliance with the Miranda require-
ments through the exclusionary rule, it is police officers who
must actually decide whether or not they can question a sus-
pect. The Edwards rule — questioning must cease if the
suspect asks for a lawyer — provides a bright line that can
be applied by officers in the real world of investigation and
interrogation without unduly hampering the gathering of in-
formation. But if we were to require questioning to cease
if a suspect makes a statement that might be a request for
an attorney, this clarity and ease of application would be lost.
Police officers would be forced to make difficult judgment
calls about whether the suspect in fact wants a lawyer even
though he has not said so, with the threat of suppression if
they guess wrong. We therefore hold that, after a knowing
and voluntary waiver of the Miranda rights, law enforce-
ment officers may continue questioning until and unless the
suspect clearly requests an attorney.
Of course, when a suspect makes an ambiguous or equivo-
cal statement it will often be good police practice for the
interviewing officers to clarify whether or not he actually
wants an attorney. That was the procedure followed by the
NIS agents in this case. Clarifying questions help protect
the rights of the suspect by ensuring that he gets an attor-
ney if he wants one, and will minimize the chance of a con-
fession being suppressed due to subsequent judicial second-
guessing as to the meaning of the suspect's statement
regarding counsel. But we decline to adopt a rule requiring
officers to ask clarifying questions. If the suspect's state-
462 DAVIS u UNITED STATES
SCALIA, J., concurring
ment is not an unambiguous or unequivocal request for coun-
sel, the officers have no obligation to stop questioning him.
To recapitulate: We held in Miranda that a suspect is enti-
tled to the assistance of counsel during custodial interroga-
tion even though the Constitution does not provide for such
assistance. We held in Edwards that if the suspect invokes
the right to counsel at any time, the police must immediately
cease questioning him until an attorney is present. But we
are unwilling to create a third layer of prophylaxis to pre-
vent police questioning when the suspect might want a law-
yer. Unless the suspect actually requests an attorney, ques-
tioning may continue.
The courts below found that petitioner's remark to the
NIS agents — "Maybe I should talk to a lawyer" — was not a
request for counsel, and we see no reason to disturb that
conclusion. The NIS agents therefore were not required to
stop questioning petitioner, though it was entirely proper for
them to clarify whether petitioner in fact wanted a lawyer.
Because there is no ground for suppression of petitioner's
statements, the judgment of the Court of Military Appeals is
Affirmed.
JUSTICE SCALIA, concurring.
Section 3501 of Title 18 of the United States Code is "the
statute governing the admissibility of confessions in federal
prosecutions/* United States v. Alvarez-Sanchez, 511 U. S.
350, 351 (1994), That provision declares that "a confession
. . . shall be admissible in evidence if it is voluntarily
given" and that the issue of voluntaiiness shall be deter-
mined on the basis of "all the circumstances surrounding the
giving of the confession, inciting whether or not [the] de-
fendant was advised or knew that he was not required to
make any statement ...[;]... whether or not [the] defendant
had been advised prior to questioning of his right to the as-
sistance of counsel; and . . . whether or not [the] defendant
was without the assistance of counsel when questioned * * . ."
Cite as: 512 U. S. 452 (1994) 463
SCALIA, J., concurring
§§3501(a), (b) (emphases added). It continues (lest the im-
port be doubtful): "The presence or absence of any of the
above-mentioned factors , . . need not be conclusive on the
issue of voluntariness of the confession." §3501(b). Legal
analysis of the admissibility of a confession without reference
to these provisions is equivalent to legal analysis of the ad-
missibility of hearsay without consulting the Rules of Evi-
dence; it is an unreal exercise. Yet as the Court observes,
see ante, at 457-458, n., that is precisely what the United
States has undertaken in this case. It did not raise § 3501(a)
below and asserted that it is "not at issue" here, Brief for
United States 18, n. 13.*
This is not the first case in which the United States has
declined to invoke §3501 before us — nor even the first case
in which that failure has been called to its attention. See
Tr. of Oral Arg. in United States v. Green, O. T. 1992, No.
91-1521, pp. 18-21. In fact, with limited exceptions the
*The United States makes the unusually self-denying assertion that the
provision "in any event would appear not to be applicable in court-martial
cases" since (1) court-martial cases are not "'criminal prosecutions1"
within the meaning of the Sixth Amendment and "therefore would not
appear to be 'criminal prosecutionfe]' for purposes of Section 3501(a)," and
(2) courts-martial are governed by Article 31 of the Uniform Code of Mili-
tary Justice, 10 U. S. C. § 831, and Rules 304 and 305 of the Military Rules
of Evidence. The first point seems to me questionable: The meaning of
terms in statutes does not necessarily parallel their meaning in the Consti-
tution. Moreover, even accepting the premise that § 3501 does not apply
to courts-martial directly, it does apply indirectly, through Rule 101(b)(l)
of the Military Rules of Evidence, which requires courts-martial to apply
"the rules of evidence generally recognized in the trial of criminal cases
in the United States district courts." As for the second point: The cited
provisions of the Uniform Code and the Military Rules may (though I
doubt it) be independent reasons why the confession here should be ex-
cluded, but they cannot possibly be reasons why § 3501 does not prevent
Miranda v. Arizona, 384 U. S. 436 (1966), from being a basis for excluding
them, which is the issue before us. In any event, the Court today bases
its refusal to consider § 3501 not upon the fact that the provision is inappli-
cable, but upon the fact that the Government failed to argue it — and it is
that refusal which my present statement addresses.
464 DAVIS v. UNITED
SCALIA, J., concurring
provision has been studiously avoided by every Administra-
tion, not only in this Court but in the lower courts, since its
enactment more than 25 years ago. See Office of Legal
Policy, U. S* Dept. of Justice, Report to Attorney General
on Law of Pre-Trial Interrogation 72-73 (1986) (discussing
"[t]he abortive implementation of §8501" its passage
in 1968).
I agree with the Court that it is proper, given the Govern-
ment's failure to raise the point, to render judgment without
taking account of §3501. But the refusal to consider argu-
ments not raised is a sound prudential practice, rather than
a statutory or constitutional mandate, and there are times
when prudence dictates the contrary* See United States
Nat Bank of Ore. v. of America,
Inc., 508 U. S. 439, (proper for Court of Ap-
peals to consider whether an controlling statute
had been repealed, failure, upon invitation,
to the point). As far as I am such a time
will have arrived when a within the terms
of this is next to us.
For most of this century, volant ariness vel non was the
touchstone of admissibiiity of Af/m/wfci v,
Ar&ona, S84 U, S. 4S6f 30fi- 507 CHarian, J.f dissent-
ing)* Section 8601 of Title 18 to provide* for that
standard in criminal prosecutions today. I say
"seems" because I do not to prejudge any of law-
1 am entirely to the argument not mean
what it appears to it is for other
reason; or even that it is But I will no
longer be open to the argument Court con-
tinue to ignore the commands of because the
Executive declines to that we observe them.
The Executive has the (whether or not it has the
right) effectively to nullify provisions of law by the
mere failure to prosecute— the exercise prosacu-
torial discretion* And it has the (whether or not it
Cite as: 512 U. S. 452 (1994) 465
SCALIA, J., concurring
has the right) to avoid application of § 3501 by simply declin-
ing to introduce into evidence confessions admissible under
its terms. But once a prosecution has been commenced and
a confession introduced, the Executive assuredly has neither
the power nor the right to determine what objections to ad-
missibility of the confession are valid in law. Section § 3501
of Title 18 is a provision of law directed to the courts, reflect-
ing the people's assessment of the proper balance to be
struck between concern for persons interrogated in custody
and the needs of effective law enforcement. We shirk our
duty if we systematically disregard that statutory command
simply because the Justice Department systematically de-
clines to remind us of it.
The United States' repeated refusal to invoke § 3501, com-
bined with the courts' traditional (albeit merely prudential)
refusal to consider arguments not raised, has caused the fed-
eral judiciary to confront a host of "Miranda" issues that
might be entirely irrelevant under federal law. See, e. g., in
addition to the present case, United States v. Green, 507 U. S.
545 (1993) (dism'g cert, as moot); United States v. Griffin, 922
F. 2d 1343 (CAS 1990); United States v. Vazquez, 857 F. 2d
857 (CA1 1988); United States v. Scalf, 725 F. 2d 1272 (CA10
1984). Worse still, it may have produced — during an era of
intense national concern about the problem of runaway
crime — the acquittal and the nonprosecution of many dan-
gerous felons, enabling them to continue their depredations
upon our citizens. There is no excuse for this. Perhaps
(though I do not immediately see why) the Justice Depart-
ment has good basis for believing that allowing prosecutions
to be defeated on grounds that could be avoided by invoca-
tion of § 3501 is consistent with the Executive's obligation to
"take Care that the Laws be faithfully executed," U. S.
Const., Art. II, §3. That is not the point. The point is
whether our continuing refusal to consider § 3501 is consist-
ent with the Third Branch's obligation to decide according to
the law. I think it is not.
466 DAVIS a UNITED
SOUTBR, J.t concurring in judgment
JUSTICE SQUTER, with whom JUSTICE RLACKMUN, JUS-
TICE STEVENS, and JUSTICE GINSBURG join, concurring in
the judgment,
In the midst of his questioning by naval invest ig-ators, peti-
tioner said "Maybe I should talk to a lawyer/* The investi-
gators promptly stopped questioning Davis about the killing
of Keith Shackleton and instead undertook to determine
whether he meant to invoke his right to counsel, see Mi-
randa v. Arizona, 884 II S. 436 (1966). According to testi-
mony accepted by the courts below, Davis answered the
investigators* questions on that point by saying, "I'm not
asking for a lawyer/1 and *4Nof I donft want to talk to a law-
yer/1 Only then did the interrogation resume (stopping for
good when petitioner said, "I think 1 want a lawyer before I
say anything else11).
I agree with the majority that the Constitution not
forbid law enforcement to questions (like those
directed at Davis) aimed solely at clarifying whether a sus~
pect% ambiguous to counsel to
his Fifth Amendment right. Accordingly I concur in the
judgment affirming Davis*s conviction, partly on evi-
dence of statements given after ascertained that he
did not wish to deal with them through counsel. I cannot,
however, join in my further conclusion that if the
investigators here so inclined, they at liberty
to disregard Bavisfs to a lawyer entirely, in accord-
ance with a general rule that interrogators no legal
obligation to what a by an
ambiguous statement that could reasonably be understood to
express a desire to consult a lawyer*
GUT own precedent, the reasonable judgments of the ma-
jority of the many courts to addressed the
before us,1 and the advocacy of a considerable body of law
1 See, «, g» v. 776 R 2d 870 (CAl (en bane);
v, Gotajt, 971, 975 (CA2 v. Wain-
wriffht, mi R 2d 768, 771-772 (en v.
P £rf
Cite as: 512 U. S. 452 (1994) 467
SOUTER, J., concurring in judgment
enforcement officials 2 are to the contrary. All argue against
the Court's approach today, which draws a sharp line be-
tween interrogated suspects who "clearly" assert their right
to counsel, ante, at 461, and those who say something that
may, but may not, express a desire for counsers presence,
the former suspects being assured that questioning will not
resume without counsel present, see Miranda, supra, at 474,
Edwards v. Arizona, 451 U. S. 477, 484-485 (1981); Minnick
v. Mississippi, 498 U. S. 146 (1990), the latter being left to
fend for themselves. The concerns of fairness and practical-
ity that have long anchored our Miranda case law point to a
different response: when law enforcement officials "reason-
ably do not know whether or not the suspect wants a law-
yer," ante, at 460, they should stop their interrogation and
ask him to make his choice clear.
I
A
While the question we address today is an open one,3 its
answer requires coherence with nearly three decades of case
456, 461-462 (CA10 1993); United States v. Mendoza-Cecelia, 963 R 2d
1467, 1472 (CA11 1992); see also Howard v. Pung, 862 R 2d 1348 (CAS
1988). The weight of state-court authority is similarly lopsided, see, e. g.,
People v. Benjamin, 732 P. 2d 1167, 1171 (Colo. 1987); Crawford v. State,
680 A. 2d 571, 576-577 (Del. 1990); Martinez v. State, 564 So. 2d 1071, 1074
(Fla. 1990); State v. Robinson, 427 N. W. 2d 217, 223 (Minn. 1988).
2 See Brief for Americans for Effective Law Enforcement, Inc., Interna-
tional Association of Chiefs of Police, Inc., National District Attorneys
Association, and National Sheriffs' Association as Amid Curiae 5 (The
approach advocated here "is a common sense resolution of the problem.
It fully accommodates the rights of the subject, while at the same time
preserving] the interests of law enforcement and of the public welfare");
see also Brief for United States 20 (approach taken by the Court does not
"fulfill the fundamental purpose of Miranda") (internal quotation marks
omitted).
8 The majority acknowledges, ante, at 456, that we have declined (despite
the persistence of divergent approaches in the lower courts) to decide the
operative rule for such ambiguous statements, see, e. g., Connecticut v.
Barrett. 479 U. S. 523. 529. n. 3 (1987^: Mueller v Vrminia^ K07 Tl R 1042
468 r. UNITED
SOUTER, J*» o-mrurriiuj in judgment
law the police and criminal
in custodial interrogation. Throughout that pe-
riod, two commanded broad that the
< White, J.f from of eerii0rari)t but then suggests
that the conclusion it by McNeil v. Witcomtw,
501 II S. 171 (1991), where we that the that a suspect
would wish to be prettent" not ilkpa itivo, fd., at 178. But
we were not addrewting the of clarity mjuimi to the coun-
sel right (let alone the tociay), as is evident
from the very of Jfcfr*NVi7 where wt to nay only
the right Mn"{innv, at » minimum, statement
that can be to be an »'\i»nt,--inn dfwire for the
of an attorney." 601 IIS*, at 178, JtfrArVif made the
different that not a silent
"would* a whenever that
representation "would" b^ in MH
Nor thin be of by it clicking the of v,
Arizona, 451 II S. 4T7t 4KS to the that a
"clearly hin right, mj^Tinr,!nK See ante, at 460.
Even the par!vu!ar in was not
to the it as
Vquiv.H-nl/* site v. 122 20B, 211, &H4 E 2d 72, 77
tw?e alfto 451 11 SL. ml 4HO, n. 6>* n0 the legal
rnn. t'f|urnrt»,- of a leKff "clear** by
are 884 U* S,f at 475f they
are n^n-Mtry See v. 441 U 8. 368, 378 (1979)
art not). It oth^rwt***^ no res-
»0n to the an nwv n!\c«l, tat net
v, 4fti U S. fl, fjw
N0rt i§ it to as a of the
rule, OR of language :-uw** **ii*K 'ii«*vtiomi^K ^^ »t
a for in at 4W Cqno^i^
^4 U* 8., at h««wf • \*f r. te not
the but § of a
to the tilt j>ur!"»rHm? to nummarize
FBI tite WM
M*» at with ttie anno\nu*^«il In any the ftirtt»r
the FBI Hit be ^quee-
0n he clM 0r did not &, at *^* an ap-
proach to tite out to the on* the Court
Cite as: 512 U. S. 462 (1994) 469
SOUTER, J., concurring in judgment
Miranda safeguards exist " 'to assure that the individual's
right to choose between speech and silence remains unfet-
tered throughout the interrogation process/ " see Connecti-
cut v. Barrett, 479 U. S. 523, 528 (1987) (quoting Miranda,
384 U. S., at 469, and supplying emphasis), and that the justi-
fication for Miranda rules, intended to operate in the real
world, "must be consistent with . . . practical realities," Ari-
zona v. Roberson, 486 U. S. 675, 688 (1988) (KENNEDY, J.,
dissenting). A rule barring government agents from fur-
ther interrogation until they determine whether a suspect's
ambiguous statement was meant as a request for counsel
fulfills both ambitions. It assures that a suspect's choice
whether or not to deal with police through counsel will be
"scrupulously honored," Miranda, supra, at 479; cf. Michi-
gan v. Mosley, 423 U. S. 96, 110, n. 2 (1975) (White, J., concur-
ring in result), and it faces both the real-world reasons why
misunderstandings arise between suspect and interrogator
and the real-world limitations on the capacity of police and
trial courts to apply fine distinctions and intricate rules.
B
Tested against the same two principles, the approach the
Court adopts does not fare so well. First, as the majority
expressly acknowledges, see ante, at 460, criminal suspects
who may (in Miranda's words) be "thrust into an unfamiliar
atmosphere and run through menacing police interrogation
procedures," 384 U. S., at 457, would seem an odd group to
single out for the Court's demand of heightened linguistic
care. A substantial percentage of them lack anything like a
confident command of the English language, see, e. g., United
States v. De la Jara, 973 F. 2d 746, 750 (CA9 1992); many are
"woefully ignorant," Miranda, supra, at 468; cf. Davis v.
North Carolina, 384 U. S. 737, 742 (1966); and many more
will be sufficiently intimidated by the interrogation process
or overwhelmed by the uncertainty of their predicament that
470 DAVIS v. UNITED STATES
SotJTBR, J.» concurring In judgment
the ability to speak assertively will abandon them,4 Indeed,
the awareness of just these realities hasf in the past, dis-
suaded the Court from placing any burden of clarity upon
individuals in custody, but has led it instead to require that
requests for counsel be "give[nl a broad, rather than a nar-
row, interpretation," Michigan v. Jackson* 475 IX S. 625,
633 (1986); Barrett, at 529, and that courts "indulge
every reasonable presumption/' Johnson v. Zerbst, 304 U, S.
4S8f 464 (1938) (Internal quotation marks omitted), that a
suspect has not waived his right to counsel under Mimnda>
seet e.g.9 Oregon v. 482 U.S. 1039, 1051 (1983)
(Powell, J.f concurring) ("We are unanimous in agreeing * . .
that the right to counsel SB a prime example of
those rights requiring the protection of the knowing
intelligent waiver standard") (internal quotation marks
and brackets omitted); ci 498 U. SL, at 160 (So AH A,
J., ("[W]e to the principle that
nothing than the is appropriate for
waivers).
Nor may the gowrninp: \\aiwrs as expressed in
be by drawing a distinction
between initial waivers of subsequent
480eial liidi-
who feel or at* to in
equivocal or no or fqui vocation is
W* CFBtir, I4ngui^iu% LanK*in^*s Strat-
egy in ^e Courtroom 61-71 In «re
for by tha to the
^third turn the of p^yvhologicai
by to & $,
at 44U ^**|T|h<* priru-ipal p\v<'ho!o^itMl e0ntributfag
to a inienrogution in itr>'w>('"i o|u«>tin>; !•* & J* Retd,
Crinrinal and Conf!i*^t«ix^ 1 < llttUn, with E J. Eeid, &
1 and 24 <SfJ 0<i ("The
prfndf»l pHvehc»lo^Irri! to a
Is privacy**).
Cite as: 512 U. S. 452 (1994) 471
SOUTER, J., concurring in judgment
decisions to reinvoke them, on the theory that so long as the
burden to demonstrate waiver rests on the government, it is
only fair to make the suspect shoulder a burden of showing
a clear subsequent assertion. Miranda itself discredited the
legitimacy of any such distinction. The opinion described
the object of the warning as being to assure "a continuous
opportunity to exercise [the right of silence]," 384 U. S., at
444; see also Moran v. Burbine, 475 U. S. 412, 458 (1986)
(STEVENS, J., dissenting); accord, id., at 423, n. 1. "[C]on-
tinuous opportunity" suggests an unvarying one, governed
by a common standard of effectiveness. The suggestion is
confirmed by the very first statement that follows, that
"there can be no questioning" if the suspect "indicates in any
manner and at any stage of the process that he wishes to
consult with an attorney," Miranda, 384 U. S., at 444-445.
"[A]t any stage" obviously includes the stage after initial
waiver and the commencement of questioning, and "indicates
in any manner" is a rule plainly in tension with the indication
"with a vengeance," see id., at 505 (Harlan, J., dissenting),
that the Court would require for exercise of the "continuous"
right at some point after initial waiver.
The Court defends as tolerable the certainty that some
poorly expressed requests for counsel will be disregarded on
the ground that Miranda warnings suffice to alleviate the in-
herent coercion of the custodial interrogation. Ante, at 460.
But, "[a] once-stated warning, delivered by those who will
conduct the interrogation, cannot itself suffice" to "assure
that the . . . right to choose between silence and speech re-
mains unfettered throughout the interrogation process," 384
U. S., at 469. Nor does the Court's defense reflect a sound
reading of the case it relies on, Moran v. Burbine, supra:
"Beyond [the] duty to inform, Miranda requires that the
police respect the [suspect's] decision to exercise the
rights outlined in the warnings. If the individual indi-
cates in any manner, at any time prior to or during ques-
72 DAVIS u UNITED STATES
SOUTER, J., concurring in judgment
tioning, that he wishes to remain silent, [or if he] states
that he wants an attorney, the interrogation must
cease/" 475 U. S., at 420 (quoting Miranda, supra, at
473-474).
Vhile Moran held that a subject's knowing and voluntary
waiver of the right to counsel is not undermined by the fact
hat police prevented an unsummoned lawyer from making
ontact with him, it contains no suggestion that Miranda
ffords as ready a tolerance for police conduct frustrat-
ng the suspect's subjectively held (if ambiguously ex-
pressed) desire for counsel. See 475 U. S., at 423 (contrast-
ng Escobedo v. Illinois, 378 U. S. 478, 481 (1964), where
police incorrectly told the suspect that his lawyer 'didn't
rant to see him' "); see also Miranda, supra, at 468 (purpose
f warnings is to "show the individual that his interroga-
ors are prepared to recognize his privilege should he choose
o exercise it").
Indeed, it is easy, amidst the discussion of layers of protec-
ion, to lose sight of a real risk in the majority's approach,
foing close to the core of what the Court has held that the
fifth Amendment provides. The experience of the timid or
rerbally inept suspect (whose existence the Court acknowl-
dges) may not always closely follow that of the defendant
n Edwards v. Arizona (whose purported waiver of his right
o counsel, made after having invoked the right, was held
neffective, lest police be tempted to "badge[r]" others like
dm, see Michigan v. Harvey, 494 U. S. 344, 350 (1990)). In-
leed, it may be more like that of the defendant in Escobedo
\ Illinois, supra, whose sense of dilemma was heightened
>y his interrogators' denial of his requests to talk to a law-
rer. When a suspect understands his (expressed) wishes to
tave been ignored (and by hypothesis, he has said something
hat an objective listener could "reasonably," although not
ecessarily, take to be a request), in contravention of the
rights" just read to him by his interrogator, he may well
Cite as: 512 U. S. 452 (1994) 473
SOUTER, J., concurring in judgment
see further objection as futile and confession (true or not)
as the only way to end his interrogation.5
Nor is it enough to say that a " 'statement either is ... an
assertion of the right to counsel or it is not/ " Ante, at 459
(quoting Smith v. Illinois, 469 U. S., at 97-98) (omitting
brackets and internal quotation marks). In Smith, we nei-
ther denied the possibility that a reference to counsel could
be ambiguous, see id., at 98; accord, id., at 101 (REHNQUIST,
J., dissenting), nor suggested that particular statements
should be considered in isolation, id., at 98.6 While it might
be fair to say that every statement is meant either to express
a desire to deal with police through counsel or not, this fact
does not dictate the rule that interrogators who hear a state-
ment consistent with either possibility may presume the
latter and forge ahead; on the contrary, clarification is the
intuitively sensible course.
The other justifications offered for the "requisite level of
clarity" rule, ante, at 459, are that, whatever its costs, it will
further society's strong interest in "effective law enforce-
ment," ante, at 461, and maintain the "ease of application,"
6 See People v. Harper, 94 111. App. 3d 298, 300, 418 N. E. 2d 894, 896
(1981) (defendant who asked interrogator to retrieve an attorney's busi-
ness card from his wallet but was told that it " 'wouldn't be necessary' "
held not to have "availed himself" of right to counsel); see also Cooper v.
Dupnik, 963 R 2d 1220, 1225 (CA9 1992) (en bane) (describing elaborate
police Task Force plan to ignore systematically a suspect's requests for
counsel, on the theory that such would induce hopelessness and thereby
elicit an admission, which would then be used to keep the suspect off the
witness stand, see Oregon v. Hass, 420 U. S. 714 (1975) (statements
obtained in violation of Miranda rules admissible for impeachment
purposes)).
6 Indeed, our Smith decision was quoting from the dissent below, which
adverts in the same sentence to the possibility of "bona fide doubt the
officer may still have as to whether the defendant desires counsel," in
which case "strictly" limited questioning is prescribed. See People v.
Smith, 102 111. 2d 365, 375, 466 N. E. 2d 236, 241 (1984) (opinion of Simon,
J.).
474 DAVIS u UNITED STATES
SOUTER, J., concurring in judgment
ibid., that has long been a concern of our Miranda jurispru-
dence. With respect to the first point, the margin of differ-
ence between the clarification approach advocated here and
the one the Court adopts is defined by the class of cases in
which a suspect, if asked, would make it plain that he meant
to request counsel (at which point questioning would cease).
While these lost confessions do extract a real price from soci-
ety, it is one that Miranda itself determined should be borne.
Cf. Brief for Americans for Effective Law Enforcement, Inc,,
et al, as Amid Curiae 5 (the clarification approach "pre-
serves the interests of law enforcement and of the public
welfare"); Escobedo, supra, at 490 ("No system worth pre-
serving should have to fear that if an accused is permitted
to consult with a lawyer, he will become aware of, and exer-
cise, [his constitutional] rights")-
As for practical application, while every approach, includ-
ing the majority's, will involve some "difficult judgment
calls,"7 the rule argued for here would relieve the officer of
7 In the abstract, nothing may seem more clear than a "clear statement"
rule, but in police stations and trial courts the question, "how clear is
clear?" is not so readily answered. When a suspect says, "uh, yeah, I'd
like to do that" after being told he has a right to a lawyer, has he "clearly
asserted" his right? Compare Smith v. Illinois, 469 U S-, at 97 (state-
ment was u 'neither indecisive nor ambiguous**1) (citation omitted), with
id,, at 101 (RBHNQXJIST, J., dissenting) (questioning clarity); see also Ore-
gon v. Bradshaw* 462 U. S, 1039, 1041-1042 (1983) (plurality opinion) ("I
do want an attorney before it goes very much further**); Edwards, 461
U. S., at 479 (u 1 want an attorney before making a deal' |y); e£ n, 3, supra.
Indeed, in this ease, when Davis finally said, WI think I wont a lawyer
before I say anything else," the agents ceasM questioning; but see People
v, Kendricks, 121 111. Apjx 3d 442, 446, 459 K E. 2d 1187, 1139 (1984)
(agents need not stop interrogation when suspect u *I think I might
need a lawyer'"); c£ People v. Santiago, 133 App. Div» 4£9, 430-481, 619
N. Y. 8. 2d 413, 414-416 (1987) ("'Will you supply [a lawyer] now so that
I may ask him should I continue with this interview at this moment?* **
held "not . . . an unequivocal invocation")- See generally Smith, mpra,
at 101 (REHNQUIST, J,, dissenting) (noting that statements are rarely
"crystal-clear"; "differences between certainty and hesitancy may well
Cite as: 512 U. S. 452 (1994) 475
SOUTER, J., concurring in judgment
any responsibility for guessing "whether the suspect in fact
wants a lawyer even though he hasn't said so/' ante, at 461.
To the contrary, it would assure that the "judgment call" will
be made by the party most competent to resolve the ambigu-
ity, who our case law has always assumed should make it:
the individual suspect.
II
Although I am convinced that the Court has taken the
wrong path, I am not persuaded by petitioner's contention
that even ambiguous statements require an end to all police
questioning. I recognize that the approach petitioner urges
on us can claim some support from our case law, most nota-
bly in the "indicates in any manner" language of Miranda,
and I do not deny that the rule I endorse could be abused
by "clarifying" questions that shade subtly into illicitly badg-
ering a suspect who wants counsel, but see Thompson v.
Wainwright, 601 F. 2d 768, 771-772 (CAS 1979); cf. State v.
Walkowiak, 183 Wis. 2d 478, 515 N. W. 2d 863 (1994) (Abra-
hamson, J., concurring) (suggesting means properly to focus
clarification enquiry). But petitioner's proposal is not en-
tirely in harmony with all the major themes of Miranda case
law, its virtues and demerits being the reverse images of
those that mark the Court's rule. While it is plainly wrong,
for example, to continue interrogation when the suspect
wants it to stop (and so indicates), the strong bias in favor
of individual choice may also be disserved by stopping ques-
tioning when a suspect wants it to continue (but where his
statement might be understood otherwise), see Michigan v.
turn on the inflection with which words are spoken, especially where [a]
statement is isolated from the statements surrounding it").
As a practical matter, of course, the primary arbiters of "clarity" will
be the interrogators themselves, who tend as well to be courts' preferred
source in determining the precise words a suspect used. And when an
inculpatory statement has been obtained as a result of an unrecorded,
incommunicado interrogation, these officers rarely lose "swearing
matches" against criminal defendants at suppression hearings.
476 DAVIS v. UNITED STATES
SOUTEB, J., concurring in judgment
Mosley, 423 U. S. 96, 109 (1975) (White, J., concurring in re-
sult) ("[W]e have . . . rejected [the] paternalistic rule protect-
ing a defendant from his intelligent and voluntary decisions
about his own criminal ease"). The costs to society of losing
confessions would, moreover, be especially hard to bear
where the suspect, if asked for his choice, would have chosen
to continue. One need not sign the majority's opinion here
to agree that resort to the rule petitioner argues for should
be had only if experience shows that less drastic means of
safeguarding suspects' constitutional rights are not up to the
job, see generally United States v. Leon, 468 U, S. 897, 927-
928 (1984) (BLACKMUN, J., concurring) (exclusionary rule ex-
ception must be "tested in the real world of state and federal
law enforcement, and this Court will attend to the results").
Our cases are best respected by a rule that when a suspect
under custodial interrogation makes an ambiguous statement
that might reasonably be understood as expressing a wish
that a lawyer be summoned (and questioning cease), interro-
gators' questions should be confined to verifying whether the
individual meant to ask for a lawyer. While there is reason
to expect that trial courts will apply today's ruling sensibly
(without requiring criminal suspects to speak with the dis-
crimination of an Oxford don) and that interrogators will
continue to follow what the Court rightly calls "good police
practice" (compelled up to now by a substantial body of state
and Circuit law), I believe that the case law under Miranda
does not allow them to do otherwise.
OCTOBER TERM, 1993 477
Syllabus
HECK v. HUMPHREY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 93-6188. Argued April 18, 1994— Decided June 24, 1994
While petitioner Heck's direct appeal from an Indiana conviction was
pending, he filed this suit under 42 U. S. C. § 1983, seeking damages —
but not injunctive relief or release from custody — on the claim that re-
spondents, acting under color of state law, had engaged in unlawful acts
that had led to his arrest and conviction. After the Federal District
Court dismissed this action without prejudice, the Indiana Supreme
Court upheld Heck's conviction and sentence, and his two petitions for
federal habeas relief were rejected. The Court of Appeals then af-
firmed the dismissal of the § 1983 complaint and approved the District
Court's reasoning: If the plaintiff in a federal civil rights action is chal-
lenging the legality of his conviction, so that his victory would require
his release even if he had not sought that relief, the suit must be classi-
fied as a habeas corpus action and dismissed if the plaintiff has failed to
exhaust his state remedies.
Held: In order to recover damages for allegedly unconstitutional convic-
tion or imprisonment, or for other harm caused by actions whose unlaw-
fulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribu-
nal authorized to make such determination, or called into question by a
federal court's issuance of a writ of habeas corpus, 28 U. S. C. § 2254. A
claim for damages bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable under § 1983. Preiser
v. Rodriguez, 411 U. S. 475, 494, and Wolff v. McDonnell, 418 U. S. 539,
554, distinguished. The foregoing conclusion follows upon recognition
that the common law of torts provides the appropriate starting point
for the § 1983 inquiry, see Carey v. Piphus, 436 U. S. 247, 257-258; that
the tort of malicious prosecution, which provides the closest analogy to
claims of the type considered here, requires the allegation and proof of
termination of the prior criminal proceeding in favor of the accused, see,
e. g., Carpenter v. Nutter, 59 P. 301; and that this Court has long been
concerned that judgments be final and consistent and has been disin-
clined to expand opportunities for collateral attack on criminal convic-
tions, see, e. g., Parke v. Raley, 506 U. S. 20, 29-30, Although the issue
in cases such as this is not, therefore, the exhaustion of state remedies,
178 HECK u HUMPHREY
Opinion of the Court
the dismissal of Heck's § 1983 action was correct because both courts
below found that his damages claims challenged the legality of his con-
viction. Pp. 480-490.
297 P. 2d 355, affirmed.
SCAUA, J., delivered the opinion of the Court, in which REHNQUIST,
0. J., and KENNEDY, THOMAS, and GINSBURG, JJ., joined. THOMAS, J.,
filed a concurring opinion, post, p. 490. SOUTER, J., filed an opinion con-
curring in the judgment, in which BLACKMUN, STEVENS, and O'CONNOR,
JJ., joined, post, p. 491.
Charles Rothfeld argued the cause and filed briefs for
petitioner,
Matthew R. Gutwein argued the cause for respondents.
With him on the brief were Pamela Carter, Attorney Gen-
eral of Indiana, and Arend J. Abel and Dana Childress-Jones,
Deputy Attorneys General.*
JUSTICE SCALIA delivered the opinion of the Court.
This case presents the question whether a state prisoner
may challenge the constitutionality of his conviction in a suit
for damages under 42 U S. C. § 1983.
I
Petitioner Roy Heck was convicted in Indiana state court
3f voluntary manslaughter for the killing of Rickie Heck, his
wife, and is serving a 15-year sentence in an Indiana prison*
While the appeal from his conviction was pending, petitioner,
*A brief of amici curias was filed for the State of Arizona et aL by
Jrant Woods, Attorney General of Arizona, Paul J. McMurdie, and Linda
L. Knowlesf and by the Attorneys General for their respective States as
bllows: James H. Evans of Alabama, Winston Bryant of Arkansas, Dan-
iel E, Lungren of California, Robert A Butterwortk of Florida, Larry
EchoHawk of Idaho, Roland W. Burris of Illinois, Chris Gorman of Ken-
,ucky, Michael C, Moore of Mississippi, Joseph T. Mazurek of Montana,
Frankie Sue Del Papa of Nevada, Deborah 2! Poritz of New Jersey, Lee
Fisher of Ohio, 2! Travis Medloek of South Carolina, Mark W Barnett of
South Dakota, Dan Morales of Texas, Jan Graham of Utah, and Joseph
B. Meyer of Wyoming.
Cite as: 512 U. S. 477 (1994) 479
Opinion of the Court
proceeding pro se, filed this suit in Federal District Court
under 42 U. S. C. § 1983,1 naming as defendants respondents
James Humphrey and Robert Ewbank, Dearborn County
prosecutors, and Michael Krinoph, an investigator with the
Indiana State Police. The complaint alleged that respond-
ents, acting under color of state law, had engaged in an "un-
lawful, unreasonable, and arbitrary investigation" leading to
petitioner's arrest; "knowingly destroyed" evidence "which
was exculpatory in nature and could have proved [peti-
tioner's] innocence"; and caused "an illegal and unlawful
voice identification procedure" to be used at petitioner's trial.
App. 5-6. The complaint sought, among other things, com-
pensatory and punitive monetary damages. It did not ask
for injunctive relief, and petitioner has not sought release
from custody in this action.
The District Court dismissed the action without prejudice,
because the issues it raised "directly implicate the legality
of [petitioner's] confinement," id., at 13. While petitioner's
appeal to the Seventh Circuit was pending, the Indiana Su-
preme Court upheld his conviction and sentence on direct
appeal, Heck v. State, 552 N. E. 2d 446, 449 (Ind. 1990); his
first petition for a writ of habeas corpus in Federal District
Court was dismissed because it contained unexhausted
claims; and his second federal habeas petition was denied,
and the denial affirmed by the Seventh Circuit.
When the Seventh Circuit reached petitioner's appeal from
dismissal of his § 1983 complaint, it affirmed the judgment
and approved the reasoning of the District Court: "If, re-
gardless of the relief sought, the plaintiff [in a federal civil
1 Section 1983 provides: "Every person who, tinder color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Consti-
tution and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."
480 HECK u HUMPHREY
Opinion of the Court
rights action] is challenging the legality of his conviction,C2]
so that if he won his case the state would be obliged to re-
lease him even if he hadn't sought that relief, the suit is clas-
sified as an application for habeas corpus and the plaintiff
must exhaust his state remedies, on pain of dismissal if he
fails to do so." 997 P. 2d 355, 357 (1993). Heck filed a peti-
tion for certiorari, which we granted. 510 U. S. 1068 (1994).
II
This case lies at the intersection of the two most fertile
sources of federal-court prisoner litigation — the Civil Rights
Act of 1871, Rev. Stat § 1979, as amended, 42 U. S. C. § 1983,
and the federal habeas corpus statute, 28 U. S. C. §2254.
Both of these provide access to a federal forum for claims of
unconstitutional treatment at the hands of state officials, but
they differ in their scope and operation. In general, exhaus-
tion of state remedies "is not a prerequisite to an action
under § 1983," Patsy v. Board of Regents of Fla., 457 U. S.
496, 501 (1982) (emphasis added), even an action by a state
prisoner, id., at 509. The federal habeas corpus statute, by
2 Neither in his petition for certiorari nor in his principal brief on the
merits did petitioner contest the description of his monetary claims (by
both the District Court and the Court of Appeals) as challenging the legal-
ity of his conviction. Thus, the question we understood to be before us
was whether money damages premised on an unlawful conviction could be
pursued under § 1983. Petitioner sought to challenge this premise in his
reply brief, contending that findings validating Ms damages claims would
not invalidate his conviction. See Reply Brief for Petitioner 6-6. That
argument comes too late. We did not take this case to review such a
fact-bound issue, and we accept the characterisation of the lower courts.
We also decline to pursue, without implying the nonexistence of, another
issue, suggested by the Court of Appeals1 statement that, if petitioner's
"conviction were proper, this suit would in all likelihood be barred by
res judicata/' 997 R 2d 366, 367 (CAT 1993). The res judicata effect of
state-court decisions in § 1983 actions is a matter of state law. See Migra
v. Warren City School Dist J5d of Ed., 465 U- S, 76 (1984).
Cite as: 512 U. S. 477 (1994) 481
Opinion of the Court
contrast, requires that state prisoners first seek redress in a
state forum.3 See Rose v. Lundy, 455 U. S. 509 (1982).
Preiser v. Rodriguez, 411 U. S. 475 (1973), considered the
potential overlap between these two provisions, and held
that habeas corpus is the exclusive remedy for a state pris-
oner who challenges the fact or duration of his confinement
and seeks immediate or speedier release, even though such
a claim may come within the literal terms of § 1983. 7d,
at 488-490. We emphasize that Preiser did not create an
exception to the "no exhaustion" rule of §1983; it merely
held that certain claims by state prisoners are not cognizable
under that provision, and must be brought in habeas corpus
proceedings, which do contain an exhaustion requirement.
This case is clearly not covered by the holding of Preiser,
for petitioner seeks not immediate or speedier release, but
monetary damages, as to which he could not "have sought
and obtained fully effective relief through federal habeas cor-
pus proceedings." Id., at 488. See also id., at 494; Allen
v. McCurry, 449 U. S. 90, 104 (1980). In dictum, however,
Preiser asserted that since a state prisoner seeking only
damages "is attacking something other than the fact or
length of ... confinement, and ... is seeking something other
than immediate or more speedy release[,] ... a damages ac-
tion by a state prisoner could be brought under [§ 1983] in
federal court without any requirement of prior exhaustion of
state remedies." 411 U. S., at 494. That statement may
not be true, however, when establishing the basis for the
damages claim necessarily demonstrates the invalidity of the
8 Title 28 U. S. C. §2254(b) provides: "An application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a
State court shall not be granted unless it appears that the applicant has
exhausted the remedies available in the courts of the State, or that there
is either an absence of available State corrective process or the existence
of circumstances rendering such process ineffective to protect the rights
of the prisoner."
482 HECK v. HUMPHREY
Opinion of the Court
conviction. In that situation, the claimant can be said to be
"attacking . . . the fact or length of ... confinement/' bring-
ing the suit within the other dictum of Preiser: "Congress
has determined that habeas corpus is the appropriate rem-
edy for state prisoners attacking the validity of the fact or
length of their confinement, and that specific determination
must override the general terms of § 1983," Id., at 490. In
the last analysis, we think the dicta of Preiser to be an un-
reliable, if not an unintelligible, guide: that opinion had no
cause to address, and did not carefully consider, the damages
question before us today.
Before addressing that question, we respond to petition-
er's contention that it has already been answered, in Wolff
v. McDonnell, 418 U. S. 539 (1974). See Reply Brief for
Petitioner 1. First of all, if Wolff had answered the ques-
tion we would not have expressly reserved it 10 years later,
as we did in Tower v. Glover, 467 U. S. 914 (1984). See id,
at 923. And secondly, a careful reading of Wolff itself does
not support the contention. Like Preiser, Wolff Involved
a challenge to the procedures used by state prison officials
to deprive prisoners of good-time credits* The § 1983 com-
plaint sought restoration of good-time credits as well as
"damages for the deprivation of civil rights resulting from
the use of the allegedly unconstitutional procedures."
Wolff, supra, at 563. The Court said, after holding the claim
for good-time credits to be foreclosed by Preiser, that the
damages claim was nonetheless "properly before the District
Court and required determination of the validity of the pro-
cedures employed for imposing sanctions, including loss of
good time/' 418 U. S., at 554. Petitioner contends that this
language authorized the plaintiffs in Wolff to recover dam-
ages measured by the actual loss of good time. We think
not. In light of the earlier language characterizing the
claim as one of "damages for the deprivation of civil rights,"
rather than damages for the deprivation of good-time credits,
we think this passage recognized a § 1983 claim for using the
Cite as: 512 II S. 477 (1994) 483
Opinion of the Court
wrong procedures, not for reaching the wrong result (1 e.,
denying good-time credits). Nor is there any indication in
the opinion, or any reason to believe, that using the wrong
procedures necessarily vitiated the denial of good-time cred-
its. Thus, the claim at issue in Wolff did not call into ques-
tion the lawfulness of the plaintiff's continuing confinement.
See Fulford v. Klein, 529 R 2d 377, 381 (1976), adhered to,
550 F. 2d 342 (CA5 1977) (en bane); Schwartz, The Preiser
Puzzle: Continued Frustrating Conflict Between the Civil
Rights and Habeas Corpus Remedies for State Prisoners, 37
DePaul L. Rev. 85, 120-121, 145-146 (1988).
Thus, the question posed by § 1983 damages claims that do
call into question the lawfulness of conviction or confinement
remains open. To answer that question correctly, we see no
need to abandon, as the Seventh Circuit and those courts in
agreement with it have done, our teaching that § 1983 con-
tains no exhaustion requirement beyond what Congress has
provided. Patsy, 457 U. S., at 501, 509. The issue with re-
spect to monetary damages challenging conviction is not, it
seems to us, exhaustion; but rather, the same as the issue
was with respect to injunctive relief challenging conviction
in Preiser: whether the claim is cognizable under § 1983 at
all. We conclude that it is not.
"We have repeatedly noted that 42 U. S. C. § 1983 creates
a species of tort liability." Memphis Community School
Dist v. Stachura, 477 U. S. 299, 305 (1986) (internal quota-
tion marks omitted). "[0]ver the centuries the common law
of torts has developed a set of rules to implement the princi-
ple that a person should be compensated fairly for injuries
caused by the violation of his legal rights. These rules, de-
fining the elements of damages and the prerequisites for
their recovery, provide the appropriate starting point for the
inquiry under § 1983 as well." Carey v. Piphus, 435 U. S.
247, 257-258 (1978). Thus, to determine whether there is
any bar to the present suit, we look first to the common law
of torts. Cf. Stachura, supra, at 306.
484 HECK u HUMPHREY
Opinion of the Court
The common-law cause of action for malicious prosecution
provides the closest analogy to claims of the type considered
here because, unlike the related cause of action for false
arrest or imprisonment, it permits damages for confinement
imposed pursuant to legal process, "If there is a false arrest
claim, damages for that claim cover the time of detention
up until issuance of process or arraignment, but not more."
W. Keeton, D. Dobbs, R. Keeton, & D, Owen, Prosser and
Keeton on Law of Torts 888 (5th ed. 1984). But a successful
malicious prosecution plaintiff may recover, in addition to
general damages, "compensation for any arrest or imprison-
ment, including damages for discomfort or injury to his
health, or loss of time and deprivation of the society. " Id.,
at 887-888 (footnotes omitted)* See also Roberts v. Thomas,
135 Ky. 63, 121 S. W. 961 (1909).
One element that must be alleged and proved in a mali-
cious prosecution action is termination of the prior criminal
proceeding in favor of the accused. Prosser and Keeton,
supra, at 874; Carpenter v. Nutter, 127 Gal. 61, 59 R 301
(1899). This requirement "avoids parallel litigation over
the issues of probable cause and guilt . . . and it precludes
the possibility of the claimant [sic] succeeding in the tort
action after having been convicted in the underlying crimi-
nal prosecution, in contravention of a strong judicial policy
against the creation of two conflicting resolutions arising
out of the same or identical transaction/* 8 S. Speiser,
d Krause, & A. Gans, American Law of Torts § 28:5, p. 24
(1991). Furthermore, "to permit a convicted criminal de-
fendant to proceed with a malicious prosecution claim would
permit a collateral attack on the conviction through the vehi-
cle of a civil suit." Ibid.4 This, Court has long expressed
4 JUSHCE SOUTER criticizes our reliance on malicious prosecution's fa-
vorable termination requirement as illustrative of the common-law princi-
ple barring tort plaintiffs from mounting collateral attacks on their out-
Cite as: 512 U. S. 477 (1994) 485
Opinion of the Court
similar concerns for finality and consistency and has gener-
ally declined to expand opportunities for collateral attack,
see Parke v. Raley, 506 U. S. 20, 29-30 (1992); Teague v.
Lane, 489 U. S. 288, 308 (1989); Rooker v. Fidelity Trust Co.,
standing criminal convictions. Malicious prosecution is an inapt analogy,
he says, because "[a] defendant's conviction, under Reconstruction-era
common law, dissolved his claim for malicious prosecution because the con-
viction was regarded as irrebuttable evidence that the prosecution never
lacked probable cause." Post, at 496, citing T. Cooley, Law of Torts 185
(1879). Chief Justice Cooley no doubt intended merely to set forth the
general rule that a conviction defeated the malicious prosecution plaintiff's
allegation (essential to his cause of action) that the prior proceeding was
without probable cause. But this was not an absolute rule in all jurisdic-
tions, see Goodrich v. Warner, 21 Conn. 432, 443 (1852); Richter v. Rosier,
45 Ind. 440, 441-442 (1874), and early on it was recognized that there must
be exceptions to the rule in cases involving circumstances such as fraud,
perjury, or mistake of law, see Burt v. Place, 4 Wend. 591 (N. Y. 1830);
Witham v. Gowen, 14 Me. 362 (1837); Olson v. Neal, 63 Iowa 214, 18 N. W.
863 (1884). Some cases even held that a "conviction, although it be after-
wards reversed, is pnma facie evidence — and that only — of the existence
of probable cause." Neher v. Dobbs, 41 Neb. 863, 868, 66 N. W. 864, 865
(1896) (collecting cases). In Crescent City Live Stock Co. v. Butchers'
Union Slaughter-House Co., 120 U. S. 141 (1887), we recognized that
"[h]ow much weight as proof of probable cause shall be attributed to the
judgment of the court in the original action, when subsequently reversed
for error, may admit of some question." Id., at 149. We attempted to
"reconcile the apparent contradiction in the authorities," id., at 151, by
observing that the presumption of probable cause arising from a conviction
can be rebutted only by showing that the conviction had been obtained by
some type of fraud, ibid. Although we ultimately held for the malicious
prosecution defendant, our discussion in that case well establishes that the
absolute rule JUSTICE SOUTER contends for did not exist.
Yet even if JUSTICE SOUTER were correct in asserting that a prior con-
viction, although reversed, "dissolved [a] claim for malicious prosecution,"
post, at 496, our analysis would be unaffected. It would simply demon-
strate that no common-law action, not even malicious prosecution, would
permit a criminal proceeding to be impugned in a tort action, even after
the conviction had been reversed. That would, if anything, strengthen
our belief that § 1983, which borrowed general tort principles, was not
meant to permit such collateral attack.
486 HECK v. HUMPHKEY
Opinion of the Court
263 U. S. 413 (1923); Voorhees v. Jackson, 10 Pet. 449, 472-
473 (1836). We think the hoary principle that civil tort ac-
tions are not appropriate vehicles for challenging the validity
of outstanding criminal judgments applies to § 1983 damages
actions that necessarily require the plaintiff to prove the un-
lawfulness of his conviction or confinement, just as it has
always applied to actions for malicious prosecution,6
We hold that, in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid,6 a § 1983 plaintiff must prove
6 JUSTICE SOUTER'S discussion of abuse of process, post, at 494-495, does
not undermine this principle. It is true that favorable termination of
prior proceedings is not an element of that cause of action — but neither is
an impugning of those proceedings one of its consequences. The grava-
men of that tort is not the wrongfulness of the prosecution, but some
extortionate perversion of lawfully initiated process to illegitimate ends.
See, e. g.y Donohoe Const Co. v. Mount Vernon Associates, 236 Vk 631,
689-640, 369 S. E. 2d 867, 862 (1988); see also 8 S, Speiser, CX Krause, &
A. Gans, American Law of Torts § §28:82-28:34 (1991). Cognizable iiyury
for abuse of process is limited to the harm caused by the misuse of process,
and does not include harm (such as conviction and confinement) resulting
from that process's being carried through to its iawftil conclusion. Thus,
one could no more seek compensatory damages for an outstanding criminal
conviction in an action for abuse of process than in one for malicious prose-
cution. This limitation is illustrated by McGann v. Alien, 106 Conn, 177,
191, 134 A. 810, 816 (1926), where the court held that expenses incurred
by the plaintiff in defending herself against dimes charged against her
were not compensable in a suit for abuse of process, since a[d]amage[s] for
abuse of process must be confined to the damage flowing from such abuse,
and be confined to the period of time involved in taking plaintiff, after her
arrest, to [defendant's] store, and the detention there."
6 An example of this latter category — a § 1983 action that does not seek
damages directly attributable to conviction or confinement but whose suc-
cessful prosecution would necessarily imply that the plaintiff's criminal
conviction was wrongfiil — would be the following: A state defendant is
convicted of said sentenced for the crime of resisting arrest, defined as
intentionally preventing a peace officer from effecting a lawful arrest
(This is a common definition of that offense. See People v. Peacock, 68
N. Y. 2d 675, 496 N. E. 2d 688 (1986); 4 a Tom% Wharton's Criminal Law
§593, p. 307 (14th ed. 1981),) He then brings a § 1988 action against the
Cite as: 512 U. S. 477 (1994) 487
Opinion of the Court
that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ of
habeas corpus, 28 U. S. C. § 2254. A claim for damages bear-
ing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under § 1983, Thus,
when a state prisoner seeks damages in a §1983 suit, the
district court must consider whether a judgment in favor
of the plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the con-
viction or sentence has already been invalidated. But if the
district court determines that the plaintiff's action, even if
successful, will not demonstrate the invalidity of any out-
standing criminal judgment against the plaintiff, the action
should be allowed to proceed,7 in the absence of some other
bar to the suit.8
arresting officer, seeking damages for violation of his Fourth Amendment
right to be free from unreasonable seizures. In order to prevail in this
§ 1983 action, he would have to negate an element of the offense of which
he has been convicted. Regardless of the state law concerning res judi-
cata, see n. 2, supra, the § 1983 action will not lie.
7 For example, a suit for damages attributable to an allegedly unrea-
sonable search may lie even if the challenged search produced evidence
that was introduced in a state criminal trial resulting in the § 1983 plain-
tiff's still-outstanding conviction. Because of doctrines like independent
source and inevitable discovery, see Murray v. United States, 487 U. S.
533, 539 (1988), and especially harmless error, see Arizona v. Fulminante,
499 U. S. 279, 307-308 (1991), such a § 1983 action, even if successful, would
not necessarily imply that the plaintiff's conviction was unlawful. In
order to recover compensatory damages, however, the § 1983 plaintiff must
prove not only that the search was unlawful, but that it caused him actual,
compensable injury, see Memphis Community School Dist. v. Stachura,
477 U. S. 299, 308 (1986), which, we hold today, does not encompass the
"injury" of being convicted and imprisoned (until his conviction has been
overturned).
8 For example, if a state criminal defendant brings a federal civil-rights
lawsuit during the pendency of his criminal trial, appeal, or state ha-
beas action, abstention may be an appropriate response to the parallel
488 HECK v. HUMPHREY
Opinion of the Court
Respondents had urged us to adopt a rule that was in one
respect broader than this: Exhaustion of state remedies
should be required, they contended, not just when success
in the § 1983 damages suit would necessarily show a convic-
tion or sentence to be unlawful, but whenever "judgment in
a § 1983 action would resolve a necessary element to a likely
challenge to a conviction, even if the § 1983 court [need] not
determine that the conviction is invalid." Brief for Re-
spondents 26, n. 10. Such a broad sweep was needed, re-
spondents contended, lest a judgment in a prisoner's favor
in a federal-court § 1983 damages action claiming, for exam-
ple, a Fourth Amendment violation, be given preclusive
effect as to that subissue in a subsequent state-court post-
conviction proceeding. Preclusion might result, they as-
serted, if the State exercised sufficient control over the offi-
cials' defense in the § 1983 action. See Montana v. United
States, 440 U. S. 147, 154 (1979). While we have no occasion
to rule on the matter at this time, it is at least plain that
preclusion will not necessarily be an automatic, or even a
permissible, effect.9
state-court proceedings. See Colorado River Water Conservation Disk
v. United States, 424 U. S. 800 (1976).
Moreover, we do not decade whether abstention might be appropriate in
cases where a state prisoner brings a § 1988 damages suit raising an issue
that also could be grounds for relief in a state-court challenge to his convic-
tion or sentence. Cf Tower v. Glover, 467 U, S. 914, 923 (1984).
* State courts are bound to apply federal rules in determining the pre-
clusive effect of federal-court decisions on issues of federal law. See
P. Bator, D. Meltzer, P. Mshkin, & D. Shapiro, Hart and Weehsler's The
Federal Courts and the Federal System 1604 {3d ed 1988) ("It is clear
that where the federal court decided a federal question, federal res judi-
cata rules govern"); Deposit Bank v. Frankfort, 191 U. S. 499, 514-518
(1908); Stoll v. Gottlieb, 805 U S. 165, 170-171, 174-175 (1988), The fed-
eral rules on the subject of issue and claim preclusion, unlike those relating
to exhaustion of state remedies, are "almost entirely judge-made. n
Hart & Wechsler's, supra, at 1598; see also Burbank, Inteijurisdietional
Preclusion, Full Faith and Credit and Federal Common Law: A General
Approach, 71 Cornell L. Rev. 788, 747-778 (1986). And in developing
Cite as: 512 U. S. 477 (1994) 489
Opinion of the Court
In another respect, however, our holding sweeps more
broadly than the approach respondents had urged. We do
not engraft an exhaustion requirement upon §1983, but
rather deny the existence of a cause of action. Even a pris-
oner who has fully exhausted available state remedies has
no cause of action under § 1983 unless and until the convic-
tion or sentence is reversed, expunged, invalidated, or im-
pugned by the grant of a writ of habeas corpus. That makes
it unnecessary for us to address the statute-of-limitations
issue wrestled with by the Court of Appeals, which con-
cluded that a federal doctrine of equitable tolling would
apply to the § 1983 cause of action while state challenges to
the conviction or sentence were being exhausted. (The
court distinguished our cases holding that state, not federal,
tolling provisions apply in § 1983 actions, see Board of Re-
gents of Univ. of State of N. Y. v. Tomanio, 446 U. S. 478
(1980); Hardin v. Straub, 490 U. S. 536 (1989), on the ground
that petitioner's claim was "in part one for habeas corpus."
997 F. 2d, at 358.) Under our analysis the statute of limita-
tions poses no difficulty while the state challenges are being
pursued, since the § 1983 claim has not yet arisen. Just as
a cause of action for malicious prosecution does not accrue
until the criminal proceedings have terminated in the plain-
tiff 's favor, 1 C. Gorman, Limitation of Actions §7.4.1, p. 532
(1991); Carnes v. Atkins Bros. Co., 123 La. 26, 31, 48 So. 572,
574 (1909), so also a §1983 cause of action for damages
them the courts can, and indeed should, be guided by the federal policies
reflected in congressional enactments. C£ Moragne v. States Marine
Lines, Inc., 398 U. S. 375, 390-391 (1970). See also United States v. Men-
doza, 464 U. S. 154 (1984) (recognizing exception to general principles of
res judicata in light of overriding federal policy concerns). Thus, the
court-made preclusion rules may, as judicial application of the categorical
mandate of § 1983 may not, see Patsy v. Board of Regents of Fla., 457
U. S. 496, 509 (1982), take account of the policy embodied in §2254(b)'s
exhaustion requirement, see Rose v. Lundy, 455 U. S. 509 (1982), that state
courts be given the first opportunity to review constitutional claims bear-
ing upon state prisoners' release from custody.
490 HECK v. HUMPHREY
THOMAS, J., concurring
attributable to an unconstitutional conviction or sentence
does not accrue until the conviction or sentence has been
invalidated.10
Applying these principles to the present action, in which
both courts below found that the damages claims challenged
the legality of the conviction, we find that the dismissal of
the action was correct. The judgment of the Court of Ap-
peals for the Seventh Circuit is
Affirmed.
JUSTICE THOMAS, concurring.
The Court and JUSTICE SOUTER correctly begin their anal-
yses with the realization that ^[tlhis case lies at the intersec-
tion of ... the Civil Rights Act of 1871, Rev, Stat § 1979, as
amended, 42 II S. C. § 1983, and the federal habeas corpus
statute, 28 U. S. C. §2254," Ante, at 480; post, at 491. One
need only read the respective opinions in this case to under-
10 JUSTICE SOUTBR also adopts the common-law principle that one can-
not use the device of a civil tort action to challenge the validity of an
outstanding criminal conviction, but thinks it neeoKsary to abandon that
principle in those (of which no real-life example cornea to mind) in-
volving former state prisoners who, they are no longer in custody,
cannot bring postconviction challenges. Post, at §00, We think the prin-
ciple barring collateral attacks— a longstanding and deeply rooted feature
of both the common law and our own jurisprudence k not rendered in-
applicable by the fortuity that a convicted criminal is no longer incarcer-
ated, JUSTICE SOUTEE opines that disallowing a suit for a for-
mer state prisoner framed by Ku Klux Klan-dominated officials is
Alhard indeed to reconcile , . . with the of § 1983." Pott, at §02-
But if, as JUSTICE SOUTBE to the of our Interpre-
tive enterprise under §19$SJ to provide a remedy for all conceiv-
able invasions of federal rights that may have suffered at the
hands of officials of the former of the Confederacy* the entire land-
scape of our § 1983 jurisprudence would look very different We would
not, for example, have adopted the rule that judicial officers have absolute
immunity from liability for under §1983f v. Ray, 886
U, & 547 (1967), a rule that would prevent recovery by a former slave who
had been triad and convicted before a corrupt judge in league with
the Ku Klux Klan,
Cite as: 512 U. S. 477 (1994) 491
SOUTER, J., concurring in judgment
stand the difficulty of the task before the Court today. Both
the Court and JUSTICE SOUTER embark on a similar enter-
prise— harmonizing "[t]he broad language of § 1983," a "gen-
eral" statute, with "the specific federal habeas corpus stat-
ute." Preiser v. Rodriguez, 411 U. S. 475, 489 (1973).
I write separately to note that it is we who have put § 1983
and the habeas statute on what JUSTICE SOUTER appro-
priately terms a "collision course." Post, at 492. It has
long been recognized that we have expanded the prerogative
writ of habeas corpus and § 1983 far beyond the limited scope
either was originally intended to have. Cf., e. g., Wright
v. West, 505 U. S. 277, 285-286 (1992) (opinion of THOMAS,
J.) (habeas); Golden State Transit Corp. v. Los Angeles, 493
U. S. 103, 117 (1989) (KENNEDY, J., dissenting) (§ 1983). Ex-
panding the two historic statutes brought them squarely into
conflict in the context of suits by state prisoners, as we made
clear in Preiser.
Given that the Court created the tension between the two
statutes, it is proper for the Court to devise limitations
aimed at ameliorating the conflict, provided that it does
so in a principled fashion. Cf. Malley v. Briggs, 475 U. S.
335, 342 (1986). Because the Court today limits the scope of
§ 1983 in a manner consistent both with the federalism con-
cerns undergirding the explicit exhaustion requirement of
the habeas statute, ante, at 483, and with the state of the
common law at the time § 1983 was enacted, ante, at 484-486,
and n. 4, I join the Court's opinion.
JUSTICE SOUTER, with whom JUSTICE BLACKMUN, JUS-
TICE STEVENS, and JUSTICE O'CONNOR join, concurring in
the judgment.
The Court begins its analysis as I would, by observing
that "[t]his case lies at the intersection of the two most fer-
tile sources of federal-court prisoner litigation — the Civil
Rights Act of 1871, . . . 42 U. S. C. § 1983, and the federal
habeas corpus statute, 28 U. S. C. §2254," two statutes that
)2 HECK v. HUMPHREY
SOUTER, J., concurring in judgment
provide access to a federal forum for claims of unconstitu-
onal treatment at the hands of state officials," while "differ-
ng] in their scope and operation/' Ante, at 480. But in-
tead of analyzing the statutes to determine which should
ield to the other at this intersection, the Court appears to
ake the position that the statutes were never on a collision
ourse in the first place because, like the common-law tort of
aalicious prosecution, § 1983 requires (and, presumably, has
Iways required) plaintiffs seeking damages for unconstitu-
ional conviction or confinement to show the favorable termi-
ation of the underlying proceeding. See ante, at 484-487.
While I do not object to referring to the common law when
esolving the question this case presents, I do not think that
he existence of the tort of malicious prosecution alone
provides the answer. Common-law tort rules can provide
"starting point for the inquiry under §1983," Carey v.
Hphus, 435 IL S. 247, 258 (1978), but we have relied on the
ommon law in § 1983 cases only when doing so was thought
o be consistent with ordinary rules of statutory construc-
ion, as when common-law principles have textual support in
»ther provisions of the Civil Rights Act of 1871, see, e. g., id.,
,t 255-256 (damages under § 1983), or when those principles
vere so fundamental and widely understood at the time
1983 was enacted that the 42d Congress could not be pre-
umed to have abrogated them silently, see, e. g., Tenney v.
Irandhove, 341 II S. 367, 376 (1951) (immunity under § 1983);
Person v. Ray, 386 U. S. 547, 553-554 (1967) (same). At the
iame time, we have consistently refused to allow common-
aw analogies to displace statutory analysis, declining to im-
>ort even well-settled common-law rules into § 1983 "if [the
itatute's] history or purpose counsel against applying [such
•ules] in § 1983 actions." Wyatt v. Cole, 504 U. S. 158, 164
1992); see also Tower v. Glover, 467 U. S. 914, 920-921 (1984).
Uf. Anderson v. Creighton, 483 U S. 635, 645 (1987) ("[W]e
mve never suggested that the precise contours of official im-
Cite as: 512 U. S. 477 (1994) 493
SOUTER, J., concurring in judgment
munity [under §1983] can and should be slavishly derived
from the often arcane rules of the common law").1
An examination of common-law sources arguably relevant
in this case confirms the soundness of our hierarchy of princi-
ples for resolving questions concerning § 1983. If the com-
mon law were not merely a "starting point" for the analysis
under § 1983, but its destination, then (unless we were to
have some authority to choose common-law requirements we
like and discard the others) principle would compel us to ac-
cept as elements of the § 1983 cause of action not only the
malicious-prosecution tort's favorable-termination require-
ment, but other elements of the tort that cannot coherently
be transplanted. In addition to proving favorable termina-
1 Our recent opinion in Wyatt v. Cole, 504 U. S. 158 (1992), summarized
the manner in which the Court has analyzed the relationship between the
common law and § 1983 in the context of immunity:
"Section 1983 'creates a species of tort liability that on its face admits
of no immunities.' Imbler v. Pachtman, 424 U. S. 409, 417 (1976). None-
theless, we have accorded certain government officials either absolute or
qualified immunity from suit if the 'tradition of immunity was so firmly
rooted in the common law and was supported by such strong policy rea-
sons that "Congress would have specifically so provided had it wished to
abolish the doctrine."' Owen v. City of Independence, 445 U. S. 622, 637
(1980) (quoting Pierson v. Ray, 386 U. S. 547, 555 (1967)). If parties seek-
ing immunity were shielded from tort liability when Congress enacted the
Civil Rights Act of 1871— § 1 of which is codified at 42 U. S. C. § 1983— we
infer from legislative silence that Congress did not intend to abrogate such
immunities when it imposed liability for actions taken under color of state
law. See Tower v. Glover, 467 U. S. 914, 920 (1984); Imbler, supra, at 421;
Pulliam v. Allen, 466 U. S. 522, 529 (1984). Additionally, irrespective of
the common law support, we will not recognize an immunity available at
common law if §1983's history or purpose counsel against applying it
in § 1983 actions. Tower, supra, at 920. See also Imbler, supra, at 424-
429." Id., at 163-164.
In his concurrence, JUSTICE KENNEDY stated: "It must be remembered
that unlike the common-law judges whose doctrines we adopt, we are de-
vising limitations to a remedial statute, enacted by the Congress, which
'on its face does not provide for any immunities.'" Id., at 171 (quoting
Malley v. Briggs, 475 U. S. 335, 342 (1986)) (emphasis added in Malley).
494 HECK v. HUMPHREY
SOUTER, J., concurring in judgment
tion, a plaintiff in a malicious-prosecution action, according
to the same sources the Court relies upon, must prove the
"[a]bsence of probable cause for the proceeding" as well as
" *[m]alice/ or a primary purpose other than that of bringing
an offender to justice." W. Keeton, D. Dobbs, R. Keeton? &
D. Owen, Prosser and Keeton on Law of Torts 871 (5th ed.
1984) (hereinafter Prosser and Keeton); see also 8 S. Speiser,
C. Krause, & A. Gans, American Law of Torts §28:7, p. 38,
§28:11, p. 61 (1991). As § 1983 requirements, however, these
elements would mean that even a § 1983 plaintiff whose
conviction was invalidated as unconstitutional (premised, for
example, on a confession coerced by an interrogation-room
beating) could not obtain damages for the unconstitutional
conviction and ensuing confinement if the defendant police
officials (or perhaps the prosecutor) had probable cause to
believe the plaintiff was guilty and intended to bring him
to justice. Absent an independent statutory basis for doing
so, importing into §1983 the malicious-prosecution tort's
favorable-termination requirement but not its probable-
cause requirement would be particularly odd since it is from
the latter that the former derives. See Prosser and Keeton
874 ("The requirement that the criminal prosecution termi-
nate in favor of the malicious prosecution plaintiff ... is
primarily important not as an independent element of the
malicious prosecution action but only for what it shows about
probable cause or guilt~in-fact"); M. Bigelow, Leading Cases
on Law of Torts 196 (1875) ("The action for a malicious prose-
cution cannot be maintained until the prosecution has ter-
minated; for otherwise the plaintiff might obtain judgment
in the one case and yet be convicted in the other, which
would of course disprove the averment of a want of proba-
ble cause").
If, in addition, the common law were the master of statu-
tory analysis, not the servant (to switch metaphors), we
would find ourselves with two masters to contend with here,
for we would be subject not only to the tort of malicious
Cite as: 512 U. S. 477 (1994) 496
SOTJTER, «L, concurring in judgment
prosecution but to the tort of abuse of process as well, see
Wyatt v. Cole, supra, at 164 (calling these two actions "the
most closely analogous torts" to § 1983), the latter making
it "unnecessary for the plaintiff to prove that the proceed-
ing has terminated in his favor," Prosser and Keeton 897.
The Court suggests that the tort of malicious prosecution
provides "the closest analogy to claims of the type consid-
ered here" because "it permits damages for confinement im-
posed pursuant to legal process." Ante, at 484. But the
same appears to be true for the tort of abuse of process. See
Restatement (Second) of Torts §682, Illustration 1 (1977)
(indicating that a person who, by causing a court to issue a writ
of capias against someone to whom he lent money, caused the
borrower to be "arrested . . . and kept in prison" is properly
held liable for the arrest and imprisonment if the lender's
purpose in using legal process was wrongful (and regardless
of favorable termination or want of probable cause)).2
Furthermore, even if the tort of malicious prosecution
were today marginally more analogous than other torts to
the type of § 1983 claim in the class of cases before us (be-
cause it alone may permit damages for unlawful conviction
or postconviction confinement, see n. 3, infra), the Court
overlooks a significant historical incongruity that calls into
question the utility of the analogy to the tort of malicious
2 As the Court observes, there are differences between the tort of abuse
of process and that of malicious prosecution. Ante, at 486, n, 5. While
"the gist of the tort [of malicious prosecution] is • ... commencing an
action or causing process to issue without justification," abuse of process
involves "misusing, or misapplying process justified in itself for an end
other than that which it was designed to accomplish. " Prosser and Kee-
ton 897. Neither common-law tort, however, precisely matches the statu-
tory § 1983 claim for damages for unlawful conviction or confinement; and,
depending on the nature of the underlying right alleged to have been
violated (consider, for example, the right not to be selected for prosecution
solely because of one's race), the tort of abuse of process might provide a
better analogy to a § 1983 claim for unconstitutional conviction or con-
finement than the malicious-prosecution tort.
4m r. HrMPHKKY
SSoiTER, J,» in judgment
prosecution insofar as It is exclusi¥ely to determine the
of §1988: the damages sought In the type of §1983
involved here, for unlawful conviction or post-
convict ion confinement, not at all in an action
for at the time of § 1983's enactment
A defendant's comiciion. under Eeccmstruction-era common
law, dissolved his claim for malicious proBc*cution because the
conviction an irrebuttable evidence that the
prosecution never lacked probable T, Cooley,
Law of Torts 185 (1879) ("If the defendant la convicted in the
and appeal-, in acquitted In the appellate
c0urtf the conviction below is conclusive of probable cause").
Thus the definition of "favorable termination" with which the
Cramers of I10BJI {if of any
definition) of the to the type
of §1983 Involved in ("n*vetvfall cm direct
expunsLivim«'nf 1 by (a) declaration]
[of J invalidity] by a tribunal to such
determination, c>r by a
court's isstianct* of a writ of corpus/* at 487),
it is to see the analogy to the tort of malicious
pr<^**i-ntion in tins escaped the wisdom
of the i*omm(*ntaior?* to the
as as the to Indeed^
on the tart of inalirinu.*. pn^u*rutiun to the
of one to the position,
as a interpretation to be
by the €otirt)f ronviYlion of a crime
out a person's § for damages for unconstitu-
tional or MistiMinvirtinn Confinement.9
r* »|nir**iii»*nt apj^'ar to liber-
ttlO «€ K*'*-T"li V^:J C'TJuT*' II S
the M only t pre-
be bjy any r«»mi)i-t*»nt i-vM-mv sliv*win^ that
tor the pniHCitiAtton dW not to ,-tn*ni?thwiing
the the But the I* not of th«» view
Cite as: 512 U. S. 477 (1994) 497
SOUTER, J., concurring in judgment
We are not, however, in any such strait, for our enquiry
in this case may follow the interpretive methodology em-
ployed in Preiser v. Rodriguez, 411 U. S. 475 (1973) (a meth-
odology uniformly applied by the Courts of Appeals in ana-
lyzing analogous cases, see, e. #., Young v. Kenny, 907 F. 2d
874, 875-876 (CA9 1990)). In Preiser, we read the "general"
§ 1983 statute in light of the "specific federal habeas corpus
statute," which applies only to "person[s] in custody," 28
U. S. C. § 2254(a), and the habeas statute's policy, embodied
in its exhaustion requirement, § 2254(b), that state courts be
given the first opportunity to review constitutional claims
bearing upon a state prisoner's release from custody. 411
U. S., at 489. Though in contrast to Preiser the state pris-
oner here seeks damages, not release from custody, the dis-
tinction makes no difference when the damages sought are
for unconstitutional conviction or confinement. (As the
Court explains, nothing in Preiser nor in Wolff v. McDon-
nell, 418 U. S. 539 (1974), is properly read as holding that the
relief sought in a § 1983 action dictates whether a state pris-
oner can proceed immediately to federal court. See ante,
that a single tort in its late 20th-century form can conclusively (and retro-
actively) dictate the requirements of a 19th-century statute for a discrete
category of cases. Defending the historical analogy, the Court suggests
that Chief Justice Cooley did not mean what he clearly said and that,
despite the Cooley treatise, the Reconstruction-era common law recog-
nized a limited exception to the rule denying a malicious-prosecution
plaintiff the benefit of the invalidation of his conviction: an exception for
convictions "obtained by some type of fraud." Ante, at 485, n. 4 (citing
Crescent City Live Stock Co. v. Butchers' Union Slaughter-House Co., 120
U. S. 141, 151 (1887)). Even if such a narrow exception existed, however,
the tort of malicious prosecution as it stood during the mid-19th century
would still make for a weak analogy to a statutory action under which, as
even the Court accepts, defendants whose convictions were reversed as
violating "any righ[t] . . . secured by the Constitution," 42 U. S. C. § 1983,
may obtain damages for the unlawful confinement associated with the con-
viction (assuming, of course, no immunity bar). Nor, of course, would the
existence of such an exception explain how one element of a malicious-
prosecution action may be imported into § 1983, but not the others.
498 HECK v. HUMPHREY
SOUTER, J., concurring in judgment
at 481-483.) Whether or not a federal-court § 1983 damages
judgment against state officials in such an action would have
preclusive effect in later litigation against the State, mount-
ing damages against the defendant-officials for unlawful con-
finement (damages almost certainly to be paid by state in-
demnification) would, practically, compel the State to release
the prisoner. Because allowing a state prisoner to proceed
directly with a federal-court § 1983 attack on his conviction
or sentence "would wholly frustrate explicit congressional
intent" as declared in the habeas exhaustion requirement,
Preiser, 411 II S., at 489, the statutory scheme must be read
as precluding such attacks. This conclusion flows not from
a preference about how the habeas and § 1983 statutes ought
to have been written, but from a recognition that "Congress
has determined that habeas corpus is the appropriate rem-
edy for state prisoners attacking the validity of the fact or
length of their confinement, [a] specific determination [that]
must override the general terms of § 1983/? Id, at 490,
That leaves the question of how to implement what statu-
tory analysis requires. It is at this point that the malicious-
prosecution tort's favorable-termination requirement be-
comes helpful, not in dictating the elements of a § 1988 cause
of action, but in suggesting a relatively simple way to avoid
collisions at the intersection of habeas and § 1988. A state
prisoner may seek federal-court § 1983 damages for unconsti-
tutional conviction or confinement, but only if he has pre-
viously established the unlawfulness of his conviction or con-
finement, as on appeal or on habeas. This has the effect of
requiring a state prisoner challenging the lawfulness of his
confinement to follow habeas*s rules before seeking §1988
damages for unlawful confinement in federal court, and it
is ultimately the Court's holding today. It neatly resolves a
problem that has bedeviled lower courts, see 997 R 2d 855,
857-858 (CA7 1993) (decision below); Young v. Kenny, supra,
at 877 (discussing cases), legal commentators, see Schwartz,
The Prewer Puzzle, 87 DePaul L. Rev. 85, 86-87, n. 6 (1988)
Cite as: 512 U. S. 477 (1994) 499
SOUTER, J., concurring in judgment
(listing articles), and law students (some of whom doubtless
have run up against a case like this in law-school exams).
The favorable-termination requirement avoids the knotty
statute-of-limitations problem that arises if federal courts
dismiss § 1983 suits filed before an inmate pursues federal
habeas, and (because the statute-of-limitations clock does not
start ticking until an inmate's conviction is set aside) it does
so without requiring federal courts to stay, and therefore to
retain on their dockets, prematurely filed § 1983 suits. See
ante, at 489.4
It may be that the Court's analysis takes it no further than
I would thus go, and that any objection I may have to the
Court's opinion is to style, not substance. The Court ac-
knowledges the habeas exhaustion requirement and explains
that it is the reason that the habeas statute "intersect[s]"
4 The requirement that a state prisoner seeking § 1983 damages for un-
lawful conviction or confinement be successful in state court or on federal
habeas strikes me as soundly rooted in the statutory scheme. Because
"Congress has determined that habeas corpus is the appropriate remedy
for state prisoners attacking the validity of the fact or length of their
confinement, [a] specific determination [that] override[s] the general terms
of § 1983," Preiser v. Rodriguez, 411 U. S. 475, 490 (1973), a state prisoner
whose constitutional attacks on his confinement have been rejected by
state courts cannot be said to be unlawfully confined unless a federal
habeas court declares his "custody [to be] in violation of the Constitution
or laws or treaties of the United States," 28 U. S. C. §2254(a). An unsuc-
cessful federal habeas petitioner cannot, therefore, consistently with the
habeas statute, receive § 1983 damages for unlawful confinement. That is
not to say, however, that a state prisoner whose request for release has
been (or would be) rejected by state courts or by a federal habeas court
is necessarily barred from seeking any § 1983 damages for violations of his
constitutional rights. If a § 1983 judgment in his favor would not demon-
strate the invalidity of his confinement he is outside the habeas statute
and may seek damages for a constitutional violation even without showing
"favorable termination." A state prisoner may, for example, seek dam-
ages for an unreasonable search that produced evidence lawfully or harm-
lessly admitted at trial, or even nominal damages for, say, a violation of
his right to procedural due process, see Carey v. Piphus, 435 U. S. 247, 266
(1978). See ante, at 487, and n. 7.
30 HECK v. HUMPHREY
SOUTER, J., concurring in judgment
a this case with § 1983, which does not require exhaustion,
ee ante, at 480; it describes the issue it faces as "the same"
,s that in Preiser, ante, at 483; it recites the principle that
Common-law tort rules "'provide the appropriate starting
>oint for the inquiry under § 1983/ " ibid, (quoting Carey v.
^iphus, 435 II S., at 257-258); and it does not transpose onto
\ 1983 elements of the malicious-prosecution tort that are
ncompatible with the policies of § 1983 and the habeas stat-
ite as relevant to claims by state prisoners. The Court's
>pinion can be read as saying nothing more than that now,
rfter enactment of the habeas statute and because of it,
Drison inmates seeking §1983 damages in federal court
for unconstitutional conviction or confinement must sat-
isfy a requirement analogous to the malicious-prosecution
bort's favorable-termination requirement. Cl ante, at 491
(THOMAS, J., concurring).
That would be a sensible way to read the opinion, in part
because the alternative would needlessly place at risk the
rights of those outside the intersection of §1983 and the
habeas statute, individuals not "in custody" for habeas pur-
poses. If these individuals (people who were merely fined,
for example, or who have completed short terms of imprison-
ment, probation, or parole, or who discover (through no fault
of their own) a constitutional violation after full expiration
of their sentences), like state prisoners, were required to
show the prior invalidation of their convictions or sentences
in order to obtain § 1983 damages for unconstitutional convic-
tion or imprisonment, the result would be to deny any fed-
eral forum for claiming a deprivation of federal rights to
those who cannot first obtain a favorable state ruling. The
reason, of course, is that individuals not "in custody" cannot
invoke federal habeas jurisdiction, the only statutory mech-
anism besides §1983 by which individuals may sue state
officials in federal court for violating federal rights. That
would be an untoward result.
Cite as: 512 U. S. 477 (1994) 501
SOUTER, J., concurring in judgment
It is one thing to adopt a rule that forces prison inmates
to follow the federal habeas route with claims that fall within
the plain language of § 1983 when that is necessary to pre-
vent a requirement of the habeas statute from being under-
mined. That is what the Court did in Preiser v. Rodriguez,
411 U. S., at 489-492, and that is what the Court's rule would
do for state prisoners. Harmonizing § 1983 and the habeas
statute by requiring a state prisoner seeking damages for
unconstitutional conviction to establish the previous invali-
dation of his conviction does not run afoul of what we have
called, repeatedly, "[t]he very purpose of " § 1983: "to inter-
pose the federal courts between the States and the people,
as guardians of the people's federal rights." Mitchum v.
Foster, 407 U. S. 225, 242 (1972); see also Pulliam v. Allen,
466 U. S. 522, 541 (1984); Patsy v. Board of Regents ofFla.,
457 U. S. 496, 503 (1982). A prisoner caught at the intersec-
tion of § 1983 and the habeas statute can still have his attack
on the lawfulness of his conviction or confinement heard in
federal court, albeit one sitting as a habeas court; and,
depending on the circumstances, he may be able to obtain
§ 1983 damages.
It would be an entirely different matter, however, to shut
off federal courts altogether to claims that fall within the
plain language of § 1983. "[I]rrespective of the common law
support" for a general rule disfavoring collateral attacks,
the Court lacks the authority to do any such thing absent
unambiguous congressional direction where, as here, read-
ing §1983 to exclude claims from federal court would run
counter to "§ 1983's history" and defeat the statute's "pur-
pose." Wyatt v. Cole, 504 U. S., at 158. Consider the case
of a former slave framed by Ku Klux Klan-controlled law-
enforcement officers and convicted by a Klan-controlled state
court of, for example, raping a white woman; and suppose
that the unjustly convicted defendant did not (and could
not) discover the proof of unconstitutionality until after his
502 HECKv HUMPHREY
SOUTER, J., concurring in judgment
release from state custody. If it were correct to say that
§ 1983 independently requires a person not in custody to es-
tablish the prior invalidation of his conviction, it would have
been equally right to tell the former slave that he could not
seek federal relief even against the law-enforcement officers
who framed him unless he first managed to convince the
state courts that his conviction was unlawful. That would
be a result hard indeed to reconcile either with the purpose
of § 1983 or with the origins of what was "popularly known
as the Ku Klux Act," Collins v. Hardyman, 341 U. S. 651,
667 (1951), the statute having been enacted in part out of
concern that many state courts were I4in league with those
who were bent upon abrogation of federally protected
rights/1 Mitchnm v. Foster \ ®npra9 at 240; cf. Cong. Globe,
42d Cong,, 1st Sess.» 577 (1871) (Sen. Trumbull explaining
that, under the Civil Rights Act of 1871, flthe Federal Gov-
ernment has a right to set aside . „ . action of the State au-
thor! ties1' that deprives a person of his fourteenth Amend-
ment rights)* It would also be a result unjustified by the
habeas statute or any other post-1 1983 enactment.
Nor do I see any policy reflected in a congressional enact-
ment that would justify denying to an individual today fed-
eral damages (a significantly disruptive remedy than an
order compelling from custody) merely he
was unconstitutionally fined by a State, or to a person who
discovers after his from prison that, for example,
state officials deliberately withheld exculpatory material
And absent such a statutory policy, surely the common law
can give us no authority to narrow the "broad language" of
§ 1983, which of deprivations of 4%nylf constitutional
rights, privileges, or immunities, by 4llV]very** acting
under color of law, to which "we have given full
effect [by] recognMng that § "providers] a remedy, to be
broadly construed, against all forms of official violation of
federally protected rights/" v. Hlgyln^ 498 US,
489t 443, 445 (1991) (quoting v, York Dept
of Social Servs*f 430 U. S. 658, 700-701 (1978)).
Cite as: 512 U. S. 477 (1994) 503
SOUTER, X, concurring in judgment
In sum, while the malicious-prosecution analogy provides
a useful mechanism for implementing what statutory analy-
sis requires, congressional policy as reflected in enacted stat-
utes must ultimately be the guide. I would thus be clear
that the proper resolution of this case (involving, of course,
a state prisoner) is to construe § 1983 in light of the habeas
statute and its explicit policy of exhaustion. I would not
cast doubt on the ability of an individual unaffected by the
habeas statute to take advantage of the broad reach of
§1983.
504 OCTOBER TERM, 1998
SyllabUH
THOMAS JEFFERSON UNIVKIISITV, DBA THOMAS
JEFFERSON UNIVERSITY HOSPITAL v. SHALALA
SECRETARY OF HEALTH AND HUMAN SERVICES
TKHTIORARI TO THE TMTED STATES COURT OF APPEALS FOJ
THE THIRD CIRCUIT
No, 03-120, Argued April 18, l&*4--I)ecic!e<! June 24, 1994
Medicare reimburneH provider honpitaln for the cost** of certain educationa
activities, including the eont of graduate medical education (GME) serv
ieen furnished by the hospital or its affiliated medical school, 42 CPE
§§41M,K5t 41*H.17(a). However, reimbursement of educational activities
in limited by 11) an "anti-redistribution** prinripli*. providing that the
Medicare program V intent in to support activities that arc* "cufitomarilj
or traditionally carried on by providers in conjunction with their opera-
tions," but that the program «ho«ld not **f>articipate in htcrmmd <to$U
resulting from of cwt* firom cciueationai institutions . * .
to patient can* inHtitutiemH," added); (2) a ucom-
munity nupfxirf* punH|ilc, providing that will not aKHume the
cunt far educational activities j»r« vi»»u !y borm* by thi* nuniiiiinity, ibid.
Petitioner teaching hoHpit&l, » c|iiaiiflwl Mi*dleari» jtm\i«liTT nought no
reimbuntenu^nt for it« n**n alar/ n Lit* »I CJME
before l!AK4t and bcinic* by itn affilintf*d miniical college
In iyK5t the hiTt*ni»»tliary the* hospital's
claim for n*imbur*«4*n»nt ^ but thi* Fmvider Reimburse*'
nnt*nf Review in part, reimtmrHement. Re-
tfponcfont thi* ruling, conclud-
ing tor thif <SMK in prior
yr*ar« by thi* im unpt-ruii -ibl** redistri-
bution tinder §413^i&(c). A* mrt jn<?rj»»»nd* nf concludad that
the* community The Dis-
trict Court and thi* < »cmrt of
jt/f/d* *Hii* S»'«T« tan/- tnit-rpn-trit !«m of thi* anti-rv>dtHtribution prindpla is
Stu ;ij»plir;iH*»n t« di*ny rvnmburittment of
the* in bt n«> tc* the validity
of thi* £ViTvf;ir"'*V int*-r]>ri-*;*t;uji of thi* ***»ininnr*if v
Pp.
(a) Aw j>etiticim»r*ii i» to the* S«MT^*:iry" intifrpretmtion of
hitr own regulation* the be given con-
trolling It in or with the reg-
ulation, in all the the
Cite as: 512 U. S. 504 (1994) 505
Syllabus
regulation concerns a complex and highly technical program in which
the identification and classification of relevant criteria require signifi-
cant expertise and entail the exercise of judgment grounded in policy
concerns. Pp. 512-513.
(b) The meaning of §413.85(c)'s relevant sentence is straightforward:
Its first clause defines the scope of educational activities for which re-
imbursement may be sought, and its second clause provides that the
costs of such activities will not be reimbursed if they result from a shift
of costs from an educational, to a patient care, facility. The Secretary's
interpretation of the anti-redistribution principle gives full effect to
both clauses, allowing reimbursement for costs of educational programs
traditionally engaged in by a hospital, while denying reimbursement
for costs previously incurred and paid by a medical school. It is not
only a plausible interpretation, but also the most sensible interpretation
the language will bear. The Secretary's reliance on a hospital's and
medical school's own historical cost allocations is a simple and effective
way of determining whether a prohibited redistribution has occurred.
Pp. 513-514.
(c) Petitioner's argument that §413.85(c) prohibits the redistribution
of activities, not costs, ignores the second clause of the critical sentence,
which refers on its face to the "redistribution of costs." Moreover, the
term "costs" is used without condition. Even if the Secretary's inter-
pretation were not far more consistent with the regulation's unqualified
language, her construction is a reasonable one which must be afforded
controlling weight. Petitioner has presented no persuasive evidence to
support its second argument, that the Secretary has been inconsistent
in applying the anti-redistribution principle. Petitioner's argument
that the regulation's language is "precatory" or "aspirational" in nature,
and thus lacking in operative force, is also unpersuasive, since the anti-
redistribution clause lays down a bright line for distinguishing permissi-
ble from impermissible reimbursement. Pp. 514-518.
993 F. 2d 879, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST,
C. J., and BLACKMUN, SCALIA, and SOUTER, JJ., joined. THOMAS, J., filed
a dissenting opinion, in which STEVENS, O'CONNOR, and GINSBURG, JJ.,
joined, post, p. 518.
Ronald N. Suiter argued the cause for petitioner. On the
briefs were James M. Gaynor, Jr., and Amy E. Hancock.
Amy L. Wax argued the cause for respondent. With her on
the brief were Solicitor General Days, Assistant Attorney
606 THOMAS JEFFERSON UNIV. v. SHALALA
Opinion of the Court
General Hunger, Deputy Solicitor General Kneedler, Robert
V. Zener, Robert D. Kamenshine, Harriet S. Rabb, Darrel J.
Grinstead, Henry R. Goldberg, and Thomas W. Coons.*
JUSTICE KENNEDY delivered the opinion of the Court.
Although Medicare reimburses provider hospitals for the
costs of certain educational activities, the program is for-
bidden by regulation from aparticipat[ing] in increased costs
resulting from redistribution of costs from educational insti-
tutions * . . to patient care institutions/1 42 CFR §413.85(c)
(1993) (emphasis added). In denying reimbursement for the
disputed costs in this case, the Secretary of Health and
Human Services interpreted this provision to bar reimburse-
ment of educational costs that were borne in prior years not
by the requesting hospital, but by the hospital's affiliated
medical school The dispositive question is whether the
Secretary's interpretation is a reasonable construction of
the regulatory language. We conclude that it is.
I
A
Established in 1965 under Title XVIII of the Social Secu-
rity Act, 79 Stat. 291, as amended, 42 U. S. C. § 1395 et seq.
(1988 ed. and Supp. IV), Medicare is a federally funded
health insurance program for the elderly and disabled. Sub-
ject to a few exceptions, Congress authorized the Secretary
*Brie£s of amici mriae urging reversal were filed for the State of Ohio
et al by Lee Fwfter, Attorney General of Ohio, Diamt M» Sigvtarnccit Cath~
erine JC Batlard, Richard A, Cordray^ and Simon B. Kama, and by the
Attorneys General for their ro-.p* rti\<- States as follows; Win&ton Bryant
of Arkansas, Ckarlm M. Oberly III of Delaware, Richard P. l^yowb of
Louisiana, Hubert H. Humphrey HI of Minnesota, John E Anrmld of New
Hampshire, 0. Olimr Koppell of New Yorkf D. Preat€, Jr., of Peim-
sylvaim, Jan Graham of Utah, and S, Gilwmw III of Virginia; and
for the American* Hospital Association et al by M Mary
Philp* and Joseph A Jr.
Cite as: 512 U. S. 504 (1994) 507
Opinion of the Court
of Health and Human Services (Secretary) to issue regu-
lations defining reimbursable costs and otherwise giving
content to the broad outlines of the Medicare statute.
§ 1395x(v)(l)(A). That authority encompasses the discretion
to determine both the "reasonable cost" of services and the
"items to be included" in the category of reimbursable serv-
ices. Ibid. Acting under the statute, the Secretary, by reg-
ulation, permits reimbursement for the costs of "approved
educational activities" conducted by hospitals. 42 CFR
§413.85(a)(l) (1993). The regulations define "approved edu-
cational activities" as "formally organized or planned pro-
grams of study usually engaged in by providers in order to
enhance the quality of patient care." §413.85(b).
Graduate medical education (GME) programs are one cate-
gory of approved educational activities. GME programs
give interns and residents clinical training in various medical
specialties. Because participants learn both by treating pa-
tients and by observing other physicians do so, GME pro-
grams take place in a patient care unit (most often in a teach-
ing hospital), rather than in a classroom. Hospitals are
entitled to recover the "net cost" of GME and other approved
educational activities, a figure "determined by deducting,
from a provider's total costs of these activities, revenues it
receives from tuition." § 413.85(g). A hospital may include
as a reimbursable GME cost not only the costs of services
it furnishes, but also the costs of services furnished by the
hospital's affiliated medical school. §413.17(a).
That brings us to the regulation here in question. Section
413.85(c) sets forth conditions governing the reimbursement
of educational activities.1 In a sentence referred to by the
1 Title 42 CFR §413.85(c) provides in full:
"Educational Activities. Many providers engage in educational ac-
tivities including training programs for nurses, medical students, interns
and residents, and various paramedical specialties. These programs con-
tribute to the quality of patient care within an institution and are nec-
essary to meet the community's needs for medical and paramedical per-
508 THOMAS JEFFERSON UNIV. u SHALALA
Opinion of the Court
parties as the "anti-redistribution" principle, the regulation
provides that "[ajlthough the intent of the [Medicare] pro-
gram is to share in the support of educational activities cus-
tomarily or traditionally carried on by providers in conjunc-
tion with their operations, it is not intended that this
program should participate in increased costs resulting from
redistribution of costs from educational institutions or units
to patient care institutions or units." Ibid. In a portion of
the regulation known as the "community support" principle,
§413.85(c) also states that the costs of educational activities
"should be borne by the community," but that a[u]ntil com-
munities undertake to bear these costs, the [Medicare] pro-
gram will participate appropriately in the support of these
activities." Ibid.
B
Thomas Jefferson University Hospital (Hospital) is a 700-
bed teaching hospital In Philadelphia, Pennsylvania. The
Hospital has been a qualified Medicare provider since the
program took effect in 1966, Petitioner Thomas Jefferson
University (University) is a private, not-for-profit educa-
tional institution that operates the Hospital and other
entities, including the Jefferson Medical College (Medical
College). As a teaching facility, the Hospital provides
sonnel. It is recognized that the costs of such educational activities
should be borne by the community. However, many communities have
not assumed responsibility for financing these programs and it is neces-
sary that support be provided by those purchasing health care* Until
communities undertake to bear these costs, the [Medicare) program will
participate appropriately in the support of these activities. Although the
intent of the program is to share in the support of educational activities
customarily or traditionally carried on by providers in conjunction with
their operations, it is not intended that this program should participate
in increased costs resulting from redistribution of costs from educational
institutions or units to patient care institutions or units/*
The language in §413.86(c) has been in effect since the beginning of the
Medicare program, although it was formerly designated 42 CPR §405.421
(1977) and 20 CPR §40§,421 (1987).
Cite as: 512 U. S. 504 (1994) 509
Opinion of the Court
Medicare-approved GME programs for postgraduate interns
and residents in numerous medical specialties. The pro-
grams are conducted at the Hospital by Medical College fac-
ulty. Because of their common ownership by the University,
the Hospital and the Medical College are considered affiliated
or "related" organizations under Medicare regulations. 42
CFR §413.17(a) (1993). As a result, the Hospital is entitled
to reimbursement for all eligible patient-care, educational,
and administrative costs carried on the books of the Medical
College. Ibid.
Nevertheless, for reasons not clear from the record, the
Hospital did not seek reimbursement for any GME costs dur-
ing the first eight years of the Medicare program's existence.
During the next 10 years, however, from 1974 through 1983,
the Hospital sought and received reimbursement for three
categories of salary-related GME costs: (1) salaries paid by
the Hospital to Medical College faculty for services rendered
to the Hospital's Medicare patients; (2) salaries paid by the
Hospital to residents and interns; and (3) funds transferred
internally from the Hospital to the Medical College as
payment for faculty time devoted to the Hospital's GME
program. The Hospital did not seek reimbursement dur-
ing that period for its other, non-salary-related GME
costs (namely, the costs of administering the Hospital's
GME programs), and those costs were borne by the Medi-
cal College.
In 1983, Congress adopted a more restrictive method of
reimbursing hospitals for inpatient medical services, see 42
U. S. C. § 1395ww(d) (1988 ed. and Supp. IV), but it retained
the more lenient method of reimbursement for medical edu-
cation costs. 42 U. S. C. § 1395ww(a)(4) (1988 ed., Supp. IV).
In 1984, when the new cost reimbursement regime was im-
plemented, the Hospital reviewed its claim for costs associ-
ated with its GME programs to determine whether it was
identifying all costs eligible for reimbursement. This re-
view resulted in an increased claim reflecting clerical costs
510 THOMAS JEFFERSON UNIV. i\ SHALALA
Opinion of the Court
incurred by the Medical College for activities associated with
its GME programs.2
The following year, in an effort to further refine its cost
allocation techniques, the Hospital retained an accounting
firm to compute the Hospital's total GME costs for fiscal year
1985, the year here in question. Fiscal year 1985 later be-
came especially significant because^ under a new reimburse-
ment scheme enacted in 1986, it is considered the Hospital's
base period, to which all later claims for GME cost reim-
bursement will be tied. See 42 U S. C. § 1395ww(h). After
completing the cost study, the accounting firm reported that
the Hospital had incurred GME program costs totaling $8,8
million, a figure that included direct and indirect administra-
tive costs not previously claimed by the Hospital The re-
port was submitted to petitioner^ assigned fiscal Interme-
diary, whose function is to review petitioner's annual cost
reports and to calculate the appropriate level of reimburse-
ment under applicable and regulations, See 42
CFR §405.1S<)3 (1993), Although petitioner sought reim-
bursement for the foil $8,8 million, the intermediary
allowed only those salary-related that had been reim-
bursed earlier (after adjustment for inflation). The fiscal
intermediary disallowed reimbursement for all nonsalary-
reiated GME that the report identified (amounting
to approximately $2.9 million), App* to Pet, for Cert. 10a*
Petitioner then appealed to the Provider Reimbursement
Review Board, an intermediate appellate tribunal within
the Department, which the decision of the fiscal
intermediary in part and allowed reimbursement for all
of the GME documented in the study.
The Secretary, acting through the Administrator of the
Health Care Financing Administration, modified the Board's
decision and reinstated the intermediary's* ruling. The
Secretary concluded that the anti-redistribution clause of
16 The intermediary *t first* but ktar
determined that such in error.
Cite as: 512 U. S. 504 (1994) 511
Opinion of the Court
§ 413.85(c) prohibits the shift of approved educational costs
from an educational unit to a patient-care unit, even if the
educational activities for which reimbursement is sought are
the kind of activities traditionally engaged in by Medicare
providers. Id., at 35a. Since the nonsalary GME costs
here in issue were borne in prior years by the Medical Col-
lege, the Secretary ruled that reimbursement of these costs
would constitute an impermissible "redistribution of costs"
under §413.85(c). Ibid.
The Secretary also relied on the community support lan-
guage in §413.85(c) as an independent ground for denying
the requested reimbursement. According to the Secretary,
this language prohibits Medicare reimbursement for educa-
tional activities that "have been historically borne by the
community." Ibid. That the Hospital had failed to seek
reimbursement for the disputed costs in previous years was,
in the Secretary's view, "evidence of the community's] sup-
port for these activities." Ibid. "To allow the community
to withdraw that support and pass these costs to the Medi-
care program" would violate the community support princi-
ple and would "encourage the community to abdicate its
commitment to education to an insurance program intended
to provide care for the elderly." Ibid.
Petitioner filed a petition for review in the District Court
seeking reimbursement for the $2,861,247 in GME costs
that the Secretary had disallowed. Id., at lOa. On cross-
motions for summary judgment, the court ruled in the
Secretary's favor, accepting her interpretation of the
anti-redistribution and community support clauses as a
reasonable construction of §413.85(c). Thomas Jefferson
Univ. v. Sullivan, CCH Medicare & Medicaid Guide f 40,294,
p. 30,959 (ED Pa. 1992). The Third Circuit affirmed without
opinion, judgment order reported at 993 P. 2d 879 (1993),
thereby creating a conflict with the decision of the Sixth
Circuit in Ohio State Univ. v. Secretary, Dept of Health
and Human Services, 996 F. 2d 122 (1993), cert, pending,
612 THOMAS JEFFERSON UNIV. u SHALALA
Opinion of the Court
No. 93-696, concerning the validity of the Secretary's inter-
pretation of the anti-redistribution clause. We granted cer-
tiorari, 510 U S. 1039 (1994), and now affirm,
II
Petitioner challenges the Secretary's construction of
§413.85(c) under the Administrative Procedure Act (APA),
5 U. S. C. § 551 et seq. The APA? which is incorporated by
the Social Security Act, see 42 U. S. C. § 1395oo(f )(1), com-
mands reviewing courts to "hold unlawful and set aside"
agency action that is "arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law/1 5 U, S. C.
§706(2)(A). We must give substantial deference to an
agency's interpretation of its own regulations. Martin v.
Occupational Safety Health Review Connn'n, 499 U. S.
144, 150-151 (1991); Lyng v. Payne, 476 U. S. 926, 939 (1986);
Udall v. Tatlman, 380 U. S. 1, 16 (1965), Our task is not to
decide which among several competing interpretations best
serves the regulatory purpose* Rather, the agency's in-
terpretation must be given 4< ^controlling weight unless it
is plainly erroneous or inconsistent with the regulation/"
Ibid, (quoting Bowles v. Seminole Rock & Sand Co*, 325 U. S.
410, 414 (1945)). In other words, we must defer to the Sec-
retaryfs interpretation unless an "alternative reading Is com-
pelled by the regulation's plain language or by other indica-
tions of the Secretary's intent at the time of the regulation's
promulgation/1 Gard^bring v, Jenkins, 485 U. S* 416, 430
(1988), This broad deference is all the more warranted
wheny as here^ the regulation concerns **a complex and highly
technical regulatory program/1 in which the Identification
and classification of relevant "criteria necessarily require
significant expertise and entail the exercise of judgment
grounded in policy concerns." Pauley v* Mines,
Inc., 501 U, S, 680, 897 (1991),
Petitioner challenges the Secretary's construction of both
the anti-redistribution language and the community support
Cite as: 512 U. S. 504 (1994) 513
Opinion of the Court
language of § 413.85(c). Because we conclude that the Secre-
tary's interpretation of the anti-redistribution clause is nei-
ther " 'plainly erroneous [n]or inconsistent with the regula-
tion/ " Tallman, supra, at 16-17, and because its application
suffices to deny reimbursement of the disputed costs in this
case, we need not pass upon the Secretary's interpretation
of the community support language.
The anti-redistribution clause is contained in the final sen-
tence of § 413.85(c), which states:
"Although the intent of the [Medicare] program is to
share in the support of educational activities custom-
arily or traditionally carried on by providers in con-
junction with their operations, it is not intended that
this program should participate in increased costs re-
sulting from redistribution of costs from educational in-
stitutions or units to patient care institutions or units."
(Emphasis added.)
The meaning of this sentence is straightforward. Its intro-
ductory clause defines the scope of educational activities for
which reimbursement may be sought: To be eligible for reim-
bursement, the activity must be one that is "customarily or
traditionally carried on by providers in conjunction with
their operations." It is the language that follows, however,
that imposes the relevant restriction on cost redistribution.
The second clause provides that, notwithstanding the activ-
ity for which reimbursement is sought, the Medicare pro-
gram will not participate in the "redistribution of costs from
educational institutions or units to patient care institutions
or units."
The Secretary's interpretation gives full effect to both
clauses of the relevant sentence. The Secretary interprets
the regulation to allow reimbursement for costs of educa-
tional programs traditionally engaged in by hospitals, but,
at the same time, to deny reimbursement for "cost[s] pre-
viously incurred and paid by a medical school." Brief for
514 THOMAS JEFFERSON UNIV. u SHALALA
Opinion of the Court
Respondent 26 (emphasis deleted); see also §413,85(b) (defin-
ing "approved educational activities" that are eligible for re-
imbursement as "programs of study usually engaged in by
providers in order to enhance the quality of patient care").
The Secretary's reading is not only a plausible interpretation
of the regulation; it is the most sensible interpretation the
language will bear.
The circumstance addressed by the anti-redistribution
clause is a hospital's submission of 4iincreased costs'1 arising
from approved educational activities. The regulation pro-
vides, in unambiguous terms, that the "costs'1 of these educa-
tional activities will not be reimbursed when they are the
result of a "redistribution/1 or shift, of costs from an "educa-
tional" facility to a "patient care" facility, even if the activi-
ties that generated the costs are the sort "customarily or
traditionally carried on by providers in conjunction with
their operations/1 §413.85(c). The Secretary's reliance on
a hospital's own historical cost allocations, along with those
of an affiliated medical school, is a simple and effective way
of determining whether a prohibited "redistribution of costs"
has occurred. Indeed* one would be hard pressed to come
up with an alternative method to identify the shifting of
costs from one entity to another.
Petitioner advances three arguments for not
deferring to the Secretary's interpretation of the anti*
redistribution clause* None is persuasive.
First, petitioner that the "clear meaning** of the
anti-redistribution is to allow reimbursement for the
costs of activities traditionally earned on by hospitals (e. gn
clinical training of and interns), but to deny re-
imbursement for incurred in activities traditionally car-
ried on by educational institutions (0, g,f classroom training),
Pet. for Cert. 14* In other words, according to petitioner,
the redistribution that is prohibited is the redistribution
of activities, not the redistribution of Brief for Peti-
tioner 20.
Cite as: 512 U. S. 504 (1994) 515
Opinion of the Court
This argument is mistaken, for it ignores the second clause
of the critical sentence, which refers, on its face, to the "re-
distribution of costs," not the "redistribution of activities/'
The term "costs," moreover, is used without condition. Noth-
ing in the plain language suggests that the prohibition on
"redistribution of costs" is limited to the costs of certain ac-
tivities (such as classroom instruction) carried on by an edu-
cational unit. The clear inference from the language is that
the shift of any reimbursable costs from an "educational in-
stitutio[n] or uni[t]" to a "patient care institutio[n] or uni[t]"
is prohibited. The Secretary's interpretation of the anti-
redistribution principle is thus far more consistent with the
regulation's unqualified language than the interpretation
advanced by petitioner. But even if this were not so, the
Secretary's construction is, at the very least, a reasonable
one, and we are required to afford it "controlling weight."
Bowles v. Seminole Rock & Sand Co., 325 U. S., at 414
Second, petitioner argues that the Secretary has been
inconsistent in her interpretation of the anti-redistribution
provision. While it is true that an agency's interpretation
of a statute or regulation that conflicts with a prior interpre-
tation is " 'entitled to considerably less deference' than a con-
sistently held agency view," INS v. Cardoza-Fonseca, 480
U. S. 421, 446, n. 30 (1987) (quoting Watt v. Alaska, 451 U. S.
259, 273 (1981)), that maxim does not apply here because
petitioner fails to present persuasive evidence that the Sec-
retary has interpreted the anti-redistribution provision in an
inconsistent manner.3
In an attempt to find an inconsistency, petitioner points to
a 1978 internal operating memorandum issued by the Health
Care Financing Administration (HCFA) that addressed the
8 The dissent seeks to demonstrate that the Secretary has been incon-
sistent in her application of the community support principle. See post,
at 520-522. We see no need to dispute that proposition; as indicated
above, we express no view on the validity of the Secretary's interpretation
of the community support clause.
516 THOMAS JEFFERSON UNIV. v. SHALALA
Opinion of the Court
reimbursement of costs incurred by medical schools affiliated
with providers. Intermediary Letter No. 78-7 (Feb. 1978),
App. to Pet. for Cert. 64a-66a. The intermediary letter
detailed various categories and amounts of educational
expenses incurred by affiliated medical schools that might
be allowable to providers, but did not mention the anti-
redistribution limitation. Petitioner's attempt to infer from
that silence the existence of a contrary policy fails because
the intermediary letter did not purport to be a compre-
hensive review of all conditions that might be placed on
reimbursement of educational costs. By its own terms, the
intermediary letter attempted to review only a "number of
situations" relating to the reimbursement of educational
costs — namely, "situations rais[ing] questions about the rea-
sonableness of [medical school faculty] costs as allowable
hospital costs and the appropriateness of the bases used in
allocating them to the hospital." IcL9 at 64a. It is not sur-
prising, then, that the letter did not address the anti-
redistribution principle, and the mere failure to address it
here hardly establishes an inconsistent policy on the part of
the Secretary.4
4 Petitioner further relies on an exchange of memoranda within HCPA
in 19JS regarding the University of Oregon's health training programs,
App. 22-26. In response to an internal agency memorandum identifying
the antiredistribution clause and requesting additional clarification on
the scope of reimbursable educational activities, the Director of HCPA's
Division of Institutional Services responded, in part, that "ftjhe alloca-
tion of costs to a hospital from a related medical school is governed by
Intermediary Letter 78-7/y and Mled to discuss the redistribution issue.
Id., at 25. This omission likewise Mis to manifest a contrary policy. In-
deed, a subsequent memorandum issued in 1985 from the Director of
HCFA's Division of Hospital Payment PoHcy stated that <4[t]he fact that
[the redistribution issue] is not mentioned in the subject memorandum
does not change the basic policy as espoused in 42 CPR l§ 418.85{c)»r
which provides **that where costs for items and services were previously
borne by a medical school, their allocation to a university hospital repre-
sents a redistribution of costs from an educational institution to a patient
care institution." Id, at 27.
Cite as: 512 U. S. 504 (1994) 517
Opinion of the Court
Likewise, contrary to the dissent's suggestion, post, at
520-522, the mere fact that in 1974 a fiscal intermediary may
have allowed reimbursement to petitioner for GME costs
that appear to have violated the anti-redistribution clause
does not render the Secretary's interpretation of that clause
invalid. For even if petitioner could show that such allow-
ance was approved by — or even brought to the attention of —
the Secretary or her designate at the time, "[t]he Secretary
is not estopped from changing a view she believes to have
been grounded upon a mistaken legal interpretation." Good
Samaritan Hospital v. Shalala, 508 U. S. 402, 417 (1993).
And under the circumstances of this case, "where the
agency's interpretation of [its regulation] is at least as plausi-
ble as competing ones, there is little, if any, reason not to
defer to its construction/' Id., at 417.
Finally, petitioner contends that we should ignore the
Secretary's interpretation of the anti-redistribution clause
because the language of the regulation is "precatory" and
"aspirational" in nature, and thus lacking in operative force.
See Brief for Petitioner 31-32. We do not lightly assume
that a regulation setting forth specific limitations on the re-
imbursement of costs under a federal program is devoid of
substantive effect. That is especially so when, as here, the
language in question speaks not in vague generalities but
in precise terms about the conditions under which reim-
bursement is, and is not, available. Whatever vagueness
may be found in the community support language that pre-
cedes it, the anti-redistribution clause lays down a bright line
for distinguishing permissible from impermissible reim-
bursement: Educational costs will not be reimbursed if they
are the result of a "redistribution of costs from educational
institutions or units to patient care institutions or units."
§ 413.85(c). The Secretary was well within her discretion to
interpret this language as imposing a substantive limitation
on reimbursement.
618 THOMAS JEFFERSON UNIV. u SHALALA
THOMAS, J.y dissenting
In sum, the Secretary's construction of the anti-
redistribution principle is faithful to the regulation's plain
language, and the application of this language suffices to bar
reimbursement of the costs claimed in this case. For these
reasons, we affirm the judgment of the Court of Appeals.
It is so ordered.
JUSTICE THOMAS, with whom JUSTICE STEVENS, JUSTICE
O'CONNOR, and JUSTICE GINSBUEG join, dissenting.
The Court's opinion reads as if this were a case of model
agency action. As the Court views matters, 42 CFR
§413»8S(c) (1993) is "unambiguous/1 ante, at 514, and re-
spondent Secretary of Health and Human Services (Secre-
tary) has always been "faithful to the regulation's plain lan-
guage," ante this page. That plain language, according to
the Court, required the Secretary to disallow the reimburse-
ment petitioner sought. The Court's account is hardly an
accurate portrayal of this ease* When the case is properly
viewed, I cannot avoid the conclusion that the Secretary's
construction of § 413.85(c) runs afoul of the plain meaning of
the regulation and therefore is contrary to law, in violation
of the Administrative Procedure Act, 5 II S. C. §706(2)(A).
I therefore respectfully dissent.
I
The Court holds that §413*8t>(c) has substantive content,
reasoning that <fthe language in question speaks not in vague
generalities but in precise terms about the conditions under
which reimbursement is, and is not, available." Ante, at
517. In my view, however, §413.SS(c) is in vague aspi-
rational terms, and it strains credulity to read the regulation
as imposing any restriction on the reimbureability of the
costs of graduate medical education (GME) or other ap-
proved educational expenses* On the contrary, subsection
(c) appears to be nothing more than a precatory statement
of purpose that imposes no substantive restrictions*
Cite as: 512 U. S. 504 (1994) 519
THOMAS, J., dissenting
Subsection (c), in stark contrast to the remainder of
§ 413.85, reads more like a preamble than a law. See ante,
at 507-508, n. 1 (quoting § 413.85CC)).1 In the community
support portion of § 413.85(c), the Secretary praises the bene-
fits of approved educational programs and expresses a belief
that communities "should" pay for such programs. The sub-
section then announces the Secretary's intention to support
such activities "appropriately, " limited only by the vague
suggestion that at some point in the future a restructuring
of fiscal priorities at the "community" level may obviate the
need for federal support. The anti-redistribution principle
is no less precatory than the community support principle.
It states two "intentions]": first, to pay for the "customar[y]
and traditiona[l]" educational activities of Medicare provid-
ers, and, second, to avoid reimbursing expenses that should
be borne by educational institutions affiliated with teaching
hospitals. I would not permit the Secretary to transform
by "interpretation" what self-evidently are mere generalized
expressions of intent into substantive rules of reimbursa-
bility. Cf. Stinson v. United States, 508 U. S. 36, 45 (1993)
(an agency's interpretation of its own regulation cannot be
sustained if " 'plainly erroneous or inconsistent with the reg-
ulation'") (quoting Bowles v. Seminole Rock & Sand Co., 325
U. S. 410, 414 (1945)). See also Udall v. Tollman, 380 U S.
1, 16-17 (1965).
We rejected a similar attempted transformation of preca-
tory language in Pennhurst State School and Hospital v.
Halderman, 451 U. S. 1 (1981). There, we addressed a claim
that the "bill of rights" of the Developmentally Disabled As-
sistance and Bill of Rights Act of 1975, 42 U. S. C. §6010
(1976 ed. and Supp. Ill), created substantive rights in favor
of the mentally retarded. The bill of rights provided, in
part, that such persons "have a right to appropriate treat-
1 Like the Court, ante, at 507-508, I refer to the last sentence of 42
CFR §413.85(c) (1993) as the "anti-redistribution principle," and to the
remainder of the subsection as the "community support principle."
520 THOMAS JEFFERSON UNIV. v. SHALALA
THOMAS, J., dissenting
ment, services, and habilitation" and that state governments
"have an obligation to assure that public funds are not pro-
vided to any [noncomplying] institutiofn].'' §§6010(1), (3).
We held that the bill of rights did not have substantive effect:
"§ 6010, when read in the context of other more specific pro-
visions of the Act, does no more than express a congressional
preference for certain kinds of treatment. It is simply a
general statement of 'findings' and, as such, is too thin a reed
to support the rights and obligations read into it by the court
below/' 451 U. S., at 19. Even though Pennhurst did not
involve an agency regulation, its textual analysis suggests
that it is unreasonable to give substantive effect to preca-
tory, aspirational language — as would the Secretary's con-
struction of 42 CFR §413.85(c) (1993). C£ EEOC v. Ara-
bian American Oil Co., 499 U S. 244, 260 (1991) (ScALlA, J.,
concurring in part and concurring in judgment) (explaining
that "deference is not abdication, and it requires us to accept
only those agency interpretations that are reasonable in light
of the principles of construction courts normally employ").
Interestingly enough, for the first two decades of the Medi-
care program's operation, the Secretary's fiscal intermediar-
ies, with her acquiescence (if not approval), gave § 413.85(c)
precisely the same substantive effect as I would — none. Dur-
ing that entire period, the Secretary never invoked the sub-
section to deny reimbursement for previously unreimbursed
costs, and providers were actually reimbursed for such
costs despite §413.85(c). Indeed, contrary to the Court's
baffling assertion that "petitioner fails to present persua-
sive evidence that the Secretary has interpreted the anti-
redistribution provision in an inconsistent manner," ante, at
515, one need look no farther than petitioner's brief, see
Brief for Petitioner 21-24, to find evidence of such interpre-
tive inconsistency as to both the anti-redistribution and com-
munity support principles.
Petitioner received no Medicare reimbursement for any
GME costs from 1966 to 1973. Even though the anti-
Cite as: 512 U. S. 504 (1994) 51
THOMAS, J., dissenting
redistribution and community support principles were in e
feet for that entire period, see ante, at 507-508, n. 1, pet
tioner was awarded reimbursement for the first time in 197
for salary-related GME costs. Because those GME cos
were not paid for by Thomas Jefferson University Hospit
(Hospital) prior to 1974, even the Secretary's opinion belo
finds, as a matter of fact, that they were borne, to a larj
extent, by Jefferson Medical College (Medical School) durir
that period. Cf. App. to Pet. for Cert. 32a (identifying pul
lie educational grants to the Medical School and Medic
School tuition as sources for funding the Hospital's pre~19r
GME activities). Also, the funding for those costs that can
from sources other than the Medical School (namely, hospit
fees from charges to non-Medicare beneficiaries, see ibic
did not come from Medicare and therefore constituted "cor
munity support." See App. to Pet. for Cert. 18a (the Seer
tary "views community support as any source of fundii
other than the Medicare program").
Yet under the Secretary's present interpretation
§413.85(c), petitioner should never have received any GM
cost reimbursement because it had not obtained such r
imbursement from the beginning of the Medicare prograi
To the extent the Hospital's GME costs were previous
borne by the Medical School, providing petitioner reimburs
ment for those costs violated the anti-redistribution prin<
pie, as presently construed. See ante, at 513 ("The Seer
tary interprets the regulation ... to deny reimbursement f
'costs previously incurred and paid by a medical school'
(editorial revisions omitted). Indeed, the Provider Reii
bursement Review Board (PRRB) explicitly recognized tl
fact, finding that, on the fiscal intermediary's interpretati<
of "redistribution" (adopted by the Secretary below), "[i
1974, the [Hospital] commenced shifting costs . . . to ti
Medicare program" and that "[additional cost shifting c
curred in 1984 when certain clerical costs of the Medic
School were included in the [Hospital's] cost report." Ap
622 THOMAS JKFFKRSON UNIV. r. BHALALA
THOMAS, J., cliBnenting
to Pet, for Cert. SGa.2 Similarly, reimbursing petitioner foi
GME costs violated the community support, principle, to th€
extent funding for such costs had been available previously
from non-Meclicare sources* See ante, at 511 (where com-
munity support has been received, §413.85(c) "prohibits
Medicare reimbursement*1}. Thus, the Court's statement
that there is no "evidence that the Secretary has interpreted
the anti-redistribution provision in an inconsistent manner/3
ante, at 515, appears to be wishful thinking: Petitioner has
been routinely granted reimbursement which it should have
been denied under §413.M5(c), if the Secretary's current in-
terpretation is correct.
1 think it reasonable to conclude that in reimbursing peti-
tioner since 1974 for GME not reimbursed from the
inception of the Medicare program, the Secretary acted on
the basis of an interpretation of §413,85(c) that attached
no significance to a Medicare provider's failure in prior years
to be reimbursed for, or to carry on its books, eligible edu-
cational Thin conclusion has significant support in
the Secretary's roughly i*nnt«'inponmeous pronouncements.
C£ Lyng v. Payne, 476 U.S. 926, 939 At. &
Bros., Im, v. 327 U 8. 614, 622 (1946) (opinion
of Murphy, J.). In 1978, for example, the Secretary advised
fiscal intermediaries that GME incurred by
a related medical are "allowable* hospital costs/' Inter-
mediary Letter No, 78-7 (Feb. I07H)f without even mention-
ing either the community support, or the anti-redistribution
principle as potential limitations cm its construction. App,
to Pet for Cert The «-NpHoit that
the Secretary therein the "appropriateness*1 of
^allocating [educational to the hospital {in question]/'
'the Secretary, the Financing Adminis-
tration (HCFA), only thit FRRBf« deci-
sion, see App* to Pet tor €«*rt 37a. the FRRB% opinion mmidnfi in force
to the extent with the of the HCPA. C£ 42 U. S, CL
Cite as: 512 U. S. 504 (1994) 523
THOMAS, J., dissenting
ibid., demonstrates the inaccuracy of the Court's suggestion
that the letter addressed topics entirely unrelated to the
anti-redistribution principle, ante, at 515-516; the "appropri-
ateness" of allocating costs from a medical school to its affil-
iated hospital is precisely what the anti-redistribution princi-
ple governs, to the extent it has substantive effect at all.
See 42 CFR §413.85(c) (1993).
Moreover, in 1982, the Secretary answered a query from a
fiscal intermediary concerning the relationship between the
anti-redistribution principle and Intermediary Letter 78-7
with the statement that "allocation of costs to a hospital
from a related medical school is governed by Intermediary
Letter 78-7." App. 25. The Court makes much of the fact
that the 1982 memorandum did not explicitly mention the
anti-redistribution principle. Ante, at 516, n. 4. In so
doing, however, the Court overlooks the fact that the fiscal
intermediary's inquiry presented the Secretary with a
specific binary choice: Are approved educational activities
previously paid for by an affiliated educational unit either
allowable (i. e., reimbursable) hospital costs (as Intermediary
Letter No. 78-7 advised) or a prohibited redistribution of
costs under § 413.85(c)? By answering the fiscal intermedi-
ary's pointed query with the statement that Intermediary
Letter No. 78-7 is controlling on the reimbursability of the
costs associated with such activities, see App. 25, the Sec-
retary quite clearly (albeit implicitly) afforded the anti-
redistribution principle no substantive effect whatsoever.
To be sure, in 1985 the Secretary issued a memorandum
stating, without elaboration, that "[t]he fact that [the anti-
redistribution principle] is not mentioned in the [1982] mem-
orandum does not change the basic policy as espoused in
[§ 413.85(c)]." Id., at 27. The 1985 memorandum's bare ref-
erence to the "policy" of §413.85(c), however, neither disa-
vowed the Secretary's past interpretation of the regulation
nor set forth any alternative interpretation. The Court
thus considerably overstates matters in its suggestion that
524 THOMAS JEFFERSON UNIV. v. SHALALA
THOMAS, J., dissenting
the 1985 memorandum specifically confirmed the continued
vitality of the anti-redistribution principle. Ante, at 516,
n. 43
Based on a reading of the undeniably precatory language
used in §413.85(c), confirmed by two decades of consistent
agency practice, I would hold that subsection (c) imposes no
limit on the reimbursability of approved educational activi-
ties. Cf. M. Kraus & Bros., 327 U S., at 622 ("Not even the
Administrator's interpretations of his own regulations can
. . . add certainty and definiteness to otherwise vague lan-
guage"X Instead, the subsection seems intended merely
to explain the remainder of the regulation, which addresses
the reimbursability of approved educational costs in clear,
3 Even less satisfactory is the Secretary's suggestion that her failure
to apply §413.85(c) xn prior fiscal years is of no relevance. See Brief
for Respondent 37, The prior inconsistent conduct of the agency is quite
relevant — not because her inconsistency "estop[s]" her from changing her
view, ante, at 617 (internal quotation marks omitted) — but rather because
agency conduct, no less than express statements, can effect a construction
of statutes or regulations. Cf , a g*, Motor Vehicle Affr®, Assn. of United
States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U, S, 29, 41-42
(1983) (holding that "[a] ^settled course of behavior embodies the agency's
informed judgment that, by pursuing that course, it will carry out the
policies [of applicable statutes or regulations]1 ") (quoting Atchison, T. &
S. F. R. Co. v. Wichita Bd. of Trade, 412 U. S. 800, 807-808 (1973)). Two
decades of providing reimbursement in contravention of what is now
claimed to be the community support and anti-redistribution principles
certainly constitutes a "settled course of behavior," and I find it difficult
to believe the Secretary would permit such a persistent — and costly —
error in the application of her reimbursement rules. C£ 1991 Medicare
Explained f 706, p. 179 ("When Medicare pays for noncovered services or
it pays too much for covered services, the program will ordinarily attempt
to recover the amount of the overpayment"). A settled interpretation
that persists over time is presumptively to be preferred, see Motor Vehi-
cle Mfrs. Assn., 463 U. S,, at 41-42, and therefore judges are properly
suspect of sharp departures from past practice that are as unexplained as
the Secretary's in this case, /d, at 42, See also Wichita Bd, of Trade,
supra, at 807-808.
Cite as: 512 U. S. 504 (1994) 525
THOMAS, J., dissenting
unmistakably mandatory terms. Cf. Pennhurst, 451 U. S.,
at 19, n. 14.
By giving substantive effect to such a hopelessly vague
regulation, the Court disserves the very purpose behind the
delegation of lawmaking power to administrative agencies,
which is to "resol[ve] . . . ambiguity in a statutory text."
Pauley v. BethEnergy Mines, Inc., 501 U. S. 680, 696 (1991).
See generally Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837, 865-866 (1984). Here,
far from resolving ambiguity in the Medicare program stat-
utes, the Secretary has merely replaced statutory ambiguity
with regulatory ambiguity. It is perfectly understandable,
of course, for an agency to issue vague regulations, because
to do so maximizes agency power and allows the agency
greater latitude to make law through adjudication rather
than through the more cumbersome rulemaking process.
Nonetheless, agency rules should be clear and definite so that
affected parties will have adequate notice concerning the
agency's understanding of the law. Cf. FTC v. Atlantic
Richfield Co., 567 R 2d 96, 103 (CADC 1977) (Wilkey, J.).
Cf. generally 2 K. Davis & R. Pierce, Administrative Law
§ 11.5, p. 204 (3d ed. 1994) ("An agency whose powers are
not limited either by meaningful statutory standards or ...
legislative rules poses a serious potential threat to liberty
and to democracy")- The aspirational terms of §413.85(c)
are woefully inadequate to impart such notice.4
4 As a result of the Court's ruling today, petitioner and other Medicare
providers who, in the past, received reimbursement for GME costs in vio-
lation of the Secretary's present interpretation of §413.85(c)^are suddenly
faced with the possibility of being sued for recoupment of the millions of
dollars of "overpayments" they received from Medicare. The Social Secu-
rity Act, we have noted, "permits . . . retroactive action" within three
years by the Secretary to make " '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 ... exces-
sive/" Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 209 (1988)
(quoting 42 U. S. C. § 1395x(v)(l)(A)). Thus, although the Secretary per-
526 THOMAS JEFFERSON UNIV. u SHALALA
THOMAS, J., dissenting
II
A
In view of its unbelabored conclusion that § 413.85(c) im-
poses substantive limits on the reimbursability of approved
educational costs, the Court's discussion focuses primarily
on what substantive import §413.85(c)^s anti-redistribution
principle should be read to have. The Court finds the anti-
redistribution principle "straightforward" in its meaning —
any costs that, at some previous point in time, were car-
ried on the books of an affiliated educational institution
cannot subsequently be reimbursed by Medicare. Ante, at
513. For the reasons previously discussed, I would hold that
§413.85(c) cannot reasonably be construed to impose sub-
stantive restrictions on the reimbursability of approved edu-
cational costs. Nevertheless, if I had to give the principle
substantive effect, I could not agree with the Court's sweep-
ing construction of the principle. In my view, the Court's
reading is premised on a distortion of the text of the regula-
tion enunciating the anti-redistribution principle, and it is
the text, of course, which must be given controlling effect.
See Bowles, 325 U. S., at 414 (holding that an agency's inter-
pretation of its own regulation must comport with "the plain
words of the regulation").
Under the relevant portion of §413.85(c), it is the type of
educational activity engaged in that determines whether or
not reimbursement is proper: "[TJhe intent of the [Medicare]
program is to share in the support of educational activities
customarily or traditionally carried on by providers in
mitted petitioner to recover reimbursement for "those medical education
costs which it has traditionally claimed and been allowed prior to 1984,"
App. to Pet. for Cert. 37a, that act of administrative grace appears to be
subject to revision at the whim of the Secretary. Cf. Heckler v. Commu-
nity Health Services of Crawford Cty., Inc., 467 U S. 61 (1984) (Secretary
not estopped from recouping overpayment to Medicare provider whose
prior reimbursement claims were made in reliance on erroneous advice of
its designated fiscal intermediary).
Cite as: 512 U. S. 504 (1994) 527
THOMAS, J., dissenting
conjunction with their [patient care] operations." 42 CFR
§413.85(c) (1993). The proper question under the anti-
redistribution principle, therefore, is not, as the Secretary-
puts it, whether "[a particular provider] has traditionally
claimed and been allowed" reimbursement for a particular
category of reimbursable costs. App. to Pet. for Cert. 37a.
Instead, the relevant question is whether the educational
activities for which reimbursement is sought are of a type
"customarily or traditionally" engaged in by providers. If,
in a particular case, that question is answered in the nega-
tive, then it would be a forbidden "redistribution" of costs to
award Medicare reimbursement for the costs associated with
the activities in question. Conversely, if the costs for which
a provider seeks reimbursement result from educational ac-
tivities that are traditionally engaged in by Medicare pro-
viders, no redistribution of costs occurs when those costs
are reimbursed.
A prohibition against shifting the costs of educational
units (for example, medical or nursing schools) to patient
care units was necessary because of the Medicare program's
related-organization rule, which provides that "costs applica-
ble to services, facilities, and supplies furnished to the pro-
vider by organizations related to the provider by common
ownership or control are includable in the allowable cost of
the provider." 42 CFR §413.17(a) (1993). In light of the
related-organization rule, §413.85(a)'s recognition of educa-
tional costs as reimbursable costs created the distinct possi-
bility that many, if not most, of the costs arising from educa-
tional unit activities could be shifted to affiliated Medicare
providers (and therefore to the Medicare program) because,
by definition, such units engage in educational activities.
Cf. 57 Fed. Reg. 43659, 43668 (1992) (expressing the Secre-
tary's concern that "Medicare payment for medical education
costs should not result in a redistribution of costs from the
educational institution to the provider"). Since Medicare is
primarily intended to fund health care for the elderly and
528 THOMAS JEFFERSON UNIV. v. SHALALA
THOMAS, J., dissenting
disabled, not to subsidize the education of health care profes-
sionals, cf. 42 U. S. C. § 1395c, the Secretary avoided such an
inadvertent "expansion] [in] the range of items and services
for which a provider could claim payment" by barring the
redistribution of costs from educational to patient care units.
57 Fed. Reg. 43668 (1992).
The Court therefore errs in reading the term "redistribu-
tion" wholly divorced from the context in which it appears.
See ante, at 513 (suggesting the first clause of the anti-
redistribution principle is not even "relevant" to an under-
standing of the second phrase). In my view, "redistribu-
tion" can only be properly understood in light of the
remainder of the sentence in which it appears and in light of
the related-organization rule, because interpreting a statute
or regulation "is a holistic endeavor." United Sav. Assn. of
Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S.
365, 371 (1988). Viewed in the proper textual context,
§413.85(cys anti-redistribution principle simultaneously ex-
presses an intent to fund educational activities customarily
conducted by teaching hospitals and disallows reimburse-
ment for costs incurred by their affiliated educational units
in conducting educational programs not customarily or tradi-
tionally engaged in by such hospitals. The Secretary's con-
trary interpretation, in my view, is unworthy of deference.
C£, e. g., Bowles, supra, at 414.
There can be no question that the GME activities for
which petitioner seeks reimbursement are customarily or
traditionally engaged in by teaching hospitals. As the Dis-
trict Court cogently explained in Ohio State Univ. v. Secre-
tary, U. S. Dept of Health and Human Services, 777 F. Supp.
582 (SD Ohio 1991), aff'd, 996 F. 2d 122 (CA6 1993), cert
pending, No. 93-696:
"In the case of graduate medical education, it would
be customary and traditional for a teaching hospital to
employ qualified physicians in various medical special-
ties to select and supervise the interns and residents
Cite as: 512 U. S. 504 (1994) 529
THOMAS, J., dissenting
enrolled in the educational program. These physicians
would need clerical and administrative staff, office space
and supplies to carry out their function[s]. Their sala-
ries, the salaries of their clerical and administrative
staffs, and the cost of their office space and supplies
would all be part of the cost of the educational activity
which ultimately contributes to the quality of patient
care in the hospital." 777 F. Supp., at 587.
As a result, the anti-redistribution principle provides no
basis for denying petitioner Medicare reimbursement for
the full level of its GME costs, less tuition revenues. See
§§413.85(a),(g).
I therefore wholeheartedly agree with the PRRB that
"[t]he fact that [the Hospital] did not fully identify all of the
costs associated with its GME programs in prior years does
not prohibit the correction of this [cost accounting] error in
the cost reporting period in contention." App. to Pet. for
Cert. 58a-59a. In ruling to the contrary, the Court arbi-
trarily subjects similarly situated Medicare providers, with
identical levels of reimbursable GME costs, to disparate re-
imbursement, simply because one provider may have forgone
reimbursement to which it was plainly entitled as a conse-
quence of its cost accounting procedure's failure to identify
all of the provider's reimbursable costs. Although "[m]en
must turn square corners when they deal with the Govern-
ment," Rock Island, A. & L. R. Co. v. United States, 254
U. S. 141, 143 (1920) (Holmes, J.), the manifest injustice of the
Court's result should be apparent.
B
Because, unlike the Court, I do not believe the anti-
redistribution principle may reasonably be read to bar peti-
tioner's claim for reimbursement for non-salary-related GME
costs, I must also address petitioner's challenge to the Sec-
retary's construction of the community support principle.
Petitioner argues that interpreting the term "community
530 THOMAS JEFFERSON UNIV. u SHALALA
THOMAS, J.f dissenting
support" to include all non-Medicare sources of funding for
GME costs is Inconsistent with the text of §413,85(c). I
agree. Not only is the community support principle merely
an aspirational statement of policy, see supra, at 519-523,
but, in my view, the other provisions of 42 CFR §413.85
(1993) plainly leave no role for the principle in the cost reim-
bursem<-nt calculus for approved educational activities.
Section 413.85(a) authorizes a provider to ^include its
net cost of approved educational activities" in its allowable
Medicare costs and provides that the "net cost*1 of such ac-
tivities is to be "calculated under paragraph (g) of this sec-
tion/1 Section 413.85(gX in turn, defines "[n]et cost of ap-
proved educational activities1* as the provider's "total costs
of these activities/1 "revenues it retvivos from tuition/'
Section 413.85(g) therefore clearly establishes the level of
reimbursement a providt-r may expect for approved educa-
tional costs, and thc^ only source of funding that is to be offset
against such costs is tuition revenues. Mo other potential
sources of funding for GME activities are included in the
offset required by §413«88{g)* Thusf the Krm'lary's inter-
pretation of the community support principle as requiring,
in effect, all non~Medk*aiv sources of funding to be offset
against total educational cost is flatly inconsistent with
§§4J3.85(a)and(g).
The plain implication of §41$.85(g} m confirmed by its
roRulatory history. Of. 476 U.S., at ML In 1984,
the Socri'tary the subsection's pzvd<»<,vsrfor to elimi-
nate the requirement that "grant»f? and "specific donations'1
be offset against educational actually incurred. See 49
Fed, Reg. 234, 296, 313 (amending 42 CFR §40fx421(g)
See also 48 Fed. Reg.
(withdrawing 42 §405.423 to for
certain gifts)* The construction of
the community support principle reintroduces
grants and donations into- the reimbursement cal-
culus. The has remlerc-d the amend-
Cite as: 512 U. S. 504 (1994) 531
THOMAS, J., dissenting
ment to the regulation entirely superfluous, a disfavored re-
sult that should be avoided where possible. See Kungys v.
United States, 485 U. S. 759, 778 (1988). Cf. also Connecti-
cut Nat Bank v. Germain, 503 U. S. 249, 253 (1992).
Consequently, the Secretary's construction of the commu-
nity support principle to impose a substantive restriction on
the reimbursability of approved educational expenses is in-
consistent with the regulation. As such, the construction is
unworthy of deference. See, e. g., Stinson, 508 U. S., at 45.
Ill
For the foregoing reasons, the Secretary acted contrary
to law, within the meaning of 5 U. S. C. § 706(2)(A), in con-
struing 42 CFR §413.85(c) (1993) as denying Medicare pro-
viders the right to receive reimbursement for otherwise
eligible educational costs simply because the costs had not
previously been reimbursed by Medicare. I would therefore
reverse the judgment of the Court of Appeals. I respect-
fully dissent.
532 OCTOBER TERM, 1998
Syllabus
CONSOLIDATED RAIL CORPORATION v.
GOTTSHALL
GERTIQRARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 92-1956. Argued February 28t 1994— Decided June 24, 1994*
In separate Buita against petitioner Conrail, their former employer, re-
spondents Gottahall and Carlisle each a«Herted a claim for negligent in-
fliction of emotional distress under the Federal Employer^ Liability Act
(FELA), In Gottshatl, the Dintrict Court granted nummary judgment
to ConraiL In reversing and remanding for trial, the Court of Appeals
observed that moat Staten limit recovery for negligent infliction of emo-
tional distress through the application of one or more common-law tests.
The court declared, however, that there m a fundamental tension be-
tween such restrictive tests and FELA'tt literal recovery policy, and
Btated that the teste must be discarded when they bar recovery on "mer-
itoriouH" FELA claims. The court held that the facts alleged in sup-
port of a FELA claim mu»t provide a threshold aasurance that there is
a likelihood of genuine and tteriout* emotional injury, and concluded that
Gottahall had gatMlecl thin threshold "genuinenettn" te«t and adequately
alleged the usual FELA elements, including conduct unreasonable in
the face of a foreseeable risk of harm. In Carlisle, the name court sus-
tained a jury verdict againnt Conrail, 4tuphold(ing) for the first time a
claim under the FELA for negligent infliction of emotional dintreBB aris-
ing from work-related stre»H.*' Although it rotated itn (fattahall hold-
ing, the court shifted its primary emphauiH to the fon*s<*«»al)ility of the
alleged injury and held, inter alia, that CarliHle had produced Hufficient
evidence that hi» nervouti breakdown hml bwn foresc*eabfe to Conrail.
Held-
L The proper utandarri for evaluating FKLA cbdmH for negligent in-
fliction of emotional distreas mu«t be derived from FKLA principles and
relevant common-law doctrine. Pp. 541-540,
(a) This Court's FELA jurisprudence outlines the proper analysis
for determining whether, to what extent* a new category of claims
should be eognmible under the Mtatute. First, the language* purposes,
and background of the ntatute, along with the construction given to
the statute by thin Court, must be* examined. Second* because FELA
*Together with ConMolidat^d Rail Corporation v, CarlMn* also on
oertiorari to the eourt this Court's Eule 12*2)*
Cite as: 512 U. S. 532 (1994) 533
Syllabus
jurisprudence gleans guidance from common-law developments, the
common law's treatment of the asserted right of recovery must be con-
sidered. See, e. g., Atchison, T. & S. F. R. Co. v. Buell, 480 U. S. 557,
561-562, 568-570. Pp. 541-542.
(b) Through FELA, Congress sought to compensate employee "in-
jury" resulting from employer "negligence," 45 U. S. C. § 51, by creating
a remedy for the many deaths and maimings that were occurring on
interstate railroads at the time the statute was enacted in 1908, see
Urie v. Thompson, 337 U. S. 163, 181. Over the years, the Court has
construed FELA liberally to further this remedial goal, see, e. g., Rogers
v. Missouri Pacific R. Co., 352 U. S. 500, 506. Nevertheless, the federal
question of what constitutes negligence for purposes of FELA turns
upon common-law principles, subject to such modifications as Congress
has imported into those principles in the statute itself See Urie,
supra, at 182. Because FELA is silent on the issue of negligent inflic-
tion of emotional distress, common-law principles must play a significant
role in the Court's decision. Pp. 542-544.
(c) Although nearly all States recognize a right to recover for negli-
gently inflicted emotional distress — that is, mental or emotional harm
(such as fright or anxiety) that is caused by another's negligence and
that is not directly brought about by a physical injury, but that may
manifest itself in physical symptoms — three major common-law "tests"
have been developed to limit that right: (1) the "physical impact test,"
which had been embraced by most of the major industrial States by
1908, but has since been abandoned in all but a few jurisdictions; (2) the
"zone of danger" test, which had been adopted by several States by
1908 and currently is followed in 14 jurisdictions; and (3) the "relative
bystander" test, which was first enunciated in 1968 and has since been
adopted by nearly half the States. Pp. 544-549.
2. The Court of Appeals applied an erroneous standard for evaluating
FELA claims for negligent infliction of emotional distress. Pp. 549-558.
(a) The lower court correctly held that such claims are cognizable
under the statute. As part of its duty to use reasonable care in furnish-
ing employees a safe workplace, Buell, supra, at 558, a railroad has a
FELA duty to avoid subjecting its workers to negligently inflicted emo-
tional injury. A right to recover for such injury was widely recognized
when FELA was enacted and is nearly universally recognized today.
Moreover, given the broad remedial scope this Court has accorded
FELA's "injury" term, cf Urie, supra, at 181, there is no reason why
that term should not encompass emotional injury. Pp. 549-550.
(b) However, the Court of Appeals' standard for delimiting this
FELA duty is rejected. First, because the merit of this type of FELA
claim cannot be ascertained without reference to the common law, the
634 CONSOLIDATED RAIL CORPORATION v. GOTTSHALL
Syllabus
court erred in treating the common-law tests as mere arbitrary restric-
tions to be disregarded if they stand in the way of recovery on "merito-
rious" FELA claims. Second, the viability of the court's "genuineness"
test is questionable on its own terms, since it cannot appreciably dimin-
ish the possibility of unlimited liability for genuine claims of emotional
harm, and since it would force judges to make highly subjective deter-
minations concerning the authenticity of particular claims. Third, the
court's reliance on foreseeability as a meaningful limitation on liability
is misplaced, since all consequences of a negligent act, no matter how
far removed, may be foreseen. Finally, the common law does not sup-
port the court's unprecedented Carlisle holding, which would impose
a duty to avoid creating a stressful work environment, and thereby
dramatically expand employers' FELA liability to cover the stresses
and strains of everyday employment. Pp. 550-564.
(c) Instead, this Court adopts the zone of danger test, which limits
recovery for emotional injury to those plaintiffs who either sustain a
physical impact as a result of the defendant's negligence or are placed
in immediate risk of physical impact by that negligence. This is the
only common-law test that exhibits both significant historical support
and continuing vitality sufficient to inform the Court's determination of
the federal question of what constitutes FELA "negligence" in this con-
text. This test is consistent with FELA's broad remedial goals and
with the statute's purpose of alleviating the physical dangers of railroad-
ing. Even if respondents are correct that the zone of danger test arbi-
trarily excludes some emotional injury claims, that test best reconciles
the concerns motivating the common-law restrictions on recovery for
negligently inflicted emotional distress — the potential for a flood of triv-
ial suits, the possibility of fraudulent claims that are difficult to detect,
and the specter of unlimited and unpredictable liability — with this
Court's FELA jurisprudence. Pp. 654-557.
3. The question whether Gottshall satisfies the zone of danger test
was not adequately briefed or argued before this Court, and should be
considered by the Court of Appeals on remand. In Carlisle, however,
judgment must be entered for Conrail on remand, because Carlisle's
work-stress-related claim plainly does not fall within the common law's
conception of the zone of danger. Pp. 557-568,
988 F. 2d 365 (first case) and 990 F. 2d 90 (second case), reversed and
remanded.
THOMAS, J., delivered the opinion of the Court, in which REHNQUIST,
C. J., and O'CONNOR, SCALIA, KENNEDY, and SOUTER, JX, joined. Sou-
TER, J., filed a concurring opinion, post, p. 558. GINSBURG, J., filed a dis-
senting opinion, in which BLACKMXJN and STEVENS, JJ., joined, post, p. 569.
Cite as: 512 U. S. 532 (1994) 535
Opinion of the Court
Ralph G. Wellington argued the cause for petitioner in
both cases. With him on the briefs were Nancy Winkel-
man, Bruce B. Wilson, and Lucy S. L. Amerman.
William L. Myers, Jr., argued the cause and filed a brief
for respondent Gottshall. /. Michael Farrell argued the
cause for respondent Carlisle. With him on the brief was
William L.
JUSTICE THOMAS delivered the opinion of the Court.
These cases require us to determine the proper standard
for evaluating claims for negligent infliction of emotional dis-
tress that are brought under the Federal Employers' Lia-
bility Act. Because the standard adopted by the Court of
Appeals is inconsistent with the principles embodied in the
statute and with relevant common-law doctrine, we reverse
the judgments below.
I
Respondents James Gottshall and Alan Carlisle each
brought suit under the Federal Employers' Liability Act
(FELA), 35 Stat. 65, as amended, 45 U. S. C. §§ 51-60, against
their former employer, petitioner Consolidated Rail Corpora-
tion (Conrail). We set forth the facts of each case in turn.
Gottshall was a member of a Conrail work crew assigned
to replace a stretch of defective track on an extremely hot
and humid day. The crew was under time pressure, and so
the men were discouraged from taking scheduled breaks.
tBriefs of amid curiae urging reversal were filed for the State of New
Jersey et al. by Fred DeVesa and Joseph L. Yannotti; for the Association
of American Railroads by Charles F. Clarke and Robert W. Blanchette; for
the Product Liability Advisory Council, Inc., by Robert N. Weiner; and for
the Washington Legal Foundation by Betty Jo Christian, Charles G. Cole,
David A Price, Daniel J. Popeo, and Paul D. Kamenar.
Norman Hegge filed a brief for the Southeastern Pennsylvania Trans-
portation Authority as amicus curiae.
536 CONSOLIDATED RAIL CORPORATION v. GOTTSHALL
Opinion of the Court
They were, however, allowed to obtain water as needed.
Two and one-half hours into the job, a worker named Richard
Johns, a longtime friend of Gottshall, collapsed. Gottshall
and several others rushed to help Johns, who was pale and
sweating profusely. They were able to revive him by ad-
ministering a cold compress. Michael Norvick, the crew su-
pervisor, then ordered the men to stop assisting Johns and
to return to work. Five minutes later, Gottshall again went
to Johns' aid after seeing his friend stand up and collapse.
Realizing that Johns was having a heart attack, Gottshall
began cardiopulmonary resuscitation. He continued the
process for 40 minutes.
Meanwhile, Norvick attempted to summon assistance, but
found that his radio was inoperative; unbeknownst to him,
Conrail had temporarily taken the nearest base station off
the air for repairs. Norvick drove off to get help, but by
the time he returned with paramedics, Johns had died. The
paramedics covered the body with a sheet, ordered that it
remain undisturbed until the coroner could examine it, and
directed the crew not to leave until the coroner had arrived.
Norvick ordered the men back to work, within sight of Johns*
covered body. The coroner, who arrived several hours later,
reported that Johns had died from a heart attack brought on
by the combined factors of heat, humidity, and heavy
exertion.
The entire experience left Gottshall extremely agitated
and distraught. Over the next several days, during which
he continued to work in hot and humid weather conditions,
Gottshall began to feel ill. He became preoccupied with the
events surrounding Johns' death, and worried that he would
die under similar circumstances. Shortly after Johns' fu-
neral, Gottshall was admitted to a psychiatric institution,
where he was diagnosed as suffering from major depression
and posttraumatic stress disorder. During the three weeks
he spent at the institution, Gottshall experienced nausea, in-
somnia, cold sweats, and repetitive nightmares concerning
Cite as: 512 U. S. 532 (1994) 537
Opinion of the Court
Johns' death. He lost a great deal of weight and suffered
from suicidal preoccupations and anxiety. Gottshall has con-
tinued to receive psychological treatment since his discharge
from the hospital.
Gottshall sued Conrail under FELA for negligent infliction
of emotional distress. He alleged that ConraiFs negligence
had created the circumstances under which he had been
forced to observe and participate in the events surrounding
Johns' death. The District Court granted ConraiFs motion
for summary judgment, holding that FELA did not provide
a remedy for Gottshall's emotional injuries.
A divided panel of the United States Court of Appeals for
the Third Circuit reversed and remanded for trial. Gott-
shall v. Consolidated Rail Corp., 988 R 2d 355 (1993). The
court observed that most States recognize a common-law
cause of action for negligent infliction of emotional distress,
but limit recovery to certain classes of plaintiffs or categories
of claims through the application of one or more tests. Id.,
at 361 (discussing "physical impact," "zone of danger," and
"relative bystander" tests). The Third Circuit suggested
that because "an emotional injury is easier to fake" than a
physical injury, these tests have been "judicially developed
to screen causes of action and send only the meritorious ones
to juries." Ibid.
The court below identified what it considered to be a fun-
damental tension between the restrictive attitude of the
common law toward claims for negligent infliction of emo-
tional distress on the one hand, and the general policy under-
lying FELA on the other. According to the Third Circuit,
the common law places harsh and arbitrary limits on recov-
ery for emotional injury, while FELA has consistently been
interpreted to accord liberal relief to railroad workers in-
jured through the negligence of their employers. Id., at
367-368 (discussing cases).
In the Third Circuit's view, the only way to reconcile the
apparent tension was to give preference to the liberal recov-
538 CONSOLIDATED RAIL CORPORATION u GOTTSHALL
Opinion of the Court
ery policy embodied in FELA over the common law: "[D]oc-
trinal common law distinctions are to be discarded when they
bar recovery on meritorious FELA claims. " Id., at 369. De-
termining that judges could weed out fraudulent emotional
injury claims through careful scrutiny of the facts, the court
held that the facts alleged in support of a claim under FELA
for negligent infliction of emotional distress must "provide a
threshold assurance that there is a likelihood of genuine and
serious emotional injury/' Id.9 at 371. The Third Circuit
suggested that a court's factual inquiry might include con-
sideration of the plaintiff's claim in light of the present state
of the common law.
After reviewing the facts of GottshalFs case, the Third Cir-
cuit concluded that Gottshall had made a sufficient showing
that his injuries were genuine and severe. 7dL, at 374. Be-
cause his claim had met the court's threshold "genuineness"
test, the court next considered whether the claim adequately
alleged the usual FELA elements of breach of a duty of care
(that is, conduct unreasonable in the face of a foreseeable
risk of harm), injury, and causation. The panel majority
concluded that there were genuine issues of material fact
concerning whether GottshalTs injuries were foreseeable by
Conrail, whether Conrail had acted unreasonably, and
whether Conrail's conduct had caused cognizable injury to
Gottshall. The court therefore remanded for trial. Id., at
383.
Judge Roth dissented in part because she believed that
there was no triable issue regarding breach of duty. She
reasoned that "outside of the interruption of the communica-
tions link, the allegedly negligent conditions created by Con-
rail at the time of Johns' collapse consisted in fact of the
members of the work gang performing the negotiated duties
of their jobs under conditions which may indeed have been
difficult but which had occurred in the past and will probably
occur again in the future/' Id., at 385. In her view, these
Cite as: 512 IL S. 532 (1994) 539
Opinion of the Court
negotiated duties could not support a finding of negligence.
Judge Roth concluded that "Conrail could not reasonably
have foreseen that its negligence in interrupting the work
gang's communication^] link might cause James GottshalFs
severe emotional reaction to the death of Richard Johns/'
Id., Sit 386.
B
Respondent Carlisle began working as a train dispatcher
for Conrail in 1976. In this position, he was responsible for
ensuring the safe and timely movement of passengers and
cargo. Aging railstock and outdated equipment made Car-
lisle's job difficult. Reductions in Corn-ail's work force re-
quired Carlisle to take on additional duties and to work long
hours. Carlisle and his fellow dispatchers frequently com-
plained about safety concerns, the high level of stress in their
jobs, and poor working conditions. In 1988, Carlisle became
trainmaster in the South Philadelphia yards. With this pro-
motion came added responsibilities that forced him to work
erratic hours. Carlisle began to experience insomnia, head-
aches, depression, and weight loss. After an extended pe-
riod during which he was required to work 12- to 15-hour
shifts for weeks at a time, Carlisle suffered a nervous
breakdown.
Carlisle sued Conrail under FELA for negligent infliction
of emotional distress. He alleged that Conrail had breached
its duty to provide him with a safe workplace by forcing him
to work under unreasonably stressful conditions, and that
this breach had resulted in foreseeable stress-related health
problems. At trial, Carlisle called medical experts who tes-
tified that his breakdown and ensuing severe depression
were caused at least in part by the strain of his job. The
jury awarded Carlisle $386,500 in damages.
The Third Circuit affirmed, "uphold[ing] for the first time
a claim under the FELA for negligent infliction of emotional
distress arising from work-related stress." Carlisle v. Con-
640 CONSOLIDATED RAIL CORPORATION v. GOTTSHALL
Opinion of the Court
solidated Rail Corp., 990 R 2d 90, 97-98 (1993). In reject-
ing ConraiFs argument that Carlisle had failed to make out
a claim under FELA because he had not alleged any accident
or physical injury or impact, the court noted that in Gott-
shall (decided the month before), it had "upheld recovery
under the FELA for negligent infliction of emotional dis-
tress without proof of any physical impact." 990 K 2d, at
96* Restating its holding in Gottshall, the court advised
that, when evaluating a claim under FELA for negligently
inflicted emotional distress, district courts within the Third
Circuit "should engage in an initial review of the factual indi-
cia of the genuineness of a claim, taking into account broadly
used common law standards, then should apply the tradi-
tional negligence elements of duty, foreseeability, breach, and
causation in weighing the merits of that claim/1 990 P. 2d,
at 98.
In the case before it, however, the court did not examine
Carlisle's suit in light of any of the various common-law tests
for dealing with negligent infliction of emotional distress
claims. Instead, it shifted its primary emphasis to the fore-
seeability of the alleged injury and held that "when it is rea-
sonably foreseeable that extended exposure to dangerous
and stressful working conditions will cause injury to the
worker, the employer may be held to be liable under the
FELA for the employee's resulting injuries, n Id., at 97»
The Third Circuit held that Carlisle had produced sufficient
evidence that his injury had been foreseeable to ConraiL
The court also found sufficient evidence that Conrail had
breached its duty to provide Carlisle with a safe workplace
by making his employment too demanding, and that this
breach had caused Carlisle's injury. Ibid.
Pursuant to this Court's Rule 12,2, Conrail petitioned for
review of the Third Circuit's decisions in Gottshall and Car-
lisle. We granted oertiorari, 510 U, S. 912 (1993), to resolve
a conflict among the Courts of Appeals concerning the
threshold standard that must be met by plaintiffs bringing
Cite as: 512 U. S. 532 (1994) 541
Opinion of the Court
claims for negligent infliction of emotional distress under
FELA.1
II
In these cases, we address questions left unanswered in
Atchison, T. & S. F. R. Co. v. Buell, 480 U. S. 557 (1987).
That case involved a FELA complaint filed by a railroad car-
man who alleged that the intentional and negligent actions
of his employer had caused him to suffer emotional injuries.
We rejected the railroad's contention that the FELA action
should be barred because the conduct complained of was sub-
ject to arbitration under the terms of the Railway Labor Act,
44 Stat. 577, as amended, 45 U. S. C. § 151 et seq. See 480
U. S., at 564-567. Because the record was not fully devel-
oped, however, we were unable to reach the railroad's alter-
native argument that purely emotional injury was not com-
pensable under FELA. Today, we must resolve one of the
questions reserved in Buell: whether recovery for negligent
infliction of emotional distress is available under FELA.2 If
we conclude that it is, we must consider the proper scope
of that availability. Our FELA jurisprudence outlines the
analysis we must undertake when deciding whether, and to
what extent, this new category of claims should be cogniza-
ble under the statute.
First, as in other cases involving the scope of the statute,
we must look to FELA itself, its purposes and background,
and the construction we have given it over the years. See,
e. g., id., at 561-562. Second, because "FELA jurisprudence
gleans guidance from common-law developments," id., at 568,
we must consider the common law's treatment of the right
1 Compare the decisions below with Ray v. Consolidated Rail Corp., 938
F. 2d 704 (CAY 1991), cert, denied, 502 U. S. 1048 (1992); Elliott v. Nor-
folk & Western R. Co., 910 R 2d 1224 (CA4 1990); Adams v. CSX Transp.,
Inc., 899 F. 2d 536 (CA6 1990); Gaston v. Flowers Transp., 866 F. 2d 816
(CA5 1989).
2 We are not concerned here with the separate tort of intentional inflic-
tion of emotional distress.
542 CONSOLIDATED RAIL CORPORATION u GOTTSHALL
Opinion of the Court
of recovery asserted by respondents. See, e. g., Monessen
Southwestern R. Co. v. Morgan, 486 U. S. 330, 336-339 (1988)
(disallowing pre judgment interest under FELA in large part
because such interest was unavailable at common law when
FELA was enacted); Buell, supra, at 568-570. Cf. Urie v.
Thompson, 337 U. S. 163, 174 (1949); Kernan v. American
Dredging Co., 355 U. S. 426, 432 (1958).
We turn first to the statute. Section 1 of FELA provides
that "[e]very common carrier by railroad . . . shall be liable
in damages to any person suffering injury while he is em-
ployed by such carrier ... for such injury or death resulting
in whole or in part from the negligence of any of the officers,
agents, or employees of such carrier." 45 U. S. C. § 51. Our
task today is determining under what circumstances emo-
tional distress may constitute "injury" resulting from "negli-
gence" for purposes of the statute. As we previously have
recognized when considering §51, when Congress enacted
FELA in 1908, its "attention was focused primarily upon in-
juries and death resulting from accidents on interstate rail-
roads." Urie, supra, at 181. Cognizant of the physical
dangers of railroading that resulted in the death or maiming
of thousands of workers every year, Congress crafted a fed-
eral remedy that shifted part of the " 'human overhead' " of
doing business from employees to their employers. Tiller
v. Atlantic Coast Line R. Co., 318 U. S. 54, 58 (1943). See
also Wilkerson v. McCarthy, 336 U. S. 53, 68 (1949) (Douglas,
J., concurring) (FELA "was designed to put on the railroad
industry some of the cost for the legs, eyes, arms, and lives
which it consumed in its operations"). In order to further
FELA's humanitarian purposes, Congress did away with
several common-law tort defenses that had effectively barred
recovery by injured workers. Specifically, the statute abol-
ished the fellow servant rule, rejected the doctrine of con-
tributory negligence in favor of that of comparative negli-
Cite as: 512 U. S. 582 (1994) 543
Opinion of the Court
gence, and prohibited employers from exempting themselves
from FELA through contract; a 1939 amendment abolished
the assumption of risk defense. See 45 U. S. C. §§ 51, 53-55.
We have liberally construed FELA to further Congress*
remedial goal. For example, we held in Rogers v. Missouri
Pacific R. Co., 352 U. S. 500 (1957), that a relaxed standard
of causation applies under FELA. We stated that "[ujnder
this statute the test of a jury case is simply whether the
proofs justify with reason the conclusion that employer neg-
ligence played any part, even the slightest, in producing the
injury or death for which damages are sought." Id., at 506.
In Kernan, supra, we extended the reach of the principle of
negligence per se to cover injuries suffered by employees
as a result of their employ ers' statutory violations, even if
the injuries sustained were not of a type that the relevant
statute sought to prevent. See id., at 432-436. And in
Urie, supra, we held that occupational diseases such as sili-
cosis constitute compensable physical injuries under FELA,
thereby rejecting the argument that the statute covered
only injuries and deaths caused by accidents. See id., at
181.
That FELA is to be liberally construed, however, does not
mean that it is a workers' compensation statute. We have
insisted that FELA "does not make the employer the insurer
of the safety of his employees while they are on duty. The
basis of his liability is his negligence, not the fact that inju-
ries occur/' Ellis v. Union Pacific R. Co., 329 U. S. 649, 653
(1947). Accord, Inman v. Baltimore & Ohio R. Co., 361 U. S.
138, 140 (1959); Wilkerson, supra, at 61. And while "[w]hat
constitutes negligence for the statute's purposes is a federal
question," Urie, 337 U. S., at 174, we have made clear that
this federal question generally turns on principles of common
law: "[T]he Federal Employers' Liability Act is founded on
common-law concepts of negligence and injury, subject to
such qualifications as Congress has imported into those
terms," id., at 182. Those qualifications, discussed above,
544 CONSOLIDATED RAIL CORPORATION v. GOTTSHALL
Opinion of the Court
are the modification or abrogation of several common-law
defenses to liability, including contributory negligence and
assumption of risk. See 45 U. S. C. §§51, 53-55. Only to
the extent of these explicit statutory alterations is FELA
"an avowed departure from the rules of the common law."
Sinkler v. Missouri Pacific R. Co., 356 U. S. 326, 329 (1958).
Thus, although common-law principles are not necessarily
dispositive of questions arising under FELA, unless they are
expressly rejected in the text of the statute, they are enti-
tled to great weight in our analysis. Cf. Buell, 480 U. S.,
at 568. Because FELA is silent on the issue of negligent
infliction of emotional distress, common-law principles must
play a significant role in our decision.
B
We turn, therefore, to consider the right of recovery pur-
sued by respondents in light of the common law. Cf. Mones-
sen, supra, at 336-339; Buell, 480 U. S., at 568-570. The
term "negligent infliction of emotional distress" is largely
self-explanatory, but a definitional point should be clarified
at the outset. The injury we contemplate when considering
negligent infliction of emotional distress is mental or emo-
tional injury, cf. id., at 568, apart from the tort law concepts
of pain and suffering. Although pain and suffering techni-
cally are mental harms, these terms traditionally "have been
used to describe sensations stemming directly from a physi-
cal injury or condition." Pearson, Liability to Bystanders
for Negligently Inflicted Emotional Harm — A Comment on
the Nature of Arbitrary Rules, 34 U. Fla. L. Rev. 477, 485,
n. 45 (1982). The injury we deal with here is mental or emo-
tional harm (such as fright or anxiety) that is caused by the
negligence of another and that is not directly brought about
by a physical injury, but that may manifest itself in physi-
cal symptoms.
Nearly all of the States have recognized a right to recover
for negligent infliction of emotional distress, as we have de-
Cite as: 512 U. S. 532 (1994) 545
Opinion of the Court
fined it.3 No jurisdiction, however, allows recovery for all
emotional harms, no matter how intangible or trivial, that
might be causally linked to the negligence of another. In-
deed, significant limitations, taking the form of "tests" or
"rules, " are placed by the common law on the right to re-
cover for negligently inflicted emotional distress, and have
been since the right was first recognized late in the last
century.
Behind these limitations lie a variety of policy considera-
tions, many of them based on the fundamental differences
between emotional and physical injuries. "Because the eti-
ology of emotional disturbance is usually not as readily ap-
parent as that of a broken bone following an automobile acci-
dent, courts have been concerned . . . that recognition of a
cause of action for [emotional] injury when not related to any
physical trauma may inundate judicial resources with a flood
of relatively trivial claims, many of which may be imagined
or falsified, and that liability may be imposed for highly re-
mote consequences of a negligent act/' Maloney v. Conroy,
208 Conn. 392, 397-398, 545 A. 2d 1059, 1061 (1988). The
last concern has been particularly significant. Emotional in-
juries may occur far removed in time and space from the
negligent conduct that triggered them. Moreover, in con-
trast to the situation with physical injury, there are no neces-
sary finite limits on the number of persons who might suffer
emotional injury as a result of a given negligent act.4 The
8 There are a few exceptions. Negligent infliction of emotional distress
is not actionable in Alabama. See Allen v. Walker, 569 So. 2d 350 (Ala.
1990). It is unclear whether such a claim is cognizable in Arkansas. Com-
pare Mechanics Lumber Co. v. Smith, 296 Ark. 285, 752 S. W. 2d 763 (1988),
with M. B. M. Co. v. Counee, 268 Ark. 269, 596 S. W. 2d 681 (1980).
4 See Pearson, Liability to Bystanders for Negligently Inflicted Emo-
tional Harm — A Comment on the Nature of Arbitrary Rules, 34 U. Fla. L.
Rev. 477, 507 (1982) ("The geographic risk of physical impact caused by
the defendant's negligence in most cases is quite limited, which accord-
ingly limits the number of people subjected to that risk. There is no
similar finite range of risk for emotional harm").
546 CONSOLIDATED RAIL CORPORATION v. GOTTSHALL
Opinion of the Court
incidence and severity of emotional injuries are also more
difficult to predict than those of typical physical injuries be-
cause they depend on psychological factors that ordinarily
are not apparent to potential tortfeasors.
For all of these reasons, courts have realized that recogni-
tion of a cause of action for negligent infliction of emotional
distress holds out the very real possibility of nearly infinite
and unpredictable liability for defendants. Courts therefore
have placed substantial limitations on the class of plaintiffs
that may recover for emotional injuries and on the injuries
that may be compensable. See, e. g., Thing v. La Chusa, 48
Cal. 3d 644, 654, 771 P. 2d 814, 819 (1989) ("[P]olicy considera-
tions mandat[e] that infinite liability be avoided by restric-
tions that . . . narrow the class of potential plaintiffs"); Tobin
v. Grossman, 24 N. Y. 2d 609, 616, 249 N. E. 2d 419, 423
(1969).5 Some courts phrase the limitations in terms of
proximate causation; that is, only certain plaintiffs or inju-
ries are reasonably foreseeable. Other courts speak of the
limitations in terms of duty; the defendant owes only a cer-
tain class of plaintiffs a duty to avoid inflicting emotional
harm. See, e. g., Pearson, supra, at 489, n. 72 (discussing
Palsgrafv. Long Island R. Co., 248 N. Y. 339, 162 N. E. 99
(1928)). These formulations are functionally equivalent.
We shall refer to the common-law limitations as outlining
the duty of defendants with regard to negligent infliction of
emotional distress.
Three major limiting tests for evaluating claims alleging
negligent infliction of emotional distress have developed in
the common law. The first of these has come to be known
6 See also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and
Keeton on Law of Torts §64, p. 366 (5th ed. 1984) ("It would be an entirely
unreasonable burden on all human activity if the defendant who has endan-
gered one person were to be compelled to pay for the lacerated feelings of
every other person disturbed by reason of it, including every bystander
shocked at an accident, and every distant relative of the person injured,
as well as all his friends").
Cite as: 512 U. S. 632 (1994) 547
Opinion of the Court
as the "physical impact" test. It originated a century ago in
some of the first cases recognizing recovery for negligently
inflicted emotional distress. At the time Congress enacted
FELA in 1908, most of the major industrial States had em-
braced this test. See Throckmorton, Damages for Fright,
34 Harv. L. Rev. 260, 263-264, and n. 25 (1921).6 Under the
physical impact test, a plaintiff seeking damages for emo-
tional injury stemming from a negligent act must have con-
temporaneously sustained a physical impact (no matter how
slight) or injury due to the defendant's conduct. Most juris-
dictions have abandoned this test, but at least five States
continue to adhere to it.7
The second test has come to be referred to as the "zone of
danger" test. It came into use at roughly the same time as
the physical impact test, and had been adopted by several
jurisdictions at the time FELA was enacted. See Throck-
morton, supra, at 264-265, and n. 28.8 See also Bohlen,
Right to Recover for Injury Resulting from Negligence
Without Impact, 50 Am. L. Reg. 141, and nn. 3-5 (1902). Per-
haps based on the realization that "a near miss may be as
frightening as a direct hit," Pearson, U. Fla. L. Rev., at 488,
the zone of danger test limits recovery for emotional injury
to those plaintiffs who sustain a physical impact as a result
6 See, e. g., Spade v. Lynn & B. R. Co., 168 Mass, 285, 47 N. E. 88 (1897);
Mitchell v. Rochester R. Co., 151 N. Y. 107, 45 N. E. 354 (1896); Ewing v.
Pittsburgh, C., C. & St. L. R. Co., 147 Pa. 40, 23 A. 340 (1892).
7 See OB-GYN Assocs. of Albany v. Littleton, 259 Ga. 663, 386 S. E. 2d
146 (1989); Shuamber v. Henderson, 579 N. E. 2d 452 (Ind. 1991); Anderson
v. Scheffler, 242 Kan. 857, 752 R 2d 667 (1988); Deutsch v. Skein, 597 S. W.
2d 141 (Ky. 1980); Hammond v. Central Lane Communications Center,
312 Ore. 17, 816 R 2d 593 (1991).
8 See, e. g., Simone v. Rhode Island Co., 28 R. I. 186, 66 A. 202 (1907);
Kimberly v. Rowland, 143 N. C. 398, 55 S. E. 778 (1906); Gulf, C. & S. R R.
Co v. Hayter, 93 Tex. 239, 54 S. W. 944 (1900); Mack v. South-Bound R.
Co., 52 S. C. 323, 29 S. E. 905 (1898); Purcell v. St. Paul City R. Co., 48
Minn. 134, 50 N. W. 1034 (1892). See also Pankopfv. Hinkley, 141 Wis.
146, 123 N. W. 625 (1909); Stewart v. Arkansas Southern R. Co., 112 La.
764, 36 So. 676 (1904); Watson v. Dilts, 116 Iowa 249, 89 N. W. 1068 (1902).
548 CONSOLIDATED RAIL CORPORATION u GOTTSHALL
Opinion of the Court
of a defendant's negligent conduct, or who are placed in im-
mediate risk of physical harm by that conduct. That is,
"those within the zone of danger of physical impact can
recover for fright, and those outside of it cannot." Id., at
489. The zone of danger test currently is followed in 14
jurisdictions.9
The third prominent limiting test is the "relative by-
stander" test, which was first enunciated in Dillon v. Legg,
68 Cal. 2d 728, 441 R 2d 912 (1968). In Dillon, the Califor-
nia Supreme Court rejected the zone of danger test and sug-
gested that the availability of recovery should turn, for the
most part, on whether the defendant could reasonably have
foreseen the emotional injury to the plaintiff. The court of-
fered three factors to be considered as bearing on the ques-
tion of reasonable foreseeability:
"(1) Whether plaintiff was located near the scene of the
accident as contrasted with one who was a distance
away from it. (2) Whether the shock resulted from a
direct emotional impact upon plaintiff from the sensory
and contemporaneous observance of the accident, as con-
trasted with learning of the accident from others after
its occurrence. (3) Whether plaintiff and the victim
were closely related, as contrasted with an absence of
any relationship or the presence of only a distant rela-
tionship." Id., at 740-741, 441 R 2d, at 920.
9 See Keck v. Jackson, 122 Ariz. 114, 593 P. 2d 668 (1979); Towns v.
Anderson, 195 Colo. 517, 579 P. 2d 1163 (1978); Robb v. Pennsylvania
R. Co., 58 Del. 454, 210 A. 2d 709 (1965); Williams v. Baker, 572 A. 2d 1062
(D, (I App. 1990); Rickey v, Chicago Transit Authority, 98 ILL 2d 546, 457
N. K 2d 1 (1983); Resavage v. Dames, 199 Md. 479, 86 A. 2d 879 (1952);
Stadlerv. Cross, 295 N. W. 2d 552 (Minn. 1980); Asaro v. Cardinal Glennon
Memorial Hosp., 799 S. W. 2d 595 (Mo. 1990); Bovsun v. Sanperi, 61 N. Y.
2d 219, 461 N. E. 2d 843 (1984); Whetham v. Bismarck Hosp., 197 N. W. 2d
678 (N. D. 1972); Shelton v. Resell Pipe & Foundry Co., 570 S. W, 2d 861
(Term. 1978); Boucher v. Dixie Medical Center, A Div. of IHC Hosps.,
Inc., 850 P. 2d 1179 (Utah 1992); Jobin v. McQuillen, 158 Vt. 322, 609 A. 2d
990 (1992); Garrett v. New Berlin, 122 Wis. 2d 223, 362 N. W. 2d 137 (1985).
Cite as: 512 U. S. 532 (1994) 549
Opinion of the Court
The courts of nearly half the States now allow bystanders
outside of the zone of danger to obtain recovery in certain
circumstances for emotional distress brought on by witness-
ing the injury or death of a third party (who typically must
be a close relative of the bystander) that is caused by the
defendant's negligence.10 Most of these jurisdictions have
adopted the Dillon factors either verbatim or with varia-
tions and additions, and have held some or all of these factors
to be substantive limitations on recovery.11
Ill
A
Having laid out the relevant legal framework, we turn to
the questions presented. As an initial matter, we agree
10 See Croft v. Wicker, 737 P. 2d 789 (Alaska 1987); Thing v. La Chusa,
48 Cal. 3d 644, 771 R 2d 814 (1989); Champion v. Gray, 478 So. 2d 17 (Fla.
1985); Fineran v. Pickett, 465 N. W. 2d 662 (Iowa 1991); Lejeune v. Rayne
Branch Hosp., 556 So. 2d 559 (La. 1990); Cameron v. Pepin, 610 A. 2d 279
(Me. 1992); Stockdale v. Bird & Son, Inc., 399 Mass. 249, 503 N. E. 2d 951
(1987); Nugent v. Bauermeister, 195 Mich. App. 158, 489 N. W. 2d 148
(1992), appeal denied, 442 Mich. 929, 503 N. W. 2d 904 (1993); Entex, Inc.
v. McGuire, 414 So. 2d 437 (Miss. 1982); Maguire v. State, 254 Mont. 178,
835 P. 2d 755 (1992); James v. Lieb, 221 Neb. 47, 375 N. W. 2d 109 (1985);
Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P. 2d 437 (1989); Wilder
v. Keene, 131 N. H. 599, 557 A. 2d 636 (1989); Frame v. Kothari, 115 N. J.
638, 560 A. 2d 675 (1989); Folz v. State, 110 N. M. 457, 797 P. 2d 246 (1990);
Johnson v. Ruark Obstetrics and Gynecology Assocs., 327 N. C. 283, 395
S. E. 2d 85 (1990); Paugh v. Hanks, 6 Ohio St. 3d 72, 451 N. E. 2d 759
(1983); Sinn v. Burd, 486 Pa. 146, 404 A. 2d 672 (1979); Reilly v. United
States, 547 A. 2d 894 (R. L 1988); Kinard v. Augusta Sash & Door Co., 286
S. C. 579, 336 S. E. 2d 465 (1985); Boyles v. Kerr, 855 S. W. 2d 593 (Tex.
1993); Gain v. Carroll Mill Co., 114 Wash. 2d 254, 787 R 2d 553 (1990);
Heldreth v. Marrs, 188 W. Va. 481, 425 S. E. 2d 157 (1992); Contreras v.
Carbon County School Dist. No. 1, 843 P. 2d 589 (Wyo. 1992).
11 Many jurisdictions that follow the zone of danger or relative bystander
tests also require that a plaintiff demonstrate a "physical manifestation"
of an alleged emotional injury, that is, a physical injury or effect that is
the direct result of the emotional injury, in order to recover. See, e g.,
Garvis v. Employers Hut. Casualty Co., 497 N. W. 2d 254 (Minn. 1993).
550 CONSOLIDATED RAIL CORPORATION v. GOTTSHALL
Opinion of the Court
with the Third Circuit that claims for damages for negligent
infliction of emotional distress are cognizable under FELA.
A combination of many of the factors discussed above makes
this conclusion an easy one. A right to recover for negli-
gently inflicted emotional distress was recognized in some
form by many American jurisdictions at the time FELA was
enacted, see nn. 6 and 8, supra, and this right is nearly uni-
versally recognized among the States today. See supra, at
546-549. Moreover, we have accorded broad scope to the
statutory term "injury" in the past in light of FELA's reme-
dial purposes. Cf. Urie, 337 U. S., at 181. We see no reason
why emotional injury should not be held to be encompassed
within that term, especially given that "severe emotional in-
juries can be just as debilitating as physical injuries." Gott-
shall, 988 F. 2d, at 361. We therefore hold that, as part of
its "duty to use reasonable care in furnishing its employees
with a safe place to work," Buell, 480 U. S., at 558, a rail-
road has a duty under FELA to avoid subjecting its workers
to negligently inflicted emotional injury. This latter duty,
however, is not self-defining. Respondents defend the Third
Circuit's definition of the duty we recognize today; Conrail
offers its own proposed delineation. We consider the pro-
posals in turn.
B
When setting out its view of the proper scope of recovery
for negligently inflicted emotional distress under FELA, the
Third Circuit explicitly refused to adopt any of the common-
law tests described above; indeed, the court in Gottshall
went so far as to state that "doctrinal common law distinc-
tions are to be discarded when they bar recovery on merito-
rious FELA claims." 988 F. 2d, at 369. Instead, the court
developed its own test, under which "[t]he issue is whether
the factual circumstances . . . provide a threshold assurance
that there is a likelihood of genuine and serious emotional
injury." Id., at 371. If this threshold test is satisfied, the
claim should be evaluated in light of traditional tort concepts
Cite as: 512 U. S. 532 (1994) 551
Opinion of the Court
such as breach of duty, injury, and causation, with the focus
resting on the foreseeability of the plaintiff's injury. Id.9 at
374-375. In Gottshall, the Third Circuit did at least con-
sider the plaintiff's claim in light of the common law of negli-
gent infliction of emotional distress as part of its factual
"genuineness" inquiry. By the time the court next applied
the Gottshall genuineness test, however, the common-law as-
pect of its analysis had completely disappeared; Carlisle's
stress-related claim was not evaluated under any of the
common-law tests. In Carlisle, the Third Circuit refined its
test to two questions — whether there was convincing evi-
dence of the genuineness of the emotional injury claim (with
"genuine" meaning authentic and serious), and if there was,
whether the injury was foreseeable. If these questions
could be answered affirmatively by the court, there was "no
bar to recovery under the FELA." 990 R 2d, at 98.
The Third Circuit's standard is fatally flawed in a number
of respects. First, as discussed above, because negligent in-
fliction of emotional distress is not explicitly addressed in the
statute, the common-law background of this right of recovery
must play a vital role in giving content to the scope of an
employer's duty under FELA to avoid inflicting emotional
injury. Cl Monessen, 486 U. S., at 336-339; Buell, supra, at
568-570; Urie, supra, at 182. By treating the common-law
tests as mere arbitrary restrictions to be disregarded if they
stand in the way of recovery on "meritorious" FELA claims,
the Third Circuit put the cart before the horse: The common
law must inform the availability of a right to recover under
FELA for negligently inflicted emotional distress, so the
"merit" of a FELA claim of this type cannot be ascertained
without reference to the common law.
Perhaps the court below believed that its focus on the per-
ceived genuineness of the claimed emotional injury ade-
quately addressed the concerns of the common-law courts in
dealing with emotional injury claims. But the potential for
fraudulent and trivial claims — the concern identified by the
Opinion of the Court
Third Circuit — is only one of the difficulties created by allow-
ing actions for negligently inflicted emotional distress. A
more significant problem is the prospect that allowing such
suits can lead to unpredictable and nearly infinite liability
for defendants. The common law consistently has sought to
place limits on this potential liability by restricting the class
of plaintiffs who may recover and the types of harm for
which plaintiffs may recover. This concern underlying the
common-law tests has nothing to do with the potential for
fraudulent claims; on the contrary, it is based upon the recog-
nized possibility of genuine claims from the essentially infi-
nite number of persons, in an infinite variety of situations,
who might suffer real emotional harm as a result of a single
instance of negligent conduct.
Second, we question the viability of the genuineness test
on its own terms. The Third Circuit recognized that "there
must be some finite limit to the railway's potential liability"
for emotional injury claims under FELA, and suggested that
liability could be restricted through application of the genu-
ineness test. Gottshall, supra, at 379. But as just ex-
plained, testing for the "genuineness" of an injury alone can-
not appreciably diminish the possibility of infinite liability
Such a fact-specific test, moreover, would be bound to lead to
haphazard results. Judges would be forced to make highly
subjective determinations concerning the authenticity of
claims for emotional injury, which are far less susceptible to
objective medical proof than are their physical counterparts.
To the extent the genuineness test could limit potential lia-
bility, it could do so only inconsistently. Employers such as
Conrail would be given no standard against which to regu-
late their conduct under such an ad hoc approach. In the
context of claims for intangible harms brought under a negli-
gence statute, we find such an arbitrary result unacceptable.
Cf Stadler v. Cross, 295 N. W. 2d 552, 554 (Minn. 1980).
Third, to the extent the Third Circuit relied on the concept
of foreseeability as a meaningful limitation on liability, we
oite as: oiz u.
Opinion of the Court
believe that reliance to be misplaced. If one takes a broad
enough view, all consequences of a negligent act, no matter
how far removed in time or space, may be foreseen. Con-
ditioning liability on foreseeability, therefore, is hardly a
condition at all. "Every injury has ramifying consequences,
like the ripplings of the waters, without end. The problem
for the law is to limit the legal consequences of wrongs to
a controllable degree/' Tobin, 24 K Y. 2d, at 619, 249
N. E. 2d, at 424. See also Thing, 48 Cal. 3d, at 668, 771 P. 2d,
at 830 ("[T]here are clear judicial days on which a court can
foresee forever and thus determine liability but none on
which that foresight alone provides a socially and judicially
acceptable limit on recovery").
This is true as a practical matter in the FELA context
as well, even though the statute limits recovery to railroad
workers. If emotional injury to Gottshall was foreseeable
to Conrail, such injury to the other seven members of his
work crew was also foreseeable. Because one need not wit-
ness an accident to suffer emotional injury therefrom, how-
ever, the potential liability would not necessarily have to end
there; any Conrail employees who heard or read about the
events surrounding Johns' death could also foreseeably have
suffered emotional injury as a result. Of course, not all of
these workers would have been as traumatized by th£ trag-
edy as was Gottshall, but many could have been. Under the
Third Circuit's standard, Conrail thus could face the poten-
tial of unpredictable liability to a large number of employees
far removed from the scene of the allegedly negligent con-
duct that led to Johns' death.12
12 The Third Circuit did require that the emotional injury be Reason-
ably" foreseeable, see Carlisle v. Consolidated Rail Corp., 990 F. 2d 90, 97
(1993), but under the circumstances, that qualifier seems to add little.
Suffice it to say that if Gottshall's emotional injury stemming from Johns'
death was reasonably foreseeable to Conrail, nearly any injury could also
be reasonably foreseeable.
554 CONSOLIDATED RAIL CORPORATION u GOTTSHALL
Opinion of the Court
Finally, the Third Circuit in Carlisle erred in upholding "a
claim under the FELA for negligent infliction of emotional
distress arising from work-related stress." 990 F. 2d, at 97-
98. We find no support in the common law for this unprece-
dented holding, which would impose a duty to avoid creating
a stressful work environment, and thereby dramatically ex-
pand employers' FELA liability to cover the stresses and
strains of everyday employment. Indeed, the Third Cir-
cuit's ruling would tend to make railroads the insurers of the
emotional well-being and mental health of their employees.
We have made clear, however, that FELA is not an insurance
statute. See, e. gn Ellis, 329 U. S., at 653. For the forego-
ing reasons, we reject the Third Circuit's approach.
Conrail suggests that we adopt the common-law zone of
danger test as delimiting the proper scope of an employer's
duty under FELA to avoid subjecting its employees to negli-
gently inflicted emotional injury. We agree that the zone of
danger test best reconciles the concerns of the common law
with the principles underlying our FELA jurisprudence.
As we did in Monessen, we begin with the state of the
common law in 1908, when FELA was enacted. In deter-
mining in Monessen whether prejudgment interest was
available under FELA, we recognized that the common law
in 1908 did not allow such interest in personal injury and
wrongful-death suits. Because in enacting FELA, "Con-
gress expressly dispensed with other common-law doctrines
of that era, such as the defense of contributory negligence,"
but "did not deal at all with the equally well established doc-
trine barring the recovery of prejudgment interest," we con-
cluded that Congress intended to leave the common-law rule
intact. 486 U. S., at 337-338. In contrast, the right to re-
cover for negligently inflicted emotional distress was well
established in many jurisdictions in 1908. Although at that
time, "the weight of American authority" favored the physi-
Opinion of the Court
cal impact test, Throckmorton, 34 Harv. L. Rev., at 264, the
zone of danger test had been adopted by a significant number
of jurisdictions. See n. 8, supra. Moreover, because it was
recognized as being a progressive rule of liability that was
less restrictive than the physical impact test, the zone of dan-
ger test would have been more consistent than the physical
impact test with FELA's broad remedial goals. See Waube
v. Warrington, 216 Wis. 603, 608, 258 N. W. 497, 499 (1935)
(discussing early emotional injury cases and referring to zone
of danger test as "the liberal rule"). Considering the ques-
tion "in the appropriate historical context," Monessen,
supra, at 337, then, it is reasonable to conclude that Congress
intended the scope of the duty to avoid inflicting emotional
distress under FELA to be coextensive with that established
under the zone of danger test. That is, an emotional injury
constitutes "injury" resulting from the employer's "negli-
gence" for purposes of FELA only if it would be compensable
under the terms of the zone of danger test. See 45 U. S. C.
§ 51. Cf. Urie, 337 U. S., at 182.
Current usage only confirms this historical pedigree. The
zone of danger test presently is followed by 14 jurisdic-
tions. It therefore remains to this day a well-established
"common-law concep[t] of negligence," ibid., that is suitable
to inform our determination of the federal question of what
constitutes negligence for purposes of FELA. Cf. Buell,
480 U. S., at 568-570; Kernan, 355 U. S., at 432.
The zone of danger test also is consistent with FELA's
central focus on physical perils. We have recognized that
FELA was intended to provide compensation for the injur-
ies and deaths caused by the physical dangers of railroad
work by allowing employees or their estates to assert dam-
ages claims. Cf. Urie, supra, at 181. By imposing liability,
FELA presumably also was meant to encourage employers
to improve safety measures in order to avoid those claims.
Cf Wilkerson, 336 U. S., at 68 (Douglas, J., concurring). As
the Seventh Circuit has observed, FELA was (and is) aimed
556 CONSOLIDATED RAIL CORPORATION u GOTTSHALL
Opinion of the Court
at ensuring "the security of the person from physical inva-
sions or menaces. " Lancaster v. Norfolk & Western R. Co.,
773 F. 2d 807, 813 (1985), cert, denied, 480 U. S. 945 (1987).
But while the statute may have been primarily focused on
physical injury, it refers simply to "injury/' which may en-
compass both physical and emotional injury. We believe
that allowing recovery for negligently inflicted emotional
injury as provided for under the zone of danger test best
harmonizes these considerations. Under this test, a worker
within the zone of danger of physical impact will be able to
recover for emotional injury caused by fear of physical injury
to himself, whereas a worker outside the zone will not. Rail-
road employees thus will be able to recover for injuries —
physical and emotional — caused by the negligent conduct of
their employers that threatens them imminently with physi-
cal impact. This rule will further Congress' goal in enacting
the statute of alleviating the physical dangers of railroading.
The physical impact test, of course, would achieve many of
the same ends as the zone of danger test. We see no reason,
however, to allow an employer to escape liability for emo-
tional injury caused by the apprehension of physical impact
simply because of the fortuity that the impact did not occur.
And the physical impact test has considerably less support
in the current state of the common law than the zone of
danger test. See supra, at 546-549.
As for the relative bystander test, we conclude that it is
an inappropriate rule in the FELA context. As an initial
matter, it was not developed until 60 years after FELA's
enactment, and therefore lacks historical support. Cf.
Monessen, supra. Moreover, in most jurisdictions that
adhere to it, this test limits recovery to persons who witness
the severe injury or death of a close family member. Only
railroad employees (and their estates) may bring FELA
claims, however, and presumably it would be a rare occur-
rence for a worker to witness during the course of his em-
ployment the injury or death of a close family member. In
<jite as: biz u. fc>. 532 (iyy4; 557
Opinion of the Court
any event, we discern from FELA and its emphasis on pro-
tecting employees from physical harms no basis to extend
recovery to bystanders outside the zone of danger. Cf.
Gaston v. Flowers Transp., 866 R 2d 816, 820-821 (CAS
1989).
Respondents decry the zone of danger test as arbitrarily
excluding valid claims for emotional injury. But "Charac-
terizing a rule limiting liability as 'unprincipled' or 'arbi-
trary' is often the result of overemphasizing the policy con-
siderations favoring imposition of liability, while at the same
time failing to acknowledge any countervailing policies and
the necessary compromise between competing and inconsist-
ent policies informing the rule." Cameron v. Pepin, 610
A. 2d 279, 283 (Me. 1992). Our FELA cases require that we
look to the common law when considering the right to re-
cover asserted by respondents, and the common law restricts
recovery for negligent infliction of emotional distress on sev-
eral policy grounds: the potential for a flood of trivial suits,
the possibility of fraudulent claims that are difficult for
judges and juries to detect, and the specter of unlimited and
unpredictable liability. Although some of these grounds
have been criticized by commentators, they all continue to
give caution to courts. We believe the concerns that under-
lie the common-law tests, and particularly the fear of unlim-
ited liability, to be well founded.
Perhaps the zone of danger test is "arbitrary" in the sense
that it does not allow recovery for all emotional distress.
But it is fully consistent with our understanding of the stat-
ute. And for the reasons discussed above, we conclude that
the policy considerations of the common law as they are
embodied in the zone of danger test best accord with the
concerns that have motivated our FELA jurisprudence.
IV
Because the Third Circuit applied an erroneous standard
for evaluating claims for negligent infliction of emotional
558 CONSOLIDATED RAIL COEPORATION u GOTTSHALL
SOUTER, J., concurring
distress brought under FELA, we reverse the judgments
below. In Gottshall, we remand for reconsideration under
the zone of danger test announced today. Gottshall asserts
before this Court that he would in fact meet the require-
ments of the zone of danger test, while Conrail disagrees.
The question was not adequately briefed or argued before
us, however, and we believe it best to allow the Third Circuit
to consider the question in the first instance in light of rele-
vant common-law precedent.
In Carlisle, however, we remand with instructions to enter
judgment for Conrail. Carlisle's work-stress-related claim
plainly does not fall within the common law's conception of
the zone of danger, and Carlisle makes no argument that it
does. Without any support in the common law for such a
claim, we will not take the radical step of reading FELA
as compensating for stress arising in the ordinary course of
employment. In short, the core of Carlisle's complaint was
that he "had been given too much — not too dangerous — work
to do. That is not our idea of an FELA claim." Lancaster,
supra, at 813.
The judgments of the Court of Appeals are reversed, and
the cases are remanded for farther proceedings consistent
with this opinion.
So ordered.
JUSTICE SOUTER, concurring.
I join the Court's opinion holding that claims for negligent
infliction of emotional distress are cognizable under the Fed-
eral Employers' Liability Act (FELA), and that the zone of
danger test is the appropriate rule for determining liability
for such claims. I write separately to make explicit what I
believe the Court's duty to be in interpreting FELA. That
duty is to develop a federal common law of negligence under
FELA, informed by reference to the evolving common law.
See Atchison, T. & S. F. R. Co. v. Buell, 480 U. S. 557, 568-
570 (1987). As we have explained:
<Jite as: 512 U. JS. 532 (1994) 569
GINSBURG, J., dissenting
"[I]nstead of a detailed statute codifying common-law
principles, Congress saw fit to enact a statute of the
most general terms, thus leaving in large measure to
the courts the duty of fashioning remedies for injured
employees in a manner analogous to the development of
tort remedies at common law. But it is clear that the
general congressional intent was to provide liberal re-
covery for injured workers . . . and it is also clear that
Congress intended the creation of no static remedy, but
one which would be developed and enlarged to meet
changing conditions and changing concepts of industry's
duty toward its workers." Kernan v. American Dredg-
ing Co., 355 U. S. 426, 432 (1958).
Because I believe the Court's decision today to be a faithful
exercise of that duty, and because there can be no question
that adoption of the zone of danger test is well within the
discretion left to the federal courts under PELA, I join in
its opinion.
JUSTICE GINSBURG, with whom JUSTICE BLACKMUN and
JUSTICE STEVENS join, dissenting.
The Federal Employers' Liability Act (FELA or Act), 45
U. S. C. § 51 et seq., instructs interstate railroads " 'to use
reasonable care in furnishing [their] employees with a safe
place to work.'" Ante, at 550, quoting Atchison, T. & S. F.
R. Co. v. Buell, 480 U. S. 557, 558 (1987). As the Court today
recognizes, the FELA-imposed obligation encompasses "a
duty ... to avoid subjecting [railroad] workers to negligently
inflicted emotional injury." Ante, at 550.
The Court limits the scope of the railroad's liability, how-
ever, by selecting one of the various "tests" state courts have
applied to restrict recovery by members of the public for
negligently inflicted emotional distress. The Court derives
its limitation largely from a concern, often expressed in state
court opinions, about the prospect of "infinite liability" to
an "infinite number of persons." See ante, at 552. This
560 CONSOLIDATED RAIL CORPORATION v. GOTTSHALL
GINSBURG, J., dissenting
concern should not control in the context of the FELA, as I
see it, for the class of potential plaintiffs under the FELA is
not the public at large; the Act covers only railroad workers
who sustain injuries on the job. In view of the broad lan-
guage of the Act,1 and this Court's repeated reminders that
the FELA is to be liberally construed, I cannot regard as
faithful to the legislation and our case law under it the re-
strictive test announced in the Court's opinion.
The FELA was designed to provide a federal "statutory-
negligence action . . . significantly different from the ordi-
nary common-law negligence action/' Rogers v. Missouri
Pacific R. Co., 352 U. S. 500, 509-510 (1957). An "avowed
departure" from prevailing common-law rules, Sinkler v.
Missouri Pacific R. Co., 356 U. S. 326, 329 (1958), the Act
advanced twin purposes: "to eliminate a number of tradi-
tional defenses to tort liability and to facilitate recovery in
meritorious cases." Buell, supra, at 561.2 "Congress in-
tended the creation of no static remedy, but one which would
be developed and enlarged to meet changing conditions and
changing concepts of industry's duty toward its workers."
Kernan v. American Dredging Co., 355 U. S. 426, 432 (1958).
Relying upon "the breadth of the statutory language, [and]
the Act's humanitarian purposes," this Court has accorded
the FELA a notably "liberal construction in order to accom-
1 Section 1 of the FELA provides, in relevant part, that "[e]very com-
mon carrier by railroad . . . shall be liable in damages to any person suffer-
ing injury while he is employed by such carrier . . . [when such injury
results] in whole or in part from the negligence of any of the officers,
agents, or employees of such carrier/* 45 U. S. C. § 51.
2 The FELA, as enacted in 1908, abolished the employer's "fellow serv-
ant" defense and provided that an employee's negligence would not bar,
but only reduce, recovery; the Act further prohibited employers from ex-
empting themselves contractually from statutory liability. §§51, 53, 55.
As amended in 1939, the Act also abolished the employer's assumption of
risk defense. § 54.
as: oiz u. fc. asz u^y^; 561
GINSBURG, J., dissenting
plish [Congress'] objects/' Urie v. Thompson, 337 U. S. 163,
180 (1949); see Buell, supra, at 562.
In particular, the Court has given full scope to the key
statutory term "injury." The Act prescribes that "[e]very
common carrier by railroad . . . shall be liable in damages to
any person suffering injury while he is employed by such
carrier/' 45 U. S. C. § 51. That prescription, this Court ob-
served, is "not restrictive as to ... the particular kind of
injury." Urie, 337 U. S., at 181. "[W]hen the statute was
enacted," it is true, "Congress' attention was focused primar-
ily upon . . . accidents on interstate railroads," for "these
were the major causes of injury and death resulting from
railroad operations." Ibid. But "accidental injuries were
not the only ones likely to occur," and Congress chose "all-
inclusive wording," Ibid. "To read into [language as broad
as could be framed] a restriction [tied] to ... the particular
sorts of harms inflicted," the Court recognized, "would be
contradictory to the wording, the remedial and humanitarian
purpose, and the constant and established course of liberal
construction of the Act followed by this Court." Id., at
181-182.
II
Seven years ago, in Atchison, T. & S. F. R. Co. v. Buell,
480 U. S. 557 (1987), the Court left unresolved the question
whether emotional injury is compensable under the FELA,
because the record in that case did not adequately present
the issue. Id., at 560-561, 570-571. In his unanimous opin-
ion for the Court, JUSTICE STEVENS explained why the ques-
tion could not be resolved on a fact-thin record:
"[W]hether 'emotional injury' is cognizable under the
FELA is not necessarily an abstract point of law or a
pure question of statutory construction that might be
answerable without exacting scrutiny of the facts of the
case. Assuming, as we have, that FELA jurisprudence
gleans guidance from common-law developments, see
662 CONSOLIDATED RAIL CORPORATION u GOTTSHALL
GINSBURG, J., dissenting
Urie v. Thompson, 337 U. S., at 174, whether one can
recover for emotional injury might rest on a variety of
subtle and intricate distinctions related to the nature of
the injury and the character of the tortious activity. "
Id., at 568.
"[T]he question whether one can recover for emotional
injury may not be susceptible to an all-inclusive 'yes' or
'no7 answer. As in other areas of law, broad pronounce-
ments in this area may have to bow to the precise appli-
cation of developing legal principles to the particular
facts at hand." Id., at 570.
In deciding the cases now under review, the Court of Ap-
peals endeavored to " 'field the Buell pitch/ " 988 F. 2d 355,
365 (CA3 1993), quoting Plaisance v. Texaco, Inc., 937 F. 2d
1004, 1009 (CAS 1991).
A
In respondent Gottshall's case, the Court of Appeals first
described the various rules state courts have applied to
common-law actions for negligent infliction of emotional dis-
tress. 988 F. 2d, at 361-362. That court emphasized, how-
ever, that "[determining FELA liability is distinctly a fed-
eral question." Id., at 362. State common-law decisions,
the Court of Appeals observed, "do not necessarily etch the
contours of the federal right," ibid., for the common law that
courts develop to fill the FELA's interstices is "federal" in
character. See id., at 367.
In addition to the FELA's express abolition of traditional
employer defenses, the Court of Appeals next noted, this
Court's decisions interpreting the FELA served as path-
markers. The Court of Appeals referred to decisions that
had relaxed "the strict requirements of causation in common
law," id., at 368, citing Rogers, 352 U. S., at 506, broadened
the conception of negligence per se, see 988 F. 2d, at 368,
citing Kernan, 355 U. S., at 437-439, and generously con-
Uite as: blZ U. £5. S32 (1994) 563
GINSBURG, J., dissenting
strued the FELA's injury requirement, 988 F. 2d, at 368,
citing Urie, 337 U. S., at 181-182. The FELA, the Court of
Appeals concluded:
"imposes upon carriers a higher standard of conduct and
has eliminated many of the refined distinctions and re-
strictions that common law imposed to bar recovery
(even on meritorious claims). FELA liability and com-
mon law liability are thus different." 988 F. 2d, at 369.
Accordingly, the Court of Appeals "refused to designate a
particular common law test as the test" applicable in FELA
cases. Id., at 365. Instead, the court looked to the pur-
poses of those tests: to distinguish "the meritorious [claim]
from the feigned and frivolous," id., at 369, and to assure
that liability for negligently inflicted emotional distress does
not expand "into the 'fantastic realm of infinite liability/"
Id., at 372, quoting Amaya v. Home Ice, Fuel & Supply Co.,
59 Gal. 2d 295, 315, 379 R 2d 513, 525 (1963); see also 988 F.
2d, at 381-382.
FELA jurisprudence, the Court of Appeals reasoned,
has evolved not through a "rules first" approach, but in the
traditional, fact-bound, case-by-case common-law way. See
id., at 371. The court therefore undertook to determine
"whether the factual circumstances [in GottshaU's case] pro-
vide a threshold assurance that there is a likelihood of genu-
ine and serious emotional injury." Ibid. "[O]ne consider-
ation" in that inquiry, the court said, "is whether plaintiff has
a 'solid basis in the present state of common law to permit
him to recover.'" Ibid., quoting Outten v. National Rail-
road Passenger Corp., 928 F. 2d 74, 79 (CAS 1991).
GottshalPs claim, the Court of Appeals held, presented the
requisite "threshold assurance." His emotional distress, di-
agnosed by three doctors as major depression and posttrau-
matic stress disorder, 988 F. 2d, at 374, was unquestionably
genuine and severe: He was institutionalized for three
weeks, followed by continuing outpatient care; he lost 40
pounds; and he suffered from "suicidal preoccupations, anxi-
GINSBURG, J., dissenting
ety, sleep onset insomnia, cold sweats, . . . nausea, physical
weakness, repetitive nightmares and a fear of leaving home."
Ibid.; see also id., at 373 (noting that Conrail "wisely de-
clined" to attack GottshalFs claim as fraudulent). Gott-
shalFs afflictions, the Court of Appeals observed, satisfied
the "physical manifestation" limitation that some States, and
the Second Restatement of Torts, place on emotional distress
recovery* See id., at 373-374 (citing cases); Restatement
(Second) of Torts §436A (1965) (no liability for emotional dis-
tress without "bodily harm or other compensable damage");
ibid., Comment c ("[L]ong continued nausea or headaches
may amount to physical illness, which is bodily harm; . . .
long continued mental disturbance . . . may be classified by
the courts as illness" and thus be compensable). Cf. Buell,
480 II S., at 570, n. 22 (suggesting a distinction between
claims for "pure emotional injury" and those involving "phys-
ical symptoms in addition to ... severe psychological
illness").
The Court of Appeals also inspected the facts under the
"bystande[r]" test, versions of which have been adopted by
nearly half the States. See ante, at 549. While acknowl-
edging that Gottshall did not satisfy the more restrictive
versions of the "bystander" test, the court observed that
several States have allowed recovery even where, as here,
the plaintiff and the victim of physical injury were unrelated
by blood or marriage. See 988 R 2d, at 371 (citing cases).
Further, the court noted, given "the reality of the railway
industry," rarely will one "se[e] another family member in-
jured while working in the railroad yard." Id, at 372. A
strict version of the bystander rule, therefore, would operate
not to limit recovery to the most meritorious cases, but al-
most to preclude bystander recovery altogether.
To adapt the bystander rule to the FELA context, the
court looked to the reasons for limiting bystander recovery:
to avoid compensating plaintiffs with fraudulent or trivial
claims, and to prevent liability from becoming "an intolerable
GINSBURG, J., dissenting
burden upon society." Id, at 369, 372. The court held that
neither concern barred recovery in GottshalFs case. The
genuineness of GottshalFs claim appeared not just in the
manifestations of his distress, the court said, but also in the
extraordinarily close, 15-year friendship between Gottshall
and Johns, the decedent. Id., at 371. Liability to bystand-
ers, the court concluded, would be far less burdensome in the
FELA context, where only close co-workers are potential
plaintiffs, than in the context of a common-law rule applica-
ble to society as a whole. Id., at 372. In this regard, the
Court of Appeals again recalled, this Court has constantly
admonished lower courts that "recovery [under the FELA]
should be liberally granted," ibid., "so that the remedial and
humanitarian goals of the statute can be fully implemented,"
id., at 373.
Satisfied that Gottshall had crossed the "genuine and
severe" injury threshold, the Court of Appeals inquired
whether he had a triable case on breach of duty and causa-
tion. Id., at 374. Here, the court emphasized that Gott-
shall's distress was attributable not to "the ordinary stress
of the job," id.9 at 375, but instead, to ConraiFs decision to
send a crew of men, most of them 50 to 60 years old and
many of them overweight, out into 97-degree heat at high
noon, in a remote, sun-baked location, requiring them to re-
place heavy steel rails at an extraordinarily fast pace without
breaks, and without maintaining radio contact or taking any
other precautions to protect the men's safety, id., at 376-377.
The Court of Appeals stated, further, that even if Conrail
could be said to have acted reasonably up to the time of
Johns' death, "its conduct after the death raises an issue of
whether it breached a legal duty." Id., at 378. The Conrail
supervisor required the crew to return to work immediately
after Johns' corpse was laid by the side of the road, covered
but still in view. Ibid. The next day, Gottshall alleged, the
supervisor "reprimanded him for administering CPR to
Johns," id., at 359, then pushed the crew even harder under
GINSBURG, J., dissenting
the same conditions, requiring a fall day, plus three or four
hours of overtime, id., at 378. These circumstances, the
Court of Appeals concluded, "created not only physical haz-
ards, but constituted emotional hazards which can equally
debilitate and scar an employee, particularly one who had
just witnessed a friend die under the same conditions." Id.,
at 378.
B
Upholding a jury verdict for plaintiff in Carlisle, the Court
of Appeals "reaffirmed]" its Gottshall holding that "no sin-
gle common law standard" governs in "weighing the genu-
ineness of emotional injury claims." Instead, the court
said:
"[C]ourts . . . should engage in an initial review of the
factual indicia of the genuineness of a claim, taking into
account broadly used common law standards, then
should apply the traditional negligence elements of duty,
foreseeability, breach, and causation in weighing the
merits of that claim." 990 R 2d 90, 98 (CA3 1993).
The Court of Appeals held that the evidence submitted to
the jury amply established the claim's genuineness. Carlisle
testified that, after ConraiPs 1984 reduction in force, the
pressure on train dispatchers in Philadelphia, already sub-
stantial, increased dramatically. As the person chiefly re-
sponsible for ensuring the safety of "trains carrying pas-
sengers, freight and hazardous materials," Carlisle became
"increasingly anxious" over the sharp reduction in staff, to-
gether with the outdated equipment and "ConraiTs repeated
instructions to ignore safety concerns, such as malfunc-
tioning equipment or poor maintenance." Id., at 92. When
Carlisle was compelled to work 12- to 15-hour shifts for 15
consecutive days, the resulting additional pressures, and the
difficulty of working for "an abusive, alcoholic supervisor,"
led, according to Carlisle's expert witness, to the nervous
breakdown he suffered. Ibid.
GINSBURG, J., dissenting
Other evidence confirmed Carlisle's testimony. Deposi-
tions taken from "Carlisle's co-workers and subordinates"
averred that "their jobs as dispatchers and supervisors in
the Philadelphia Conrail offices had caused them to suffer
cardiac arrests, nervous breakdowns, and a variety of emo-
tional problems such as depression, paranoia and insomnia."
Ibid. An official report prepared by the Federal Railway
Administration "criticized the outdated equipment and haz-
ardous working conditions at Conrail's Philadelphia dispatch-
ing office." Id., at 93. Furthermore, the Court of Appeals
pointed out, Carlisle's emotional injury was "accompanied by
obvious physical manifestations": "insomnia, fatigue, head-
aches, . . . sleepwalking and substantial weight-loss." Id.,
at 97, n. 11, 92. The court specifically noted: "We do not
face and do not decide the issue of whether purely emotional
injury, caused by extended exposure to stressful, danger-
ous working conditions, would be compensable under the
FELA." /d, at 97, n. 11.
Satisfied that the jury could indeed find Carlisle's injury
genuine, and continuing to follow the path it had marked in
Gottshall, the court next examined the negligence elements
of Carlisle's claim. Emphasizing that "Conrail had ample
notice of the stressful and dangerous conditions under which
Carlisle was forced to work," including actual notice of physi-
cal and emotional injuries sustained by Carlisle's co-workers,
990 F. 2d, at 97, the Court of Appeals affirmed the District
Court's denial of Conrail's motions for judgment n.o.v. or in
the alternative for a new trial Carlisle's "extended expo-
sure to dangerous and stressful working conditions," the
court concluded, constituted a breach of Conrail's duty to
provide a safe workplace, and the breach caused Carlisle's
injuries. /d, at 97-98.
Ill
The Court initially "agree[s] with the Third Circuit that
claims for damages for negligent infliction of emotional
distress are cognizable under FELA." Ante, at 549-550.
GINSBURG, J., dissenting
This conclusion, "an easy one" for the Court, ante, at 550, is
informed by prior decisions giving full scope to the FELA's
term "injury. " The Court had explained in Urie that an oc-
cupational disease incurred in the course of employment —
silicosis in that particular case — is as much "injury ... as
scalding from a boiler's explosion. " 337 U. S., at 187. Re-
jecting a reading of the statute that would confine cover-
age to "accidental injury" of the kind that particularly
prompted the 1908 Congress to enact the FELA, the Court
said of the occupational disease at issue:
"[W]hen the employer's negligence impairs or destroys
an employee's health by requiring him to work under
conditions likely to bring about such harmful conse-
quences, the injury to the employee is just as great
when it follows, often inevitably, from a carrier's negli-
gent course pursued over an extended period of time as
when it comes with the suddenness of lightning." 7dL,
at 186-187.
Similarly, as the Court recognizes today, " 'severe emotional
injuries can be just as debilitating as physical injuries,'"
hence there is "no reason why emotional injury should not
be held to be encompassed within th[e] term ['injury5]."
Ante, at 550, quoting Gottshall, 988 R 2d, at 361.
In my view, the Court of Appeals correctly determined
that Gottshall's submissions should survive Conrail's motion
for summary judgment, and that the jury's verdict in favor
of Carlisle should stand. Both workers suffered severe in-
jury on the job, and plausibly tied their afflictions to Conrail's
negligence. Both experienced not just emotional, but also
physical, distress: Gottshall lost 40 pounds and suffered from
insomnia, physical weakness, and cold sweats, while Carlisle
experienced "insomnia, fatigue, headaches, . . . sleepwalking
and substantial weight-loss." Id., at 374; 990 F. 2d, at 92,
97, n. 11. The Court emphasizes the "significant role" that
"common-law principles must play." Ante, at 544. Notably
GINSBURG, J., dissenting
in that regard, both Gottshall and Carlisle satisfy the "physi-
cal manifestation" test endorsed by the Restatement of
Torts. See supra, at 564, 567; see also W. Keeton, D. Dobbs,
R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts
364 (5th ed, 1984) ("the great majority of courts have now
repudiated the requirement of 'impact/ regarding as suffi-
cient the requirement that the mental distress be certified
by some physical injury, illness or other objective physical
manifestation"); id-, at 364, n. 55 (citing cases). Thus, with-
out gainsaying that "FELA jurisprudence gleans guidance
from common-law developments," Buell, 480 U. S,, at 568,
one can readily conclude that both Gottshall and Carlisle
have made sufficient showings of "injuries" compensable
under the FELA.3
Notwithstanding its recognition that the word "injury," as
used in the FELA, "may encompass both physical and emo-
tional injury," the Court elects to render compensable only
emotional distress stemming from a worker's placement in
the "zone of danger." Ante, at 556. In other words, to re-
cover for emotional distress, the railroad employee must
show that negligence attributable to his employer threat-
ened him "imminently with physical impact." Ibid. Based
on the "zone" test, the Court reverses the judgment for
Carlisle outright and remands GottshalPs case for recon-
sideration under that standard. Ante, at 557-558.
The Court offers three justifications for its adoption of the
"zone of danger" test. First, the Court suggests that the
"zone" test is most firmly rooted in "the common law." The
Court mentions that several jurisdictions had adopted the
zone of danger test by 1908, ante, at 546, 547, n. 8 (citing cases
from eight States), and that the test "currently is followed
in 14 jurisdictions." Ante, at 548. But that very exposition
8 The Gottshall and Carlisle cases do not call for decision of the question
whether physical manifestations would be necessary for recovery in
every case.
GINSBURG, J., dissenting
tells us that the "zone" test never held sway in a majority
of States.
Moreover, the Court never decides firmly on the point of
reference, present or historical, from which to evaluate the
relative support the different common-law rules have en-
joyed. If the Court regarded as decisive the degree of sup-
port a rule currently enjoys among state courts, the Court
would allow bystander recovery, permitted in some form in
"nearly half the States." Ante, at 549. But cf. ante, at 556
(bystander rule "was not developed until 60 years after
FELA's enactment, and therefore lacks historical support").
If, on the other hand, the Court decided that historical sup-
port carried the day, then the impact rule, preferred by most
jurisdictions in 1908, would be the Court's choice. But cf.
ibid, (preferring the zone of danger test to the impact rule,
because, inter alia, the latter "has considerably less support
in the current state of the common law" than the former).
The Court further maintains that the zone of danger test
is preferable because it is "consistent with FELA's central
focus on physical perils." Ante, at 555. But, as already un-
derscored, see supra, at 561, the FELA's language "is as
broad as could be framed .... On its face, every injury suf-
fered [on the job] by any employee ... by reason of the car-
rier's negligence was made compensable." Urie, 337 U. S.,
at 181. And the FELA's strikingly broad language, charac-
teristically, "has been construed even more broadly," in line
with Congress' dominant remedial objective. Buell, 480
U. S., at 562; Urie, supra, at 181 ("[N]othing in either the
language or the legislative history discloses expressly any
intent to exclude from the Act's coverage any injury result-
ing 'in whole or in part from the negligence' of the carrier").
The Court's principal reason for restricting the FELA's
coverage of emotional distress claims is its fear of "infinite
liability" to an "infinite number of persons." See ante, at
552; see also ante, at 557 (referring to "the specter of unlim-
ited and unpredictable liability," and stating that "the fear
of unlimited liability . . . [is] well founded"). The universe
GINSBURG, J., dissenting
of potential FELA plaintiffs, however, is hardly "infinite."
The statute does not govern the public at large. Only per-
sons "suffering injury . . . while employed'' by a railroad may
recover under the FELA, and to do so, the complainant must
show that the injury resulted from the railroad's negligence.
45 U. S. C. § 51. The Court expresses concern that the
approach Gottshall and Carlisle advocate would require
"[jludges ... to make highly subjective determinations con-
cerning the authenticity of claims for emotional infury, which
are far less susceptible to objective medical proof than are
their physical counterparts." Ante, at 552. One solution to
this problem — a solution the Court does not explore — would
be to require such "objective medical proof" and to exclude,
as too insubstantial to count as "injury," claims lacking this
proof.
IV
While recognizing today that emotional distress may qual-
ify as an "injury" compensable under the FELA, the Court
rejects the Court of Appeals' thoughtfully developed and
comprehensively explained approach as "inconsistent with
the principles embodied in the statute and with relevant
common-law doctrine." Ante, at 535. The Court's formu-
lation, requiring consistency with both the FELA and
"common-law doctrine," is odd, for there is no unitary com-
mon law governing claims for negligent infliction of emo-
tional distress.4 The "common law" of emotional distress
4 Throughout its opinion, the Court invokes "the common' la w" in the
singular. See, e. g., ante, at 551 ("The common law must inform the avail-
ability of a right to recover under FELA"); ante, at 552 ("The common
law consistently has sought to place limits on ... potential liability"); ante,
at 554 ("[T]he common law in 1908 did not allow [prejudgment] interest");
ante, at 557 ("[T]he common law restricts recovery"); ante, at 558 ("Car-
lisle's . . . claim plainly does not fall within the common law's conception
of the zone of danger"). But see Southern Pacific Co. v. Jensen, 244 U. S.
205, 222 (1917) (Holmes, J., dissenting) ("The common law is not a brooding
omnipresence in the sky but the articulate voice of some sovereign or
quasi-sovereign that can be identified .... It always is the law of some
State ").
572 CONSOLIDATED RAIL CORPORATION v. GOTTSHALL
GINSBUEG, J., dissenting
exists not in the singular, but emphatically in the plural; and
while the rule the Court has selected is consistent with one
common-law rule that some States have adopted, it is inevi-
tably inconsistent with others.
Most critically, the Court selects a common-law rule per-
haps appropriate were the task to choose a law governing
the generality of federal tort claims. The "zone" rule the
Court selects, however, seems to me inappropriate for a
federal statute designed to govern the discrete category of
on-the-job injuries sustained by railroad workers. In that
domain our charge from Congress is to fashion remedies con-
stantly "liberal," and appropriately "enlarged to meet chang-
ing conditions and changing concepts of industry's duty
toward its workers." Reman v. American Dredging Co.,
355 U. S., at 482. The Court's choice does not fit that bill.
Instead of the restrictive "zone" test that leaves severely
harmed workers remediless, however negligent their em-
ployers, the appropriate FELA claim threshold should be
keyed to the genuineness and gravity of the worker's injury.
In my view, the Court of Appeals developed the appro-
priate FELA common-law approach and correctly applied
that approach in these cases. I would therefore affirm the
Court of Appeals' judgments.
Syllabus
SHANNON v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 92-8346. Argued March 22, 1994— Decided June 24, 1994
In the Insanity Defense Reform Act of 1984 (IDRA or Act), Congress
made insanity an affirmative defense, created a special verdict of "not
guilty only by reason of insanity" (NGI), and established a comprehen-
sive civil commitment procedure* At his trial on a federal criminal
charge, petitioner Shannon raised the insanity defense and asked the
District Court to instruct the jury that an NGI verdict would result in
his involuntary commitment. The court refused, and the jury returned
a guilty verdict. In affirming, the Court of Appeals noted that, under
its pre-IDR A precedent, juries were not to be instructed concerning the
consequences of an insanity acquittal. Because there was no directive
in the IDRA to the contrary, the court "adhere[d] to the established
axiom that it is inappropriate for a jury to consider or be informed about
the consequences of its verdict."
Held: A federal district court is not required to instruct the jury regard-
ing the consequences to the defendant of an NGI verdict Pp. 579-588.
(a) The principle that juries are not to consider the consequences of
their verdicts is a reflection of the basic division of labor between the
judge as sentencer and the jury as trier of fact. Providing jurors sen-
tencing information invites them to ponder matters that are not within
their province, distracts them from their responsibilities, and creates a
strong possibility of confusion. Pp. 579-580.
(b) The IDRA does not require courts to depart from the foregoing
principle. The text of the Act gives no indication that jurors are to be
instructed regarding the consequences of an NGI verdict. The Court
rejects Shannon's contention that Congress, by modeling the IDRA on
D. C. Code Ann. § 24-301, impliedly adopted a D. C. Circuit decision that
endorsed the practice of giving the instruction in question in the context
of §24-301, Because Congress departed from the scheme embodied in
§24-301 in several significant ways when it passed the IDRA, the canon
of construction urged by Shannon — that adoption of the wording of a
statute from another legislative jurisdiction carries with it the jurisdic-
tion's judicial interpretations of that wording — is not applicable. The
single passage in the legislative history endorsing the giving of the
instruction in question is in no way anchored in the IDRA's text and
is not entitled to authoritative weight. Pp. 580-584.
Syllabus
(c) The instruction in question is not required as a matter of general
federal criminal practice. Even if Shannon is correct that some jurors
may harbor the mistaken belief that defendants found NGI will be re-
leased into society immediately, it must be assumed that his jury fol-
lowed its instructions to apply the law regardless of the consequences
and not to consider or discuss punishment. See Richardson v. Marsh,
481 U. S, 200, 206. Also unpersuasive is Shannon's contention that the
instruction would allay the fears of such misinformed jurors. Indeed,
because the only mandatory period of confinement under the IDEA is a
maximum of 40 days between an NGI verdict and a required commits
ment hearing, an instruction of the type at issue might incline jurors to
convict in order to eliminate the possibility that a dangerous defendant
could be released after 40 days or less. In any event, the instruction
would draw the jury's attention to the very thing— the possible conse-
quences of its verdict — that it should ignore. Moreover, Shannon offers
no principled way to limit the availability of such instructions to cases
involving NGI verdicts, as opposed to the many other aspects of the
criminal sentencing process with which jurors may be unfamiliar.
Given the comprehensive nature of Congress' review of the insanity de-
fense during the enactment of the IDEA, the Court will not invoke its
supervisory powers to require an instruction that Congress chose not
to mandate. Pp. 584-587.
(d) This decision should not be misunderstood as an absolute prohibi-
tion on instructing the jury with regard to the consequences of an NGI
verdict. An instruction of some form may be necessary under certain
limited circumstances to remedy a misstatement or error. That is not
the case here, however, for there is no indication that any improper
statement was made in the presence of the jury during Shannon's
trial. Pp. 587-588.
981 R 2d 759, affirmed.
THOMAS, J., delivered the opinion of the Court, in which EEHNQUIST,
C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, and GINSBURG, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J.,
joined, post, p. 588.
Thomas R. Trout, by appointment of the Court, 510 U. S.
943, argued the cause and filed briefs for petitioner.
Amy L. Wax argued the cause for the United States.
With her on the brief were Solicitor General Days, Assist-
Opinion of the Court
ant Attorney General Harris, Deputy Solicitor General
Bryson, and Deborah Watson*
JUSTICE THOMAS delivered the opinion of the Court.
In this case, we consider whether a federal district court
is required to instruct the jury regarding the consequences
to the defendant of a verdict of "not guilty by reason of in-
sanity/' either under the Insanity Defense Reform Act of
1984 or as a matter of general federal practice. We conclude
that such an instruction is not required, and therefore affirm.
I
A
Prior to the enactment of the Insanity Defense Reform
Act of 1984 (IDRA or Act), 18 U. S. C. §§ 17, 4241-4247,
federal courts generally did not recognize a verdict of
"not guilty by reason of insanity" (NGI). Defendants who
mounted a successful insanity defense — that is, those who
raised a reasonable doubt as to their sanity at the time of the
offense — were simply found "not guilty." See, e. g.9 United
States v. McCracken, 488 F. 2d 406, 409, 418 (CAS 1974);
Evalt v. United States, 359 F. 2d 534, 537 (CA9 1966). In
addition, there was no general federal civil commitment pro-
cedure available to ensure that an insanity acquittee would
receive proper care and treatment. Only in the District of
Columbia was a defendant who successfully presented an in-
sanity defense to a federal criminal charge subject to a fed-
eral commitment process — a process governed by a 1955 con-
gressional enactment. See 69 Stat. 609, as amended, D. C.
Code Ann. §24-301 (1981).1 Elsewhere, federal authorities
*Peter Margulies filed a brief for the Coalition for the Fundamental
Rights of Ex-Patients urging reversal.
*See also United States v. Brawner, 471 F. 2d 969, 996 (CADC 1972) (en
bane); United States v. Cohen, 733 F. 2d 128, 129-131 (CADC 1984) (en
bane); United States v. Thigpen, 4 F. 3d 1573, 1576, and n. 1 (CA11 1993)
(en bane), cert, pending, No. 93-6747.
Opinion of the Court
were forced to rely on the willingness of state authorities to
institute civil commitment proceedings. Reliance on state
cooperation was "at best a partial solution to a serious prob-
lem/' however, and federal courts "[t]ime and again . . . de-
cried this gaping statutory hole." McCracken, supra, at
417.
Before the IDRA was enacted, the Federal Courts of Ap-
peals generally disapproved of instructing the jury concern-
ing the post-trial consequences of an insanity acquittal.
Thus, jurors typically were given no information with regard
to what would happen to a defendant acquitted by reason of
insanity. The courts in general gave two reasons for disap-
proving such instructions. First, they pointed out that,
given the absence of a federal commitment procedure, the
consequences of an insanity acquittal were far from certain.
Second, they concluded that such instructions would run
afoul of the well-established principle that a jury is to base
its verdict on the evidence before it, without regard to the
possible consequences of the verdict. See, e. g., McCracken,
supra, at 423; Evalt, supra, at 546; United States v. Borum,
464 F. 2d 896, 900-901 (CA10 1972).
The only Court of Appeals to endorse the practice of in-
structing the jury regarding the consequences of an insanity
acquittal was the District of Columbia Circuit. See Lyles v.
United States, 254 F. 2d 725 (1957) (en bane), cert, denied, 356
U. S. 961 (1958). In Lyles, the District of Columbia Circuit
addressed the jury instruction question in the context of
D. C. Code Ann. §24-301 (1951 ed., Supp. V), which, unlike
generally applicable federal law, provided for a special ver-
dict of NGI and, as noted above, a civil commitment proce-
dure. The Lyles court recognized the "well established and
sound" doctrine "that the jury has no concern with the con-
sequences" of a verdict, but stated that the doctrine "d[id]
not apply" to the situation before it. 254 F. 2d, at 728. Ac-
cording to the court, although jurors generally were "aware
of the meanings of verdicts of guilty and not guilty," they
Opinion of the Court
were unfamiliar with the meaning of an NGI verdict. Ibid.
The court concluded that jurors had "a right to know" the
meaning of an NGI verdict "as accurately as [they] kno[w] by
common knowledge the meaning of the other two possible
verdicts." Ibid.
The acquittal of John Hinckley on all charges stemming
from his attempt on President Reagan's life, coupled with
the ensuing public focus on the insanity defense, prompted
Congress to undertake a comprehensive overhaul of the in-
sanity defense as it operated in the federal courts. The re-
sult of this effort was the IDEA. In the IDRA, Congress
made insanity an affirmative defense to be proved by the
defendant by clear and convincing evidence, and created a
special verdict of "not guilty only by reason of insanity." 18
U. S. C. §§ 17 and 4242(b). In addition, Congress filled the
"statutory hole" that had been identified by federal courts,
see McCracken, supra, by creating a comprehensive civil
commitment procedure. §4243. Under that procedure, a
defendant found NGI is held in custody pending a court
hearing, which must occur within 40 days of the verdict.
§4243(c). At the conclusion of the hearing, the court de-
termines whether the defendant should be hospitalized or
released. §§ 4243(d), (e).
B
At about 4 a.m. on August 25, 1990, a police officer stopped
petitioner Terry Lee Shannon, a convicted felon, on a street
in Tupelo, Mississippi. For reasons not explained in the rec-
ord before us, the officer asked Shannon to accompany him
to the station house to speak with a detective. After telling
the officer that he did not want to live anymore, Shannon
walked across the street, pulled a pistol from his coat, and
shot himself in the chest.
Shannon survived his suicide attempt and was indicted for
unlawful possession of a firearm by a felon in violation of 18
U. S. C. § 922(g)(l). At trial, he raised the insanity defense,
and asked the District Court to instruct the jury that he
Opinion of the Court
would be involuntarily committed if the jury returned an
NGI verdict.2 The District Court refused to give Shannon's
proposed charge. Instead, it instructed the jury "to apply
the law as [instructed] regardless of the consequence," and
that "punishment . . . should not enter your consideration
or discussion." App. A-27 to A-28. The jury returned a
guilty verdict.
The Court of Appeals for the Fifth Circuit affirmed Shan-
non's conviction. 981 F. 2d 759 (1993). The court noted
that under its pre-IDRA precedent, juries were not to be
instructed concerning the consequences of an insanity acquit-
tal. Id, at 761-762 (discussing United States v. McCracken,
488 F. 2d 406 (CAS 1974)). Turning to the text of the IDEA,
the court observed that Congress had "said nothing about
informing juries of the consequences" of an NGI verdict.
981 F. 2d, at 764. Because there was no "statutory require-
ment" to the contrary, the court "adhere[d] to the established
axiom that it is inappropriate for a jury to consider or be
informed about the consequences of its verdict." Ibid.B
2 Shannon asked the court to give either of the two following instruc-
tions: (1) " 'In the event it is your verdict that [Shannon] is not guilty only
by reason of insanity, it is required that the Court commit [him]'"; or (2)
" '[Y]ou should know that it is required that the Court commit [Shannon]
to a suitable hospital facility until such time as [he] does not pose a sub-
stantial risk of bodily injury to another or serious damage to the property
of another/ " App. A-22.
8 In addition to the court below, the Ninth and Eleventh Circuits re-
cently have reaffirmed their pre-IDRA holdings that juries generally
should not be instructed concerning the consequences of an insanity ac-
quittal See United States v. Frank, 956 R 2d 872, 880-882 (CA9 1991),
cert, denied, 506 U. S. 932 (1992); Thigpen, 4 F. 3d, at 1578. The Third
Circuit has held that the decision to give such an instruction should be
left to "the sound discretion of the trial judge." United States v. Fisher,
10 R 3d 115, 122 (1993), cert, pending, No. 93-7000. A panel of the Second
Circuit recently divided three ways on the issue. See United States v.
Blume, 967 R 2d 45, 50 (1992) (Newman, J., concurring) ("I believe the
instruction should always be given unless the defendant prefers its
omission. Judge Winter believes the instruction should normally not be
Opinion of the Court
We granted certiorari, 510 U. S. 943 (1993), in order to con-
sider whether federal district courts are required to instruct
juries with regard to the consequences of an NGI verdict.
II
It is well established that when a jury has no sentencing
function,4 it should be admonished to "reach its verdict with-
out regard to what sentence might be imposed." Rogers v.
United States, 422 U. S. 35, 40 (1975).5 The principle that
juries are not to consider the consequences of their verdicts
is a reflection of the basic division of labor in our legal system
between judge and jury. The jury's function is to find the
facts and to decide whether, on those facts, the defendant is
guilty of the crime charged. The judge, by contrast, im-
poses sentence on the defendant after the jury has arrived
at a guilty verdict. Information regarding the consequences
of a verdict is therefore irrelevant to the jury's task. More-
over, providing jurors sentencing information invites them
to ponder matters that are not within their province, dis-
tracts them from their factfinding responsibilities, and cre-
ates a strong possibility of confusion. See Pope v. United
States, 298 F. 2d 507, 508 (CA5 1962); cf. Rogers, supra, at 40.
Despite these familiar precepts, Shannon contends that an
instruction informing the jury of the consequences of an NGI
given. Judge Lumbard believes that the decision whether to give the
instruction should be left to the discretion of the trial judge").
4 Particularly in capital trials, juries may be given sentencing responsi-
bilities. See, e, g., Simmons v. South Carolina, ante, p. 154 It is undis-
puted that the jury had no such responsibilities in Shannon's case.
6 In Rogers, the jury had been deliberating for almost two hours without
reaching a verdict. After the trial court informed the jury that it would
accept a verdict of "Guilty as charged with extreme mercy of the Court,"
the jury returned such a verdict within minutes. 422 U. S., at 36-37 (in-
ternal quotation marks omitted). We concluded that, instead of giving
the jurors information about sentencing (that is, that they could recom-
mend "extreme mercy"), the trial court should have "admoni[shed] [them]
that [they] had no sentencing function and should reach [their] verdict
without regard to what sentence might be imposed." Id., at 40.
Opinion of the Court
verdict is required under the IDEA whenever requested by
the defendant. He also argues that such an instruction is
required as a matter of general federal criminal practice.
We address each argument in turn.
To determine whether Congress intended courts to depart
from the principle that jurors are not to be informed of the
consequences of their verdicts, we turn first, as always, to
the text of the statute. The IDEA refers to the subject of
jury instructions only once, and that reference occurs in its
description of the possible verdicts a jury may return.
Under the Act, "the jury shall be instructed to find . . . the
defendant — (1) guilty; (2) not guilty; or (3) not guilty only by
reason of insanity." 18 U. S. Q §4242(b). The text of the
Act gives no indication that jurors are to be instructed re-
garding the consequences of an NGI verdict. As the court
below observed, the Act "leaves the jury solely with its cus-
tomary determination of guilt or innocence." 981 F. 2d, at
763. The Act's text thus gives no support to Shannon's con-
tention that an instruction informing the jury of the conse-
quences of an NGI verdict is required.
Shannon asserts, however, that an express statutory direc-
tive is not necessary because, by modeling the IDEA on D. C.
Code Ann. §24-301 (1981),6 Congress impliedly adopted the
District of Columbia Circuit's decision in Lyles and the prac-
tice endorsed by that decision of instructing the jury as to
the consequences of an NGI verdict. For this argument he
relies on Capital Traction Co. v. Hof, 174 U. S. 1, 36 (1899),
in which we stated:
6 District of Columbia Code Ann. §24-301 continued to govern the
operation of the insanity defense in federal criminal prosecutions in the
District of Columbia until the passage of the IDEA. Cf United States
v. Crutchfield, 893 F. 2d 376, 377-379 (CADC 1990) (holding that the
IDEA applies prospectively to insanity acquittees committed after its
enactment).
Opinion of the Court
"By a familiar canon of interpretation, heretofore ap-
plied by this court whenever Congress . . . has borrowed
from the statutes of a State provisions which had re-
ceived in that State a known and settled construction
before their enactment by Congress, that construction
must be deemed to have been adopted by Congress to-
gether with the text which it expounded, and the provi-
sions must be construed as they were understood at the
time in the State."
See also Carolene Products Co. v. United States, 323 U. S.
18, 26 (1944) ("[T]he general rule [is] that adoption of the
wording of a statute from another legislative jurisdiction car-
ries with it the previous judicial interpretations of the word-
ing"); Cathcart v. Robinson, 5 Pet. 264, 280 (1831), The
canon of interpretation upon which Shannon relies, however,
is merely a "presumption of legislative intention" to be in-
voked only "under suitable conditions." Carolene Products,
supra, at 26. We believe that the "conditions" are not "suit-
able" in this case. Indeed, although Congress may have had
the District of Columbia Code in mind when it passed the
IDEA, see United States v. Crutchfield, 893 F. 2d 376, 378
(CADC 1990), it did not, in the language of Hof, "borrow"
the terms of the IDRA from the District of Columbia Code.
Rather, Congress departed from the scheme embodied in
D. C. Code Ann. § 24-301 in several significant ways.
The IDRA, for example, requires a defendant at trial to
prove insanity by clear and convincing evidence, 18 U. S, C.
§ 17(b); the District of Columbia statute, by contrast, employs
a preponderance standard, D. C. Code Ann. §24-301(j). A
commitment hearing must be held under the IDRA within
40 days of an NGI verdict, 18 U. S. C. §4243(c); the period is
50 days under the District of Columbia scheme, D. C. Code
Ann. §24-301(d)(2)(A). Under the IDRA, a defendant
whose offense involved bodily injury to another or serious
damage to another's property, or the substantial risk thereof,
must demonstrate at the hearing by clear and convincing evi-
Opinion of the Court
dence that he is entitled to release, 18 U. S. C. §4243(d);
under the District of Columbia scheme, an acquittee, regard-
less of the character of his offense, need only meet the pre-
ponderance standard, D. C. Code Ann. § 24-301(k)(3). The
IDRA provides that an acquittee, once committed, may be
released when he no longer presents a substantial risk of
harm to others or to their property, 18 U. S. C. § 4243(f ); an
acquittee under the District of Columbia system may be re-
leased from commitment when he "will not in the reasonable
future be dangerous to himself or others," D. C. Code Ann.
§24~301(e). Finally, in the IDRA, Congress rejected the
broad test for insanity that had been utilized under the Dis-
trict of Columbia provision,7 and instead adopted a more re-
strictive formulation under which a person is deemed insane
if he is unable "to appreciate the nature and quality or the
wrongfulness of his acts/' 18 U. S. C. § 17(a). We believe
that these significant differences between the IDRA and
D. C. Code Ann. §24-301 render the canon upon which Shan-
non relies inapplicable in this case.8
7 Under the District of Columbia system, the courts had defined insanity
as either the lack of substantial capacity to conform one's conduct to the
requirements of the law or the lack of substantial capacity to appreciate
the wrongfulness of one's acts. See Brawner, 471 F. 2d, at 973-995.
8 In addition, we note that the canon upon which Shannon relies is a
canon of statutory construction. It stems from the notion that a court,
in interpreting "borrowed" statutory language, should apply the same con-
struction to that language that was placed upon it by the courts in the
jurisdiction from which it was borrowed. In this case, however, the court
in the jurisdiction from which the statutory text was supposedly bor-
rowed— that is, the Lyles court — did not purport to construe the language
of the District of Columbia Code provision; rather, in holding that jurors
should be informed of the consequences of an NGI verdict, the court ap-
pears to have relied on its supervisory power over the Federal District
Courts in the District of Columbia. Cf infra, at 584. Thus, we conclude
that the canon is also inapplicable in this case because there was no
"known and settled construction," Capital Traction Co. v. Hof, 174 U. S.
1, 36 (1899), of the statute that Congress could have adopted by virtue of
borrowing language from the District of Columbia statutory scheme.
Opinion of the Court
Alternatively, Shannon contends that a provision explicitly
requiring the instruction is unnecessary for a different rea-
son: namely, that Congress made its intention to adopt the
Lyles practice crystal clear in the IDRA's legislative history.
In particular, Shannon points to the following statement in
the Senate Report:
"The Committee endorses the procedure used in the
District of Columbia whereby the jury, in a case in which
the insanity defense has been raised, may be instructed
on the effect of a verdict of not guilty by reason of insan-
ity. If the defendant requests that the instruction not
be given, it is within the discretion of the court whether
to give it or not." S. Rep. No. 98-225, p. 240 (1983)
(footnotes omitted).
Members of this Court have expressed differing views re-
garding the role that legislative history should play in statu-
tory interpretation. Compare County of Washington v.
Gunther, 452 U. S. 161, 182 (1981) (REHNQUIST, J., dissent-
ing) ("[I]t [is] well settled that the legislative history of a
statute is a useful guide to the intent of Congress"), with
Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 617
(1991) (SCALIA, J., concurring in judgment) (legislative his-
tory is "unreliable ... as a genuine indicator of congressional
intent")- We are not aware of any case, however (and Shan-
non does not bring one to our attention), in which we have
given authoritative weight to a single passage of legislative
history that is in no way anchored in the text of the statute.
On its face, the passage Shannon identifies does not purport
to explain or interpret any provision of the IDRA. Rather,
it merely conveys the Committee's "endorsement" of the
Lyles "procedure" — a procedure that Congress did not in-
clude in the text of the Act. To give effect to this snippet
of legislative history, we would have to abandon altogether
the text of the statute as a guide in the interpretative proc-
ess. We agree with the District of Columbia Circuit that
Opinion of the Court
"courts have no authority to enforce [a] principle] gleaned
solely from legislative history that has no statutory refer-
ence point." International Brotherhood of E lee. Workers,
Local Union No. 474, AFL-CIO v. NLRB, 814 F. 2d 697, 712
(1987) (emphasis deleted). We thus conclude that there is
no support in the Act for the instruction Shannon seeks.9
B
Setting the Act aside, Shannon argues that the instruction
he proposes is required as a matter of general federal crimi-
nal practice. Presumably, Shannon asks us to invoke our
supervisory power over the federal courts. According to
Shannon, the instruction is necessary because jurors are gen-
erally unfamiliar with the consequences of an NGI verdict,
and may erroneously believe that a defendant who is found
NGI will be immediately released into society. Jurors who
are under this mistaken impression, Shannon continues, may
also fear that the defendant, if released, would pose a danger
to the community. Shannon concludes that such jurors, in
order to ensure that the defendant will not be released, may
be tempted to return a guilty verdict in a case in which an
NGI verdict would be appropriate.
Even assuming Shannon is correct that some jurors will
harbor the mistaken belief that defendants found NGI will
be released into society immediately — an assumption that is
9 In the court below, Shannon made the additional argument that be-
cause Congress filled the "gap" that had been identified by the Federal
Courts of Appeals prior to the IDEA with a general federal civil commit-
ment procedure, "the practice announced in Lyles must now be applied
nationwide." 981 R 2d 759, 763 (CAS 1993). We find this argument
(which Shannon makes only implicitly before this Court) unpersuasive.
As noted above, although the lack of a federal commitment procedure be-
fore the passage of the IDEA was one reason for rejecting a Lyles-type
instruction, courts generally, and properly, relied additionally on the prin-
ciple that juries are not to be concerned with the consequences of then-
verdicts. This principle is not altered by the fact that Congress estab-
lished a civil commitment procedure. See Thigpen, 4 R 3d, at 1577.
Opinion of the Court
open to debate10 — the jury in his case was instructed "to
apply the law as [instructed] regardless of the consequence/'
and that "punishment . . . should not enter your consideration
or discussion/' App. A-27 to A-28. That an NGI verdict
was an option here gives us no reason to depart from "the
almost invariable assumption of the law that jurors follow
their instructions/' Richardson v. Marsh, 481 U. S. 200, 206
(1987). Indeed, although it may take effort on a juror's part
to ignore the potential consequences of the verdict, the effort
required in a case in which an NGI defense is raised is no
different from that required in many other situations. For
example, if the Government fails to meet its burden of proof
at trial, our judicial system necessarily assumes that a juror
will vote to acquit, rather than to convict, even if he is con-
vinced the defendant is highly dangerous and should be in-
carcerated. We do not believe that the situation involving
an NGI verdict should be treated any differently.
We also are not persuaded that the instruction Shannon
proposes would allay the fears of the misinformed juror
about whom Shannon is concerned. "[I]f the members of a
jury are so fearful of a particular defendant's release that
they would violate their oaths by convicting [the defendant]
solely in order to ensure that he is not set free, it is question-
able whether they would be reassured by anything short of
an instruction strongly suggesting that the defendant, if
found NGI, would very likely be civilly committed for a
10 We are not convinced that jurors are as unfamiliar with the conse-
quences of an NGI verdict as Shannon suggests. It may have been the
case in 1957 that, in contrast to verdicts of guilty and not guilty, "a verdict
of not guilty by reason of insanity ha[d] no ... commonly understood
meaning." Lyles v. United States, 254 R 2d 725, 728 (CADC 1957) (en
bane), cert, denied, 356 U. S. 961 (1958). Today, however, there is no rea-
son to assume that jurors believe that defendants found NGI are immedi-
ately set free. See Fisher, 10 R 3d, at 122 ("[H]ighly publicized cases,
such as that involving John Hinckley, have dramatized the possibility of
civil commitment following an NGI verdict"). See also Blume, 967 R 2d,
at 54 (Winter, J., concurring in result).
lengthy period/' United States v. Fisher, 10 R 3d 115, 122
(CAS 1993), cert, pending, No. 93-7000. An accurate in-
struction about the consequences of an NGI verdict, how-
ever, would give no such assurance. Under the IDRA, a
postverdict hearing must be held within 40 days to deter-
mine whether the defendant should be released immediately
into society or hospitalized. See 18 U. S. C. §§4243(c), (d).
Thus, the only mandatory period of confinement for an insan-
ity acquittee is the period between the verdict and the hear-
ing. Instead of encouraging a juror to return an NGI ver-
dict, as Shannon predicts, such information might have the
opposite effect— that is, a juror might vote to convict in
order to eliminate the possibility that a dangerous defendant
could be released after 40 days or less.11 Whether the
instruction works to the advantage or disadvantage of a
defendant is, of course, somewhat beside the point. Our
central concern here is that the inevitable result of such
an instruction would be to draw the jury's attention toward
the very thing — the possible consequences of its verdict —
it should ignore.
Moreover, Shannon offers us no principled way to limit the
availability of instructions detailing the consequences of a
verdict to cases in which an NGI defense is raised. Jurors
may be as unfamiliar with other aspects of the criminal sen-
tencing process as they are with NGI verdicts. But, as a
general matter, jurors are not informed of mandatory mini-
mum or maximum sentences, nor are they instructed regard-
11 As the court below observed, "a jury could assume that due to over-
crowded mental hospitals, strapped social services budgets, sympathetic
judges, etc., a defendant will be released after only a short period of com-
mitment. To combat the prospect of early release, the jury could simply
opt to find him guilty." 981 R 2d, at 763, n. 6. Indeed, depending upon
the content of the instruction, information regarding the consequences of
an NGI verdict could influence a juror's decision in countless — and unpre-
dictable—ways. See, e. g., Fisher, supra, at 121-122, and n. 7 (describing
various scenarios in which sentencing information could induce compro-
mise verdicts in the NGI context).
Opinion of the Court
ing probation, parole, or the sentencing range accompanying
a lesser included offense. See United States v. Thigpen, 4
F. 3d 1573, 1578 (CA11 1993) (en bane), cert, pending, No.
93-6747; United States v. Frank, 956 F. 2d 872, 879 (CA9
1991), cert, denied, 506 U. S. 932 (1992). Because it is con-
ceivable that some jurors might harbor misunderstandings
with regard to these sentencing options, a district court,
under Shannon's reasoning, might be obligated to give juries
information regarding these possibilities as well. In short,
if we pursue the logic of Shannon's position, the rule against
informing jurors of the consequences of their verdicts would
soon be swallowed by the exceptions.
Finally, Congress' recent action in this area counsels hesi-
tation in invoking our supervisory powers. As noted above,
the IDEA was the product of a thorough and exhaustive re-
view of the insanity defense as used in the federal courts.
Given the comprehensive nature of the task before it, Con-
gress certainly could have included a provision requiring the
instruction Shannon seeks. For whatever reason, Congress
chose not to do so. Under these circumstances, we are re-
luctant to depart from well-established principles of criminal
practice without more explicit guidance from Congress.
Ill
Although we conclude that the IDEA does not require an
instruction concerning the consequences of an NGI verdict,
and that such an instruction is not to be given as a matter
of general practice, we recognize that an instruction of some
form may be necessary under certain limited circumstances.
If, for example, a witness or prosecutor states in the pres-
ence of the jury that a particular defendant would "go free"
if found NGI, it may be necessary for the district court to
intervene with an instruction to counter such a misstate-
ment. The appropriate response, of course, will vary as is
necessary to remedy the specific misstatement or error. We
note this possibility merely so that our decision will not be
STEVENS, J., dissenting
misunderstood as an absolute prohibition on instructing the
jury with regard to the consequences of an NGI verdict.
Our observations in this regard are not applicable to Shan-
non's situation, however, for there is no indication that any
improper statement was made in the presence of the jury
during his trial
* * *
Because the District Court properly refused to give the
instruction Shannon requested, we affirm.
So ordered.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins,
dissenting.
A rule that has minimized the risk of injustice for almost
40 years should not be abandoned without good reason. In
1957, shortly after Congress enacted the statute providing
for civil commitment of persons found not guilty by reason
of insanity in trials conducted in the District of Columbia,
the Court of Appeals, sitting in bane, considered whether
juries should be instructed about the significance of that pro-
vision. Recognizing that an uninformed jury might errone-
ously find an insane defendant guilty to avoid the risk that a
dangerous individual would otherwise go free, the court held
that such an instruction should be given. Lyles v. United
States, 254 F. 2d 725 (CADC 1957), cert, denied, 356 U. S. 961
(1958). In an opinion jointly authored by Judge Prettyman
and then-Judge Warren Burger, the court explained that the
doctrine that the jury has no concern with the consequences
of a verdict "does not apply in the problem before us":
"The issue of insanity having been fairly raised, the
jury may return one of three verdicts, guilty, not guilty,
or not guilty by reason of insanity. Jurors, in common
with people in general, are aware of the meanings of
verdicts of guilty and not guilty. . . . But a verdict of
not guilty by reason of insanity has no such commonly
understood meaning. ... It means neither freedom nor
STEVENS, J., dissenting
punishment. It means the accused will be confined in a
hospital for the mentally ill until the superintendent of
such hospital certifies, and the court is satisfied, that
such person has recovered his sanity and will not in the
reasonable future be dangerous to himself or others.
We think the jury has a right to know the meaning of
this possible verdict as accurately as it knows by com-
mon knowledge the meaning of the other two possible
verdicts." Lyles, 254 R 2d, at 728.
Concurring with this part of the foregoing opinion, Judge
Bazelon acknowledged that "[t]he false assumption that ac-
quittal by reason of insanity, like outright acquittal, frees the
accused to walk out on the streets may lead juries to convict,
despite strong evidence of insanity at the time of the crime."
Id., at 734. Trial courts in the District of Columbia have
used a pattern instruction — approved by prosecutors, de-
fense counsel, and trial judges — ever since.1
Other federal courts did not give a comparable instruction
prior to 1984 because no federal statute authorized civil com-
mitment for insanity acquittees except in the District of Co-
lumbia. In those courts, an instruction advising the jury
about the consequences of a verdict of not guilty by reason
of insanity — often that such a defendant would, indeed, go
free — would have tended to increase the risk of improper
convictions. It was therefore appropriate for federal judges
to adhere to the general rule that the jury should be in-
structed to base its decision on the evidence before it, with-
1 Instruction 5.11 in the 1978 edition of the District of Columbia Crimi-
nal Jury Instructions reads:
"If the defendant is found not guilty by reason of insanity it becomes
the duty of the court to commit him to St. Elizabeths Hospital There
will be a hearing within 50 days to determine whether the defendant is
entitled to release. In that hearing the defendant has the burden of proof.
The defendant will remain in custody, and will be entitled to release from
custody only if the court finds by a preponderance of the evidence that he
is not likely to injure himself or other persons due to mental illness."
STEVENS, J., dissenting
out regard to the possible consequences of its verdict. That
rule, of course, was primarily designed to protect defendants
from the risk that jurors might otherwise improperly rely on
matters such as sympathy for the victim, arguments of coun-
sel, or inadmissible comments in the courtroom.
When Congress enacted the Insanity Defense Reform Act
of 1984 (Act), 18 U. S. C, §§ 17, 4241-4247, it established a
civil commitment process for the entire federal system, thus
making the basis for the District of Columbia Circuit's hold-
ing in Lyles applicable to all federal courts. The Act's legis-
lative history unmistakably demonstrates that the Act's
sponsors assumed that the Lyles precedent would thereafter
be followed nationwide. See ante, at 583. That assumption
does not have the force of a statutory mandate, but it verifies
that thoughtful legislators familiar with the issue believed
that precedent to be entirely sound. That this Court should
now decide to change an established rule that Congress ac-
cepted and that protects defendants meaningfully against an
obvious risk of injustice is startling — particularly when that
change is for no reason other than a perceived inconsistency
with another rule that is generally protective of defendants'
rights. A far wiser disposition would allow the defendant
to choose between the two rules, rather than tilt the scales
to favor the prosecutor in every case.
The incongruity of the Court's holding is compounded by
its selection of Rogers v. United States, 422 U. S. 35 (1975),
as its authority for what it calls the "principle" that juries
should not consider the consequences of their verdict. Ante,
at 579. It is worth noting that the writer of the Court's
opinion in Rogers — Chief Justice Burger — was also one of
the authors of Lyles. In Rogers, the jury had sent the judge
a note asking whether he would accept a verdict of "Guilty as
charged with extreme mercy of the Court"; when the court
answered yes, the jury returned five minutes later with that
verdict. Rogers, 422 U. S., at 36-37. What Rogers held is
STEVENS, J., dissenting
that the guilty verdict had to be set aside because the court
had violated Rule 43 of the Federal Rules of Criminal Proce-
dure by responding to an inquiry from the jury without ad-
vising defense counsel Id., at 40-41. The Court also con-
sidered the judge's response to be misleading because it did
not advise the jury that their recommendation of mercy
would not be binding on the court. Ibid. In that context,
the failure to admonish the jury that it should reach its ver-
dict without regard to what sentence might be imposed was
prejudicial to the defendant. Instead of supporting the ma-
jority's view, the case is more relevant for its illustration of
how concerned juries are about the actual consequences of
their verdicts. When there is a realistic danger that jurors'
deliberations may be distorted by an incorrect assumption
about those consequences, elementary notions of fairness de-
mand that a clarifying instruction be given.
The Court suggests that the instruction might actually
prejudice the defendant. Ante, at 585-586. That argu-
ment lacks merit, as there is no need to give the instruction
unless the defendant requests it. Alternatively, the Court
advances the tired argument that if we followed the practice
approved in Lyles, "the rule against informing jurors of the
consequences- of their verdicts would soon be swallowed by
the exceptions," ante, at 587. Given that the Lyles rule has
survived in the District since 1957 without such conse-
quences, this concern is illusory. Some courts have assumed
that the instruction would help jurors focus on issues of guilt
instead of punishment. "Freed from confusion and fear as
to the practical effect of a verdict of not guilty by reason of
insanity, jurors should be able to decide the insanity issue
solely on the evidence and law governing the defense."
State v. Shickles, 760 P. 2d 291, 298 (Utah 1988). Rather
than relying on a totally unsubstantiated qualm belied by
history, it would be far wiser for the Court simply to recog-
nize both the seriousness of the harm that may result from
STEVENS, J., dissenting
the refusal to give the instruction and the absence of any
identifiable countervailing harm that may result from giv-
ing it.
The Court also contends that jurors today are more famil-
iar with the consequences of a verdict of not guilty by reason
of insanity than they were in 1957 when Lyles was decided.
Ante, at 584, n. 9. No one has suggested, however, that the
level of understanding even approximates that of the conven-
tional choice between "guilty" and "not guilty." Indeed, one
recent study concluded that "the public overestimates the
extent to which insanity acquittees are released upon acquit-
tal and underestimates the extent to which they are hospi-
talized as well as the length of confinement of insanity ac-
quittees who are sent to mental hospitals."2 As long as
significant numbers of potential jurors believe that an insan-
ity acquittee will be released at once, the instruction serves
a critical purpose. Yet even if, as the Court seems prepared
to assume, all jurors are already knowledgeable about the
issue, surely telling them what they already know can do
no harm.
An increasing number of States that have considered the
question endorses use of the instruction,3 as has the Ameri-
can Bar Association.4 Judge Newman's succinct assessment
2 Silver, Cirincione, and Steadman, Demythologizing Inaccurate Percep-
tions of the Insanity Defense, 18 Law and Human Behavior 63, 68 (Feb.
1994).
3 See, e. g., Erdman v. State, 315 Md. 46, 553 A. 2d 244 (1989); State v.
Shickles, 760 P. 2d 291 (Utah 1988); People v. Young, 189 Gal. App. 3d 891,
234 CaL Rptr. 819 (1987); People v. Thomson, 197 Colo. 232, 591 P. 2d 1031
(1979); Commonwealth v. Mulgrew, 475 Pa. 271, 380 A. 2d 349 (1977); Rob-
erts v. State, 335 So. 2d 285 (Fla. 1976); Commonwealth v. Mutina, 366
Mass. 810, 323 N. E. 2d 294 (1975); State v. Babin, 319 So. 2d 367 (La.
1975). See also Fleming, Instructions in State Criminal Case in Which
Defendant Pleads Insanity as to Hospital Confinement in Event of Acquit-
tal, 81 A, L. R. 4th 659, 667 (1990) (noting "an apparent trend toward
requiring or authorizing a jury instruction on the legal consequences of an
insanity acquittal").
4 ABA Criminal Justice Mental Health Standards §7-6.8 (1989).
Cite as: 512 U. S. 573 (1994) 593
STEVENS, J., dissenting
of the pros and cons is exactly right: "There is no reason to
keep this information from the jurors and every reason to
make them aware of it." United States v. Blume, 967 F. 2d
45, 52 (CA2 1992) (concurring opinion).
I respectfully dissent.
594 OCTOBEK T&KM,
Syllabus
WILLIAMSON v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 93-5256. Argued April 25, 1994— Decided June 27, 1994
After Reginald Harris refused to testify at petitioner Williamson's federal
trial on cocaine possession and distribution charges, the District Court
ruled that, under Federal Rule of Evidence 804(b)(3)'s hearsay exception
for statements against penal interest, a Drug Enforcement Administra-
tion agent could recount two custodial interviews in which Harris had
freely confessed to receiving and transporting the drugs in question,
but also implicated Williamson as the drugs' owner. Williamson was
eventually convicted, and the Court of Appeals affirmed.
Held' The judgment is vacated, and the case is remanded.
981 F. 2d 1262, vacated and remanded.
JUSTICE O'CONNOR delivered the opinion of the Court with respect
to Parts I, II-A, and II-B, concluding:
1. The most faithful reading of Rule 804(b)(3) — which renders admis-
sible "statements] which ... so far ten[d] to subject the declarant to ...
criminal liability . . . that a reasonable person . . . would not have made
[them] unless believing [them] to be true" — is that it does not allow
admission of non-self-inculpatory statements, even if they are made
within a broader narrative that is generally self-inculpatory. Although
the statutory term "statement" can mean either an extended declaration
or a single remark, the principle behind the Rule, so far as it is discern-
ible from the text, points clearly to the narrower reading, so that only
those remarks within a confession that are individually self-inculpatory
are covered. The Rule is founded on the commonsense notion that rea-
sonable people, even those who are not especially honest, tend not to
make self-inculpatory statements unless they believe them to be true.
This notion does not extend to a confession's non-self-inculpatory
parts — to parts that are actually self-exculpatory, or to collateral state-
ments, even ones that are neutral as to interest. A district court may
not just assume that a statement is self-inculpatory because it is part of
a fuller confession, especially when the statement implicates someone
else. The policy expressed in the Rule's text is clear enough that it
outweighs whatever force lies in ambiguous statements contained in the
Advisory Committee Notes to the Rule. Pp. 598-602.
2. The foregoing reading does not eviscerate the against penal inter-
est exception. There are many circumstances in which Rule 804(b)(3)
Syllabus
does allow the admission of statements that inculpate a criminal defend-
ant. Even the confessions of arrested accomplices may be admissible if
they are truly self-inculpatory, rather than merely attempts to shift
blame or curry favor. The question under the Rule is always whether
the statement at issue was sufficiently against the declarant's penal in-
terest under the Rule's language, and this question can only be an-
swered in light of all the surrounding circumstances. Pp. 602-604.
JUSTICE O'CONNOR, joined by JUSTICE SCALIA, concluded in Part
II-C that, on remand, the Court of Appeals must inquire in the first
instance whether each of the statements in Harris' confession was truly
self-inculpatory. Pp. 604-605.
O'CONNOR, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II-A, and II-B, in which
BLACKMUN, STEVENS, SCALIA, SOUTER, and GINSBURG, JJ., joined, and an
opinion with respect to Part II-C, in which SCALIA, J., joined. SCALIA,
J., filed a concurring opinion, post, p. 605. GINSBURG, J., filed an opinion
concurring in part and concurring in the judgment, in which BLACKMUN,
STEVENS, and SOUTER, JJ., joined, post, p. 607. KENNEDY, J., filed an
opinion concurring in the judgment, in which REHNQUIST, C. J., and
THOMAS, J., joined, post, p. 611.
Benjamin S. Waxman argued the cause and filed briefs
for petitioner.
John F. Manning argued the cause for the United States.
With him on the brief were Solicitor General Days and
Assistant Attorney General Harris.*
*Briefs of amid curiae urging affirmance were filed for the State of
California et al. by Daniel E. Lungren, Attorney General of California,
and M Howard Wayne, Deputy Attorney General, and by the Attorneys
General for their respective jurisdictions as follows: Larry EchoHawk of
Idaho, Pamela Carter of Indiana, Robert T Stephan of Kansas, Chris Gor-
man of Kentucky, Richard P. leyoub of Louisiana, J. Joseph Curran, Jr.,
of Maryland, Frank J. Kelley of Michigan, Joseph P. Mazurek of Montana,
Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Michael F.
Easley of North Carolina, Lee Fisher of Ohio, Jeffrey B. Pine of Rhode
Island, T. Travis Medlock of South Carolina, Jan Graham of Utah, Jef-
frey L. Amestoy of Vermont, and James S. Gilmore III of Virginia;
and for Wayne County, Michigan, by John D. O'Hair and Timothy A.
Bavghman.
Opinion of the Court
JUSTICE O'CONNOR delivered the opinion of the Court,
except as to Part II-C.
In this case we clarify the scope of the hearsay exception
for statements against penal interest. Fed. Rule Evid.
804(b)(3).
I
A deputy sheriff stopped the rental car driven by Reginald
Harris for weaving on the highway. Harris consented to a
search of the car, which revealed 19 kilograms of cocaine in
two suitcases in the trunk. Harris was promptly arrested.
Shortly after Harris' arrest, Special Agent Donald Walton
of the Drug Enforcement Administration (DE A) interviewed
him by telephone. During that conversation, Harris said
that he got the cocaine from an unidentified Cuban in Fort
Lauderdale; that the cocaine belonged to petitioner William-
son; and that it was to be delivered that night to a particular
dumpster. Williamson was also connected to Harris by
physical evidence: The luggage bore the initials of William-
son's sister, Williamson was listed as an additional driver on
the car rental agreement, and an envelope addressed to Wil-
liamson and a receipt with Williamson's girlfriend's address
were found in the glove compartment.
Several hours later, Agent Walton spoke to Harris in per-
son. During that interview, Harris said he had rented the
car a few days earlier and had driven it to Fort Lauderdale
to meet Williamson. According to Harris, he had gotten the
cocaine from a Cuban who was Williamson's acquaintance,
and the Cuban had put the cocaine in the car with a note
telling Harris how to deliver the drugs. Harris repeated
that he had been instructed to leave the drugs in a certain
dumpster, to return to his car, and to leave without waiting
for anyone to pick up the drugs.
Agent Walton then took steps to arrange a controlled de-
livery of the cocaine. But as Walton was preparing to leave
the interview room, Harris "got out of [his] chair . . . and . . .
Opinion of the Court
took a half step toward [Walton] . . . and . . . said, ... 1 can't
let you do that/ threw his hands up and said 'that's not true,
I can't let you go up there for no reason/ " App. 40. Harris
told Walton he had lied about the Cuban, the note, and the
dumpster. The real story, Harris said, was that he was
transporting the cocaine to Atlanta for Williamson, and that
Williamson was traveling in front of him in another rental
car. Harris added that after his car was stopped, William-
son turned around and drove past the location of the stop,
where he could see Harris' car with its trunk open. Ibid.
Because Williamson had apparently seen the police searching
the car, Harris explained that it would be impossible to make
a controlled delivery. Id., at 41.
Harris told Walton that he had lied about the source of the
drugs because he was afraid of Williamson, Id., at 61, 68;
see also id., at 30-31. Though Harris freely implicated him-
self, he did not want his story to be recorded, and he refused
to sign a written version of the statement. Id., at 24-25.
Walton testified that he had promised to report any coop-
eration by Harris to the Assistant United States Attorney.
Walton said Harris was not promised any reward or other
benefit for cooperating. Id., at 25-26.
Williamson was eventually convicted of possessing cocaine
with intent to distribute, conspiring to possess cocaine with
intent to distribute, and traveling interstate to promote the
distribution of cocaine, 21 U. S. C. §§ 841(a)(l), 846; 18 U. S. C.
§ 1952. When called to testify at Williamson's trial, Harris
refused, even though the prosecution gave him use immunity
and the court ordered him to testify and eventually held him
in contempt. The District Court then ruled that, under
Rule 804(b)(3), Agent Walton could relate what Harris had
said to him:
"The ruling of the Court is that the statements . . . are
admissible under [Rule 804(b)(3)], which deals with
statements against interest.
Opinion of the Court
"First, defendant Harris' statements clearly impli-
cated himself, and therefore, are against his penal
interest.
"Second, defendant Harris, the declarant, is
unavailable.
"And third, as I found yesterday, there are sufficient
corroborating circumstances in this case to ensure the
trustworthiness of his testimony. Therefore, under
[United States v. Harrell, 788 F. 2d 1524 (CA11 1986)],
these statements by defendant Harris implicating [Wil-
liamson] are admissible." App. 51-52.
Williamson appealed his conviction, claiming that the ad-
mission of Harris' statements violated Rule 804(b)(3) and the
Confrontation Clause of the Sixth Amendment. The Court
of Appeals for the Eleventh Circuit affirmed without opinion,
judgt. order reported at 981 F. 2d 1262 (1992), and we
granted certiorari. 510 U. S. 1039 (1994).
II
A
The hearsay rule, Fed. Rule Evid. 802, is premised on the
theory that out-of-court statements are subject to particular
hazards. The declarant might be lying; he might have mis-
perceived the events which he relates; he might have faulty
memory; his words might be misunderstood or taken out of
context by the listener. And the ways in which these dan-
gers are minimized for in-court statements — the oath, the
witness' awareness of the gravity of the proceedings, the
jury's ability to observe the witness' demeanor, and, most
importantly, the right of the opponent to cross-examine — are
generally absent for things said out of court.
Nonetheless, the Federal Rules of Evidence also recognize
that some kinds of out-of-court statements are less subject
to these hearsay dangers, and therefore except them from
the general rule that hearsay is inadmissible. One such cat-
Opinion of the Court
"First, defendant Harris' statements clearly impli-
cated himself, and therefore, are against his penal
interest.
"Second, defendant Harris, the declarant, is
unavailable.
"And third, as I found yesterday, there are sufficient
corroborating circumstances in this case to ensure the
trustworthiness of his testimony. Therefore, under
[United States v. Harrell, 788 F. 2d 1524 (CA11 1986)],
these statements by defendant Harris implicating [Wil-
liamson] are admissible." App. 51-52.
Williamson appealed his conviction, claiming that the ad-
mission of Harris' statements violated Rule 804(b)(3) and the
Confrontation Clause of the Sixth Amendment. The Court
of Appeals for the Eleventh Circuit affirmed without opinion,
judgt. order reported at 981 F. 2d 1262 (1992), and we
granted certiorari. 510 U. S. 1039 (1994).
II
A
The hearsay rule, Fed. Rule Evid. 802, is premised on the
theory that out-of-court statements are subject to particular
hazards. The declarant might be lying; he might have mis-
perceived the events which he relates; he might have faulty
memory; his words might be misunderstood or taken out of
context by the listener. And the ways in which these dan-
gers are minimized for in-court statements — the oath, the
witness' awareness of the gravity of the proceedings, the
jury's ability to observe the witness' demeanor, and, most
importantly, the right of the opponent to cross-examine — are
generally absent for things said out of court.
Nonetheless, the Federal Rules of Evidence also recognize
that some kinds of out-of-court statements are less subject
to these hearsay dangers, and therefore except them from
the general rule that hearsay is inadmissible. One such cat-
Opinion of the Court
egory covers statements that are against the declarant's
interest:
"statements] which ... at the time of [their] making . . .
so far tended to subject the declarant to ... criminal
liability . . . that a reasonable person in the declarant's
position would not have made the statement[s] unless
believing [them] to be true." Fed. Rule Evid. 804(b)(3).
To decide whether Harris' confession is made admissible
by Rule 804(b)(3), we must first determine what the Rule
means by "statement," which Federal Rule of Evidence
801(a)(l) defines as "an oral or written assertion." One pos-
sible meaning, "a report or narrative," Webster's Third New
International Dictionary 2229, defh. 2(a) (1961), connotes an
extended declaration. Under this reading, Harris7 entire
confession— even if it contains both self-inculpatory and
non-self-inculpatory parts — would be admissible so long as
in the aggregate the confession sufficiently inculpates him.
Another meaning of "statement," "a single declaration or re-
mark," ibid., defh. 2(b), would make Rule 804(b)(3) cover only
those declarations or remarks within the confession that are
individually self-inculpatory. See also id., at 131 (defining
"assertion" as a "declaration"); id., at 586 (defining "declara-
tion" as a "statement").
Although the text of the Rule does not directly resolve the
matter, the principle behind the Rule, so far as it is discern-
ible from the text, points clearly to the narrower reading.
Rule 804(b)(3) is founded on the commonsense notion that
reasonable people, even reasonable people who are not espe-
cially honest, tend not to make self-inculpatory statements
unless they believe them to be true. This notion simply
does not extend to the broader definition of "statement."
The fact that a person is making a broadly self-inculpatory
confession does not make more credible the confession's non-
self-inculpatory parts. One of the most effective ways to lie
Opinion of the Court
is to mix falsehood with truth, especially truth that seems
particularly persuasive because of its self-inculpatory nature.
In this respect, it is telling that the non-self-inculpatory
things Harris said in his first statement actually proved to
be false, as Harris himself admitted during the second inter-
rogation. And when part of the confession is actually self-
exculpatory, the generalization on which Rule 804(b)(3)
is founded becomes even less applicable. Self-exculpatory
statements are exactly the ones which people are most likely
to make even when they are false; and mere proximity to
other, self-inculpatory, statements does not increase the
plausibility of the self-exculpatory statements.
We therefore cannot agree with JUSTICE KENNEDY'S sug-
gestion that the Rule can be read as expressing a policy that
collateral statements — even ones that are not in any way
against the declarant's interest — are admissible, post, at 614.
Nothing in the text of Rule 804(b)(3) or the general theory
of the hearsay Rules suggests that admissibility should turn
on whether a statement is collateral to a self-inculpatory
statement. The fact that a statement is self-inculpatory
does make it more reliable; but the fact that a statement is
collateral to a self-inculpatory statement says nothing at all
about the collateral statement's reliability. We see no rea-
son why collateral statements, even ones that are neutral
as to interest, post, at 617-619 (KENNEDY, J., concurring in
judgment), should be treated any differently from other
hearsay statements that are generally excluded.
Congress certainly could, subject to the constraints of the
Confrontation Clause, make statements admissible based on
their proximity to self-inculpatory statements. But we will
not lightly assume that the ambiguous language means any-
thing so inconsistent with the Rule's underlying theory.
See Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 394-395,
408-409 (1990). In our view, the most faithful reading of
Rule 804(b)(3) is that it does not allow admission of non-self-
inculpatory statements, even if they are made within a
Opinion of the Court
broader narrative that is generally self-inculpatory. The
district court may not just assume for purposes of Rule
804(b)(3) that a statement is self-inculpatory because it is
part of a fuller confession, and this is especially true when
the statement implicates someone else. "[T]he arrest state-
ments of a codefendant have traditionally been viewed with
special suspicion. Due to his strong motivation to implicate
the defendant and to exonerate himself, a codefendant's
statements about what the defendant said or did are less
credible than ordinary hearsay evidence." Lee v. Illinois,
476 U. S. 530, 541 (1986) (internal quotation marks omitted);
see also Bruton v. United States, 391 U. S. 123, 136 (1968);
Dutton v. Evans, 400 U. S. 74, 98 (1970) (Harlan, J., concur-
ring in result).
JUSTICE KENNEDY suggests that the Advisory Commit-
tee's Notes to Rule 804(b)(3) should be read as endorsing
the position we reject — that an entire narrative, including
non-self-inculpatory parts (but excluding the clearly self-
serving parts, post, at 620), may be admissible if it is in
the aggregate self-inculpatory. See post, at 614-615. The
Notes read, in relevant part:
"[T]he third-party confession . . . may include state-
ments implicating [the accused], and under the general
theory of declarations against interest they would be ad-
missible as related statements. . . . [Douglas v. Alabama,
380 U. S. 415 (1965), and Bruton v. United States, 391
U. S. 123 (1968),] ... by no means require that all state-
ments implicating another person be excluded from the
category of declarations against interest. Whether a
statement is in fact against interest must be determined
from the circumstances of each case. Thus a statement
admitting guilt and implicating another person, made
while in custody, may well be motivated by a desire to
curry favor with the authorities and hence fail to qualify
as against interest. ... On the other hand, the same
Opinion of the Court
words spoken under different circumstances, e. g., to an
acquaintance, would have no difficulty in qualifying. . . .
"The balancing of self-serving against dissenting [sic]
aspects of a declaration is discussed in McCormick
§256." 28 U. S. C. App., p. 790.
This language, however, is not particularly clear, and some
of it — especially the Advisory Committee's endorsement of
the position taken by Dean McCormick's treatise — points the
other way:
"A certain latitude as to contextual statements, neutral
as to interest, giving meaning to the declaration against
interest seems defensible, but bringing in self-serving
statements contextually seems questionable.
". . . [A]dmit[ting] the disserving parts of the declara-
tion, and excluding] the self-serving parts . . . seems
the most realistic method of adjusting admissibility to
trustworthiness, where the serving and disserving parts
can be severed/' See C. McCormick, Law of Evidence
§256, pp. 552-553 (1954) (footnotes omitted).
Without deciding exactly how much weight to give the Notes
in this particular situation, compare Schiavone v. Fortune,
477 U. S. 21, 31 (1986) (Notes are to be given some weight),
with Green v. Bock Laundry Machine Co., 490 U. S. 504, 528
(1989) (SCALIA, J., concurring in judgment) (Notes ought to
be given no weight), we conclude that the policy expressed
in the Rule's text points clearly enough in one direction that
it outweighs whatever force the Notes may have. And
though JUSTICE KENNEDY believes that the text can fairly
be read as expressing a policy of admitting collateral state-
ments, post, at 614, for the reasons given above we disagree.
B
We also do not share JUSTICE KENNEDY'S fears that our
reading of the Rule "eviscerate[s] the against penal interest
Opinion of the Court
exception," post, at 616 (internal quotation marks omitted),
or makes it lack "meaningful effect," ibid. There are many
circumstances in which Rule 804(b)(3) does allow the admis-
sion of statements that inculpate a criminal defendant.
Even the confessions of arrested accomplices may be admis-
sible if they are truly self-inculpatory, rather than merely
attempts to shift blame or curry favor.
For instance, a declarant's squarely self-inculpatory con-
fession— "yes, I killed X" — will likely be admissible under
Rule 804(b)(3) against accomplices of his who are being tried
under a co-conspirator liability theory. See Pinkerton v.
United States, 328 U. S. 640, 647 (1946). Likewise, by show-
ing that the declarant knew something, a self-inculpatory
statement can in some situations help the jury infer that his
confederates knew it as well. And when seen with other
evidence, an accomplice's self-inculpatory statement can in-
culpate the defendant directly: "I was robbing the bank on
Friday morning," coupled with someone's testimony that the
declarant and the defendant drove off together Friday morn-
ing, is evidence that the defendant also participated in the
robbery.
Moreover, whether a statement is self-inculpatory or not
can only be determined by viewing it in context. Even
statements that are on their face neutral may actually be
against the declarant's interest. "I hid the gun in Joe's
apartment" may not be a confession of a crime; but if it is
likely to help the police find the murder weapon, then it is
certainly self-inculpatory. "Sam and I went to Joe's house"
might be against the declarant's interest if a reasonable per-
son in the declarant's shoes would realize that being linked to
Joe and Sam would implicate the declarant in Joe and Sam's
conspiracy. And other statements that give the police sig-
nificant details about the crime may also, depending on the
situation, be against the declarant's interest. The question
under Rule 804(b)(3) is always whether the statement was
sufficiently against the declarant's penal interest "that a rea-
Opinion of O'CONNOR, J.
sonable person in the declarant's position would not have
made the statement unless believing it to be true," and this
question can only be answered in light of all the surround-
ing circumstances.*
C
In this case, however, we cannot conclude that all that
Harris said was properly admitted. Some of Harris' con-
fession would clearly have been admissible under Rule
804(b)(3); for instance, when he said he knew there was co-
caine in the suitcase, he essentially forfeited his only possible
defense to a charge of cocaine possession, lack of knowledge.
But other parts of his confession, especially the parts that
implicated Williamson, did little to subject Harris himself to
criminal liability. A reasonable person in Harris' position
might even think that implicating someone else would de-
crease his practical exposure to criminal liability, at least so
far as sentencing goes. Small fish in a big conspiracy often
get shorter sentences than people who are running the whole
show, see, e. g., United States Sentencing Commission,
Guidelines Manual §3B1.2 (Nov. 1993), especially if the small
fish are willing to help the authorities catch the big ones, see,
e.g., id., §5K1.L
Nothing in the record shows that the District Court or the
Court of Appeals inquired whether each of the statements in
Harris' confession was truly self-inculpatory. As we ex-
plained above, this can be a fact-intensive inquiry, which
would require careful examination of all the circumstances
surrounding the criminal activity involved; we therefore re-
mand to the Court of Appeals to conduct this inquiry in the
first instance.
*0f course, an accomplice's statements may also be admissible under
other provisions of Rules 801-804. For instance, statements made in fur-
therance of the conspiracy may be admissible under Rule 801(d)(2)(E), and
other statements that bear circumstantial guarantees of trustworthiness
may be admissible under Rule 804(b)(5), the catchall hearsay exception.
SCALIA, J., concurring
In light of this disposition, we need not address William-
son's claim that the statements were also made inadmissible
by the Confrontation Clause, see generally White v. Illinois,
502 U S. 346 (1992), and in particular we need not decide
whether the hearsay exception for declarations against inter-
est is "firmly rooted" for Confrontation Clause purposes.
Compare, e. g., United States v. Seeley, 892 F. 2d 1, 2 (CA1
1989) (holding that the exception is firmly rooted), with
United States v. Flores, 985 F. 2d 770 (CAS 1993) (holding
the contrary). We note, however, that the very fact that a
statement is genuinely self-inculpatory — which our reading
of Rule 804(b)(3) requires — is itself one of the "particularized
guarantees of trustworthiness" that makes a statement
admissible under the Confrontation Clause. See Lee v. Illi-
nois, 476 U. S. 530, 543-545 (1986). We also need not decide
whether, as some Courts of Appeals have held, the second
sentence of Rule 804(b)(3) — "A statement tending to expose
the declarant to criminal liability and offered to exculpate
the accused is not admissible unless corroborating circum-
stances clearly indicate the trustworthiness of the state-
ment" (emphasis added) — also requires that statements
inculpating the accused be supported by corroborating cir-
cumstances. See, e. g., United States v. Alvarez, 584 F. 2d
694, 701 (CA5 1978); United States v. Taggart, 944 F. 2d 837,
840 (CA11 1991). The judgment of the Court of Appeals is
vacated, and the case is remanded for further proceedings.
So ordered.
JUSTICE SCALIA, concurring.
I join the Court's opinion, which I do not understand to
require the simplistic view of statements against penal inter-
est that JUSTICE KENNEDY attributes to it.
When analyzing whether evidence can be admitted under
the statement-against-penal-interest exception to the hear-
say rules, the relevant inquiry must always be, as the text
directs, whether the statement "at the time of its making . . .
SCAUA, J., concurring
so far tended to subject the declarant to ... criminal liability
. . . that a reasonable person in the declarant's position would
not have made the statement unless believing it to be true."
Fed. Rule Evid. 804(b)(3). I quite agree with the Court that
a reading of the term "statement" to connote an extended
declaration (and which would thereby allow both self-
inculpatory and non-self-inculpatory parts of a declaration
to be admitted so long as the declaration in the aggregate
was sufficiently inculpatory) is unsupportable. See ante, at
599-600.
Employing the narrower definition of "statement," so that
Rule 804(b)(3) allows admission of only those remarks that
are individually self-inculpatory, does not, as JUSTICE KEN-
NEDY states, "eviscerate the against penal interest excep-
tion." Post, at 616 (internal quotation marks and citation
omitted). A statement obviously can be self-inculpatory (in
the sense of having so much of a tendency to subject one to
criminal liability that a reasonable person would not make
it without believing it to be true) without consisting of the
confession "I committed X element of crime Y." Consider,
for example, a declarant who stated: "On Friday morning, I
went into a gunshop and (lawfully) bought a particular type
of handgun and particular type of ammunition. I then drove
in my 1958 blue Edsel and parked in front of the First City
Bank with the keys in the ignition and the driver's door ajar.
I then went inside, robbed the bank, and shot the security
guard." Although the declarant has not confessed to any
element of a crime in the first two sentences, those state-
ments in context are obviously against his penal interest, and
I have no doubt that a trial judge could properly admit them.
Moreover, a declarant's statement is not magically trans-
formed from a statement against penal interest into one that
is inadmissible merely because the declarant names another
person or implicates a possible codefendant. For example,
if a lieutenant in an organized crime operation described the
inner workings of an extortion and protection racket, naming
Opinion of GINSBURG, J.
some of the other actors and thereby inculpating himself on
racketeering and/or conspiracy charges, I have no doubt that
some of those remarks could be admitted as statements
against penal interest. Of course, naming another person, if
done, for example, in a context where the declarant is mini-
mizing culpability or criminal exposure, can bear on whether
the statement meets the Rule 804(b)(3) standard. The rele-
vant inquiry, however — and one that is not furthered by
clouding the waters with manufactured categories such as
"collateral neutral" and "collateral self-serving," see, e. g.,
post, at 612, 618 (KENNEDY, J., concurring in judgment) —
must always be whether the particular remark at issue (and
not the extended narrative) meets the standard set forth in
the Rule.
JUSTICE GINSBURG, with whom JUSTICE BLACKMUN, JUS-
TICE STEVENS, and JUSTICE SOUTER join, concurring in part
and concurring in the judgment.
I join Parts I, II-A, and II-B of the Court's opinion. I
agree with the Court that Federal Rule of Evidence 804(b)(3)
excepts from the general rule that hearsay statements are
inadmissible only "those declarations or remarks within [a
narrative] that are individually self-inculpatory." Ante, at
599. As the Court explains, the exception for statements
against penal interest "does not allow admission of non-self-
inculpatory statements, even if they are made within a
broader narrative that is generally self-inculpatory," ante, at
600-601; the exception applies only to statements that are
"sufficiently against the declarant's penal interest 'that a rea-
sonable person in the declarant's position would not have
made the statement unless believing it to be true/" Ante,
at 603-604, quoting Fed. Rule Evid. 804(b)(3).
Further, the Court recognizes the untrustworthiness of
statements implicating another person. Ante, at 601. A
person arrested in incriminating circumstances has a strong
incentive to shift blame or downplay his own role in compari-
Opinion of GINSBURG, J.
son with that of others, in hopes of receiving a shorter sen-
tence and leniency in exchange for cooperation. For this
reason, hearsay accounts of a suspect's statements implicat-
ing another person have been held inadmissible under the
Confrontation Clause. See Lee v. Illinois, 476 U. S. 530, 541
(1986) ("when one person accuses another of a crime under
circumstances in which the declarant stands to gain by incul-
pating another, the accusation is presumptively suspect and
must be subjected to the scrutiny of cross-examination");
ibid. (" *[T]he arrest statements of a codefendant have tradi-
tionally been viewed with special suspicion. Due to his
strong motivation to implicate the defendant and to exoner-
ate himself, a codefendant's statements about what the de-
fendant said or did are less credible than ordinary hearsay
evidence.'") (quoting Bruton v. United States, 391 U. S. 123,
141 (1968) (White, J., dissenting)).
Unlike JUSTICE O'CONNOR, however, I conclude that Regi-
nald Harris' statements, as recounted by Drug Enforcement
Administration (DEA) Special Agent Donald E. Walton, do
not fit, even in part, within the exception described in Rule
804(b)(3), for Harris' arguably inculpatory statements are too
closely intertwined with his self-serving declarations to be
ranked as trustworthy. Harris was caught redhanded with
19 kilos of cocaine — enough to subject even a first-time of-
fender to a minimum of 12x/2 years' imprisonment. See
United States Sentencing Commission, Guidelines Manual
§2Dl.l(c) (1993); id., ch. 5, pt. A (sentencing table). He
could have denied knowing the drugs were in the car's trunk,
but that strategy would have brought little prospect of
thwarting a criminal prosecution. He therefore admitted
involvement, but did so in a way that minimized his own
role and shifted blame to petitioner Fredel Williamson (and
a Cuban man named Shawn).
Most of Harris' statements to DEA Agent Walton focused
on Williamson's, rather than Harris', conduct. Agent Wal-
ton testified to the following: During a brief telephone con-
Opinion of GINSBURG, J.
versation shortly after he was apprehended, Harris said he
had obtained 19 kilos of cocaine for Williamson from a Cuban
man in Fort Lauderdale, Florida; he stated that the cocaine
belonged to Williamson, and was to be delivered to a dump-
ster in the Atlanta area that evening, App. 37. Harris re-
peated this story to Agent Walton when the two spoke in
person later in the day. Harris also said that he had rented
the car a few days earlier and had included Williamson's
name on the rental contract because Williamson was going
to be in the Fort Lauderdale area with him. Id., at 38-39.
After Agent Walton sought to arrange a controlled delivery,
Harris retracted the story about the dumpster, saying it
was false.
Harris' second account differed as to collateral details, but
he continued to paint Williamson as the "big fish." Harris
reported that he was transporting the cocaine to Atlanta for
Williamson. When the police stopped Harris' car, William-
son was driving in front of him in another rented car. After
Harris was stopped, Williamson turned around and pulled
over to the side of the road; from that vantage point, he ob-
served the police officer inspecting the contents of Harris'
trunk. 7d, at 40-41. And, Harris repeated, "the arrange-
ments for the acquisition and the transportation had been
made by Mr. Williamson." Id., at 41.
To the extent some of these statements tended to incrimi-
nate Harris, they provided only marginal or cumulative evi-
dence of his guilt. They project an image of a person acting
not against his penal interest, but striving mightily to shift
principal responsibility to someone else. See United States
v. Sarmiento-Perez, 633 F. 2d 1092, 1102 (CA5 1981) ("[The
declarant] might well have been motivated to misrepresent
the role of others in the criminal enterprise, and might well
have viewed the statement[s] as a whole — including the os-
tensibly disserving portions — to be in his interest rather
than against it.")-
Opinion of GINSBURG, J.
For these reasons, I would hold that none of Harris'
hearsay statements were admissible under Rule 804(b)(3).*
The trial judge characterized Agent Walton's testimony
as "very damning/' App. 50. The prosecutor considered it
so prejudicial that she offered to join defense counsel's
motion for a mistrial should the trial court determine that
the hearsay statements had been erroneously admitted.
Id., at 51 ("If the [trial] Court determines that it has been
improper for [Agent Walton] to say those statements, then
the Court must of necessity declare a mistrial, because there
is no way they can remove what . . . they have heard that
Reginald Harris said about Fredel Williamson, and the
Government will join in the [defense counsel's] motion [for
a mistrial], because I think that would be a burden no
one could overcome in the llth Circuit."). I concur in the
Court's decision to vacate the Court of Appeals' judgment,
however, because I have not examined the entire trial court
record; I therefore cannot say the Government should be
denied an opportunity to argue that the erroneous admission
of the hearsay statements, in light of the other evidence
introduced at trial, constituted harmless error. See Fed.
Rule Grim. Proc. 52(a); Kotteakos v. United States, 328
U. S. 750, 776 (1946) (error requires reversal of criminal con-
viction if it is "highly probable that the error had substantial
*Nor could any of Harris' hearsay statements be admitted under Rule
801(d)(2)(E), which provides that statements made "by a coconspirator of
a party during the course and in furtherance of the conspiracy" are not
hearsay. The trial judge initially appeared to base his ruling admitting
the statements on the co-conspirator rule. See App. 34-36; id., at 47 ("I
let it in as a co-conspirator statement."). The prosecutor, however,
"agree[d] with [defense counsel] totally" that "[they are] not . . . state-
ment[s] in furtherance of the conspiracy"; Agent Walton's testimony, she
explained, was "not offered under [the co-conspirator] exception," but
under Rule 804(b)(3). App. 47. I do not read the Court's opinion, ante,
at 604, n., to suggest that the hearsay statements in this case could have
been admitted under Rule 801(d)(2)(E).
KENNEDY, J., concurring in judgment
and injurious effect or influence in determining the jury's
verdict").
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, concurring in the judgment.
Federal Rule of Evidence 802 states the general rule that
hearsay evidence is inadmissible in federal court proceed-
ings, but there are numerous exceptions. At issue here is
the exception contained in Rule 804(b)(3), which allows ad-
mission of
"[a] statement which was at the time of its making so
far contrary to the declarant's pecuniary or proprietary
interest, or so far tended to subject the declarant to civil
or criminal liability, or to render invalid a claim by the
declarant against another, that a reasonable person in
the declarant's position would not have made the state-
ment unless believing it to be true* A statement tend-
ing to expose the declarant to criminal liability and of-
fered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trust-
worthiness of the statement."
The rationale of the hearsay exception for statements
against interest is that people seldom "make statements
which are damaging to themselves unless satisfied for good
reason that they are true/* Advisory Committee's Notes on
Fed. Rule Evid. 804, 28 U. S. C. App., p. 789. Of course, the
declarant may make his statement against interest (such as
"I shot the bank teller") together with collateral but related
declarations (such as "John Doe drove the getaway car").
The admissibility of those collateral statements under Rule
804(b)(3) is the issue we must decide here.
There has been a long-running debate among commenta-
tors over the admissibility of collateral statements. Dean
Wigmore took the strongest position in favor of admissibility,
KENNEDY, J., concurring in judgment
arguing that "the statement may be accepted, not merely as
to the specific fact against interest, but also as to every fact
contained in the same statement. " 5 J. Wigmore, Evidence
§ 1465, p. 271 (3d ed. 1940) (emphasis deleted); see also 5 J.
Wigmore, Evidence § 1465, p. 339 (J. Chadbourne rev. 1974);
Higkam v. Ridgway, 10 East. 109, 103 Eng. Rep. 717 (K. B,
1808). According to Wigmore, because "the statement is
made under circumstances fairly indicating the declarant's
sincerity and accuracy," the entire statement should be ad-
mitted. 5 J. Wigmore § 1465, p. 271 (3d ed. 1940). Dean Mc-
Cormick's approach regarding collateral statements was
more guarded. He argued for the admissibility of collateral
statements of a neutral character, and for the exclusion of
collateral statements of a self-serving character. For exam-
ple, in the statement "John and I robbed the bank," the
words "John and" are neutral (save for the possibility of con-
spiracy charges). On the other hand, the statement "John,
not I, shot the bank teller" is to some extent self-serving and
therefore might be inadmissible. See C. McCormick, Law of
Evidence §256, pp. 552-553 (1954) (hereinafter McCormick).
Professor Jefferson took the narrowest approach, arguing
that the reliability of a statement against interest stems only
from the disserving fact stated and so should be confined "to
the proof of the fact which is against interest." Jefferson,
Declarations Against Interest: An Exception to the Hearsay
Rule, 58 Harv. L. Rev. 1, 62-63 (1944). Under the Jefferson
approach, neither collateral neutral nor collateral self-
serving statements would be admissible.
Enacted by Congress in 1975, Rule 804(b)(3) establishes a
hearsay exception for statements against penal, proprietary,
pecuniary, and legal interest (and does not distinguish among
those interests). The text of the Rule does not tell us
whether collateral statements are admissible, however. See
ante, at 599; see also Comment, Federal Rule of Evidence
804(b)(3) and Inculpatory Statements Against Penal Inter-
est, 66 Calif. L. Rev. 1189, 1202 (1978) ("The text of Rule
KENNEDY, J., concurring in judgment
804(b)(3) by itself provides little guidance and would accom-
modate comfortably either a doctrine excluding or one ad-
mitting collateral statements"). The Court resolves the
issue, as I understand its opinion, by adopting the extreme
position that no collateral statements are admissible under
Rule 804(b)(3). See ante, at 599 (adopting "narrower read-
ing" that "Rule 804(b)(3) cover[s] only those declarations or
remarks within the confession that are individually self-
inculpatory"); ante, at 607 (GiNSBURG, J., concurring in part
and concurring in judgment); but cf. ante, p. 605 (ScALiA, J.,
concurring). The Court reaches that conclusion by relying
on the "principle behind the Rule" that reasonable people do
not make statements against their interest unless they are
telling the truth, ante, at 599, and reasons that this policy
"expressed in the Rule's text," ante, at 602, "simply does
not extend" to collateral statements, ante, at 599. Though
conceding that Congress can "make statements admissible
based on their proximity to self-inculpatory statements," the
Court says that it cannot "lightly assume that the ambiguous
language means anything so inconsistent with the Rule's un-
derlying theory." Ante, at 600.
With respect, I must disagree with this analysis. All
agree that the justification for admission of hearsay state-
ments against interest was, as it still is, that reasonable peo-
ple do not make those statements unless believing them to
be true, but that has not resolved the long-running debate
over the admissibility of collateral statements, as to which
there is no clear consensus in the authorities. Indeed, to
the extent the authorities come close to any consensus,
they support admission of some collateral statements. See
supra, at 611-612. Given that the underlying principle for
the hearsay exception has not resolved the debate over col-
lateral statements one way or the other, I submit that we
should not assume that the text of Rule 804(b)(3), which is
silent about collateral statements, in fact incorporates one of
the competing positions. The Rule's silence no more incor-
KENNEDY, J., concurring in judgment
porates Jefferson's position respecting collateral statements
than it does McCormick's or Wigmore's.
II
Because the text of Rule 804(b)(3) expresses no position
regarding the admissibility of collateral statements, we must
determine whether there are other authoritative guides on
the question. In my view, three sources demonstrate that
Rule 804(b)(3) allows the admission of some collateral state-
ments: the Advisory Committee's Note, the common law of
the hearsay exception for statements against interest, and
the general presumption that Congress does not enact stat-
utes that have almost no effect.
First, the Advisory Committee's Note establishes that
some collateral statements are admissible. In fact, it refers
in specific terms to the issue we here confront: "Ordinarily
the third-party confession is thought of in terms of ex-
culpating the accused, but this is by no means always or
necessarily the case: it may include statements implicating
him, and under the general theory of declarations against
interest they would be admissible as related statements."
28 U. S. C. App., p. 790. This language seems a forthright
statement that collateral statements are admissible under
Rule 804(b)(3), but the Court reasons that "the policy ex-
pressed in the Rule's text points clearly enough in one direc-
tion that it outweighs whatever force the Notes may have."
Ante, at 602. Again, however, that reasoning begs the ques-
tion: What is the policy expressed in the text on the admissi-
bility of collateral statements? As stated above, the text of
the Rule does not answer the question whether collateral
statements are admissible. When as here the text of a Rule
of Evidence does not answer a question that must be an-
swered in order to apply the Rule, and when the Advisory
Committee's Note does answer the question, our practice in-
dicates that we should pay attention to the Advisory Com-
mittee's Note. We have referred often to those Notes in in-
KENNEDY, J., concurring in judgment
terpreting the Rules of Evidence, and I see no reason to
jettison that well-established practice here. See Huddle-
ston v. United States, 485 U S. 681, 688 (1988); United States
v. Owens, 484 U. S. 554, 562 (1988); Bourjaily v. United
States, 483 U. S. 171, 179, n. 2 (1987); United States v. Abel,
469 U S. 45, 51 (1984).
Second, even if the Advisory Committee's Note were silent
about collateral statements, I would not adopt a rule exclud-
ing all statements collateral or related to the specific words
against penal interest. Absent contrary indications, we can
presume that Congress intended the principles and terms
used in the Federal Rules of Evidence to be applied as they
were at common law. See Daubert v. Merrell Dow Pharma-
ceuticals, Inc., 509 U. S. 579, 588 (1993); Green v. Bock Laun-
dry Machine Co., 490 U. S. 504, 521-522 (1989); United States
v. Abel, supra, at 51-52; see also Midlantic Nat. Bank v.
New Jersey Dept. of Environmental Protection, 474 U. S.
494, 501 (1986) ("[I]f Congress intends for legislation to
change the interpretation of a judicially created concept, it
makes that intent specific")- Application of that interpre-
tive principle indicates that collateral statements should be
admissible. "From the very beginning of this exception, it
has been held that a declaration against interest is admissi-
ble, not only to prove the disserving fact stated, but also to
prove other facts contained in collateral statements con-
nected with the disserving statement." Jefferson, 58 Harv.
L. Rev., at 57; see also McCormick §256; 5 J. Wigmore, Evi-
dence § 1465 (3d ed. 1940). Indeed, the Advisory Commit-
tee's Note itself, in stating that collateral statements would
be admissible, referred to the "general theory" that related
statements are admissible, an indication of the state of the
law at the time the Rule was enacted. Rule 804(b)(3) does
not address the issue, but Congress legislated against the
common-law background allowing admission of some collat-
eral statements, and I would not assume that Congress gave
the common-law rule a silent burial in Rule 804(b)(3).
KENNEDY, J., concurring in judgment
There is yet a third reason weighing against the Court's
interpretation, one specific to statements against penal inter-
est that inculpate the accused. There is no dispute that the
text of Rule 804(b)(3) contemplates the admission of those
particular statements. Absent a textual direction to the
contrary, therefore, we should assume that Congress in-
tended the penal interest exception for inculpatory state-
ments to have some meaningful effect. See American
Paper Institute, Inc. v. American Elec. Power Service Corp.,
461 U. S. 402, 421 (1983) (court should not "imput[e] to Con-
gress a purpose to paralyze with one hand what it sought to
promote with the other") (internal quotation marks omitted).
That counsels against adopting a rule excluding collateral
statements. As commentators have recognized, "the ex-
clusion of collateral statements would cause the exclusion
of almost all inculpatory statements. " Comment, 66 Calif.
L. Rev., at 1207; see also Note, Inculpatory Statements
Against Penal Interest and the Confrontation Clause, 83
Colum. L. Rev. 159, 163 (1983) ("[M]ost statements inculpat-
ing a defendant are only collateral to the portion of the de-
clarant's statement that is against his own penal interest.
The portion of the statement that specifically implicates the
defendant is rarely directly counter to the declarant's penal
interest") (footnote omitted); Davenport, The Confrontation
Clause and the Co-Conspirator Exception in Criminal Prose-
cutions: A Functional Analysis, 85 Harv. L. Rev. 1378, 1396
(1972) ("[T]he naming of another as a compatriot will almost
never be against the declarant's own interest"). Indeed, as
one commentator indicated, the conclusion that no collateral
statements are admissible — the conclusion reached by the
Court today — would "eviscerate the against penal interest
exception." Comment, 66 Calif. L. Rev., at 1213.
To be sure, under the approach adopted by the Court,
there are some situations where the Rule would still apply.
For example, if the declarant said that he stole certain goods,
the statement could be admitted in a prosecution of the ac-
KENNEDY, J., concurring in judgment
cused for receipt of stolen goods in order to show that the
goods were stolen. See 4 J. Weinstein & M. Berger,
Weinstein's Evidence § 804(b)(3)[04], p. 804-164 (1993); see
also ante, at 603. But as the commentators have recognized,
it is likely to be the rare case where the precise self-
inculpatory words of the declarant, without more, also incul-
pate the defendant. I would not presume that Congress in-
tended the penal interest exception to the Rule to have so
little effect with respect to statements that inculpate the
accused.
I note finally that the Court's decision applies to state-
ments against penal interest that exculpate the accused as
well as to those that inculpate the accused. Thus, if the de-
clarant said, "I robbed the store alone," only the portion of
the statement in which the declarant said "I robbed the
store" could be introduced by a criminal defendant on trial
for the robbery. See Note, Declarations Against Penal
Interest: Standards of Admissibility Under an Emerging
Majority Rule, 56 B. U. L. Rev. 148, 165, n. 95 (1976). That
seems extraordinary. The Court gives no justification for
such a rule and no explanation that Congress intended the
exception for exculpatory statements to have this limited ef-
fect. See id., at 166 ("A strict application of a rule excluding
all collateral statements can lead to the arbitrary rejection
of valuable evidence").
Ill
Though I would conclude that Rule 804(b)(3) allows admis-
sion of statements collateral to the precise words against in-
terest, that conclusion of course does not answer the remain-
ing question whether all collateral statements related to the
statement against interest are admissible; and if not, what
limiting principles should apply. The Advisory Committee's
Note suggests that not all collateral statements are admissi-
ble. The Note refers, for example, to McCormick's treatise,
not to Wigmore's, for guidance as to the "balancing of self-
serving against dis[serving] aspects of a declaration." 28
KENNEDY, J., concurring in judgment
U. S. C. App., p. 790. As noted supra, at 611-612, Wigmore's
approach would allow the admission of "every fact contained
in the same statement," but McCormick's approach is not so
expansive. McCormick stated that "[a] certain latitude as to
contextual [1 e., collateral] statements, neutral as to interest,
giving meaning to the declaration against interest seems
defensible, but bringing in self-serving statements contextu-
ally seems questionable." McCormick § 256, p. 552. McCor-
mick further stated that, within a declaration containing
self-serving and disserving facts, he would "admit the dis-
serving parts of the declaration, and exclude the self-serving
parts" at least "where the serving and disserving parts can
be severed." Id., §256, at 553. It thus appears that the
Advisory Committee's Note, by its reference to (and appar-
ent incorporation of) McCormick, contemplates exclusion of
a collateral self-serving statement, but admission of a collat-
eral neutral statement.
In the criminal context, a self-serving statement is one
that tends to reduce the charges or mitigate the punishment
for which the declarant might be liable. See M. Graham,
Federal Practice and Procedure §6795, p. 810, n. 10 (1992).
For example, if two masked gunmen robbed a bank and one
of them shot and killed the bank teller, a statement by one
robber that the other robber was the triggerman may be the
kind of self-serving statement that should be inadmissible.
See ibid, (collateral self-serving statement is "John used the
gun"). (The Government concedes that such a statement
may be inadmissible. See Brief for United States 12.) By
contrast, when two or more people are capable of committing
a crime and the declarant simply names the involved parties,
that statement often is considered neutral, not self-serving.
See Graham, supra, at 810, n. 10 ("[T]he statement 'John and
I robbed the bank' is collateral neutral"); Note, 56 B. U. L.
Rev., at 166, n. 96 ("An examination of the decisions reveals
that, with very few exceptions, collateral facts offered as
part of a declaration against penal interest are neutral rather
KENNEDY, J., concurring in judgment
than self-serving"); see generally United States v. York, 933
R 2d 1343, 1362-1364 (CAT 1991); United States v. Casa-
mento, 887 R 2d 1141, 1171 (CA2 1989).
Apart from that limit on the admission of collateral, self-
serving statements, there is a separate limit applicable to
cases in which the declarant made his statement to authori-
ties; this limit applies not only to collateral statements but
also to the precise words against penal interest. A declar-
ant may believe that a statement of guilt to authorities is in
his interest to some extent, for example as a way to obtain
more lenient treatment, or simply to clear his conscience.
The Note takes account of that potentiality and states that
courts should examine the circumstances of the statement to
determine whether the statement was "motivated by a de-
sire to curry favor with the authorities." 28 U. S. C. App.,
p. 790. That appears consistent with McCormick's recogni-
tion that "even though a declaration may be against interest
in one respect, if it appears that the declarant had some other
motive whether of self-interest or otherwise, which was
likely to lead him to misrepresent the facts, the declaration
will be excluded/' McCormick §256, p. 553.
Of course, because the declarant is by definition unavail-
able, see Fed. Rule Evid. 804(a), and therefore cannot be
questioned to determine the exact motivation for his state-
ment, courts have been forced to devise categories to deter-
mine when this concern is sufficient to justify exclusion of a
statement as unreliable. It has been held, for example, that
a statement to authorities admitting guilt, made after an ex-
plicit promise of dropped charges or of a reduction in prison
time in exchange for the admission of guilt, may be so un-
reliable as to be inadmissible. See, e.g., United States v.
Magana-Olvera, 917 R 2d 401, 407-409 (CA9 1990); United
States v. Scopo, 861 R 2d 339, 348 (CA2 1988) ("If ... a
pleading defendant had an agreement with the government
or with the court that he would not be punished for the
crimes to which he allocuted, then that allocution would not
620 WILLIAMSON v. UNITED STATES
KENNEDY, J., concurring in judgment
subject him to criminal liability and would not constitute a
statement against his penal interest"). At the other ex-
treme, when there was no promise of leniency by the govern-
ment and the declarant was told that he had a right to remain
silent and that any statements he made could be used against
him, the courts have not required exclusion of the declarant's
statement against interest. See id., at 348-349; United
States v. Garcia, 897 F. 2d 1413, 1421 (CAT 1990) (declarant
not motivated by desire to curry favor; "voluntarily made his
statement after being advised of his Miranda rights and did
not enter into any plea agreements with the government").
This kind of line-drawing is appropriate and necessary, lest
the limiting principle regarding the declarant's possible de-
sire to obtain leniency lead to the exclusion of all statements
against penal interest made to police, a result the Rule and
Note do not contemplate.
In sum, I would adhere to the following approach with
respect to statements against penal interest that inculpate
the accused. A court first should determine whether the
declarant made a statement that contained a fact against
penal interest. See ante, at 604 (opinion of O'CONNOR, J.)
("Some of Harris' confession would clearly have been admis-
sible under Rule 804(b)(3)"). If so, the court should admit
all statements related to the precise statement against penal
interest, subject to two limits. Consistent with the Advi-
sory Committee's Note, the court should exclude a collateral
statement that is so self-serving as to render it unreliable
(if, for example, it shifts blame to someone else for a crime
the defendant could have committed). In addition, in cases
where the statement was made under circumstances where
it is likely that the declarant had a significant motivation
to obtain favorable treatment, as when the government
made an explicit offer of leniency in exchange for the declar-
ant's admission of guilt, the entire statement should be
inadmissible.
Cite as: 512 U. S. 594 (1994) 621
KENNEDY, J., concurring in judgment
A ruling on the admissibility of evidence under Rule
804(b)(3) is a preliminary question to be determined by the
district judge under Rule 104(a). That determination of ne-
cessity calls for an inquiry that depends to a large extent
on the circumstances of a particular case. For this reason,
application of the general principles here outlined to a partic-
ular narrative statement often will require a difficult, fact-
bound determination. District judges, who are close to the
facts and far better able to evaluate the various circum-
stances than an appellate court, therefore must be given
wide discretion to examine a particular statement to deter-
mine whether all or part of it should be admitted. Like the
Court, then, I would remand this case, but for application of
the analysis set forth in this opinion.
Syllabus
TURNER BROADCASTING SYSTEM, INC., ET AL. v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
No. 93-44. Argued January 12, 1994 — Decided June 27, 1994
Concerned that a competitive imbalance between cable television and
over-the-air broadcasters was endangering the broadcasters' ability to
compete for a viewing audience and thus for necessary operating reve-
nues, Congress passed the Cable Television Consumer Protection and
Competition Act of 1992. Sections 4 and 5 of the Act require cable
television systems to devote a specified portion of their channels to the
transmission of local commercial and public broadcast stations. Soon
after the Act became law, appellants, numerous cable programmers
and operators, challenged the constitutionality of the must-carry provi-
sions. The District Court granted the United States and intervenor-
defendants summary judgment, ruling that the provisions are consistent
with the First Amendment. The court rejected appellants' argument
that the provisions warrant strict scrutiny as a content-based regulation
and sustained them under the intermediate standard of scrutiny set
forth in United States v. O'Brien, 391 U. S. 367, concluding that they are
sufficiently tailored to serve the important governmental interest in the
preservation of local broadcasting.
Held: The judgment is vacated, and the case is remanded.
819 F. Supp. 32, vacated and remanded.
JUSTICE KENNEDY delivered the opinion of the Court with respect to
Parts I, II, and III-A, concluding that the appropriate standard by
which to evaluate the constitutionality of the must-carry provisions is
the intermediate level of scrutiny applicable to content-neutral restric-
tions that impose an incidental burden on speech. Pp. 636-664.
(a) Because the must-carry provisions impose special obligations upon
cable operators and special burdens upon cable programmers, height-
ened First Amendment scrutiny is demanded. The less rigorous stand-
ard of scrutiny now reserved for broadcast regulation, see Red Lion
Broadcasting Co v. FCC, 395 U. S. 367, should not be extended to cable
regulation, since the rationale for such review — the dual problems
of spectrum scarcity and signal interference — does not apply in the
context of cable. Nor is the mere assertion of dysfunction or failure in
the cable market, without more, sufficient to shield a speech regulation
from the First Amendment standards applicable to nonbroadcast media.
Syllabus
Moreover, while enforcement of a generally applicable law against mem-
bers of the press may sometimes warrant only rational-basis scrutiny,
laws that single out the press for special treatment pose a particular
danger of abuse by the State and are always subject to some degree of
heightened scrutiny. Pp. 636-641.
(b) The must-carry rules are content neutral, and thus are not subject
to strict scrutiny. They are neutral on their face because they distin-
guish between speakers in the television programming market based
only upon the manner in which programmers transmit their messages
to viewers, not the messages they carry. The purposes underlying the
must-carry rules are also unrelated to content. Congress' overriding
objective was not to favor programming of a particular content, but
rather to preserve access to free television programming for the 40
percent of Americans without cable. The challenged provisions7 de-
sign and operation confirm this purpose. Congress' acknowledgment
that broadcast television stations make a valuable contribution to the
Nation's communications structure does not indicate that Congress re-
garded broadcast programming to be more valuable than cable program-
ming; rather, it reflects only the recognition that the services provided
by broadcast television have some intrinsic value and are worth pre-
serving against the threats posed by cable. It is also incorrect to
suggest that Congress enacted must-carry in an effort to exercise con-
tent control over what subscribers view on cable television, given the
minimal extent to which the Federal Communications Commission
and Congress influence the programming offered by broadcast stations.
Pp. 641-652.
(c) None of appellants' additional arguments suffices to require strict
scrutiny in this case. The provisions do not intrude on the editorial
control of cable operators. They are content neutral in application, and
they do not force cable operators to alter their own messages to respond
to the broadcast programming they must carry. In addition, the physi-
cal connection between the television set and the cable network gives
cable operators bottleneck, or gatekeeper, control over most program-
ming delivered into subscribers' homes. Miami Herald Publishing Co.
v. Tornillo, 418 U. S. 241, and Pacific Gas & Elec. Co. v. Public Util.
Comm'n of CaL, 475 U. S. 1, distinguished. Strict scrutiny is also not
triggered by Congress' preference for broadcasters over cable opera-
tors, since it is based not on the content of the programming each group
offers, but on the belief that broadcast television is in economic peril.
Nor is such scrutiny warranted by the fact that the provisions single
out certain members of the press — here, cable operators — for disfavored
treatment. Such differential treatment is justified by the special char-
acteristics of the cable medium— namely, the cable operators' bottleneck
Syllabus
monopoly and the dangers this power poses to the viability of broadcast
television — and because the must-carry provisions are not structured in
a manner that carries the inherent risk of undermining First Amend-
ment interests. Arkansas Writers' Project, Inc. v. Ragland, 481 U. S.
221, and Minneapolis Star & Tribune Co, v. Minnesota Comm'r of Rev-
enue, 460 U. S. 575, distinguished. Pp. 653-661.
(d) Under O'Brien, a content-neutral regulation will be sustained if
it furthers an important governmental interest that is unrelated to the
suppression of free expression and the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the fur-
therance of that interest. Viewed in the abstract, each of the govern-
mental interests asserted — preserving the benefits of free, over-the-air
local broadcast stations, promoting the widespread dissemination of in-
formation from a multiplicity of sources, and promoting fair competition
in the market for television programming — is important. Pp. 661-664.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE BLACK-
MUN, and JUSTICE SOUTER, concluded in Part III-B that the fact that
the asserted interests are important in the abstract does not mean that
the must-carry provisions will in fact advance those interests. The
Government must demonstrate that the recited harms are real, not
merely conjectural, and that the regulation will in fact alleviate these
harms in a direct and material way. Thus, the Government must ade-
quately show that the economic health of local broadcasting is in genuine
jeopardy and in need of the protections afforded by must-carry. Assum-
ing an affirmative answer, the Government still bears the burden of
showing that the remedy adopted does not burden substantially more
speech than is necessary to further such interests. On the state of the
record developed, and in the absence of findings of fact from the District
Court, it is not possible to conclude that the Government has satisfied
either inquiry. Because there are genuine issues of material fact still
to be resolved on this record, the District Court erred in granting sum-
mary judgment for the Government. Pp. 664-668.
JUSTICE STEVENS, though favoring affirmance, concurred in the judg-
ment because otherwise no disposition of the case would be supported
by five Justices and because he is in substantial agreement with JUSTICE
KENNEDY'S analysis of this case. P. 674.
KENNEDY, J., announced the judgment of the Court anji delivered the
opinion for a unanimous Court with respect to Part I, the opinion of the
Court with respect to Parts II-A and II-B, in which REHNQUIST, C. J.,
and BLACKMUN, O'CONNOR, SCALIA, SOUTER, THOMAS, and GINSBURG,
JJ., joined, the opinion of the Court with respect to Parts II-C, II-D, and
III-A, in which REHNQUIST, C. J., and BLACKMUN, STEVENS, and SOUTER,
Syllabus
JJ., joined, and an opinion with respect to Part III-R, in which REHN-
QUIST, C. J., and BLACKMUN and SOUTER, JJ., joined. BLACKMUN, J., filed
a concurring opinion, post, p. 669. STEVENS, J., filed an opinion concur-
ring in part and concurring in the judgment, post, p. 669. O'CONNOR, J.,
filed an opinion concurring in part and dissenting in part, in which SCALIA
and GINSBURG, JJ., joined, and in Parts I and III of which THOMAS, J.,
joined, post, p. 674. GINSBURG, J., filed an opinion concurring in part and
dissenting in part, post, p. 685.
H. Bartow Farr III argued the cause for appellants.
With him on the briefs for appellant National Cable Televi-
sion Association, Inc., were Joel L Klein and Richard G. Ta-
ranto. Bruce D. Sokler, Peter Kimm, Jr., Gregory A Lewis,
Mary Ann Zimmer, Christopher Fager, Bruce D. Collins,
and Neal S. Grabell filed a brief for appellants Turner Broad-
casting System, Inc., et al. John P. Cole, Jr., and Kenneth
Farabee filed a brief for appellant Daniels Cablevision, Inc.
Albert G. Lauber, Jr., Peter Van N. Lockwood, Dorothy L.
Foley, Judith A. McHale, and Barbara S. Wellbery filed a
brief for appellants Discovery Communications, Inc., et al.
Robert D. Joffe, Stuart W. Gold, Edward J. Weiss, Brian
Conboy, and Theodore Case Whitehouse filed a brief for
appellant Time Warner Entertainment Co.
Solicitor General Days argued the cause for appellees.
With him on the brief for the federal appellees were Assist-
ant Attorney General Hunger, Deputy Solicitor General
Wallace, Christopher J. Wright, Douglas N. Letter, Bruce
G Forrest, and Jonathan R. Siegel. Mark H. Lynch, Rich-
ard W. Buchanan, Marilyn Mohrman-Gillis, Paula A.
Jameson, and Nancy Howell Hendry filed a brief for appel-
lees Association of America's Public Television Stations et
al. Rex E. Lee, Carter G Phillips, Robert A Beizer, Mark
D. Hopson, and James J. Popham filed a brief for appellee
Association of Independent Television Stations, Inc. An-
gela J. Campbell, Elliot M. Mincberg, Andrew Jay Schwartz-
man, and Gigi B. Sohn filed a brief for appellees Consumer
Federation of America et al. Bruce J. Ennis, Jr., David
Wi Ogden, Donald B. Verrilli, Jr., Ann M. Kappler, Nory
Opinion of the Court
Miller, Benjamin F. P. Ivins, Jack N. Goodman, and Kath-
leen M. Sullivan filed a brief for appellee National Associa-
tion of Broadcasters.*
JUSTICE KENNEDY announced the judgment of the Court
and delivered the opinion of the Court, except as to Part
III-B.
Sections 4 and 5 of the Cable Television Consumer Protec-
tion and Competition Act of 1992 require cable television sys-
tems to devote a portion of their channels to the transmission
of local broadcast television stations. This case presents the
question whether these provisions abridge the freedom of
speech or of the press, in violation of the First Amendment.
The United States District Court for the District of Co-
lumbia granted summary judgment for the United States,
*Briefs of amid curiae urging reversal were filed for the Courtroom
Television Network by Floyd Abrams; for the Media Institute by Sol
Schildhause; for the New Inspirational Network by James S. Blitz; and
for the United States Telephone Association et al. by Laurence H. Tribe,
Jonathan S. Massey, Michael W. McConnell, Kenneth £ Geller, Kenneth
W. Starr, Paul T. Cappuccio, Michael K. Kellogg, Mark L. Evans, James
R. Young, John Thorne, Robert A. Levetown, Gerald E. Murray, Liam S.
Coonan, Thomas P. Hester, Walter H. Alford, William B. Barfield, and
Richard W. Odgers.
Briefs of amid curiae urging affirmance were filed for the State
of Connecticut by Richard Blumenthal, Attorney General, Wilham B.
Gundling, Associate Attorney General, and Phillip Rosano, Assistant At-
torney General; for the City of Los Angeles et al. by Larrine S. Holbrooke,
Teresa D Baer, James K Hahn, and Edward J. Perez; for the National
Association of Telecommunications Officers and Advisors et aL by Robert
Alan Garrett and David Frohlich; and for Telemundo Group, Inc., by Wil-
liam S. Reyner, Jr., and Marvin J. Diamond.
Briefs of amid curiae were filed for the American Civil Liberties Union
by Burt Neuborne, Steven R. Shapiro, Marjorie Heins, and Arthur N.
Eiseriberg; for the California Cable Television Association by Frank W.
Lloyd III; for the Citizens for a Sound Economy Foundation by Mark R.
Paoletta; and for DirecTv, Inc., et al. by Lawrence R. Sidman and John
B. Richards.
Opinion of the Court
holding that the challenged provisions are consistent with
the First Amendment. Because issues of material fact
remain unresolved in the record as developed thus far, we
vacate the District Court's judgment and remand the case
for further proceedings.
I
A
The role of cable television in the Nation's communications
system has undergone dramatic change over the past 45
years. Given the pace of technological advancement and the
increasing convergence between cable and other electronic
media, the cable industry today stands at the center of an
ongoing telecommunications revolution with still undefined
potential to affect the way we communicate and develop our
intellectual resources.
The earliest cable systems were built in the late 1940's to
bring clear broadcast television signals to remote or moun-
tainous communities. The purpose was not to replace
broadcast television but to enhance it. See United States
v. Southwestern Cable Co., 392 U. S. 157, 161-164 (1968);
D. Brenner, M. Price, & M. Meyerson, Cable Television and
Other Nonbroadcast Video §1.02 (1992); M. Hamburg, All
About Cable, ch. 1 (1979). Modern cable systems do much
more than enhance the reception of nearby broadcast televi-
sion stations. With the capacity to carry dozens of channels
and import distant programming signals via satellite or mi-
crowave relay, today's cable systems are in direct competi-
tion with over-the-air broadcasters as an independent source
of television programming.
Broadcast and cable television are distinguished by the
different technologies through which they reach viewers.
Broadcast stations radiate electromagnetic signals from a
central transmitting antenna. These signals can be captured,
in turn, by any television set within the antenna's range.
Cable systems, by contrast, rely upon a physical, point-to-
Opinion of the Court
point connection between a transmission facility and the tele-
vision sets of individual subscribers. Cable systems make
this connection much like telephone companies, using cable
or optical fibers strung aboveground or buried in ducts to
reach the homes or businesses of subscribers. The construc-
tion of this physical infrastructure entails the use of public
rights-of-way and easements and often results in the disrup-
tion of traffic on streets and other public property. As a
result, the cable medium may depend for its very existence
upon express permission from local governing authorities.
See generally Community Communications Co. v. Boulder,
660 F. 2d 1370, 1377-1378 (CA10 1981).
Cable technology affords two principal benefits over
broadcast. First, it eliminates the signal interference some-
times encountered in over-the-air broadcasting and thus
gives viewers undistorted reception of broadcast stations.
Second, it is capable of transmitting many more channels
than are available through broadcasting, giving subscribers
access to far greater programming variety. More than half
of the cable systems in operation today have a capacity to
carry between 30 and 53 channels. Television and Cable
Factbook, Services Vol. No. 62, p. 1-69 (1994). And about
40 percent of cable subscribers are served by systems with
a capacity of more than 53 channels. Ibid. Newer systems
can carry hundreds of channels, and many older systems are
being upgraded with fiber optic rebuilds and digital compres-
sion technology to increase channel capacity. See, e. g.,
Cablevision Systems Adds to Rapid Fiber Growth in Cable
Systems, Communications Daily 6-7 (Feb. 26, 1993).
The cable television industry includes both cable operators
(those who own the physical cable network and transmit the
cable signal to the viewer) and cable programmers (those
who produce television programs and sell or license them to
cable operators). In some cases, cable operators have ac-
quired ownership of cable programmers, and vice versa. Al-
though cable operators may create some of their own pro-
as: oiz u. b. t>2&! (1^94) 629
Opinion of the Court
gramming, most of their programming is drawn from outside
sources. These outside sources include not only local or dis-
tant broadcast stations, but also the many national and re-
gional cable programming networks that have emerged in
recent years, such as CNN, MTV, ESPN, TNT, C-SPAN,
The Family Channel, Nickelodeon, Arts and Entertainment,
Black Entertainment Television, CourtTV, The Discovery
Channel, American Movie Classics, Comedy Central, The
Learning Channel, and The Weather Channel Once the
cable operator has selected the programming sources, the
cable system functions, in essence, as a conduit for the speech
of others, transmitting it on a continuous and unedited basis
to subscribers. See Brenner, Cable Television and the Free-
dom of Expression, 1988 Duke L. J. 329, 339 ("For the most
part, cable personnel do not review any of the material pro-
vided by cable networks. . . . [C]able systems have no con-
scious control over program services provided by others").
In contrast to commercial broadcast stations, which trans-
mit signals at no charge to viewers and generate revenues
by selling time to advertisers, cable systems charge sub-
scribers a monthly fee for the right to receive cable program-
ming and rely to a lesser extent on advertising. In most
instances, cable subscribers choose the stations they will re-
ceive by selecting among various plans, or "tiers," of cable
service. In a typical offering, the basic tier consists of local
broadcast stations plus a number of cable programming net-
works selected by the cable operator. For an additional
cost, subscribers can obtain channels devoted to particular
subjects or interests, such as recent-release feature movies,
sports, children's programming, sexually explicit program-
ming, and the like. Many cable systems also offer pay-per-
view service, which allows an individual subscriber to order
and pay a one-time fee to see a single movie or program at
a set time of the day. See J. Goodale, All About Cable: Legal
and Business Aspects of Cable and Pay Television § 5.05[2]
(1989); Brenner, supra, at 334, n. 22.
Opinion of the Court
B
On October 5, 1992, Congress overrode a Presidential veto
to enact the Cable Television Consumer Protection and Com-
petition Act of 1992, Pub. L. 102-385, 106 Stat. 1460 (1992
Cable Act or Act). Among other things, the Act subjects
the cable industry to rate regulation by the Federal Commu-
nications Commission (FCC) and by municipal franchising
authorities; prohibits municipalities from awarding exclusive
franchises to cable operators; imposes various restrictions on
cable programmers that are affiliated with cable operators;
and directs the FCC to develop and promulgate regulations
imposing minimum technical standards for cable operators.
At issue in this case is the constitutionality of the so-called
must-carry provisions, contained in §§4 and 5 of the Act,
which require cable operators to carry the signals of a speci-
fied number of local broadcast television stations.
Section 4 requires carriage of "local commercial television
stations," defined to include all full power television broad-
casters, other than those qualifying as "noncommercial edu-
cational" stations under §5, that operate within the same
television market as the cable system. § 4, 47 U. S. C.
§§534(b)(l)(B), (h)(l)(A) (1988 ed., Supp. IV).1 Cable sys-
tems with more than 12 active channels, and more than 300
subscribers, are required to set aside up to one-third of their
channels for commercial broadcast stations that request
carriage. § 534(b)(l)(B), Cable systems with more than
300 subscribers, but only 12 or fewer active channels, must
1 Although a cable system's local television market is defined by regula-
tion, see 47 CFR § 73.3555(d)(3)(i) (1993), the FCC is authorized to make
special market determinations upon request to better effectuate the pur-
poses of the Act See 1992 Cable Act §4, 47 U. S. C. § 684(h)(l)(C) (1988
ed., Supp. IV).
Opinion of the Court
carry the signals of three commercial broadcast stations.
§534(b)(l)(A).2
If there are fewer broadcasters requesting carriage than
slots made available under the Act, the cable operator is ob-
ligated to carry only those broadcasters who make the
request. If, however, there are more requesting broadcast
stations than slots available, the cable operator is permitted
to choose which of these stations it will carry. § 534(b)(2).3
The broadcast signals carried under this provision must be
transmitted on a continuous, uninterrupted basis, § 534(b)(3),
and must be placed in the same numerical channel position
as when broadcast over the air, § 534(b)(6). Further, subject
to a few exceptions, a cable operator may not charge a fee
for carrying broadcast signals in fulfillment of its must-carry
obligations. §534(b)(10).
Section 5 of the Act imposes similar requirements regard-
ing the carriage of local public broadcast television stations,
2 If there are not enough local full power commercial broadcast stations
to fill the one-third allotment, a cable system with up to 35 active channels
must carry one qualified low power station and an operator with more
than 35 channels must carry two of them. See §534(c)(l); see also
§ 534(h)(2) (defining "qualified low power station")- Low power television
stations are small broadcast entities that transmit over a limited geo-
graphic range. They are licensed on a secondary basis and are permitted
to operate only if they do not interfere with the signals of fiill power
broadcast stations.
3 Cable systems are not required to carry the signal of any local commer-
cial television station that "substantially duplicates" the signal of any
other broadcast station carried on the system. § 534(b)(5); see also In re
Implementation of the Cable Television Consumer Protection and Com-
petition Act of 1992 (Broadcast Signal Carriage Issues), No. 92-259, Mar.
29, 1993, f 19 (defining "substantial duplication" as a 50 percent overlap in
programming). Nor are they required to carry the signals of more than
one station affiliated with each national broadcast network. If the cable
operator does choose to carry broadcast stations with duplicative program-
ming, however, the system is credited with those stations for purposes of
its must-carry obligations. §534(b)(5).
Opinion of the Court
referred to in the Act as local "noncommercial educational
television stations." 47 U. S. C. §535(a) (1988 ed., Supp.
IV).4 A cable system with 12 or fewer channels must carry
one of these stations; a system of between 13 and 36 channels
must carry between one and three; and a system with more
than 36 channels must carry each local public broadcast sta-
tion requesting carriage. §§ 535(b)(2)(A), (b)(3)(A), (b)(3)(D).
The Act requires a cable operator to import distant signals
in certain circumstances but provides protection against
substantial duplication of local noncommercial educational
stations. See §§ 535(b)(3)(B), (e). As with commercial
broadcast stations, §5 requires cable system operators to
carry the program schedule of the public broadcast station
in its entirety and at its same over-the-air channel position.
§§535(g)(l),(g)(6).
Taken together, therefore, §§4 and 5 subject all but the
smallest cable systems nationwide to must-carry obligations,
and confer must-carry privileges on all full power broadcast-
ers operating within the same television market as a quali-
fied cable system.
C
Congress enacted the 1992 Cable Act after conducting
three years of hearings on the structure and operation of the
cable television industry. See S. Rep. No. 102-92, pp. 3-4
(1991) (describing hearings); H. R. Rep. No. 102-628, p. 74
(1992) (same). The conclusions Congress drew from its fact-
finding process are recited in the text of the Act itself. See
§§ 2(a)(l)-(21). In brief, Congress found that the physical
characteristics of cable transmission, compounded by the in-
4 "Noncommercial educational television station[sT are defined to in-
clude broadcast stations that are either (1) licensed by the FCC as a "non-
commercial educational television broadcast station" and have, as licens-
ees, entities which are eligible to receive grants from the Corporation
for Public Broadcasting; or (2) owned and operated by a municipality and
transmit "predominantly noncommercial programs for educational pur-
poses." §§535(0(1)(A)-(B).
Opinion of the Court
creasing concentration of economic power in the cable indus-
try, are endangering the ability of over-the-air broadcast
television stations to compete for a viewing audience and
thus for necessary operating revenues. Congress deter-
mined that regulation of the market for video programming
was necessary to correct this competitive imbalance.
In particular, Congress found that over 60 percent of the
households with television sets subscribe to cable, §2(a)(3),
and for these households cable has replaced over-the-air
broadcast television as the primary provider of video pro-
gramming, §2(a)(17). This is so, Congress found, because
"[m]ost subscribers to cable television systems do not or can-
not maintain antennas to receive broadcast television serv-
ices, do not have input selector switches to convert from a
cable to antenna reception system, or cannot otherwise re-
ceive broadcast television services." Ibid. In addition,
Congress concluded that due to "local franchising require-
ments and the extraordinary expense of constructing more
than one cable television system to serve a particular geo-
graphic area/* the overwhelming majority of cable operators
exercise a monopoly over cable service. § 2(a)(2). "The re-
sult," Congress determined, "is undue market power for the
cable operator as compared to that of consumers and video
programmers." Ibid.
According to Congress, this market position gives cable
operators the power and the incentive to harm broadcast
competitors. The power derives from the cable operator's
ability, as owner of the transmission facility, to "terminate
the retransmission of the broadcast signal, refuse to carry
new signals, or reposition a broadcast signal to a disadvanta-
geous channel position." §2(a)(15). The incentive derives
from the economic reality that "[c]able television systems
and broadcast television stations increasingly compete for
television advertising revenues." §2(a)(14). By refusing
carriage of broadcasters' signals, cable operators, as a practi-
cal matter, can reduce the number of households that have
Opinion of the Court
access to the broadcasters' programming, and thereby cap-
ture advertising dollars that would otherwise go to broad-
cast stations. § 2(a)(15).
Congress found, in addition, that increased vertical inte-
gration in the cable industry is making it even harder for
broadcasters to secure carriage on cable systems, because
cable operators have a financial incentive to favor their affil-
iated programmers. §2(a)(5). Congress also determined
that the cable industry is characterized by horizontal concen-
tration, with many cable operators sharing common owner-
ship. This has resulted in greater "barriers to entry for
new programmers and a reduction in the number of media
voices available to consumers." §2(a)(4).
In light of these technological and economic conditions,
Congress concluded that unless cable operators are required
to carry local broadcast stations, "[t]here is a substantial like-
lihood that . . . additional local broadcast signals will be de-
leted, repositioned, or not carried/' §2(a)(15); the "marked
shift in market share" from broadcast to cable will continue
to erode the advertising revenue base which sustains free
local broadcast television, §§ 2(a)(13)-(14); and that, as a con-
sequence, "the economic viability of free local broadcast tele-
vision and its ability to originate quality local programming
will be seriously jeopardized," § 2(a)(16).
D
Soon after the Act became law, appellants filed these five
consolidated actions in the United States District Court for
the District of Columbia against the United States and the
Federal Communications Commission (hereinafter referred
to collectively as the Government), challenging the constitu-
tionality of the must-carry provisions. Appellants, plaintiffs
below, are numerous cable programmers and cable operators.
After additional parties intervened, a three-judge District
Court convened under 28 U. S. C. § 2284 to hear the actions.
1992 Cable Act §23, 47 U. S. C. §555(c)(l) (1988 ed., Supp.
Cite as: 512 U. S. 622 (1994) 635
Opinion of the Court
IV). Each of the plaintiffs filed a motion for summary judg-
ment; several intervenor-defendants filed cross-motions for
summary judgment; and the Government filed a cross-motion
to dismiss. Although the Government had not asked for
summary judgment, the District Court, in a divided opinion,
granted summary judgment in favor of the Government and
the other intervenor-defendants, ruling that the must-carry
provisions are consistent with the First Amendment. 819
F. Supp. 32 (1993).
The court found that in enacting the must-carry provi-
sions, Congress employed "its regulatory powers over the
economy to impose order upon a market in dysfunction."
Id., at 40. The court characterized the 1992 Cable Act as
"simply industry-specific antitrust and fair trade practice
regulatory legislation," ibid., and said that the must-carry
requirements "are essentially economic regulation designed
to create competitive balance in the video industry as a
whole, and to redress the effects of cable operators* anti-
competitive practices," ibid. The court rejected appellants5
contention that the must-carry requirements warrant strict
scrutiny as a content-based regulation, concluding that both
the commercial and public broadcast provisions "are, in in-
tent as well as form, unrelated (in all but the most recondite
sense) to the content of any messages that [the] cable opera-
tors, broadcasters, and programmers have in contemplation
to deliver." Ibid. The court proceeded to sustain the
must-carry provisions under the intermediate standard of
scrutiny set forth in United States v. O'Brien, 391 U. S. 367
(1968), concluding that the preservation of local broadcasting
is an important governmental interest, and that the must-
carry provisions are sufficiently tailored to serve that inter-
est. 819 F. Supp., at 45-47.
Judge Williams dissented. He acknowledged the "very
real problem" that "cable systems control access 'bottle-
necks' to an important communications medium," id.9 at 57,
but concluded that Congress may not address that problem
636 TURNER BROADCASTING SYSTEM, INC. u PCC
Opinion of the Court
by extending access rights only to broadcast television sta-
tions. In his view, the must-carry rules are content based,
and thus subject to strict scrutiny, because they require
cable operators to carry speech they might otherwise choose
to exclude, and because Congress' decision to grant favorable
access to broadcast programmers rested "in part, but quite
explicitly, on a finding about their content." Id., at 58.
Applying strict scrutiny, Judge Williams determined that the
interests advanced in support of the law are inadequate to
justify it. While assuming "as an abstract matter" that the
interest in preserving access to free television is compelling,
he found "no evidence that this access is in jeopardy." Id.,
at 62. Likewise, he concluded that the rules are insuffi-
ciently tailored to the asserted interest in programming di-
versity because cable operators "now carry the vast majority
of local stations," and thus to the extent the rules have any
effect at all, "it will be only to replace the mix chosen by
cablecasters — whose livelihoods depend largely on satisfying
audience demand — with a mix derived from congressional
dictate." Id., at 61.
This direct appeal followed, see §23, 47 U. S. C. §555(c)(l)
(1988 ed., Supp. IV), and we noted probable jurisdiction.
509 U. S. 952 (1993).
II
There can be no disagreement on an initial premise:
Cable programmers and cable operators engage in and trans-
mit speech, and they are entitled to the protection of the
speech and press provisions of the First Amendment. Leath-
ers v. Medlock, 499 U S. 439, 444 (1991). Through "original
programming or by exercising editorial discretion over
which stations or programs to include in its repertoire,"
cable programmers and operators "see[k] to communicate
messages on a wide variety of topics and in a wide variety
of formats." Los Angeles v. Preferred Communications,
Inc., 476 U. S. 488, 494 (1986). By requiring cable systems
to set aside a portion of their channels for local broadcasters,
Cite as: 512 U. S. 622 (1994) 637
Opinion of the Court
the must-carry rules regulate cable speech in two respects:
The rules reduce the number of channels over which cable
operators exercise unfettered control, and they render it
more difficult for cable programmers to compete for carriage
on the limited channels remaining. Nevertheless, because
not every interference with speech triggers the same degree
of scrutiny under the First Amendment, we must decide at
the outset the level of scrutiny applicable to the must-carry
provisions.
A
We address first the Government's contention that regula-
tion of cable television should be analyzed under the same
First Amendment standard that applies to regulation of
broadcast television. It is true that our cases have permit-
ted more intrusive regulation of broadcast speakers than of
speakers in other media. Compare Red Lion Broadcasting
Co. v. FCC, 395 U. S. 367 (1969) (television), and National
Broadcasting Co. v. United States, 319 U. S. 190 (1943)
(radio), with Miami Herald Publishing Co. v. Tornillo, 418
U. S. 241 (1974) (print), and Riley v. National Federation of
Blind of N. G, Inc., 487 U. S. 781 (1988) (personal solicita-
tion). But the rationale for applying a less rigorous stand-
ard of First Amendment scrutiny to broadcast regulation,
whatever its validity in the cases elaborating it, does not
apply in the context of cable regulation.
The justification for our distinct approach to broadcast
regulation rests upon the unique physical limitations of the
broadcast medium. See FCC v. League of Women Voters of
CaL, 468 U. S. 364, 377 (1984); Red Lion, supra, at 388-389,
396-399; National Broadcasting Co., 319 U. S., at 226. As a
general matter, there are more would-be broadcasters than
frequencies available in the electromagnetic spectrum. And
if two broadcasters were to attempt to transmit over the
same frequency in the same locale, they would interfere with
one another's signals, so that neither could be heard at alL
Id., at 212. The scarcity of broadcast frequencies thus re-
638 TURNER BROADCASTING SYSTEM, INC. v. FCC
Opinion of the Court
quired the establishment of some regulatory mechanism to
divide the electromagnetic spectrum and assign specific fre-
quencies to particular broadcasters. See FCC v. League of
Women Voters, supra, at 377 ("The fundamental distinguish-
ing characteristic of the new medium of broadcasting ... is
that [b]roadcast frequencies are a scarce resource [that] must
be portioned out among applicants") (internal quotation
marks omitted); FCC v. National Citizens Comm. for
Broadcasting, 436 U. S. 775, 799 (1978). In addition, the in-
herent physical limitation on the number of speakers who
may use the broadcast medium has been thought to require
some adjustment in traditional First Amendment analysis to
permit the Government to place limited content restraints,
and impose certain affirmative obligations, on broadcast li-
censees. Red Lion, 395 U. S., at 390. As we said in Red
Lion, "[w]here there are substantially more individuals who
want to broadcast than there are frequencies to allocate, it
is idle to posit an unabridgeable First Amendment right to
broadcast comparable to the right of every individual to
speak, write, or publish." Id., at 388; see also Columbia
Broadcasting System, Inc. v. Democratic National Commit-
tee, 412 U. S. 94, 101 (1973).
Although courts and commentators have criticized the
scarcity rationale since its inception,5 we have declined to
question its continuing validity as support for our broadcast
jurisprudence, see FCC v. League of Women Voters, supra,
at 376, n. 11, and see no reason to do so here. The broadcast
5 See, e. g., Telecommunications Research and Action Center v. FCC,
801 R 2d 501, 508-509 (CADC 1986), cert, denied, 482 U. S. 919 (1987);
L, Bollinger, Images of a Free Press 87-90 (1991); L. Powe, American
Broadcasting and the First Amendment 197-209 (1987); M. Spitzer, Seven
Dirty Words and Six Other Stories 7-18 (1986); Note, The Message in the
Medium: The First Amendment on the Information Superhighway, 107
Harv. L. Rev. 1062, 1072-1074 (1994); Winer, The Signal Cable Sends—
Part I: Why Can't Cable Be More Like Broadcasting?, 46 Md. L. Rev. 212,
218-240 (1987); Coase, The Federal Communications Commission, 2 J.
Law & Econ. 1, 12-27 (1959).
Cite as: 512 U. S. 622 (1994) 639
Opinion of the Court
cases are inapposite in the present context because cable
television does not suffer from the inherent limitations that
characterize the broadcast medium. Indeed, given the rapid
advances in fiber optics and digital compression technology,
soon there may be no practical limitation on the number of
speakers who may use the cable medium. Nor is there any
danger of physical interference between two cable speakers
attempting to share the same channel. In light of these fun-
damental technological differences between broadcast and
cable transmission, application of the more relaxed standard
of scrutiny adopted in Red Lion and the other broadcast
cases is inapt when determining the First Amendment valid-
ity of cable regulation. See Bolger v. Youngs Dricg Prod-
ucts Corp., 463 U. S. 60, 74 (1983) ("Our decisions have recog-
nized that the special interest of the Federal Government in
regulation of the broadcast media does not readily translate
into a justification for regulation of other means of communi-
cation") (footnote omitted).
This is not to say that the unique physical characteristics
of cable transmission should be ignored when determining
the constitutionality of regulations affecting cable speech.
They should not. See m/ra, at 656. But whatever rele-
vance these physical characteristics may have in the evalua-
tion of particular cable regulations, they do not require the
alteration of settled principles of our First Amendment
jurisprudence.
Although the Government acknowledges the substantial
technological differences between broadcast and cable, see
Brief for Federal Appellees 22, it advances a second ar-
gument for application of the Red Lion framework to cable
regulation. It asserts that the foundation of our broadcast
jurisprudence is not the physical limitations of the electro-
magnetic spectrum, but rather the "market dysfunction" that
characterizes the broadcast market. Because the cable mar-
ket is beset by a similar dysfunction, the Government main-
tains, the Red Lion standard of review should also apply to
640 TURNER BROADCASTING SYSTEM, INC. v. FCC
Opinion of the Court
cable. While we agree that the cable market suffers certain
structural impediments, the Government's argument is
flawed in two respects. First, as discussed above, the spe-
cial physical characteristics of broadcast transmission, not
the economic characteristics of the broadcast market, are
what underlies our broadcast jurisprudence. See League of
Women Voters, 468 U. S., at 377; National Citizens Comm.
for Broadcasting, supra, at 799; Red Lion, supra, at 390.
Second, the mere assertion of dysfunction or failure in a
speech market, without more, is not sufficient to shield a
speech regulation from the First Amendment standards ap-
plicable to nonbroadcast media. See, e. g., Austin v. Michi-
gan Chamber of Commerce, 494 U. S. 652, 657-658 (1990);
Federal Election Comm'n v. Massachusetts Citizens for
Life, Inc., 479 U. S. 238, 256-259 (1986); Miami Herald Pub-
lishing Co. v. Tornillo, 418 U. S., at 248-258.
By a related course of reasoning, the Government and
some appellees maintain that the must-carry provisions are
nothing more than industry-specific antitrust legislation, and
thus warrant rational-basis scrutiny under this Court's
"precedents governing legislative efforts to correct market
failure in a market whose commodity is speech," such as
Associated Press v. United States, 326 U. S. 1 (1945), and
Lorain Journal Co. v. United States, 342 U. S. 143 (1951).
See Brief for Federal Appellees 17. This contention is un-
availing. Associated Press and Lorain Journal both in-
volved actions against members of the press brought under
the Sherman Antitrust Act, a law of general application.
But while the enforcement of a generally applicable law may
or may not be subject to heightened scrutiny under the First
Amendment, compare Cohen v. Cowles Media Co., 501 U. S.
663, 670 (1991), with Barnes v. Glen Theatre, Inc., 501 U. S.
560, 566-567 (1991), laws that single out the press, or certain
elements thereof, for special treatment "pose a particular
danger of abuse by the State," Arkansas Writers' Project,
Inc. v. Ragland, 481 U. S. 221, 228 (1987), and so are always
Cite as: 512 U. S. 622 (1994) 641
Opinion of the Court
subject to at least some degree of heightened First Amend-
ment scrutiny. See Preferred Communications, 476 U. S.,
at 496 ('Where a law is subjected to a colorable First
Amendment challenge, the rule of rationality which will sus-
tain legislation against other constitutional challenges typi-
cally does not have the same controlling force"). Because
the must-carry provisions impose special obligations upon
cable operators and special burdens upon cable program-
mers, some measure of heightened First Amendment scru-
tiny is demanded. See Minneapolis Star & Tribune Co. v.
Minnesota Comm'r of Revenue, 460 U. S. 575, 583 (1983).
B
At the heart of the First Amendment lies the principle
that each person should decide for himself or herself the
ideas and beliefs deserving of expression, consideration, and
adherence. Our political system and cultural life rest upon
this ideal. See Leathers v. Medlock, 499 U. S., at 449 (citing
Cohen v. California, 403 U. S. 15, 24 (1971)); West Virginia
Bd. of Ed. v. Barnette, 319 U. S. 624, 638, 640-642 (1943).
Government action that stifles speech on account of its mes-
sage, or that requires the utterance of a particular message
favored by the Government, contravenes this essential right.
Laws of this sort pose the inherent risk that the Government
seeks not to advance a legitimate regulatory goal, but to sup-
press unpopular ideas or information or manipulate the pub-
lic debate through coercion rather than persuasion. These
restrictions "rais[e] the specter that the Government may
effectively drive certain ideas or viewpoints from the mar-
ketplace/' Simon & Schuster, Inc. v. Members ofN. Y. State
Crime Victims Ed., 502 U. S. 105, 116 (1991).
For these reasons, the First Amendment, subject only to
narrow and well-understood exceptions, does not counte-
nance governmental control over the content of messages
expressed by private individuals. R. A V. v. St. Paul, 505
U. S. 377, 382-383 (1992); Texas v. Johnson, 491 U. a 397,
642 TURNER BROADCASTING SYSTEM, INC. v FCC
Opinion of the Court
414 (1989). Our precedents thus apply the most exacting
scrutiny to regulations that suppress, disadvantage, or im-
pose differential burdens upon speech because of its content.
See Simon & Schuster, 502 U. S., at 115; id., at 125-126
(KENNEDY, J., concurring in judgment); Perry Ed. Assn. v.
Perry Local Educators' Assn., 460 U. S. 37, 45 (1983). Laws
that compel speakers to utter or distribute speech bearing a
particular message are subject to the same rigorous scrutiny.
See Riley v. National Federation for Blind of N. C, Inc.,
487 U. S., at 798; West Virginia Bd. of Ed. v. Barnette, supra.
In contrast, regulations that are unrelated to the content of
speech are subject to an intermediate level of scrutiny, see
Clark v. Community for Creative Non-Violence, 468 U. S.
288, 293 (1984), because in most cases they pose a less sub-
stantial risk of excising certain ideas or viewpoints from the
public dialogue.
Deciding whether a particular regulation is content based
or content neutral is not always a simple task. We have said
that the "principal inquiry in determining content neutrality
... is whether the government has adopted a regulation of
speech because of [agreement or] disagreement with the mes-
sage it conveys." Ward v. Rock Against Racism, 491 U. S.
781, 791 (1989). See R. A. V., supra, at 386 ("The govern-
ment may not regulate [speech] based on hostility — or favor-
itism— towards the underlying message expressed"). The
purpose, or justification, of a regulation will often be evident
on its face. See Frisby v. Schultz, 487 U. S. 474, 481 (1988).
But while a content-based purpose may be sufficient in cer-
tain circumstances to show that a regulation is content
based, it is not necessary to such a showing in all cases. Cf.
Simon & Schuster, supra, at 117 (" <[I]llicit legislative intent
is not the sine qua non of a violation of the First Amend-
ment'") (quoting Minneapolis Star & Tribune, supra, at
592). Nor will the mere assertion of a content-neutral pur-
pose be enough to save a law which, on its face, discriminates
Cite as: 512 U. S. 622 (1994) 643
Opinion of the Court
based on content. Arkansas Writers9 Project, 481 U. S., at
231-232; Carey v. Brown, 447 U. S. 455, 464-469 (1980).
As a general rule, laws that by their terms distinguish
favored speech from disfavored speech on the basis of the
ideas or views expressed are content based. See, e. g., Bur-
son v. Freeman, 504 U. S. 191, 197 (1992) ("Whether individu-
als may exercise their free-speech rights near polling places
depends entirely on whether their speech is related to a po-
litical campaign"); Boos v. Barry, 485 U. S. 312, 318-319
(1988) (plurality opinion) (whether municipal ordinance per-
mits individuals to "picket in front of a foreign embassy de-
pends entirely upon whether their picket signs are critical of
the foreign government or not"). By contrast, laws that
confer benefits or impose burdens on speech without refer-
ence to the ideas or views expressed are in most instances
content neutral. See, e. g.9 Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789, 804 (1984)
(ordinance prohibiting the posting of signs on public property
"is neutral — indeed it is silent — concerning any speaker's
point of view"); Heffron v. International Soc. for Krishna
Consciousness, Inc., 452 U. S. 640, 649 (1981) (State Fair reg-
ulation requiring that sales and solicitations take place at
designated locations "applies evenhandedly to all who wish
to distribute and sell written materials or to solicit funds").
Insofar as they pertain to the carriage of full-power broad-
casters, the must-carry rules, on their face, impose burdens
and confer benefits without reference to the content of
speech.6 Although the provisions interfere with cable oper-
6 The must-carry rules also require carriage, under certain limited cir-
cumstances, of low-power broadcast stations. 47 U. S. C. § 534(c); see n. 2,
supra. Under the Act, a low-power station may become eligible for car-
riage only if, among other things, the FCC determines that the station's
programming ''would address local news and informational needs which
are not being adequately served by full power television broadcast sta-
644 TURNER BROADCASTING SYSTEM, INC. v. FCC
Opinion of the Court
ators' editorial discretion by compelling them to offer car-
riage to a certain minimum number of broadcast stations,
the extent of the interference does not depend upon the con-
tent of the cable operators' programming. The rules impose
obligations upon all operators, save those with fewer than
300 subscribers, regardless of the programs or stations they
now offer or have offered in the past. Nothing in the Act
imposes a restriction, penalty, or burden by reason of the
views, programs, or stations the cable operator has selected
or will select. The number of channels a cable operator
must set aside depends only on the operator's channel capac-
ity, see 47 U. S. C. §§ 534(b)(l), 535(b)(2)-(3) (1988 e<L, Supp.
IV); hence, an operator cannot avoid or mitigate its obliga-
tions under the Act by altering the programming it offers
to subscribers. Cf. Miami Herald Publishing Co. v. Tor-
nillo, 418 U. S., at 256—257 (newspaper may avoid access
obligations by refraining from speech critical of political
candidates).
tions because of the geographic distance of such full power stations from
the low power station's community of license." § 534(h)(2)(B). We recog-
nize that this aspect of § 4 appears to single out certain low-power broad-
casters for special benefits on the basis of content. Because the District
Court did not address whether these particular provisions are content
based, and because the parties make only the most glancing reference to
the operation of, and justifications for, the low-power broadcast provisions,
we think it prudent to allow the District Court to consider the content-
neutral or content-based character of this provision in the first instance
on remand.
In a similar vein, although a broadcast station's eligibility for must-carry
is based upon its geographic proximity to a qualifying cable system,
§534(h)(l)(C)(i), the Act permits the FCC to grant must-carry privileges
upon request to otherwise ineligible broadcast stations. In acting upon
these requests, the FCC is directed to give "attention to the value
of localism" and, in particular, to whether the requesting station "pro-
vides news coverage of issues of concern to such community ... or
coverage of sporting and other events of interest to the community."
§ 534(h)(l)(C)(ii). Again, the District Court did not address this provi-
sion, but may do so on remand.
Cite as: 512 U. S. 622 (1994) 645
Opinion of the Court
The must-carry provisions also burden cable programmers
by reducing the number of channels for which they can com-
pete. But, again, this burden is unrelated to content, for it
extends to all cable programmers irrespective of the pro-
gramming they choose to offer viewers. Cf. Boos, supra, at
319 (individuals may picket in front of a foreign embassy
so long as their picket signs are not critical of the foreign
government). And finally, the privileges conferred by the
must-carry provisions are also unrelated to content. The
rules benefit all full power broadcasters who request car-
riage— be they commercial or noncommercial, independent
or network affiliated, English or Spanish language, religious
or secular. The aggregate effect of the rules is thus to make
every full power commercial and noncommercial broadcaster
eligible for must-carry, provided only that the broadcaster
operates within the same television market as a cable
system.
It is true that the must-carry provisions distinguish be-
tween speakers in the television programming market. But
they do so based only upon the manner in which speakers
transmit their messages to viewers, and not upon the mes-
sages they carry: Broadcasters, which transmit over the
airwaves, are favored, while cable programmers, which do
not, are disfavored. Cable operators, too, are burdened
by the carriage obligations, but only because they control
access to the cable conduit. So long as they are not a subtle
means of exercising a content preference, speaker distinc-
tions of this nature are not presumed invalid under the
First Amendment.
That the must-carry provisions, on their face, do not bur-
den or benefit speech of a particular content does not end the
inquiry. Our cases have recognized that even a regulation
neutral on its face may be content based if its manifest pur-
pose is to regulate speech because of the message it conveys.
United States v. Eichman, 496 U. S. 310, 315 (1990) ("Al-
though the Flag Protection Act contains no explicit content-
646 TURNER BROADCASTING SYSTEM, INC. u FCC
Opinion of the Court
based limitation on the scope of prohibited conduct, it is nev-
ertheless clear that the Government's asserted interest is
related to the suppression of free expression") (emphasis in
original) (internal quotation marks omitted); see also Ward,
491 U. S., at 791-792; Clark v. Community for Creative
Non-Violence, 468 U. S., at 293; cf. Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 534-535 (1993).
Appellants contend, in this regard, that the must-carry
regulations are content based because Congress' purpose in
enacting them was to promote speech of a favored content.
We do not agree. Our review of the Act and its various
findings persuades us that Congress' overriding objective in
enacting must-carry was not to favor programming of a par-
ticular subject matter, viewpoint, or format, but rather to
preserve access to free television programming for the 40
percent of Americans without cable.
In unusually detailed statutory findings, supra, at 632-634,
Congress explained that because cable systems and broad-
cast stations compete for local advertising revenue,
§§2(a)(14)~(15), and because cable operators have a vested
financial interest in favoring their affiliated programmers
over broadcast stations, §2(a)(5), cable operators have a
built-in "economic incentive ... to delete, reposition, or not
carry local broadcast signals/' §2(a)(16). Congress con-
cluded that absent a requirement that cable systems carry
the signals of local broadcast stations, the continued avail-
ability of free local broadcast television would be threatened.
Ibid. Congress sought to avoid the elimination of broadcast
television because, in its words, "[s]uch programming is ...
free to those who own television sets and do not require
cable transmission to receive broadcast television signals/'
§ 2(a)(12), and because "[t]here is a substantial governmental
interest in promoting the continued availability of such free
television programming, especially for viewers who are
unable to afford other means of receiving programming,"
ibid.
Cite as: 512 U. S. 622 (1994) 647
Opinion of the Court
By preventing cable operators from refusing carriage to
broadcast television stations, the must-carry rules ensure
that broadcast television stations will retain a large enough
potential audience to earn necessary advertising revenue —
or, in the case of noncommercial broadcasters, sufficient
viewer contributions, see §2(a)(8)(B) — to maintain their con-
tinued operation. In so doing, the provisions are designed
to guarantee the survival of a medium that has become a
vital part of the Nation's communication system, and to en-
sure that every individual with a television set can obtain
access to free television programming.
This overriding congressional purpose is unrelated to the
content of expression disseminated by cable and broadcast
speakers. Indeed, our precedents have held that "protect-
ing noncable households from loss of regular television
broadcasting service due to competition from cable systems,"
is not only a permissible governmental justification, but
an "important and substantial federal interest/' Capital
Cities Cable, Inc. v. Crisp, 467 U. S. 691, 714 (1984); see also
United States v. Midwest Video Corp., 406 U S. 649, 661-662,
664 (1972) (plurality opinion).
The design and operation of the challenged provisions con-
firm that the purposes underlying the enactment of the
must-carry scheme are unrelated to the content of speech.
The rules, as mentioned, confer must-carry rights on all full
power broadcasters, irrespective of the content of their pro-
gramming. They do not require or prohibit the carriage of
particular ideas or points of view. They do not penalize
cable operators or programmers because of the content of
their programming. They do not compel cable operators to
affirm points of view with which they disagree. They do not
produce any net decrease in the amount of available speech.
And they leave cable operators free to carry whatever pro-
gramming they wish on all channels not subject to must-
carry requirements.
648 TURNER BROADCASTING SYSTEM, INC. v. FCC
Opinion of the Court
Appellants and JUSTICE O'CONNOR make much of the fact
that, in the course of describing the purposes behind the Act,
Congress referred to the value of broadcast programming.
In particular, Congress noted that broadcast television is "an
important source of local news[,] public affairs programming
and other local broadcast services critical to an informed
electorate," §2(a)(ll); see also §2(a)(10), and that noncom-
mercial television "provides educational and informational
programming to the Nation's citizens/' § 2(a)(8). We do not
think, however, that such references cast any material doubt
on the content-neutral character of must-carry. That Con-
gress acknowledged the local orientation of broadcast pro-
gramming and the role that noncommercial stations have
played in educating the public does not indicate that Con-
gress regarded broadcast programming as more valuable
than cable programming. Rather, it reflects nothing more
than the recognition that the services provided by broadcast
television have some intrinsic value and, thus, are worth
preserving against the threats posed by cable. See 819
F. Supp., at 44 ("Congress' solicitousness for local broadcast-
ers' material simply rests on its assumption that they have
as much to say of interest or value as the cable programmers
who service a given geographic market audience").
The operation of the Act farther undermines the sugges-
tion that Congress' purpose in enacting must-carry was to
force programming of a "local" or "educational" content on
cable subscribers. The provisions, as we have stated, bene-
fit all full power broadcasters irrespective of the nature of
their programming. In fact, if a cable system were required
to bump a cable programmer to make room for a broadcast
station, nothing would stop a cable operator from displacing
a cable station that provides all local- or education-oriented
programming with a broadcaster that provides very little.
Appellants do not even contend, moreover, that broadcast
programming is any more "local" or "educational" than cable
programming. Cf. Leathers v. Medlock, 499 U. S., at 449
Cite as: 512 U. S. 622 (1994) 649
Opinion of the Court
(state law imposing tax upon cable television, but exempting
other media, is not content based, in part due to lack of evi-
dence that cable programming "differs systematically in its
message from that communicated by satellite broadcast pro-
gramming, newspapers, or magazines").
In short, Congress' acknowledgment that broadcast televi-
sion stations make a valuable contribution to the Nation's
communications system does not render the must-carry
scheme content based. The scope and operation of the chal-
lenged provisions make clear, in our view, that Congress de-
signed the must-carry provisions not to promote speech of a
particular content, but to prevent cable operators from ex-
ploiting their economic power to the detriment of broadcast-
ers, and thereby to ensure that all Americans, especially
those unable to subscribe to cable, have access to free televi-
sion programming — whatever its content.
We likewise reject the suggestion, advanced by appellants
and by Judge Williams in dissent, that the must-carry rules
are content based because the preference for broadcast sta-
tions "automatically entails content requirements/' 819
F. Supp., at 58. It is true that broadcast programming, un-
like cable programming, is subject to certain limited content
restraints imposed by statute and FCC regulation.7 But it
does not follow that Congress mandated cable carriage of
broadcast television stations as a means of ensuring that par-
7 See, e. g., 47 U. S. C. §303b (1988 ed., Supp. IV) (directing FCC to con-
sider extent to which license renewal applicant has "served the educational
and informational needs of children"); Pub. L. 102-356, § 16(a), 106 Stat.
954, note following 47 U. S. C. §303 (1988 ed, Supp. IV) (restrictions on
indecent programming); 47 U. S. C. § 312(a)(7) (allowing FCC to revoke
broadcast license for willful or repeated failure to allow reasonable access
to broadcast airtime for candidates seeking federal elective office); 47 CFR
§73.1920 (1993) (requiring broadcaster to notify victims of on-air personal
attacks and to provide victims with opportunity to respond over the air);
En Bane Programming Inquiry, 44 F. C. C. 2d 2303, 2312 (1960) (requiring
broadcasters to air programming that serves "the public interest, conven-
ience or necessity")-
650 TURNER BROADCASTING SYSTEM, INC. v. FCC
Opinion of the Court
ticular programs will be shown, or not shown, on cable
systems.
As an initial matter, the argument exaggerates the extent
to which the FCC is permitted to intrude into matters affect-
ing the content of broadcast programming. The FCC is for-
bidden by statute to engage in "censorship" or to promulgate
any regulation "which shall interfere with the [broadcast-
ers'] right of free speech." 47 U. S. C. §326. The FCC is
well aware of the limited nature of its jurisdiction, hav-
ing acknowledged that it "has no authority and, in fact, is
barred by the First Amendment and [§ 326] from interfering
with the free exercise of journalistic judgment." Hub-
bard Broadcasting, Inc., 48 F. C. C. 2d 517, 520 (1974).
In particular, the FCC's oversight responsibilities do not
grant it the power to ordain any particular type of program-
ming that must be offered by broadcast stations; for although
"the Commission may inquire of licensees what they have
done to determine the needs of the community they propose
to serve, the Commission may not impose upon them its pri-
vate notions of what the public ought to hear." Network
Programming Inquiry, Report and Statement of Policy, 25
Fed. Reg. 7293 (1960); see also Commercial TV Stations, 98
F. C. C. 2d 1076, 1091-1092 (1984), modified, 104 F. C. C. 2d
358 (1986), remanded in part on other grounds sub nom.
Action for Children's Television v. FCC, 821 F. 2d 741
(CADC 1987).
Stations licensed to broadcast over the special frequencies
reserved for "noncommercial educational" stations are
subject to no more intrusive content regulation than their
commercial counterparts. Noncommercial licensees must
operate on a nonprofit basis, may not accept financial consid-
eration in exchange for particular programming, and may not
broadcast promotional announcements or advertisements on
behalf of for-profit entities. 47 CFR §§ 73.621(dMe) (1993);
see generally Public Broadcasting, 98 F. C. C. 2d 746, 751
(1984); Educational Broadcast Stations, 90 F. C. C. 2d 895
Cite as: 512 U. S. 622 (1994) 651
Opinion of the Court
(1982), modified, 97 F. C. C. 2d 255 (1984). What is impor-
tant for present purposes, however, is that noncommercial
licensees are not required by statute or regulation to carry
any specific quantity of "educational" programming or any
particular "educational" programs. Noncommercial licens-
ees, like their commercial counterparts, need only adhere to
the general requirement that their programming serve "the
public interest, convenience or necessity." En Bane Pro-
gramming Inquiry, 44 F. C. C. 2d 2303, 2312 (1960). The
FCC itself has recognized that "a more rigorous standard for
public stations would come unnecessarily close to impinging
on First Amendment rights and would run the collateral risk
of stifling the creativity and innovative potential of these sta-
tions." Public Broadcasting, supra, at 751; see also Public
Radio and TV Programming, 87 R C. C. 2d 716, 728-729,
732, H 29-30, 37 (1981); Georgia State Bd. of Ed., 70
F. C. C. 2d 948 (1979).
In addition, although federal funding provided through the
Corporation for Public Broadcasting (CPB) supports pro-
gramming on noncommercial stations, the Government is
foreclosed from using its financial support to gain leverage
over any programming decisions. See 47 U. S. C. § 396(g)
(1)(D) (directing CPB to "carry out its purposes and functions
and engage in its activities in ways that will most effectively
assure the maximum freedom of the public telecommunica-
tions entities and systems from interference with, or control
of, program content or other activities"), §398(a) (CPB oper-
ates without interference from any department, agency, or
officer of the Federal Government, including the FCC).
Indeed, our cases have recognized that Government regu-
lation over the content of broadcast programming must be
narrow, and that broadcast licensees must retain abundant
discretion over programming choices. See FCC v. League
of Women Voters of CaL, 468 U. S., at 378-380, 386-392 (in-
validating under the First Amendment statute forbidding
any noncommercial educational station that receives a grant
652 TURNER BROADCASTING SYSTEM, INC. u FCC
Opinion of the Court
from the CPB to "engage in editorializing"); Columbia
Broadcasting System, Inc. v. Democratic National Commit-
tee, 412 U. S., at 126 (describing "the risk of an enlargement
of Government control over the content of broadcast discus-
sion of public issues" as being of "critical importance" to the
First Amendment). Thus, given the minimal extent to
which the FCC and Congress actually influence the program-
ming offered by broadcast stations, it would be difficult to
conclude that Congress enacted must-carry in an effort to
exercise content control over what subscribers view on cable
television. In a regime where Congress or the FCC exer-
cised more intrusive control over the content of broadcast
programming, an argument similar to appellants' might
carry greater weight. But in the present regulatory sys-
tem, those concerns are without foundation.
In short, the must-carry provisions are not designed to
favor or disadvantage speech of any particular content.
Rather, they are meant to protect broadcast television from
what Congress determined to be unfair competition by cable
systems. In enacting the provisions, Congress sought to
preserve the existing structure of the Nation's broadcast
television medium while permitting the concomitant expan-
sion and development of cable television, and, in particular,
to ensure that broadcast television remains available as
a source of video programming for those without cable.
Appellants' ability to hypothesize a content-based purpose
for these provisions rests on little more than speculation
and does not cast doubt upon the content-neutral character
of must-carry. Cf. Arizona v. California, 283 U. S. 423,
455-457 (1931). Indeed, "[i]t is a familiar principle of consti-
tutional law that this Court will not strike down an other-
wise constitutional statute on the basis of an alleged illicit
legislative motive." United States v. O'Brien, 391 U. S.,
at 383 (citing McCray v. United States, 195 U. S. 27, 56
(1904)).
Cite as: 512 U. S. 622 (1994) 653
Opinion of the Court
D
Appellants advance three additional arguments to support
their view that the must-carry provisions warrant strict
scrutiny. In brief, appellants contend that the provisions (1)
compel speech by cable operators, (2) favor broadcast pro-
grammers over cable programmers, and (3) single out certain
members of the press for disfavored treatment. None of
these arguments suffices to require strict scrutiny in the
present case.
1
Appellants maintain that the must-carry provisions trig-
ger strict scrutiny because they compel cable operators to
transmit speech not of their choosing. Relying principally
on Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241
(1974), appellants say this intrusion on the editorial control
of cable operators amounts to forced speech which, if not
per se invalid, can be justified only if narrowly tailored to a
compelling government interest.
Tornillo affirmed an essential proposition: The First
Amendment protects the editorial independence of the press.
The right-of-reply statute at issue in Tornillo required any
newspaper that assailed a political candidate's character to
print, upon request by the candidate and without cost, the
candidate's reply in equal space and prominence. Although
the statute did not censor speech in the traditional sense —
it only required newspapers to grant access to the messages
of others — we found that it imposed an impermissible
content-based burden on newspaper speech. Because the
right of access at issue in Tornillo was triggered only when
a newspaper elected to print matter critical of political candi-
dates, it "exact [ed] a penalty on the basis of ... content. "
Id., at 256. We found, and continue to recognize, that right-
of-reply statutes of this sort are an impermissible intrusion
on newspapers' "editorial control and judgment." Id., at
258.
654 TURNER BROADCASTING SYSTEM, INC. u FCC
Opinion of the Court
We explained that, in practical effect, Florida's right-of-
reply statute would deter newspapers from speaking in un-
favorable terms about political candidates:
"Faced with the penalties that would accrue to any
newspaper that published news or commentary arguably
within the reach of the right-of-access statute, editors
might well conclude that the safe course is to avoid con-
troversy. Therefore, under the operation of the Flor-
ida statute, political and electoral coverage would be
blunted or reduced." Id., at 257.
Moreover, by affording mandatory access to speakers with
which the newspaper disagreed, the law induced the news-
paper to respond to the candidates' replies when it might
have preferred to remain silent. See Pacific Gas & Elec.
Co. v. Public Util. Comm'n of CaL, 475 U. S. 1, 11 (1986)
(plurality opinion).
The same principles led us to invalidate a similar content-
based access regulation in Pacific Gas & Electric. At issue
was a rule requiring a privately owned utility, on a quarterly
basis, to include with its monthly bills an editorial newsletter
published by a consumer group critical of the utility's rate-
making practices. Although the access requirement appli-
cable to the utility, unlike the statutory mechanism in Tor-
nillo, was not triggered by speech of any particular content,
the plurality held that the same strict First Amendment
scrutiny applied. Like the statute in Tornillo, the regula-
tion conferred benefits to speakers based on viewpoint, giv-
ing access only to a consumer group opposing the utility's
practices. 475 U, S., at 13, 15. The plurality observed that
in order to avoid the appearance that it agreed with the
group's views, the utility would "feel compelled to respond
to arguments and allegations made by [the group] in its mes-
sages to [the utility's] customers." 7d, at 16. This "kind of
forced response," the plurality explained, "is antithetical to
Cite as: 512 U. S. 622 (1994) 655
Opinion of the Court
the free discussion that the First Amendment seeks to fos-
ter." Ibid.
Tornillo and Pacific Gas & Electric do not control this
case for the following reasons. First, unlike the access rules
struck down in those cases, the must-carry rules are content
neutral in application. They are not activated by any partic-
ular message spoken by cable operators and thus exact no
content-based penalty Cf. Riley v. National Federation of
Blind of N. C., Inc., 487 U. S., at 795 (solicitation of funds
triggers requirement to express government-favored mes-
sage). Likewise, they do not grant access to broadcasters
on the ground that the content of broadcast programming
will counterbalance the messages of cable operators. In-
stead, they confer benefits upon all full-power, local broad-
casters, whatever the content of their programming. Cf.
Pacific Gas & Electric^ supra, at 14 (access "awarded only
to those who disagree with appellant's views and who are
hostile to appellant's interests").
Second, appellants do not suggest, nor do we think it the
case, that must-carry will force cable operators to alter their
own messages to respond to the broadcast programming
they are required to carry See Brenner, Cable Television
and the Freedom of Expression, 1988 Duke L. J., at 379
("Other than adding new ideas — offensive, insightful or te-
dious— the [speaker granted access to cable] does not influ-
ence an operator's agenda")- Given cable's long history of
serving as a conduit for broadcast signals, there appears lit-
tle risk that cable viewers would assume that the broadcast
stations carried on a cable system convey ideas or messages
endorsed by the cable operator. Indeed, broadcasters are
required by federal regulation to identify themselves at least
once every hour, 47 CFR § 73.1201 (1993), and it is a common
practice for broadcasters to disclaim any identity of view-
point between the management and the speakers who use
the broadcast facility. Cf. PruneYard Shopping Center v.
Robins, 447 U. S. 74, 87 (1980) (noting that the views ex-
656 TURNER BROADCASTING SYSTEM, INC. u FCC
Opinion of the Court
pressed by speakers who are granted a right of access to a
shopping center would "not likely be identified with those of
the owner")- Moreover, in contrast to the statute at issue
in Tornillo, no aspect of the must-carry provisions would
cause a cable operator or cable programmer to conclude that
"the safe course is to avoid controversy," Tornillo, 418 U. S.,
at 257, and by so doing diminish the free flow of information
and ideas.
Finally, the asserted analogy to Tornillo ignores an impor-
tant technological difference between newspapers and cable
television. Although a daily newspaper and a cable operator
both may enjoy monopoly status in a given locale, the cable
operator exercises far greater control over access to the rele-
vant medium. A daily newspaper, no matter how secure its
local monopoly, does not possess the power to obstruct read-
ers' access to other competing publications — whether they
be weekly local newspapers, or daily newspapers published
in other cities. Thus, when a newspaper asserts exclusive
control over its own news copy, it does not thereby prevent
other newspapers from being distributed to willing recipi-
ents in the same locale.
The same is not true of cable. When an individual sub-
scribes to cable, the physical connection between the televi-
sion set and the cable network gives the cable operator bot-
tleneck, or gatekeeper, control over most (if not all) of the
television programming that is channeled into the subscrib-
er's home. Hence, simply by virtue of its ownership of the
essential pathway for cable speech, a cable operator can pre-
vent its subscribers from obtaining access to programming
it chooses to exclude. A cable operator, unlike speakers in
other media, can thus silence the voice of competing speakers
with a mere flick of the switch.8
8 As one commentator has observed: "The central dilemma of cable is
that it has unlimited capacity to accommodate as much diversity and as
many publishers as print, yet all of the producers and publishers use the
same physical plant. ... If the cable system is itself a publisher, it may
Cite as: 512 U. S. 622 (1994) 657
Opinion of the Court
The potential for abuse of this private power over a central
avenue of communication cannot be overlooked. See South-
eastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 55? (1975)
("Each medium of expression . . . must be assessed for First
Amendment purposes by standards suited to it, for each may
present its own problems")- The First Amendment's com-
mand that government not impede the freedom of speech
does not disable the government from taking steps to ensure
that private interests not restrict, through physical control
of a critical pathway of communication, the free flow of infor-
mation and ideas. See Associated Press v. United States,
326 U. S., at 20. We thus reject appellants' contention that
Tornillo and Pacific Gas & Electric require strict scrutiny
of the access rules in question here.
Second, appellants urge us to apply strict scrutiny because
the must-carry provisions favor one set of speakers (broad-
cast programmers) over another (cable programmers). Ap-
pellants maintain that as a consequence of this speaker pref-
erence, some cable programmers who would have secured
carriage in the absence of must-carry may now be dropped.
Relying on language in Buckley v. Valeo, 424 U. S. 1 (1976),
appellants contend that such a regulation is presumed invalid
under the First Amendment because the government may
not "restrict the speech of some elements of our society in
order to enhance the relative voice of others." Id., at 48-49.
To the extent appellants' argument rests on the view that
all regulations distinguishing between speakers warrant
strict scrutiny, see Brief for Appellants Turner Broadcasting
System, Inc., et al. 29, it is mistaken. At issue in Buckley
was a federal law prohibiting individuals from spending more
than $1,000 per year to support or oppose a particular politi-
cal candidate. The Government justified the law as a means
restrict the circumstances under which it allows others also to use its
system." I. de Sola Pool, Technologies of Freedom 168 (1983).
658 TURNER BROADCASTING SYSTEM, INC. v. FCC
Opinion of the Court
of "equalizing the relative ability of individuals and groups
to influence the outcome of elections." Buckley, 424 U. S.,
at 48. We rejected that argument with the observation that
Congress may not "abridge the rights of some persons to
engage in political expression in order to enhance the rela-
tive voice of other segments of our society." Id., at 49, n. 55.
Our holding in Buckley does not support appellants' broad
assertion that all speaker-partial laws are presumed invalid.
Rather, it stands for the proposition that speaker-based laws
demand strict scrutiny when they reflect the Government's
preference for the substance of what the favored speakers
have to say (or aversion to what the disfavored speakers
have to say). See Regan v. Taxation with Representation
of Wash., 461 U. S. 540, 548 (1983) (rejecting First Amend-
ment challenge to differential tax treatment of veterans
groups and other charitable organizations, but noting that
the case would be different were there any "indication that
the statute was intended to suppress any ideas or any dem-
onstration that it has had that effect"). Because the expend-
iture limit in Buckley was designed to ensure that the politi-
cal speech of the wealthy not drown out the speech of others,
we found that it was concerned with the communicative im-
pact of the regulated speech. See Buckley, supra, at 17
("[I]t is beyond dispute that the interest in regulating the
. . . giving or spending [of] money 'arises in some measure
because the communication ... is itself thought to be harm-
ful^) (quoting United States v. O'Brien, 391 U. S., at 382).
Indeed, were the expenditure limitation unrelated to the con-
tent of expression, there would have been no perceived need
for Congress to "equaliz[e] the relative ability" of interested
individuals to influence elections. 424 U. S., at 48. Buckley
thus stands for the proposition that laws favoring some
speakers over others demand strict scrutiny when the legis-
lature's speaker preference reflects a content preference.
The question here is whether Congress preferred broad-
casters over cable programmers based on the content of pro-
Cite as: 512 U. S. 622 (1994) 659
Opinion of the Court
gramming each group offers. The answer, as we explained,
supra, at 643-652, is no. Congress granted must-carry priv-
ileges to broadcast stations on the belief that the broadcast
television industry is in economic peril due to the physical
characteristics of cable transmission and the economic incen-
tives facing the cable industry. Thus, the fact that the pro-
visions benefit broadcasters and not cable programmers does
not call for strict scrutiny under our precedents.
Finally, appellants maintain that strict scrutiny applies be-
cause the must-carry provisions single out certain members
of the press — here, cable operators — for disfavored treat-
ment. See, e. g., Brief for Appellant Time Warner Enter-
tainment Co. 28-30. In support, appellants point out that
Congress has required cable operators to provide carriage
to broadcast stations, but has not imposed like burdens on
analogous video delivery systems, such as multichannel
multipoint distribution (MMDS) systems and satellite master
antenna television (SMATV) systems. Relying upon our
precedents invalidating discriminatory taxation of the press,
see, e. g., Arkansas Writers* Project, Inc. v. Ragland, 481
U. S. 221 (1987); Minneapolis Star & Tribune Co. v. Minne-
sota Comm'r of Revenue, 460 U. S. 575 (1983); Grosjean v.
American Press Co., 297 U. S. 233 (1936), appellants contend
that this sort of differential treatment poses a particular
danger of abuse by the Government and should be pre-
sumed invalid.
Regulations that discriminate among media, or among dif-
ferent speakers within a single medium, often present seri-
ous First Amendment concerns, Minneapolis Star, for ex-
ample, considered a use tax imposed on the paper and ink
used in the production of newspapers. We subjected the tax
to strict scrutiny for two reasons: first, because it applied
only to the press; and, second, because in practical applica-
tion it fell upon only a small number of newspapers. Minne-
660 TURNER BROADCASTING SYSTEM, INC. v FCC
Opinion of the Court
apolis Star, supra, at 585, 591-592; see also Grosjean, supra
(invalidating Louisiana tax on publications with weekly cir-
culations above 20,000, which fell on 13 of the approximately
135 newspapers distributed in the State). The sales tax at
issue in Arkansas Writers' Project, which applied to general
interest magazines but exempted religious, professional,
trade, and sports magazines, along with all newspapers, suf-
fered the second of these infirmities. In operation, the tax
was levied upon a limited number of publishers and also dis-
criminated on the basis of subject matter. Arkansas Writ-
ers9 Project, supra, at 229-230. Relying in part on Minne-
apolis Star, we held that this selective taxation of the press
warranted strict scrutiny. 481 U. S., at 231.
It would be error to conclude, however, that the First
Amendment mandates strict scrutiny for any speech regula-
tion that applies to one medium (or a subset thereof) but
not others. In Leathers v. Medlock, 499 U. S. 439 (1991), for
example, we upheld against First Amendment challenge the
application of a general state tax to cable television services,
even though the print media and scrambled satellite broad-
cast television services were exempted from taxation. As
Leathers illustrates, the fact that a law singles out a certain
medium, or even the press as a whole, "is insufficient by itself
to raise First Amendment concerns." Id., at 452. Rather,
laws of this nature are "constitutionally suspect only in cer-
tain circumstances/' Id., at 444. The taxes invalidated in
Minneapolis Star and Arkansas Writers' Project, for exam-
ple, targeted a small number of speakers, and thus threat-
ened to "distort the market for ideas." 499 U. S., at 448.
Although there was no evidence that an illicit governmental
motive was behind either of the taxes, both were structured
in a manner that raised suspicions that their objective was,
in fact, the suppression of certain ideas. See Arkansas
Writers9 Project, supra, at 228-229; Minneapolis Star, 460
U. S., at 585. But such heightened scrutiny is unwarranted
when the differential treatment is "justified by some special
Cite as: 512 U. S. 622 (1994) 661
Opinion of the Court
characteristic of" the particular medium being regulated.
Ibid.
The must-carry provisions, as we have explained above,
are justified by special characteristics of the cable medium:
the bottleneck monopoly power exercised by cable operators
and the dangers this power poses to the viability of broad-
cast television. Appellants do not argue, nor does it appear,
that other media — in particular, media that transmit video
programming such as MMDS and SMATV — are subject to
bottleneck monopoly control, or pose a demonstrable threat
to the survival of broadcast television. It should come as no
surprise, then, that Congress decided to impose the must-
carry obligations upon cable operators only.
In addition, the must-carry provisions are not structured
in a manner that carries the inherent risk of undermining
First Amendment interests. The regulations are broad
based, applying to almost all cable systems in the country,
rather than just a select few. See 47 U. S. C. §534(b)(l)
(1988 ed., Supp. IV) (only cable systems with fewer than 300
subscribers exempted from must-carry). As a result, the
provisions do not pose the same dangers of suppression and
manipulation that were posed by the more narrowly targeted
regulations in Minneapolis Star and Arkansas Writers'
Project. For these reasons, the must-carry rules do not call
for strict scrutiny. See Leathers, supra, at 449, 453 (uphold-
ing state sales tax which applied to about 100 cable systems
"offering a wide variety of programming" because the tax
was not "likely to stifle the free exchange of ideas" and posed
no "danger of suppression]").
Ill
A
In sum, the must-carry provisions do not pose such inher-
ent dangers to free expression, or present such potential for
censorship or manipulation, as to justify application of the
most exacting level of First Amendment scrutiny. We agree
662 TURNER BROADCASTING SYSTEM, INC. v. FCC
Opinion of the Court
with the District Court that the appropriate standard by
which to evaluate the constitutionality of must-carry is the
intermediate level of scrutiny applicable to content-neutral
restrictions that impose an incidental burden on speech.
See Ward v. Rock Against Racism, 491 U. S. 781 (1989);
United States v. O'Brien, 391 U. S. 367 (1968).
Under O'Brien, a content-neutral regulation will be sus-
tained if
"it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental re-
striction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that inter-
est/* Id., at 377.
To satisfy this standard, a regulation need not be the least
speech-restrictive means of advancing the Government's in-
terests. "Rather, the requirement of narrow tailoring is
satisfied 'so long as the . . . regulation promotes a substantial
government interest that would be achieved less effectively
absent the regulation/" Ward, supra, at 799 (quoting
United States v. Albertini, 472 U. S. 675, 689 (1985)). Nar-
row tailoring in this context requires, in other words, that
the means chosen do not "burden substantially more speech
than is necessary to further the government's legitimate in-
terests/' Ward, supra, at 799.
Congress declared that the must-carry provisions serve
three interrelated interests: (1) preserving the benefits of
free, over-the-air local broadcast television, (2) promoting the
widespread dissemination of information from a multiplicity
of sources, and (3) promoting fair competition in the market
for television programming. S. Rep. No. 102-92, p. 58
(1991); H. R, Rep. No. 102-628, p. 63 (1992); 1992 Cable Act,
§§ 2(a)(8), (9), and (10). None of these interests is related to
the "suppression of free expression," O'Brien, 391 U. S., at
377, or to the content of any speakers' messages. And
Cite as: 512 U. S. 622 (1994) 663
Opinion of the Court
viewed in the abstract, we have no difficulty concluding that
each of them is an important governmental interest. Ibid.
In the Communications Act of 1934, Congress created a
system of free broadcast service and directed that communi-
cations facilities be licensed across the country in a "fair,
efficient, and equitable" manner. Communications Act of
1934, §307(b), 48 Stat. 1083, 47 U. S. C. §307(b). Congress
designed this system of allocation to afford each community
of appreciable size an over-the-air source of information and
an outlet for exchange on matters of local concern. United
States v. Southwestern Cable Co., 392 U.S. 157, 173-174
(1968); Wollenberg, The FCC as Arbiter of "The Public In-
terest, Convenience, and Necessity/' in A Legislative His-
tory of the Communications Act of 1934, pp. 61, 62-70 (M.
Paglin ed. 1989). As we recognized in Southwestern Cable,
supra, the importance of local broadcasting outlets "can
scarcely be exaggerated, for broadcasting is demonstrably a
principal source of information and entertainment for a great
part of the Nation's population." Id., at 177. The interest
in maintaining the local broadcasting structure does not
evaporate simply because cable has come upon the scene.
Although cable and other technologies have ushered in alter-
natives to broadcast television, nearly 40 percent of Ameri-
can households still rely on broadcast stations as their exclu-
sive source of television programming. And as we said in
Capital Cities Cable9 Inc. v. Crisp, "protecting noncable
households from loss of regular television broadcasting serv-
ice due to competition from cable systems" is an important
federal interest. 467 U S., at 714.
Likewise, assuring that the public has access to a multi-
plicity of information sources is a governmental purpose of
the highest order, for it promotes values central to the First
Amendment. Indeed, "'it has long been a basic tenet of
national communications policy that "the widest possible
dissemination of information from diverse and antagonistic
sources is essential to the welfare of the public." *" United
664 TURNER BROADCASTING SYSTEM, INC. u FCC
Opinion of KENNEDY, J.
States v. Midwest Video Corp., 406 U. S., at 668, n. 27 (plural-
ity opinion) (quoting Associated Press v. United States, 326
U. S., at 20); see also FCC v. WNCN Listeners Guild, 450
U. S. 582, 594 (1981); FCC v. National Citizens Comm. for
Broadcasting, 436 U. S. 775, 795 (1978). Finally, the Gov-
ernment's interest in eliminating restraints on fair compe-
tition is always substantial, even when the individuals or
entities subject to particular regulations are engaged in ex-
pressive activity protected by the First Amendment. See
Lorain Journal Co. v. United States, 342 U. S. 143 (1951);
Associated Press v. United States, supra; cf. FTC v. Supe-
rior Court Trial Lawyers Assn., 493 U. S. 411, 431-432
(1990).
B
That the Government's asserted interests are important in
the abstract does not mean, however, that the must-carry
rules will in fact advance those interests. When the Gov-
ernment defends a regulation on speech as a means to re-
dress past harms or prevent anticipated harms, it must do
more than simply "posit the existence of the disease sought
to be cured/' Quincy Cable TV, Inc. v. FCC, 768 F. 2d 1434,
1455 (CADC 1985). It must demonstrate that the recited
harms are real, not merely conjectural, and that the regula-
tion will in fact alleviate these harms in a direct and material
way. See Edenfield v. Fane, 507 U. S. 761, 770-771 (1993);
Los Angeles v. Preferred Communications, Inc., 476 U. S.,
at 496 ("This Court may not simply assume that the ordi-
nance will always advance the asserted state interests suffi-
ciently to justify its abridgment of expressive activity") (in-
ternal quotation marks omitted); Home Box Office, Inc. v.
FCC, 567 F. 2d 9, 36 (CADC 1977) ("[A] 'regulation perfectly
reasonable and appropriate in the face of a given problem
may be highly capricious if that problem does not exist' ")
(citation omitted).
Thus, in applying O'Brien scrutiny we must ask first
whether the Government has adequately shown that the eco-
Cite as: 512 U. S. 622 (1994) 665
Opinion of KENNEDY, J.
nomic health of local broadcasting is in genuine jeopardy and
in need of the protections afforded by must-carry. Assum-
ing an affirmative answer to the foregoing question, the Gov-
ernment still bears the burden of showing that the remedy
it has adopted does not "burden substantially more speech
than is necessary to further the government's legitimate in-
terests." Ward, 491 U. S., at 799. On the state of the rec-
ord developed thus far, and in the absence of findings of fact
from the District Court, we are unable to conclude that the
Government has satisfied either inquiry.
In defending the factual necessity for must-carry, the Gov-
ernment relies in principal part on Congress' legislative
finding that, absent mandatory carriage rules, the continued
viability of local broadcast television would be "seriously
jeopardized." §2(a)(16). See Brief for Federal Appellees
31—32. The Government contends that this finding, though
predictive in nature, must be accorded great weight in the
First Amendment inquiry, especially when, as here, Con-
gress has sought to "address the relationship between two
technical, rapidly changing, and closely interdependent in-
dustries— broadcasting and cable/* Id., at 30.
We agree that courts must accord substantial deference to
the predictive judgments of Congress. See, e. g., Columbia
Broadcasting System, Inc. v. Democratic National Commit-
tee, 412 U. S., at 103 (The "judgment of the Legislative
Branch" should not be ignored "simply because [appellants]
cas[t] [their] claims under the umbrella of the First Amend-
ment"). Sound policymaking often requires legislators to
forecast future events and to anticipate the likely impact of
these events based on deductions and inferences for which
complete empirical support may be unavailable. See FCC
v. National Citizens Comm. for Broadcasting, supra, at 814;
FPC v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1,
29 (1961). As an institution, moreover, Congress is far bet-
ter equipped than the judiciary to "amass and evaluate the
vast amounts of data" bearing upon an issue as complex and
666 TURNER BROADCASTING SYSTEM, INC. u FCC
Opinion of KENNEDY, J.
dynamic as that presented here. Walters v. National Assn.
of Radiation Survivors, 473 U. S. 305, 331, n. 12 (1985).
And Congress is not obligated, when enacting its statutes, to
make a record of the type that an administrative agency or
court does to accommodate judicial review.
That Congress7 predictive judgments are entitled to sub-
stantial deference does not mean, however, that they are in-
sulated from meaningful judicial review altogether. On the
contrary, we have stressed in First Amendment cases that
the deference afforded to legislative findings does "not fore-
close our independent judgment of the facts bearing on an
issue of constitutional law." Sable Communications ofCaL,
Inc. v. FCC, 492 U. S, 115, 129 (1989); see also Landmark
Communications, Inc. v. Virginia, 435 U. S. 829, 843 (1978).
This obligation to exercise independent judgment when First
Amendment rights are implicated is not a license to reweigh
the evidence de novo, or to replace Congress' factual predic-
tions with our own. Rather, it is to assure that, in formulat-
ing its judgments, Congress has drawn reasonable inferences
based on substantial evidence. See Century Communica-
tions Corp. v. FCC, 835 F. 2d 292, 304 (CADC 1987) ("[W]hen
trenching on first amendment interests, even incidentally,
the government must be able to adduce either empirical sup-
port or at least sound reasoning on behalf of its measures").
The Government's assertion that the must-carry rules are
necessary to protect the viability of broadcast television
rests on two essential propositions: (1) that unless cable oper-
ators are compelled to carry broadcast stations, significant
numbers of broadcast stations will be refused carriage on
cable systems; and (2) that the broadcast stations denied car-
riage will either deteriorate to a substantial degree or fail
altogether.
As support for the first proposition, the Government relies
upon a 1988 FCC study showing, at a time when no must-
carry rules were in effect, that approximately 20 percent of
cable systems reported dropping or refusing carriage to one
Cite as: 512 U. S. 622 (1994) 667
Opinion of KENNEDY, J.
or more local broadcast stations on at least one occasion.
See Cable System Broadcast Signal Carriage Survey, Staff
Report by the Policy and Rules Division, Mass Media
Bureau, p. 10 (Sept. 1, 1988) (Table 2), cited in S. Rep.
No. 102-92, at 42-43. The record does not indicate, how-
ever, the time frame within which these drops occurred, or
how many of these stations were dropped for only a tempo-
rary period and then restored to carriage. The same FCC
study indicates that about 23 percent of the cable operators
reported shifting the channel positions of one or more local
broadcast stations, and that, in most cases, the repositioning
was done for "marketing" rather than "technical" reasons.
Id., at 44 (citing Signal Carriage Survey, supra, at 19, 22
(Tables 10 and 13)).
The parties disagree about the significance of these statis-
tics. But even if one accepts them as evidence that a large
number of broadcast stations would be dropped or reposi-
tioned in the absence of must-carry, the Government must
further demonstrate that broadcasters so affected would suf-
fer financial difficulties as a result. Without a more substan-
tial elaboration in the District Court of the predictive or
historical evidence upon which Congress relied, or the intro-
duction of some additional evidence to establish that the
dropped or repositioned broadcasters would be at serious
risk of financial difficulty, we cannot determine whether the
threat to broadcast television is real enough to overcome the
challenge to the provisions made by these appellants. We
think it significant, for instance, that the parties have not
presented any evidence that local broadcast stations have
fallen into bankruptcy, turned in their broadcast licenses,
curtailed their broadcast operations, or suffered a serious
reduction in operating revenues as a result of their being
dropped from, or otherwise disadvantaged by, cable systems.
The paucity of evidence indicating that broadcast televi-
sion is in jeopardy is not the only deficiency in this record.
Also lacking are any findings concerning the actual effects of
668 TURNER BROADCASTING SYSTEM, INC. v. FCC
Opinion of KENNEDY, J,
must-carry on the speech of cable operators and cable pro-
grammers— i. e., the extent to which cable operators will, in
fact, be forced to make changes in their current or antici-
pated programming selections; the degree to which cable
programmers will be dropped from cable systems to make
room for local broadcasters; and the extent to which cable
operators can satisfy their must-carry obligations by devot-
ing previously unused channel capacity to the carriage of
local broadcasters. The answers to these and perhaps other
questions are critical to the narrow tailoring step of the
O'Brien analysis, for unless we know the extent to which the
must-carry provisions in fact interfere with protected
speech, we cannot say whether they suppress "substantially
more speech than . . . necessary" to ensure the viability of
broadcast television. Ward, 491 U. S., at 799. Finally, the
record fails to provide any judicial findings concerning the
availability and efficacy of "constitutionally acceptable less
restrictive means" of achieving the Government's asserted
interests. See Sable Communications, supra, at 129.
In sum, because there are genuine issues of material fact
still to be resolved on this record, we hold that the District
Court erred in granting summary judgment in favor of the
Government. See Anderson v. Liberty Lobby, Inc., 477
U. S. 242, 250 (1986). Because of the unresolved factual
questions, the importance of the issues to the broadcast and
cable industries, and the conflicting conclusions that the par-
ties contend are to be drawn from the statistics and other
evidence presented, we think it necessary to permit the par-
ties to develop a more thorough factual record, and to allow
the District Court to resolve any factual disputes remaining,
before passing upon the constitutional validity of the chal-
lenged provisions.
The judgment below is vacated, and the case is remanded
for farther proceedings consistent with this opinion.
It is so ordered.
Cite as: 512 U. S. 622 (1994) 669
Opinion of STEVENS, J.
JUSTICE BLACKMUN, concurring.
I join JUSTICE KENNEDY'S opinion, which aptly identifies
and analyzes the First Amendment concerns and principles
that should guide consideration of free speech issues in the
expanding cable industry. I write to emphasize the para-
mount importance of according substantial deference to the
predictive judgments of Congress, see, e. g., Columbia
Broadcasting System, Inc. v. Democratic National Commit-
tee, 412 U. S. 94, 103 (1973), particularly where, as here, that
legislative body has compiled an extensive record in the
course of reaching its judgment. Nonetheless, the standard
for summary judgment is high, and no less so when First
Amendment values are at stake and the issue is of far-
reaching importance. Because in this case there remain a
few unresolved issues of material fact, a remand is appro-
priate. The Government had occasion to submit to the Dis-
trict Court only portions of the record developed by Con-
gress. In light of the Court's opinion today, those portions,
which were submitted to defeat a motion for summary judg-
ment, are not adequate to support one. The record before
the District Court no doubt will benefit from any additional
evidence the Government and the other parties now see fit
to present.
JUSTICE STEVENS, concurring in part and concurring in
the judgment.
As JUSTICE KENNEDY has ably explained, the "overriding
congressional purpose" of the challenged must-carry provi-
sions of the 1992 Cable Act is to "guarantee the survival
of a medium that has become a vital part of the Nation's
communication system," a purpose that is "unrelated to the
content of expression." Ante, at 647. The public interests
in protecting access to television for the millions of homes
without cable and in assuring the availability of "a multiplic-
ity of information sources" are unquestionably substantial.
Ante, at 663. The must-carry provisions are amply "justi-
670 TURNER BROADCASTING SYSTEM, INC. u FCC
Opinion of STEVENS, J.
fied by special characteristics of the cable medium," namely,
"the bottleneck monopoly power exercised by cable opera-
tors and the dangers this power poses to the viability of
broadcast television." Ante, at 661. Cable operators' con-
trol of essential facilities provides a basis for intrusive regu-
lation that would be inappropriate and perhaps impermissi-
ble for other communicative media.
While I agree with most of JUSTICE KENNEDY'S reasoning,
and join Parts I, II-C, II-D, and III-A of his opinion, I part
ways with him on the appropriate disposition of this case.
In my view the District Court's judgment sustaining the
must-carry provisions should be affirmed. The District
Court majority evaluated §§4 and 5 as content-neutral regu-
lations of protected speech according to the same standard
that JUSTICE KENNEDY'S opinion instructs it to apply on re-
mand. In my view, the District Court reached the correct
result the first time around. Economic measures are always
subject to second-guessing; they rest on inevitably provi-
sional and uncertain forecasts about the future effect of legal
rules in complex conditions. Whether Congress might have
accomplished its goals more efficiently through other means;
whether it correctly interpreted emerging trends in the pro-
tean communications industry; and indeed whether must-
carry is actually imprudent as a matter of policy will remain
matters of debate long after the 1992 Act has been repealed
or replaced by successor legislation. But the question for us
is merely whether Congress could fairly conclude that cable
operators' monopoly position threatens the continued viabil-
ity of broadcast television and that must-carry is an appro-
priate means of minimizing that risk.1
1 1 have no quarrel with JUSTICE KENNEDY'S general statement that the
question for the reviewing court in a case of this kind is merely whether
"Congress has drawn reasonable inferences based on substantial evi-
dence/' given his caveat that Congress need not compile or restrict itself
to a formal record in the manner required of a judicial or administrative
Cite as: 512 U. S. 622 (1994) 671
Opinion of STEVENS, J.
As JUSTICE KENNEDY recognizes, ante, at 665-666, find-
ings by the Congress, particularly those emerging from such
sustained deliberations, merit special respect from this
Court.2 Accorded proper deference, the findings in §2 are
sufficient to sustain the must-carry provisions against facial
attack. Congress' conclusion, for example, that broadcast-
ers who are denied carriage on cable systems will suffer seri-
ous and potentially terminal economic harm, see §2(a)(16),
requires no "further demonstration." See ante, at 667. Be-
cause 60% of American households have cable, and because
most cable subscribers rely solely on that medium to receive
video signals, it is a practical certainty that a broadcaster
dropped from the local cable system would suffer substantial
economic harm. It is also clear that cable operators — par-
ticularly (but not exclusively) those affiliated with cable pro-
grammers— have both the ability and the economic incentive
to exploit their gatekeeper status to the detriment of broad-
casters. Thus, even if Congress had had before it no histori-
cal evidence that terminations or refusals of carriage had
already occurred,3 it could reasonably infer that cable opera-
tors' bottleneck control, together with the already high de-
gree of vertical integration in the industry, would motivate
factfinder. Ante, at 666. In my view, however, application of that stand-
ard would require affirmance here.
2 As JUSTICE KENNEDY observes, ibid., we cannot abdicate our responsi-
bility to decide whether a restriction on speech violates the First Amend-
ment. But the factual findings accompanying economic measures that are
enacted by Congress itself and that have only incidental effects on speech
merit greater deference than those supporting content-based restrictions
on speech, see Sable Communications ofCal, Inc. v. FCC, 492 U. S. 115,
129 (1989); Landmark Communications, Inc. v. Virginia, 435 U. S. 829,
843 (1978) (both cited ante, at 666), or restrictions imposed by administra-
tive agencies, see, e. &, Century Communications Corp. v. FCC, 835 R 2d
292, 304 (CADC 1987) (cited ante, at 666).
3 But see H. R. Rep. No. 102-628, pp. 50-57 (1992); S. Rep. No. 102-92,
pp. 43-44 (1991).
672 TURNER BROADCASTING SYSTEM, INC. v. FCC
Opinion of STEVENS, J.
such conduct in the near future.4 Indeed, the main thrust
of the most pertinent congressional findings is not that cable
carriers have already eliminated broadcast competition on a
grand scale, but that given their market power they may
soon do so.6
An industry need not be in its death throes before Con-
gress may act to protect it from economic harm threatened
by a monopoly. The mandatory access mechanism that Con-
gress fashioned in §§4 and 5 of the 1992 Act is a simple and
direct means of dealing with the dangers posed by cable op-
erators' exclusive control of what is fast becoming the preem-
inent means of transferring video signals to homes. The
must-carry mechanism is analogous to the relief that might
be appropriate for a threatened violation of the antitrust
laws; one need only refer to undisputed facts concerning the
structure of the cable and broadcast industries to agree that
that threat is at least plausible. Moreover, Congress did not
have to find that all broadcasters were at risk before acting
to protect vulnerable ones, for the interest in preserving ac-
4 As Judge Jackson put it in his opinion for the District Court:
"[E]ven if the state of the broadcasting industry is not now as parlous as
the defendants contend, the Court finds it to be indisputable on this record
that cable operators have attained a position of dominance in the video
signal distribution market, and can henceforth exercise the attendant mar-
ket power. The Court does not find improbable Congress' conclusion that
this market power provides cable operators with both incentive and pres-
ent ability to block non-cable programmers' access to the bulk of any pro-
spective viewing audience; unconstrained, cable holds the future of local
broadcasting at its mercy. In light of the considerable body of evidence
amassed by Congress, and the deference this Court should accord to the
factfinding abilities of the nation's legislature, the Court must conclude
that the danger perceived by Congress is real and substantial." 819
P. Supp. 32, 46 (DC 1993) (citations omitted).
6 See § 2(a)(16) ("As a result of the economic incentive that cable systems
have to delete, reposition, or not carry local broadcast signals, . . . the
economic viability of free local broadcast television and its ability to origi-
nate quality local programming will be seriously jeopardized"); see also
§§2(a)(15),2(a)(17).
Cite as: 512 U. S. 622 (1994) 673
Opinion of STEVENS, J.
cess to free television is valid throughout the Nation. In-
deed, the Act is well tailored to assist those broadcasters
who are most in jeopardy. Because thriving commercial
broadcasters will likely avail themselves of the remunerative
"retransmission consent" procedure of § 6, those broadcasters
who gain access via the §4 must-carry route are apt to be
the most economically vulnerable ones. Precisely how often
broadcasters will secure carriage through §6 rather than §4
will depend upon future developments; the very unpredict-
ability of this and other effects of the new regulatory scheme
militates in favor of allowing the scheme to proceed rather
than requiring a perfectly documented or entirely complete
ex ante justification.
JUSTICE KENNEDY asks the three-judge panel to take ad-
ditional evidence on such matters as whether the must-carry
provisions really respond to threatened harms to broadcast-
ers, whether §§4-5 "will in fact alleviate these harms in a
direct and material way," ante, at 664, and "the extent to
which cable operators will, in fact, be forced to make changes
in their current or anticipated programming selections,"
ante, at 668. While additional evidence might cast further
light on the efficacy and wisdom of the must-carry provi-
sions, additional evidence is not necessary to resolve the
question of their facial constitutionality.6
To predicate the facial validity of the must-carry provi-
sions upon forecasts of the ultimate consequences of their
implementation is to ask the District Court to address ques-
tions that are not at present susceptible of reliable answers.
Some of the matters the lead opinion singles out for further
6 The must-carry obligations may be broader than necessary to protect
vulnerable broadcasters, but that would not alone be enough to demon-
strate that they violate the First Amendment. Thus, for instance, to the
extent that §§ 4 and 5 obligate cable operators to carry broadcasters they
would have carried even in the absence of a statutory obligation, any im-
pairment of operators' freedom of choice, or on cable programmers' ability
to secure carriage, would be negligible.
Opinion of O'CONNOR, J.
review — for example, "the degree to which cable program-
mers will be dropped from cable systems to make room for
local broadcasters/' ibid. — depend upon predictions about
the future voluntary actions of entities who are parties to
this case. At best, a remand for consideration of such fac-
tors will require the District Court to engage in speculation;
it may actually invite the parties to adjust their conduct in
an effort to affect the result of this litigation (perhaps by
opting to drop cable programs rather than seeking to in-
crease total channel capacity). The must-carry provisions
may ultimately prove an ineffective or needlessly meddle-
some means of achieving Congress' legitimate goals. How-
ever, such a conclusion could be confidently drawn, if ever,
only after the must-carry scheme has been tested by experi-
ence. On its face, that scheme is rationally calculated to re-
dress the dangers that Congress discerned after its lengthy
investigation of the relationship between the cable and
broadcasting industries.
It is thus my view that we should affirm the judgment of
the District Court. Were I to vote to affirm, however, no
disposition of this appeal would command the support of a
majority of the Court. An accommodation is therefore nec-
essary. See Screws v. United States, 325 U. S. 91, 134 (1945)
(Rutledge, J., concurring in result). Accordingly, because I
am in substantial agreement with JUSTICE KENNEDY'S anal-
ysis of the case, I concur in the judgment vacating and re-
manding for farther proceedings.
JUSTICE O'CONNOR, with whom JUSTICE SCALIA and
JUSTICE GINSBURG join, and with whom JUSTICE THOMAS
joins as to Parts I and III, concurring in part and dissent-
ing in part.
There are only so many channels that any cable system
can carry. If there are fewer channels than programmers
who want to use the system, some programmers will have
to be dropped. In the must-carry provisions of the Cable
Cite as: 512 U. S. 622 (1994) 675
Opinion of O'CONNOR, J.
Television Consumer Protection and Competition Act of
1992, Pub. L. 102-385, 106 Stat. 1460, Congress made a
choice: By reserving a little over one-third of the channels
on a cable system for broadcasters, it ensured that in most
cases it will be a cable programmer who is dropped and a
broadcaster who is retained. The question presented in this
case is whether this choice comports with the commands of
the First Amendment.
I
A
The 1992 Cable Act implicates the First Amendment
rights of two classes of speakers. First, it tells cable opera-
tors which programmers they must carry, and keeps cable
operators from carrying others that they might prefer.
Though cable operators do not actually originate most of the
programming they show, the Court correctly holds that they
are, for First Amendment purposes, speakers. Ante, at 636.
Selecting which speech to retransmit is, as we know from
the example of publishing houses, movie theaters, book-
stores, and Reader's Digest, no less communication than is
creating the speech in the first place.
Second, the Act deprives a certain class of video program-
mers— those who operate cable channels rather than broad-
cast stations — of access to over one-third of an entire me-
dium. Cable programmers may compete only for those
channels that are not set aside by the must-carry provisions.
A cable programmer that might otherwise have been carried
may well be denied access in favor of a broadcaster that is
less appealing to the viewers but is favored by the must-
carry rules. It is as if the Government ordered all movie
theaters to reserve at least one-third of their screening for
films made by American production companies, or required
all bookstores to devote one-third of their shelf space to non-
profit publishers. As the Court explains in Parts I, II-A,
and II-B of its opinion, which I join, cable programmers and
676 TURNER BROADCASTING SYSTEM, INC. v. FCC
Opinion of O'CONNOR, J.
operators stand in the same position under the First Amend-
ment as do the more traditional media.
Under the First Amendment, it is normally not within the
government's power to decide who may speak and who may
not, at least on private property or in traditional public fora.
The government does have the power to impose content-
neutral time, place, and manner restrictions, but this is in
large part precisely because such restrictions apply to all
speakers. Laws that treat all speakers equally are rela-
tively poor tools for controlling public debate, and their very
generality creates a substantial political check that prevents
them from being unduly burdensome. Laws that single out
particular speakers are substantially more dangerous, even
when they do not draw explicit content distinctions. See,
e. g., Minneapolis Star & Tribune Co. v. Minnesota Comm'r
of Revenue, 460 U. S. 575, 584, 591-592 (1983); see also Leath-
ers v. Medlock, 499 U. S. 439, 447 (1991).
I agree with the Court that some speaker-based restric-
tions— those genuinely justified without reference to con-
tent— need not be subject to strict scrutiny. But looking at
the statute at issue, I cannot avoid the conclusion that its
preference for broadcasters over cable programmers is justi-
fied with reference to content. The findings, enacted by
Congress as § 2 of the Act, and which I must assume state
the justifications for the law, make this clean "There is a
substantial governmental and First Amendment interest in
promoting a diversity of views provided through multiple
technology media." §2(a)(6). "[P]ublic television provides
educational and informational programming to the Nation's
citizens, thereby advancing the Government's compelling in-
terest in educating its citizens." §2(a)(8)(A). "A primary
objective and benefit of our Nation's system of regulation of
television broadcasting is the local origination of program-
ming. There is a substantial governmental interest in en-
suring its continuation." §2(a)(10). "Broadcast television
stations continue to be an important source of local news and
Cite as: 512 U. S. 622 (1994) 677
Opinion of O'CONNOR, J.
public affairs programming and other local broadcast serv-
ices critical to an informed electorate. " §2(a)(ll).
Similar justifications are reflected in the operative provi-
sions of the Act. In determining whether a broadcast sta-
tion should be eligible for must-carry in a particular market,
the Federal Communications Commission (FCC) must "af-
ford particular attention to the value of localism by taking
into account such factors as ... whether any other [eligible
station] provides news coverage of issues of concern to such
community or provides carriage or coverage of sporting and
other events of interest to the community." §4, 47 U. S. C.
§534(h)(l)(C)(ii) (1988 ed., Supp. IV). In determining
whether a low-power station is eligible for must-carry, the
FCC must ask whether the station "would address local
news and informational needs which are not being ade-
quately served by full power television broadcast stations."
§ 4, 47 U. S. C. § 534(h)(2)(B) (1988 ed., Supp. IV). Moreover,
the Act distinguishes between commercial television stations
and noncommercial educational television stations, giving
special benefits to the latter. Compare § 4 with § 5. These
provisions may all be technically severable from the stat-
ute, but they are still strong evidence of the statute's
justifications.
Preferences for diversity of viewpoints, for localism, for
educational programming, and for news and public affairs all
make reference to content. They may not reflect hostility
to particular points of view, or a desire to suppress certain
subjects because they are controversial or offensive. They
may be quite benignly motivated. But benign motivation,
we have consistently held, is not enough to avoid the need
for strict scrutiny of content-based justifications. Simon &
Schuster, Inc. v. Members ofN. Y State Crime Victims Bd.,
502 U. S. 105, 117 (1991); Arkansas Writers9 Project, Inc. v.
Ragland, 481 U. S. 221, 228 (1987). The First Amendment
does more than just bar government from intentionally sup-
pressing speech of which it disapproves. It also generally
678 TURNER BROADCASTING SYSTEM, INC. v. FCC
Opinion of O'CONNOR, J.
prohibits the government from excepting certain kinds of
speech from regulation because it thinks the speech is espe-
cially valuable. See, e. g., id., at 231-232; Regan v. Time,
Inc., 468 U. S. 641, 648-649 (1984); Metromedia, Inc. v. San
Diego, 453 U. S. 490, 514-515 (1981) (plurality opinion); Carey
v. Brown, 447 U. S. 455, 466-468 (1980); Police Dept. of Chi-
cago v. Mosley, 408 U. S. 92, 96 (1972); Cox v. Louisiana, 379
U. S. 536, 581 (1965) (Black, J., concurring); see also R. A. V.
v. Si. Paul, 505 U. S. 377, 386 (1992) ("The government may
not regulate [speech] based on hostility — or favoritism —
towards the underlying message expressed").
This is why the Court is mistaken in concluding that the
interest in diversity — in "access to a multiplicity" of "diverse
and antagonistic sources," ante, at 663 (internal quotation
marks omitted) — is content neutral. Indeed, the interest is
not "related to the suppression of free expression," ante, at
662 (emphasis added and internal quotation marks omitted),
but that is not enough for content neutrality. The interest
in giving a tax break to religious, sports, or professional
magazines, see Arkansas Writers' Project, supra, is not re-
lated to the suppression of speech; the interest in giving
labor picketers an exemption from a general picketing ban,
see Carey and Mosley, supra, is not related to the suppres-
sion of speech. But they are both related to the content of
speech — to its communicative impact. The interest in en-
suring access to a multiplicity of diverse and antagonistic
sources of information, no matter how praiseworthy, is di-
rectly tied to the content of what the speakers will likely say.
B
The Court dismisses the findings quoted above by specu-
lating that they do not reveal a preference for certain kinds
of content; rather, the Court suggests, the findings show
"nothing more than the recognition that the services pro-
vided by broadcast television have some intrinsic value and,
thus, are worth preserving against the threats posed by
Cite as: 512 U. S. 622 (1994) 679
Opinion of O'CONNOR, J.
cable." Ante, at 648. I cannot agree. It is rare enough
that Congress states, in the body of the statute itself, the
findings underlying its decision. When it does, it is fair to
assume that those findings reflect the basis for the legislative
decision, especially when the thrust of the findings is further
reflected in the rest of the statute. See Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 534-535 (1993)
(relying on recitals in a city council resolution as evidence of
the justifications for an ordinance).
Moreover, it does not seem likely that Congress would
make extensive findings merely to show that broadcast tele-
vision is valuable. The controversial judgment at the heart
of the statute is not that broadcast television has some
value — obviously it does — but that broadcasters should be
preferred over cable programmers. The best explanation
for the findings, it seems to me, is that they represent Con-
gress' reasons for adopting this preference; and, according
to the findings, these reasons rest in part on the content of
broadcasters' speech. To say in the face of the findings that
the must-carry rules "impose burdens and confer benefits
without reference to the content of speech/' ante, at 643,
cannot be correct, especially in light of the care with which
we must normally approach speaker-based restrictions.
See Minneapolis Star & Tribune Co. v. Minnesota Comm'r
of Revenue, 460 U. S. 575 (1983).
It may well be that Congress also had other, content-
neutral, purposes in mind when enacting the statute. But
we have never held that the presence of a permissible jus-
tification lessens the impropriety of relying in part on an
impermissible justification. In fact, we have often struck
down statutes as being impermissibly content based even
though their primary purpose was indubitably content neu-
tral. See Arkansas Writers' Project, Inc., supra (striking
down content-based exemptions in a general revenue meas-
ure); Regan v. Time, Inc., supra (striking down content-
based exemptions in a general anticounterfeiting statute);
680 TURNER BROADCASTING SYSTEM, INC. u FCC
Opinion of O'CONNOR, J.
Metromedia, Inc. v. San Diego, supra (plurality opinion)
(striking down on content discrimination grounds a general
urban beautification ordinance); Carey v. Brown, supra, at
466-468 (striking down on content discrimination grounds
an ordinance aimed at preserving residential privacy). Of
course, the mere possibility that a statute might be justified
with reference to content is not enough to make the statute
content based, and neither is evidence that some legislators
voted for the statute for content-based reasons. But when
a content-based justification appears on the statute's face, we
cannot ignore it because another, content-neutral justifica-
tion is present.
C
Content-based speech restrictions are generally unconsti-
tutional unless they are narrowly tailored to a compelling
state interest. Boos v. Barry, 485 U. S. 312, 321 (1988).
This is an exacting test. It is not enough that the goals of
the law be legitimate, or reasonable, or even praiseworthy.
There must be some pressing public necessity, some essential
value that has to be preserved; and even then the law must
restrict as little speech as possible to serve the goal.
The interest in localism, either in the dissemination of
opinions held by the listeners' neighbors or in the reporting
of events that have to do with the local community, cannot
be described as "compelling" for the purposes of the compel-
ling state interest test. It is a legitimate interest, perhaps
even an important one — certainly the government can foster
it by, for instance, providing subsidies from the public fisc —
but it does not rise to the level necessary to justify content-
based speech restrictions. It is for private speakers and lis-
teners, not for the government, to decide what fraction of
their news and entertainment ought to be of a local character
and what fraction ought to be of a national (or international)
one. And the same is true of the interest in diversity of
viewpoints: While the government may subsidize speakers
that it thinks provide novel points of view, it may not restrict
Cite as: 512 U. S. 622 (1994) 681
Opinion of O'CONNOR, J.
other speakers on the theory that what they say is more
conventional. Cf. Metro Broadcasting, Inc. v. FCC, 497
U. S. 547, 612-613 (1990) (O'CONNOR, J., dissenting); Pacific
Gas & Elec. Co. v. Public UtiL Comm'n of CaL, 475 U. S. 1,
20 (1986) (plurality opinion).
The interests in public affairs programming and educa-
tional programming seem somewhat weightier, though it is
a difficult question whether they are compelling enough to
justify restricting other sorts of speech. We have never
held that the Government could impose educational content
requirements on, say, newsstands, bookstores, or movie the-
aters; and it is not clear that such requirements would in any
event appreciably further the goals of public education.
But even assuming, argitendo, that the Government could
set some channels aside for educational or news program-
ming, the Act is insufficiently tailored to this goal. To bene-
fit the educational broadcasters, the Act burdens more than
just the cable entertainment programmers. It equally bur-
dens CNN, C-SPAN, the Discovery Channel, the New Inspi-
rational Network, and other channels with as much claim as
PBS to being educational or related to public affairs.
Even if the Government can restrict entertainment in
order to benefit supposedly more valuable speech, I do not
think the restriction can extend to other speech that is as
valuable as the speech being benefited. In the rare circum-
stances where the government may draw content-based dis-
tinctions to serve its goals, the restrictions must serve the
goals a good deal more precisely than this. See Arkansas
Writers' Project, Inc., 481 U. S., at 231-232; Erznoznik v.
Jacksonville, 422 U. S. 205, 214-215 (1975).
Finally, my conclusion that the must-carry rules are con-
tent based leads me to conclude that they are an impermissi-
ble restraint on the cable operators' editorial discretion as
well as on the cable programmers' speech. For reasons re-
lated to the content of speech, the rules restrict the ability
of cable operators to put on the programming they prefer,
682 TUENER BROADCASTING SYSTEM, INC. u FCC
Opinion of O'CONNOR, J.
and require them to include programming they would rather
avoid. This, it seems to me, puts this case squarely within
the rule of Pacific Gas & Elec. Co., 475 U. S., at 14-15 (plural-
ity opinion); id., at 23-24 (Marshall, J., concurring in judg-
ment); see also Miami Herald Publishing Co. v. Tornillo,
418 U. S. 241, 257-258 (1974).
II
Even if I am mistaken about the must-carry provisions
being content based, however, in my view they fail content-
neutral scrutiny as well. Assuming, arguendo, that the pro-
visions are justified with reference to the content-neutral
interests in fair competition and preservation of free televi-
sion, they nonetheless restrict too much speech that does not
implicate these interests.
Sometimes, a cable system's choice to carry a cable pro-
grammer rather than a broadcaster may be motivated by
anticompetitive impulses, or might lead to the broadcaster
going out of business. See ante, at 661-668. That some
speech within a broad category causes harm, however, does
not justify restricting the whole category. If Congress
wants to protect those stations that are in danger of going
out of business, or bar cable operators from preferring pro-
grammers in which the operators have an ownership stake,
it may do that. But it may not, in the course of advancing
these interests, restrict cable operators and programmers in
circumstances where neither of these interests is threatened.
"A regulation is not 'narrowly tailored' — even under the
more lenient [standard applicable to content-neutral restric-
tions]— where ... a substantial portion of the burden on
speech does not serve to advance [the State's content-
neutral] goals/' Simon & Schuster, 502 U. S., at 122, n. (in-
ternal quotation marks omitted). If the government wants
to avoid littering, it may ban littering, but it may not ban all
leafleting. Schneider v. State (Town oflrvington), 308 U. S.
147 (1939). If the government wants to avoid fraudulent po-
Cite as: 512 U. S. 622 (1994) 683
Opinion of O'CONNOR, J.
litical fundraising, it may bar the fraud, but it may not in
the process prohibit legitimate fundraising. Schaumburg v.
Citizens for a Better Environment, 444 U. S. 620 (1980); see
also Edenfield v. Fane, 507 U. S. 761, 776-777 (1993). If the
government wants to protect householders from unwanted
solicitors, it may enforce "No Soliciting" signs that the
householders put up, but it may not cut off access to homes
whose residents are willing to hear what the solicitors have
to say. Martin v. City of Struthers, 319 U. S. 141 (1943).
"Broad prophylactic rules in the area of free expression
are suspect. Precision of regulation must be the touch-
stone . . . ." NAACP v. Button, 371 U. S. 415, 438 (1963)
(citations omitted).
The must-carry provisions are fatally overbroad, even
under a content-neutral analysis: They disadvantage cable
programmers even if the operator has no anticompetitive mo-
tives, and even if the broadcaster that would have to be
dropped to make room for the cable programmer would sur-
vive without cable access. None of the factfinding that the
District Court is asked to do on remand will change this.
The Court does not suggest that either the antitrust interest
or the loss of free television interest are implicated in all, or
even most, of the situations in which must-carry makes a
difference. Perhaps on remand the District Court will find
out just how many broadcasters will be jeopardized, but the
remedy for this jeopardy will remain the same: Protect those
broadcasters that are put in danger of bankruptcy, without
unnecessarily restricting cable programmers in markets
where free broadcasting will thrive in any event.
Ill
Having said all this, it is important to acknowledge one
basic fact: The question is not whether there will be control
over who gets to speak over cable — the question is who will
have this control. Under the FCC's view, the answer is
Congress, acting within relatively broad limits. Under my
684 TURNER BROADCASTING SYSTEM, INC. v. FCC
Opinion of O'CONNOR, J.
view, the answer is the cable operator. Most of the time,
the cable operator's decision will be largely dictated by the
preferences of the viewers; but because many cable opera-
tors are indeed monopolists, the viewers' preferences will
not always prevail. Our recognition that cable operators
are speakers is bottomed in large part on the very fact that
the cable operator has editorial discretion. Ante, at 636-637.
I have no doubt that there is danger in having a single
cable operator decide what millions of subscribers can or can-
not watch. And I have no doubt that Congress can act to
relieve this danger. In other provisions of the Act, Con-
gress has already taken steps to foster competition among
cable systems. §S(a), 47 U. S. C. §543(a)(2) (1988 ed., Supp.
IV). Congress can encourage the creation of new media,
such as inexpensive satellite broadcasting, or fiber-optic net-
works with virtually unlimited channels, or even simple de-
vices that would let people easily switch from cable to over-
the-air broadcasting. And of course Congress can subsidize
broadcasters that it thinks provide especially valuable
programming.
Congress may also be able to act in more mandatory ways.
If Congress finds that cable operators are leaving some chan-
nels empty — perhaps for ease of future expansion — it can
compel the operators to make the free channels available to
programmers who otherwise would not get carriage. See
PruneYard Shopping Center v. Robins, 447 U. S. 74, 88
(1980) (upholding a compelled access scheme because it did
not burden others' speech). Congress might also conceiv-
ably obligate cable operators to act as common carriers for
some of their channels, with those channels being open to all
through some sort of lottery system or time-sharing arrange-
ment. Setting aside any possible Takings Clause issues, it
stands to reason that if Congress may demand that telephone
companies operate as common carriers, it can ask the same
of cable companies; such an approach would not suffer from
the defect of preferring one speaker to another.
Cite as: 512 U. S. 622 (1994) 686
Opinion of GINSBURG, J.
But the First Amendment as we understand it today rests
on the premise that it is government power, rather than pri-
vate power, that is the main threat to free expression; and
as a consequence, the Amendment imposes substantial limi-
tations on the Government even when it is trying to serve
concededly praiseworthy goals. Perhaps Congress can to
some extent restrict, even in a content-based manner, the
speech of cable operators and cable programmers. But it
must do so in compliance with the constitutional require-
ments, requirements that were not complied with here. Ac-
cordingly, I would reverse the judgment below.
JUSTICE GINSBURG, concurring in part and dissenting in
part.
Substantially for the reasons stated by Circuit Judge Wil-
liams in his opinion dissenting from the three-judge District
Court's judgment, 819 P. Supp. 32, 57 (DC 1993), I conclude
that Congress' "must-carry" regime, which requires cable op-
erators to set aside just over one-third of their channels for
local broadcast stations, reflects an unwarranted content-
based preference and hypothesizes a risk to local stations
that remains imaginary. I therefore concur in Parts I, II-A,
and II-B of the Court's opinion, and join JUSTICE O'CON-
NOR'S opinion concurring in part and dissenting in part.
The "must-carry" rules Congress has ordered do not dif-
ferentiate on the basis of "viewpoint/* and therefore do not
fall in the category of speech regulation that Government
must avoid most assiduously. See R. A. V. v, St. Paul, 505
U. S. 377, 430 (1992) (STEVENS, J., concurring in judgment)
("[W]e have implicitly distinguished between restrictions on
expression based on subject matter and restrictions based on
viewpoint, indicating that the latter are particularly perni-
cious."). The rules, however, do reflect a content prefer-
ence, and on that account demand close scrutiny.
The Court has identified as Congress' "overriding objec-
tive in enacting must-carry," the preservation of over-the-air
686 TURNER BROADCASTING SYSTEM, INC. u FCC
Opinion of GINSBURG, J.
television service for those unwilling or unable to subscribe
to cable, and has remanded the case for further airing cen-
tered on that allegedly overriding, content-neutral purpose.
Ante, at 646-648, 666-668. But an intertwined or even dis-
crete content-neutral justification does not render specula-
tive, or reduce to harmless surplus, Congress' evident plan to
advance local programming. See ante, at 676-677, 679-680
(O'CONNOR, J., concurring in part and dissenting in part).
As Circuit Judge Williams stated:
"Congress rested its decision to promote [local broad-
cast] stations in part, but quite explicitly, on a finding
about their content — that they were 'an important
source of local news and public affairs programming and
other local broadcast services critical to an informed
electorate."' 819 F. Supp., at 58, quoting Cable Televi-
sion Consumer Protection and Competition Act of 1992,
Moreover, as Judge Williams persuasively explained, "[the]
facts do not support an inference that over-the-air TV is at
risk/' 819 R Supp., at 63, see id., at 62-65; "[w]hatever risk
there may be in the abstract has completely failed to materi-
alize." Id., at 63. "The paucity of evidence indicating that
broadcast television is in jeopardy," see ante, at 667, if it
persists on remand, should impel an ultimate judgment for
the appellants.
OCTOBER TERM, 1993 687
Syllabus
BOARD OF EDUCATION OF KIRYAS JOEL VIL-
LAGE SCHOOL DISTRICT v. GRUMET
CERTIORARI TO THE COURT OP APPEALS OP NEW YORK
No. 93-517. Argued March 30, 1994— Decided June 27, 1994*
The New York village of Kiryas Joel is a religious enclave of Satmar Ha-
sidim, practitioners of a strict form of Judaism. Its incorporators in-
tentionally drew its boundaries under the State's general village incor-
poration law to exclude all but Satmars. The village fell within the
Monroe-Woodbury Central School District until a special state statute,
1989 N. Y. Laws, ch. 748, carved out a separate district that follows
village lines. Although the statute gives a locally elected school board
plenary authority over primary and secondary education in the village,
the board currently runs only a special education program for handi-
capped children; other village children attend private religious schools,
which do not offer special educational services. Shortly before the new
district began operations, respondents and others brought this action
claiming, inter alia, that Chapter 748 violates the Establishment Clause
of the First Amendment. The state trial court granted summary judg-
ment for respondents, and both the intermediate appellate court and the
New York Court of Appeals affirmed, ruling that Chapter 748's primary
effect was impermissibly to advance religion.
Held: The judgment is affirmed.
81 N. Y. 2d 518, 618 N. E. 2d 94, affirmed.
JUSTICE SOUTER delivered the opinion of the Court with respect
to Parts II-B, II-C, and III, concluding that Chapter 748 violates the
Establishment Clause. Pp. 702-710.
(a) Because the Kiryas Joel Village School District did not receive its
new governmental authority simply as one of many communities eligible
for equal treatment under a general law, there is no assurance that the
next religious community seeking a school district of its own will receive
one. The anomalously case-specific creation of this district for a reli-
gious community leaves the Court without any way to review such state
action for the purpose of safeguarding the principle that government
should not prefer one religion to another, or religion to irreHgion. Nor
can the historical context furnish any reason to suppose that the Sat-
*Together with No. 93-527, Board of Education of Monroe-Woodbury
Central School District v. Grumet et al, and No. 93-539, Attorney Gen-
eral of New York v. Grumet et aL, also on certiorari to the same court.
688 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
Syllabus
mars are merely one in a series of similarly benefited communities, the
special Act in these cases being entirely at odds with New York's histor-
ical trend. Pp. 702-705.
(b) Although the Constitution allows the State to accommodate re-
ligious needs by alleviating special burdens, Chapter 748 crosses the
line from permissible accommodation to impermissible establishment.
There are, however, several alternatives for providing bilingual and
bicultural special education to Satmar children that do not implicate
the Establishment Clause. The Monroe- Woodbury school district could
offer an educationally appropriate program at one of its public schools
or at a neutral site near one of the village's parochial schools, and if
the state legislature should remain dissatisfied with the local district's
responsiveness, it could enact general legislation tightening the mandate
to school districts on matters of special education or bilingual and bicul-
tural offerings. Pp. 705-708.
JUSTICE SOUTER, joined by JUSTICE BLACKMUN, JUSTICE STEVENS,
and JUSTICE GINSBURG, concluded in Part II-A that by delegating the
State's discretionary authority over public schools to a group defined by
its common religion, Chapter 748 brings about an impermissible "fusion"
of governmental and religious functions. See Larkin v. GrendeVs Den,
Inc., 459 U. S. 116, 126, 127. That a religious criterion was the defining
test is shown by the legislature's undisputed knowledge that the village
was exclusively Satmar when the statute was adopted; by the fact that
the creation of such a small and specialized school district ran uniquely
counter to customary districting practices in the State; and by the dis-
trict's origin in a special and unusual legislative Act rather than the
State's general laws for school district organization. The result is that
the legislature has delegated civic authority on the basis of religious
belief rather than on neutral principles. Pp. 696-702.
JUSTICE KENNEDY, agreeing that the Kiryas Joel Village School Dis-
trict violates the Establishment Clause, concluded that the school dis-
trict's real vice is that New York created it by drawing political bound-
aries on the basis of religion. See, e. g , Shaw v. Reno, 509 U. S. 630,
648-649. There is more than a fine line between the voluntary associa-
tion that leads to a political community comprised of people who share
a common religious faith, and the forced separation that occurs when
the government draws explicit political boundaries on the basis of peo-
ples' faith. In creating the district in question, New York crossed that
line. Pp. 728-730.
SOUTER, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II-B, II-C, and III, in which
BLACKMUN, STEVENS, O'CONNOR, and GINSBURG, JJ, joined, and an opin-
Cite as: 512 U. S. 687 (1994) 689
Syllabus
ion with respect to Parts II (introduction) and II-A, in which BLACKMUN,
STEVENS, and GINSBURG, JJ., joined. BLACKMUN, J., filed a concurring
opinion, post, p. 710. STEVENS, J,, filed a concurring opinion, in which
BLACKMUN and GINSBURG, JJ., joined, post, p. 711. O'CONNOR, J., filed
an opinion concurring in part and concurring in the judgment, post, p. 712.
KENNEDY, J., filed an opinion concurring in the judgment, post, p. 722.
SCALIA, J., filed a dissenting opinion, in which EEHNQUIST, C. J., and
THOMAS, J., joined, post, p. 732.
Nathan Lewin argued the cause for petitioners in Nos.
93-517 and 93-527. With him on the briefs was Lisa D.
Burget.
Julie S. Mereson, Assistant Attorney General of New
York, argued the cause for petitioners in No. 93-539. With
her on the briefs were G. Oliver Koppell, Attorney General,
Jerry Boone, Solicitor General, and Peter H. Schiff, Deputy
Solicitor General. La/wrence W. Reich and John H. Gross
filed briefs for petitioner Board of Education of the Monroe-
Woodbury Central School District.
Jay Worona argued the cause for respondents in all cases.
With him on the brief was Pilar SokoL'f
tBriefs of amici curiae urging reversal in No. 93-517 were filed for the
Archdiocese of New York by Richard J. Concannon; for the American
Center for Law and Justice et al. by Jay Alan Sekulow, James Matthew
Henderson, Sr., Mark N. Troobnick, Keith A. Fournier, Nancy J. Gannon,
and Robert A Destro; for the Christian Legal Society et al. by Michael W.
McConnell, Thomas C. Berg, and Steven T. McFarland; and for the
Knights of Columbus by William P. Barr, Michael A Carvin, and Carl
A Anderson.
Briefs of amid curiae urging reversal in all cases were filed for Agu-
dath Israel of America by David Zwiebel; for the Institute for Religion
and Polity by Ronald ZJL Maines; for the National Jewish Commission on
Law and Public Affairs (COLPA) by Julius Berman and Dennis Rapps;
for the Southern Baptist Convention by Michael K Whitehead; and for
the United States Catholic Conference by Mark E. Chopko and Phillip
H. Harris.
Briefs of amid curiae urging affirmance in all cases were filed for the
American Jewish Congress et al. by Norman Redlich, Marc D. Stern, and
Elliot Mincberg; for Americans United for Separation of Church and State
et al. by Steven K. Green, Steven R. Shapiro, Jeffrey P. Sinensky, Steven
690 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. u GRUMET
Opinion of the Court
JUSTICE SOUTER delivered the opinion of the Court,
except as to Parts II (introduction) and II-A.
The village of Kiryas Joel in Orange County, New York, is
a religious enclave of Satmar Hasidim, practitioners of a
strict form of Judaism. The village fell within the Monroe-
Woodbury Central School District until a special state stat-
ute passed in 1989 carved out a separate district, following
village lines, to serve this distinctive population. 1989 N. Y.
Laws, ch. 748. The question is whether the Act creating the
separate school district violates the Establishment Clause
of the First Amendment, binding on the States through the
Fourteenth Amendment. Because this unusual Act is tanta-
mount to an allocation of political power on a religious crite-
rion and neither presupposes nor requires governmental
impartiality toward religion, we hold that it violates the pro-
hibition against establishment.
I
The Satmar Hasidic sect takes its name from the town
near the Hungarian and Romanian border where, in the early
years of this century, Grand Rebbe Joel Teitelbaum molded
the group into a distinct community. After World War II
and the destruction of much of European Jewry, the Grand
M. Freeman, and Samuel Rabinove; for the Committee for the Well-Being
of Kiryas Joel by Joan E. Goldberg and Michael H. Sussman; for the
General Council on Finance and Administration of the United Methodist
Church by Samuel W Witwer, Jr.; for the National Coalition for Public
Education and Religious Liberty et aL by David B. Isbell; for the National
Council of Churches of Christ in the U. S. A. et al. by Dowlas Laycock;
for the National School Boards Association by Gwendolyn H. Gregory,
August W. Steinhilber, and Thomas A Shannon; for the New York State
United Teachers et al. by Bernard F. Ashe and Gerard John De Wolf; and
for the Council on Religious Freedom by Lee Boothby, Walter E. Carson,
and Robert W. Nixon.
Briefs of amid curiae in all cases were filed for the New York Commit-
tee for Public Education and Religious Liberty by Stanley Geller; and for
the Rutherford Institute by John W Whitehead and James J. Knicely.
Cite as: 512 U. S. 687 (1994) 691
Opinion of the Court
Rebbe and most of his surviving followers moved to the Wil-
liamsburg section of Brooklyn, New York. Then, 20 years
ago, the Satmars purchased an approved but undeveloped
subdivision in the town of Monroe and began assembling the
community that has since become the village of Kiryas Joel.
When a zoning dispute arose in the course of settlement, the
Satmars presented the Town Board of Monroe with a peti-
tion to form a new village within the town, a right that New
York's Village Law gives almost any group of residents who
satisfy certain procedural niceties. See N. Y Village Law,
Art. 2 (McKinney 1973 and Supp. 1994). Neighbors who did
not wish to secede with the Satmars objected strenuously,
and after arduous negotiations the proposed boundaries of
the village of Kiryas Joel were drawn to include just the 320
acres owned and inhabited entirely by Satmars. The vil-
lage, incorporated in 1977, has a population of about 8,500
today. Rabbi Aaron Teitelbaum, eldest son of the current
Grand Rebbe, serves as the village rov (chief rabbi) and rosh
yeshivah (chief authority in the parochial schools).
The residents of Kiryas Joel are vigorously religious peo-
ple who make few concessions to the modern world and go
to great lengths to avoid assimilation into it. They interpret
the Torah strictly; segregate the sexes outside the home;
speak Yiddish as their primary language; eschew television,
radio, and English-language publications; and dress in dis-
tinctive ways that include headcoverings and special gar-
ments for boys and modest dresses for girls. Children are
educated in private religious schools, most boys at the
United Talmudic Academy where they receive a thorough
grounding in the Torah and limited exposure to secular sub-
jects, and most girls at Bais Rochel, an affiliated school with
a curriculum designed to prepare girls for their roles as
wives and mothers. See generally W. Kephart & W. Zellner,
Extraordinary Groups (4th ed. 1991); I. Rubin, Satmar, An
Island in the City (1972).
692 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
Opinion of the Court
These schools do not, however, offer any distinctive serv-
ices to handicapped children, who are entitled under state
and federal law to special education services even when
enrolled in private schools. Individuals with Disabilities
Education Act, 20 U. S. C, § 1400 et seq. (1988 ed. and Supp.
IV); N. Y. Educ. Law, Art. 89 (McKinney 1981 and Supp.
1994). Starting in 1984 the Monroe- Woodbury Central
School District provided such services for the children of
Kiryas Joel at an annex to Bais Rochel, but a year later
ended that arrangement in response to our decisions in
Aguilar v. Felton, 473 U. S. 402 (1985), and School Dist. of
Grand Rapids v. Ball, 473 U. S. 373 (1985). Children from
Kiryas Joel who needed special education (including the deaf,
the mentally retarded, and others suffering from a range of
physical, mental, or emotional disorders) were then forced to
attend public schools outside the village, which their families
found highly unsatisfactory. Parents of most of these chil-
dren withdrew them from the Monroe-Woodbury secular
schools, citing "the panic, fear and trauma [the children] suf-
fered in leaving their own community and being with people
whose ways were so different," and some sought administra-
tive review of the public-school placements. Board of Ed.
of Monroe-Woodbury Central School Dist. v. Wieder, 72
N. Y. 2d 174, 180-181, 527 N. E. 2d 767, 770 (1988).
Monroe-Woodbury, for its part, sought a declaratory judg-
ment in state court that New York law barred the district
from providing special education services outside the dis-
trict's regular public schools. Id., at 180, 527 N. E. 2d, at
770. The New York Court of Appeals disagreed, holding
that state law left Monroe-Woodbury free to establish a sepa-
rate school in the village because it gives educational author-
ities broad discretion in fashioning an appropriate program.
Id., at 186-187, 527 N. E. 2d, at 773. The court added, how-
ever, that the Satmars' constitutional right to exercise their
religion freely did not require a separate school, since the
parents had alleged emotional trauma, not inconsistency
Cite as: 512 U. S. 687 (1994) 693
Opinion of the Court
with religious practice or doctrine, as the reason for seeking
separate treatment. Id., at 189, 527 N. E. 2d, at 775.
By 1989, only one child from Kiryas Joel was attending
Monroe- Woodbury's public schools; the village's other handi-
capped children received privately funded special services or
went without. It was then that the New York Legislature
passed the statute at issue in this litigation, which provided
that the village of Kiryas Joel "is constituted a separate
school district, . . . and shall have and enjoy all the powers
and duties of a union free school district . . . " 1989 K Y.
Laws, ch. 748.1 The statute thus empowered a locally
elected board of education to take such action as opening
schools and closing them, hiring teachers, prescribing text-
books, establishing disciplinary rules, and raising property
taxes to fund operations. N. Y. Educ. Law § 1709 (McKin-
ney 1988). In signing the bill into law, Governor Cuomo rec-
ognized that the residents of the new school district were
"all members of the same religious sect," but said that the
bill was "a good faith effort to solve th[e] unique problem"
associated with providing special education services to hand-
icapped children in the village. Memorandum filed with As-
sembly Bill Number 8747 (July 24, 1989), App. 40-41.
Although it enjoys plenary legal authority over the ele-
mentary and secondary education of all school-aged children
1 The statute provides in full:
"Section 1. The territory of the village of Kiryas Joel in the town of
Monroe, Orange county, on the date when this act shall take effect, shall
be and hereby is constituted a separate school district, and shall be known
as the Kiryas Joel village school district and shall have and enjoy all the
powers and duties of a union free school district under the provisions of
the education law.
"§ 2. Such district shall be under the control of a board of education,
which shall be composed of from five to nine members elected by the
qualified voters of the village of Kiryas Joel, said members to serve for
terms not exceeding five years.
"§3. This act shall take effect on the first day of July next succeeding
the date on which it shall have become a law."
694 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. u GRUMET
Opinion of the Court
in the village, N. Y Educ. Law §3202 (McKinney 1981 and
Supp. 1994), the Kiryas Joel Village School District currently
runs only a special education program for handicapped chil-
dren. The other village children have stayed in their paro-
chial schools, relying on the new school district only for
transportation, remedial education, and health and welfare
services. If any child without a handicap in Kiryas Joel
were to seek a public-school education, the district would pay
tuition to send the child into Monroe- Woodbury or another
school district nearby. Under like arrangements, several of
the neighboring districts send their handicapped Hasidic
children into Kiryas Joel, so that two thirds of the full-time
students in the village's public school come from outside. In
all, the new district serves just over 40 full-time students,
and two or three times that many parochial school students
on a part-time basis.
Several months before the new district began operations,
the New York State School Boards Association and respond-
ents Grumet and Hawk brought this action against the State
Education Department and various state officials, challeng-
ing Chapter 748 under the National and State Constitutions
as an unconstitutional establishment of religion.2 The State
Supreme Court for Albany County allowed the Kiryas Joel
Village School District and the Monroe-Woodbury Central
School District to intervene as parties defendant and ac-
cepted the parties' stipulation discontinuing the action
against the original state defendants, although the attorney
general of New York continued to appear to defend the con-
stitutionality of the statute. See N. Y. Exec. Law § 71 (Mc-
2 Messrs. Grumet and Hawk sued in both their individual capacities and
as officers of the State School Boards Association, but New York's Appel-
late Division ruled that the Association and its officers lacked standing to
challenge the constitutionality of Chapter 748. 187 App. Div. 2d 16, 19,
592 N. Y. S. 2d 123, 126 (1992). Thus, as the case comes to us, respondents
are simply citizen taxpayers. See N. Y. State Fin. Law § 123 (McKinney
1989).
Cite as: 512 U. S. 687 (1994) 695
Opinion of the Court
Kinney 1993). On cross-motions for summary judgment, the
trial court ruled for the plaintiffs (respondents here), finding
that the statute failed all three prongs of the test in Lemon
v. Kurtzman, 403 U. S. 602 (1971), and was thus unconsti-
tutional under both the National and State Constitutions.
Grumet v. New York State Ed. Dept, 151 Misc. 2d 60, 579
N. Y. S. 2d 1004 (1992),
A divided Appellate Division affirmed on the ground that
Chapter 748 had the primary effect of advancing religion, in
violation of both constitutions, 187 App. Div. 2d 16, 592
N. Y. S. 2d 123 (1992), and the State Court of Appeals af-
firmed on the federal question, while expressly reserving the
state constitutional issue, 81 N. Y. 2d 518, 618 N, E. 2d 94
(1993). Judge Smith wrote for the court in concluding that
because both the district's public-school population and its
school board would be exclusively Hasidic, the statute cre-
ated a "symbolic union of church and State" that was "likely
to be perceived by the Satmarer Hasidim as an endorsement
of their religious choices, or by nonadherents as a disap-
proval" of their own. /&, at 529, 618 N. E. 2d, at 100. As
a result, said the majority, the statute's primary effect was
an impermissible advancement of religious belief. In a con-
curring opinion, Judge Hancock found the effect purposeful,
so that the statute violated the first as well as the second
prong of Lemon. 81 N. Y. 2d, at 540, 618 N. E. 2d, at 107.
Chief Judge Kaye took a different tack, applying the strict
scrutiny we have prescribed for statutes singling out a par-
ticular religion for special privileges or burdens; she found
Chapter 748 invalid as an unnecessarily broad response to a
narrow problem, since it creates a full school district instead
of simply prescribing a local school for the village's handi-
capped children. Id., at 532, 618 N. E. 2d, at 102 (concurring
opinion). In dissent, Judge Bellacosa objected that the new
district was created to enable the village's handicapped chil-
dren to receive a secular, public-school education; that this
was, indeed, its primary effect; and that any attenuated ben-
696 BOARD OP ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
Opinion of SOUTER, J.
eflt to religion was a reasonable accommodation of both reli-
gious and cultural differences. Id., at 550-551, 618 N. E. 2d,
at 113.
We stayed the mandate of the Court of Appeals, 509 U. S.
938 (1993), and granted certiorari, 510 U. S. 989 (1993).
II
"A proper respect for both the Free Exercise and the Es-
tablishment Clauses compels the State to pursue a course of
'neutrality' toward religion/' Committee for Public Ed. &
Religious Liberty v. Nyquist, 413 U. S. 756, 792-793 (1973),
favoring neither one religion over others nor religious ad-
herents collectively over nonadherents. See Epperson v.
Arkansas, 393 U. S. 97, 104 (1968). Chapter 748, the statute
creating the Kiryas Joel Village School District, departs from
this constitutional command by delegating the State's discre-
tionary authority over public schools to a group defined by
its character as a religious community, in a legal and histori-
cal context that gives no assurance that governmental power
has been or will be exercised neutrally
Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982), pro-
vides an instructive comparison with the litigation before us.
There, the Court was requested to strike down a Massachu-
setts statute granting religious bodies veto power over appli-
cations for liquor licenses. Under the statute, the governing
body of any church, synagogue, or school located within 500
feet of an applicant's premises could, simply by submitting
written objection, prevent the Alcohol Beverage Control
Commission from issuing a license. Id., at 117. In spite of
the State's valid interest in protecting churches, schools, and
like institutions from " 'the hurly-burly* associated with liq-
uor outlets," id., at 123 (internal quotation marks omitted),
the Court found that in two respects the statute violated
"[t]he wholesome 'neutrality' of which this Court's cases
speak," School Dist. ofAbington Township v. Schempp, 374
U S. 203, 222 (1963). The Act brought about a "'fusion of
Cite as: 512 U. S. 687 (1994) 697
Opinion of SOUTER, J*
governmental and religious functions'" by delegating "im-
portant, discretionary governmental powers" to religious
bodies, thus impermissibly entangling government and reli-
gion. 459 U. S., at 126, 127 (quoting School Dist ofAbing-
ton Township v. Schempp, supra, at 222); see also Lemon v.
Kurtzman, supra, at 613. And it lacked "any 'effective
means of guaranteeing' that the delegated power '[would]
be used exclusively for secular, neutral, and nonideological
purposes/ " 459 U. S., at 125 (quoting Committee for Public
Ed. & Religious Liberty v. Nyquist, supra, at 780); this,
along with the "significant symbolic benefit to religion" asso-
ciated with "the mere appearance of a joint exercise of legis-
lative authority by Church and State," led the Court to con-
clude that the statute had a " 'primary* and 'principal' effect
of advancing religion," 459 U. S., at 125-126; see also Lemon
v. Kurtzman, supra, at 612. Comparable constitutional
problems inhere in the statute before us.
Larkin presented an example of united civic and religious
authority, an establishment rarely found in such straightfor-
ward form in modern America, cf. Wolman v. Walter, 433
U. S. 229, 263 (1977) (Powell, J., concurring in part, concur-
ring in judgment in part, and dissenting in part), and a viola-
tion of "the core rationale underlying the Establishment
Clause," 459 U. S., at 126. See also Allegheny County v,
American Civil Liberties Union, Greater Pittsburgh Chap-
ter, 492 U. S. 573, 590-591 (1989) (Establishment Clause pre-
vents delegating governmental power to religious group);
id., at 660 (KENNEDY, J., concurring in judgment in part and
dissenting in part) (same); Ever son v. Board of Ed, of E wing,
330 U.S. 1, 15-16 (1947) (Establishment Clause prevents
State from "participat[ing] in the affairs of any religious or-
ganizations or groups and vice versa")*, Torcaso v. Watkins,
367 U. S. 488, 493-494 (1961) (same).
698 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
Opinion of SOUTER, J.
The Establishment Clause problem presented by Chapter
748 is more subtle, but it resembles the issue raised in Lar-
kin to the extent that the earlier case teaches that a State
may not delegate its civic authority to a group chosen accord-
ing to a religious criterion. Authority over public schools
belongs to the State, N. Y. Const., Art. XI, §1, and cannot
be delegated to a local school district defined by the State in
order to grant political control to a religious group. What
makes this litigation different from Larkin is the delegation
here of civic power to the "qualified voters of the village of
Kiryas Joel/5 1989 N. Y. Laws, ch. 748, as distinct from a
religious leader such as the village rov, or an institution of
religious government like the formally constituted parish
council in Larkin. In light of the circumstances of these
cases, however, this distinction turns out to lack constitu-
tional significance.
It is, first, not dispositive that the recipients of state power
in these cases are a group of religious individuals united by
common doctrine, not the group's leaders or officers. Al-
though some school district franchise is common to all voters,
the State's manipulation of the franchise for this district lim-
ited it to Satmars, giving the sect exclusive control of the
political subdivision. In the circumstances of these cases,
the difference between thus vesting state power in the mem-
bers of a religious group as such instead of the officers of its
sectarian organization is one of form, not substance. It is
true that religious people (or groups of religious people)
cannot be denied the opportunity to exercise the rights of
citizens simply because of their religious affiliations or com-
mitments, for such a disability would violate the right to
religious free exercise, see McDaniel v. Paty, 435 U. S. 618
(1978), which the First Amendment guarantees as certainly
as it bars any establishment. But McDaniel, which held
that a religious individual could not, because of his religious
activities, be denied the right to hold political office, is not in
point here. That individuals who happen to be religious
Cite as: 512 U. S. 687 (1994) 699
Opinion of SOUTER, J.
may hold public office does not mean that a State may delib-
erately delegate discretionary power to an individual, insti-
tution, or community on the ground of religious identity. If
New York were to delegate civic authority to "the Grand
Rebbe," Larkin would obviously require invalidation (even
though under McDaniel the Grand Rebbe may run for, and
serve on, his local school board), and the same is true if New
York delegates political authority by reference to religious
belief. Where "fusion" is an issue, the difference lies in the
distinction between a government's purposeful delegation on
the basis of religion and a delegation on principles neutral to
religion, to individuals whose religious identities are inciden-
tal to their receipt of civic authority.
Of course, Chapter 748 delegates power not by express
reference to the religious belief of the Satmar community,
but to residents of the "territory of the village of Kiryas
Joel." 1989 N. Y. Laws, chu 748. Thus the second (and ar-
guably more important) distinction between these cases and
Larkin is the identification here of the group to exercise civil
authority in terms not expressly religious. But our analysis
does not end with the text of the statute at issue, see Church
of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 534
(1993); Wallace v. Jaffree, 472 U. S. 38, 56-61 (1985); Gomil-
lion v. Lightfoot, 364 U. S. 339, 341-342 (1960), and the con-
text here persuades us that Chapter 748 effectively identifies
these recipients of governmental authority by reference to
doctrinal adherence, even though it does not do so expressly.
We find this to be the better view of the facts because of the
way the boundary lines of the school district divide residents
according to religious affiliation, under the terms of an un-
usual and special legislative Act.
It is undisputed that those who negotiated the village
boundaries when applying the general village incorporation
statute drew them so as to exclude all but Satmars, and that
the New York Legislature was well aware that the village
remained exclusively Satmar in 1989 when it adopted Chap-
700 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. u GRUMET
Opinion of SOUTER, J.
ter 748. See Brief for Petitioner in No. 93-517, p. 20; Brief
for Respondents 11. The significance of this fact to the state
legislature is indicated by the further fact that carving out
the village school district ran counter to customary district-
ing practices in the State. Indeed, the trend in New York is
not toward dividing school districts but toward consolidating
them. The thousands of small common school districts laid
out in the early 19th century have been combined and recom-
bined, first into union free school districts and then into
larger central school districts, until only a tenth as many
remain today. Univ. of State of N. Y. and State Education
Dept., School District Reorganization, Law Pamphlet 14,
pp. 8-12 (1962) (hereinafter Law Pamphlet); Woodward,
N. Y. State Education Dept., Legal and Organizational His-
tory of School District Reorganization in New York State
10-11 (Aug. 1986). Most of these cover several towns, many
of them cross county boundaries, and only one remains pre-
cisely coterminous with an incorporated village. Law Pam-
phlet, at 24. The object of the State's practice of consolida-
tion is the creation of districts large enough to provide a
comprehensive education at affordable cost, which is thought
to require at least 500 pupils for a combined junior-senior
high school. Univ. of State of N. Y. and State Education
Dept., Master Plan for School District Reorganization in
New York State 10-11 (rev. ed. 1958).3 The Kiryas Joel Vil-
lage School District, in contrast, has only 13 local, full-time
students in all (even including out-of-area and part-time stu-
dents leaves the number under 200), and in offering only spe-
cial education and remedial programs it makes no pretense
to be a full-service district.
The origin of the district in a special Act of the legislature,
rather than the State's general laws governing school district
8 The Commissioner of Education updates this Master Plan as school
districts consolidate, see N. Y. Educ. Law §314 (McKinney 1988), but has
not published a superseding version.
Cite as: 512 U. S. 687 (1994) 701
Opinion of SOUTER, J.
reorganization,4 is likewise anomalous. Although the legis-
lature has established some 20 existing school districts by
special Act, all but one of these are districts in name only,
having been designed to be run by private organizations
serving institutionalized children. They have neither tax
bases nor student populations of their own but serve children
placed by other school districts or public agencies. See N. Y.
Educ. Law §3601-a (Statutory Notes), §§4001 and 4005 (Mc-
Kinney Supp. 1994); Law Pamphlet, at 18 ("These districts
are school districts only by way of a legal fiction")- The one
school district petitioners point to that was formed by special
Act of the legislature to serve a whole community, as this
one was, is a district formed for a new town, much larger
and more heterogeneous than this village, being built on land
that straddled two existing districts. See 1972 N. Y. Laws,
ch. 928 (authorizing Gananda School District). Thus the
Kiryas Joel Village School District is exceptional to the point
of singularity, as the only district coming to our notice that
the legislature carved from a single existing district to serve
local residents. Clearly this district "cannot be seen as the
fulfillment of [a village's] destiny as an independent govern-
mental entity," United States v. Scotland Neck City Bd. of
Ed., 407 U. S. 484, 492 (1972) (Burger, C. J., concurring in
result).5
4 State law allows consolidation on the initiative of a district superin-
tendent, N. Y. Educ. Law §1504 (McKinney 1988), local voters, §§1510-
1513, 1522-1524, 1902, or the Commissioner of Education, §§ 1526, 1801-
1803-a, depending on the circumstances. It also authorizes the district
superintendent to "organize a new school district," §1504, which may
allow secession from an existing district, but this general law played no
part in the creation of the Kiryas Joel Village School District
6 Although not dispositive in this facial challenge, the pattern of interdis-
trict transfers, proposed and presently occurring, tends to confirm that
religion rather than geography is the organizing principle for this district.
Cf United States v. Scotland Neck City Bd. of Ed., 407 U. S., at 490
(Burger, C, J., concurring in result). When Chapter 748 was passed, the
702 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
Opinion of the Court
Because the district's creation ran uniquely counter to
state practice, following the lines of a religious community
where the customary and neutral principles would not have
dictated the same result, we have good reasons to treat this
district as the reflection of a religious criterion for identify-
ing the recipients of civil authority. Not even the special
needs of the children in this community can explain the legis-
lature's unusual Act, for the State could have responded to
the concerns of the Satmar parents without implicating the
Establishment Clause, as we explain in some detail further
on. We therefore find the legislature's Act to be substan-
tially equivalent to defining a political subdivision and hence
the qualification for its franchise by a religious test, resulting
in a purposeful and forbidden "fusion of governmental and
religious functions." Larkin v. Grendel's Den, 459 U. S., at
126 (internal quotation marks and citation omitted).6
B
The fact that this school district was created by a special
and unusual Act of the legislature also gives reason for con-
cern whether the benefit received by the Satmar community
is one that the legislature will provide equally to other reli-
gious (and nonreligious) groups. This is the second malady
understanding was that if a non-Hasidic child were to move into the vil-
lage, the district would pay tuition to send the child to one of the neighbor-
ing school districts, since Kiryas Joel would have no regular education
program. Although the need for such a transfer has not yet arisen, there
are 20 Hasidic children with handicapping conditions who transfer into
Kiryas Joel's school district from the nearby East Ramapo and Monroe-
Woodbury school districts.
6 Because it is the unusual circumstances of this district's creation that
persuade us the State has employed a religious criterion for delegating
political power, this conclusion does not imply that any political subdivi-
sion that is coterminous with the boundaries of a religiously homogeneous
community suffers the same constitutional infirmity. The district in these
cases is distinguishable from one whose boundaries are derived according
to neutral historical and geographic criteria, but whose population hap-
pens to comprise coreligionists.
Cite as: 512 U. S. 687 (1994) 703
Opinion of the Court
the Larkin Court identified in the law before it, the absence
of an "effective means of guaranteeing" that governmental
power will be and has been neutrally employed. Id., at 125
(internal quotation marks and citation omitted). But
whereas in Larkin it was religious groups the Court thought
might exercise civic power to advance the interests of reli-
gion (or religious adherents), here the threat to neutrality
occurs at an antecedent stage.
The fundamental source of constitutional concern here is
that the legislature itself may fail to exercise governmental
authority in a religiously neutral way. The anomalously
case-specific nature of the legislature's exercise of state au-
thority in creating this district for a religious community
leaves the Court without any direct way to review such state
action for the purpose of safeguarding a principle at the
heart of the Establishment Clause, that government should
not prefer one religion to another, or religion to irreligion.
See Wallace v. Jaffree, 472 U. S., at 52-54; Epperson v. Ar-
kansas, 393 U. S., at 104; School Dist. ofAbington Township
v. Schempp, 374 U. S., at 216-217. Because the religious
community of Kiryas Joel did not receive its new governmen-
tal authority simply as one of many communities eligible for
equal treatment under a general law,7 we have no assurance
that the next similarly situated group seeking a school dis-
trict of its own will receive one; unlike an administrative
agency's denial of an exemption from a generally applicable
law, which "would be entitled to a judicial audience," Olsen
v. Drug Enforcement Admin., 878 R 2d 1458, 1461 (CADC
1989) (R. B. Ginsburg, J.), a legislature's failure to enact a
special law is itself unreviewable. Nor can the historical
context in these cases furnish us with any reason to suppose
that the Satmars are merely one in a series of communities
7 This contrasts with the process by which the village of Kiryas Joel
itself was created, involving, as it did, the application of a neutral state
law designed to give almost any group of residents the right to incorpo-
rate. Seetsupra, at 691.
704 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
Opinion of the Court
receiving the benefit of special school district laws. Early
on in the development of public education in New York, the
State rejected highly localized school districts for New York
City when they were promoted as a way to allow separate
schooling for Roman Catholic children. R. Church & M.
Sedlak, Education in the United States 162, 167-169 (1976).
And in more recent history, the special Act in these cases
stands alone. See supra, at 701.
The general principle that civil power must be exercised
in a manner neutral to religion is one the Larkin Court rec-
ognized, although it did not discuss the specific possibility of
legislative favoritism along religious lines because the stat-
ute before it delegated state authority to any religious group
assembled near the premises of an applicant for a liquor li-
cense, see 459 U. S., at 120-121, n. 3, as well as to a further
category of institutions not identified by religion. But the
principle is well grounded in our case law, as we have fre-
quently relied explicitly on the general availability of any
benefit provided religious groups or individuals in turning
aside Establishment Clause challenges. In Walz v. Tax
Comm'n of City of New York, 397 U. S. 664, 673 (1970), for
example, the Court sustained a property tax exemption for
religious properties in part because the State had "not sin-
gled out one particular church or religious group or even
churches as such/' but had exempted "a broad class of prop-
erty owned by nonprofit, quasi-public corporations." Ac-
cord, id., at 696-697 (opinion of Harlan, J.). And Bowen v.
Kendrick, 487 U. S. 589, 608 (1988), upheld a statute enlisting
a "wide spectrum of organizations" in addressing adolescent
sexuality because the law was "neutral with respect to the
grantee's status as a sectarian or purely secular institu-
tion/'8 See also Texas Monthly, Inc. v. Bullock, 489 U.S.
8 The Court used "sectarian" to refer to organizations akin to this school
district in that they were operated in a secular manner but had a religious
affiliation; it recognized that government aid may not flow to an institution
" 'in which religion is so pervasive that a substantial portion of its func-
Cite as: 512 U. S. 687 (1994) 705
Opinion of the Court
1 (1989) (striking down sales tax exemption exclusively for
religious publications); id, at 14-15 (plurality opinion); id.,
at 27-28 (BLACKMUN, J., concurring in judgment); Estate of
Thornton v. Caldor, Inc., 472 U. S. 703, 711 (1985) (O'CoN-
NOR, J., concurring in judgment) (statute impermissibly "sin-
gles out Sabbath observers for special . . . protection without
according similar accommodation to ethical and religious be-
liefs and practices of other private employees"); c£ Witters
v. Washington Dept of Servs. for Blind, 474 U. S. 481, 492
(1986) (Powell, J., concurring). Here the benefit flows only
to a single sect, but aiding this single, small religious group
causes no less a constitutional problem than would follow
from aiding a sect with more members or religion as a whole,
see Larson v. Valente, 456 U. S. 228, 244-246 (1982), and we
are forced to conclude that the State of New York has vio-
lated the Establishment Clause.
In finding that Chapter 748 violates the requirement of
governmental neutrality by extending the benefit of a special
franchise, we do not deny that the Constitution allows the
State to accommodate religious needs by alleviating special
burdens. Our cases leave no doubt that in commanding neu-
trality the Religion Clauses do not require the government
to be oblivious to impositions that legitimate exercises of
state power may place on religious belief and practice.
Rather, there is "ample room under the Establishment
Clause for 'benevolent neutrality which will permit religious
exercise to exist without sponsorship and without interfer-
ence,'" Corporation of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v. Amos, 483 U. S. 327, 334 (1987)
(quoting Walz v. Tax Comm'n, supra, at 673); "government
may (and sometimes must) accommodate religious practices
and . . . may do so without violating the Establishment
tions are subsumed in the religious mission,' " 487 U. S., at 610 (quoting
Hunt v. McNair, 413 U. S. 734, 743 (1973)).
706 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. u GRUMET
Opinion of the Court
Clause/' Hobbie v. Unemployment Appeals Comm'n of
Flo., 480 U. S. 136, 144-145 (1987). The fact that Chapter
748 facilitates the practice of religion is not what renders it
an unconstitutional establishment. Cf. Lee v. Weisman, 505
U. S. 577, 627 (1992) (SouTER, J., concurring) ("That govern-
ment must remain neutral in matters of religion does not
foreclose it from ever taking religion into account"); School
Dist of Abington Township v. Schempp, 374 U. S., at 299
(Brennan, J., concurring) ("[Hostility, not neutrality, would
characterize the refusal to provide chaplains and places of
worship for prisoners and soldiers cut off by the State from
all civilian opportunities for public communion").
But accommodation is not a principle without limits, and
what petitioners seek is an adjustment to the Satmars' reli-
giously grounded preferences 9 that our cases do not counte-
nance. Prior decisions have allowed religious communities
and institutions to pursue their own interests free from
governmental interference, see Corporation of Presiding
Bishop v. Amos, supra, at 336-337 (government may allow
religious organizations to favor their own adherents in hir-
ing, even for secular employment); Zorach v. Clauson, 343
U. S. 306 (1952) (government may allow public schools to re-
lease students during the schoolday to receive off-site reli-
gious education), but we have never hinted that an otherwise
unconstitutional delegation of political power to a religious
group could be saved as a religious accommodation. Petition-
ers' proposed accommodation singles out a particular reli-
gious sect for special treatment,10 and whatever the limits
of permissible legislative accommodations may be, compare
9 The Board of Education of the Kiryas Joel Village School District
explains that the Satmars prefer to live together "to facilitate individual
religious observance and maintain social, cultural and religious values,"
but that it is not "'against their religion' to interact with others." Brief
for Petitioner in No. 93-517, p. 4, n. 1.
10 In this respect, it goes beyond even Larkin, transferring political
authority to a single religious group rather than to any church or school.
Cite as: 512 U. S. 687 (1994) 707
Opinion of the Court
Texas Monthly, Inc. v. Bullock, supra (striking down law
exempting only religious publications from taxation), with
Corporation of Presiding Bishop v. Amos, supra (upholding
law exempting religious employers from Title VII), it is clear
that neutrality as among religions must be honored. See
Larson v. Valente, supra, at 244-246.
This conclusion does not, however, bring the Satmar par-
ents, the Monroe- Woodbury school district, or the State of
New York to the end of the road in seeking ways to respond
to the parents* concerns. Just as the Court in Larkin ob-
served that the State's interest in protecting religious meet-
ing places could be "readily accomplished by other means,"
459 U. S., at 124, there are several alternatives here for pro-
viding bilingual and bicultural special education to Satmar
children. Such services can perfectly well be offered to vil-
lage children through the Monroe- Woodbury Central School
District. Since the Satmars do not claim that separatism is
religiously mandated, their children may receive bilingual
and bicultural instruction at a public school already run by
the Monroe-Woodbury district. Or if the educationally ap-
propriate offering by Monroe-Woodbury should turn out to
be a separate program of bilingual and bicultural education
at a neutral site near one of the village's parochial schools,
this Court has already made it clear that no Establishment
Clause difficulty would inhere in such a scheme, adminis-
tered in accordance with neutral principles that would not
necessarily confine special treatment to Satmars. See Wol-
man v. Walter, 433 U. S., at 247-248.
To be sure, the parties disagree on whether the services
Monroe-Woodbury actually provided in the late 1980's were
appropriately tailored to the needs of Satmar children, but
this dispute is of only limited relevance to the question
whether such services could have been provided, had ad-
justments been made. As we understand New York law,
parents who are dissatisfied with their handicapped child's
program have recourse through administrative review pro-
708 BOARD OF ED. OP KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
Opinion of the Court
ceedings (a process that appears not to have run its course
prior to resort to Chapter 748, see Board of Ed. of Monroe-
Woodbury Central School Dist. v. Wieder, 72 N. Y. 2d, at
180, 527 N. E. 2d, at 770), and if the New York Legislature
should remain dissatisfied with the responsiveness of the
local school district, it could certainly enact general legisla-
tion tightening the mandate to school districts on matters of
special education or bilingual and bicultural offerings.
Ill
Justice Cardozo once cast the dissenter as "the gladiator
making a last stand against the lions." B. Cardozo, Law and
Literature 34 (1931). JUSTICE SCALIA'S dissent is certainly
the work of a gladiator, but he thrusts at lions of his own
imagining. We do not disable a religiously homogeneous
group from exercising political power conferred on it without
regard to religion. Cf. post, at 735-736. Unlike the States
of Utah and New Mexico (which were laid out according to
traditional political methodologies taking account of lines of
latitude and longitude and topographical features, see U. S.
Dept. of Interior, R Van Zandt, Boundaries of the United
States and the Several States 250-257 (Geological Survey
Bulletin 1212, 1966)), the reference line chosen for the Kiryas
Joel Village School District was one purposely drawn to sep-
arate Satmars from non-Satmars. Nor do we impugn the
motives of the New York Legislature, cf. post, at 737-740,
which no doubt intended to accommodate the Satmar com-
munity without violating the Establishment Clause; we sim-
ply refuse to ignore that the method it chose is one that aids
a particular religious community, as such, see App. 19-20
(Assembly sponsor thrice describes the Act's beneficiaries as
the "Hasidic" children or community), rather than all groups
similarly interested in separate schooling. The dissent pro-
tests it is novel to insist " 'up front' " that a statute not tailor
its benefits to apply only to one religious group, post, at 747-
748, but if this were so, Texas Monthly, Inc., would have
Cite as: 512 U. S. 687 (1994) 709
Opinion of the Court
turned out differently, see 489 U. S., at 14-15 (opinion of
Brennan, J.); id., at 28 (BLACKMUN, J., concurring in judg-
ment), and language in Walz v. Tax Gomm'n of New York
City, 397 U. S., at 673, and Bowen v. Kendrick, 487 U. S., at
608, purporting to rely on the breadth of the statutory
schemes would have been mere surplusage. Indeed, under
the dissent's theory, if New York were to pass a law provid-
ing school buses only for children attending Christian day
schools, we would be constrained to uphold the statute
against Establishment Clause attack until faced by a request
from a non-Christian family for equal treatment under the
patently unequal law. Cf. Everson v. Board of Ed. of
Swing, 330 U. S., at 17 (upholding school bus service pro-
vided all pupils). And to end on the point with which JUS-
TICE SCALJA begins, the license he takes in suggesting that
the Court holds the Satmar sect to be New York's estab-
lished church, see post, at 732, is only one symptom of his
inability to accept the fact that this Court has long held that
the First Amendment reaches more than classic, 18th-
century establishments. See Torcaso v. Watkins, 367 U. S.,
at 492-495.
Our job, of course, would be easier if the dissent's position
had prevailed with the Framers and with this Court over the
years. An Establishment Clause diminished to the dimen-
sions acceptable to JUSTICE SCALIA could be enforced by a
few simple rules, and our docket would never see cases re-
quiring the application of a principle like neutrality toward
religion as well as among religious sects. But that would
be as blind to history as to precedent, and the difference
between JUSTICE SCALIA and the Court accordingly turns on
the Court's recognition that the Establishment Clause does
comprehend such a principle and obligates courts to exercise
the judgment necessary to apply it.
In these cases we are clearly constrained to conclude that
the statute before us fails the test of neutrality. It dele-
gates a power this Court has said "ranks at the very apex of
710 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. u GRUMET
BLACKMUN, J., concurring
the function of a State," Wisconsin v. Yoder, 406 U. S. 205,
213 (1972), to an electorate defined by common religious be-
lief and practice, in a manner that fails to foreclose religious
favoritism. It therefore crosses the line from permissible
accommodation to impermissible establishment. The judg-
ment of the Court of Appeals of the State of New York is
accordingly
Affirmed.
JUSTICE BLACKMUN, concurring.
For the reasons stated by JUSTICE SOUTER and JUSTICE
STEVENS, whose opinions I join, I agree that the New York
statute under review violates the Establishment Clause of
the First Amendment. I write separately only to note my
disagreement with any suggestion that today's decision sig-
nals a departure from the principles described in Lemon v.
Kurtzman, 403 U. S. 602 (1971). The opinion of the Court
(and of the plurality with respect to Part II-A) relies upon
several decisions, including Larkin v. Grendel's Den, Inc.,
459 U. S. 116 (1982), that explicitly rested on the criteria set
forth in Lemon. Indeed, the two principles on which the
opinion bases its conclusion that the legislative Act is consti-
tutionally invalid essentially are the second and third Lemon
criteria. See ante, at 697; Larkin, 459 U. S., at 126-127
(finding " 'a fusion of governmental and religious functions' "
under Lemon's "entanglement" prong); 459 U. S., at 125-126
(finding a lack of any " 'effective means of guaranteeing' "
that governmental power will be neutrally employed under
Lemon's " 'principal' or 'primary effect' " prong).
I have no quarrel with the observation of JUSTICE O'CoN-
NOR, post, at 718-719, that the application of constitutional
principles, including those articulated in Lemon, must be
sensitive to particular contexts. But I remain convinced of
the general validity of the basic principles stated in Lemon,
which have guided this Court's Establishment Clause deci-
Cite as: 512 U S. 687 (1994) 711
STEVENS, X, concurring
sions in over 30 cases. See Lee v. Weisman, 505 U. S. 577,
603, n. 4 (1992) (BLACKMUN, J., concurring).
JUSTICE STEVENS, with whom JUSTICE BLACKMUN and
JUSTICE GINSBURG join, concurring.
New York created a special school district for the members
of the Satmar religious sect in response to parental concern
that children suffered "'panic, fear and trauma'" when
" 'leaving their own community and being with people whose
ways were so different/ " Ante, at 692. To meet those con-
cerns, the State could have taken steps to alleviate the chil-
dren's fear by teaching their schoolmates to be tolerant and
respectful of Satmar customs. Action of that kind would
raise no constitutional concerns and would further the strong
public interest in promoting diversity and understanding in
the public schools.
Instead, the State responded with a solution that affirma-
tively supports a religious sect's interest in segregating itself
and preventing its children from associating with their
neighbors. The isolation of these children, while it may pro-
tect them from ''panic, fear and trauma," also unquestionably
increased the likelihood that they would remain within the
fold, faithful adherents of their parents' religious faith. By
creating a school district that is specifically intended to
shield children from contact with others who have "different
ways," the State provided official support to cement the at-
tachment of young adherents to a particular faith. It is tell-
ing, in this regard, that two-thirds of the school's full-time
students are Hasidic handicapped children from outside the
village; the Kiryas Joel school thus serves a population far
wider than the village — one defined less by geography than
by religion. See ante, at 694, 701-702, n. 5.
Affirmative state action in aid of segregation of this char-
acter is unlike the evenhanded distribution of a public benefit
or service, a "release time" program for public school stu-
dents involving no public premises or funds, or a decision to
712 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
Opinion of O'CONNOR, J.
grant an exemption from a burdensome general rule. It is,
I believe, fairly characterized as establishing, rather than
merely accommodating, religion. For this reason, as well as
the reasons set out in JUSTICE SOUTER'S opinion, I am per-
suaded that the New York law at issue in these cases violates
the Establishment Clause of the First Amendment.
JUSTICE O'CONNOR, concurring in part and concurring in
the judgment.
I
The question at the heart of these cases is: What may the
government do, consistently with the Establishment Clause,
to accommodate people's religious beliefs? The history of
the Satmars in Orange County is especially instructive on
this, because they have been involved in at least three ac-
commodation problems, of which these cases are only the
most recent.
The first problem related to zoning law, and arose shortly
after the Satmars moved to the town of Monroe in the early
1970's. Though the area in which they lived was zoned for
single-family homes, the Satmars subdivided their houses
into several apartments, apparently in part because of their
traditionally close-knit extended family groups. The Sat-
mars also used basements of some of their buildings as
schools and synagogues, which according to the town was
also a zoning violation. See N. Y. Times, Oct. 17, 1976, sec-
tion 1, p. 53, col. 1; App. 10-14.
Fortunately for the Satmars, New York state law had a
way of accommodating their concerns. New York allows
virtually any group of residents to incorporate their own vil-
lage, with broad powers of self-government. The Satmars
followed this course, incorporating their community as the
village of Kiryas Joel, and their zoning problems, at least,
were solved. Ante, at 691.
The Satmars' next need for accommodation arose in the
mid-1980's. Satmar education is pervasively religious, and
Cite as: 512 U. S. 687 (1994) 713
Opinion of O'CONNOR, J.
is provided through entirely private schooling. But though
the Satmars could afford to educate most of their children,
educating the handicapped is a difficult and expensive busi-
ness. Moreover, it is a business that the government gener-
ally funds, with tax moneys that come from the Satmars as
well as from everyone else. In 1984, therefore, the Monroe-
Woodbury Central School District began providing handi-
capped education services to the Satmar children at an annex
to the Satmar religious school. The curriculum and the en-
vironment of the services were entirely secular. They were
the same sort of services available to handicapped students
at secular public and private schools throughout the country.
In 1985, however, we held that publicly funded classes on
religious school premises violate the Establishment Clause.
School Dist of Grand Rapids v. Ball, 473 U. S. 373; Aguilar
v. Felton, 473 U. S. 402. Based on these decisions, the
Monroe- Woodbury Central School District stopped providing
services at the Kiryas Joel site, and required the Satmar chil-
dren to attend public schools outside the village. This, how-
ever, was not a satisfactory arrangement for the Satmars, in
part because the Satmar children had a hard time dealing
with immersion in the non-Satmar world. By 1989, only one
handicapped Kiryas Joel child was going to the public
school — the others were getting either privately funded
services or no special education at all. Though the Satmars
tried to reach some other arrangement with the Monroe-
Woodbury Central School District, the problem was not
resolved.
In response to these difficulties came the third accommo-
dation. In 1989, the New York Legislature passed a statute
to create a special school district covering only the village of
Kiryas Joel. This school district could, of course, only oper-
ate secular schools, and the Satmars therefore wanted to use
it only to provide education for the handicapped. But be-
cause the district provides this education in the village,
Satmar children could take advantage of the district's serv-
714 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
Opinion of O'CONNOR, J.
ices without encountering the problems they faced when
they were sent out to Monroe-Woodbury schools. It is the
constitutionality of the law creating this district that we are
now called on to decide.
II
The three situations outlined above shed light on an impor-
tant aspect of accommodation under the First Amendment:
Religious needs can be accommodated through laws that are
neutral with regard to religion. The Satmars' living ar-
rangements were accommodated by their right — a right
shared with all other communities, religious or not, through-
out New York — to incorporate themselves as a village.
From 1984 to 1985, the Satmar handicapped children's edu-
cational needs were accommodated by special education
programs like those available to all handicapped children,
religious or not. Other examples of such accommodations
abound: The Constitution itself, for instance, accommodates
the religious desires of those who were opposed to oaths by
allowing any officeholder — of any religion, or none — to take
either an oath of office or an affirmation. Art. II, § 1, cl. 8;
Art. VI, cl. 3; see also Amdt. 4. Likewise, the selective
service laws provide exemptions for conscientious objectors
whether or not the objection is based on religious beliefs.
Welsh v. United States, 398 U. S. 333, 356 (1970) (Harlan, J.,
concurring in result).
We have time and again held that the government gen-
erally may not treat people differently based on the God
or gods they worship, or do not worship. "The clearest
command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another."
Larson v. Valente, 456 U. S. 228, 244 (1982). "Just as we
subject to the most exacting scrutiny laws that make classi-
fications based on race ... so too we strictly scrutinize gov-
ernmental classifications based on religion." Employment
Div., Dept of Human Resources of Ore. v. Smith, 494 U. S.
872, 886, n. 3 (1990). "[T]he Establishment Clause prohibits
Cite as: 512 U. S. 68? (1994) 715
Opinion of O'CONNOR, J.
government from abandoning secular purposes . . . to favor
the adherents of any sect or religious organization." Gil-
lette v. United States, 401 U S. 437, 450 (1971). "Neither
[the State nor the Federal Governments] can constitutionally
pass laws or impose requirements which aid all religions as
against non-believers, and neither can aid those religions
based on a belief in the existence of God as against those
religions founded on different beliefs/' Torcaso v. Watkins,
367 U. S. 488, 495 (1961) (footnote omitted). See also Texas
Monthly, Inc. v. Bullock, 489 U. S. 1, 8-9 (1989) (plurality
opinion); id., at 26, 28-29 (BiACKMUN, J., concurring in judg-
ment); Welsh, supra, at 356 (Harlan, J., concurring); Walz v.
Tax Comm'n of City of New York, 397 U. S. 664, 696-697
(1970) (opinion of Harlan, J.).
This emphasis on equal treatment is, I think, an eminently
sound approach. In my view, the Religion Clauses — the
Free Exercise Clause, the Establishment Clause, the Reli-
gious Test Clause, Art. VI, cl 3, and the Equal Protection
Clause as applied to religion — all speak with one voice on
this point: Absent the most unusual circumstances, one's reli-
gion ought not affect one's legal rights or duties or benefits.
As I have previously noted, "the Establishment Clause is
infringed when the government makes adherence to religion
relevant to a person's standing in the political community."
Wallace v. Jajffree, 472 U. S. 38, 69 (1985) (opinion concurring
in judgment).
That the government is acting to accommodate religion
should generally not change this analysis. What makes ac-
commodation permissible, even praiseworthy, is not that the
government is making life easier for some particular reli-
gious group as such. Rather, it is that the government is
accommodating a deeply held belief. Accommodations may
thus justify treating those who share this belief differently
from those who do not; but they do not justify discrimina-
tions based on sect. A state law prohibiting the consump-
tion of alcohol may exempt sacramental wines, but it may
716 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
Opinion of O'CONNOR, J.
not exempt sacramental wine use by Catholics but not by
Jews. A draft law may exempt conscientious objectors, but
it may not exempt conscientious objectors whose objections
are based on theistic belief (such as Quakers) as opposed to
nontheistic belief (such as Buddhists) or atheistic belief. See
Welsh, 398 U. S., at 356 (Harlan, J., concurring in result); see
also id., at 335-344 (reaching this result on statutory inter-
pretation grounds); United States v. Seeger, 380 U. S. 163
(1965) (same). The Constitution permits "nondis crimina-
tory religious-practice exemption[s]," Smith, supra, at 890
(emphasis added), not sectarian ones.
Ill
I join Parts I, II-B, II-C, and III of the Court's opinion
because I think this law, rather than being a general accom-
modation, singles out a particular religious group for favor-
able treatment. The Court's analysis of the history of this
law and of the surrounding statutory scheme, ante, at 699-
701, persuades me of this.
On its face, this statute benefits one group — the residents
of Kiryas Joel. Because this benefit was given to this group
based on its religion, it seems proper to treat it as a legisla-
tively drawn religious classification. I realize this is a close
question, because the Satmars may be the only group who
currently need this particular accommodation. The legisla-
ture may well be acting without any favoritism, so that if
another group came to ask for a similar district, the group
might get it on the same terms as the Satmars. But the
nature of the legislative process makes it impossible to be
sure of this. A legislature, unlike the judiciary or many ad-
ministrative decisionmakers, has no obligation to respond to
any group's requests. A group petitioning for a law may
never get a definite response, or may get a "no" based not
on the merits but on the press of other business or the lack
of an influential sponsor. Such a legislative refusal to act
would not normally be reviewable by a court. Under these
Cite as: 512 U. S. 687 (1994) 717
Opinion of O'CONNOR, J.
circumstances, it seems dangerous to validate what appears
to me a clear religious preference.
Our invalidation of this statute in no way means that the
Satmars' needs cannot be accommodated. There is nothing
improper about a legislative intention to accommodate a reli-
gious group, so long as it is implemented through generally
applicable legislation. New York may, for instance, allow all
villages to operate their own school districts. If it does not
want to act so broadly, it may set forth neutral criteria that
a village must meet to have a school district of its own; these
criteria can then be applied by a state agency, and the deci-
sion would then be reviewable by the judiciary. A district
created under a generally applicable scheme would be ac-
ceptable even though it coincides with a village that was con-
sciously created by its voters as an enclave for their religious
group. I do not think the Court's opinion holds the contrary.
I also think there is one other accommodation that would
be entirely permissible: the 1984 scheme, which was discon-
tinued because of our decision in Aguilar. The Religion
Clauses prohibit the government from favoring religion, but
they provide no warrant for discriminating against religion.
All handicapped children are entitled by law to government-
funded special education. See, e. g., Individuals with Disa-
bilities Education Act, 20 U. S. C. § 1400 et seq. If the gov-
ernment provides this education on-site at public schools and
at nonsectarian private schools, it is only fair that it provide
it on-site at sectarian schools as well.
I thought this to be true in Aguilar, see 473 U. S., at 421—
431 (dissenting opinion), and I still believe it today. The
Establishment Clause does not demand hostility to religion,
religious ideas, religious people, or religious schools. Cf.
Lamb's Chapel v. Center Moriches Union Free School Dist.,
508 U. S. 384 (1993). It is the Court's insistence on disfavor-
ing religion in Aguilar that led New York to favor it here.
The Court should, in a proper case, be prepared to reconsider
Aguilar, in order to bring our Establishment Clause juris-
718 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. u GRUMET
Opinion of O'CONNOR, J.
prudence back to what I think is the proper track — govern-
ment impartiality, not animosity, toward religion.
IV
One aspect of the Court's opinion in these cases is worth
noting: Like the opinions in two recent cases, Lee v. Weis-
man, 505 U. S. 577 (1992); Zobrest v. Catalina Foothills
School Dist, 509 U. S. 1 (1993), and the case I think is most
relevant to these, Larson v. Valente, 456 U. S. 228 (1982), the
Court's opinion does not focus on the Establishment Clause
test we set forth in Lemon v. Kurtzman, 403 U. S. 602 (1971).
It is always appealing to look for a single test, a Grand
Unified Theory that would resolve all the cases that may
arise under a particular Clause. There is, after all, only one
Establishment Clause, one Free Speech Clause, one Fourth
Amendment, one Equal Protection Clause. See Craig v.
Boren, 429 U. S. 190, 211 (1976) (STEVENS, J., concurring).
But the same constitutional principle may operate very
differently in different contexts. We have, for instance, no
one Free Speech Clause test. We have different tests for
content-based speech restrictions, for content-neutral speech
restrictions, for restrictions imposed by the government act-
ing as employer, for restrictions in nonpublic fora, and so
on. This simply reflects the necessary recognition that the
interests relevant to the Free Speech Clause inquiry — per-
sonal liberty, an informed citizenry, government efficiency,
public order, and so on — are present in different degrees in
each context.
And setting forth a unitary test for a broad set of cases
may sometimes do more harm than good. Any test that
must deal with widely disparate situations risks being so
vague as to be useless. I suppose one can say that the gen-
eral test for all free speech cases is "a regulation is valid
if the interests asserted by the government are stronger
than the interests of the speaker and the listeners," but
this would hardly be a serviceable formulation. Similarly,
Cite as: 512 U. S. 687 (1994) 719
Opinion of O'CONNOR, J.
Lemon has, with some justification, been criticized on this
score.
Moreover, shoehorning new problems into a test that does
not reflect the special concerns raised by those problems
tends to deform the language of the test. Relatively simple
phrases like "primary effect . . . that neither advances nor
inhibits religion" and " 'entanglement/ " Lemon, supra, at
612-613, acquire more and more complicated definitions
which stray ever further from their literal meaning. Distinc-
tions are drawn between statutes whose effect is to advance
religion and statutes whose effect is to allow religious or-
ganizations to advance religion. See, e. g., Corporation of
Presiding Bishop of Church of Jesus Christ of Latter-day
Saints v. Amos, 483 U. S. 327, 336-337 (1987); id., at 347
(O'CONNOR, J., concurring in judgment) (discussing this
point). Assertions are made that authorizing churches to
veto liquor sales in surrounding areas "can be seen as having
a 'primary* and 'principal' effect of advancing religion. " Lar-
kin v. Grendel's Den, Inc., 459 U S. 116, 125-126 (1982).
"[EJntanglement" is discovered in public employers monitor-
ing the performance of public employees — surely a proper
enough function — on parochial school premises, and in the
public employees cooperating with the school on class sched-
uling and other administrative details. Aguilar v. Felton,
473 U. S., at 413. Alternatives to Lemon suffer from a simi-
lar failing when they lead us to find "coercive pressure" to
pray when a school asks listeners — with no threat of legal
sanctions — to stand or remain silent during a graduation
prayer. Lee v. Weisman, supra, at 592. Some of the re-
sults and perhaps even some of the reasoning in these cases
may have been right. I joined two of the cases cited above,
Larkin and Lee, and continue to believe they were correctly
decided. But I think it is more useful to recognize the rele-
vant concerns in each case on their own terms, rather than
trying to squeeze them into language that does not really
apply to them.
720 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
Opinion of O'CONNOR, J.
Finally, another danger to keep in mind is that the bad
test may drive out the good. Rather than taking the oppor-
tunity to derive narrower, more precise tests from the case
law, courts tend to continually try to patch up the broad test,
making it more and more amorphous and distorted. This, I
arn afraid, has happened with Lemon.
Experience proves that the Establishment Clause, like the
Free Speech Clause, cannot easily be reduced to a single test.
There are different categories of Establishment Clause
cases, which may call for different approaches. Some cases,
like these, involve government actions targeted at particular
individuals or groups, imposing special duties or giving spe-
cial benefits. Cases involving government speech on reli-
gious topics, see, e. g., Lee v. Weisman, supra; Allegheny
County v. American Civil Liberties Union, Greater Pitts-
burgh Chapter, 492 U. S. 573 (1989); Lynch v. Donnelly, 465
U. S, 668 (1984); Stone v. Graham, 449 U. S. 39 (1980), seem
to me to fall into a different category and to require an analy-
sis focusing on whether the speech endorses or disapproves
of religion, rather than on whether the government action is
neutral with regard to religion. See Allegheny County,
supra, at 623-637 (O'CONNOR, J., concurring in part and con-
curring in judgment).
Another category encompasses cases in which the gov-
ernment must make decisions about matters of religious
doctrine and religious law. See Serbian Eastern Orthodox
Diocese for United States and Canada v. Milivojevich, 426
U. S. 696 (1976) (which also did not apply Lemon). These
cases, which often arise in the application of otherwise neu-
tral property or contract principles to religious institutions,
involve complicated questions not present in other situations.
See, e. g., 426 U. S., at 721 (looking at some aspects of reli-
gious law to determine the structure of the church, but refus-
ing to look further into religious law to resolve the ultimate
dispute). Government delegations of power to religious
bodies may make up yet another category. As Larkin itself
720 BOARD OF ED. OP KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
Opinion of O'CONNOR, J.
Finally, another danger to keep in mind is that the bad
test may drive out the good. Rather than taking the oppor-
tunity to derive narrower, more precise tests from the case
law, courts tend to continually try to patch up the broad test,
making it more and more amorphous and distorted. This, I
am afraid, has happened with Lemon.
Experience proves that the Establishment Clause, like the
Free Speech Clause, cannot easily be reduced to a single test.
There are different categories of Establishment Clause
cases, which may call for different approaches. Some cases,
like these, involve government actions targeted at particular
individuals or groups, imposing special duties or giving spe-
cial benefits. Cases involving government speech on reli-
gious topics, see, e.g., Lee v. Weisman, supra; Allegheny
County v. American Civil Liberties Union, Greater Pitts-
burgh Chapter, 492 U. S. 573 (1989); Lynch v. Donnelly, 465
U. S. 668 (1984); Stone v. Graham, 449 U. S. 39 (1980), seem
to me to fall into a different category and to require an analy-
sis focusing on whether the speech endorses or disapproves
of religion, rather than on whether the government action is
neutral with regard to religion. See Allegheny County,
supra, at 623-637 (O'CONNOR, J., concurring in part and con-
curring in judgment).
Another category encompasses cases in which the gov-
ernment must make decisions about matters of religious
doctrine and religious law. See Serbian Eastern Orthodox
Diocese for United States and Canada v. Milivojevich, 426
U. S. 696 (1976) (which also did not apply Lemon). These
cases, which often arise in the application of otherwise neu-
tral property or contract principles to religious institutions,
involve complicated questions not present in other situations.
See, e. g., 426 U. S., at 721 (looking at some aspects of reli-
gious law to determine the structure of the church, but refus-
ing to look further into religious law to resolve the ultimate
dispute). Government delegations of power to religious
bodies may make up yet another category. As Larkin itself
Cite as: 512 U. S. 687 (1994) 721
Opinion of O'CONNOR, J.
suggested, government impartiality towards religion may
not be enough in such situations: A law that bars all alcohol
sales within some distance of a church, school, or hospital
may be valid, but an equally evenhanded law that gives each
institution discretionary power over the sales may not be.
Larkin, supra, at 123-124. Of course, there may well be
additional categories, or more opportune places to draw the
lines between the categories.
As the Court's opinion today shows, the slide away from
Lemon's unitary approach is well under way. A return to
Lemon, even if possible, would likely be futile, regardless of
where one stands on the substantive Establishment Clause
questions. I think a less unitary approach provides a better
structure for analysis. If each test covers a narrower and
more homogeneous area, the tests may be more precise and
therefore easier to apply. There may be more opportunity
to pay attention to the specific nuances of each area. There
might also be, I hope, more consensus on each of the narrow
tests than there has been on a broad test. And abandoning
the Lemon framework need not mean abandoning some of
the insights that the test reflected, nor the insights of the
cases that applied it.
Perhaps eventually under this structure we may indeed
distill a unified, or at least a more unified, Establishment
Clause test from the cases. Cf. Clark v. Community for
Creative Non-Violence, 468 U. S. 288, 298-299 (1984) (uniting
two strands of Free Speech Clause doctrine). But it seems
to me that the case law will better be able to evolve towards
this if it is freed from the Lemon test's rigid influence. The
hard questions would, of course, still have to be asked; but
they will be asked within a more carefully tailored and less
distorted framework.
* * *
For the reasons stated, I would affirm the judgment of the
Court of Appeals of the State of New York.
722 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
KENNEDY, J., concurring in judgment
JUSTICE KENNEDY, concurring in the judgment.
The Court's ruling that the Kiryas Joel Village School Dis-
trict violates the Establishment Clause is in my view correct,
but my reservations about what the Court's reasoning im-
plies for religious accommodations in general are sufficient
to require a separate writing. As the Court recognizes, a
legislative accommodation that discriminates among reli-
gions may become an establishment of religion. But the
Court's opinion can be interpreted to say that an accommoda-
tion for a particular religious group is invalid because of the
risk that the legislature will not grant the same accommoda-
tion to another religious group suffering some similar bur-
den. This rationale seems to me without grounding in our
precedents and a needless restriction upon the legislature's
ability to respond to the unique problems of a particular reli-
gious group. The real vice of the school district, in my esti-
mation, is that New York created it by drawing political
boundaries on the basis of religion. I would decide the issue
we confront upon this narrower theory, though in accord
with many of the Court's general observations about the
State's actions in this litigation.
This is not an action in which the government has granted
a benefit to a general class of recipients of which religious
groups are just one part. See Zobrest v. Catalina Foothills
School Dist, 509 U. S. 1 (1993); Bowen v. Kendrick, 487 U. S.
589 (1988); Witters v. Washington Dept. of Servs. for Blind,
474 U. S. 481 (1986); Mueller v. Allen, 463 U. S. 388 (1983).
It is rather an action in which the government seeks to alle-
viate a specific burden on the religious practices of a particu-
lar religious group. I agree that a religious accommodation
demands careful scrutiny to ensure that it does not so burden
nonadherents or discriminate against other religions as to
become an establishment. I disagree, however, with the
suggestion that the Kiryas Joel Village School District con-
travenes these basic constitutional commands. But for the
Cite as: 512 U. S. 687 (1994) 728
KENNEDY, J., concurring in judgment
forbidden manner in which the New York Legislature sought
to go about it, the State's attempt to accommodate the spe-
cial needs of the handicapped Satmar children would have
been valid.
"Government policies of accommodation, acknowledgment,
and support for religion are an accepted part of our political
and cultural heritage/' Allegheny County v. American
Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S.
573, 657 (1989) (KENNEDY, J., concurring in judgment in part
and dissenting in part). Before the Revolution, colonial gov-
ernments made a frequent practice of exempting religious
objectors from general laws. See McConnell, The Origins
and Historical Understanding of Free Exercise of Religion,
103 Harv. L. Rev. 1409, 1466-1473 (1990) (recounting colonial
exemptions from oath requirements, compulsory military
service, religious assessments, and other general legislation).
As early as 1691, for instance, New York allowed Quakers to
testify by affirmation rather than oath in civil court cases.
T. Curry, The First Freedoms: Church and State in America
to the Passage of the First Amendment 64 (1986). Later,
during the American Revolution, the Continental Congress
exempted religious objectors from military conscription.
Resolution of July 18, 1775, reprinted in 2 Journals of the
Continental Congress 187, 189 (Library of Congress ed. 1905)
("As there are some people, who, from religious principles,
cannot bear arms in any case, this Congress intend no vio-
lence to their consciences . . .")• And since the framing of
the Constitution, this Court has approved legislative accom-
modations for a variety of religious practices. See, e. g., Se-
lective Draft Law Cases, 245 U. S. 366, 389-390 (1918) (mili-
tary draft exemption for religious objectors); Zorach v.
Clauson, 343 U. S. 306 (1952) (New York City program per-
mitting public school children to leave school for one hour
a week for religious observance and instruction); Gillette v,
United States, 401 U. S. 437 (1971) (military draft exemption
for religious objectors); Corporation of Presiding Bishop of
724 BUAKD OF UD. UF KiKXAb JU&Jb
SCHOOL DIST. v. GRUMET
KENNEDY, J., concurring in judgment
Church of Jesus Christ of Latter-day Saints v. Amos, 483
U. S. 327 (1987) (exemption of religious organizations from
Title VIFs prohibition of religious discrimination); Employ-
ment Div., Dept of Human Resources of Ore. v. Smith, 494
U. S. 872, 890 (1990) (exemption from drug laws for sacra-
mental peyote use) (dicta).
New York's object in creating the Kiryas Joel Village
School District — to accommodate the religious practices of
the handicapped Satmar children — is validated by the princi-
ples that emerge from these precedents. First, by creating
the district, New York sought to alleviate a specific and iden-
tifiable burden on the Satmars' religious practice. The
Satmars' way of life, which springs out of their strict reli-
gious beliefs, conflicts in many respects with mainstream
American culture. They do not watch television or listen to
radio; they speak Yiddish in their homes and do not read
English-language publications; and they have a distinctive
hairstyle and dress. Attending the Monroe- Woodbury pub-
lic schools, where they were exposed to much different ways
of life, caused the handicapped Satmar children understand-
able anxiety and distress. New York was entitled to relieve
these significant burdens, even though mainstream public
schooling does not conflict with any specific tenet of the
Satmars' religious faith. The Title VII exemption upheld in
Corporation of Presiding Bishop, supra, for example, covers
religious groups who may not believe themselves obliged to
employ coreligionists in every instance. See also Walz v.
Tax Comm'n of City of New York, 397 U. S. 664, 673 (1970)
("The limits of permissible state accommodation to religion
are by no means co-extensive with the noninterference man-
dated by the Free Exercise Clause"); accord, Smith, supra,
at 890 (legislatures may grant accommodations even when
courts may not).
Second, by creating the district, New York did not impose
or increase any burden on non-Satmars, compared to the bur-
den it lifted from the Satmars, that might disqualify the dis-
Cite as: 512 U. S. 687 (1994) 725
KENNEDY, J., concurring in judgment
trict as a genuine accommodation. In Gillette, supra, the
Court upheld a military draft exemption, even though the
burden on those without religious objection to war (the in-
creased chance of being drafted and forced to risk one's life
in battle) was substantial And in Corporation of Presiding
Bishop, the Court upheld the Title VII exemption even
though it permitted employment discrimination against non-
practitioners of the religious organization's faith. There is
a point, to be sure, at which an accommodation may impose
a burden on nonadherents so great that it becomes an estab-
lishment. See, e. g., Estate of Thornton v. Caldor, Inc., 472
U. S. 703, 709-710 (1985) (invalidating mandatory Sabbath
day off because it provided "no exception when honoring the
dictates of Sabbath observers would cause the employer sub-
stantial economic burdens or when the employer's compli-
ance would require the imposition of significant burdens on
other employees required to work in place of the Sabbath
observers")- This action has not been argued, however, on
the theory that non-Satmars suffer any special burdens from
the existence of the Kiryas Joel Village School District.
Third, the creation of the school district to alleviate the
special burdens born by the handicapped Satmar children
cannot be said, for that reason alone, to favor the Satmar
religion to the exclusion of any other. "The clearest com-
mand of the Establishment Clause," of course, "is that one
religious denomination cannot be officially preferred over an-
other." Larson v. Valente, 456 U. S. 228, 244 (1982); accord,
Smith, supra, at 886, n. 3. I disagree, however, with the
Court's conclusion that the school district breaches this com-
mand. The Court insists that religious favoritism is a dan-
ger here, because the "anomalously case-specific nature of
the legislature's exercise of state authority in creating this
district for a religious community leaves the Court without
any direct way to review such state action" to ensure inter-
denominational neutrality. Ante, at 703. "Because the reli-
gious community of Kiryas Joel did not receive its new gov-
SCHOOL DIST. v. GRUMET
KENNEDY, J., concurring in judgment
ernmental authority simply as one of many communities
eligible for equal treatment under a general law," the Court
maintains, "we have no assurance that the next similarly sit-
uated group seeking a school district of its own will receive
one; ... a legislature's failure to enact a special law is itself
unreviewable." Ibid, (footnote omitted).
This reasoning reverses the usual presumption that a stat-
ute is constitutional and, in essence, adjudges the New York
Legislature guilty until it proves itself innocent. No party
has adduced any evidence that the legislature has denied an-
other religious community like the Satmars its own school
district under analogous circumstances. The legislature,
like the judiciary, is sworn to uphold the Constitution, and
we have no reason to presume that the New York Legisla-
ture would not grant the same accommodation in a similar
future case. The fact that New York singled out the Sat-
mars for this special treatment indicates nothing other than
the uniqueness of the handicapped Satmar children's plight.
It is normal for legislatures to respond to problems as they
arise — no less so when the issue is religious accommodation.
Most accommodations cover particular religious practices.
See, e.g., 21 CFR §1307.31 (1993) ("The listing of peyote as
a controlled substance . . . does not apply to the nondrug
use of peyote in bona fide religious ceremonies of the Native
American Church"); 25 CFR §11.87H (1993) ("[I]t shall not
be unlawful for any member of the Native American Church
to transport into Navajo country, buy, sell, possess, or use
peyote in any form in connection with the religious practices,
sacraments or services of the Native American Church");
Dept. of Air Force, Reg. 35-10, f 2-28(b)(2) (Apr. 1989) ("Re-
ligious head coverings are authorized for wear while in
uniform when military headgear is not authorized. . . . Reli-
gious head coverings may be worn underneath military
headgear if they do not interfere with the proper wearing,
functioning, or appearance of the prescribed headgear. . . .
Cite as: 512 IL S. 687 (1994) 727
KENNEDY, J., concurring in judgment
For example, Jewish yarmulkes meet this requirement if
they do not exceed 6 inches in diameter"); National Prohibi-
tion Act, §3, 41 Stat. 308 ("Liquor for nonbeverage purposes
and wine for sacramental purposes may be manufactured,
purchased, sold, bartered, transported, imported, exported,
delivered, furnished and possessed"), repealed by Liquor
Law Repeal and Enforcement Act, § 1, 49 Stat. 872. They
do not thereby become invalid.
Nor is it true that New York's failure to accommodate an-
other religious community facing similar burdens would be
insulated from challenge in the courts. The burdened com-
munity could sue the State of New York, contending that
New York's discriminatory treatment of the two religious
communities violated the Establishment Clause. To resolve
this claim, the court would have only to determine whether
the community does indeed bear the same burden on its reli-
gious practice as did the Satmars in Kiryas Joel. See Olsen
v. Drug Enforcement Admin., 878 F. 2d 1458, 1463-1465
(CADC 1989) (R. B. Ginsburg, J.) (rejecting claim that the
members of the Ethiopian Zion Coptic Church were entitled
to an exemption from the marijuana laws on the same terms
as the peyote exemption for the Native American Church);
Olsen v. Iowa, 808 R 2d 652 (CAS 1986) (same). While a
finding of discrimination would then raise a difficult question
of relief, compare Olsen, 878 F. 2d, at 1464 ("Faced with the
choice between invalidation and extension of any controlled-
substances religious exemption, which would the political
branches choose? It would take a court bolder than this one
to predict . . . that extension, not invalidation, would be the
probable choice"), with Califano v. Westcott, 443 U. S. 76,
89-93 (1979) (curing gender discrimination in the Aid to
Families with Dependent Children program by extending
benefits to children of unemployed mothers instead of deny-
ing benefits to children of unemployed fathers), the discrimi-
nation itself would not be beyond judicial remedy.
SCHOOL DIST. v. GRUMET
KENNEDY, J., concurring in judgment
II
The Kiryas Joel Village School District thus does not
suffer any of the typical infirmities that might invalidate an
attempted legislative accommodation. In the ordinary case,
the fact that New York has chosen to accommodate the bur-
dens unique to one religious group would raise no constitu-
tional problems. Without further evidence that New York
has denied the same accommodation to religious groups bear-
ing similar burdens, we could not presume from the particu-
larity of the accommodation that the New York Legislature
acted with discriminatory intent.
This particularity takes on a different cast, however, when
the accommodation requires the government to draw politi-
cal or electoral boundaries. "The principle that government
may accommodate the free exercise of religion does not su-
persede the fundamental limitations imposed by the Estab-
lishment Clause/' Lee v. Weisman, 505 U. S. 577, 587 (1992),
and in my view one such fundamental limitation is that gov-
ernment may not use religion as a criterion to draw political
or electoral lines. Whether or not the purpose is accommo-
dation and whether or not the government provides similar
gerrymanders to people of all religious faiths, the Establish-
ment Clause forbids the government to use religion as a
line-drawing criterion. In this respect, the Establishment
Clause mirrors the Equal Protection Clause. Just as the
government may not segregate people on account of their
race, so too it may not segregate on the basis of religion.
The danger of stigma and stirred animosities is no less acute
for religious line-drawing than for racial. Justice Douglas
put it well in a statement this Court quoted with approval
just last Term:
"When racial or religious lines are drawn by the State,
the multiracial, multireligious communities that our
Constitution seeks to weld together as one become sepa-
ratist; antagonisms that relate to race or to religion
«JVJJCJ.LJ V
SCHOOL DIST. u GRUMET
KENNEDY, J., concurring in judgment
II
The Kiryas Joel Village School District thus does not
suffer any of the typical infirmities that might invalidate an
attempted legislative accommodation. In the ordinary case,
the fact that New York has chosen to accommodate the bur-
dens unique to one religious group would raise no constitu-
tional problems. Without further evidence that New York
has denied the same accommodation to religious groups bear-
ing similar burdens, we could not presume from the particu-
larity of the accommodation that the New York Legislature
acted with discriminatory intent.
This particularity takes on a different cast, however, when
the accommodation requires the government to draw politi-
cal or electoral boundaries. "The principle that government
may accommodate the free exercise of religion does not su-
persede the fundamental limitations imposed by the Estab-
lishment Clause/' Lee v. Weisman, 505 U. S. 577, 587 (1992),
and in my view one such fundamental limitation is that gov-
ernment may not use religion as a criterion to draw political
or electoral lines. Whether or not the purpose is accommo-
dation and whether or not the government provides similar
gerrymanders to people of all religious faiths, the Establish-
ment Clause forbids the government to use religion as a
line-drawing criterion. In this respect, the Establishment
Clause mirrors the Equal Protection Clause. Just as the
government may not segregate people on account of their
race, so too it may not segregate on the basis of religion.
The danger of stigma and stirred animosities is no less acute
for religious line-drawing than for racial. Justice Douglas
put it well in a statement this Court quoted with approval
just last Term:
"When racial or religious lines are drawn by the State,
the multiracial, multireligious communities that our
Constitution seeks to weld together as one become sepa-
ratist; antagonisms that relate to race or to religion
Cite as: 512 U. S. 687 (1994) 729
KENNEDY, J., concurring in judgment
rather than to political issues are generated; communi-
ties seek not the best representative but the best racial
or religious partisan. Since that system is at war with
the democratic ideal, it should find no footing here."
Wright v. Rockefeller, 376 U. S. 52, 67 (1964) (Douglas,
J., dissenting) (quoted in Shaw v. Reno, 509 II S. 630,
648-649 (1993)).
I agree with the Court insofar as it invalidates the school
district for being drawn along religious lines. As the plural-
ity observes, ante, at 699-700, the New York Legislature
knew that everyone within the village was Satmar when it
drew the school district along the village lines, and it deter-
mined who was to be included in the district by imposing, in
effect, a religious test. There is no serious question that
the legislature configured the school district, with purpose
and precision, along a religious line. This explicit religious
gerrymandering violates the First Amendment Establish-
ment Clause.
It is important to recognize the limits of this principle.
We do not confront the constitutionality of the Kiryas Joel
village itself, and the formation of the village appears to dif-
fer from the formation of the school district in one critical
respect. As the Court notes, ante, at 703, n. 7, the village
was formed pursuant to a religion-neutral self-incorporation
scheme. Under New York law, a territory with at least 500
residents and not more than five square miles may be incor-
porated upon petition by at least 20 percent of the voting
residents of that territory or by the owners of more than 50
percent of the territory's real property. N. Y. Village Law
§§2-200, 2-202 (McKinney 1973 and Supp. 1994). Aside
from ensuring that the petition complies with certain proce-
dural requirements, the supervisor of the town in which the
territory is located has no discretion to reject the petition.
§ 2-206; see Decision on Sufficiency of Petition, in App. 8, 14
("[T]he hollow provisions of the Village Law . . . allow me
only to review the procedural niceties of the petition itself ").
730 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
KENNEDY, J., concurring in judgment
The residents of the town then vote upon the incorporation
petition in a special election. N. Y. Village Law § 2-212 (Mc-
Kinney 1973). By contrast, the Kiryas Joel Village School
District was created by state legislation. The State of New
York had complete discretion not to enact it. The State thus
had a direct hand in accomplishing the religious segregation.
As the plurality indicates, the Establishment Clause does
not invalidate a town or a State "whose boundaries are de-
rived according to neutral historical and geographic criteria,
but whose population happens to comprise coreligionists."
Ante, at 702, n. 6. People who share a common religious
belief or lifestyle may live together without sacrificing the
basic rights of self-governance that all American citizens
enjoy, so long as they do not use those rights to establish
their religious faith. Religion flourishes in community, and
the Establishment Clause must not be construed as some
sort of homogenizing solvent that forces unconventional reli-
gious groups to choose between assimilating to mainstream
American culture or losing their political rights. There is
more than a fine line, however, between the voluntary associ-
ation that leads to a political community comprised of people
who share a common religious faith, and the forced separa-
tion that occurs when the government draws explicit political
boundaries on the basis of peoples' faith. In creating the
Kiryas Joel Village School District, New York crossed that
line, and so we must hold the district invalid.
Ill
This is an unusual action, for it is rare to see a State exert
such documented care to carve out territory for people of a
particular religious faith. It is also unusual in that the prob-
lem to which the Kiryas Joel Village School District was ad-
dressed is attributable in no small measure to what I believe
were unfortunate rulings by this Court.
Before 1985, the handicapped Satmar children of Kiryas
Joel attended the private religious schools within the village
Cite as: 512 U. S. 687 (1994) 731
KENNEDY, J., concurring in judgment
that the other Satmar children attended. Because their
handicaps were in some cases acute (ranging from mental
retardation and deafness to spina bifida and cerebral palsy),
the State of New York provided public funds for special edu-
cation of these children at annexes to the religious schools.
Then came the companion cases of School Dist of Grand
Rapids v. Ball, 473 U. S. 373 (1985), and Aguilar v. Felton,
473 U. S. 402 (1985). In Grand Rapids, the Court invali-
dated a program in which public school teachers would offer
supplemental classes at private schools, including religious
schools, at the end of the regular schoolday. And in Ag-
uilar, the Court invalidated New York City's use of Title I
funding to pay the salaries of public school teachers who
taught educationally deprived children of low-income fami-
lies at parochial schools in the city. After these cases, the
Monroe-Woodbury Central School District suspended its spe-
cial education program at the Kiryas Joel religious schools,
and the Kiryas Joel parents were forced to enroll their handi-
capped children at the Monroe-Woodbury public schools in
order for the children to receive special education. The en-
suing difficulties, as the Court recounts, ante, at 692-693, led
to the creation of the Kiryas Joel Village School District.
The decisions in Grand Rapids and Aguilar may have
been erroneous. In light of the action before us, and in the
interest of sound elaboration of constitutional doctrine, it
may be necessary for us to reconsider them at a later date.
A neutral aid scheme, available to religious and nonreligious
alike, is the preferable way to address problems such as the
Satmar handicapped children have suffered. See Witters,
474 U. S., at 490-492 (Powell, J., concurring). But for Grand
Rapids and Aguilar, the Satmars would have had no need
to seek special accommodations or their own school district.
Our decisions led them to choose that unfortunate course,
with the deficiencies I have described.
One misjudgment is no excuse, however, for compounding it
with another. We must confront this litigation as it comes be-
732 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
SCALIA, J., dissenting
fore us, without bending rules to free the Satmars from a
predicament into which we put them. The Establishment
Clause forbids the government to draw political boundaries
on the basis of religious faith. For this reason, I concur in
the judgment of the Court.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, dissenting.
The Court today finds that the Powers That Be, up in Al-
bany, have conspired to effect an establishment of the Satmar
Hasidim. I do not know who would be more surprised at
this discovery: the Founders of our Nation or Grand Rebbe
Joel Teitelbaum, founder of the Satmar. The Grand Rebbe
would be astounded to learn that after escaping brutal perse-
cution and coming to America with the modest hope of reli-
gious toleration for their ascetic form of Judaism, the Satmar
had become so powerful, so closely allied with Mammon, as
to have become an "establishment" of the Empire State.
And the Founding Fathers would be astonished to find that
the Establishment Clause — which they designed "to insure
that no one powerful sect or combination of sects could use
political or governmental power to punish dissenters," Zor-
ach v. 'Clausen, 343 U. S. 306, 319 (1952) (Black, J., dissent-
ing)— has been employed to prohibit characteristically and
admirably American accommodation of the religious prac-
tices (or more precisely, cultural peculiarities) of a tiny mi-
nority sect. /, however, am not surprised. Once this Court
has abandoned text and history as guides, nothing prevents
it from calling religious toleration the establishment of
religion.
I
Unlike most of our Establishment Clause cases involving
education, these cases involve no public funding, however
slight or indirect, to private religious schools. They do not
involve private schools at all. The school under scrutiny is a
public school specifically designed to provide a public secular
Cite as: 512 U. S. 687 (1994) 733
SCALIA, J., dissenting
education to handicapped students. The superintendent of
the school, who is not Hasidic, is a 20-year veteran of the
New York City public school system, with expertise in the
area of bilingual, bicultural, special education. The teachers
and therapists at the school all live outside the village of
Kiryas Joel. While the village's private schools are pro-
foundly religious and strictly segregated by sex, classes at
the public school are co-ed and the curriculum secular. The
school building has the bland appearance of a public school,
unadorned by religious symbols or markings; and the school
complies with the laws and regulations governing all other
New York State public schools. There is no suggestion,
moreover, that this public school has gone too far in making
special adjustments to the religious needs of its students.
Cf. id., at 312-315 (approving a program permitting early
release of public school students to attend religious instruc-
tion). In sum, these cases involve only public aid to a school
that is public as can be. The only thing distinctive about
the school is that all the students share the same religion.
None of our cases has ever suggested that there is any-
thing wrong with that. In fact, the Court has specifically
approved the education of students of a single religion on a
neutral site adjacent to a private religious school. See Wol-
man v. Walter, 433 U. S. 229, 247-248 (1977). In that case,
the Court rejected the argument that "any program that iso-
lates the sectarian pupils is impermissible/' id, at 246, and
held that, "[t]he fact that a unit on a neutral site on occasion
may serve only sectarian pupils does not provoke [constitu-
tional] concerns/' id., at 247. And just last Term, the Court
held that the State could permit public employees to assist
students in a Catholic school See Zobrest v. Catalina Foot-
hills School Dist, 509 U. S. 1, 13-14 (1993) (sign-language
translator for deaf student). If a State can furnish services
to a group of sectarian students on a neutral site adjacent to
a private religious school, or even within such a school, how
can there be any defect in educating those same students in
734 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. u GRUMET
SCALIA, J., dissenting
a public school? As the Court noted in Wolman, the consti-
tutional dangers of establishment arise "from the nature of
the institution, not from the nature of the pupils/' 433 U. S,,
at 248. There is no danger in educating religious students
in a public school.
For these very good reasons, JUSTICE SOUTER'S opinion
does not focus upon the school, but rather upon the school
district and the New York Legislature that created it. His
arguments, though sometimes intermingled, are two: that re-
posing governmental power in the Kiryas Joel school district
is the same as reposing governmental power in a religious
group; and that in enacting the statute creating the district,
the New York State Legislature was discriminating on the
basis of religion, i. e., favoring the Satmar Hasidim over oth-
ers. I shall discuss these arguments in turn.
II
For his thesis that New York has unconstitutionally con-
ferred governmental authority upon the Satmar sect, JUS-
TICE SOUTER relies extensively, and virtually exclusively,
upon Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982). JUS-
TICE SOUTER believes that the present litigation "resembles"
Grendel's Den because that case "teaches that a State may
not delegate its civic authority to a group chosen according
to a religious criterion," ante, at 698 (emphasis added).
That misdescribes both what that case taught (which is that
a State may not delegate its civil authority to a church), and
what these cases involve (which is a group chosen according
to cultural characteristics). The statute at issue there gave
churches veto power over the State's authority to grant a
liquor license to establishments in the vicinity of the church.
The Court had little difficulty finding the statute unconsti-
tutional. "The Framers did not set up a system of gov-
ernment in which important, discretionary governmental
powers would be delegated to or shared with religious insti-
tutions/1 459 U. S., at 127.
Cite as: 512 U. S. 687 (1994) 735
SCAUA, J., dissenting
JUSTICE SOUTER concedes that GrendeVs Den "presented
an example of united civic and religious authority, an estab-
lishment rarely found in such straightforward form in mod-
ern America/' Ante, at 697. The uniqueness of the case
stemmed from the grant of governmental power directly to
a religious institution, and the Court's opinion focused on
that fact, remarking that the transfer of authority was to
"churches" (10 times), the "governing body of churches"
(twice), "religious institutions" (twice), and "religious bod-
ies" (once). Astonishingly, however, JUSTICE SOUTER dis-
misses the difference between a transfer of government
power to citizens who share a common religion as opposed
to "the officers of its sectarian organization" — the critical
factor that made Grendel's Den unique and "rar[e]" — as
being "one of form, not substance." Ante, at 698.
JUSTICE SOUTER'S steamrolling of the difference between
civil authority held by a church and civil authority held by
members of a church is breathtaking. To accept it, one must
believe that large portions of the civil authority exercised
during most of our history were unconstitutional, and that
much more of it than merely the Kiryas Joel school district
is unconstitutional today. The history of the populating of
North America is in no small measure the story of groups
of people sharing a common religious and cultural heritage
striking out to form their own communities. See, e. g., W.
Sweet, The Story of Religion in America 9 (1950). It is pre-
posterous to suggest that the civil institutions of these com-
munities, separate from their churches, were constitutionally
suspect. And if they were, surely JUSTICE SOUTER cannot
mean that the inclusion of one or two nonbelievers in the
community would have been enough to eliminate the consti-
tutional vice. If the conferral of governmental power upon
a religious institution as such (rather than upon American
citizens who belong to the religious institution) is not the
test of Grendel's Den invalidity, there is no reason why
giving power to a body that is overwhelmingly dominated
736 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
SCALIA, J., dissenting
by the members of one sect would not suffice to invoke the
Establishment Clause. That might have made the entire
States of Utah and New Mexico unconstitutional at the time
of their admission to the Union,1 and would undoubtedly
make many units of local government unconstitutional
today.2
JUSTICE SOUTER'S position boils down to the quite novel
proposition that any group of citizens (say, the residents of
Kiryas Joel) can be invested with political power, but not if
they all belong to the same religion. Of course such disfa-
voring of religion is positively antagonistic to the purposes
of the Religion Clauses, and we have rejected it before. In
McDaniel v. Paty, 435 U. S. 618 (1978), we invalidated a state
constitutional amendment that would have permitted all per-
sons to participate in political conventions, except ministers.
We adopted James Madison's view that the State could not
" *punis[h] a religious profession with the privation of a civil
right/ " Id., Sit 626 (opinion of Burger, C. J.), quoting 5 Writ-
ings of James Madison 288 (G. Hunt ed. 1904). Or as Justice
1 A census taken in 1906, 10 years after statehood was granted to Utah,
and 6 years before it was granted to New Mexico, showed that in Utah
87.7% of all church members were Mormon, and in New Mexico 88.7% of
all church members were Roman Catholic. See Bureau of the Census,
Special Reports, Religious Bodies, Part I, p. 55 (1910).
2 At the county level, the smallest unit for which comprehensive data is
available, there are a number of counties in which the overwhelming ma-
jority of churchgoers are of a single religion: Rich County, Utah (100%
Mormon); Kennedy County, Texas (100% Roman Catholic); Emery County,
Utah (99.2% Mormon); Franklin and Madison Counties, Idaho (99% or
more Mormon); Graham County, North Carolina (93.7% Southern Baptist);
Mora County, New Mexico (92.6% Roman Catholic). M. Bradley, N.
Green, D. Jones, M. Lynn, & L. McNeil, Churches and Church Membership
in the United States 1990, pp. 46, 112-113, 246, 265, 283, 365, 380, 393
(1992). In all of these counties the adherents of the indicated religion
constitute a substantial majority, in some cases over a 95% majority, of
the total population. If data were available for smaller units of govern-
ment than counties, I have no doubt I could point to hundreds of towns
placed in jeopardy by today's opinion.
Cite as: 512 U. S. 687 (1994) 737
SCALIA, J., dissenting
Brennan put it in his opinion concurring in judgment: "Reli-
gionists no less than members of any other group enjoy the
full measure of protection afforded speech, association, and
political activity generally." 435 U.S., at 641; see also
Widmar v. Vincent, 454 U. S. 263 (1981). I see no reason
why it is any less pernicious to deprive a group rather than
an individual of its rights simply because of its religious
beliefs. '
Perhaps appreciating the startling implications for our
constitutional jurisprudence of collapsing the distinction be-
tween religious institutions and their members, JUSTICE
SOUTER tries to limit his '^unconstitutional conferral of civil
authority" holding by pointing out several features suppos-
edly unique to the present cases: that the "boundary lines
of the school district divide residents according to religious
affiliation," ante, at 699 (emphasis added); that the school dis-
trict was created by "a special Act of the legislature," ante,
at 700; and that the formation of the school district ran coun-
ter to the legislature's trend of consolidating districts in re-
cent years, ibid. Assuming all these points to be true (and
they are not), they would certainly bear upon whether the
legislature had an impermissible religious motivation in cre-
ating the district (which is JUSTICE SOUTER'S next point, in
the discussion of which I shall reply to these arguments).
But they have nothing to do with whether conferral of power
upon a group of citizens can be the conferral of power upon
a religious institution. It cannot. Or if it can, our Estab-
lishment Clause jurisprudence has been transformed.
Ill
I turn, next, to JUSTICE SOUTER'S second justification for
finding an establishment of religion: his facile conclusion that
the New York Legislature's creation of the Kiryas Joel school
district was religiously motivated. But in the Land of the
Free, democratically adopted laws are not so easily im-
peached by unelected judges. To establish the unconstitu-
SCHOOL DIST. u GRUMET
SCALIA, J., dissenting
tionality of a facially neutral law on the mere basis of its
asserted religiously preferential (or discriminatory) effects —
or at least to establish it in conformity with our precedents —
JUSTICE SOUTER "must be able to show the absence of a
neutral, secular basis" for the law. Gillette v. United States,
401 U. S. 437, 452 (1971); see also Arlington Heights v. Met-
ropolitan Housing Development Corp., 429 U. S. 252, 266
(1977) (facially race-neutral laws can be invalidated on the
basis of their effects only if "unexplainable on grounds other
than race")-
There is of course no possible doubt of a secular basis here.
The New York Legislature faced a unique problem in Kiryas
Joel: a community in which all the nonhandicapped children
attend private schools, and the physically and mentally dis-
abled children who attend public school suffer the additional
handicap of cultural distinctiveness. It would be trouble-
some enough if these peculiarly dressed, handicapped stu-
dents were sent to the next town, accompanied by their
similarly clad but unimpaired classmates. But all the unim-
paired children of Kiryas Joel attend private school. The
handicapped children suffered sufficient emotional trauma
from their predicament that their parents kept them home
from school. Surely the legislature could target this prob-
lem, and provide a public education for these students, in the
same way it addressed, by a similar law, the unique needs of
children institutionalized in a hospital. See, e. g., 1970 N. Y.
Laws, ch. 843 (authorizing a union free school district for the
area owned by Blythedale Children's Hospital).
Since the obvious presence of a neutral, secular basis ren-
ders the asserted preferential effect of this law inadequate
to invalidate it, JUSTICE SOUTER is required to come forward
with direct evidence that religious preference was the objec-
tive. His case could scarcely be weaker. It consists,
briefly, of this: The People of New York created the Kiryas
Joel Village School District in order to further the Satmar
religion, rather than for any proper secular purpose, because
Cite as: 512 U. S. 687 (1994) 739
SCALIA, J., dissenting
(1) they created the district in an extraordinary manner — by
special Act of the legislature, rather than under the State's
general laws governing school-district reorganization; (2) the
creation of the district ran counter to a state trend toward
consolidation of school districts; and (3) the district includes
only adherents of the Satmar religion. On this indictment,
no jury would convict.
One difficulty with the first point is that it is not true.
There was really nothing so "special" about the formation of
a school district by an Act of the New York Legislature.
The State has created both large school districts, see, e. #.,
1972 N. Y. Laws, ch. 928 (creating the Gananda School Dis-
trict out of land previously in two other districts), and small
specialized school districts for institutionalized children, see,
e. g., 1972 N. Y. Laws, ch. 559 (creating a union free school
district for the area owned by Abbott House), through these
special Acts. But in any event all that the first point proves,
and the second point as well (countering the trend toward
consolidation),3 is that New York regarded Kiryas Joel as a
3 The Court says that "[ejarly on in the development of public education
in New York, the State rejected highly localized school districts for New
York City when they were promoted as a way to allow separate schooling
for Roman Catholic children." Ante, at 704. Both the implication that
this rejection of localism was general state policy, and the implication that
(like the Court's prohibition of localism today) it had the purpose and ef-
fect of religious neutrality, are simply not faithful to the cited source. The
1841 proposal was not to treat New York City schools differently, in order
to favor Roman Catholics; it was "that the state's school code, which pro-
moted a district system structure with local taxing authority, be extended
to New York City." R. Church & M. Sedlak, Education in the United
States 167 (1976). And the rejection of that proposal was not a triumph
for keeping sectarian religion out of some public schools; it was a triumph
for keeping the King James version of the Bible in all public schools. The
Court's selected source concludes: "[T]he Whigs swept the city elections
that year [1842] and made Bible reading — the King James version — man-
datory in any schools sharing these monies. There was nothing left for
the Catholics to do but to build their own parochial system with their own
money." Id., at 168-169.
740 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
SCALJA, J., dissenting
special case, requiring special measures. I should think it
obvious that it did, and obvious that it should have. But
even if the New York Legislature had never before created
a school district by special statute (which is not true), and
even if it had done nothing but consolidate school districts
for over a century (which is not true), how could the depar-
ture from those past practices possibly demonstrate that the
legislature had religious favoritism in mind? It could not.
To be sure, when there is no special treatment there is no
possibility of religious favoritism; but it is not logical to sug-
gest that when there is special treatment there is proof of
religious favoritism.
JUSTICE SOUTER'S case against the statute comes down to
nothing more, therefore, than his third point: the fact that
all the residents of the Kiryas Joel Village School District
are Satmars. But all its residents also wear unusual dress,
have unusual civic customs, and have not much to do with
people who are culturally different from them. (The Court
recognizes that "the Satmars prefer to live together 'to facil-
itate individual religious observance and maintain social, cul-
tural and religious values/ but that it is not ' "against their
religion" to interact with others.'" Ante, at 706, n. 9, quot-
ing Brief for Petitioners in No. 93-517, p. 4, n. 1.) On what
basis does JUSTICE SOUTER conclude that it is the theological
distinctiveness rather than the cultural distinctiveness that
was the basis for New York State's decision? The normal
assumption would be that it was the latter, since it was not
theology but dress, language, and cultural alienation that
posed the educational problem for the children. JUSTICE
SOUTER not only does not adopt the logical assumption, he
does not even give the New York Legislature the benefit of
the doubt. The following is the level of his analysis:
"Not even the special needs of the children in this com-
munity can explain the legislature's unusual Act, for the
State could have responded to the concerns of the
Satmar parents [by other means]." Ante, at 702.
Cite as: 512 U. S. 687 (1994) 741
SCALIA, J., dissenting
In other words, we know the legislature must have been mo-
tivated by the desire to favor the Satmar Hasidim religion,
because it could have met the needs of these children by a
method that did not place the Satmar Hasidim in a separate
school district. This is not a rational argument proving reli-
gious favoritism; it is rather a novel Establishment Clause
principle to the effect that no secular objective may be pur-
sued by a means that might also be used for religious favorit-
ism if some other means is available.
I have little doubt that JUSTICE SOUTER would laud this
humanitarian legislation if all of the distinctiveness of the
students of Kiryas Joel were attributable to the fact that
their parents were nonreligious commune dwellers, or Amer-
ican Indians, or gypsies. The creation of a special, one-
culture school district for the benefit of those children would
pose no problem. The neutrality demanded by the Religion
Clauses requires the same indulgence towards cultural char-
acteristics that are accompanied by religious belief "The
Establishment Clause does not license government to treat
religion and those who teach or practice it, simply by virtue
of their status as such, as ... subject to unique disabilities."
McDaniel v. Paty, 435 U. S., at 641 (Brennan, J., concurring
in judgment).
Even if JUSTICE SOUTER could successfully establish that
the cultural distinctiveness of the Kiryas Joel students
(which is the problem the New York Legislature addressed)
was an essential part of their religious belief rather than
merely an accompaniment of their religious belief, that
would not discharge his heavy burden. In order to invali-
date a facially neutral law, JUSTICE SOUTER would have to
show not only that legislators were aware that religion
caused the problems addressed, but also that the legislature's
proposed solution was motivated by a desire to disadvantage
or benefit a religious group (i. e., to disadvantage or benefit
them because of their religion). For example, if the city of
Hialeah, knowing of the potential health problems raised by
742 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
SCALIA, J., dissenting
the Santeria religious practice of animal sacrifice, were to
provide by ordinance a special, more frequent, municipal gar-
bage collection for the carcasses of dead animals, we would
not strike the ordinance down just because the city council
was aware that a religious practice produced the problem
the ordinance addressed. See Church of Lukumi Babalu
Aye, Inc. v. Hialeah, 508 U. S. 520, 543-545 (1993). Here a
facially neutral statute extends an educational benefit to the
one area where it was not effectively distributed. Whether
or not the reason for the ineffective distribution had any-
thing to do with religion, it is a remarkable stretch to say
that the Act was motivated by a desire to favor or disfavor
a particular religious group. The proper analogy to Chapter
748 is not the Court's hypothetical law providing school
buses only to Christian students, see ante, at 709, but a law
providing extra buses to rural school districts (which happen
to be predominantly Southern Baptist).
At various times JUSTICE SOUTER intimates, though he
does not precisely say, that the boundaries of the school dis-
trict were intentionally drawn on the basis of religion. He
refers, for example, to "the State's manipulation of the fran-
chise for this district . . . , giving the sect exclusive control
of the political subdivision," ante, at 698 — implying that the
"giving" of political power to the religious sect was the ob-
ject of the "manipulation." There is no evidence of that.
The special district was created to meet the special educa-
tional needs of distinctive handicapped children, and the geo-
graphical boundaries selected for that district were (quite
logically) those that already existed for the village. It
sometimes appears as though the shady "manipulation" JUS-
TICE SOUTER has in mind is that which occurred when the
village was formed, so that the drawing of its boundaries
infected the coterminous boundaries of the district. He
says, for example, that "[i]t is undisputed that those who
negotiated the village boundaries when applying the gen-
eral village incorporation statute drew them so as to exclude
Cite as: 512 U. S. 687 (1994) 743
SCALIA, J., dissenting
all but Satmars." Ante, at 699. It is indeed. But non-
Satmars were excluded, not (as he intimates) because of
their religion, but — as JUSTICE O'CONNOR clearly describes,
see ante, at 712 — because of their lack of desire for the
high-density zoning that Satmars favored. It was a classic
drawing of lines on the basis of communality of secular gov-
ernmental desires, not communality of religion. What hap-
pened in the creation of the village is in fact precisely what
happened in the creation of the school district, so that the
former cannot possibly infect the latter, as JUSTICE SOUTER
tries to suggest* Entirely secular reasons (zoning for the
village, cultural alienation of students for the school district)
produced a political unit whose members happened to share
the same religion. There is no evidence (indeed, no plausi-
ble suspicion) of the legislature's desire to favor the Satmar
religion, as opposed to meeting distinctive secular needs or
desires of citizens who happened to be Satmars. If there
were, JUSTICE SOUTER would say so; instead, he must
merely insinuate.
IV
But even if Chapter 748 were intended to create a special
arrangement for the Satmars because of their religion (not
including, as I have shown in Part I, any conferral of gov-
ernmental power upon a religious entity), it would be a per-
missible accommodation. "This Court has long recognized
that the government may (and sometimes must) accommo-
date religious practices and that it may do so without violat-
ing the Establishment Clause/' Hobble v. Unemployment
Appeals Comm'n ofFla., 480 U- S. 136, 144-145 (1987). More-
over, "there is ample room for accommodation of religion
under the Establishment Clause," Corporation of Presiding
Bishop of Church of Jesus Christ of Latter-day Saints v.
Amos, 483 U. S. 327, 338 (1987), and for "play in the joints
productive of a benevolent neutrality which will permit reli-
gious exercise to exist without sponsorship and without in-
terference," Walz v. Tax Comm9n of City of New York, 397
744 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
SCALIA, J., dissenting
U. S. 664, 669 (1970). Accommodation is permissible, more-
over, even when the statute deals specifically with religion,
see, e. g., Zorach v. Clauson, 343 U. S., at 312-315, and even
when accommodation is not commanded by the Free Exer-
cise Clause, see, e. g., Walz, supra, at 673.
When a legislature acts to accommodate religion, particu-
larly a minority sect, "it follows the best of our traditions."
Zorach, supra, at 314. The Constitution itself contains an
accommodation of sorts. Article VI, cL 3, prescribes that
executive, legislative, and judicial officers of the Federal and
State Governments shall bind themselves to support the
Constitution "by Oath or Affirmation. " Although members
of the most populous religions found no difficulty in swearing
an oath to God, Quakers, Moravians, and Mennonites refused
to take oaths based on Matthew 5:34's injunction "swear not
at all." The option of affirmation was added to accommo-
date these minority religions and enable their members to
serve in government. See 1 A. Stokes, Church and State in
The United States 524-527 (1950). Congress, from its earli-
est sessions, passed laws accommodating religion by refund-
ing duties paid by specific churches upon the importation of
plates for the printing of Bibles, see 6 Stat. 116 (1813), vest-
ments, 6 Stat. 346 (1816), and bells, 6 Stat. 675 (1836). Con-
gress also exempted church property from the tax assess-
ments it levied on residents of the District of Columbia; and
all 50 States have had similar laws. See Walz, supra, at
676-678.
This Court has also long acknowledged the permissibility
of legislative accommodation. In one of our early Establish-
ment Clause cases, we upheld New York City's early release
program, which allowed students to be released from public
school during school hours to attend religious instruction or
devotional exercises. See Zorach, supra, at 312-315. We
determined that the early release program "accommodates
the public service to ... spiritual needs," and noted that
finding it unconstitutional would "show a callous indifference
Cite as: 512 U. S. 687 (1994) 745
SCALIA, J., dissenting
to religious groups." 343 U. S., at 314. In Walz, supra, we
upheld a property tax exemption for religious organizations,
observing that it was part of a salutary tradition of "permis-
sible state accommodation to religion." Id., at 672-673.
And in Presiding Bishop, supra, we upheld a section of the
Civil Rights Act of 1964 exempting religious groups from the
antidiscrimination provisions of Title VII We concluded
that it was "a permissible legislative purpose to alleviate sig-
nificant governmental interference with the ability of reli-
gious organizations to define and carry out their religious
missions/' Id., at 335.
In today's opinion, however, the Court seems uncomfort-
able with this aspect of our constitutional tradition. Al-
though it acknowledges the concept of accommodation, it
quickly points out that it is "not a principle without limits,"
ante, at 706, and then gives reasons why the present case
exceeds those limits, reasons which simply do not hold water.
"[W]e have never hinted," the Court says, "that an other-
wise unconstitutional delegation of political power to a reli-
gious group could be saved as a religious accommodation."
Ibid. Putting aside the circularity inherent in referring to a
delegation as "otherwise unconstitutional" when its constitu-
tionality turns on whether there is an accommodation, if this
statement is true, it is only because we have never hinted
that delegation of political power to citizens who share a par-
ticular religion could be unconstitutional This is simply a
replay of the argument we rejected in Part II, supra.
The second and last reason the Court finds accommodation
impermissible is, astoundingly, the mere risk that the State
will not offer accommodation to a similar group in the future,
and that neutrality will therefore not be preserved. Eeturn-
ing to the ill fitted crutch of GrendeVs Den, the Court sug-
gests that by acting through this special statute the New
York Legislature has eliminated any "'effective means of
guaranteeing' that governmental power will be and has
been neutrally employed." Ante, at 703, quoting GrendeVs
746 BOARD OP ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
SCALIA, J., dissenting
Den, 459 U. S., at 125. How misleading. That language in
GrendeVs Den was an expression of concern not (as the
context in which it is quoted suggests) about the courts'
ability to assure the legislature's future neutrality, but about
the legislature's ability to assure the neutrality of the
churches to which it had transferred legislative power.
That concern is inapposite here; there is no doubt about
the legislature's capacity to control what transpires in a pub-
lic school.
At bottom, the Court's "no guarantee of neutrality" argu-
ment is an assertion of this Court's inability to control the
New York Legislature's future denial of comparable accom-
modation. We have "no assurance," the Court says, "that
the next similarly situated group seeking a school district of
its own will receive one," since "a legislature's failure to
enact a special law is ... unreviewable." Ante, at 703; see
also ante, at 716 (O'CONNOR, J., concurring in part and con-
curring in judgment).4 That is true only in the technical
(and irrelevant) sense that the later group denied an accom-
modation may need to challenge the grant of the first accom-
modation in light of the later denial, rather than challenging
the denial directly. But one way or another, "even if
[an administrative agency is] not empowered or obliged to
act, [a litigant] would be entitled to a judicial audience.
Ultimately, the courts cannot escape the obligation to ad-
dress [a] plea that the exemption [sought] is mandated by
the first amendment's religion clauses." Olsen v. Drug
Enforcement Admin., 878 F. 2d 1458, 1461 (CADC 1989)
(R. B. Ginsburg, J.).
4 The Court hints, ante, at 703, that its fears would have been allayed if
the New York Legislature had previously created similar school districts
for other minority religions. But had it done so, each of them would have
been attacked (and invalidated) for the same reason as this one: because
it had no antecedents. I am sure the Court has in mind some way around
this chicken-and-egg problem. Perhaps the legislature could name the
first four school districts in pectore.
Cite as: 512 U. S. 687 (1994) 747
SCALIA, J.y dissenting
The Court's demand for "up front" assurances of a neutral
system is at war with both traditional accommodation doc-
trine and the judicial role. As we have described, supra, at
744, Congress's earliest accommodations exempted duties
paid by specific churches on particular items. See, e. g., 6
Stat. 346 (1826) (exempting vestments imported by "bishop
of Bardstown"). Moreover, most efforts at accommodation
seek to solve a problem that applies to members of only one
or a few religions. Not every religion uses wine in its sacra-
ments, but that does not make an exemption from Prohibi-
tion for sacramental wine use impermissible, accord, Church
of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S., at 561,
n. 2 (SouTER, J., concurring in judgment), nor does it require
the State granting such an exemption to explain in advance
how it will treat every other claim for dispensation from its
controlled-substances laws. Likewise, not every religion
uses peyote in its services, but we have suggested that legis-
lation which exempts the sacramental use of peyote from
generally applicable drug laws is not only permissible, but
desirable, see Employment Div., Dept of Human Resources
of Ore. v. Smith, 494 U. S. 872, 890 (1990), without any sug-
gestion that some "up front" legislative guarantee of equal
treatment for sacramental substances used by other sects
must be provided. The record is clear that the necessary-
guarantee can and will be provided, after the fact, by the
courts. See, e. g., Olsen v. Drug Enforcement Admin.,
supra (rejecting claim that peyote exemption requires mari-
juana exemption for Ethiopian Zion Coptic Church); Olsen v.
Iowa, 808 F. 2d 652 (CAS 1986) (same); Kennedy v. Bureau
of Narcotics and Dangerous Drugs, 459 F. 2d 415 (CA9 1972)
(accepting claim that peyote exemption for Native American
Church requires peyote exemption for other religions that
use that substance in their sacraments).6
5 The Court likens its demand for **up front" assurances to the Court's
focus on the narrowness of the statute it struck down in Texas Monthly,
Inc. v. Bullock, 489 U. S. 1 (1989). See ante, at 708. Texas Monthly
748 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. u GRUMET
SCALIA, J., dissenting
Contrary to the Court's suggestion, ante, at 708-709, I do
not think that the Establishment Clause prohibits formally
established "state" churches and nothing more. I have al-
ways believed, and all my opinions are consistent with the
view, that the Establishment Clause prohibits the favoring
of one religion over others. In this respect, it is the Court
that attacks lions of straw. What I attack is the Court's
imposition of novel "up front" procedural requirements on
state legislatures. Making law (and making exceptions) one
case at a time, whether through adjudication or through
highly particularized rulernaking or legislation, violates, ex
ante, no principle of fairness, equal protection, or neutrality
simply because it does not announce in advance how all fu-
ture cases (and all future exceptions) will be disposed of. If
it did, the manner of proceeding of this Court itself would
be unconstitutional. It is presumptuous for this Court to
impose — out of nowhere — an unheard-of prohibition against
proceeding in this manner upon the Legislature of New York
State. I never heard of such a principle, nor has anyone
else, nor will it ever be heard of again. Unlike what the
New York Legislature has done, this is a special rule to
govern only the Satmar Hasidim.
V
A few words in response to the separate concurrences:
JUSTICE STEVENS adopts, for these cases, a rationale that is
bears no resemblance to today's opinion, except that it also was wrong and
it also misinterpreted Walz v. Tax Comm'n of City of New York, 397 U. S.
664 (1970), see 489 U. S., at 33-40 (ScAMA, J., dissenting). The tax treat-
ment of publishing companies in Texas was governed by an across-the-
board rule. There was never any question whether nonreligious pub-
lishers would get the tax exemption accorded to religious publishers; by
rule they did not, and the Court struck down that rule because it discrimi-
nated in favor of religion. By contrast, adjustments to existing school
districts in New York are done case by case. No decision, including Texas
Monthly, remotely suggests that approaching accommodations in a case-
specific manner automatically violates the Establishment Clause.
Cite as: 512 U. S. 687 (1994) 749
SCALIA, J., dissenting
almost without limit. The separate Kiryas Joel school dis-
trict is problematic in his view because "[t]he isolation of
these children, while it may protect them from 'panic, fear
and trauma,' also unquestionably increased the likelihood
that they would remain within the fold, faithful adherents of
their parents' religious faith." Ante, at 711. So much for
family values. If the Constitution forbids any state action
that incidentally helps parents to raise their children in their
own religious faith, it would invalidate a release program
permitting public school children to attend the religious-
instruction program of their parents* choice, of the sort we
approved in Zorach;6 indeed, it would invalidate state laws
according parents physical control over their children, at
least insofar as that is used to take the little fellows to church
or synagogue. JUSTICE STEVENS' statement is less a legal
analysis than a manifesto of secularism. It surpasses mere
rejection of accommodation, and announces a positive hostil-
ity to religion — which, unlike all other noncriminal values,
the State must not assist parents in transmitting to their
offspring.
JUSTICE KENNEDY'S "political-line-drawing" approach
founders on its own terms. He concedes that the Constitu-
tion does not prevent people who share a faith from forming
their own villages and towns, and suggests that the forma-
tion of the village of Kiryas Joel was free from defect. Ante,
at 729-730. He also notes that States are free to draw polit-
ical lines on the basis of history and geography. Ante, at
730. I do not see, then, how a school district drawn to mir-
ror the boundaries of an existing village (an existing geo-
graphic line), which itself is not infirm, can violate the Con-
stitution. Thus, while JUSTICE KENNEDY purports to share
my criticism (Part IV, supra) of the Court's unprecedented
insistence that the New York Legislature make its accommo-
6 JUSTICE STEVENS' bald statement that such a program would be per-
missible, see ante, at 711-712, can exclude it from the reach of his opinion,
but not from the reach of his logic.
750 BOARD OF ED. OP KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
SCALIA, J., dissenting
dations only by general legislation, see ante, at 722, 726, his
own approach is little different. He says the village is con-
stitutional because it was formed (albeit by members of a
single religious sect) under a general New York law; but he
finds the school district unconstitutional because it was the
product of a specific enactment. In the end, his analysis is
no different from the Court's.
JUSTICE KENNEDY expresses the view that School Dist
of Grand Rapids v. Ball, 473 U. S. 373 (1985), and Aguilar
v. Felton, 473 U. S. 402 (1985)— the cases that created the
need for the Kiryas Joel legislation by holding unconstitu-
tional state provision of supplemental educational services
in sectarian schools — "may have been erroneous," and he
suggests that "it may be necessary for us to reconsider them
at a later date." Ante, at 731. JUSTICE O'CONNOR goes
even further and expresses the view that Aguilar should be
overruled. Ante, at 717-718. I heartily agree that these
cases, so hostile to our national tradition of accommodation,
should be overruled at the earliest opportunity; but mean-
while, today's opinion causes us to lose still further ground,
and in the same antiaccommodationist direction.
Finally, JUSTICE O'CONNOR observes that the Court's
opinion does not focus on the so-called Lemon test, see
Lemon v. Kurtzman, 403 U. S. 602 (1971), and she urges that
that test be abandoned, at least as a "unitary approach" to
all Establishment Clause claims, ante, at 721. I have pre-
viously documented the Court's convenient relationship with
Lemon, which it cites only when useful, see Lamb's Chapel
v. Center Moriches Union Free School Dist, 508 U. S. 384,
397-401 (1993) (SCALIA, J., concurring in judgment), and I no
longer take any comfort in the Court's failure to rely on it in
any particular case, as I once mistakenly did, see Lee v. Weis-
man, 505 U. S. 577, 644 (1992) (SCALIA, J., dissenting). But
the Court's snub of Lemon today (it receives only two "see
also" citations, in the course of the opinion's description of
Cite as: 512 U. S, 687 (1994) 751
SCALIA, J., dissenting
Grendel's Den) is particularly noteworthy because all three
courts below (who are not free to ignore Supreme Court
precedent at will) relied on it, and the parties (also bound
by our case law) dedicated over 80 pages of briefing to the
application and continued vitality of the Lemon test. In ad-
dition to the other sound reasons for abandoning Lemon, see,
e. g., Edwards v. Aguillard, 482 U. S. 578, 636-640 (1987)
(SCALIA, J., dissenting); Wallace v. Jajfree, 472 U. S. 38, 108-
112 (1985) (REHNQUIST, J., dissenting), it seems quite ineffi-
cient for this Court, which in reaching its decisions relies
heavily on the briefing of the parties and, to a lesser extent,
the opinions of lower courts, to mislead lower courts and par-
ties about the relevance of the Lemon test. Compare ante,
p. 687 (ignoring Lemon despite lower courts' reliance), with
Lamb's Chapel, supra (applying Lemon despite failure of
lower court to mention it).
Unlike JUSTICE O'CONNOR, however, I would not replace
Lemon with nothing, and let the case law "evolve" into a
series of situation-specific rules (government speech on reli-
gious topics, government benefits to particular groups, etc.)
unconstrained by any "rigid influence," ante, at 721. The
problem with (and the allure of) Lemon has not been that it
is "rigid," but rather that in many applications it has been
utterly meaningless, validating whatever result the Court
would desire. See Lamb's Chapel, supra, at 399 (SCALIA, J.,
concurring in judgment); Wallace, supra, at 110-111 (REHN-
QUIST, J., dissenting). To replace Lemon with nothing is
simply to announce that we are now so bold that we no
longer feel the need even to pretend that our haphazard
course of Establishment Clause decisions is governed by any
principle. The foremost principle I would apply is fidelity
to the longstanding traditions of our people, which surely
provide the diversity of treatment that JUSTICE O'CONNOR
seeks, but do not leave us to our own devices.
752 BOARD OF ED. OF KIRYAS JOEL VILLAGE
SCHOOL DIST. v. GRUMET
SCALIA, J., dissenting
The Court's decision today is astounding. Chapter 748 in-
volves no public aid to private schools and does not mention
religion. In order to invalidate it, the Court casts aside, on
the flimsiest of evidence, the strong presumption of validity
that attaches to facially neutral laws, and invalidates the
present accommodation because it does not trust New York
to be as accommodating toward other religions (presumably
those less powerful than the Satmar Hasidim) in the future.
This is unprecedented — except that it continues, and takes
to new extremes, a recent tendency in the opinions of this
Court to turn the Establishment Clause into a repealer of
our Nation's tradition of religious toleration. I dissent.
OCTOBER TERM, 1993 753
Syllabus
MADSEN ET AL. v. WOMEN'S HEALTH CENTER,
INC., ET AL.
CERTIORARI TO THE SUPREME COURT OF FLORIDA
No. 93-880. Argued April 28, 1994— Decided June 30, 1994
After petitioners and other antiabortion protesters threatened to picket
and demonstrate around a Florida abortion clinic, a state court perma-
nently enjoined petitioners from blocking or interfering with public ac-
cess to the clinic, and from physically abusing persons entering or leav-
ing it. Later, when respondent clinic operators sought to broaden the
injunction, the court found that access to the clinic was still being im-
peded, that petitioners' activities were having deleterious physical ef-
fects on patients and discouraging some potential patients from entering
the clinic, and that doctors and clinic workers were being subjected to
protests at their homes. Accordingly, the court issued an amended in-
junction, which applies to petitioners and persons acting "in concert"
with them, and which, inter alia, excludes demonstrators from a 36-foot
buffer zone around the clinic entrances and driveway and the private
property to the north and west of the clinic; restricts excessive noise-
making within the earshot of, and the use of "images observable" by,
patients inside the clinic; prohibits protesters within a 300-foot zone
around the clinic from approaching patients and potential patients who
do not consent to talk; and creates a 300-foot buffer zone around the
residences of clinic staff, In upholding the amended injunction against
petitioners' claim that it violated their First Amendment right to free-
dom of speech, the Florida Supreme Court recognized that the forum at
issue is a traditional public forum; refused to apply the heightened scru-
tiny dictated by Perry Ed. Assn. v. Perry Local Educators' Assn., 460
U. S. 37, 45, because the injunction's restrictions are content neutral;
and concluded that the restrictions were narrowly tailored to serve a
significant government interest and left open ample alternative channels
of communication, see ibid.
Held:
1. The injunction at issue is not subject to heightened scrutiny as
content or viewpoint based simply because it restricts only the speech
of antiabortion protesters. To accept petitioners' daim to the contrary
would be to classify virtually every injunction as content based. An
injunction, by its very nature, does not address the general public, but
applies only to particular parties, regulating their activities, and per-
haps their speech, because of their past actions in the context of a spe-
754 MADSEN v WOMEN'S HEALTH CENTER, INC.
Syllabus
cific dispute. The fact that this injunction did not prohibit activities by
persons demonstrating in favor of abortion is justly attributable to the
lack of such demonstrations and of any consequent request for relief.
Moreover, none of the restrictions at issue were directed at the content
of petitioners' antiabortion message. The principal inquiry in deter-
mining content neutrality is whether the government has regulated
speech without reference to its content. See, e. g., Ward v. Rock
Against Racism, 491 U. S. 781, 791. The government's purpose is
therefore the threshold consideration. Here, the injunction imposed in-
cidental restrictions on petitioners' message because they repeatedly
violated the original injunction. That the injunction covers people who
all share the same viewpoint suggests only that those in the group
whose conduct violated the court's order happen to share that view-
point. Pp. 762-764.
2. In evaluating a content-neutral injunction, the governing standard
is whether the injunction's challenged provisions burden no more speech
than necessary to serve a significant government interest. See, e. g.,
Carroll v. President and Comm'rs of Princess Anne, 393 U. S, 175, 184.
Thus, the injunction must be couched in the narrowest terms that will
accomplish its pinpointed objective. See id., at 183. Although the
forum around the clinic is a traditional public forum, the obvious differ-
ences between a generally applicable ordinance — which represents a
legislative choice to promote particular societal interests — and an in-
junction— which remedies an actual or threatened violation of a legisla-
tive or judicial decree, and carries greater risks of censorship and dis-
criminatory application than an ordinance, but can be tailored to afford
greater relief where a violation of law has already occurred — require a
somewhat more stringent application of general First Amendment prin-
ciples in this context than traditional time, place, and manner analysis
allows. The combination of the governmental interests identified by
the Florida Supreme Court — protecting a pregnant woman's freedom to
seek lawful medical or counseling services, ensuring public safety and
order, promoting the free flow of traffic on public streets and sidewalks,
protecting citizens' property rights, and assuring residential privacy —
is quite sufficient to justify an appropriately tailored injunction.
Pp. 764-768.
3. Given the focus of the picketing on patients and clinic staff, the
narrowness of the confines around the clinic, the fact that protesters
could still be seen and heard from the clinic parking lots, and the failure
of the first injunction to accomplish its purpose, the 36-foot buffer zone
around the clinic entrances and driveway, on balance, burdens no more
speech than necessary to accomplish the governmental interests in pro-
tecting access to the clinic and facilitating an orderly traffic flow on the
Cite as: 512 U. S. 753 (1994) 755
Syllabus
street. The need for a complete buffer zone may be debatable, but
some deference must be given to the state court's familiarity with the
facts and the background of the dispute even under heightened review.
Petitioners argued against including the factual record as an appendix
in the Florida Supreme Court, and never certified a full record. This
Court must therefore judge the ease on the assumption that the evi-
dence and testimony presented to the state court supported its findings
that the protesters' activities near the clinic's entrance interfered with
access despite the earlier injunction. Pp. 768-771.
4. However, the 36-foot buffer zone as applied to the private property
to the north and west of the clinic burdens more speech than necessary
to protect access to the clinic. Patients and staff wishing to reach the
clinic do not have to cross that property. Moreover, nothing in the rec-
ord indicates that petitioners' activities on the property have obstructed
clinic access, blocked vehicular traffic, or otherwise unlawfully inter-
fered with the clinic's operation. P. 771.
5. The limited noise restrictions imposed by the injunction burden no
more speech than necessary to ensure the health and well-being of the
clinic's patients. Noise control is particularly important around medical
facilities during surgery -and recovery periods. The First Amendment
does not demand that patients at such a facility undertake Herculean
efforts to escape the cacophony of political protests. Pp. 772-773.
6. The blanket ban on "images observable" sweeps more broadly than
necessary to accomplish the goals of limiting threats to clinic patients
or their families and reducing the patients' level of anxiety and hyper-
tension inside the clinic. Prohibiting the display of signs that could be
interpreted as threats or veiled threats would satisfy the first goal,
while a clinic could simply pull its curtains to protect a patient bothered
by a disagreeable placard. P. 773.
7. Absent evidence that the protesters' speech is independently pro-
scribable & e*, "fighting words" or threats), or is so infused with violence
as to be indistinguishable from a threat of physical harm, the 300-foot
no-approach zone around the clinic — and particularly its consent re-
quirement— burdens more speech than is necessary to accomplish the
goals of preventing intimidation and ensuring access to the clinic.
Pp. 773-774.
8. The 300-foot buffer zone around staff residences sweeps more
broadly than is necessary to protect the tranquility and privacy of the
home. The record does not contain sufficient justification for so broad
a ban on picketing; it appears that a limitation on the time, duration
of picketing, and number of pickets outside a smaller zone could have
accomplished the desired results. As to the use of sound amplification
equipment within the zone, however, the government may demand that
756 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Syllabus
petitioners turn down the volume if the protests overwhelm the neigh-
borhood. Pp. 774-775.
9. Petitioners, as named parties in the injunction, lack standing to
challenge its "in concert" provision as applied to persons who are not
parties. Moreover, that phrase is not subject, at petitioners' behest, to
a challenge for "overbreadth." See Regal Knitwear Co. v. NLRB, 324
U. S. 9, 14-15. Nor does the "in concert" provision impermissibly bur-
den their freedom of association. They are not enjoined from associat-
ing with others or from joining with them to express a particular view-
point, and the First Amendment does not protect joining with others to
deprive third parties of their lawful rights. Pp. 775-776.
626 So. 2d 664, affirmed in part and reversed in part.
REHNQUIST, C. J., delivered the opinion of the Court, in which BLACK-
MUN, O'CONNOR, SOUTER, and GINSBURG, JJ., joined, and in which STE-
VENS, J., joined as to Parts I, II, III-E, and IV. SOUTER, J., filed a concur-
ring opinion, post, p. 776. STEVENS, J., filed an opinion concurring in part
and dissenting in part, post, p. 777. SCALIA, J., filed an opinion concurring
in the judgment in part and dissenting in part, in which KENNEDY and
THOMAS, JJ., joined, post, p. 784.
Mathew D. Staver argued the cause for petitioners. With
him on the briefs were Jeffery T. Kipi and Christopher /.
Weiss.
Talbot D'Alemberte argued the cause for respondents.
With him on the brief was Susan England.
Solicitor General Days argued the cause for the United
States as amicus curiae urging affirmance. With him on
the brief were Assistant Attorney General Hunger, Deputy
Solicitor General Bender, Beth S. Brinkmann, Anthony J.
Steinmeyer, and Jonathan R. SiegeL*
*Briefs of amid curiae urging reversal were filed for the American
Family Association by Scott L. Thomas; for the Christian Legal Society
et al. by Edward McGlynn Gaffney, Jr., Steven T. McFarland, and Victor
G. Rosenblum; for Defendants Operation Rescue et al. by Jay Alan Seku-
low, Walter M. Weber, Mark N. Troobnick, James M. Henderson, Sr.,
Thomas Patrick Monaghan, Keith A Fourmer, and John Stepanovich;
for the National Right to Life Committee, Inc., by James Bopp, Jr., and
Richard E. Coleson; and for the Rutherford Institute by John W. White-
head and Alexis I. Crow.
Briefs of amid curiae urging affirmance were filed for the State of
Florida et al. by Robert A. Butterworth, Attorney General of Florida, Ger-
Cite as: 512 U S. 753 (1994) 757
Opinion of the Court
CHIEF JUSTICE REHNQUIST delivered the opinion of the
Court.
Petitioners challenge the constitutionality of an injunction
entered by a Florida state court which prohibits antiabortion
protesters from demonstrating in certain places and in vari-
ous ways outside of a health clinic that performs abortions.
We hold that the establishment of a 36-foot buffer zone on a
public street from which demonstrators are excluded passes
muster under the First Amendment, but that several other
provisions of the injunction do not.
Respondents operate abortion clinics throughout central
Florida. Petitioners and other groups and individuals are
aid B. Curington and Gypsy Bailey, Assistant Attorneys General, Eleni
M. Constantine, and Richard Cordray, and by the Attorneys General for
their respective States as follows: Grant Woods of Arizona, Gale A. Nor-
ton of Colorado, Richard Blumenthal of Connecticut, Robert A. Marks of
Hawaii, Roland W. Burris of Illinois, Pamela Carter of Indiana, Michael
E. Carpenter of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harsh-
barger of Massachusetts, Hubert H. Humphrey III of Minnesota, Joseph
R Mazurek of Montana, Deborah T. Poritz of New Jersey, Frankie Sice
Del Papa of Nevada, Tom Udall of New Mexico, G. Oliver Koppell of New
York, Michael F. Easley of North Carolina, Lee Fisher of Ohio, Theodore
E. Kulongoski of Oregon, Jeffrey B. Pine of Rhode Island, Charles W
Bur son of Tennessee, Dan Morales of Texas, Jeffrey L. Amestoy of Ver-
mont, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of
Wisconsin; for the American College of Obstetricians and Gynecologists et
al. by Carter G. Philhps, Joseph R. Gu&rra^ Ann E. Allen, and Paul M.
Smith; for the Center for Reproductive Law <& Policy et al. by Lenora M.
Lapidus; for the National Abortion Federation et al. by Elaine Metlint
Lynn L Miller, Roger K. Evans, and Eve W. Paul; for the NOW Legal
Defense and Education Fund et al. by Martha F. Davis, Deborah A Ellis,
Sally F. Goldfarb, and Burt Neubome; and for People for the American
Way et al. by Joseph N. Onek, Richard McMillan, Jr., Elliot M. Mincberg,
Lawrence S. Ottinger, Steven M. Freeman, Marc D. Stern, Lois C. Wald-
man, Richard F. Wolf son, Ronald Lindsay, Elaine R. Jones, Theodore M.
Shaw, and Charles Stephen Ralston.
Laurence Gold and Walter Kamiat filed a brief for the American Feder-
ation of Labor and Congress of Industrial Organizations as amicus curiae.
758 MADSEN u WOMEN'S HEALTH CENTER, INC.
Opinion of the Court
engaged in activities near the site of one such clinic in Mel-
bourne, Florida. They picketed and demonstrated where
the public street gives access to the clinic. In September
1992, a Florida state court permanently enjoined petitioners
from blocking or interfering with public access to the clinic,
and from physically abusing persons entering or leaving the
clinic. Six months later, respondents sought to broaden the
injunction, complaining that access to the clinic was still im-
peded by petitioners' activities and that such activities had
also discouraged some potential patients from entering the
clinic, and had deleterious physical effects on others. The
trial court thereupon issued a broader injunction, which is
challenged here.
The court found that, despite the initial injunction, pro-
testers continued to impede access to the clinic by congregat-
ing on the paved portion of the street — Dixie Way — leading
up to the clinic, and by marching in front of the clinic's drive-
ways. It found that as vehicles heading toward the clinic
slowed to allow the protesters to move out of the way, "side-
walk counselors" would approach and attempt to give the
vehicle's occupants antiabortion literature. The number of
people congregating varied from a handful to 400, and the
noise varied from singing and chanting to the use of loud-
speakers and bullhorns.
The protests, the court found, took their toll on the clinic's
patients. A clinic doctor testified that, as a result of having
to run such a gauntlet to enter the clinic, the patients "mani-
fested a higher level of anxiety and hypertension causing
those patients to need a higher level of sedation to undergo
the surgical procedures, thereby increasing the risk associ-
ated with such procedures." App. 54. The noise produced
by the protesters could be heard within the clinic, causing
stress in the patients both during surgical procedures and
while recuperating in the recovery rooms. And those pa-
tients who turned away because of the crowd to return at a
Cite as: 512 U. S. 753 (1994) 759
Opinion of the Court
later date, the doctor testified, increased their health risks
by reason of the delay.
Doctors and clinic workers, in turn, were not immune even
in their homes. Petitioners picketed in front of clinic em-
ployees' residences; shouted at passersby; rang the doorbells
of neighbors and provided literature identifying the particu-
lar clinic employee as a "baby killer." Occasionally, the pro-
testers would confront minor children of clinic employees
who were home alone.
This and similar testimony led the state court to conclude
that its original injunction had proved insufficient "to pro-
tect the health, safety and rights of women in Brevard and
Seminole County, Florida and surrounding counties seeking
access to [medical and counseling] services/' Id, at 5. The
state court therefore amended its prior order, enjoining a
broader array of activities. The amended injunction prohib-
its petitioners 1 from engaging in the following acts:
"(1) At all times on all days, from entering the prem-
ises and property of the Aware Woman Center for
Choice [the Melbourne clinic] . . . .
"(2) At all times on all days, from blocking, impeding,
inhibiting, or in any other manner obstructing or inter-
fering with access to, ingress into and egress from any
building or parking lot of the Clinic.
"(3) At all times on all days, from congregating, pick-
eting, patrolling, demonstrating or entering that portion
of public right-of-way or private property within [36]
feet of the property line of the Clinic .... An exception
to the 36 foot buffer zone is the area immediately adja-
cent to the Clinic on the east .... The [petitioners] . . .
must remain at least [5] feet from the Clinic's east line.
addition to petitioners, the state court's order was directed at
"Operation Rescue, Operation Rescue America, Operation Goliath, their
officers, agents, members, employees and servants, and . . . Bruce Cadle,
Pat Mahoney, Randall Terry, . . . and all persons acting in concert or par-
ticipation with them, or on their behalf" App. 56.
760 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Opinion of the Court
Another exception to the 36 foot buffer zone relates to
the record title owners of the property to the north and
west of the Clinic. The prohibition against entry into
the 36 foot buffer zones does not apply to such persons
and their invitees. The other prohibitions contained
herein do apply, if such owners and their invitees are
acting in concert with the [petitioners]. . . .
"(4) During the hours of 7:30 a.m. through noon, on
Mondays through Saturdays, during surgical procedures
and recovery periods, from singing, chanting, whistling,
shouting, yelling, use of bullhorns, auto horns, sound am-
plification equipment or other sounds or images observ-
able to or within earshot of the patients inside the Clinic.
"(5) At all times on all days, in an area within [300]
feet of the Clinic, from physically approaching any per-
son seeking the services of the Clinic unless such person
indicates a desire to communicate by approaching or by
inquiring of the [petitioners]. . . .
"(6) At all times on all days, from approaching, con-
gregating, picketing, patrolling, demonstrating or using
bullhorns or other sound amplification equipment within
[300] feet of the residence of any of the [respondents']
employees, staff, owners or agents, or blocking or at-
tempting to block, barricade, or in any other manner,
temporarily or otherwise, obstruct the entrances, exits
or driveways of the residences of any of the [respond-
ents'] employees, staff, owners or agents. The [peti-
tioners] and those acting in concert with them are pro-
hibited from inhibiting or impeding or attempting to
impede, temporarily or otherwise, the free ingress or
egress of persons to any street that provides the sole
access to the street on which those residences are
located.
"(7) At all times on all days, from physically abusing,
grabbing, intimidating, harassing, touching, pushing,
shoving, crowding or assaulting persons entering or
Cite as: 512 U. S. 753 (1994) 761
Opinion of the Court
leaving, working at or using services at the [respond-
ents'] Clinic or trying to gain access to, or leave, any of
the homes of owners, staff or patients of the Clinic ....
"(8) At all times on all days, from harassing, intim-
idating or physically abusing, assaulting or threatening
any present or former doctor, health care professional,
or other staff member, employee or volunteer who as-
sists in providing services at the [respondents'] Clinic.
"(9) At all times on all days, from encouraging, in-
citing, or securing other persons to commit any of the
prohibited acts listed herein." Operation Rescue v.
Women's Health Center, Inc., 626 So. 2d 664, 679-680
(Fla. 1993).
The Florida Supreme Court upheld the constitutionality of
the trial court's amended injunction. 626 So. 2d 664. That
court recognized that the forum at issue, which consists of
public streets, sidewalks, and rights-of-way, is a traditional
public forum. Id., at 671, citing Frisby v. Schultz, 487 U. S.
474, 480 (1988). It then determined that the restrictions are
content neutral, and it accordingly refused to apply the
heightened scrutiny dictated by Perry Ed. Assn. v. Perry
Local Educators7 Assn., 460 U. S. 37, 45 (1983) (To enforce a
content-based exclusion the State must show that its regula-
tion is necessary to serve a compelling state interest and
that it is narrowly drawn to achieve that end). Instead, the
court analyzed the injunction to determine whether the re-
strictions are "narrowly tailored to serve a significant gov-
ernment interest, and leave open ample alternative channels
of communication." Ibid. It concluded that they were.
Shortly before the Florida Supreme Court's opinion was
announced, the United States Court of Appeals for the Elev-
enth Circuit heard a separate challenge to the same injunc-
tion. The Court of Appeals struck down the injunction,
characterizing the dispute as a clash "between an actual pro-
hibition of speech and a potential hinderance to the free ex-
ercise of abortion rights." Chejfer v. McGregor, 6 F. 3d 705,
762 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Opinion of the Court
711 (1993). It stated that the asserted interests in public
safety and order were already protected by other applicable
laws and that these interests could be protected adequately
without infringing upon the First Amendment rights of
others. Ibid. The Court of Appeals found the injunction
to be content based and neither necessary to serve a compel-
ling state interest nor narrowly drawn to achieve that end.
Ibid., citing Carey v. Brown, 447 U. S. 455, 461-462 (1980).
We granted certiorari, 510 U. S. 1084 (1994), to resolve the
conflict between the Florida Supreme Court and the Court
of Appeals over the constitutionality of the state court's
injunction.
II
We begin by addressing petitioners' contention that the
state court's order, because it is an injunction that restricts
only the speech of antiabortion protesters, is necessarily con-
tent or viewpoint based. Accordingly, they argue, we
should examine the entire injunction under the strictest
standard of scrutiny. See Perry Ed. Assn., supra, at 45.
We disagree. To accept petitioners' claim would be to clas-
sify virtually every injunction as content or viewpoint based.
An injunction, by its very nature, applies only to a particular
group (or individuals) and regulates the activities, and per-
haps the speech, of that group. It does so, however, because
of the group's past actions in the context of a specific dispute
between real parties. The parties seeking the injunction as-
sert a violation of their rights; the court hearing the action
is charged with fashioning a remedy for a specific depriva-
tion, not with the drafting of a statute addressed to the gen-
eral public.
The fact that the injunction in the present case did not
prohibit activities of those demonstrating in favor of abortion
is justly attributable to the lack of any similar demonstra-
tions by those in favor of abortion, and of any consequent
request that their demonstrations be regulated by injunc-
tion. There is no suggestion in this record that Florida law
Cite as: 512 U. S. 753 (1994) 763
Opinion of the Court
would not equally restrain similar conduct directed at a tar-
get having nothing to do with abortion; none of the restric-
tions imposed by the court were directed at the contents of
petitioner's message.
Our principal inquiry in determining content neutrality is
whether the government has adopted a regulation of speech
"without reference to the content of the regulated speech."
Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) (in-
ternal quotation marks omitted) (upholding noise regula-
tions); R. A. V. v. St. Paul, 505 U. S. 377, 386 (1992) ("The
government may not regulate [speech] based on hostility —
or favoritism — towards the underlying message expressed");
see also Arkansas Writers' Project, Inc. v. Ragland, 481
U. S. 221, 230 (1987); Regan v. Time, Inc., 468 U. S. 641, 648-
649 (1984); Metromedia, Inc. v. San Diego, 453 U. S. 490,
514-515 (1981) (plurality opinion); Carey v. Brown, supra, at
466-468. We thus look to the government's purpose as the
threshold consideration. Here, the state court imposed re-
strictions on petitioners incidental to their antiabortion mes-
sage because they repeatedly violated the court's original
order. That petitioners all share the same viewpoint re-
garding abortion does not in itself demonstrate that some
invidious content- or viewpoint-based purpose motivated the
issuance of the order. It suggests only that those in the
group whose conduct violated the court's order happen to
share the same opinion regarding abortions being performed
at the clinic. In short, the fact that the injunction covered
people with a particular viewpoint does not itself render the
injunction content or viewpoint based. See Boos v. Barry,
485 U. S. 312 (1988).2 Accordingly, the injunction issued in
2 We also decline to adopt the prior restraint analysis urged by petition-
ers. Prior restraints do often take the form of injunctions. See, e. g.,
New York Times Co. v. United States, 403 U. S. 713 (1971) (refusing to
enjoin publications of the "Pentagon Papers"); Vance v. Universal Amuse-
ment Co., 445 U. S. 308 (1980) (per curiam) (holding that Texas public
nuisance statute which authorized state judges, on the basis of a showing
764 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Opinion of the Court
this case does not demand the level of heightened scrutiny
set forth in Perry Ed. Assn., 460 U. S., at 45. And we pro-
ceed to discuss the standard which does govern.
Ill
If this were a content-neutral, generally applicable statute,
instead of an injunctive order, its constitutionality would be
assessed under the standard set forth in Ward v. Rock
Against Racism, supra, at 791, and similar cases. Given
that the forum around the clinic is a traditional public forum,
see Frisby v. Schultz, 487 U. S., at 480, we would determine
whether the time, place, and manner regulations were "nar-
rowly tailored to serve a significant governmental interest."
Ward, supra, at 791. See also Perry Ed. Assn., supra, at 45.
There are obvious differences, however, between an in-
junction and a generally applicable ordinance. Ordinances
represent a legislative choice regarding the promotion of
particular societal interests. Injunctions, by contrast, are
remedies imposed for violations (or threatened violations) of
a legislative or judicial decree. See United States v. W. T.
Grant Co., 345 U. S. 629, 632-633 (1953). Injunctions also
carry greater risks of censorship and discriminatory applica-
tion than do general ordinances. "[T]here is no more effec-
tive practical guaranty against arbitrary and unreasonable
government than to require that the principles of law which
officials would impose upon a minority must be imposed gen-
erally." Railway Express Agency, Inc. v. New York, 336
that a theater had exhibited obscene films in the past, to enjoin its future
exhibition of films not yet found to be obscene was unconstitutional as
authorizing an invalid prior restraint). Not all injunctions that may inci-
dentally affect expression, however, are "prior restraints" in the sense
that that term was used in New York Times Co., supra, or Vance, supra.
Here petitioners are not prevented from expressing their message in any
one of several different ways; they are simply prohibited from expressing
it within the 36-foot buffer zone. Moreover, the injunction was issued not
because of the content of petitioners' expression, as was the case in New
York Times Co. and Vance, but because of their prior unlawful conduct.
Cite as: 512 U. S. 753 (1994) 765
Opinion of the Court
U. S. 106, 112-113 (1949). Injunctions, of course, have some
advantages over generally applicable statutes in that they
can be tailored by a trial judge to afford more precise relief
than a statute where a violation of the law has already oc-
curred. United States v. Paradise, 480 U. S. 149 (1987).
We believe that these differences require a somewhat
more stringent application of general First Amendment
principles in this context.3 In past cases evaluating injunc-
tions restricting speech, see, e. g., NAACP v. Claiborne
Hardware Co., 458 U. S. 886 (1982), Milk Wagon Drivers v.
Meadowmoor Dairies, Inc., 312 U. S. 287 (1941), we have
relied upon such general principles while also seeking to
ensure that the injunction was no broader than necessary
to achieve its desired goals. See Carroll v. President and
Comm'rs of Princess Anne, 393 U. S. 175 (1968); Claiborne
Hardware, supra, at 912, n. 47. Our close attention to the
fit between the objectives of an injunction and the restric-
tions it imposes on speech is consistent with the general rule,
quite apart from First Amendment considerations, "that in-
junctive relief should be no more burdensome to the defend-
ant than necessary to provide complete relief to the plain-
tiffs." Calif ano v. Yamasaki, 442 U. S. 682, 702 (1979). See
also Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 418-420
(1977). Accordingly, when evaluating a content-neutral in-
junction, we think that our standard time, place, and manner
analysis is not sufficiently rigorous. We must ask instead
whether the challenged provisions of the injunction burden
no more speech than necessary to serve a significant govern-
ment interest. See, e. g., Claiborne Hardware, supra, at 916
(when sanctionable "conduct occurs in the context of consti-
tutionally protected activity . . . 'precision of regulation' is
8 Under general equity principles, an injunction issues only if there is a
showing that the defendant has violated, or imminently will violate, some
provision of statutory or common law, and that there is a "cognizable dan-
ger of recurrent violation/1 United States v. W T. Grant Co., 345 U. S.
629, 633 (1953).
766 MADSEN u WOMEN'S HEALTH CENTER, INC.
Opinion of the Court
demanded") (quoting NAACP v. Button, 371 U. S. 415, 438
(1963)); 458 U. S., at 916, n. 52 (citing Carroll, supra, and
Keyishian v. Board of Regents of Univ. of State ofN. Y., 385
U. S. 589, 604 (1967)); Carroll, supra, at 183-184.
Both JUSTICE STEVENS and JUSTICE SCALIA disagree
with the standard we announce, for policy reasons. See
post, at 778 (STEVENS, J.); post, at 792-794 (SCALIA, J.). JUS-
TICE STEVENS believes that "injunctive relief should be
judged by a more lenient standard than legislation," because
injunctions are imposed on individuals or groups who have
engaged in illegal activity. Post, at 778. JUSTICE SCALIA,
by contrast, believes that content-neutral injunctions are "at
least as deserving of strict scrutiny as a statutory, content-
based restriction." Post, at 792. JUSTICE SCALIA bases his
belief on the danger that injunctions, even though they might
not "attack content as content" may be used to suppress
particular ideas; that individual judges should not be trusted
to impose injunctions in this context; and that an injunction
is procedurally more difficult to challenge than a statute.
Post, at 793-794. We believe that consideration of all of the
differences and similarities between statutes and injunctions
supports, as a matter of policy, the standard we apply here.
JUSTICE SCALIA further contends that precedent compels
the application of strict scrutiny in this case. Under that
standard, we ask whether a restriction is "'necessary to
serve a compelling state interest and [is] narrowly drawn to
achieve that end.'" Post, at 790 (quoting Perry Ed. Assn.,
supra, at 45). JUSTICE SCALIA fails to cite a single case,
and we are aware of none, in which we have applied this
standard to a content-neutral injunction. He cites a number
of cases in which we have struck down, with little or no elab-
oration, prior restraints on free expression. See post, at 798
(citing cases). As we have explained, however, we do not
believe that this injunction constitutes a prior restraint, and
we therefore believe that the "heavy presumption" against
its constitutionality does not obtain here. See n. 2, supra.
Cite as: 512 U. S. 753 (1994) 767
Opinion of the Court
JUSTICE SCALIA also relies on Claiborne Hardware and
Carroll for support of his contention that our precedent re-
quires the application of strict scrutiny in this context. In
Claiborne Hardware, we stated simply that "precision of
regulation" is demanded. 458 U. S., at 916 (internal quota-
tion marks omitted). JUSTICE SCALIA reads this case to re-
quire "surgical precision" of regulation, post, at 798, but that
was not the adjective chosen by the author of the Court's
opinion, JUSTICE STEVENS. We think a standard requiring
that an injunction "burden no more speech than necessary"
exemplifies "precision of regulation/'4
As for Carroll, JUSTICE SCALIA believes that the "stand-
ard" adopted in that case "is strict scrutiny," which "does
not remotely resemble the Court's new proposal." Post, at
799. Comparison of the language used in Carroll and the
wording of the standard we adopt, however, belies JUSTICE
SCALIA'S exaggerated contention. Carroll^ for example,
requires that an injunction be "couched in the narrowest
terms that will accomplish the pin-pointed objective" of the
injunction. 393 U. S., at 183. We require that the injunc-
tion "burden no more speech than necessary" to accomplish
its objective. We fail to see a difference between the two
standards.
The Florida Supreme Court concluded that numerous
significant government interests are protected by the in-
junction. It noted that the State has a strong interest in
protecting a woman's freedom to seek lawful medical or
counseling services in connection with her pregnancy. See
4 In stating that "precision of regulation" is required in Claiborne Hard-
ware* moreover, we cited both to Carroll v. President and Comm'rs of
Princess Anne> 393 U. S* 175 (1968), a case involving an injunction, and to
Keyiskian v. Board of Regents of Univ. of State of N. Y., 386 U. S. 589
(1967), a case involving a state statute and regulations. If our precedent
demanded the different treatment of statutes and injunctions, as JUSTICE
SCALIA claims, it is difficult to explain our reliance on Keyishian in
Claiborne.
768 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Opinion of the Court
Roe v. Wade, 410 U. S. 113 (1973); In re T. W, 551 So. 2d 1186,
1193 (Fla. 1989). The State also has a strong interest in
ensuring the public safety and order, in promoting the free
flow of traffic on public streets and sidewalks, and in protect-
ing the property rights of all its citizens. 626 So. 2d, at 672.
In addition, the court believed that the State's strong inter-
est in residential privacy, acknowledged in Frisby v. Schultz,
487 U. S. 474 (1988), applied by analogy to medical privacy.
626 So. 2d, at 672. The court observed that while targeted
picketing of the home threatens the psychological well-being
of the "captive" resident, targeted picketing of a hospital or
clinic threatens not only the psychological, but also the phys-
ical, well-being of the patient held "captive" by medical cir-
cumstance. Id., at 673. We agree with the Supreme Court
of Florida that the combination of these governmental inter-
ests is quite sufficient to justify an appropriately tailored in-
junction to protect them. We now examine each contested
provision of the injunction to see if it burdens more speech
than necessary to accomplish its goal.5
A
1
We begin with the 36-foot buffer zone. The state court
prohibited petitioners from "congregating, picketing, patrol-
ling, demonstrating or entering" any portion of the public
right-of-way or private property within 36 feet of the prop-
erty line of the clinic as a way of ensuring access to the clinic.
This speech-free buffer zone requires that petitioners move
5 Petitioners do not challenge the first two provisions of the state court's
1993 order. Brief for Petitioners 9. The provisions composed what had
been the state court's 1992 permanent injunction and they chiefly ad-
dressed blocking, impeding, and inhibiting access to the clinic and its park-
ing lot. Nor do petitioners challenge the restrictions in paragraphs 7, 8,
and 9, which prohibit them from harassing and physically abusing clinic
doctors, staff, and patients trying to gain access to the clinic or their
homes.
Cite as: 512 U. S. 753 (1994) 769
Opinion of the Court
to the other side of Dixie Way and away from the driveway
of the clinic, where the state court found that they repeat-
edly had interfered with the free access of patients and staff.
App. to Pet. for Cert. B-2, B-3. See Cameron v. Johnson,
390 U. S. 611 (1968) (upholding statute that prohibited picket-
ing that obstructed or unreasonably interfered with ingress
or egress to or from public buildings, including courthouses,
and with traffic on the adjacent street sidewalks). The
buffer zone also applies to private property to the north and
west of the clinic property. We examine each portion of the
buffer zone separately.
We have noted a distinction between the type of focused
picketing banned from the buffer zone and the type of gener-
ally disseminated communication that cannot be completely
banned in public places, such as handbilling and solicitation.
See Frisby, supra, at 486 ("The type of focused picketing
prohibited by [the state court injunction] is fundamentally
different from more generally directed means of communica-
tion that may not be completely banned in [public places]")-
Here the picketing is directed primarily at patients and staff
of the clinic.
The 36-foot buffer zone protecting the entrances to the
clinic and the parking lot is a means of protecting unfettered
ingress to and egress from the clinic, and ensuring that peti-
tioners do not block traffic on Dixie Way. The state court
seems to have had few other options to protect access given
the narrow confines around the clinic. As the Florida Su-
preme Court noted, Dixie Way is only 21 feet wide in the
area of the clinic. App. 260, 305. The state court was con-
vinced that allowing petitioners to remain on the clinic's
sidewalk and driveway was not a viable option in view of the
failure of the first injunction to protect access. And allow-
ing the petitioners to stand in the middle of Dixie Way would
obviously block vehicular traffic.
The need for a complete buffer zone near the clinic en-
trances and driveway may be debatable, but some deference
770 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Opinion of the Court
must be given to the state court's familiarity with the facts
and the background of the dispute between the parties even
under our heightened review. Milk Wagon Drivers, 312
U. S., at 294. Moreover, one of petitioners' witnesses during
the evidentiary hearing before the state court conceded that
the buffer zone was narrow enough to place petitioners at a
distance of no greater than 10 to 12 feet from cars approach-
ing and leaving the clinic. App. 486. Protesters standing
across the narrow street from the clinic can still be seen and
heard from the clinic parking lots. Id., at 260, 305. We also
bear in mind the fact that the state court originally issued a
much narrower injunction, providing no buffer zone, and that
this order did not succeed in protecting access to the clinic.
The failure of the first order to accomplish its purpose may
be taken into consideration in evaluating the constitutional-
ity of the broader order. National Soc. of Professional En-
gineers v. United States, 435 U. S. 679, 697-698 (1978). On
balance, we hold that the 36-foot buffer zone around the clinic
entrances and driveway burdens no more speech than neces-
sary to accomplish the governmental interest at stake.
JUSTICE SCALIA'S dissent argues that a videotape made
of demonstrations at the clinic represents "what one must
presume to be the worst of the activity justifying the injunc-
tion." Post, at 785-786. This seems to us a gratuitous as-
sumption. The videotape was indeed introduced by re-
spondents, presumably because they thought it supported
their request for the second injunction. But witnesses also
testified as to relevant facts in a 3-day evidentiary hearing,
and the state court was therefore not limited to JUSTICE
SCALIA'S rendition of what he saw on the videotape to make
its findings in support of the second injunction. Indeed,
petitioners themselves studiously refrained from challenging
the factual basis for the injunction both in the state courts
and here. Before the Florida Supreme Court, petitioners
stated that "the Amended Permanent Injunction contains
fundamental error on its face. The sole question presented
<Jite as: 512 U. S. 753 (1994) 771
Opinion of the Court
by this appeal is a question of law, and for purposes of this
appeal [petitioners] are assuming, arguendo, that a factual
basis exists to grant injunctive relief." Appellants' Motion
in Response to Appellees' Motion to Require Full Transcript
and Record of Proceedings in No, 93-00969 (Dist. Ct. App.
Fla.), p. 2. Petitioners argued against including the factual
record as an appendix in the Florida Supreme Court, and
never certified a full record. We must therefore judge this
case on the assumption that the evidence and testimony pre-
sented to the state court supported its findings that the pres-
ence of protesters standing, marching, and demonstrating
near the clinic's entrance interfered with ingress to and
egress from the clinic despite the issuance of the earlier
injunction.
2
The inclusion of private property on the back and side of
the clinic in the 36-foot buffer zone raises different concerns.
The accepted purpose of the buffer zone is to protect access
to the clinic and to facilitate the orderly flow of traffic on
Dixie Way. Patients and staff wishing to reach the clinic do
not have to cross the private property abutting the clinic
property on the north and west, and nothing in the record
indicates that petitioners' activities on the private property
have obstructed access to the clinic. Nor was evidence pre-
sented that protestors located on the private property
blocked vehicular traffic on Dixie Way. Absent evidence
that petitioners standing on the private property have ob-
structed access to the clinic, blocked vehicular traffic, or oth-
erwise unlawfully interfered with the clinic's operation, this
portion of the buffer zone fails to serve the significant gov-
ernment interests relied on by the Florida Supreme Court.
We hold that on the record before us the 36-foot buffer zone
as applied to the private property to the north and west of
the clinic burdens more speech than necessary to protect
access to the clinic.
Opinion of the Court
B
In response to high noise levels outside the clinic, the state
court restrained the petitioners from "singing, chanting,
whistling, shouting, yelling, use of bullhorns, auto horns,
sound amplification equipment or other sounds or images ob-
servable to or within earshot of the patients inside the
[c]linic" during the hours of 7:30 a.m. through noon on Mon-
days through Saturdays. We must, of course, take account
of the place to which the regulations apply in determining
whether these restrictions burden more speech than neces-
sary. We have upheld similar noise restrictions in the past,
and as we noted in upholding a local noise ordinance around
public schools, "the nature of a place, 'the pattern of its nor-
mal activities, dictate the kinds of regulations . . . that are
reasonable.'" Grayned v. City of Rockford, 408 U.S. 104,
116 (1972). Noise control is particularly important around
hospitals and medical facilities during surgery and recovery
periods, and in evaluating another injunction involving a
medical facility, we stated:
"'Hospitals, after all, are not factories or mines or as-
sembly plants. They are hospitals, where human ail-
ments are treated, where patients and relatives alike
often are under emotional strain and worry, where
pleasing and comforting patients are principal facets of
the day's activity, and where the patient and his family
. . . need a restful, uncluttered, relaxing, and helpful at-
mosphere/" NLRB v. Baptist Hospital, Inc., 442 U. S.
773, 783-784, n. 12 (1979), quoting Beth Israel Hospital
v. NLRB, 437 U. S. 483, 509 (1978) (BLACKMUN, J., con-
curring in judgment).
We hold that the limited noise restrictions imposed by the
state court order burden no more speech than necessary to
ensure the health and well-being of the patients at the clinic.
The First Amendment does not demand that patients at a
medical facility undertake Herculean efforts to escape the
Cite as: 512 U. S. 753 (1994) 773
Opinion of the Court
cacophony of political protests. "If overamplifled loudspeak-
ers assault the citizenry, government may turn them down."
Grayned, supra, at 116. That is what the state court did
here, and we hold that its action was proper.
The same, however, cannot be said for the "images observ-
able" provision of the state court's order. Clearly, threats
to patients or their families, however communicated, are pro-
scribable under the First Amendment. But rather than pro-
hibiting the display of signs that could be interpreted as
threats or veiled threats, the state court issued a blanket ban
on all "images observable." This broad prohibition on all
"images observable" burdens more speech than necessary to
achieve the purpose of limiting threats to clinic patients or
their families. Similarly, if the blanket ban on "images ob-
servable" was intended to reduce the level of anxiety and
hypertension suffered by the patients inside the clinic, it
would still fail. The only plausible reason a patient would
be bothered by "images observable" inside the clinic would
be if the patient found the expression contained in such im-
ages disagreeable. But it is much easier for the clinic to pull
its curtains than for a patient to stop up her ears, and no
more is required to avoid seeing placards through the win-
dows of the clinic. This provision of the injunction violates
the First Amendment.
D
The state court ordered that petitioners refrain from phys-
ically approaching any person seeking services of the clinic
"unless such person indicates a desire to communicate" in
an area within 300 feet of the clinic. The state court was
attempting to prevent clinic patients and staff from being
"stalked" or "shadowed" by the petitioners as they ap-
proached the clinic. See International Soc. for Krishna
Consciousness, Inc. v. Lee, 505 U. S. 672, 684 (1992) ("[F]ace-
to-face solicitation presents risks of duress that are an appro-
Opinion of the Court
priate target of regulation. The skillful, and unprincipled,
solicitor can target the most vulnerable, including those ac-
companying children or those suffering physical impairment
and who cannot easily avoid the solicitation").
But it is difficult, indeed, to justify a prohibition on all
uninvited approaches of persons seeking the services of the
clinic, regardless of how peaceful the contact may be, without
burdening more speech than necessary to prevent intimida-
tion and to ensure access to the clinic. Absent evidence that
the protesters' speech is independently proscribable (i. e.,
"fighting words" or threats), or is so infused with violence as
to be indistinguishable from a threat of physical harm, see
Milk Wagon Drivers, 312 U. S., at 292-293, this provision
cannot stand. "As a general matter, we have indicated that
in public debate our own citizens must tolerate insulting, and
even outrageous, speech in order to provide adequate breath-
ing space to the freedoms protected by the First Amend-
ment." Boos v. Barry, 485 U. S., at 322 (internal quotation
marks omitted). The "consent" requirement alone invali-
dates this provision; it burdens more speech than is neces-
sary to prevent intimidation and to ensure access to the
clinic.6
E
The final substantive regulation challenged by petitioners
relates to a prohibition against picketing, demonstrating, or
using sound amplification equipment within 300 feet of the
residences of clinic staff. The prohibition also covers imped-
ing access to streets that provide the sole access to streets
on which those residences are located. The same analysis
applies to the use of sound amplification equipment here as
that discussed above: the government may simply demand
that petitioners turn down the volume if the protests over-
whelm the neighborhood. Grayned, 408 U. S., at 116.
6 We need not decide whether the "images observable" and
approach" provisions are content based.
(Jite as: 512 U. S. 753 (1994) 775
Opinion of the Court
As for the picketing, our prior decision upholding a law
banning targeted residential picketing remarked on the
unique nature of the home, as " 'the last citadel of the tired,
the weary, and the sick/" Frisby, 487 U. S., at 484. We
stated that "'[t]he State's interest in protecting the well-
being, tranquility, and privacy of the home is certainly of the
highest order in a free and civilized society.' " Ibid.
But the 300-foot zone around the residences in this case is
much larger than the zone provided for in the ordinance
which we approved in Frisby. The ordinance at issue there
made it " 'unlawful for any person to engage in picketing be-
fore or about the residence or dwelling of any individual/ "
Id., at 477. The prohibition was limited to "focused picket-
ing taking place solely in front of a particular residence."
Id., at 483. By contrast, the 300-foot zone would ban "[g]en~
eral marching through residential neighborhoods, or even
walking a route in front of an entire block of houses." Ibid.
The record before us does not contain sufficient justification
for this broad a ban on picketing; it appears that a limitation
on the time, duration of picketing, and number of pickets
outside a smaller zone could have accomplished the desired
result.
IV
Petitioners also challenge the state court's order as being
vague and overbroad. They object to the portion of the in-
junction making it applicable to those acting "in concert"
with the named parties. But petitioners themselves are
named parties in the order, and they therefore lack standing
to challenge a portion of the order applying to persons who
are not parties. Nor is that phrase subject, at the behest of
petitioners, to a challenge for "overbreadth"; the phrase it-
self does not prohibit any conduct, but is simply directed at
unnamed parties who might later be found to be acting "in
concert" with the named parties. As such, the case is gov-
erned by our holding in Regal Knitwear Co. v. NLRB, 324
U. S. 9, 14 (1945). There a party subject to an injunction
SOUTEK, J., concurring
argued that the order was invalid because of a provision that
it applied to "successors and assigns" of the enjoined party.
Noting that the party pressing the claim was not a successor
or assign, we characterized the matter as "an abstract con-
troversy over the use of these words, " Id., at 15.
Petitioners also contend that the "in concert" provision of
the injunction impermissibly limits their freedom of associa-
tion guaranteed by the First Amendment. See, e. g., Citi-
zens Against Rent Control/Coalition For Fair Housing v.
Berkeley, 454 U. S. 290 (1981). But petitioners are not en-
joined from associating with others or from joining with
them to express a particular viewpoint. The freedom of as-
sociation protected by the First Amendment does not extend
to joining with others for the purpose of depriving third par-
ties of their lawful rights.
V
In sum, we uphold the noise restrictions and the 36-foot
buffer zone around the clinic entrances and driveway because
they burden no more speech than necessary to eliminate the
unlawful conduct targeted by the state court's injunction.
We strike down as unconstitutional the 36-foot buffer zone
as applied to the private property to the north and west of
the clinic, the "images observable" provision, the 300-foot
no-approach zone around the clinic, and the 300-foot buffer
zone around the residences, because these provisions sweep
more broadly than necessary to accomplish the permissible
goals of the injunction. Accordingly, the judgment of the
Florida Supreme Court is
Affirmed in part and reversed in part
JUSTICE SOUTER, concurring.
I join the Court's opinion and write separately only to clar-
ify two matters in the record. First, the trial judge made
reasonably clear that the issue of who was acting "in concert"
with the named defendants was a matter to be taken up in
Cite as: 512 U. S. 753 (1994) 777
Opinion of STEVENS, J.
individual cases, and not to be decided on the basis of pro-
testers' viewpoints. See Tr. 40, 43, 93, 115, 119-120 (Apr.
12, 1993, Hearing). Second, petitioners themselves acknowl-
edge that the governmental interests in protection of public
safety and order, of the free flow of traffic, and of property
rights are reflected in Florida law. See Brief for Petitioners
17, and n. 7 (citing, e.g., Fla. Stat. §§870.041-870.047 (1991)
(public peace); §316.2045 (obstruction of public streets, high-
ways, and roads)).
JUSTICE STEVENS, concurring in part and dissenting in
part.
The certiorari petition presented three questions, corre-
sponding to petitioners' three major challenges to the trial
court's injunction.1 The Court correctly and unequivocally
rejects petitioners' argument that the injunction is a
"content-based restriction on free speech/' ante, at 762-764,
as well as their challenge to the injunction on the basis that
it applies to persons acting "in concert" with them, ante, at
775-776, I therefore join Parts II and IV of the Court's
opinion, which properly dispose of the first and third ques-
tions presented. I part company with the Court, however,
on its treatment of the second question presented, including
its enunciation of the applicable standard of review.
1 "QUESTIONS PRESENTED FOR REVIEW
"1. Whether a state court injunction placing a thirty-six-foot buffer zone
around an abortion clinic which prohibits peaceful pro-life speech in a tra-
ditional public forum is an unconstitutional content-based restriction on
free speech and association.
"2. Whether a state court injunction creating a consent requirement
before speech is permitted within a three-hundred-foot buffer zone around
an abortion clinic and residential areas is a reasonable time, place, and
manner restriction or an unconstitutional prior restraint on free speech.
"3. Whether a state court injunction prohibiting named demonstrators
and those acting *in concert' from expressing peaceful speech within sev-
eral designated buffer zones violates the First Amendment's protection of
freedom of speech and association." Pet. for Cert. 1
Opinion of STEVENS, J.
I agree with the Court that a different standard governs
First Amendment challenges to generally applicable legisla-
tion than the standard that measures such challenges to judi-
cial remedies for proven wrongdoing. See ante, at 764-765.
Unlike the Court, however, I believe that injunctive relief
should be judged by a more lenient standard than legislation.
As the Court notes, legislation is imposed on an entire com-
munity, ibid., regardless of individual culpability. By con-
trast, injunctions apply solely to an individual or a limited
group of individuals who, by engaging in illegal conduct,
have been judicially deprived of some liberty — the normal
consequence of illegal activity.2 Given this distinction, a
statute prohibiting demonstrations within 36 feet of an abor-
tion clinic would probably violate the First Amendment, but
an injunction directed at a limited group of persons who have
engaged in unlawful conduct in a similar zone might well
be constitutional.
The standard governing injunctions has two obvious di-
mensions. On the one hand, the injunction should be no
more burdensome than necessary to provide complete relief,
Califano v. Yamasaki, 442 U. S. 682, 702 (1979). In a First
Amendment context, as in any other, the propriety of the
remedy depends almost entirely on the character of the vio-
lation and the likelihood of its recurrence. For this reason,
standards fashioned to determine the constitutionality of
statutes should not be used to evaluate injunctions.
On the other hand, even when an injunction impinges on
constitutional rights, more than "a simple proscription
2 Contrary to JUSTICE SCALIA'S assumption, see post, at 794, n. 1, the
deprivation of liberty caused by an injunction is not a form of punishment.
Moreover, there is nothing unusual about injunctive relief that includes
some restriction on speech as a remedy for prior misconduct. National
Soc. of Professional Engineers v. United States, 435 U. S. 679, 697-698
(1978).
Cite as: 512 U. S. 753 (1994) 779
Opinion of STEVENS, J.
against the precise conduct previously pursued" may be re-
quired; the remedy must include appropriate restraints on
"future activities both to avoid a recurrence of the violation
and to eliminate its consequences/' National Soc. of Pro-
fessional Engineers v. United States, 435 U. S. 679, 697-698
(1978). Moreover, "[t]he judicial remedy for a proven viola-
tion of law will often include commands that the law does
not impose on the community at large/' Teachers v. Hud-
son, 475 U. S. 292, 309-310, n. 22 (1986). As such, repeated
violations may justify sanctions that might be invalid if
applied to a first offender or if enacted by the legislature.
See United States v. Paradise, 480 U. S. 149 (1987).
In this case, the trial judge heard three days of testimony
and found that petitioners not only had engaged in tortious
conduct, but also had repeatedly violated an earlier injunc-
tion. The injunction is thus twice removed from a legisla-
tive proscription applicable to the general public and should
be judged by a standard that gives appropriate deference to
the judge's unique familiarity with the facts.
II
The second question presented by the certiorari petition
asks whether the "consent requirement before speech is per-
mitted" within a 300-foot buffer zone around the clinic uncon-
stitutionally infringes on free speech.3 Petitioners contend
that these restrictions create a "no speech" zone in which
they cannot speak unless the listener indicates a positive
sSee n. 1, supra. This question also encompasses the separate but
related question whether the 800-foot buffer zone in residential areas is a
reasonable time, place, and manner restriction, but incorrectly refers to
that zone as containing a consent requirement. For the reasons stated in
Part III-E of the Court's opinion, which I join, I agree that the findings
do not justify such a broad ban on picketing. I also agree with the Court's
rejection of petitioners* prior restraint challenge to the 300-foot zones.
See ante, at 763, n. 2.
780 MADSEN v WOMEN'S HEALTH CENTER, INC.
Opinion of STEVENS, J.
interest in their speech. And, in Part III-D of its opinion,
the Court seems to suggest that, even in a more narrowly
defined zone, such a consent requirement is constitutionally
impermissible. Ante, at 773-774. Petitioners' argument
and the Court's conclusion, however, are based on a misread-
ing of If (5) of the injunction.4
That paragraph does not purport to prohibit speech; it pro-
hibits a species of conduct. Specifically, it prohibits petition-
ers "from physically approaching any person seeking the
services of the Clinic unless such person indicates a desire to
communicate by approaching or by inquiring" of petitioners.
App. 59. The meaning of the term "physically approaching"
is explained by the detailed prohibition that applies when
the patient refuses to converse with, or accept delivery of
literature from, petitioners. Absent such consent, the peti-
tioners "shall not accompany such person, encircle, surround,
harass, threaten or physically or verbally abuse those indi-
viduals who choose not to communicate with them." Ibid.
As long as petitioners do not physically approach patients in
this manner, they remain free not only to communicate with
the public but also to offer verbal or written advice on an
individual basis to the clinic's patients through their "side-
walk counseling."
4 The full text of f (5) reads as follows:
"At all times on all days, in an area within three-hundred (300) feet of
the Clinic, from physically approaching any person seeking the services of
the Clinic unless such person indicates a desire to communicate by ap-
proaching or by inquiring of the [petitioners]. In the event of such invita-
tion, the [petitioners] may engage in communications consisting of conver-
sation of a non-threatening nature and by the delivery of literature within
the three-hundred (300) foot area but in no event within the 36 foot buffer
zone. Should any individual decline such communication, otherwise
known as 'sidewalk counseling*, that person shall have the absolute right
to leave or walk away and the [petitioners] shall not accompany such per-
son, encircle, surround, harass, threaten or physically or verbally abuse
those individuals who choose not to communicate with them." App. 59.
Cite as: 512 U. S. 753 (1994) 781
Opinion of STEVENS, J.
Petitioners' "counseling" of the clinic's patients is a form
of expression analogous to labor picketing. It is a mixture
of conduct and communication. "In the labor context, it is
the conduct element rather than the particular idea being
expressed that often provides the most persuasive deterrent
to third persons about to enter a business establishment."
NLRB v. Retail Store Employees, 447 U. S. 607, 619 (1980)
(STEVENS, J., concurring in part and concurring in result).
As with picketing, the principal reason why handbills con-
taining the same message are so much less effective than
"counseling" is that "the former depend entirely on the per-
suasive force of the idea." Ibid. Just as it protects picket-
ing, the First Amendment protects the speaker's right to
offer "sidewalk counseling" to all passers-by. That protec-
tion, however, does not encompass attempts to abuse an un-
receptive or captive audience, at least under the circum-
stances of this case. One may register a public protest by
placing a vulgar message on his jacket and, in so doing, ex-
pose unwilling viewers, Cohen v. California, 403 U. S. 15,
21-22 (1971). Nevertheless, that does not mean that he has
an unqualified constitutional right to follow and harass an
unwilling listener, especially one on her way to receive medi-
cal services. Cf. Grayned v. City ofRockford, 408 U. S. 104,
116 (1972).
The "physically approaching" prohibition entered by the
trial court is no broader than the protection necessary to
provide relief for the violations it found. The trial judge
entered this portion of the injunction only after concluding
that the injunction was necessary to protect the clinic's pa-
tients and staff from "uninvited contacts, shadowing and
stalking" by petitioners. App. 56. The protection is espe-
cially appropriate for the clinic patients given that the trial
judge found that petitioners' prior conduct caused higher lev-
els of "anxiety and hypertension" in the patients, increasing
the risks associated with the procedures that the patients
782 MADSEN u WOMEN'S HEALTH CENTER, INC.
Opinion of STEVENS, J.
seek.5 Whatever the proper limits on a court's power to
restrict a speaker's ability to physically approach or follow
an unwilling listener, surely the First Amendment does not
prevent a trial court from imposing such a restriction given
the unchallenged findings in this case.
The Florida Supreme Court correctly concluded:
"While the First Amendment confers on each citizen a
powerful right to express oneself, it gives the picketer
no boon to jeopardize the health, safety, and rights of
others. No citizen has a right to insert a foot in the
hospital or clinic door and insist on being heard — while
purposefully blocking the door to those in genuine need
of medical services. No picketer can force speech into
the captive ear of the unwilling and disabled." Opera-
tion Rescue v. Women's Health Center, Inc., 626 So. 2d
664, 675 (1993).
I thus conclude that, under the circumstances of this case,
the prohibition against "physically approaching" in the 300-
foot zone around the clinic withstands petitioners' First
Amendment challenge. I therefore dissent from Part III-D.
Ill
Because I have joined Parts I, II, III-E, and IV of the
Court's opinion and have dissented as to Part III-D after
concluding that the 300-foot zone around the clinic is a rea-
sonable time, place, and manner restriction, no further dis-
cussion is necessary. See n. 1, supra. The Court, however,
proceeds to address challenges to the injunction that, al-
6 Specifically, in its findings of fact, the trial court noted that:
"This physician also testified that he witnessed the demonstrators running
along side of and in front of patients' vehicles, pushing pamphlets in car
windows to persons who had not indicated any interest in such literature.
As a result of patients having to run such a gauntlet, the patients mani-
fested a higher level of anxiety and hypertension causing those patients
to need a higher level of sedation to undergo the surgical procedures,
thereby increasing the risk associated with such procedures." Id., at 54.
Cite as: 512 U. S. 753 (1994) 783
Opinion of STEVENS, J.
though arguably raised by petitioners' briefs, are not prop-
erly before the Court.
After correctly rejecting the content-based challenge to
the 36-foot buffer zone raised by the first question in the
certiorari petition, the Court nevertheless decides to modify
the portion of that zone that it believes does not protect
ingress to the clinic. Petitioners, however, presented only
a content-based challenge to the 36-foot zone; they did not
present a time, place, and manner challenge. See n. 1,
supra. They challenged only the 300-foot zones on this
ground. Ibid. The scope of the 36-foot zone is thus not
properly before us.6 Izumi Seimitsu Kogyo Kabushiki
Kaisha v. U. S. Phillips Corp., 510 U. S. 27 (1993) (per
curiam).7
6 Indeed, it is unclear whether these challenges were presented to the
Florida Supreme Court. In their appeal to that court, petitioners did not
even file the transcript of the evidentiary hearings, contending that the
"sole question presented by this appeal is a question of law." See Appel-
lants' Motion in Response to Appellees' Motion to Require Full Transcript
and Record of Proceedings in No. 93-00969 (Dist. Ct. App. Fla.), p. 2.
Because petitioners argued that the entire decree was invalid as a matter
of law, without making any contention that particular provisions should
be modified, it appears there was no argument in that court about the size
or the shape of the buffer zones.
Even if the question were properly presented here, I fully agree with
the Florida Supreme Court's refusal to quibble over a few feet one way or
the other when the parties have not directed their arguments at a narrow
factual issue of this kind. Operation Rescue v. Women's Health Center,
Inc., 626 So. 2d 664, 673 (1993). Moreover, respect for the highest court
of the State strongly counsels against this sort of error correction in this
Court.
7 Even assuming that a time, place, and manner challenge to the 36-foot
zone is fairly included within the first question presented, petitioners' brief
challenges the entire 36-foot zone as overbroad and seeks to have it invali-
dated in its entirety. Nowhere in their briefs do they argue that the por-
tion of the zone on the north and west sides of the clinic should be struck
down in the event the Court upholds the restrictions on the front and east.
As such, we do not have the benefit of respondents' arguments why those
portions, if considered severally from the other portions of the zone, should
be upheld. Moreover, the existence in the record of facts found by the
784 MADSEN v WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
The same is true of the noise restrictions and the "images
observable" provision of 1f(4).8 That paragraph does not
refer to the 36-foot or the 300-foot buffer zones, nor does it
relate to the constitutionality of the "in concert" provision.
As such, although I am inclined to agree with the Court's
resolution respecting the noise and images restrictions, I be-
lieve the Court should refrain from deciding their constitu-
tionality because they are not challenged by the questions
on which certiorari was granted.
IV
For the reasons stated, I concur in Parts I, II, III-E, and
IV of the Court's opinion, and respectfully dissent from the
remaining portions.
JUSTICE SCALIA, with whom JUSTICE KENNEDY and
JUSTICE THOMAS join, concurring in the judgment in part
and dissenting in part.
The judgment in today's case has an appearance of mod-
eration and Solomonic wisdom, upholding as it does some
trial court respecting petitioners' conduct — independent of petitioners' ob-
struction of ingress and egress — that support the entire 36-foot zone
makes the Court's micromanagement of the injunction particularly inap-
propriate. See, e. g.} App. 53 ("The clinic has fences on its west and north
side, and persons would occasionally place a ladder on the outside of the
fence and position themselves at an elevation above the fence and attempt
to communicate by shouting at persons (staff and patients) entering the
clinic"); id., at 54 ("[T]he doctor was followed as he left the clinic by a
person associated with the [petitioners] who communicated his anger to
the doctor by pretending to shoot him from the adjoining vehicle"); id,
at 54-55 (noting that "a physician similarly employed was killed by an
antiabortionist at a clinic in North Florida").
8 Paragraph (4) provides in full:
"During the hours of 7:30 a.m. through noon, on Mondays through Sat-
urdays, during surgical procedures and recovery periods, from singing,
chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound
amplification equipment or other sounds or images observable to or within
earshot of the patients inside the Clinic." Id., at 59.
Cite as: 512 U. S. 753 (1994) 785
Opinion of SCALIA, J.
portions of the injunction while disallowing others. That
appearance is deceptive. The entire injunction in this case
departs so far from the established course of our jurispru-
dence that in any other context it would have been regarded
as a candidate for summary reversal.
But the context here is abortion. A long time ago, in dis-
sent from another abortion-related case, JUSTICE O'CONNOR,
joined by then-JusTiCE REHNQUIST, wrote:
"This Court's abortion decisions have already worked
a major distortion in the Court's constitutional jurispru-
dence. Today's decision goes further, and makes it
painfully clear that no legal rule or doctrine is safe from
ad hoc nullification by this Court when an occasion for
its application arises in a case involving state regulation
of abortion. The permissible scope of abortion regula-
tion is not the only constitutional issue on which this
Court is divided, but — except when it comes to abor-
tion— the Court has generally refused to let such dis-
agreements, however longstanding or deeply felt, pre-
vent it from evenhandedly applying uncontroversial
legal doctrines to cases that come before it." Thorn-
burgh v. American College of Obstetricians and Gyne-
cologists, 476 U. S. 747, 814 (1986) (citations omitted).
Today the ad hoc nullification machine claims its latest,
greatest, and most surprising victim: the First Amendment.
Because I believe that the judicial creation of a 36-foot
zone in which only a particular group, which had broken no
law, cannot exercise its rights of speech, assembly, and asso-
ciation, and the judicial enactment of a noise prohibition, ap-
plicable to that group and that group alone, are profoundly at
odds with our First Amendment precedents and traditions, I
dissent.
I
The record of this case contains a videotape, with running
caption of time and date, displaying what one must presume
786 MADSEN u WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
to be the worst of the activity justifying the injunction is-
sued by Judge McGregor and partially approved today by
this Court. The tape was shot by employees of, or volun-
teers at, the Aware Woman Clinic on three Saturdays in Feb-
ruary and March 1993; the camera location, for the first and
third segments, appears to have been an upper floor of the
clinic. The tape was edited down (from approximately 6 to
8 hours of footage to l/2 hour) by Ruth Arick, a management
consultant employed by the clinic and by the Feminist Major-
ity Foundation. App. 527, 529, 533.
Anyone seriously interested in what this case was about
must view that tape. And anyone doing so who is familiar
with run-of-the-mine labor picketing, not to mention some
other social protests, will be aghast at what it shows we have
today permitted an individual judge to do. I will do my best
to describe it.
On Saturday, March 6, 1993, a group of antiabortion pro-
testers is gathered in front of the clinic, arrayed from east
(camera-left) to west (camera-right) on the clinic side of Dixie
Way, a small, nonartery street. Men, women, and children
are also visible across the street, on the south side of Dixie
Way; some hold signs and appear to be protesters, others
may be just interested onlookers.
On the clinic side of the street, two groups confront each
other across the line marking the south border of the clinic
property — although they are so close together it is often im-
possible to tell them apart. On the clinic property (and with
their backs to the camera) are a line of clinic and abortion-
rights supporters, stretching the length of the property.
Opposite them, and on the public right-of-way between
the clinic property and Dixie Way itself, is a group of abor-
tion opponents, some standing in place, others walking a
picket line in an elongated oval pattern running the length
of the property's south border. Melbourne police officers
are visible at various times walking about in front of the
Cite as: 512 U. S. 753 (1994) 787
Opinion of SCALIA, J.
clinic, and individuals can be seen crossing Dixie Way at
various times.
Clinic supporters are more or less steadily chanting the
following slogans: "Our right, our right, our right, to decide";
"Right to life is a lie, you don't care if women die." Then
abortion opponents can be heard to sing: "Jesus loves the
little children, all the children of the world, red and yellow,
black and white, they are precious in His sight, Jesus loves
the little children of the world." Clinic supporters respond
with: Q: "What do we want?" A: "Choice." Q: "When do
we want it?" A: "Now." ("Louder!") And that call and
response is repeated. Later in the tape, clinic supporters
chant "1-2-3-4, we won't take it anymore; 5-6-7-8, Separate
the Church and State." On placards held by picketers and
by stationary protesters on both sides of the line, the fol-
lowing slogans are visible: "Abortionists lie to women."
"Choose Life: Abortion Kills." "N.O.W. Violence." "The
God of Israel is Pro-life." "RU 486 Now." "She Is a Child,
Not a Choice." "Abortion Kills Children." "Keep Abortion
Legal." "Abortion: God Calls It Murder." Some abortion
opponents wear T-shirts bearing the phrase "Choose Life."
As the abortion opponents walk the picket line, they tra-
verse portions of the public right-of-way that are crossed by
paved driveways, on each side of the clinic, connecting the
clinic's parking lot to the street. At one point an automobile
moves west on Dixie Way and slows to turn into the west-
ernmost driveway. There is a 3-to-4-second delay as the
picketers, and then the clinic supporters, part to allow the
car to enter. The camera cuts to a shot of another, parked
car with a potato jammed onto the tailpipe. There is no
footage of any person putting the potato on to the tailpipe.
Later, at a point when the crowd appears to be larger and
the picketers more numerous, a red car is delayed approxi-
mately 10 seconds as the picketers (and clinic supporters)
move out of the driveway. Police are visible helping to clear
788 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
a path for the vehicle to enter. As the car waits, two per-
sons appearing to bear leaflets approach, respectively, the
driver and front passenger doors. They appear to elicit no
response from the car's occupants and the car passes safely
onto clinic property. Later, a blue minivan enters the drive-
way and is also subject to the same delay. Still later a jeep-
type vehicle leaves the clinic property and slows down
slightly where the driveway crosses the public right-of-way.
At no time is there any apparent effort to prevent entry or
exit, or even to delay it, except for the time needed for the
picketers to get out of the way. There is no sitting down,
packing en masse, linking of hands, or any other effort to
blockade the clinic property.
The persons standing but not walking the picket line in-
clude a woman with a child in a stroller and a man shout-
ing the Book of Daniel's account of Meshach, Shadrach, and
Abednego. A woman on a stepladder holds up a sign in
the direction of the clinic; a clinic supporter counters with
a larger sign held up between the other and the clinic. A
brief shot reveals an older man in a baseball cap — head,
shoulders, and chest visible above the clinic fence — who ap-
pears to be reading silently from a small book. A man on
clinic property holds a boom box out in the direction of the
abortion opponents. As the crowd grows it appears at vari-
ous points to have spilled over into the north-side, west-
bound lane of Dixie Way.
At one point, Randall Terry arrives and the press converge
upon him, apparently in Dixie Way itself. A sign is held
near his head reading "Randall Terry Sucks/' Terry ap-
pears to be speaking to the press and at one point tears
pages from a notebook of some kind. Through all of this,
abortion opponents and abortion-rights supporters appear to
be inches from one another on each side of the south border
of the property. They exchange words, but at no time is
there any violence or even any discernible jostling or physi-
cal contact between these political opponents.
Cite as: 512 U. S. 753 (1994) 789
Opinion of SCALIA, J.
The scene shifts to early afternoon of the same day. Most
of the press and most of the abortion opponents appear to
have departed. The camera focuses on a woman who faces
the clinic and, hands cupped over her mouth, shouts the fol-
lowing: "Be not deceived; God is not mocked. ... Ed Windle,
God's judgment is on you, and if you don't repent, He will
strike you dead. The baby's blood flowed over your hands,
Ed Windle. . . . You will burn in hell, Ed Windle, if you don't
repent. There were arms and legs pulled off today. . . . An
innocent little child, a little boy, a little girl, is being de-
stroyed right now." Cheering is audible from the clinic
grounds. A second person shouts "You are responsible for
the deaths of children. . . . You are a murderer. Shame on
you." From the clinic grounds someone shouts "Why don't
you go join the wacko in Waco?" The first woman says "You
are applauding the death of your children. We will be
everywhere. . , . There will be no peace and no rest for the
wicked. , . „ I pray that you will give them dreams and night-
mares, God."
The second segment of the videotape displays a group of
approximately 40 to 50 persons walking along the side of a
major highway. It is Saturday, March 13, 1993, at 9:56 a.m.
The demonstrators walk in an oval pattern, carrying no signs
or other visible indicators of their purpose. According to
Ruth Arick, this second portion was filmed in front of the
condominium where clinic owner Ed Windle lived.
A third segment begins. The date-time register indicates
that it is the morning of Saturday, February 20, 1993. A
teenage girl faces the clinic and exclaims: "Please don't let
them kill me, Mommy. Help me, Daddy, please." Clinic
supporters chant, "We won't go back." A second woman,
the one who spoke at greatest length in the first segment,
calls, "If you [inaudible], help her through it." Off camera,
a group sings "Roe, Roe, Roe v. Wade, we will never quit,
Freedom of choice is the law of the land, better get used to
it," The woman from the first segment appears to address
790 MADSEN v WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
specific persons on clinic property: "Do you ever wonder
what your baby would have looked like? Do you wonder
how old it would have been? Because I did the same thing
. . . ." Then a police officer is visible writing someone a
citation. The videotape ends with a shot of an automobile
moving eastbound on Dixie Way. As it slows to a stop at
the intersection of U. S. 1, two leafletters approach the car
and then pull back as it passes on.
The videotape and the rest of the record, including the
trial court's findings, show that a great many forms of ex-
pression and conduct occurred in the vicinity of the clinic.
These include singing, chanting, praying, shouting, the play-
ing of music both from the clinic and from handheld boom
boxes, speeches, peaceful picketing, communication of famil-
iar political messages, handbilling, persuasive speech di-
rected at opposing groups on the issue of abortion, efforts to
persuade individuals not to have abortions, personal testi-
mony, interviews with the press, and media efforts to report
on the protest. What the videotape, the rest of the record,
and the trial court's findings do not contain is any suggestion
of violence near the clinic, nor do they establish any attempt
to prevent entry or exit.
II
Under this Court's jurisprudence, there is no question that
this public sidewalk area is a "public forum/' where citizens
generally have a First Amendment right to speak. United
States v. Grace, 461 U. S. 171, 177 (1983). The parties to this
case invited the Court to employ one or the other of the two
well-established standards applied to restrictions upon this
First Amendment right. Petitioners claimed the benefit of
so-called "strict scrutiny," the standard applied to content-
based restrictions: The restriction must be "necessary to
serve a compelling state interest and . . . narrowly drawn to
achieve that end." Perry Ed. Assn. v. Perry Local Educa-
Cite as: 512 U. S. 753 (1994) 791
Opinion of SCALIA, J.
tors' Assn., 460 U. S. 37, 45 (1983). Respondents, on the
other hand, contended for what has come to be known as
"intermediate scrutiny" (midway between the "strict scru-
tiny" demanded for content-based regulation of speech and
the "rational basis" standard that is applied — under the
Equal Protection Clause — to government regulation of non-
speech activities). See, e. g., Turner Broadcasting System,
Inc. v. FCC, ante, at 642. That standard, applicable to so-
called "time, place, and manner regulations" of speech, pro-
vides that the regulations are permissible so long as they
"are content-neutral, are narrowly tailored to serve a sig-
nificant government interest, and leave open ample alterna-
tive channels of communication." Perry, supra, at 45. The
Court adopts neither of these, but creates, brand new for
this abortion-related case, an additional standard that is
(supposedly) "somewhat more stringent," ante, at 765, than
intermediate scrutiny, yet not as "rigorous," ibid., as strict
scrutiny. The Court does not give this new standard a
name, but perhaps we could call it intermediate-intermediate
scrutiny. The difference between it and intermediate scru-
tiny (which the Court acknowledges is inappropriate for in-
junctive restrictions on speech) is frankly too subtle for me
to describe, so I must simply recite it: Whereas intermediate
scrutiny requires that the restriction be "narrowly tailored
to serve a significant government interest," the new stand-
ard requires that the restriction "burden no more speech
than necessary to serve a significant government interest."
Ibid.
I shall discuss the Court's mode of applying this suppos-
edly new standard presently, but first I must remark upon
the peculiar manner in which the standard was devised.
The Court begins, in Part II of the opinion, by considering
petitioners' contention that, since the restriction is content
based, strict scrutiny should govern. It rejects the premise,
and hence rejects the conclusion. It then proceeds, in Part
III, to examination of respondents' contention that plain old
792 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
intermediate scrutiny should apply. It says no to that, too,
because of the distinctive characteristics of injunctions that
it discusses, ante, at 764-765, and hence decides to supple-
ment intermediate scrutiny with intermediate-intermediate
scrutiny. But this neatly staged progression overlooks an
obvious option. The real question in this case is not
whether intermediate scrutiny, which the Court assumes to
be some kind of default standard, should be supplemented
because of the distinctive characteristics of injunctions; but
rather whether those distinctive characteristics are not, for
reasons of both policy and precedent, fully as good a reason
as "content basis" for demanding strict scrutiny. That pos-
sibility is simply not considered. Instead, the Court begins
Part III with the following optical illusion: "If this were a
content-neutral, generally applicable statute, instead of an
injunctive order, its constitutionality would be assessed
under the [intermediate scrutiny] standard," ante, at 764 —
and then proceeds to discuss whether petitioners can sustain
the burden of departing from that presumed disposition.
But this is not a statute, and it is an injunctive order. The
Court might just as logically (or illogically) have begun Part
III: "If this were a content-based injunction, rather than a
non-content-based injunction, its constitutionality would be
assessed under the strict scrutiny standard" — and have then
proceeded to discuss whether respondents can sustain the
burden of departing from that presumed disposition. The
question should be approached, it seems to me, without any
such artificial loading of the dice. And the central element
of the answer is that a restriction upon speech imposed by
injunction (whether nominally content based or nominally
content neutral) is at least as deserving of strict scrutiny as
a statutory, content-based restriction.
That is so for several reasons: The danger of content-based
statutory restrictions upon speech is that they may be de-
signed and used precisely to suppress the ideas in question
rather than to achieve any other proper governmental aim.
Cite as: 512 U. S. 753 (1994) 793
Opinion of SCALIA, J.
But that same danger exists with injunctions. Although a
speech-restricting injunction may not attack content as con-
tent (in the present case, as I shall discuss, even that is not
true), it lends itself just as readily to the targeted suppres-
sion of particular ideas. When a judge, on the motion of an
employer, enjoins picketing at the site of a labor dispute,
he enjoins (and he knows he is enjoining) the expression of
pro-union views. Such targeting of one or the other side of
an ideological dispute cannot readily be achieved in speech-
restricting general legislation except by making content the
basis of the restriction; it is achieved in speech-restricting
injunctions almost invariably. The proceedings before us
here illustrate well enough what I mean. The injunction
was sought against a single-issue advocacy group by persons
and organizations with a business or social interest in sup-
pressing that group's point of view.
The second reason speech-restricting injunctions are at
least as deserving of strict scrutiny is obvious enough: They
are the product of individual judges rather than of legisla-
tures— and often of judges who have been chagrined by prior
disobedience of their orders. The right to free speech
should not lightly be placed within the control of a single
man or woman. And the third reason is that the injunction
is a much more powerful weapon than a statute, and so
should be subjected to greater safeguards. Normally, when
injunctions are enforced through contempt proceedings, only
the defense of factual innocence is available. The collateral
bar rule of Walker v. Birmingham, 388 U. S. 307 (1967), elim-
inates the defense that the injunction itself was unconstitu-
tional. Accord, Dade County Classroom Teachers' Assn. v.
Rubin, 238 So. 2d 284, 288 (Fla. 1970). Thus, persons sub-
ject to a speech-restricting injunction who have not the
money or not the time to lodge an immediate appeal face a
Hobson's choice: The^ must remain silent, since if they speak
their First Amendment rights are no defense in subsequent
794 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
contempt proceedings. This is good reason to require the
strictest standard for issuance of such orders.1
The Court seeks to minimize the similarity between
speech-restricting injunctions and content-based statutory
proscriptions by observing that the fact that "petitioners all
share the same viewpoint regarding abortion does not in it-
self demonstrate that some invidious content- or viewpoint-
based purpose motivated the issuance of the order/' but
rather "suggests only that those in the group whose conduct
violated the court's order happen to share the same opinion
regarding abortions/' ante, at 763. But the Court errs in
thinking that the vice of content-based statutes is that they
necessarily have the invidious purpose of suppressing partic-
ular ideas. "[0]ur cases have consistently held that '[i]llicit
legislative intent is not the sine qua non of a violation of the
First Amendment/ " Simon & Schuster, Inc. v. Members of
K Y. State Crime Victims Bd., 502 U.S. 105, 117 (1991)
(quoting Minneapolis Star & Tribune Co. v. Minnesota
Comm'r of Revenue, 460 U. S. 575, 592 (1983)). The vice of
content-based legislation — what renders it deserving of the
high standard of strict scrutiny — is not that it is always used
for invidious, thought-control purposes, but that it lends it-
self to use for those purposes. And, because of the unavoid-
1 JUSTICE STEVENS believes that speech-restricting injunctions "should
be judged by a more lenient standard than legislation" because "injunc-
tions apply solely to [those] who, by engaging in illegal conduct, have been
judicially deprived of some liberty." Ante, at 778. Punishing unlawful
action by judicial abridgment of First Amendment rights is an interesting
concept; perhaps Eighth Amendment rights could be next. I know of no
authority for the proposition that restriction of speech, rather than fines
or imprisonment, should be the sanction for misconduct The supposed
prior violation of a judicial order was the only thing that rendered peti-
tioners subject to a personally tailored restriction on speech in the first
place — not in order to punish them, but to protect the public order. To
say that their prior violation not only subjects them to being singled out
in this fashion, but also loosens the standards for protecting the public
order through speech restrictions, is double counting.
Cite as: 512 U. S. 753 (1994) 795
Opinion of SCALIA, J.
able "targeting" discussed above, precisely the same is true
of the speech-restricting injunction.
Finally, though I believe speech-restricting injunctions are
dangerous enough to warrant strict scrutiny even when they
are not technically content based, I think the injunction in
the present case was content based (indeed, viewpoint based)
to boot. The Court claims that it was directed, not at those
who spoke certain things (antiabortion sentiments), but at
those who did certain things (violated the earlier injunction).
If that were true, then the injunction's residual coverage of
"all persons acting in concert or participation with [the
named individuals and organizations], or on their behalf,"
would not include those who merely entertained the same
beliefs and wished to express the same views as the named
defendants. But the construction given to the injunction by
the issuing judge, which is entitled to great weight, cf. For-
syth County v. Nationalist Movement, 505 U. S. 123, 132-133
(1992); NLRB v. Donnelly Garment Co., 330 U. S. 219, 227
(1947), is to the contrary: All those who wish to express the
same views as the named defendants are deemed to be "act-
ing in concert or participation." Following issuance of the
amended injunction, a number of persons were arrested for
walking within the 36-foot speech-free zone. At an April 12,
1993, hearing before the trial judge who issued the injunc-
tion, the following exchanges occurred:
Mr. Lacy: "I was wondering how we can — why we were
arrested and confined as being in concert with these peo-
ple that we don't know, when other people weren't, that
were in that same buffer zone, and it was kind of selec-
tive as to who was picked and who was arrested and
who was obtained for the same buffer zone in the same
public injunction."
The Court: "Mr. Lacy, I understand that those on the
other side of the issue [abortion-rights supporters] were
also in the area. If you are referring to them, the In-
junction did not pertain to those on the other side of the
796 MADSEN u WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
issue, because the word in concert with means in con-
cert with those who had taken a certain position in re-
spect to the clinic j adverse to the clinic. If you are say-
ing that is the selective basis that the pro-choice were
not arrested when pro-life was arrested, that's the basis
of that selection. . . ." Tr. 104-105 (Appearance Hear-
ings Held Before Judge McGregor, Eighteenth Judicial
Circuit, Seminole County, Florida (emphasis added)).
And:
John Doe No. 16: "This was the first time that I was in
this area myself and I had not attempted to block an
entrance to a clinic in that town or anywhere else in the
State of Florida in the last year or ever.
"I also understand that the reason why I was arrested
was because I acted in concert with those who were
demonstrating pro-life. I guess the question that Fm
asking is were the beliefs in ideologies of the people that
were present, were those taken into consideration when
we were arrested?
". . . When you issued the Injunction did you deter-
mine that it would only apply to — that it would apply
only to people that were demonstrating that were
pro-life?"
The Court: "In effect, yes." Id., at 113-116 (emphasis
added).
And finally:
John Doe No. 31: ". . . How did the police determine that
I was acting in concert with some organization that was
named on this injunction? I again am a person who
haven't seen this injunction. So how did the police de-
termine that I was acting in concert?"
The Court: "They observed your activities and deter-
mined in their minds whether or not what you were
Cite as: 512 U. S. 753 (1994) 797
Opinion of SCALIA, J.
doing was in concert with the — / gather the pro-life
position of the other, of the named Defendants." Id.,
at 148 (emphasis added).
These colloquies leave no doubt that the revised injunction
here is tailored to restrain persons distinguished, not by pro-
scribable conduct, but by proscribable views.2
B
I have discussed, in the prior subsection, the policy rea-
sons for giving speech-restricting injunctions, even content-
neutral ones, strict scrutiny. There are reasons of prece-
dent as well, which are essentially ignored by the Court.
To begin with, an injunction against speech is the very
prototype of the greatest threat to First Amendment values,
the prior restraint. As THE CHIEF JUSTICE wrote for the
Court last Term: "The term prior restraint is used "to de-
scribe administrative and judicial orders forbidding certain
communications when issued in advance of the time that such
communications are to occur/ . . . [P]ermanent injunctions,
i. e., — court orders that actually forbid speech activities — are
classic examples of prior restraints." Alexander v. United
States, 509 U. S. 544, 550 (1993) (quoting M. Nimmer, Nim-
mer on Freedom of Speech §4.03, p. 4-14 (1984) (emphasis
added in Alexander))* See also 509 U. S., at 572 ("[T]he
2 JUSTICE SOUTEE seeks to contradict this, saying that "the trial judge
made reasonably clear that the issue of who was acting 'in concert' with
the named defendants was , . . not to be decided on the basis of protesters*
viewpoints. See Tr. 40, 43, 93, 115, 119-120 (Apr. 12, 1993, Hearing)."
Ante, at 776-777, The only way to respond to this scattershot assertion
is to refer the reader to the cited pages, plus one more (page 116) which
clarifies what might have been ambiguous on page 115. These pages are
reproduced verbatim in the Appendix to this opinion. As the reader will
observe, they do not remotely support JUSTICE SOUTER'S assertion that
the injunction does not distinguish on the basis of viewpoint.
8 This statement should be compared with today's opinion, which says,
ante, at 763, n. 2, that injunctions are not prior restraints (or at least not
the nasty kind) if they only restrain speech in a certain area, or if the
798 MADSEN u WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
[prior restraint] doctrine . . . encompasses injunctive systems
which threaten or bar future speech based on some past in-
fraction") (KENNEDY, J., dissenting). We have said that
a "prior restraint on expression comes to this Court with
a 'heavy presumption' against its constitutional validity,"
Organization for a Better Austin v. Keefe, 402 U. S. 415,
419 (1971) (quoting Carroll v. President and Comm'rs of
Princess Anne, 393 U. S. 175, 181 (1968)), and have repeat-
edly struck down speech-restricting injunctions. See, e. g.,
Youngdahl v. Rainfair, Inc., 355 US. 131 (1957); Keefe,
supra; New York Times Co. v. United States, 403 U. S. 713
(1971); Nebraska Press Assn. v. Stuart, 427 U. S. 539 (1976);
National Socialist Party of America v. Skokie, 432 U. S. 43
(1977); Vance v. Universal Amusement Co., 445 U. S. 308
(1980) (statute authorizing injunctions); CBS Inc. v. Davis,
510 U. S. 1315 (1994) (BiACKMUN, J., in chambers) (setting
aside state-court preliminary injunction against a scheduled
broadcast).
At oral argument neither respondents nor the Solicitor
General, appearing as amicus for respondents, could identify
a single speech-injunction case applying mere intermediate
scrutiny (which differs little if at all from the Court's
intermediate-intermediate scrutiny). We have, in our
speech-injunction cases, affirmed both requirements that
characterize strict scrutiny: compelling public need and sur-
gical precision of restraint. Even when (unlike in the pres-
ent case) the First Amendment activity is intermixed with
violent conduct, " 'precision of regulation' is demanded."
NAACP v. Claiborne Hardware Co., 458 U. S. 886, 916 (1982)
(quoting NAACP v. Button, 371 U. S. 415, 438 (1963)). In
Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U. S.
287 (1941), we upheld an injunction prohibiting peaceful pick-
eting, but only because the picketing had been accompanied
by 50 instances of window smashing, bombings, stench
basis for their issuance is not content but prior unlawful conduct. This
distinction has no antecedent in our cases.
Cite as: 512 U. S. 753 (1994) 799
Opinion of SCALIA, J.
bombings, destruction of trucks, beatings of drivers, arson,
and armed violence. We noted that the "picketing . . . was
set in a background of violence/' id., at 294, which was "nei-
ther episodic nor isolated," id., at 295, and we allowed the
ban on picketing "to prevent future coercion," id., at 296, as
part of a state court's power "to deal with coercion due to
extensive violence," id., at 299. We expressly distinguished
the case from those in which there was no "[e]ntanglement
with violence." Id., at 297. In Youngdahl v. Rainfair, Inc.,
supra, we refused to allow a blanket ban on picketing when,
even though there had been scattered violence, it could not
be shown that "a pattern of violence was established which
would inevitably reappear in the event picketing were later
resumed." Id., at 139.
The utter lack of support for the Court's test in our juris-
prudence is demonstrated by the two cases the opinion relies
upon. For the proposition that a speech restriction is valid
when it "burden[s] no more speech than necessary to accom-
plish a significant government interest," the Court cites
NAACP v. Claiborne Hardware Co., supra, and Carroll v.
President and Comm'rs of Princess Anne, supra, at 184.
But as I shall demonstrate in some detail below, Claiborne
applied a much more stringent test; and the very text of
Carroll contradicts the Court. In the passage cited, Carroll
says this: "An order issued in the area of First Amendment
rights must be couched in the narrowest terms that will ac-
complish the pin-pointed objective permitted by constitu-
tional mandate and the essential needs of the public order."
393 U. S., at 183. That, of course, is strict scrutiny; and it
does not remotely resemble the Court's new proposal, for
which it is cited as precedential support. "Significant gov-
ernment interestfs]" (referred to in the Court's test) are gen-
eral, innumerable, and omnipresent — at least one of them
will be implicated by any activity set in a public forum. "Es-
sential needs of the public order," on the other hand, are
factors of exceptional application. And that an injunction
800 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
"burden no more than necessary" is not nearly as demanding
as the requirement that it be couched in the "narrowest
terms that will accomplish [a] pin-pointed objective/' That
the Court should cite this case as its principal authority is
an admission that what it announces rests upon no precedent
at all.
Ill
A
I turn now from the Court's selection of a constitutional
test to its actual application of that test to the facts of the
present case. Before doing that, however, it will be help-
ful— in order to demonstrate how far the Court has departed
from past practice — to consider how we proceeded in a rela-
tively recent case that did not involve the disfavored class of
abortion protesters. NAACP v. Claiborne Hardware Co.,
458 U. S. 886 (1982), involved, like this case, protest demon-
strations against private citizens mingling political speech
with (what I will assume for the time being existed here)
significant illegal behavior.4
Writing for the Court, JUSTICE STEVENS summarized the
events giving rise to the Claiborne litigation (id., at 898-
906): A local chapter of the NAACP, rebuffed by public offi-
cials of Port Gibson and Claiborne County in its request for
redress of various forms of racial discrimination, began a
boycott of local businesses. During the boycott, a young
black man was shot and killed in an encounter with Port
Gibson police and "sporadic acts of violence ensued." Id., at
902. The following day, boycott leader Charles Evers told a
group that boycott violators would be disciplined by their
own people and warned that the sheriff "could not sleep with
boycott violators at night/' Ibid. He stated at a second
4 Claiborne Hardware involved both monetary damages and an injunc-
tion, but that is of no consequence for purposes of the point I am making
here: that we have been careful to insulate all elements of speech not
infected with illegality.
Cite as: 512 IL S. 763 (1994) 801
Opinion of SCALIA, J.
gathering that " '[i]f we catch any of you going in any of them
racist stores, we're gonna break your damn neck.'" Ibid.
In connection with the boycott, there were marches and pick-
eting (often by small children). "Store watchers" were
posted outside boycotted stores to identify those who traded,
and their names were read aloud at meetings of the Clai-
borne County NAACP and published in a mimeographed
paper. The chancellor found that those persons were
branded traitors, called demeaning names, and socially ostra-
cized. Some had shots fired at their houses, a brick was
thrown through a windshield, and a garden damaged. Other
evidence showed that persons refusing to observe the boy-
cott were beaten, robbed, and publicly humiliated (by
spanking).
The merchants brought suit against two groups involved in
organizing the boycott and numerous individuals. The trial
court found tort violations, violations of a state statute pro-
hibiting secondary boycotts, and state antitrust violations.
It issued a broad permanent injunction against the boycott-
ers, enjoining them from stationing "store watchers" at the
plaintiffs' business premises; from persuading any person to
withhold patronage; from using demeaning and obscene lan-
guage to or about any person because of his patronage; from
picketing or patrolling the premises of any of the respond-
ents; and from using violence against any person or inflicting
damage upon any real or personal property. Id., at 893.
The Mississippi Supreme Court upheld the assessment of lia-
bility and the injunction, but solely on the tort theory, saying
that "*[i]f any of these factors — force, violence, or threats —
is present, then the boycott is illegal regardless of whether it
is primary, secondary, economical, political, social or other/"
Id., Sit 895.
The legal analysis of this Court proceeded along the
following lines:
"[T]he boycott . . . took many forms. [It] was
launched at a meeting of the local branch of the NAACP.
802 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
[It was] attended by several hundred persons. Its ac-
knowledged purpose was to secure compliance . . . with
a lengthy list of demands for racial equality and racial
justice. The boycott was supported by speeches and
nonviolent picketing. Participants repeatedly encour-
aged others to join its cause.
"Each of these elements of the boycott is a form of
speech or conduct that is ordinarily entitled to protec-
tion under the First and Fourteenth Amendments. . . .
'[T]he practice of persons sharing common views band-
ing together to achieve a common end is deeply embed-
ded in the American political process.' We recognize
that 'by collective effort individuals can make their
views known, when, individually, their voices would be
faint or lost/" Id., at 907-908 (quoting Citizens
Against Rent Control/Coalition for Fair Housing v.
Berkeley, 454 U. S. 290, 294 (1981)).
We went on to say that "[t]he right to associate does not lose
all constitutional protection merely because some members
of the group may have participated in conduct or advocated
doctrine that itself is not protected," 458 U. S., at 908, and
held that the nonviolent elements of the protesters' activities
were entitled to the protection of the First Amendment, id.,
at 915.
Because we recognized that the boycott involved elements
of protected First Amendment speech and other elements
not so protected, we took upon ourselves a highly particu-
larized burden of review, recognizing a "special obligation
on this Court to examine critically the basis on which lia-
bility was imposed." Ibid. "The First Amendment," we
noted, "does not protect violence," but when conduct sanc-
tionable by tort liability "occurs in the context of constitu-
tionally protected activity . . . 'precision of regulation' is de-
manded." Id., at 916 (quoting NAACP v. Button, 371 U. S.,
at 438). Then, criticizing the Mississippi Supreme Court for
"broadly assert[ing]— without differentiation— that [i]ntimi~
Cite as: 512 U. S. 753 (1994) 803
Opinion of SCALIA, J.
dation, threats, social ostracism, vilification, and traduction
were devices used by the defendants to effectuate the boy-
cott," 458 U. S., at 921 (internal quotation marks omitted),
we carefully examined the record for factual support of the
findings of liability. While affirming that a "judgment tai-
lored to the consequences of [individuals'] unlawful conduct
may be sustained," we said that "mere association with [a]
group — absent a specific intent to further an unlawful aim
embraced by that group — is an insufficient predicate for lia-
bility." Id., at 925-926. We said in conclusion that any
characterization of a political protest movement as a violent
conspiracy "must be supported by findings that adequately
disclose the evidentiary basis for concluding that specific par-
ties agreed to use unlawful means, that carefully identify the
impact of such unlawful conduct, and that recognize the im-
portance of avoiding the imposition of punishment for consti-
tutionally protected activity." Id., at 933-934. Because
this careful procedure had not been followed by the Missis-
sippi courts, we set aside the entire judgment, including the
injunction. Id, at 924, n. 67, 934.
B
I turn now to the Court's performance in the present case.
I am content to evaluate it under the lax (intermediate-
intermediate scrutiny) standard that the Court has adopted,
because even by that distorted light it is inadequate.
The first step under the Court's standard would be, one
should think, to identify the "significant government inter-
est" that justifies the portions of the injunction it upheld,
namely, the enjoining of speech in the 36-foot zone, and the
making (during certain times) of " 'sounds . . . within earshot
of the patients inside the [c]linic/" Ante, at 772. At one
point in its opinion, the Court identifies a number of govern-
ment interests: the "interest in protecting a woman's free-
dom to seek lawful medical or counseling services," the "in-
terest in ensuring the public safety and order, in promoting
804 MADSEN u WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
the free flow of traffic on public streets and sidewalks, and
in protecting the property rights of all its citizens," the "in-
terest in ... medical privacy," and the interest in "the psy-
chological [and] physical well-being of the patient held 'cap-
tive' by medical circumstance," Ante, at 767, 768. The
Court says, ante, at 768, that "these governmental interests
[are] quite sufficient to justify an appropriately tailored in-
junction to protect them." Unless, however, the Court has
destroyed even more First Amendment law than I fear, this
last statement must be read in conjunction with the Court's
earlier acknowledgment that "[u]nder general equity princi-
ples, an injunction issues only if there is a showing that the
defendant has violated, or imminently will violate, some pro-
vision of statutory or common law, and that there is a "cogni-
zable danger of recurrent violation.'" Ante, at 765, n. 3
(quoting United States v. W. T. Grant Co., 345 U. S. 629, 633
(1953)). It is too much to believe, even of today's opinion,
that it approves issuance of an injunction against speech "to
promote the free flow of traffic" even when there has been
found no violation, or threatened violation, of a law relat-
ing to that interest
Assuming then that the "significant interests" the Court
mentioned must in fact be significant enough to be protected
by state law (a concept that includes a prior court order),
which law has been, or is about to be, violated, the question
arises: What state law is involved here? The only one even
mentioned is the original September 30, 1992, injunction,5
which had been issued (quite rightly, in my judgment) in re-
6 JUSTICE SOUTEE points out that "petitioners themselves acknowledge
that the governmental interests in protection of public safety and order,
of the free flow of traffic, and of property rights are reflected in Florida
law. See Brief for Petitioners 17, and n. 7 (citing [various Florida stat-
utes])." Ante, at 777. This is true but quite irrelevant. As the preced-
ing sentence of text shows, we are concerned here not with state laws in
general, but with state laws that these respondents had been found to
have violated. There is no finding of violation of any of these cited Flor-
ida statutes.
Cite as: 512 U. S. 753 (1994) 805
Opinion of SCALIA, J.
sponse to threats by the originally named parties (including
petitioners here) that they would " '[plhysically close down
abortion mills/" "bloc[k] access to clinics/' "ignore the law of
the State/' and "shut down a clinic." Permanent Injunction
Findings of Fact 1f1f2r 5, 7, 8, App. 6-7. That original in-
junction prohibited petitioners from:
"1) trespassing on, sitting in, blocking, impeding or
obstructing ingress into or egress from any facility at
which abortions are performed in Brevard and Seminole
County Florida;
"2) physically abusing persons entering, leaving, work-
ing or using any services of any facility at which abor-
tions are performed in Brevard and Seminole County,
Florida; and
"3) attempting or directing others to take any of the
actions described in Paragraphs 1 and 2 above/' Id.,
at 9.
According to the Court, the state court imposed the later
injunction's "restrictions on petitionerfs'] . . . antiabortion
message because they repeatedly violated the court's origi-
nal order/' Ante, at 763. Surprisingly, the Court accepts
this reason as valid, without asking whether the court's find-
ings of fact support it — whether, that is, the acts of which
petitioners stood convicted were violations of the original
injunction.
The Court simply takes this on faith — even though viola-
tion of the original injunction is an essential part of the rea-
soning whereby it approves portions of the amended injunc-
tion, even though petitioners denied any violation of the
original injunction, even though the utter lack of proper
basis for the other challenged portions of the injunction
hardly inspires confidence that the lower courts knew what
they were doing, and even though close examination of the
factual basis for essential conclusions is the usual practice in
First Amendment cases, see Claiborne Hardware, 458 U. S.,
806 MADSEN u WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
at 915-916, n. 50; Edwards v. South Carolina, 372 U. S. 229,
235 (1963); Fiske v. Kansas, 274 U. S. 380, 385-386 (1927);
see also Bose Corp. v. Consumers Union of United States,
Inc., 466 U. S. 485, 517 (1984) (REHNQUIST, J., dissenting).
Let us proceed, then, to the inquiry the Court neglected. In
the amended permanent injunction the trial court found that
"despite the injunction of September 30, 1992, there has
been interference with ingress to the petitioners' facility
.... [in] the form of persons on the paved portions of
Dixie Way, some standing without any obvious relation-
ship to others; some moving about, again without any
obvious relationship to others; some holding signs, some
not; some approaching, apparently trying to communi-
cate with the occupants of motor vehicles moving on the
paved surface; some marching in a circular picket line
that traversed the entrance driveways to the two park-
ing lots of the petitioners and the short section of side-
walk joining the two parking lots and then entering the
paved portion of the north lane of Dixie Way and return-
ing in the opposite direction. . . . Other persons would
be standing, kneeling and sitting on the unpaved shoul-
ders of the public right-of-way. As vehicular traffic ap-
proached the area it would, in response to the conges-
tion, slow down. If the destination of such traffic was
either of the two parking lots of the petitioners, such
traffic slowed even more, sometimes having to momen-
tarily hesitate or stop until persons in the driveway
moved out of the way." Amended Permanent Injunc-
tion 1f A.
"As traffic slowed on Dixie Way and began its turn
into the clinic's driveway, the vehicle would be ap-
proached by persons designated by the respondents as
sidewalk counselors attempting to get the attention of
the vehicles' occupants to give them anti-abortion litera-
ture and to urge them not to use the clinic's services.
Such so-called sidewalk counselors were assisted in ac-
Cite as: 512 U. S. 753 (1994) 807
Opinion of SCALJA, J.
complishing their approach to the vehicle by the hesita-
tion or momentary stopping caused by the time needed
for the picket line to open up before the vehicle could
enter the parking lot." Id., If E.
"The . . . staff physician testified that on one occasion
while he was attempting to enter the parking lot of the
clinic, he had to stop his vehicle and remained stopped
while respondent, Cadle, and others took their time to
get out of the way .... This physician also testified
that he witnessed the demonstrators running along side
of and in front of patients' vehicles, pushing pamphlets
in car windows to persons who had not indicated any
interest in such literature. . . ." Id., 1fl (emphasis
added).
On the basis of these findings Judge McGregor concluded
that "the actions of the respondents and those in concert
with them in the street and driveway approaches to the clinic
of the plaintiffs continue to impede and obstruct both staff
and patients from entering the clinic. The paved surfaces
of the public right-of-way must be kept open for the free flow
of traffic." Id., Conclusions, 1[A.6
These are the only findings and conclusions of the court
that could conceivably be considered to relate to a violation
of the original injunction. They all concern behavior by the
protesters causing traffic on the street in front of the abor-
tion clinic to slow down, and causing vehicles crossing the
6 In my subsequent discussion, I shall give the Florida trial court the
benefit of the doubt, and assume that the phrase "continue to impede and
obstruct" expresses the conclusion that petitioners had violated those pro-
visions of the original injunction which prohibited "impeding or obstruct-
ing." It is not entirely clear, however, that the Florida court was in fact
asserting a violation of the original injunction. As far as the record
shows, it assessed no penalty for any such violation; and "impeding
and obstructing" can embrace many different things, not all of which (as
I shall discuss presently) come within the meaning of the original
injunction.
808 MADSEN u WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
pedestrian right-of-way, between the street and the clinic's
parking lot, to slow down or even, occasionally, to stop mo-
mentarily while pedestrians got out of the way. As far as
appears from the court's findings, all of these results were
produced, not by anyone intentionally seeking to block on-
coming traffic, but as the incidental effect of persons engaged
in the activities of walking a picket line and leafletting on
public property in front of the clinic. There is no factual
finding that petitioners engaged in any intentional or pur-
poseful obstruction.
Now let us compare these activities with the earlier in-
junction, violation of which is the asserted justification for
the speech-free zone. Walking the return leg of the picket
line on the paved portion of Dixie Way (instead of on the
sidewalk), and congregating on the unpaved portion of that
street, may, for all we know, violate some municipal ordi-
nance (though that was not alleged, and the municipal police
evidently did not seek to prevent it); but it assuredly did not
violate the earlier injunction, which made no mention of such
a prohibition. Causing the traffic along Dixie Way to slow
down "in response to the congestion" is also irrelevant; the
injunction said nothing about slowing down traffic on public
rights-of-way. It prohibited the doing (or urging) of only
three things: (1) "physically abusing persons entering, leav-
ing, working or using any services" of the abortion clinic
(there is no allegation of that); (2) "trespassing on [or] sitting
in" the abortion clinic (there is no allegation of that); and
(3) "blocking, impeding or obstructing ingress into or egress
from" the abortion clinic.
Only the last of these has any conceivable application here,
and it seems to me that it must reasonably be read to refer
to intentionally blocking, impeding, or obstructing, and not
to such temporary obstruction as may be the normal and
incidental consequence of other protest activity. That is ob-
vious, first of all, from the context in which the original in-
junction was issued — as a response to petitioners' threatened
Cite as: 512 U. S. 753 (1994) 809
Opinion of SCALIA, J.
actions of trespass and blockade, i. e., the physical shutting
down of the local clinics. Secondly, if that narrow meaning
of intentional blockade, impediment, or obstruction was not
intended, and if it covered everything up to and including the
incidental and "momentary" stopping of entering vehicles by
persons leafletting and picketing, the original injunction
would have failed the axiomatic requirement that its terms
be drawn with precision. See, e. g., Milk Wagon Drivers,
312 U. S., at 296; 1 D. Dobbs, Law of Remedies §2.8(7), p. 219
(2d ed. 1993); 7 J. Moore, J. Lucas, & K. Sinclair, Moore's
Federal Practice f 65.11 (2d ed. 1994); cf. Fed. Rule Civ. Proc.
65(d) ("Every order granting an injunction . . . shall be spe-
cific in terms [and] shall describe in reasonable detail . . .
the act or acts sought to be restrained")- And finally, if the
original injunction did not have that narrow meaning it
would assuredly have been unconstitutional, since it would
have prevented speech-related activities that were, insofar
as this record shows, neither criminally or civilly unlawful
nor inextricably intertwined with unlawful conduct. See
Milk Wagon Drivers, supra, at 292, 297; Carroll, 393 U. S.,
at 183-184.
If the original injunction is read as it must be, there is
nothing in the trial court's findings to suggest that it was
violated. The Court today speaks of "the failure of the first
injunction to protect access." Ante, at 769. But the first in-
junction did not broadly "protect access." It forbade partic-
ular acts that impeded access, to wit, intentionally "blocking,
impeding or obstructing." The trial court's findings identify
none of these acts, but only a mild interference with access
that is the incidental by-product of leafletting and picketing.
There was no sitting down, no linking of arms, no packing
en masse in the driveway; the most that can be alleged (and
the trial court did not even make this a finding) is that on
one occasion protesters "took their time to get out of the
way." If that is enough to support this one-man proscrip-
tion of free speech, the First Amendment is in grave peril
810 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
I almost forgot to address the facts showing prior violation
of law (including judicial order) with respect to the other
portion of the injunction the Court upholds: the no-noise-
within-earshot-of-patients provision. That is perhaps be-
cause, amazingly, neither the Florida courts nor this Court
makes the slightest attempt to link that provision to prior
violations of law. The relevant portion of the Court's opin-
ion, Part II-B, simply reasons that hospital patients should
not have to be bothered with noise, from political protests or
anything else (which is certainly true), and that therefore
the noise restrictions could be imposed by injunction (which
is certainly false). Since such a law is reasonable, in other
words, it can be enacted by a single man to bind only a single
class of social protesters. The pro-abortion demonstrators
who were often making (if respondents' videotape is accu-
rate) more noise than the petitioners, can continue to shout
their chants at their opponents exiled across the street to
their hearts' content. The Court says that "[w]e have up-
held similar noise restrictions in the past," ante, at 772, cit-
ing Grayned v. City of Rockford, 408 U. S. 104 (1972). But
Grayned involved an ordinance, and not an injunction; it
applied to everyone. The only other authority the Court in-
vokes is NLRB v. Baptist Hospital, Inc., 442 U. S. 773 (1979),
which it describes as "evaluating another injunction involv-
ing a medical facility/' ante, at 772, but which evaluated no
such thing. Baptist Hospital, like Grayned, involved a re-
striction of general application, adopted by the hospital it-
self— and the case in any event dealt not with whether the
government had violated the First Amendment by restrict-
ing noise, but with whether the hospital had violated the
National Labor Relations Act by restricting solicitation (in-
cluding solicitation of union membership).
Perhaps there is a local ordinance in Melbourne, Florida,
prohibiting loud noise in the vicinity of hospitals and abor-
tion clinics. Or perhaps even a Florida common-law prohibi-
tion applies, rendering such noisemaking tortious. But the
Cite as: 512 U. S. 753 (1994) 811
Opinion of SCALIA, J.
record in this case shows (and, alas, the Court's opinion today
demands) neither indication of the existence of any such law
nor a finding that it had been violated. The fact that such
a law would be reasonable is enough, according to the Court,
to justify a single judge in imposing it upon these protesters
alone. The First Amendment (and even the common law of
injunctions, see the Court's own footnote 3) reels in disbelief.
The Court does not even attempt a response to the point
I have made in this section, insofar as the injunction against
noise is concerned. That portion of its opinion, ante, at 772-
773, does not even allege any violation of the prior injunction
to support this judge-crafted abridgment of speech. With
respect to the 36-foot speech-free zone, the Court attempts
a response, which displays either a misunderstanding of the
point I have made or an effort to recast it into an answerable
one. My point does not rely, as the Court's response sug-
gests, ante, at 770, upon my earlier description of the video-
tape. That was set forth just for context, to show the
reader what suppression of normal and peaceful social pro-
test is afoot here. Nor is it relevant to my point that "peti-
tioners themselves studiously refrained from challenging the
factual basis for the injunction," ibid. I accept the facts as
the Florida court found them; I deny that those facts support
its conclusion (set forth as such in a separate portion of its
opinion, as quoted above) that the original injunction had
been violated. The Court concludes its response as follows:
"We must therefore judge this case on the assumption
that the evidence and testimony presented to the state
court supported its findings that the presence of protest-
ers standing, marching, and demonstrating near the clin-
ic's entrance interfered with ingress to and egress from
the clinic despite the issuance of the earlier injunction."
Ante, at 771.
But a finding that they "interfered with ingress and egress
. . . despite the . . . earlier injunction" is not enough. The
812 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
earlier injunction did not, and could not, prohibit all "inter-
ference"— for example, the minor interference incidentally
produced by lawful picketing and leafletting. What the
Court needs, and cannot come up with, is a finding that the
petitioners interfered in a manner prohibited by the earlier
injunction. A conclusion that they "block[edj, imped[ed] or
obstructed] ingress ... or egress" (the terminology of the
original injunction) within the only fair, and indeed the only
permissible, meaning of that phrase cannot be supported by
the facts found.
To sum up: The interests assertedly protected by the sup-
plementary injunction did not include any interest whose im-
pairment was a violation of Florida law or of a Florida court
injunction. Unless the Court intends today to overturn
long-settled jurisprudence, that means that the interests can-
not possibly qualify as "significant interests" under the
Court's new standard.
C
Finally, I turn to the Court's application of the second part
of its test: whether the provisions of the injunction "burden
no more speech than necessary" to serve the significant in-
terest protected.
This test seems to me amply and obviously satisfied with
regard to the noise restriction that the Court approves: It is
only such noise as would reach the patients in the abortion
clinic that is forbidden — and not even at all times, but only
during certain fixed hours and "during surgical procedures
and recovery periods." (The latter limitation may raise
vagueness and notice problems, but that does not concern us
here. Moreover, as I have noted earlier, the noise restric-
tion is invalid on other grounds.) With regard to the 36-foot
speech-free zone, however, it seems to me just as obvious
that the test which the Court sets for itself has not been met.
Assuming a "significant state interest" of the sort cogniza-
ble for injunction purposes (1 e., one protected by a law that
has been or is threatened to be violated) in both (1) keeping
Cite as: 512 U. S. 753 (1994) 813
Opinion of SCALIA, J.
pedestrians off the paved portion of Dixie Way, and (2) en-
abling cars to cross the public sidewalk at the clinic's drive-
ways without having to slow down or come to even a "mo-
mentary" stop, there are surely a number of ways to protect
those interests short of banishing the entire protest demon-
stration from the 36-foot zone. For starters, the Court could
have (for the first time) ordered the demonstrators to stay
out of the street (the original injunction did not remotely
require that). It could have limited the number of demon-
strators permitted on the clinic side of Dixie Way. And it
could have forbidden the pickets to walk on the driveways.
The Court's only response to these options is that "[t]he state
court was convinced that [they would not work] in view of
the failure of the first injunction to protect access/' Ante,
at 769. But must we accept that conclusion as valid — when
the original injunction contained no command (or at the very
least no clear command) that had been disobeyed, and con-
tained nothing even related to staying out of the street? If
the "burden no more speech than necessary" requirement
can be avoided by merely opining that (for some reason) no
lesser restriction than this one will be obeyed, it is not much
of a requirement at all.
But I need not engage in such precise analysis, since the
Court itself admits that the requirement is not to be taken
seriously. "The need for a complete buffer zone," it says,
"may be debatable, but some deference must be given to the
state court's familiarity with the facts and the background of
the dispute between the parties even under our heightened
review." Ante, at 769-770 (emphasis added). In applica-
tion, in other words, the "burden no more speech than is
necessary" test has become an "arguably burden no more
speech than is necessary" test. This renders the Court's
intermediate-intermediate scrutiny not only no more strin-
gent than plain old intermediate scrutiny, but considerably
less stringent.
814 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Opinion of SCALIA, J.
Another disturbing part of the Court's analysis is its reli-
ance upon the fact that "witnesses . . . conceded that the
buffer zone was narrow enough to place petitioners at a dis-
tance of no greater than 10 to 12 feet from cars approaching
and leaving the clinic," and that "[p]rotesters standing across
the narrow street from the clinic can still be seen and heard
from the clinic parking lots." Ante, at 770. This consid-
eration of whether the injunction leaves open effective, al-
ternative channels of communication is classic, time-place-
and-manner-regulation, "intermediate scrutiny" review,
see Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989).
And in that context it is reasonable. But since in this case
a general regulation establishing time, place, and manner re-
strictions for all citizens is not at issue, these petitioners
have a right, not merely to demonstrate and protest at some
reasonably effective place, but to demonstrate and protest
where they want to and where all other Floridians can,
namely, right there on the public sidewalk in front of the
clinic. "[O]ne is not to have the exercise of his liberty of
expression in appropriate places abridged on the plea that it
may be exercised in some other place." Schneider v. State
(Town of Irvington), 308 U. S. 147, 163 (1939). "Whether
petitioner might have used some other [forum] ... is of no
consequence. . . . Even if [another] forum had been available,
that fact alone would not justify an otherwise impermissible
prior restraint." Southeastern Promotions, Ltd, v. Conrad,
420 U. S. 546, 556 (1975).
In his dissent in Korematsu v. United States, 323 U. S. 214
(1944), the case in which this Court permitted the wartime
military internment of Japanese- Americans, Justice Jackson
wrote the following:
"A military order, however unconstitutional, is not apt
to last longer than the military emergency, . . . But once
a judicial opinion . . . rationalizes the Constitution to
Cite as: 512 U. S. 753 (1994) 815
Appendix to opinion of SCALIA, J.
show that the Constitution sanctions such an order, the
Court for all time has validated the principle of racial
discrimination in criminal procedure and of transplant-
ing American citizens. The principle then lies about
like a loaded weapon ready for the hand of any authority
that can bring forward a plausible claim of an urgent
need/' Id., at 246.
What was true of a misguided military order is true of a
misguided trial-court injunction. And the Court has left a
powerful loaded weapon lying about today.
What we have decided seems to be, and will be reported
by the media as, an abortion case. But it will go down in
the lawbooks, it will be cited, as a free-speech injunction
case — and the damage its novel principles produce will be
considerable. The proposition that injunctions against
speech are subject to a standard indistinguishable from (un-
less perhaps more lenient in its application than) the "inter-
mediate scrutiny" standard we have used for "time, place,
and manner" legislative restrictions; the notion that injunc-
tions against speech need not be closely tied to any violation
of law, but may simply implement sound social policy; and
the practice of accepting trial-court conclusions permitting
injunctions without considering whether those conclusions
are supported by any findings of fact — these latest by-
products of our abortion jurisprudence ought to give all
friends of liberty great concern.
For these reasons, I dissent from that portion of the judg-
ment upholding parts of the injunction.
APPENDIX TO OPINION OF JUSTICE SCALIA
Portions of April 12, 1993, Appearance Hearings Held Be-
fore Judge McGregor, Eighteenth Judicial Circuit, Seminole
County, Florida:
Page 40:
JANE DOE NO. 6: "Yes, sir. When I heard this injunc-
tion, everything in there, as an American — "
816 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Appendix to opinion of SCALIA, J.
THE COURT: "I'm Sorry. I'm not the judge trying it.
Those are matters that perhaps you'll want to present at
trial."
JANE DOE NO. 6: "I do have a question, too. Fm con-
fused as to why the people who were blockading the clinic
who had pro-choice signs were not arrested along with me.
They — it appeared to me they were violating the same in-
junction I was, you know — "
THE COURT: "The Injunction is directed only against
certain named Defendants, certain named organizations and
those acting in concert with them. Presumably, as you say,
the other side would not have been acting in concert with
the named Defendants."
JANE DOE NO. 6: "But I was in concert with nobody. I
was just an American citizen, defending the right to assem-
ble and to demonstrate."
THE COURT: "Again, perhaps, that would be a matter of
defense that you would present at the time of trial."
JANE DOE NO. 6: "So the Injunction only "
Page 43:
JANE DOE NO. 6: "But I was not in concert with
anybody."
THE COURT: "Again, I say that at the time of your trial,
perhaps, that would be a defensive matter. Although, I'm
told by the Melbourne Police Department that everyone was
put on notice that the thirty-six-foot area was a restricted
area and when — if you presumably had notice of that and
chose to enter, then, you chose to violate the Court's Injunc-
tion. That's why you were arrested."
JANE DOE NO. 6: "I don't mean this disrespectfully, but
does not the constitutional freedom to be on public sidewalk
and to—"
THE COURT: "There is nothing in the constitution that
says that anyone is entitled to walk on any sidewalk."
Cite as: 512 U. S. 753 (1994) 817
Appendix to opinion of SCALIA, J.
JANE DOE NO. 6: "But I have the right to demonstrate,
the right to assembly, the right to religion and its practice
and I was praying on the sidewalk. I don't understand—"
THE COURT: "And that will not be denied you, but it is
subject to regulation. The Court provided the south shoul-
der of Dixie Way as an area for that to be done."
Page 93:
MR. QUINTERO: "And who are these Defendants? I
have no idea."
THE COURT: "They're set out in the Injunction."
MR. QUINTERO: "Because I'm not working in conjunc-
tion with anybody. I don't know anything. I don't belong
to any group that is doing absolutely anything like this. I
am just a normal Christian that went to pray on the
sidewalk."
THE COURT: "Again, those may be defensive matters.
I'm saying that you should bring them up first with your
lawyer and then at the time of trial."
MR. QUINTERO: "Okay, I would like to formally request
to have this injunction so I can look at it while I'm incarcer-
ated and that I can make arrangements to talk to counsel
about it."
THE COURT: "Your lawyer knows how to obtain a copy.
Copies are available at, again, the branch courthouses in Mel-
bourne and Melbourne City Hall. Copies are available at
the Clerk's Office here in Seminole County."
MR. QUINTERO: "At this time I do not have a lawyer
and I see it very difficult for me to go to the Melbourne
Courthouse being incarcerated."
Page 115-116:
[JOHN DOE NO. 16]: ". . . do with the determination in
the Injunctive Order or in the arrest?"
THE COURT: "You know, I wasn't there. I don't know.
All I know is that the officer used his perceptions, his eyes,
his ears, took note of the activities that were going on and
818 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Appendix to opinion of SCALIA, J.
for reasons, you know, he believed that you were in concert
with those that had been enjoined and the Injunctive Order
is expanded to include those so that you were subject then
to the Injunction/'
JOHN DOE NO. 16: "When you issued the Injunctive
Court Order did you include what someone might believe
about abortion or about their right to assemble there, or let's
just say about abortion as a basis for arrest?"
THE COURT: "I considered all of the evidence before
me."
JOHN DOE NO. 16: "And would one of those things be,
would one of the reasons that I was arrested be because I
opposed abortion in that clinic?"
THE COURT: "No."
JOHN DOE NO. 16: "Okay. If I was to stand here, if I
was to testify that I did not oppose abortion would that make
any difference in my arrest?"
THE COURT: "You can't be unarrested. You have been
arrested."
JOHN DOE NO. 16: "What about being charged with
violating the Court Order?"
THE COURT: "It will be up to the prosecutor, the State
Attorney, to make a charge decision. And sometimes law-
yers in representing clients will go to a prosecutor in ad-
vance of his charge decision and ask that he, you know, con-
sider additional matters that might cause him to not make
such a charge decision. Those are matters lawyers best
know how to do."
JOHN DOE NO. 16: "When you issued the Injunction did
you determine that it would only apply to — that it would
apply only to people that were demonstrating that were
pro-life?"
THE COURT: "In effect, yes."
JOHN DOE NO. 16: "Okay, thank you."
THE COURT: "Any other questions?"
JOHN DOE NO. 16: "No."
Cite as: 512 U. S. 753 (1994) 819
Appendix to opinion of SCALIA, J.
THE COURT: "Thank you. Did we give him a court
date?
"John Doe Number Eighteen."
JOHN DOE NO. 18: "Were there any numbers "
Pages 119-120:
MR. MACLEAN: "Yes, please, Your Honor/'
THE COURT: "Okay. Court will then direct pre-trial
release officer to interview and provide the results of the
interview to Judge Eaton after 1:00 o'clock today and he will
consider that release. Do you wish to be considered for
court-appointed counsel?"
MR. MACLEAN: "No thank you."
THE COURT: "Do you have any questions?"
MR. MACLEAN: "Yes, please. Would you extend your
gracious offer to reduce the bond for myself also?"
THE COURT: "Surely. Reduce bond to a hundred
dollars."
THE CLERK: "Total?"
THE COURT: "Hmm?"
THE CLERK: "Total?"
THE COURT: "No. I can't deal with the—"
THE CLERK: "Eleven hundred?"
THE COURT: "Eleven hundred, yes."
MR. MACLEAN: "Respectfully, sir, where on my arrest
report does it allege that I was acting in concert with
anyone?"
THE COURT: "It is embodied in the phrase violation of
the Injunctive Court Order. But again, this is an arrest
report. It is not a formal charge. Presumably within the
formal charge there will be that reference, sir."
MR. MACLEAN: "I'm finished with questions, sir, but
may I make a statement which I promise you I won't — "
THE COURT: "I can't deal with the statement. In other
words, I've got a lot of people to see and the statement may
be defensive in nature and it is a matter that should be
brought to the trial of the matter."
820 MADSEN v. WOMEN'S HEALTH CENTER, INC.
Appendix to opinion of SCALIA, J.
MR. MACLEAN: "I only wish to thank the Melbourne
Police Department and the Sharpes Correctional facility and
the people here in Seminole for their gracious and profes-
sional treatment of us."
THE COURT: "Thank you in their behalf."
MR. MACLEAN: "Okay, sir."
THE COURT: "John Doe Number Eighteen. This is out
of order now."
THE CLERK: "Yes, sir."
THE COURT: "You've been designated as John Doe
Number Eighteen. Do you wish to maintain that designa-
tion for these proceedings?"
OCTOBER TERM, 1993 821
Syllabus
INTERNATIONAL UNION, UNITED MINE
WORKERS OF AMERICA, ET AL.
v. BAGWELL ET AL.
CERTIORARI TO THE SUPREME COURT OF VIRGINIA
No. 92-1625. Argued November 29, 1993— Decided June 30, 1994
A month after enjoining petitioners (collectively, the union) from conduct-
ing unlawful strike-related activities against certain mining companies,
a Virginia trial court held a contempt hearing, fined the union for its
disobedience, and announced that the union would be fined for any fu-
ture breach of the injunction. In subsequent contempt hearings, the
court levied against the union over $64 million in what it termed coer-
cive, civil fines, ordering most of the money to be paid to the Common-
wealth and the counties affected by the unlawful activities. After the
strike was settled, the court refused to vacate the fines owed to the
Commonwealth and counties, concluding that they were payable in ef-
fect to the public. Ultimately, it appointed respondent Bagwell to act
as Special Commissioner to collect the unpaid fines. The Virginia
Court of Appeals reversed and ordered that the fines be vacated. The
Virginia Supreme Court, reversing in its turn, rejected petitioners' con-
tention that the fines were criminal and could not be imposed absent a
criminal trial.
Held- The serious contempt fines imposed here were criminal and consti-
tutionally could be imposed only through a jury trial. Pp. 826-839.
(a) A criminal contempt fine is punitive and can be imposed only
through criminal proceedings, including the right to jury trial. A con-
tempt fine is considered civil and remedial if it either coerces a defend-
ant into compliance with a court order or compensates the complainant
for losses sustained. United States v. Mine Workers, 330 U. S. 258, 303-
304. Where a fine is not compensatory, it is civil only if the contemnor
has an opportunity to purge, such as with per diem fines and fixed,
suspended fines. Pp. 826-830.
(b) Most contempt sanctions share punitive and coercive characteris-
tics, and the fundamental question underlying the distinction between
civil and criminal contempts is what process is due for the imposition of
any particular contempt sanction. Direct contempts can be penalized
summarily in light of the court's substantial interest in maintaining
order and because the need for extensive factfinding and the likelihood
of an erroneous deprivation are reduced. Greater procedural protec-
tions are afforded for sanctions of indirect contempts. Certain indirect
822 MINE WORKERS v. BAGWELL
Syllabus
contempts are particularly appropriate for imposition through civil pro-
ceedings, including contempts impeding the court's ability to adjudicate
the proceedings before it and those contempts involving discrete, readily
ascertainable acts. For contempts of more complex injunctions, how-
ever, criminal procedures may be required. Pp. 830-834.
(c) The mere fact that the contempt fines here were announced in
advance did not render them civil. Criminal laws generally provide
notice of the sanction to be imposed, and the union's ability to avoid the
contempt fines was indistinguishable from the ability of any citizen to
avoid a criminal sanction. Other considerations confirm that the fines
challenged here are criminal. Neither the parties nor the Common-
wealth's courts have suggested that the fines are compensatory. The
union's sanctionable conduct did not occur in the court's presence or
otherwise implicate the core of the judicial contempt power, where
lesser protections may be appropriate. Nor did the union's contumacy
involve simple, affirmative acts, where the sanctions' force is primarily
coercive and elaborate factftnding is not required. Instead the court
levied fines for widespread, ongoing, out-of-court violations of a complex
injunction, effectively policing the union's compliance with an entire
code of conduct the court itself imposed. The contumacy lasted many
months and spanned several counties, and the fines assessed were seri-
ous. Under these circumstances, disinterested factfinding and even-
handed adjudication were essential, and the union was entitled to a
criminal jury trial Pp. 834-838.
244 Va. 463, 423 S. E. 2d 349, reversed.
BLACKMUN, J., delivered the opinion for a unanimous Court with respect
to Parts I, II-A, II-C, and III, and the opinion of the Court with respect
to Part II-B, in which STEVENS, O'CONNOR, SCALIA, KENNEDY, SOUTER,
and THOMAS, JJ., joined. SCALIA, J., filed a concurring opinion, post,
p. 839. GINSBURG, X, filed an opinion concurring in part and concurring
in the judgment, in which REHNQUIST, C. J., joined, post, p. 844.
Laurence Gold argued the cause for petitioners. With
him on the briefs were Robert H. Stropp, Jr., Walter Kamiat,
Andrew R Miller, Virginia A. Seitz, and David L. Shapiro.
John G. Roberts, Jr., argued the cause for respondents.
With him on the briefs were William B. Poff, Clinton S.
Morse, Frank K. Friedman, and David G. Leitch.
Deputy Solicitor General Bender argued the cause for the
United States urging affirmance. With him on the brief
Cite as: 512 U. S. 821 (1994) 823
Opinion of the Court
were Solicitor General Days, Assistant Attorney General
Hunger, Deputy Solicitor General Kneedler, and Miguel A.
Estrada. *
JUSTICE BLACKMUN delivered the opinion of the Court.
We are called upon once again to consider the distinction
between civil and criminal contempt. Specifically, we ad-
dress whether contempt fines levied against a union for vio-
lations of a labor injunction are coercive civil fines, or are
criminal fines that constitutionally could be imposed only
through a jury trial. We conclude that the fines are criminal
and, accordingly, we reverse the judgment of the Supreme
Court of Virginia.
I
Petitioners, the International Union, United Mine Workers
of America, and United Mine Workers of America, District
28 (collectively, the union), engaged in a protracted labor dis-
pute with the Clinchfield Coal Company and Sea "B" Mining
Company (collectively, the companies) over alleged unfair
labor practices. In April 1989, the companies filed suit in
the Circuit Court of Russell County, Virginia, to enjoin
the union from conducting unlawful strike-related activi-
ties. The trial court entered an injunction which, as later
amended, prohibited the union and its members from, among
other things, obstructing ingress and egress to company
facilities, throwing objects at and physically threatening
company employees, placing tire-damaging "jackrocks" on
roads used by company vehicles, and picketing with more
than a specified number of people at designated sites. The
court additionally ordered the union to take all steps neces-
sary to ensure compliance with the injunction, to place su-
*Bertram R. Gelfand and Jeffrey C. Dannenberg filed a brief for the
Allied Educational Foundation as amicus curiae urging reversal.
Michael E. Avakian filed a brief for the Center on National Labor
Policy, Inc., as amicus curiae urging affirmance.
824 MINE WORKERS u BAGWELL
Opinion of the Court
pervisors at picket sites, and to report all violations to the
court. App. to Pet. for Cert. 114a-116a.
On May 18, 1989, the trial court held a contempt hearing
and found that petitioners had committed 72 violations of the
injunction. After fining the union $642,000 for its disobedi-
ence,1 the court announced that it would fine the union
$100,000 for any future violent breach of the injunction and
$20,000 for any future nonviolent infraction, "such as exceed-
ing picket numbers, [or] blocking entrances or exits." Id.,
at Ilia. The court early stated that its purpose was to "im~
pos[e] prospective civil finest,] the payment of which would
only be required if it were shown the defendants disobeyed
the Court's orders." Id., at 40a.
In seven subsequent contempt hearings held between June
and December 1989, the court found the union in contempt
for more than 400 separate violations of the injunction, many
of them violent. Based on the court's stated "intention that
these fines are civil and coercive," id., at 104a, each contempt
hearing was conducted as a civil proceeding before the trial
judge, in which the parties conducted discovery, introduced
evidence, and called and cross-examined witnesses. The
trial court required that contumacious acts be proved beyond
a reasonable doubt, but did not afford the union a right to
jury trial.
As a result of these contempt proceedings, the court levied
over $64 million in fines against the union, approximately
$12 million of which was ordered payable to the companies.
Because the union objected to payment of any fines to the
companies and in light of the law enforcement burdens posed
by the strike, the court ordered that the remaining roughly
$52 million in fines be paid to the Commonwealth of Virginia
and Russell and Dickenson Counties, "the two counties most
heavily affected by the unlawful activity." Id., at 44a-45a.
1 A portion of these fines was suspended conditioned on the union's fu-
ture compliance. The court later vacated these fines, concluding that they
were " 'criminal in nature.' " App. to Pet. for Cert. 4a, n. 2.
Cite as: 512 U. S. 821 (1994) 825
Opinion of the Court
While appeals from the contempt orders were pending, the
union and the companies settled the underlying labor dis-
pute, agreed to vacate the contempt fines, and jointly moved
to dismiss the case. A special mediator representing the
Secretary of Labor, App. 48-49, and the governments of
Russell and Dickenson Counties, id., at 48 and 54, supported
the parties' motion to vacate the outstanding fines. The
trial court granted the motion to dismiss, dissolved the in-
junction, and vacated the $12 million in fines payable to the
companies. After reiterating its belief that the remaining
$52 million owed to the counties and the Commonwealth
were coercive, civil fines, the trial court refused to vacate
these fines, concluding they were "payable in effect to the
public." App. to Pet. for Cert. 47a.
The companies withdrew as parties in light of the settle-
ment and declined to seek further enforcement of the out-
standing contempt fines. Because the Commonwealth At-
torneys of Russell and Dickenson Counties also had asked to
be disqualified from the case, the court appointed respondent
John L. Bagwell to act as Special Commissioner to collect
the unpaid contempt fines on behalf of the counties and the
Commonwealth. Id, at 48a.
The Court of Appeals of Virginia reversed and ordered
that the contempt fines be vacated pursuant to the settle-
ment agreement. Assuming for the purposes of argument
that the fines were civil, the court concluded that "civil con-
tempt fines imposed during or as a part of a civil proceeding
between private parties are settled when the underlying liti-
gation is settled by the parties and the court is without dis-
cretion to refuse to vacate such fines/' Mine Workers v.
Clinchfield Coal Co., 12 Va. App. 123, 133, 402 S. E. 2d 899,
905 (1991).
On consolidated appeals, the Supreme Court of Virginia
reversed. The court held that whether coercive, civil con-
tempt sanctions could be settled by private parties was a
question of state law, aifd that Virginia public policy disfa-
826 MINE WORKERS v. BAGWELL
Opinion of the Court
vored such a rule, "if the dignity of the law and public re-
spect for the judiciary are to be maintained." 244 Va. 463,
478, 423 S. E. 2d 349, 358 (1992). The court also rejected
petitioners' contention that the outstanding fines were crimi-
nal and could not be imposed absent a criminal trial. Be-
cause the trial court's prospective fine schedule was intended
to coerce compliance with the injunction and the union could
avoid the fines through obedience, the court reasoned, the
fines were civil and coercive and properly imposed in civil
proceedings:
"When a court orders a defendant to perform an affirm-
ative act and provides that the defendant shall be fined
a fixed amount for each day he refuses to comply, the
defendant has control of his destiny. The same is true
with respect to the court's orders in the present case.
A prospective fine schedule was established solely for
the purpose of coercing the Union to refrain from engag-
ing in certain conduct. Consequently, the Union con-
trolled its own fate." Id, at 477, 423 S. E. 2d, at 357.
This Court granted certiorari. 508 U. S. 949 (1993).
II
A
"Criminal contempt is a crime in the ordinary sense/'
Bloom v. Illinois, 391 U. S. 194, 201 (1968), and "criminal
penalties may not be imposed on someone who has not been
afforded the protections that the Constitution requires of
such criminal proceedings," Hicks v. Fewck, 485 U. S. 624,
632 (1988). See In re Bradley, 318 U. 3. 50 (1943) (double
jeopardy); Cooke v. United States, 267 U. S. 517, 537 (1925)
(rights to notice of charges, assistance of counsel, summary
process, and to present a defense); Gompers v. Bucks
Stove & Range Co., 221 U.S. 418, 444 (1911) (privilege
against self-incrimination, right to proof beyond a reasonable
doubt). For "serious" criminal contempts involving impris-
Cite as: 512 U. S. 821 (1994) 827
Opinion of the Court
onment of more than six months, these protections include
the right to jury trial. Bloom, 391 U. S., at 199; see also
Taylor v. Hayes, 418 U. S. 488, 495 (1974). In contrast, civil
contempt sanctions, or those penalties designed to compel
future compliance with a court order, are considered to be
coercive and avoidable through obedience, and thus may be
imposed in an ordinary civil proceeding upon notice and an
opportunity to be heard. Neither a jury trial nor proof be-
yond a reasonable doubt is required.2
Although the procedural contours of the two forms of con-
tempt are well established, the distinguishing characteristics
of civil versus criminal contempts are somewhat less clear.3
In the leading early case addressing this issue in the context
of imprisonment, Gompers v. Bucks Stove & Range Co., 221
U. S., at 441, the Court emphasized that whether a contempt
is civil or criminal turns on the "character and purpose" of
the sanction involved. Thus, a contempt sanction is consid-
ered civil if it "is remedial, and for the benefit of the com-
2 We address only the procedures required for adjudication of indirect
contempts, i. e., those occurring out of court. Direct contempts that occur
in the court's presence may be immediately adjudged and sanctioned sum-
marily, see, e. g., Ex parte Terry, 128 U. S. 289 (1888), and, except for seri-
ous criminal contempts in which a jury trial is required, Bloom v. Illinois,
391 U. S. 194, 209-210 (1968), the traditional distinction between civil and
criminal contempt proceedings does not pertain, cf. United States v. Wil-
son, 421 U. S. 309, 316 (1975).
8 Numerous scholars have criticized as unworkable the traditional dis-
tinction between civil and criminal contempt. See, e, g., Dudley, Getting
Beyond the Civil/Criminal Distinction: A New Approach to the Regulation
of Indirect Contempts, 79 Va. L. Rev. 1026, 1033 (1993) (describing the
distinction between civil and criminal contempt as "conceptually unclear
and exceedingly difficult to apply"); Martineau, Contempt of Court: Elimi-
nating the Confusion between Civil and Criminal Contempt, 50 U. Cin. L.
Rev. 677 (1981) ("Few legal concepts have bedeviled courts, judges, law-
yers and legal commentators more than contempt of court"); Moskovitz,
Contempt of Injunctions, Civil and Criminal, 43 Colum. L. Rev. 780 (1943);
R. Goldfarb, The Contempt Power 58 (1963) (describing "the tangle of
procedure and practice" resulting from this "unsatisfactory fiction").
828 MINE WORKERS v. BAGWELL
Opinion of the Court
plainant. But if it is for criminal contempt the sentence is
punitive, to vindicate the authority of the court/' Ibid.
As Gompers recognized, however, the stated purposes of
a contempt sanction alone cannot be determinative. Id., at
443. "[WJhen a court imposes fines and punishments on a
contemnor, it is not only vindicating its legal authority to
enter the initial court order, but it also is seeking to give
effect to the law's purpose of modifying the contemnor's
behavior to conform to the terms required in the order/'
Hicks, 485 U. S., at 635. Most contempt sanctions, like most
criminal punishments, to some extent punish a prior offense
as well as coerce an offender's future obedience. The Hicks
Court accordingly held that conclusions about the civil or
criminal nature of a contempt sanction are properly drawn,
not from "the subjective intent of a State's laws and its
courts," ibid., but "from an examination of the character of
the relief itself," id., at 636.
The paradigmatic coercive, civil contempt sanction, as set
forth in Gompers, involves confining a contemnor indefinitely
until he complies with an affirmative command such as an
order "to pay alimony, or to surrender property ordered to
be turned over to a receiver, or to make a conveyance." 221
U. S., at 442; see also McCrone v. United States, 307 U. S. 61,
64 (1939) (failure to testify). Imprisonment for a fixed term
similarly is coercive when the contemnor is given the option
of earlier release if he complies. Shillitani v. United States,
384 U. S. 364, 370, n. 6 (1966) (upholding as civil "a determi-
nate [2-year] sentence which includes a purge clause")- In
these circumstances, the contemnor is able to purge the con-
tempt and obtain his release by committing an affirmative
act, and thus "'carries the keys of his prison in his own
pocket/" Gompers, 221 U. S., at 442, quoting In re Nevitt,
117 F. 448, 451 (CAS 1902).
By contrast, a fixed sentence of imprisonment is punitive
and criminal if it is imposed retrospectively for a "completed
act of disobedience," Gompers, 221 U. S., at 443, such that
Cite as- 512 U. S. 821 (1994) 829
Opinion of the Court
the contemnor cannot avoid or abbreviate the confinement
through later compliance. Thus, the Gompers Court con-
cluded that a 12-month sentence imposed on Samuel Gom-
pers for violating an antiboycott injunction was criminal.
When a contempt involves the prior conduct of an isolated,
prohibited act, the resulting sanction has no coercive effect.
"[T]he defendant is furnished no key, and he cannot shorten
the term by promising not to repeat the offense." Id., at
442.
This dichotomy between coercive and punitive imprison-
ment has been extended to the fine context. A contempt
fine accordingly is considered civil and remedial if it either
"coerce[s] the defendant into compliance with the court's
order, [or] . . . compensate^] the complainant for losses sus-
tained." United States v. Mine Workers, 330 U. S. 258, 303-
304 (1947). Where a fine is not compensatory, it is civil only
if the contemnor is afforded an opportunity to purge. See
Penfield Co. of Cal. v. SEC, 330 U. S. 585, 590 (1947). Thus,
a "flat, unconditional fine" totaling even as little as $50 an-
nounced after a finding of contempt is criminal if the contem-
nor has no subsequent opportunity to reduce or avoid the
fine through compliance. Id., at 588.
A close analogy to coercive imprisonment is a per diem
fine imposed for each day a contemnor fails to comply with
an affirmative court order. Like civil imprisonment, such
fines exert a constant coercive pressure, and once the jural
command is obeyed, the future, indefinite, daily fines are
purged. Less comfortable is the analogy between coercive
imprisonment and suspended, determinate fines. In this
Court's sole prior decision squarely addressing the judicial
power to impose coercive civil contempt fines, Mine Workers,
supra, it held that fixed fines also may be considered purg-
able and civil when imposed and suspended pending future
compliance. See also Penfield, 330 U. S., at 590 ("One who
is fined, unless by a day certain he [complies,] has it in his
power to avoid any penalty"); but see Hicks, 485 U. S., at 639,
830 MINE WORKERS v. BAGWELL
Opinion of the Court
and n. 11 (suspended or probationary sentence is criminal).
Mine Workers involved a $3,500,000 fine imposed against the
union for nationwide post- World War II strike activities.
Finding that the determinate fine was both criminal and ex-
cessive, the Court reduced the sanction to a flat criminal fine
of $700,000. The Court then imposed and suspended the re-
maining $2,800,000 as a coercive civil fine, conditioned on the
union's ability to purge the fine through full, timely compli-
ance with the trial court's order.4 The Court concluded, in
light of this purge clause, that the civil fine operated as "a
coercive imposition upon the defendant union to compel obe-
dience with the court's outstanding order.'7 330 U. S., at
307.
This Court has not revisited the issue of coercive civil
contempt fines addressed in Mine Workers. Since that
decision, the Court has erected substantial procedural pro-
tections in other areas of contempt law, such as criminal
contempts, e. g., Bloom v. Illinois, 391 U. S. 194 (1968), and
summary contempts, e. g., Taylor v. Hayes, 418 U. S. 488
(1974); Codispoti v. Pennsylvania, 418 U. S. 506, 513 (1974);
Johnson v. Mississippi, 403 U. S. 212 (1971); In re Oliver,
333 U. S. 257, 275 (1948). Lower federal courts and state
courts such as the trial court here nevertheless have relied
on Mine Workers to authorize a relatively unlimited judicial
power to impose noncompensatory civil contempt fines.
B
Underlying the somewhat elusive distinction between civil
and criminal contempt fines, and the ultimate question posed
4 Although the size of the fine was substantial, the conduct required of
the union to purge the suspended fine was relatively discrete- According
to the Court, purgation consisted of (1) withdrawal of the union's notice
terminating the Krug-Lewis labor agreement; (2) notifying the union
members of this withdrawal; and (3) withdrawing and notifying the union
members of the withdrawal of any other notice questioning the ongoing
effectiveness of the Krug-Lewis agreement. United States v. Mine Work-
ers, 330 U. S. 258, 305 (1947).
Cite as: 512 U. S. 821 (1994) 831
Opinion of the Court
in this case, is what procedural protections are due before
any particular contempt penalty may be imposed. Because
civil contempt sanctions are viewed as nonpunitive and
avoidable, fewer procedural protections for such sanctions
have been required. To the extent that such contempts take
on a punitive character, however, and are not justified by
other considerations central to the contempt power, criminal
procedural protections may be in order.
The traditional justification for the relative breadth of the
contempt power has been necessity: Courts independently
must be vested with "power to impose silence, respect, and
decorum, in their presence, and submission to their lawful
mandates, and ... to preserve themselves and their officers
from the approach and insults of pollution." Anderson v.
Dunn, 6 Wheat. 204, 227 (1821). Courts thus have em™
braced an inherent contempt authority, see Gompers, 221
U. S., at 450; Ex parte Robinson, 19 Wall. 505, 510 (1874), as
a power "necessary to the exercise of all others," United
States v. Hudson, 7 Cranch 32, 34 (1812).
But the contempt power also uniquely is "'liable to
abuse.7 " Bloom, 391 U. S., at 202, quoting Ex parte Terry,
128 U. S. 289, 313 (1888). Unlike most areas of law, where a
legislature defines both the sanctionable conduct and the
penalty to be imposed, civil contempt proceedings leave the
offended judge solely responsible for identifying, prosecut-
ing, adjudicating, and sanctioning the contumacious conduct.
Contumacy "often strikes at the most vulnerable and human
qualities of a judge's temperament," Bloom, 391 U. S., at 202,
and its fusion of legislative, executive, and judicial powers
"summons forth . . . the prospect of 'the most tyrannical li-
centiousness/ " Young v. United States ex rel. Vuitton et Fils
S. A, 481 U. S. 787, 822 (1987) (ScALiA, J., concurring in judg-
ment), quoting Anderson, 6 Wheat., at 228. Accordingly, "in
[criminal] contempt cases an even more compelling argument
can be made [than in ordinary criminal cases] for providing
832 MINE WORKERS u BAGWELL
Opinion of the Court
a right to jury trial as a protection against the arbitrary
exercise of official power." Bloom, 391 U. S., at 202.
Our jurisprudence in the contempt area has attempted to
balance the competing concerns of necessity and potential
arbitrariness by allowing a relatively unencumbered con-
tempt power when its exercise is most essential, and requir-
ing progressively greater procedural protections when other
considerations come into play. The necessity justification
for the contempt authority is at its pinnacle, of course, where
contumacious conduct threatens a court's immediate ability
to conduct its proceedings, such as where a witness refuses
to testify, or a party disrupts the court. See 'Young, 481
U. S., at 820-821 (ScALiA, J., concurring in judgment) (the
judicial contempt power is a "power of self-defense," limited
to sanctioning "those who interfere with the orderly conduct
of [court] business or disobey orders necessary to the conduct
of that business"). Thus, petty, direct contempts in the
presence of the court traditionally have been subject to sum-
mary adjudication, "to maintain order in the courtroom and
the integrity of the trial process in the face of an 'actual
obstruction of justice/" Codispoti v. Pennsylvania, 418
U. S., at 513, quoting In re McConnell, 370 U. S. 230, 236
(1962); cf. United States v. Wilson, 421 U. S. 309, 315-316
(1975); Harris v. United States, 382 U S. 162, 164 (1965). In
light of the court's substantial interest in rapidly coercing
compliance and restoring order, and because the contempt's
occurrence before the court reduces the need for extensive
factfinding and the likelihood of an erroneous deprivation,
summary proceedings have been tolerated.
Summary adjudication becomes less justifiable once a
court leaves the realm of immediately sanctioned, petty di-
rect contempts. If a court delays punishing a direct con-
tempt until the completion of trial, for example, due process
requires that the contemnor's rights to notice and a hearing
be respected. Taylor v. Hayes, 418 U. S. 488 (1974). There
"it is much more difficult to argue that action without notice
Cite as: 512 U. S. 821 (1994) 833
Opinion of the Court
or hearing of any kind is necessary to preserve order and
enable [the court] to proceed with its business," id., at 498,
particularly "in view of the heightened potential for abuse
posed by the contempt power/' id., at 500; see also Harris v.
United States, 382 U. S., at 164-165. Direct contempts also
cannot be punished with serious criminal penalties absent
the full protections of a criminal jury trial. Bloom, 391
U. S., at 210.
Still further procedural protections are afforded for con-
tempts occurring out of court, where the considerations jus-
tifying expedited procedures do not pertain. Summary ad-
judication of indirect contempts is prohibited, e. g., Cooke v.
United States, 267 U. S. 517, 534 (1925), and criminal con-
tempt sanctions are entitled to full criminal process, e. g.,
Hicks, 485 U. S., at 632. Certain indirect contempts never-
theless are appropriate for imposition through civil proceed-
ings. Contempts such as failure to comply with document
discovery, for example, while occurring outside the court's
presence, impede the court's ability to adjudicate the pro-
ceedings before it and thus touch upon the core justification
for the contempt power. Courts traditionally have broad
authority through means other than contempt — such as by
striking pleadings, assessing costs, excluding evidence, and
entering default judgment — to penalize a party's failure to
comply with the rules of conduct governing the litigation
process. See, e. g., Fed. Rules Civ. Proc. 11, 37. Such judi-
cial sanctions never have been considered criminal, and the
imposition of civil, coercive fines to police the litigation proc-
ess appears consistent with this authority. Similarly, indi-
rect contempts involving discrete, readily ascertainable acts,
such as turning over a key or payment of a judgment, prop-
erly may be adjudicated through civil proceedings since the
need for extensive, impartial factfinding is less pressing.
For a discrete category of indirect contempts, however,
civil procedural protections may be insufficient. Contempts
involving out-of-court disobedience to complex injunctions
834 MINE WORKERS v. BAGWELL
Opinion of the Court
often require elaborate and reliable factfinding. Cf. Green
v. United States, 356 U. S. 165, 217, n. 33 (1958) (Black,
J., dissenting) ("Alleged contempts committed beyond the
court's presence where the judge has no personal knowledge
of the material facts are especially suited for trial by jury.
A hearing must be held, witnesses must be called, and evi-
dence taken in any event. And often . . . crucial facts are
in close dispute" (citation omitted)). Such contempts do not
obstruct the court's ability to adjudicate the proceedings be-
fore it, and the risk of erroneous deprivation from the lack
of a neutral factfinder may be substantial. Id., at 214-215.
Under these circumstances, criminal procedural protections
such as the rights to counsel and proof beyond a reasonable
doubt are both necessary and appropriate to protect the due
process rights of parties and prevent the arbitrary exercise
of judicial power.
C
In the instant case, neither any party nor any court of the
Commonwealth has suggested that the challenged fines are
compensatory. At no point did the trial court attempt to
calibrate the fines to damages caused by the union's contu-
macious activities or indicate that the fines were "to compen-
sate the complainant for losses sustained." Mine Workers,
330 U. S., at 303-304. The nonparty governments, in turn,
never requested any compensation or presented any evi-
dence regarding their injuries, never moved to intervene in
the suit, and never actively defended the fines imposed.
The issue before us accordingly is limited to whether these
fines, despite their noncompensatory character, are coercive
civil or criminal sanctions.
The parties propose two independent tests for determin-
ing whether the fines are civil or criminal Petitioners
argue that because the injunction primarily prohibited cer-
tain conduct rather than mandated affirmative acts, the sanc-
tions are criminaL Respondents in turn urge that because
the trial court established a prospective fine schedule that
Cite as: 512 U. S. 821 (1994) 835
Opinion of the Court
the union could avoid through compliance, the fines are civil
in character.
Neither theory satisfactorily identifies those contempt
fines that are criminal and thus must be imposed through the
criminal process. Petitioners correctly note that Gompers
suggests a possible dichotomy "between refusing to do an
act commanded, — remedied by imprisonment until the party
performs the required act; and doing an act forbidden, — pun-
ished by imprisonment for a definite term/' 221 U. S., at
443. The distinction between mandatory and prohibitory
orders is easily applied in the classic contempt scenario,
where contempt sanctions are used to enforce orders compel-
ling or forbidding a single, discrete act. In such cases, or-
ders commanding an affirmative act simply designate those
actions that are capable of being coerced.
But the distinction between coercion of affirmative acts
and punishment of prohibited conduct is difficult to apply
when conduct that can recur is involved, or when an injunc-
tion contains both mandatory and prohibitory provisions.
Moreover, in borderline cases injunctive provisions contain-
ing essentially the same command can be phrased either in
mandatory or prohibitory terms. Under a literal application
of petitioners' theory, an injunction ordering the union: "Do
not strike/' would appear to be prohibitory and criminal,
while an injunction ordering the union: "Continue working/'
would be mandatory and civil. See Tr. of Oral Arg. 8-9;
Dobbs, Contempt of Court: A Survey, 56 Cornell L. Rev. 183,
239 (1971). In enforcing the present injunction, the trial
court imposed fines without regard to the mandatory or pro-
hibitory nature of the clause violated. Accordingly, even
though a parsing of the injunction's various provisions might
support the classification of contempts such as rock throwing
and placing tire-damaging "jackrocks" on roads as criminal
and the refusal to place supervisors at picket sites as civil,
the parties have not asked us to review the order in that
manner. In a case like this involving an injunction that pre-
836 MINE WORKERS u BAGWELL
Opinion of the Court
scribes a detailed code of conduct, it is more appropriate to
identify the character of the entire decree. Cf. Hicks, 485
U. S., at 638, n. 10 (internal quotation marks omitted) (Where
both civil and criminal relief is imposed "the criminal feature
of the order is dominant and fixes its character for purposes
of review").
Despite respondents7 urging, we also are not persuaded
that dispositive significance should be accorded to the fact
that the trial court prospectively announced the sanctions it
would impose. Had the trial court simply levied the fines
after finding the union guilty of contempt, the resulting
"determinate and unconditional" fines would be considered
"solely and exclusively punitive." Id., at 632-633 (internal
quotation marks omitted); see also Penfield Co. of Cal. v.
SEC, 330 U. S. 585 (1947). Respondents nevertheless con-
tend that the trial court's announcement of a prospective fine
schedule allowed the union to "avoid paying the finefo] sim-
ply by performing the . . . act required by the court's order,"
Hicks, 485 U. S., at 632, and thus transformed these fines
into coercive, civil ones. Respondents maintain here, as the
Virginia Supreme Court held below, that the trial court could
have imposed a daily civil fine to coerce the union into com-
pliance, and that a prospective fine schedule is indistinguish-
able from such a sanction.
Respondents7 argument highlights the difficulties encoun-
tered in parsing coercive civil and criminal contempt fines.
The fines imposed here concededly are difficult to distinguish
either from determinate, punitive fines or from initially sus-
pended, civil fines. Ultimately, however, the fact that the
trial court announced the fines before the contumacy, rather
than after the fact, does not in itself justify respondents7 con-
clusion that the fines are civil or meaningfully distinguish
these penalties from the ordinary criminal law. Due process
traditionally requires that criminal laws provide prior notice
both of the conduct to be prohibited and of the sanction to
be imposed. The trial court here simply announced the pen-
Cite as: 512 U. S. 821 (1994) 837
Opinion of the Court
alty— determinate fines of $20,000 or $100,000 per viola-
tion— that would be imposed for future contempts. The
union's ability to avoid the contempt fines was indistinguish-
able from the ability of any ordinary citizen to avoid a crimi-
nal sanction by conforming his behavior to the law. The
fines are not coercive day fines, or even suspended fines, but
are more closely analogous to fixed, determinate, retrospec-
tive criminal fines which petitioners had no opportunity to
purge once imposed. We therefore decline to conclude that
the mere fact that the sanctions were announced in advance
rendered them coercive and civil as a matter of constitu-
tional law.
Other considerations convince us that the fines challenged
here are criminal. The union's sanctionable conduct did not
occur in the court's presence or otherwise implicate the
court's ability to maintain order and adjudicate the proceed-
ings before it. Nor did the union's contumacy involve sim-
ple, affirmative acts, such as the paradigmatic civil con-
tempts examined in Gompers. Instead, the Virginia trial
court levied contempt fines for widespread, ongoing, out-of-
court violations of a complex injunction. In so doing, the
court effectively policed petitioners' compliance with an en-
tire code of conduct that the court itself had imposed. The
union's contumacy lasted many months and spanned a sub-
stantial portion of the State. The fines assessed were seri-
ous, totaling over $52 million.5 Under such circumstances,
6 "[P]etty contempt like other petty criminal offenses may be tried with-
out a jury," Taylor v. Hayes, 418 U. S. 488, 495 (1974), and the imposition
only of serious criminal contempt fines triggers the right to jury trial.
Bloom, 391 U. S., at 210. The Court to date has not specified what magni-
tude of contempt fine may constitute a serious criminal sanction, although
it has held that a fine of $10,000 imposed on a union was insufficient to
trigger the Sixth Amendment right to jury trial. See Mumz v. Hoffman,
422 U. S. 454, 477 (1975); see also 18 U. S. C. § 1(3) (1982 ed., Supp. V)
(defining petty offenses as crimes "the penalty for which . . . does not
exceed imprisonment for a period of six months or a fine of not more than
$5,000 for an individual and $10,000 for a person other than an individual,
838 MINE WORKERS v. BAGWELL
Opinion of the Court
disinterested factfinding and evenhanded adjudication were
essential, and petitioners were entitled to a criminal jury
trial.
In reaching this conclusion, we recognize that this Court
generally has deferred to a legislature's determination
whether a sanction is civil or criminal, see, e. g., United
States v. Ward, 448 U. S. 242, 248 (1980); Helvering v. Mitch-
ell, 303 U. S. 391 (1938), and that "[w]hen a State's proceed-
ings are involved, state law provides strong guidance about
whether or not the State is exercising its authority 'in a non-
punitive, noncriminal manner/" Hicks, 485 U.S., at 631,
quoting Allen v. Illinois, 478 U. S. 364, 368 (1986). We do
not deviate from either tradition today. Where a single
judge, rather than a legislature, declares a particular sanc-
tion to be civil or criminal, such deference is less appropriate.
Cf. Madsen v. Women's Health Center, Inc., ante, p. 753.
Moreover, this Court has recognized that even for state pro-
ceedings, the label affixed to a contempt ultimately "will not
be allowed to defeat the applicable protections of federal con-
stitutional law." Hicks v. Feiock, 485 U. S., at 631. We con-
clude that the serious contempt fines imposed here were
criminal and constitutionally could not be imposed absent a
jury trial.
Ill
Our decision concededly imposes some procedural burdens
on courts' ability to sanction widespread, indirect contempts
of complex injunctions through noncompensatory fines. Our
holding, however, leaves unaltered the longstanding author-
ity of judges to adjudicate direct contempts summarily, and
to enter broad compensatory awards for all contempts
through civil proceedings. See, e. g., Sheet Metal Workers
v. EEOC, 478 U. S. 421 (1986). Because the right to trial by
or both") (repealed 1984). We need not answer today the difficult ques-
tion where the line between petty and serious contempt fines should be
drawn, since a $52 million fine unquestionably is a serious contempt
sanction.
Cite as: 512 U. S. 821 (1994) 839
SCALIA, J., concurring
jury applies only to serious criminal sanctions, courts still
may impose noncompensatory, petty fines for contempts such
as the present ones without conducting a jury trial. We also
do not disturb a court's ability to levy, albeit through the
criminal contempt process, serious fines like those in this
case.
Ultimately, whatever slight burden our holding may im-
pose on the judicial contempt power cannot be controlling.
The Court recognized more than a quarter century ago:
"We cannot say that the need to further respect for
judges and courts is entitled to more consideration than
the interest of the individual not be subjected to serious
criminal punishment without the benefit of all the proce-
dural protections worked out carefully over the years
and deemed fundamental to our system of justice. Genu-
ine respect, which alone can lend true dignity to our
judicial establishment, will be engendered, not by the
fear of unlimited authority, but by the firm administra-
tion of the law through those institutionalized proce-
dures which have been worked out over the centuries."
Bloom, 391 U. S., at 208.
Where, as here, "a serious contempt is at issue, considera-
tions of efficiency must give way to the more fundamental
interest of ensuring the even-handed exercise of judicial
power." Id., at 209.
The judgment of the Supreme Court of Virginia is
reversed.
It is so ordered.
JUSTICE SCALIA, concurring.
I join the Court's opinion classifying the $52 million in con-
tempt fines levied against petitioners as criminal. As the
Court's opinion demonstrates, our cases have employed a va-
riety of not easily reconcilable tests for differentiating be-
tween civil and criminal contempts. Since all of those tests
840 MINE WORKERS v. BAGWELL
SCALIA, J., concurring
would yield the same result here, there is no need to decide
which is the correct one — and a case so extreme on its facts
is not the best case in which to make that decision. I wish
to suggest, however, that when we come to making it, a care-
fill examination of historical practice will ultimately yield
the answer.
That one and the same person should be able to make the
rule, to adjudicate its violation, and to assess its penalty is
out of accord with our usual notions of fairness and separa-
tion of powers. See ante, at 831; Green v. United States, 356
U. S. 165, 198-199 (1958) (Black, J., dissenting); cf. Bloom v.
Illinois, 391 U. S. 194, 202 (1968); Cooke v. United States, 267
U. S. 517, 539 (1925). And it is worse still for that person to
conduct the adjudication without affording the protections
usually given in criminal trials. Only the clearest of histori-
cal practice could establish that such a departure from the
procedures that the Constitution normally requires is not a
denial of due process of law. See Burnham v. Superior
Court of Cal, County of Marin, 495 U. S. 604, 623-625
(1990); cf. Honda Motor Co. v. Oberg, ante, at 430-431.
At common law, contempts were divided into criminal con-
tempts, in which a litigant was punished for an affront to
the court by a fixed fine or period of incarceration; and civil
contempts, in which an uncooperative litigant was incarcer-
ated (and, in later cases, fined*) until he complied with a
specific order of the court. See Gompers v. Bucks Stove &
Range Co., 221 U. S. 418, 441-444 (1911). Incarceration until
compliance was a distinctive sanction, and sheds light upon
the nature of the decrees enforced by civil contempt. That
sanction makes sense only if the order requires performance
*The per diem fines that came to be used to coerce compliance with
decrees were in most relevant respects like conditional prison terms.
With them, as with incarceration, the penalty continued until the contem-
nor complied, and compliance stopped any further punishment but of
course did not eliminate or restore any punishment already endured.
Cite as: 512 U. S. 821 (1994) 841
SCALIA, J., concurring
of an Identifiable act (or perhaps cessation of continuing per-
formance of an identifiable act). A general prohibition for
the future does not lend itself to enforcement through condi-
tional incarceration, since no single act (or the cessation of
no single act) can demonstrate compliance and justify re-
lease. One court has expressed the difference between
criminal and civil contempts as follows: "Punishment in crim-
inal contempt cannot undo or remedy the thing which has
been done, but in civil contempt punishment remedies the
disobedience." In re Fox, 96 F. 2d 23, 25 (CAS 1938).
As one would expect from this, the orders that underlay
civil contempt fines or incarceration were usually mandatory
rather than prohibitory, see Gompers, supra, at 442, direct-
ing litigants to perform acts that would further the litigation
(for example, turning over a document), or give effect to the
court's judgment (for example, executing a deed of convey-
ance). The latter category of order was particularly com-
mon, since the jurisdiction of equity courts was generally in
personam rather than in rem, and the relief they decreed
would almost always be a directive to an individual to per-
form an act with regard to property at issue. See 4 J. Pom-
eroy, Equity Jurisprudence § 1433, pp. 3386-3388 (4th ed.
1919). The mandatory injunctions issued upon termination
of litigation usually required "a single simple act." H. Me-
Clintock, Principles of Equity § 15, pp. 32-33 (2d ed. 1948).
Indeed, there was a "historical prejudice of the court of
chancery against rendering decrees which called for more
than a single affirmative act." Id., § 61, at 160. And where
specific performance of contracts was sought, it was the cate-
gorical rule that no decree would issue that required ongoing
supervision. See, e. g., Marble Co. v. Ripley, 10 Wall. 339,
358-359 (1870); see also McClintock, supra, §61, at 160-161;
1 J. Story, Commentaries on Equity Jurisprudence §778b,
p. 782 (Redfield ed,; 10th ed. 1870). Compliance with these
"single act" mandates could, in addition to being simple, be
842 MINE WORKERS v. BAGWELL
SCALIA, J., concurring
quick; and once it was achieved the contemnor's relationship
with the court came to an end, at least insofar as the subject
of the order was concerned. Once the document was turned
over or the land conveyed, the litigant's obligation to the
court, and the court's coercive power over the litigant,
ceased. See United States v. Mine Workers, 330 U. S. 258,
332 (1947) (Black, J., concurring in part and dissenting in
part). The court did not engage in any ongoing supervision
of the litigant's conduct, nor did its order continue to regu-
late his behavior.
Even equitable decrees that were prohibitory rather than
mandatory were, in earlier times, much less sweeping than
their modern counterparts. Prior to the labor injunctions
of the late 1800's, injunctions were issued primarily in rela-
tively narrow disputes over property. See, e. g., W. Kerr,
Law and Practice of Injunctions *7 (2d Am. Ed. 1880); see
also F. Frankfurter & N. Greene, The Labor Injunction 23-
24, 87-88 (1930).
Contemporary courts have abandoned these earlier limita-
tions upon the scope of their mandatory and injunctive de-
crees. See G. McDowell, Equity and the Constitution 4, 9
(1982). They routinely issue complex decrees which involve
them in extended disputes and place them in continuing
supervisory roles over parties and institutions. See, e. g,,
Missouri v. Jenkins, 495 U. S. 33, 56-58 (1990); Swann
v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16
(1971). Professor Chayes has described the extent of the
transformation:
"[The modern decree] differs in almost every relevant
characteristic from relief in the traditional model of ad-
judication, not the least in that it is the centerpiece. . . .
It provides for a complex, on-going regime of perform-
ance rather than a simple, one-shot, one-way transfer.
Finally, it prolongs and deepens, rather than terminates,
the court's involvement with the dispute/' Chayes, The
Cite as: 512 U. S. 821 (1994) 843
SCALIA, J., concurring
Role of the Judge in Public Law Litigation, 89 Harv. L.
Rev. 1281, 1298 (1976).
The consequences of this change for the point under
discussion here are obvious: When an order governs many
aspects of a litigant's activities, rather than just a discrete
act, determining compliance becomes much more difficult.
Credibility issues arise, for which the factfinding protections
of the criminal law (including jury trial) become much more
important. And when continuing prohibitions or obligations
are imposed, the order cannot be complied with (and the con-
tempt "purged") in a single act; it continues to govern the
party's behavior, on pain of punishment — not unlike the
criminal law.
The order at issue here provides a relatively tame example
of the modern, complex decree. The amended injunction
prohibited, inter alia, rock throwing, the puncturing of tires,
threatening, following or interfering with respondents' em-
ployees, placing pickets in other than specified locations, and
roving picketing; and it required, inter alia, that petitioners
provide a list of names of designated supervisors. App. to
Pet. for Cert. 113a-116a. Although it would seem quite in
accord with historical practice to enforce, by conditional in-
carceration or per diem fines, compliance with the last provi-
sion— a discrete command, observance of which is readily as-
certained— using that same means to enforce the remainder
of the order would be a novelty.
The use of a civil process for contempt sanctions "makes
no sense except as a consequence of historical practice."
Weiss v. United States, 510 U. S. 163, 198 (1994) (SCALIA, J.,
concurring in part and concurring in judgment). As the
scope of injunctions has expanded, they have lost some of
the distinctive features that made enforcement through civil
process acceptable. It is not that the times, or our percep-
tions of fairness, have changed (that is in my view no basis
844 MINE WORKERS v. BAGWELL
Opinion of GINSBURG, J.
for either tightening or relaxing the traditional demands of
due process); but rather that the modern judicial order is in
its relevant essentials not the same device that in former
times could always be enforced by civil contempt. So ad-
justments will have to be made. We will have to decide at
some point which modern injunctions sufficiently resemble
their historical namesakes to warrant the same extraordi-
nary means of enforcement. We need not draw that line in
the present case, and so I am content to join the opinion of
the Court.
JUSTICE GINSBURG, with whom THE CHIEF JUSTICE
joins, concurring in part and concurring in the judgment.
The issue in this case is whether the contempt proceedings
brought against the petitioner unions are to be classified as
"civil" or "criminal." As the Court explains, if those pro-
ceedings were "criminal," then the unions were entitled
under our precedents to a jury trial, and the disputed fines,
imposed in bench proceedings, could not stand. See ante,
at 826-827.
I
Gompers v. Bucks Stove & Range Co., 221 U. S. 418 (1911),
as the Court notes, see ante, at 827-828, is a pathmarking
case in this area. The civil contempt sanction, Gompers in-
structs, is designed "to coerce the defendant to do the thing
required by the order for the benefit of the complainant,"
rather than "to vindicate the authority of the law." 221
U. S., at 442. The sanction operates coercively because it
applies continuously until the defendant performs the dis-
crete, "affirmative act" required by the court's order, for
example, production of a document or presentation of testi-
mony. Ibid. The civil contemnor thus " 'carries the keys of
his prison in his own pocket' ": At any moment, "[h]e can end
the sentence and discharge himself . , . by doing what he had
previously refused to do." Ibid., quoting In re Nevitt, 117
F. 448, 461 (CAS 1902).
Cite as: 512 U. S. 821 (1994) 845
Opinion of GINSBURG, J.
The criminal contempt sanction, by contrast, is "punitive,
[imposed] to vindicate the authority of the court." Gom-
pers, 221 U. S., at 441. Unlike the civil contemnor, who has
refused to perform some discrete, affirmative act commanded
by the court, Gompers explains, the criminal contemnor has
"do[ne] that which he has been commanded not to do/' Id.,
at 442. The criminal contemnor's disobedience is past, a
"completed act," id., at 443, a deed no sanction can undo.
See id., at 442. Accordingly, the criminal contempt sanction
operates not to coerce a future act from the defendant for
the benefit of the complainant, but to uphold the dignity of
the law, by punishing the contemnor's disobedience. Id., at
442-443. Because the criminal contempt sanction is deter-
minate and unconditional, the Court said in Gompers, "the
defendant is furnished no key, and he cannot shorten the
term by promising not to repeat the offense." Id., at 442.
Even as it outlined these civil and criminal contempt pro-
totypes, however, the Court in Gompers acknowledged that
the categories, when filled by actual cases, are not altogether
neat and tidy. Civil contempt proceedings, although pri-
marily remedial, also "vindicat[e] . . . the court's authority";
and criminal contempt proceedings, although designed "to
vindicate the authority of the law," may bestow "some inci-
dental benefit" upon the complainant, because "such punish-
ment tends to prevent a repetition of the disobedience." Id.,
at 443.
II
The classifications described in Gompers have come under
strong criticism, particularly from scholars. Many have ob-
served, as did the Court in Gompers itself, that the catego-
ries, "civil" and "criminal" contempt, are unstable in theory
and problematic in practice. See ante, at 827, n. 3 (citing
scholarly criticism); see also Dudley, Getting Beyond the
Civil/Criminal Distinction: A New Approach to the Regula-
tion of Indirect Contempts, 79 Va. L. Rev. 1025, 1025, n. 1
(1993) (citing additional scholarly criticism).
846 MINE WORKEKS u BAGWELL
Opinion of GiNSBURG, J.
Our cases, however, have consistently resorted to the dis-
tinction between criminal and civil contempt to determine
whether certain constitutional protections, required in crimi-
nal prosecutions, apply in contempt proceedings. See, e. g.,
United States v. Dixon, 509 U S. 688, 696 (1993) ("We have
held that [certain] constitutional protections for criminal
defendants . . . apply in nonsummary criminal contempt
prosecutions just as they do in other criminal prosecutions/')
(citing cases). And the Court has repeatedly relied upon
Gompers' delineation of the distinction between criminal
and civil contempt. See, e. g.9 Hicks v. Feiock, 485 U. S. 624,
631-633, 635-636 (1988). The parties, accordingly, have pre-
sented their arguments within the Gompers framework.
Two considerations persuade me that the contempt pro-
ceedings in this case should be classified as "criminal" rather
than "civil." First, were we to accept the logic of Bagwell's
argument that the fines here were civil, because "condi-
tional" and "coercive," no fine would elude that categoriza-
tion. The fines in this case were "conditional," Bagwell
says, because they would not have been imposed if the
unions had complied with the injunction. The fines would
have been "conditional" in this sense, however, even if the
court had not supplemented the injunction with its fines
schedule; indeed, any fine is "conditional" upon compliance
or noncompliance before its imposition. Cf. ante, at 837 (the
unions' ability to avoid imposition of the fines was "indistin-
guishable from the ability of any ordinary citizen to avoid a
criminal sanction by conforming his behavior to the law").
Furthermore, while the fines were "coercive," in the sense
that one of their purposes was to encourage union compliance
with the injunction, criminal contempt sanctions may also
"coerce" in this same sense, for they, too, "ten[d] to prevent a
repetition of the disobedience." Gompers, 221 U. S., at 443.
Bagwell's thesis that the fines were civil, because "condi-
Cite as: 512 U. S. 821 (1994) 847
Opinion of GINSBURG, J.
tionar and "coercive," would so broaden the compass of
those terms that their line-drawing function would be lost.*
Second, the Virginia courts' refusal to vacate the fines, de-
spite the parties' settlement and joint motion, see ante, at
825-826, is characteristic of criminal, not civil, proceedings.
In explaining why the fines outlived the underlying civil dis-
pute, the Supreme Court of Virginia stated: "Courts of the
Commonwealth must have the authority to enforce their or-
ders by employing coercive, civil sanctions if the dignity of
the law and public respect for the judiciary are to be main-
tained/' 244 Va. 463, 478, 423 S. E. 2d 349, 358 (1992). The
Virginia court's references to upholding public authority and
maintaining "the dignity of the law" reflect the very pur-
poses Gompers ranked on the criminal contempt side. See
supra, at 844-845. Moreover, with the private complainant
gone from the scene, and an official appointed by the Com-
monwealth to collect the fines for the Commonwealth's cof-
fers, it is implausible to invoke the justification of benefiting
the civil complainant. The Commonwealth here pursues the
fines on its own account, not as the agent of a private party,
and without tying the exactions exclusively to a claim for
compensation. Cf. Hicks, 485 U. S., at 632 ("[A] fine . . . [is]
punitive when it is paid to the court," but "remedial" or
"civil" "when the defendant can avoid paying the fine simply
by performing the affirmative act required by the court's
order."). If, as the trial court declared, the proceedings
*Bagwell farther likens the prospective fines schedule to the civil con-
tempt fine imposed in United States v. Mine Workers, 330 U. S. 258 (1947).
In that case, however, the contemnor union was given an opportunity,
after the fine was imposed, to avoid the fine by "effecting] full compli-
ance" with the injunction. As the Court explains, see ante, at 830, n. 4,
for purposes of allowing the union to avoid the fine, "full compliance" with
the broad no-strike injunction, see 330 U. S., at 266, n. 12, was reduced
to the performance of three affirmative acts. This opportunity to purge,
consistent with the civil contempt scenario described in Gompers, see
supra, at 844, was unavailable to the unions in this case.
848 MINE WORKERS v. BAGWELL
Opinion of GINSBURG, J.
were indeed civil from the outset, then the court should have
granted the parties' motions to vacate the fines.
Concluding that the fines at issue "are more closely analo-
gous to ... criminal fines" than to civil fines, ante, at 837, I
join the Court's judgment and all but Part II-B of its
opinion.
OCTOBER TERM, 1993 849
Syllabus
McFARLAND v. SCOTT, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 93-6497. Argued March 29, 1994— Decided June 30, 1994
Title 21 U. S. C. § 848(q)(4)(B) entitles capital defendants to qualified legal
representation in any "post conviction proceeding" under 28 U. S. C.
§ 2254 or § 2255, sections of the federal habeas corpus statute. Having
failed to obtain a modification of his impending execution date in Texas
state court, petitioner McFarland commenced this action in the Federal
District Court by filing a pro se motion stating that he wished to chal-
lenge his conviction and death sentence under §2254, requesting the
appointment of counsel under § 848(q)(4)(B), and seeking a stay of execu-
tion to give that counsel time to prepare and file a habeas petition. The
court denied the motion, concluding that because no "post conviction
proceeding" had been initiated, McFarland was not entitled to counsel
and the court lacked jurisdiction to issue a stay. In denying his subse-
quent stay application, the Court of Appeals noted that § 2251 authorizes
a federal judge, before whom a "habeas corpus proceeding is pending,"
to stay a state action, but held that no federal proceeding was pending
because a motion for stay and for appointed counsel was not the equiva-
lent of a habeas petition.
Held: A capital defendant need not file a formal habeas corpus petition in
order to invoke his right to counsel under §848(q)(4)(B) and to establish
a federal court's jurisdiction to enter a stay of execution. Pp. 854-859.
(a) The language and purposes of § 848(q)(4)(B) and its related provi-
sions establish that the right to qualified appointed counsel adheres be-
fore the filing of a formal, legally sufficient habeas petition and includes
a right to legal assistance in the preparation of such a petition. Thus,
a "post conviction proceeding" within § 848(q)(4)(B)'s meaning is com-
menced by the filing of a death row defendant's motion requesting the
appointment of counsel for his federal habeas proceeding. McFarland
filed such a motion and was entitled to the appointment of a lawyer.
Pp. 854-857.
(b) The District Court had jurisdiction to grant McFarland's motion
for stay of execution. The language of §§ 848(q)(4)(B) and 2251 indi-
cates that "post conviction" and "habeas corpus" refer to the same pro-
ceeding. Thus, the two statutes must be read in pari materia to pro-
850 McFARLAND u SCOTT
Syllabus
vide that once a capital defendant invokes his right to appointed counsel
under § 848(q)(4)(B), a proceeding is "pending" under §2251, such that
the federal court has jurisdiction to enter a stay in its sound discretion.
The Anti-Injunction Act does not bar the exercise of this authority, since
§ 2251 expressly authorizes a stay of state-court proceedings "for any
matter involved in the habeas corpus proceeding." Pp. 857-858.
7 R 3d 47, reversed.
BLACKMUN, J., delivered the opinion of the Court, in which STEVENS,
KENNEDY, SOUTER, and GINSBURG, JJ., joined. O'CONNOR, J., filed an
opinion concurring in the judgment in part and dissenting in part, post,
p. 859. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J.,
and SCALIA, J., joined, post, p. 864.
Mandy Welch argued the cause for petitioner. With her
on the briefs was Douglas G. Robinson.
Margaret Portman Griffey, Assistant Attorney General of
Texas, argued the cause for respondent. With her on the
brief were Dan Morales, Attorney General, Jorge Vega, First
Assistant Attorney General, Stephani A. Stelmach, Assist-
ant Attorney General, and Drew T. Durham, Deputy Attor-
ney General.*
*Briefs of amid curiae urging reversal were filed for the American
Bar Association by R. William Ide ///, Stephen H. Sachs, Michael A.
Millemann, and Michael A Mello; for the American Civil Liberties Union
et al. by Larry W. Tackle, Steven R. Shapiro, and Diann Y. Rust-Tierney;
and for the Texas Criminal Defense Lawyers Association by Jim E.
Lavine.
Briefs of amid curiae urging affirmance were filed for the State of
California et al. by Daniel E. Lungren, Attorney General of California,
George Williamson, Chief Assistant Attorney General, Dane R, Gillette,
Deputy Attorney General, and Mark L. Krotoski, Special Assistant Attor-
ney General, and by the Attorneys General for their respective jurisdic-
tions as follows: Jimmy H, Evans of Alabama, Grant Woods of Arizona,
Winston Bryant of Arkansas, Gale A Norton of Colorado, Charles M.
Oberly HI of Delaware, Robert A Butterworth of Florida, Larry Echo-
Hawk of Idaho, Chris Gorman of Kentucky, Richard P. leyoub of Louisi-
ana, Mike Moore of Mississippi, Jeremiah W. Nixon of Missouri, Joseph P.
Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa
of Nevada, Deborah T Poritz of New Jersey, Michael F. Easley of North
Carolina, Lee Fisher of Ohio, Susan B. Loving of Oklahoma, Ernest
Cite as: 512 U. S. 849 (1994) 851
Opinion of the Court
JUSTICE BLACKMUN delivered the opinion of the Court.
In establishing a federal death penalty for certain drug
offenses under the Anti-Drug Abuse Act of 1988, 21 U. S. C.
§ 848(e), Congress created a statutory right to qualified legal
representation for capital defendants in federal habeas cor-
pus proceedings. § 848(q)(4)(B). This case presents the
question whether a capital defendant must file a formal ha-
beas corpus petition in order to invoke this statutory right
and to establish a federal court's jurisdiction to enter a stay
of execution.
I
Petitioner Frank Basil McFarland was convicted of capital
murder on November 13, 1989, in the State of Texas and
sentenced to death. The Texas Court of Criminal Appeals
affirmed the conviction and sentence, McFarland v. State,
845 S. W. 2d 824 (1992), and on June 7, 1993, this Court
denied certiorari. 508 U. S. 963. Two months later, on Au-
gust 16, 1993, the Texas trial court scheduled McFarland's
execution for September 23, 1993. On September 19, Mc-
Farland filed a pro se motion requesting that the trial court
stay or withdraw his execution date to allow the Texas Re-
source Center an opportunity to recruit volunteer counsel for
his state habeas corpus proceeding. Texas opposed a stay
of execution, arguing that McFarland had not filed an appli-
cation for writ of habeas corpus and that the court thus
lacked jurisdiction to enter a stay. The trial court declined
to appoint counsel, but modified McFarland's execution date
to October 27, 1993.
D. Preate, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, T. Travis
Medlock of South Carolina, Charles W. Burson of Tennessee, Jan Graham
of Utah, James S. Gilmore III of Virginia, and Joseph B. Meyer of Wyo-
ming; and for the Criminal Justice Legal Foundation by Kent S. Scheideg-
ger and Charles L. Hobson.
Tim Curry, Charles M. Malhn, John Vance, and Steven C. Hilbig filed
a brief for the Tarrant, Bexar, Dallas, and Harris County District Attor-
neys as amicus curiae.
852 McFARLAND v SCOTT
Opinion of the Court
On October 16, 1993, the Resource Center informed the
trial court that it had been unable to recruit volunteer coun-
sel and asked the court to appoint counsel for McFarland.
Concluding that Texas law did not authorize the appointment
of counsel for state habeas corpus proceedings, the trial
court refused either to appoint counsel or to modify petition-
er's execution date. McFarland then filed a pro se motion
in the Texas Court of Criminal Appeals requesting a stay
and a remand for appointment of counsel. The court denied
the motion without comment.
Having failed to obtain either the appointment of counsel
or a modification of his execution date in state court, McFar-
land, on October 22, 1993, commenced the present action in
the United States District Court for the Northern District
of Texas by filing a pro se motion stating that he "wish[ed]
to challenge [his] conviction and sentence under [the fed-
eral habeas corpus statute,] 28 U. S. C. Sec. 2254." App. 42.
McFarland requested the appointment of counsel under 21
U. S. C. § 848(q)(4)(B) and a stay of execution to give that
counsel time to prepare and file a habeas corpus petition,1
1 Traditionally in Texas, capital defendants had invoked their federal
right to appointed counsel by filing a perfunctory habeas corpus petition,
often reciting a single claim. Texas customarily did not oppose a stay
following the filing of such a pro forma petition, and federal district courts
regularly granted a stay of execution under these circumstances and ap-
pointed counsel to file a legally sufficient habeas application. Tr. of Oral
Arg. 32-33.
In the month prior to McFarland's scheduled execution, however, a capi-
tal defendant facing imminent execution filed such a pro forma habeas
petition in District Court. Texas did not oppose the filing, but the Dis-
trict Court denied the stay and dismissed the skeletal petition on the mer-
its. Gosch v. Collins, No. SA-93-CA-731 (WD Tex., Sept. 15, 1993). The
Court of Appeals for the Fifth Circuit affirmed, Gosch v. Collins, 8 F. 3d
20 (1993), cert, dism'd sub nom. Gosch v. Scott, post, p. 1216. Gosch then
filed a subsequent, substantive habeas petition, which the District Court
dismissed as successive and abusive. Gosch v. Collins, No. SA-93-CA-
736 (WD Tex., Oct. 12, 1993).
In a letter supporting McFarland's motion in the District Court, the
Resource Center indicated that the Gosch case had left capital defendants
Cite as: 512 U. S. 849 (1994) 853
Opinion of the Court
The District Court denied McFarland's motion on October
25, 1993, concluding that because no "post conviction pro-
ceeding" had been initiated pursuant to 28 U. S. C. §2254 or
§ 2255, petitioner was not entitled to appointment of counsel
and the court lacked jurisdiction to enter a stay of execution.
App. 77. The court later denied a certificate of probable
cause to appeal.
On October 26, the eve of McFarland's scheduled execu-
tion, the Court of Appeals for the Fifth Circuit denied his
application for stay. 7 F. 3d 47. The court noted that fed-
eral law expressly authorizes federal courts to stay state
proceedings while a federal habeas corpus proceeding is
pending, 28 U. S. C. §2251, but held that no such proceeding
was pending, because a "motion for stay and for appointment
of counsel [is not] the equivalent of an application for habeas
relief." 7 F. 3d, at 49. The court concluded that any other
federal judicial interference in state-court proceedings was
barred by the Anti-Injunction Act, 28 U. S. C. § 2283.
Shortly before the Court of Appeals ruled, a Federal Mag-
istrate Judge located an attorney willing to accept appoint-
ment in McFarland's case and suggested that if the attorney
would file a skeletal document entitled "petition for writ of
habeas corpus," the District Court might be willing to ap-
point him and grant McFarland a stay of execution. The
attorney accordingly drafted and filed a pro forma habeas
petition, together with a motion for stay of execution and
appointment of counsel. As in the Gosch case, see n. 1,
supra, despite the fact that Texas did not oppose a stay, the
District Court found the petition to be insufficient and denied
the motion for stay on the merits. McFarland v. Collins,
No. 4:93-CV-723-A (WD Tex., Oct. 26, 1993).
On October 27, 1993, this Court granted a stay of exe-
cution in McFarland's original suit pending consideration of
reluctant to invoke their federal right to counsel by filing pro forma ha-
beas petitions, given the substantial possibility that the petition might be
dismissed on the merits, and that any habeas petition later filed would be
dismissed summarily as an abuse of the writ. See App. 73-74.
854 McFARLAND v. SCOTT
Opinion of the Court
his petition for certiorari. 510 U. S. 938. The Court later
granted certiorari, 510 U. S. 989 (1993), to resolve an appar-
ent conflict with Brown v. Vasquez, 952 R 2d 1164 (CA9
1991).
II
A
Section 848(q)(4)(B) of Title 21 provides:
"In any post conviction proceeding under section 2254
or 2255 of title 28 seeking to vacate or set aside a death
sentence, any defendant who is or becomes financially
unable to obtain adequate representation or investi-
gative, expert, or other reasonably necessary services
shall be entitled to the appointment of one or more
attorneys and the furnishing of such other services
in accordance with paragraphs (5), (6), (7), (8), and (9)"
(emphasis added).
On its face, this statute grants indigent capital defendants
a mandatory right to qualified legal counsel2 and related
services "[i]n any [federal] post conviction proceeding."
The express language does not specify, however, how a
capital defendant's right to counsel in such a proceeding
shall be invoked.
Neither the federal habeas corpus statute, 28 U. S. C.
§ 2241 et seq.y nor the rules governing habeas corpus proceed-
ings define a "post conviction proceeding" under §2254 or
§ 2255 or expressly state how such a proceeding shall be com-
menced. Construing § 848(q)(4)(B) in light of its related pro-
Counsel appointed to represent capital defendants in postconviction
proceedings must meet more stringent experience criteria than attorneys
appointed to represent noncapital defendants under the Criminal Justice
Act of 1964, 18 U. S. C. § 3006A. At least one attorney appointed to repre-
sent a capital defendant must have been authorized to practice before the
relevant court for at least five years, and must have at least three years
of experience in handling felony cases in that court. 21 U. S. C. § 848(q)(6).
Cite as: 512 U. S. 849 (1994) 855
Opinion of the Court
visions, however, indicates that the right to appointed coun-
sel adheres prior to the filing of a formal, legally sufficient
habeas corpus petition. Section 848(q)(4)(B) expressly in-
corporates 21 U. S. C. §848(q)(9), which entitles capital de-
fendants to a variety of expert and investigative services
upon a showing of necessity:
"Upon a finding in ex parte proceedings that investi-
gative, expert or other services are reasonably neces-
sary for the representation of the defendant, . . . the
court shall authorize the defendant's attorneys to obtain
such services on behalf of the defendant and shall order
the payment of fees and expenses therefore" (emphasis
added).
The services of investigators and other experts may be criti-
cal in the preapplication phase of a habeas corpus proceed-
ing, when possible claims and their factual bases are re-
searched and identified. Section 848(q)(9) clearly anticipates
that capital defense counsel will have been appointed under
§ 848(q)(4)(B) before the need for such technical assistance
arises, since the statute requires "the defendant's attor-
neys to obtain such services" from the court. §848(q)(9).
In adopting § 848(q)(4)(B), Congress thus established a right
to preapplication legal assistance for capital defendants in
federal habeas corpus proceedings.
This interpretation is the only one that gives meaning to
the statute as a practical matter. Congress' provision of a
right to counsel under § 848(q)(4)(B) reflects a determination
that quality legal representation is necessary in capital ha-
beas corpus proceedings in light of "the seriousness of the
possible penalty and . . . the unique and complex nature of
the litigation." §848(q)(7). An attorney's assistance prior
to the filing of a capital defendant's habeas corpus petition is
crucial, because "[t]he complexity of our jurisprudence in this
area . . , makes it unlikely that capital defendants will be
856 McFARLAND v. SCOTT
Opinion of the Court
able to file successful petitions for collateral relief without
the assistance of persons learned in the law." Murray v.
Giarratano, 492 U. S. 1, 14 (1989) (KENNEDY, J., joined by
O'CONNOR, J., concurring in judgment); see also id., at 28
(STEVENS, J., joined by Brennan, Marshall, and BLACKMUN,
JJ., dissenting) ("[T]his Court's death penalty jurisprudence
unquestionably is difficult even for a trained lawyer to
master")-
Habeas corpus petitions must meet heightened pleading
requirements, see 28 U. S. C. § 2254 Rule 2(c), and comply
with this Court's doctrines of procedural default and waiver,
see Coleman v. Thompson, 501 U. S. 722 (1991). Federal
courts are authorized to dismiss summarily any habeas peti-
tion that appears legally insufficient on its face, see 28
U. S. C. § 2254 Rule 4, and to deny a stay of execution where
a habeas petition fails to raise a substantial federal claim,
see Barefoot v. Estelle, 463 U. S. 880, 894 (1983). Moreover,
should a defendant's pro se petition be summarily dismissed,
any petition subsequently filed by counsel could be subject
to dismissal as an abuse of the writ. See McCleskey v. Zant,
499 U. S. 467, 494 (1991). Requiring an indigent capital peti-
tioner to proceed without counsel in order to obtain counsel
thus would expose him to the substantial risk that his habeas
claims never would be heard on the merits. Congress legis-
lated against this legal backdrop in adopting § 848(q)(4)(B),
and we safely assume that it did not intend for the express
requirement of counsel to be defeated in this manner.
The language and purposes of § 848(q)(4)(B) and its related
provisions establish that the right to appointed counsel in-
cludes a right to legal assistance in the preparation of a ha-
beas corpus application. We therefore conclude that a "post
conviction proceeding" within the meaning of § 848(q)(4)(B)
is commenced by the filing of a death row defendant's motion
requesting the appointment of counsel for his federal habeas
Cite as: 512 U. S. 849 (1994) 857
Opinion of the Court
corpus proceeding.3 McFarland filed such a motion and was
entitled to the appointment of a lawyer.
B
Even if the District Court had granted McFarland's motion
for appointment of counsel and had found an attorney to rep-
resent him, this appointment would have been meaningless
unless McFarland's execution also was stayed. We there-
fore turn to the question whether the District Court had
jurisdiction to grant petitioner's motion for stay.
Federal courts cannot enjoin state-court proceedings
unless the intervention is authorized expressly by federal
statute or falls under one of two other exceptions to the
Anti-Injunction Act. See Mitchum v. Foster, 407 U. S. 225,
226 (1972). The federal habeas corpus statute grants any
federal judge "before whom a habeas corpus proceeding is
pending" power to stay a state-court action "for any matter
involved in the habeas corpus proceeding." 28 U. S. C.
§ 2251 (emphasis added). McFarland argues that his request
for counsel in a "post conviction proceeding" under §848(q)
(4)(B) initiated a "habeas corpus proceeding" within the
meaning of § 2251, and that the District Court thus had juris-
diction to enter a stay, Texas contends, in turn, that even
if a "post conviction proceeding" under § 848(q)(4)(B) can be
8 JUSTICE THOMAS argues in dissent that reading § 848(q)(4)(B) to allow
the initiation of a habeas corpus proceeding through the filing of a motion
for appointment of counsel ignores the fact that such proceedings tradi-
tionally have been commenced by the filing of a habeas corpus petition
and creates a divergent practice for capital defendants. Post, at 872, n. 3.
As JUSTICE O'CONNOR agrees, post, at 860, however, § 848(q)(4)(B) be-
stows upon capital defendants a mandatory right to counsel, including a
right to preapplication legal assistance, that is unknown to other criminal
defendants. Because noncapital defendants have no equivalent right to
the appointment of counsel in federal habeas corpus proceedings, it is not
surprising that their habeas corpus proceedings typically will be initiated
by the filing of a habeas corpus petition.
858 McFARLAND u SCOTT
Opinion of the Court
triggered by a death row defendant's request for appoint-
ment of counsel, no "habeas corpus proceeding" is "pending"
under §2251, and thus no stay can be entered, until a legally
sufficient habeas petition is filed.
The language of these two statutes indicates that the sec-
tions refer to the same proceeding. Section 848(q)(4)(B)
expressly applies to "any post conviction proceeding under
section 2254 or 2255" — the precise "habeas corpus proceed-
ing[s]" that §2251 involves. The terms "post conviction"
and "habeas corpus" also are used interchangeably in legal
parlance to refer to proceedings under §§ 2254 and 2255. We
thus conclude that the two statutes must be read in pari
materia to provide that once a capital defendant invokes his
right to appointed counsel, a federal court also has jurisdic-
tion under §2251 to enter a stay of execution. Because
§2251 expressly authorizes federal courts to stay state-court
proceedings "for any matter involved in the habeas corpus
proceeding," the exercise of this authority is not barred by
the Anti- Injunction Act.
This conclusion by no means grants capital defendants a
right to an automatic stay of execution. Section 2251 does
not mandate the entry of a stay, but dedicates the exercise
of stay jurisdiction to the sound discretion of a federal court.
Under ordinary circumstances, a capital defendant presum-
ably will have sufficient time to request the appointment of
counsel and file a formal habeas petition prior to his sched-
uled execution. But the right to counsel necessarily in-
cludes a right for that counsel meaningfully to research and
present a defendant's habeas claims. Where this opportu-
nity is not afforded, "[a]pproving the execution of a defend-
ant before his [petition] is decided on the merits would
clearly be improper." Barefoot, 463 U. S., at 889. On the
other hand, if a dilatory capital defendant inexcusably ig-
nores this opportunity and flouts the available processes, a
federal court presumably would not abuse its discretion in
denying a stay of execution.
Cite as: 512 U. S. 849 (1994) 859
Opinion of O'CONNOR, J,
III
A criminal trial is the "main event" at which a defendant's
rights are to be determined, and the Great Writ is an ex-
traordinary remedy that should not be employed to "reliti-
gate state trials." Id., at 887. At the same time, criminal
defendants are entitled by federal law to challenge their con-
viction and sentence in habeas corpus proceedings. By pro-
viding indigent capital defendants with a mandatory right
to qualified legal counsel in these proceedings, Congress has
recognized that federal habeas corpus has a particularly im-
portant role to play in promoting fundamental fairness in the
imposition of the death penalty.
We conclude that a capital defendant may invoke this right
to a counseled federal habeas corpus proceeding by filing a
motion requesting the appointment of habeas counsel, and
that a district court has jurisdiction to enter a stay of execu-
tion where necessary to give effect to that statutory right.
McFarland filed a motion for appointment of counsel and for
stay of execution in this case, and the District Court had
authority to grant the relief he sought.
The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE O'CONNOR, concurring in the judgment in part
and dissenting in part.
I agree with the Court's conclusion that 21 U.S. C. §848
entitles capital defendants pursuing federal habeas corpus
relief to a properly trained attorney. I also agree that this
right includes legal assistance in preparing a habeas petition.
Thus, the Court correctly holds that a defendant need not
file a habeas petition to invoke the right to counsel. Ante,
at 856-857. I write separately, however, because I disagree
with the Court's conclusion that 28 U. S. C. §2251 allows a
district court to stay an execution pending counsel's prepara-
860 McFARLAND u SCOTT
Opinion of O'CONNOR, J.
tion of an application for a writ of habeas corpus. Ante, at
857-858.
As the Court explains, § 848(q) must be read to apply prior
to the filing of a habeas petition. It is almost meaningless
to provide a lawyer to pursue claims on federal habeas if the
lawyer is not available to help prepare the petition. First,
the habeas petition, unlike a complaint, must allege the fac-
tual underpinning of the petitioner's claims. See Habeas
Corpus Rule 2(c) ("The petition . . . shall specify all the
grounds for relief which are available to the petitioner . . .
and shall set forth in summary form the facts supporting
each of the grounds thus specified")- Furthermore, district
courts are authorized to summarily dismiss petitions which
appear on their face to be meritless. See Habeas Corpus
Rule 4. And our carefully crafted doctrines of waiver and
abuse of the writ make it especially important that the first
petition adequately set forth all of a state prisoner's color-
able grounds for relief. Indeed, Congress expressly recog-
nized "the seriousness of the possible penalty and . . . the
unique and complex nature of the litigation/' 21 U. S. C.
§848(q)(7). Moreover, the statute entitles capital defend-
ants not only to qualified counsel, but also to "investigative,
expert or other services . , . reasonably necessary for the
representation of the defendant/' §848(q)(9). For such
services to be meaningful in the habeas context, they also
must be available prior to the filing of a first habeas petition.
See ante, at 855.
In my view, however, petitioner is not entitled under pres-
ent law to a stay of execution while counsel prepares a ha-
beas petition. The habeas statute provides in relevant part
that "[a] justice or judge of the United States before whom
a habeas corpus proceeding is pending, may . . . stay any
proceeding against the person detained in any State court."
28 U. S. C, § 2251. While this provision authorizes a stay in
the habeas context, it does not explicitly allow a stay prior
to the filing of a petition, and our cases have made it clear
Cite as: 512 U. S. 849 (1994) 861
Opinion of O'CONNOR, J.
that capital defendants must raise at least some colorable
federal claim before a stay of execution may be entered.
"[F]ederal habeas [is not] a means by which a defendant
is entitled to delay an execution indefinitely. The pro-
cedures adopted to facilitate the orderly consideration
and disposition of habeas petitions are not legal entitle-
ments that a defendant has a right to pursue irrespec-
tive of the contribution these procedures make toward
uncovering constitutional error/7 Barefoot v. Estelle,
463 U. S. 880, 887-888 (1983).
See also Autry v. Estelle, 464 U. S. 1 (1983) (per curiam)
(no automatic stay in this Court for review of a first federal
habeas petition where petition lacks merit).
Petitioner has not filed anything describing the nature of
his claims, if any. As a consequence, the Court's approach,
which permits a stay of execution in the absence of any
showing of a constitutional claim, conflicts with the sound
principle underlying our precedents that federal habeas re-
view exists only to review errors of constitutional dimension,
and that the habeas procedures may be invoked only when
necessary to resolve a constitutional claim. Barefoot,
supra, at 892-896; see Townsend v. Sain, 372 U. S. 293, 312
(1963).
Congress knows how to give courts the broad authority to
stay proceedings of the sort urged by petitioner. For exam-
ple, Congress expressly provided this Court with authority
to grant stays pending the filing of a petition for a writ of
certiorari:
"In any case in which the final judgment or decree of
any court is subject to review by the Supreme Court on
writ of certiorari, the execution and enforcement of such
judgment or decree may be stayed for a reasonable time
to enable the party aggrieved to obtain a writ of certio-
rari from the Supreme Court." 28 U. S. C. §2101(f).
862 McFARLAND v. SCOTT
Opinion of O'CONNOR, J.
The absence of such explicit authority in the habeas statute
is evidence that Congress did not intend federal courts to
enter stays of execution in the absence of some showing on
the merits.
Moreover, just as the counsel provisions of § 848(q) are in-
tended to apply before the submission of a petition, the text
and structure of the federal habeas statute suggest that the
stay provision contained in §2251 is intended to apply only
after a petition has been filed. Although the statute does
not specifically identify when "a habeas corpus proceeding is
pending," ibid., other provisions of the statute show that
there is no "pending" habeas corpus proceeding until an ap-
plication for habeas corpus has been filed, which is the mech-
anism for "instituting]" a proceeding under the statute.
For example, §2254(d) refers to "any proceeding instituted
in a Federal court by an application for a writ of habeas
corpus" (emphasis added). Another statute setting filing
'fees provides that "the parties instituting any , . . proceed-
ing in [district court must] pay a filing fee of $120, except
that on application for a writ of habeas corpus the filing fee
shall be $5." 28 U. S. C. §1914(a) (emphasis added). This
indicates that the institution of a proceeding requires the
filing of an "application," which petitioner has not done. See
§ 2242 (an "[application for a writ of habeas corpus . . . shall
allege the facts concerning the applicant's commitment or
detention"); Habeas Corpus Rule 2(a) ("[T]he application
shall be in the form of a petition").
The rules governing §2254 cases confirm this conclusion.
Although originally enacted by this Court, the rules were
amended by Congress and approved as amended. See Pub.
L. 94-426, § 1, 90 Stat. 1334 (1976). By their terms, the ha-
beas rules only apply to "procedure[s] in the United States
district courts on applications under 28 U. S. C. §2254."
Rule l(a) (emphasis added). See also Habeas Corpus Rule
2 (referring to "Applicants in present custody" and "Appli-
cants subject to future custody"). These same rules also
Cite as: 512 U. S. 849 (1994) 863
Opinion of O'CONNOR, J.
make an express exception for the appointment of counsel
"at any stage of the case/' Rule 8(c), a farther indication that
the rules otherwise apply after an application for a writ of
habeas corpus has been filed in the district court. This con-
sistent textual focus on the existence of an "application"
leads me to conclude that the district court's authority to
issue a stay pursuant to § 2251 also requires the filing of an
"application."*
Congress is apparently aware of the clumsiness of its hand-
iwork in authorizing appointment of an attorney under 21
U. S. C. § 848(q)(4)(B) "[i]n any post conviction proceeding/'
while leaving intact 28 U. S. C. §2251, which authorizes a
stay only when a "habeas corpus proceeding is pending/'
See S. 1441, §3(b), 103d Cong., 1st Sess. (1993). The remedy
for this problem, however, lies with Congress, and not, as
the Court would have it, by reading the Anti-Drug Abuse
Act of 1988, Pub. L. 100-690, 102 Stat. 4393, to impliedly
amend the habeas statute. See Regional Rail Reorganiza-
tion Act Cases, 419 U. S. 102, 134 (1974). Such a reading
is inconsistent with our prior cases and with the important
federalism principles underlying the limited habeas jurisdic-
tion of the federal courts. I would leave the matter to Con-
gress to resolve. Finally, prisoners can avoid the need for a
stay by filing a prompt request for appointment of counsel
well in advance of the scheduled execution.
In the judgment currently under review, the Court of Ap-
peals for the Fifth Circuit held that petitioner's "motion for
stay of execution and appointment of counsel is ... denied."
7 F. 3d 47, 49 (1993) (per curiam). Because I agree with
the Court that petitioner is entitled to an attorney, I concur
*Because the habeas statute itself addresses when district courts may
order a stay of state proceedings, the All Writs Act, 28 U. S. C. § 1651, does
not provide a residual source of authority for a stay. "Where a statute
specifically addresses the particular issue at hand, it is that authority, and
not the All Writs Act, that is controlling/' Pennsylvania Bureau of Cor-
rection v. United States Marshals Service, 474 U. S. 34, 43 (1985).
864 McFARLAND u SCOTT
THOMAS, J., dissenting
in the judgment reversing the Court of Appeals on this
point. But because in my view petitioner cannot obtain a
stay of execution before filing a petition for a writ of habeas
corpus in the District Court, I would affirm the judgment
in part. I therefore respectfully dissent from the Court's
contrary determination.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE and
JUSTICE SCALIA join, dissenting.
Today the Court holds that a state prisoner under sen-
tence of death may invoke a federal district court's jurisdic-
tion to obtain appointed counsel under 21 U. S. C. § 848(q)
(4)(B) and to obtain a stay of execution under 28 U. S. C.
§ 2251 simply by filing a motion for appointment of counsel.
In my view, the Court's conclusion is at odds with the terms
of both statutory provisions. Each statute allows a fed-
eral district court to take action (appointing counsel under
§ 848(q)(4)(B) or granting a stay under §2251) only after a
habeas proceeding has been commenced. As JUSTICE
O'CONNOR points out, such a proceeding is initiated under
the habeas corpus statute, 28 U. S. C. § 2241 et seq., only with
the filing of an application for a writ of habeas corpus. I
therefore agree with JUSTICE O'CONNOR that a district court
lacks jurisdiction to grant a stay under § 2251 until such an
application has been filed. See ante, at 860-863 (concurring
in judgment in part and dissenting in part). But because
§848(q)(4)(B), like §2251, conditions a court's power to act
upon the existence of a habeas proceeding, I would also hold
that a district court cannot appoint counsel until an applica-
tion for habeas relief has been filed. I therefore respect-
fully dissent.
I
In its attempt to discern Congress' intent regarding the
point at which § 848(q)(4)(B) makes counsel available, the
Court spends a good deal of time considering how, as a "prac-
tical matter/' the provision of counsel can be made meaning-
Cite as: 512 U. S. 849 (1994) 865
THOMAS, J., dissenting
ful. See ante, at 855. See also ante, at 860 (O'CONNOR, J.,
concurring in judgment in part and dissenting in part). But
here, as in any case of statutory interpretation, our primary
guide to Congress' intent should be the text of the statute.
The relevant terms of § 848(q)(4)(B) state that an indigent
prisoner shall be entitled to* an attorney and "investigative,
expert, or other reasonably necessary services" only "[i]n
any post conviction proceeding under section 2254 . . . seek-
ing to vacate or set aside a death sentence." The clear im-
port of the provision is that an indigent prisoner is not enti-
tled to an attorney or to other services under the section
until a "post conviction proceeding under section 2254" ex-
ists— that is, not until after such a proceeding has been com-
menced in district court.
The Court appears to acknowledge that a § 2254 proceed-
ing must be initiated before counsel can be appointed under
§848(q)(4)(B), but asserts that "[n]either the federal habeas
corpus statute . . , nor the rules governing habeas corpus
proceedings define a 'post conviction proceeding' under
§ 2254 ... or expressly state how such a proceeding shall be
commenced." Ante, at 854. It is difficult to imagine, how-
ever, how the federal habeas statute could be more "express"
on the matter. As JUSTICE O'CONNOR explains in detail, the
statute makes clear that a "proceeding" is commenced only
with the filing of an application for a writ of habeas corpus.
See ante, at 862-863 (concurring in judgment in part and
dissenting in part).1 Section 2254(d), for example, provides
that the well-known presumption of correctness of state
court findings of fact attaches "[i]n any proceeding instituted
JUSTICE O'CONNOR, of course, discusses the question of how a habeas
"proceeding" is commenced in the context of determining whether a dis-
trict court has jurisdiction under §2251 to enter a stay of execution prior
to the filing of an application for habeas relief See 28 U. S. C. §2251 ("A
justice or judge of the United States before whom a habeas corpus pro-
ceeding is pending, may . . . stay any proceeding against the person de-
tained" under state authority) (emphasis added).
866 McFARLAND v. SCOTT
THOMAS, J., dissenting
in a Federal court by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of
a State court" 28 U. S. C. §2254(d) (emphasis added). See
also § 2241(d) (power to grant the writ is not triggered except
by "application for a writ of habeas corpus")- Of. § 1914
(equating the filing of an "application for a writ of habeas
corpus" with the "instituting" of a "proceeding" for purposes
of setting filing fees).2
By providing that death-sentenced prisoners may obtain
counsel "[i]n any post conviction proceeding under section
2254," Congress referred to a well-known form of action with
established contours. We should therefore assume that
Congress intended to incorporate into § 848(q)(4)(B) the set-
tled understanding of what constitutes a "proceeding under
section 2254" in the habeas statute. Cf. Miles v. Apex Ma-
rine Corp., 498 U. S. 19, 32 (1990). Indeed, the similarity
between the language in §§ 848(q)(4)(B) and 2254(d) suggests
that Congress used the phrase "[i]n any post conviction pro-
ceeding under section 2254" in the former provision as a
shorthand form of the language "[i]n any proceeding insti-
tuted in a Federal court by an application for a writ of habeas
corpus" contained in the latter. In short, the terms of
§ 848(q)(4)(B) indicate that Congress intended that legal as-
sistance be made available under the provision only after a
habeas proceeding has been commenced by the filing of an
application for habeas relief.
2 The procedural rules governing §2264 cases confirm that it is the filing
of a habeas petition that commences a habeas proceeding. Rule 3 of the
Federal Rules of Civil Procedure clearly states that "[a] civil action is
commenced by filing a complaint." The Federal Rules of Civil Procedure
apply in the context of habeas suits to the extent that they are not incon-
sistent with the Habeas Corpus Rules. See 28 U. S. C. §2254 Rule 11;
Fed. Rule Civ. Proc. 81(a)(2). The analogue to a complaint in the habeas
context is an "application ... in the form of a petition for a writ of habeas
corpus." 28 U.S. C. §2264 Rule 2(a). Thus, a habeas action is com-
menced with the filing of such an application.
Cite as: 512 U. S. 849 (1994) 867
THOMAS, J., dissenting
The Court rejects this interpretation. Rather than turn-
ing to the habeas statute for guidance in determining when
a "proceeding under section 2254" commences, the Court
bases its examination of the question primarily on what it
perceives to be the time at which legal assistance would be
most useful to a death-sentenced prisoner. See ante, at 855-
856. From this analysis, the Court concludes that a " 'post
conviction proceeding7 within the meaning of § 848(q)(4)(B) is
commenced by the filing of a death row defendant's [preap-
plication] motion requesting the appointment of counsel."
Ante, at 856. The only textual provision the Court cites in
support of that conclusion is 21 U. S. C. §848(q)(9), which
states:
"Upon a finding in ex parte proceedings that investiga-
tive, expert or other services are reasonably necessary
for the representation of the defendant, whether in con-
nection with issues relating to guilt or sentence, the
court shall authorize the defendant's attorneys to obtain
such services on behalf of the defendant and shall order
the payment of fees and expenses therefore . . . ."
At bottom, the Court's textual argument amounts to the
following: because investigative, expert, and other services
described in §848(q)(9) "may be critical in the preapplica-
tion phase of a habeas corpus proceeding," ante, at 855, and
because §848(q)(9) provides that those services are to be
obtained by the defendant's attorneys, an attorney must be
appointed "before the need for such technical assistance
arises" — that is, prior to the filing of an application for habeas
relief. Ibid. Thus, the sole textual source upon which the
Court relies is the statement that "the defendant's attorneys"
are "authorize[d]" to obtain services on the defendant's behalf.
In my view, such an oblique reference to "the defendant's
attorneys" is a remarkably thin reed upon which to rest Con-
gress' supposed intention to "establis[h] a right to preap-
plication legal assistance for capital defendants in federal
868 McFARLAND u SCOTT
THOMAS, J., dissenting
habeas corpus proceedings." Ibid, Indeed, had Congress
intended to establish such a "right/7 it surely would have
done so in § 848(q)(4)(B), which provides for appointment of
counsel, rather than in § 848(q)(9), which sets forth the me-
chanics of how "investigative, expert or other services" are
to be obtained.
Moreover, § 848(q)(9) simply does not address the issue of
when "investigative, expert or other services" are to be
made available to a death-sentenced prisoner. The Court
asserts that such services "may be critical" in the preappli-
cation period. Ibid. Yet the issue of when these services
are to be available, like the question of when a prisoner is
entitled to counsel, is expressly addressed not in § 848(q)(9),
but in §848(q)(4). See § 848(q)(4)(A) (indigent defendant
"charged with a [federal] crime which may be punishable by
death" may obtain "representation [and] investigative, ex-
pert, or other reasonably necessary services" both "before
judgment" and "after the entry of a judgment imposing a
sentence of death but before the execution of that judg-
ment"); see also §848(q)(4)(B) (indigent prisoner "seeking to
vacate or set aside [his] death sentence" may obtain "repre-
sentation [and] investigative, expert, or other reasonably
necessary services" "[i]n any post conviction proceeding
under section 2254 or 2255"). And for purposes of this case,
§ 848(q)(4)(B) resolves the issue: Such services are to be made
available only after a "post conviction proceeding under
2254" has been commenced.
As for the policy concerns rehearsed by the Court, I agree
that legal assistance prior to the filing of a federal habeas
petition can be very valuable to a prisoner. See ante, at
855-856. That such assistance is valuable, however, does
not compel the conclusion that Congress intended the Fed-
eral Government to pay for it under § 848(q). As the Ninth
Circuit has aptly observed: "Section 848(q) is a funding stat-
ute. It provides for the appointment of attorneys and the
furnishing of investigative services for [federal] defendants
or habeas corpus petitioners seeking to vacate or set aside a
Cite as: 512 U. S. 849 (1994) 869
THOMAS, J., dissenting
death sentence." Jackson v. Vasquez, 1 F. 3d 885, 888 (1993)
(emphasis added). It might well be a wise and generous pol-
icy for the Government to provide prisoners appointed coun-
sel prior to the filing of a habeas petition, but that is not a
policy declared by Congress in the terms of § 848(q)(4)(B).
Implicit in the Court's analysis is the assumption that it
would be unthinkable for Congress to grant an entitlement
to appointed counsel, but to have that entitlement attach
only upon the filing of a habeas petition. The Court sug-
gests that its interpretation is required because it is "the
only one that gives meaning to the statute as a practical
matter." Ante, at 855 (emphasis added). Any other inter-
pretation, according to the Court, would "requir[e] an indi-
gent capital petitioner to proceed without counsel in order
to obtain counsel." Ante, at 856. Yet under the interpreta-
tion of § 848(q)(4)(B) I have outlined above, Congress has not
required death-sentenced prisoners to proceed without coun-
sel during the preapplication period; rather, it has merely
concluded that such prisoners would proceed without counsel
funded under § 848(q)(4)(B).
Moreover, leaving prisoners without counsel appointed
under § 848(q)(4)(B) during the preapplication period would
be fully reasonable. Congress was no doubt aware that al-
ternative sources of funding for preapplication legal assist-
ance exist for death-sentenced prisoners. Petitioner, for ex-
ample, is represented by the Texas Resource Center, which
has been "designated ... a Community Defender Organiza-
tion in accordance with 18 U. S. C. § 3006A for the purpose of
providing representation, assistance, information, and other
related services to eligible persons and appointed attorneys
in connection with" federal habeas corpus cases arising from
capital convictions. Brief for Petitioner 4, n. 3 (internal
quotation marks and citation omitted). The center, which is
"funded primarily by a grant from the Administrative Office
of the United States Courts," id., at 5, n. 4, became involved
in petitioner's case soon after his conviction was affirmed
870 McFARLAND v. SCOTT
THOMAS, J., dissenting
by the Texas Court of Criminal Appeals. Thus, although
petitioner did not have preapplication assistance of counsel
made available to him under § 848(q)(4)(B), he still could ben-
efit from federally funded legal assistance.
In addition, it seems likely that Congress expected that the
States would also shoulder some of the burden of providing
preapplication legal assistance to indigent death-sentenced
prisoners. Cf. Hill v. Lockhart, 992 F. 2d 801, 803 (CAS 1993)
("A state that has elected to impose the death penalty should
provide adequate funding for the procedures it has adopted to
properly implement that penalty"). Defendants under a
state-imposed sentence of death must exhaust state remedies
by presenting their claims in state court prior to coming to fed-
eral court. See 28 U. S. C. §2254(b). See also Coleman v.
Thompson, 501 U. S. 722 (1991). Given this exhaustion re-
quirement, it would have been logical for Congress, in drafting
§ 848(q)(4)(B), to assume that by the time a death-sentenced
prisoner reaches federal court, "possible claims and their fac-
tual bases" will already have been "researched and identified."
Ante, at 855. Indeed, if the claims have not been identified
and presented to state courts, a prisoner cannot proceed on
federal habeas. See Coleman, supra, at 731 ("This Court has
long held that a state prisoner's federal habeas petition should
be dismissed if the prisoner has not exhausted available state
remedies as to any of his federal claims"). Thus, it would not
have been unreasonable for Congress to require prisoners to
meet the ordinary requirement for invoking a federal court's
habeas jurisdiction — namely, the filing of an adequate applica-
tion for habeas corpus relief — prior to obtaining an attorney
under § 848(q)(4)(B).
II
Had the Court ended its analysis with the ruling that an
indigent death-sentenced prisoner is entitled to counsel
under §848(q)(4)(B) prior to filing an application for habeas
relief, today's decision would have an impact on federal cof-
fers, but would not expand the power of the federal courts
Cite as: 512 U. S. 849 (1994) 871
THOMAS, J., dissenting
to interfere with States' legitimate interests in enforcing the
judgments of their criminal justice systems. The Court,
however, does not stop with its decision on availability of
counsel; rather, it goes on to hold that upon a motion for
appointment of counsel, a death-sentenced prisoner is also
able to obtain a stay of his execution in order to permit coun-
sel "to research and present [his] habeas claims." Ante, at
858.
The Court reaches its decision through the sheerest form
of bootstrapping. After reasoning that "a proceeding under
section 2254" for purposes of § 848(q)(4)(B) commences with
the filing of a motion for appointment of counsel, the Court
imports that meaning of "proceeding" into 28 U. S. C. §2251,
which provides that a federal judge "before whom a habeas
corpus proceeding is pending" may "stay any proceeding
against the person detained in any State court" (emphasis
added). The Court thus concludes that "once a capital de-
fendant invokes his right to appointed counsel, a federal
court also has jurisdiction under §2251 to enter a stay of
execution." Ante, at 858. I agree with the Court that the
"language of [§§848(q)(4)(B) and 2251] indicates that the sec-
tions refer to the same proceeding." Ibid. But the method
the Court employs to impart meaning to the term "proceed-
ing" in the two provisions is simply backwards. Section
848(q)(4)(B) was enacted as part of the Anti-Drug Abuse Act
of 1988, Pub. L. 100-690, 102 Stat. 4393, long after the enact-
ment of the habeas statute. As noted above, in using the
terms "post conviction proceeding under section 2254" in
§ 848(q)(4)(B), Congress was referring to a form of action
whose contours were well established under the habeas stat-
ute. As a matter of basic statutory construction, then, we
should look to the habeas statute to inform our construction
of § 848(q)(4)(B), not vice versa.
The reason the Court pursues a different approach is clear:
There is no basis in the habeas statute for reading "habeas
corpus proceeding" in §2251 to mean an action commenced
872 McFARLAND u SCOTT
THOMAS, J., dissenting
by the filing of a motion for appointment of counsel. Thus,
to avoid the conclusion that a "proceeding" in §2251 is com-
menced by the filing of an application for habeas relief, the
Court is forced to hold that by enacting §848(q), Congress
amended the habeas statute sub silentw. Cf. ante, at 863
(O'CONNOR, J., concurring in judgment in part and dissenting
in part).3 In effect, the Court determines that Congress, in
providing death-sentenced prisoners with federally funded
counsel in § 848(q)(4)(B), intended to expand the jurisdiction
of the federal courts to stay state proceedings under the ha-
beas statute. Yet § 848(q)(4)(B) in no way suggests a con-
nection between the availability of counsel and the stay
power; indeed, the provision does not even mention the term
"stay." A proper interpretation of the provisions at issue
here, however, avoids the dubious assumption that Congress
intended to effect such an amendment of the habeas statute
by implication. Correctly interpreted, both §§ 848(q)(4)(B)
and 2251 refer to a "proceeding" that begins with the filing
of an application for habeas relief, after which a federal court
has jurisdiction to enter a stay and to appoint counsel.
In reaching its expansive interpretation of §2251, the
Court ignores the fact that the habeas statute provides fed-
eral courts with exceptional powers. Federal habeas review
"disturbs the State's significant interest in repose for con-
cluded litigation, denies society the right to punish some ad-
mitted offenders, and intrudes on state sovereignty to a de-
gree matched by few exercises of federal judicial authority."
8 Presumably, the Court's holding regarding a federal court's jurisdiction
to stay a state proceeding only applies when a state prisoner is "seeking
to vacate or set aside a death sentence." 21 U. S. C. §848(q)(4)(B). Thus,
after today, the "proceeding" to which §2251 refers will have two different
meanings depending upon whether the stay is sought by a capital or non-
capital prisoner. In the former situation, a "habeas corpus proceeding"
under §2251 will be "pending" once a motion for appointment of counsel
is filed. In the latter, no matter how many preliminary motions a prisoner
might file, a proceeding will not be "pending" until an application for ha-
beas relief is filed.
Cite as: 512 U. S. 849 (1994) 873
THOMAS, J., dissenting
Duckworth v. Eagan, 492 U. S. 195, 210 (1989) (O'CONNOR, J.,
concurring) (internal quotation marks and citation omitted).
See also ante, at 863 (O'CONNOR, J., concurring in judgment
in part and dissenting in part). We should not lightly as-
sume that Congress intended to expand federal courts' ha-
beas power; this is particularly true regarding their power
directly to interfere with state proceedings through grant-
ing stays.
Moreover, as JUSTICE O'CONNOR observes, in expanding
the federal courts' power to grant stays, the Court's decision
"conflicts with the sound principle underlying our precedents
that federal habeas review exists only to review errors of
constitutional dimension." Ante, at 861 (concurring in judg-
ment in part and dissenting in part). Under the Court's in-
terpretation of § 2251, a prisoner may obtain a stay of execu-
tion without presenting a single claim to a federal court.
Indeed, under the Court's reading of the statute, a federal
district court determining whether to enter a stay will no
longer have to evaluate whether a prisoner has presented
a potentially meritorious constitutional claim. Rather, the
court's task will be to determine whether a "capital defend-
ant" who comes to federal court shortly before his scheduled
execution has been "dilatory" in pursuing his "right to coun-
sel." Ante, at 858. If he has not been "dilatory/' the dis-
trict court presumably must enter a stay to preserve his
"right to counsel" and his "right for that counsel meaning-
fully to research and present [his] habeas claims." Ibid. In
my view, simply by providing for the appointment of counsel
in habeas cases, Congress did not intend to achieve such an
extraordinary result.
* * *
Because petitioner had not filed an application for habeas
relief prior to filing his motion for stay of execution and for
appointment of counsel, the courts below correctly deter-
mined that they lacked jurisdiction to consider his motion.
I respectfully dissent.
874 OCTOBER TERM, 1993
Syllabus
HOLDER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
AS COUNTY COMMISSIONER FOR BLECKLEY
COUNTY, GEORGIA, ET AL. v. HALL ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 91-2012. Argued October 4, 1993— Decided June 30, 1994
Bleckley County, Georgia, has always had a form of government whereby
a single commissioner holds all legislative and executive authority. In
1985, the state legislature authorized the county to adopt by referendum
a multimember commission consisting of five members elected from
single-member districts and a chair elected at large, but voters defeated
the proposal, although they had previously approved a five-member dis-
trict plan for the county school board. Respondents, black voters and
the local chapter of the National Association for the Advancement of
Colored People, filed this action. The District Court rejected their con-
stitutional claim that the single-member commission was enacted or
maintained with an intent to exclude or limit the political influence of
the county's black community in violation of the Fourteenth and Fif-
teenth Amendments. The court also ruled against their claim that the
commission's size violated § 2 of the Voting Rights Act of 1965, finding
that respondents satisfied only one of the three preconditions estab-
lished in Thornburg v. Gingles, 478 U. S. 30. The Court of Appeals
reversed on the statutory claim, holding that the totality of the circum-
stances supported § 2 liability and remanding for a formulation of a rem-
edy, which it suggested could be modeled after the county's school board
election system.
Held- The judgment is reversed, and the case is remanded.
955 F. 2d 1563, reversed and remanded.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE
O'CONNOR, concluded in Parts I, II-A, and III:
1. The size of a governing authority is not subject to a vote dilution
challenge under §2. Along with determining whether the Gingles pre-
conditions are met and whether the totality of the circumstances sup-
port a liability finding, a court in a §2 suit must find a reasonable alter-
native practice as a benchmark against which to measure the existing
voting practice. However, there is no objective and workable standard
for choosing a reasonable benchmark where, as here, the challenge is
brought to the government body's size. There is no reason why one
Cite as: 512 U. S. 874 (1994) 875
Syllabus
size should be picked over another. Respondents have offered no con-
vincing reasons why the benchmark should be a hypothetical five-
member commission. That such a commission is the most common form
of governing authority in the State does not bear on dilution, since a sole
commissioner system has the same impact on voting strength whether it
is shared by none, or by all, of Georgia's counties. That the county was
authorized to expand its commission, and that it adopted a five-member
school board, are likewise irrelevant considerations. At most, they indi-
cate that the county could change the size of its governing body with
minimal disruption, but the failure to do so says nothing about the ef-
fects the current system has on the county citizens' voting power.
Pp. 880-882.
2. The case is remanded for consideration of respondents' constitu-
tional claim. P. 885.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, concluded in Part
II-B that a voting practice subject to the preclearance requirement of
§ 5 of the Act is not necessarily subject to a dilution challenge under §2.
The sections differ in structure, purpose, and application; and in contrast
to § 2 cases, a baseline for comparison under § 5 exists by definition: A
proposed voting practice is measured against the existing practice to
determine whether retrogression would result from the proposed
change. Pp. 882-885.
JUSTICE O'CONNOR concluded that precedent compels the conclusion
that the size of a governing authority is both a "standard, practice, or
procedure" under §2 and a "standard, practice, or procedure with re-
spect to voting" under §5, but agreed that a §2 dilution challenge to a
governing authority's size cannot be maintained because there can never
be an objective alternative benchmark for comparison. Pp. 885-888.
JUSTICE THOMAS, joined by JUSTICE SCALIA, concluded that the size
of a governing body cannot be attacked under § 2 because it is not a
"standard, practice, or procedure" within the terms of § 2. An examina-
tion of § 2's text makes it clear that those terms refer only to practices
that affect minority citizens' access to the ballot. Districting systems
and electoral mechanisms that may affect the "weight" given to a ballot
duly cast and counted are simply beyond the purview of the Act. The
decision in Thornburg v. Gingles, 478 U. S. 30, which interprets § 2 to
reach claims of vote "dilution," should be overruled. Gingles was based
upon a flawed method of statutory construction and has produced an
interpretation of § 2 that is at odds with the text of the Act and that has
proved unworkable in practice. Pp. 891-946.
KENNEDY, J., announced the judgment of the Court and delivered an
opinion, in which REHNQUIST, C. X, joined, and in all but Part II-B of
876 HOLDER v. HALL
Opinion of KENNEDY, J.
which O'CONNOR, J., joined. O'CONNOR, J., filed an opinion concurring in
part and concurring in the judgment, post, p. 885. THOMAS, X, filed an
opinion concurring in the judgment, in which SCALIA, J., joined, post,
p, 891. BLACKMUN, J., filed a dissenting opinion, in which STEVENS, Sou-
TER, and GINSBURG, JJ., joined, post, p. 946. GINSBURG, J., filed a dissent-
ing opinion, post, p. 956. STEVENS, J., filed a separate opinion, in which
BLACKMUN, SOUTER, and GINSBURG, JJ., joined, post, p. 957.
R. Napier Murphy argued the cause for petitioners.
With him on the briefs was W. Lonnie Barlow.
Christopher Coates argued the cause for respondents.
With him on the brief were Laughlin McDonald, Kathleen
Wilde, Neil Bradley, Mary Wyckoff, John A. Powell, and
Steven R. Shapiro.*
JUSTICE KENNEDY announced the judgment of the Court
and delivered an opinion, in which THE CHIEF JUSTICE
joined, and in all but Part II-B of which JUSTICE O'CON-
NOR joined.
This case presents the question whether the size of a gov-
erning authority is subject to a vote dilution challenge under
§ 2 of the Voting Rights Act of 1965, 42 U. S. C. § 1973.
I
The State of Georgia has 159 counties, one of which is
Bleckley County, a rural county in central Georgia, Black
persons make up nearly 20% of the eligible voting popula-
tion in Bleckley County, Since its creation in 1912, the
county has had a single-commissioner form of government
for the exercise of "county governing authority." See Ga.
Code Ann. §1-3-3(7) (Supp. 1993). Under this system, the
*Briefs of amici curiae urging affirmance were filed for the United
States by Acting Solicitor General Bryson, Acting Assistant Attorney
General Turner, Acting Deputy Solicitor General Kneedler, Michael R.
Dreeben, and Dennis J. Dimsey; and for the Lawyers' Committee for Civil
Rights Under Law by Antonia B. lanniello, Herbert M. Wachtell, Wil-
liam H. Brown III, Norman Redlich, Thomas J. Henderson, Frank R.
Parker, and Brenda Wright.
Cite as: 512 U. S. 874 (1994) 877
Opinion of KENNEDY, J.
Bleckley County Commissioner performs all of the executive
and legislative functions of the county government, including
the levying of general and special taxes, the directing and
controlling of all county property, and the settling of all
claims. Ga. Code Ann. §36-5-22.1 (1993). In addition to
Bleckley County, about 10 other Georgia counties use the
single-commissioner system; the rest have multimember
commissions.
In 1985, the Georgia Legislature authorized Bleckley
County to adopt a multimember commission consisting of
five commissioners elected from single-member districts and
a single chairman elected at large. 1985 Ga. Laws, p. 4406.
In a referendum held in 1986, however, the electorate did not
adopt the change to a multimember commission. (In a simi-
lar referendum four years earlier, county voters had ap-
proved a five-member district plan for the election of the
county school board.)
In 1985, respondents (six black registered voters from
Bleckley County and the Cochran/Bleckley County Chapter
of the National Association for the Advancement of Colored
People) challenged the single-commissioner system in a suit
filed against petitioners (Jackie Holder, the incumbent
county commissioner, and Probate Judge Robert Johnson,
the superintendent of elections). The complaint raised both
a constitutional and a statutory claim.
In their constitutional claim, respondents alleged that the
county's single-member commission was enacted or main-
tained with an intent to exclude or to limit the political in-
fluence of the county's black community in violation of the
Fourteenth and Fifteenth Amendments. At the outset, the
District Court made extensive findings of fact about the po-
litical history and dynamics of Bleckley County. The court
found, for example, that when the county was formed in 1912,
few, if any, black citizens could vote. Indeed, until passage
of federal civil rights laws, Bleckley County "enforced racial
segregation in all aspects of local government — courthouse,
878 HOLDER u HALL
Opinion of KENNEDY, J.
jails, public housing, governmental services — and deprived
its black citizens of the opportunity to participate in local
government." 757 F. Supp. 1560, 1562 (MD Ga. 1991). And
even today, though legal segregation no longer exists, "more
black than white residents of Bleckley County continue to
endure a depressed socio-economic status." Ibid. No black
person has run for or been elected to the office of Bleckley
County Commissioner, and the District Judge stated that,
having run for public office himself, he "wouldn't run if [he]
were black in Bleckley [C]ounty." See 955 F. 2d 1563, 1571
(CA11 1992).
The court rejected respondents' constitutional contention,
however, concluding that respondents "ha[d] failed to pro-
vide any evidence that Bleckley County's single member
county commission [wa]s the product of original or continued
racial animus or discriminatory intent." 757 F, Supp., at
1571. Nor was there evidence that the system was main-
tained "for tenuous reasons" or that the commissioner him-
self was unresponsive to the "particularized needs" of the
black community. Id., at 1564. There was no "slating proc-
ess" to stand as a barrier to black candidates, and there was
testimony from respondents that they were unaware of any
racial appeals in recent elections. Id., at 1562, n. 2, 1583.
In their statutory claim, respondents asserted that the
county's single-member commission violated §2 of the Voting
Rights Act of 1965, 79 Stat. 437, as amended, 42 U. S. C.
§1973. Under the statute, the suit contended, Bleckley
County must have a county commission of sufficient size that,
with single-member election districts, the county's black citi-
zens would constitute a majority in one of the single-member
districts. Applying the § 2 framework established in Thorn-
burg v. Gingles, 478 U. S. 30 (1986), the District Court found
that respondents satisfied the first of the three Gingles pre-
conditions because black voters were sufficiently numerous
and compact that they could have constituted a majority in
one district of a multimember commission. In particular,
Cite as: 512 U. S. 874 (1994) 879
Opinion of KENNEDY, J.
the District Court found that "[i]f the county commission
were increased in number to six commissioners to be elected
from five single member districts and if the districts were
the same as the present school board election districts, a
black majority 'safe' district . . . would result/' 757 R Supp.,
at 1565. The court found, however, that respondents failed
to satisfy the second and third Gingles preconditions — that
whites vote as a bloc in a manner sufficient to defeat the
black-preferred candidate and that blacks were politically
cohesive.
The Court of Appeals for the Eleventh Circuit reversed on
the statutory claim. Relying on its decision in Carrollton
Branch of NAACP v. Stallings, 829 R 2d 1547 (1987), the
court first held that a challenge to the single-commissioner
system was subject to the same analysis as that used in Gin-
gles. Applying that analysis, the Court of Appeals agreed
with the District Court that respondents had satisfied the
first Gingles precondition by showing that blacks could con-
stitute a majority of the electorate in one of five single-
member districts. The court explained that it was "appro-
priate to consider the size and geographical compactness of
the minority group within a restructured form of the chal-
lenged system when the existing structure is being chal-
lenged as dilutive." 955 R 2d, at 1569. The Court of Ap-
peals further found that the District Court had erred in
concluding that the second and third Gingles preconditions
were not met. Turning to the totality of the circumstances,
the court found that those circumstances supported a finding
of liability under § 2. The court therefore concluded that re-
spondents had proved a violation of §2, and it remanded for
formulation of a remedy, which, it suggested, "could well be
modeled" after the system used to elect the Bleckley County
school board. 955 R 2d, at 1573-1574, and n. 20. Because
of its statutory ruling, the Court of Appeals did not consider
the District Court's ruling on respondents' constitutional
claim.
880 HOLDER v. HALL
Opinion of KENNEDY, J.
We granted certiorari to review the statutory holding of
the Court of Appeals. 507 U. S. 959 (1993).
II
A
Section 2 of the Voting Rights Act of 1965 provides that
"[n]o voting qualification or prerequisite to voting, or stand-
ard, practice, or procedure shall be imposed or applied by
any State or political subdivision in a manner which results
in a denial or abridgement of the right of any citizen of the
United States to vote on account of race or color." 42
U. S. C. § 1973(a). In a §2 vote dilution suit, along with de-
termining whether the Gingles preconditions are met1 and
whether the totality of the circumstances supports a finding
of liability, a court must find a reasonable alternative prac-
tice as a benchmark against which to measure the existing
voting practice. See post, at 887 (O'CONNOR, J., concurring
in part and concurring in judgment). As JUSTICE O'CON-
NOR explained in Gingles: "The phrase vote dilution itself
suggests a norm with respect to which the fact of dilution
may be ascertained .... [I]n order to decide whether an
electoral system has made it harder for minority voters to
elect the candidates they prefer, a court must have an idea
in mind of how hard it should be for minority voters to elect
their preferred candidates under an acceptable system."
478 U. S., at 88 (opinion concurring in judgment) (internal
quotation marks omitted).
In certain cases, the benchmark for comparison in a §2
dilution suit is obvious. The effect of an anti-single-shot
voting rule, for instance, can be evaluated by comparing the
1 Gingles requires a showing that "the minority group . . , is sufficiently
large and geographically compact to constitute a majority in a single-
member district/' 478 U. S., at 50, that the minority group is politically
cohesive, and that the majority group "votes sufficiently as a bloc to enable
it— in the absence of special circumstances . . . usually to defeat the minori-
ty's preferred candidate," id., at 51.
Cite as: 512 U. S. 874 (1994) 881
Opinion of KENNEDY, J.
system with that rule to the system without that rule. But
where there is no objective and workable standard for choos-
ing a reasonable benchmark by which to evaluate a chal-
lenged voting practice, it follows that the voting practice
cannot be challenged as dilutive under §2. See post, at
887-891 (O'CONNOR, J., concurring in part and concurring in
judgment).
As the facts of this case well illustrate, the search for a
benchmark is quite problematic when a § 2 dilution challenge
is brought to the size of a government body. There is no
principled reason why one size should be picked over another
as the benchmark for comparison. Respondents here argue
that we should compare Bleckley County's sole commissioner
system to a hypothetical five-member commission in order
to determine whether the current system is dilutive. Re-
spondents and the United States as amicus curiae give three
reasons why the single-commissioner structure should be
compared to a five-member commission (instead of, say, a
3-, 10-, or 15-member body): (1) because the five-member
commission is a common form of governing authority in
the State; (2) because the state legislature had authorized
Bleckley County to adopt a five-member commission if it so
chose (it did not); and (3) because the county had moved from
a single superintendent of education to a school board with
five members elected from single-member districts. See
Brief for United States as Amicus Curiae 17-18.
These referents do not bear upon dilution. It does not
matter, for instance, how popular the single-member com-
mission system is in Georgia in determining whether it di-
lutes the vote of a minority racial group in Bleckley County.
That the single-member commission is uncommon in the
State of Georgia, or that a five-member commission is quite
common, tells us nothing about its effects on a minority
group's voting strength. The sole commissioner system has
the same impact regardless of whether it is shared by none,
or by all, of the other counties in Georgia. It makes little
882 HOLDER v. HALL
Opinion of KENNEDY, J.
sense to say (as do respondents and the United States) that
the sole commissioner system should be subject to a dilution
challenge if it is rare — but immune if it is common.
That Bleckley County was authorized by the State to
expand its commission, and that it adopted a five-member
school board, are likewise irrelevant considerations in the
dilution inquiry. At most, those facts indicate that Bleckley
County could change the size of its commission with minimal
disruption. But the county's failure to do so says nothing
about the effects the sole commissioner system has on the
voting power of Bleckley County's citizens. Surely a minor-
ity group's voting strength would be no more or less diluted
had the State not authorized the county to alter the size of
its commission, or had the county not enlarged its school
board. One gets the sense that respondents and the United
States have chosen a benchmark for the sake of having a
benchmark. But it is one thing to say that a benchmark can
be found, quite another to give a convincing reason for find-
ing it in the first place.
B
To bolster their argument, respondents point out that our
§ 5 cases may be interpreted to indicate that covered juris-
dictions may not change the size of their government bodies
without obtaining preclearance from the Attorney General
or the federal courts. Brief for Respondents 29; see Presley
v. Etowah County Comm'n, 502 U. S. 491, 501-503 (1992);
City of Lockhart v. United States, 460 U. S. 125, 131-132
(1983); City of Rome v. United States, 446 U. S. 156, 161
(1980). Respondents contend that these § 5 cases, together
with the similarity in language between §§ 2 and 5 of the Act,
compel the conclusion that the size of a government body
must be subject to a dilution challenge under § 2. It is true
that in Chisom v. Roemer, 501 U. S. 380, 401-402 (1991), we
said that the coverage of §§2 and 5 is presumed to be the
same (at least if differential coverage would be anomalous).
We did not adopt a conclusive rule to that effect, however,
Cite as: 512 U. S. 874 (1994) 883
Opinion of KENNEDY, J.
and we do not think that the fact that a change in a voting
practice must be precleared under § 5 necessarily means that
the voting practice is subject to challenge in a dilution suit
under §2.
To be sure, if the structure and purpose of § 2 mirrored
that of §5, then the case for interpreting §§2 and 5 to have
the same application in all cases would be convincing. But
the two sections differ in structure, purpose, and applica-
tion.2 Section 5 applies only in certain jurisdictions speci-
fied by Congress and "only to proposed changes in voting
procedures/' Beer v. United States, 425 U. S. 130, 138
(1976); see 42 U. S. C, § 1973b(b) (specifying jurisdictions
where §5 applies). In those covered jurisdictions, a pro-
posed change in a voting practice must be approved in ad-
vance by the Attorney General or the federal courts.
§ 1973c. The purpose of this requirement "has always been
to insure that no voting-procedure changes would be made
that would lead to a retrogression in the position of racial
minorities with respect to their effective exercise of the elec-
toral franchise." 425 U. S., at 141. Under § 5, then, the pro-
posed voting practice is measured against the existing voting
practice to determine whether retrogression would result
from the proposed change. See ibid. The baseline for com-
parison is present by definition; it is the existing status.
While there may be difficulty in determining whether a pro-
2 Section 2 provides that "[n]o voting qualification or prerequisite to vot-
ing or standard, practice, or procedure shall be imposed or applied by any
State or political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to vote on
account of race or color." 42 U. S. C. § 1973(a).
Section 5 requires preclearance approval by a court or by the Attorney
General "[w]henever a [covered] State or political subdivision . . . shall
enact or seek to administer any voting qualification or prerequisite to vot-
ing, or standard, practice, or procedure with respect to voting . . . different
from that [previously] in force or effect" so as to ensure that it "does not
have the purpose and will not have the effect of denying or abridging the
right to vote on account of race or color . . . ." 42 U. S. C. § 1973c.
884 HOLDER v. HALL
Opinion of KENNEDY, J.
posed change would cause retrogression, there is little diffi-
culty in discerning the two voting practices to compare to
determine whether retrogression would occur. See 28 CFR
§51.54(b) (1993).
Retrogression is not the inquiry in §2 dilution cases. 42
U. S. C. § 1973(a) (whether voting practice "results in a denial
or abridgement of the right of any citizen of the United
States to vote on account of race or color"); S. Rep. No. 97-
417, p. 68, n. 224 (1982) ("Plaintiffs could not establish a
Section 2 violation merely by showing that a challenged
reapportionment or annexation, for example, involved a
retrogressive effect on the political strength of a minority
group")- Unlike in §5 cases, therefore, a benchmark does
not exist by definition in §2 dilution cases. And as ex-
plained above, with some voting practices, there in fact may
be no appropriate benchmark to determine if an existing vot-
ing practice is dilutive under § 2. For that reason, a voting
practice that is subject to the preclearance requirements of
§ 5 is not necessarily subject to a dilution challenge under § 2.
This conclusion is quite unremarkable. For example, in
Perkins v. Matthews, 400 U. S. 379, 388 (1971), we held that
a town's annexation of land was covered under § 5. Notwith-
standing that holding, we think it quite improbable to sug-
gest that a § 2 dilution challenge could be brought to a town's
existing political boundaries (in an attempt to force it to
annex surrounding land) by arguing that the current bound-
aries dilute a racial group's voting strength in comparison
to the proposed new boundaries. Likewise, in McCain v.
Lybrand, 465 U. S. 236 (1984), we indicated that a change
from an appointive to an elected office was covered under
§5. Here, again, we doubt Congress contemplated that a
racial group could bring a §2 dilution challenge to an ap-
pointive office (in an attempt to force a change to an elective
office) by arguing that the appointive office diluted its voting
strength in comparison to the proposed elective office. We
think these examples serve to show that a voting practice is
Cite as: 512 U. S. 874 (1994) 885
Opinion of O'CONNOR, J.
not necessarily subject to a dilution challenge under §2 even
when a change in that voting practice would be subject to
the preclearance requirements of § 5.
Ill
With respect to challenges to the size of a governing au-
thority, respondents fail to explain where the search for rea-
sonable alternative benchmarks should begin and end, and
they provide no acceptable principles for deciding future
cases. The wide range of possibilities makes the choice "in-
herently standardless," post, at 889 (O'CONNOR, J., concur-
ring in part and concurring in judgment), and we therefore
conclude that a plaintiff cannot maintain a § 2 challenge to
the size of a government body, such as the Bleckley County
Commission. The judgment of the Court of Appeals is re-
versed, and the case is remanded for consideration of re-
spondents' constitutional claim.
It is so ordered.
JUSTICE O'CONNOR, concurring in part and concurring in
the judgment.
I agree with JUSTICES KENNEDY and THOMAS that a plain-
tiff cannot maintain a § 2 vote dilution challenge to the size
of a governing authority, though I reach that conclusion by a
somewhat different rationale. JUSTICE THOMAS rejects the
notion that § 2 covers any dilution challenges, and would hold
that § 2 is limited to "state enactments that regulate citizens'
access to the ballot or the processes for counting a ballot."
Post, at 945. As JUSTICE STEVENS points out, however,
stare decisis concerns weigh heavily here. Post, at 963-966
(opinion of STEVENS, J.); see also Thornburg v. Gingles, 478
U. S. 30, 84 (1986) (O'CONNOR, J., concurring in judgment)
("We know that Congress intended to allow vote dilution
claims to be brought under §2"); id., at 87 ("I agree with
the Court that proof of vote dilution can establish a violation
of §2"). These concerns require me to reject JUSTICE
886 HOLDER v. HALL
Opinion of O'CONNOR, J.
THOMAS' suggestion that we overhaul our established read-
ing of §2.
I also agree with JUSTICE BLACKMUN, see post, at 946-
950, that our precedents compel the conclusion that the size
of the Bleckley County Commission is both a "standard, prac-
tice, or procedure" under §2 and a "standard, practice, or
procedure with respect to voting" under § 5. See, e. g.,
Presley v. Etowah County Cornm'n, 502 U. S. 491, 503 (1992)
(change in size is a change in a "standard, practice, or proce-
dure" because the change "increase[s] or diminish[es] the
number of officials for whom the electorate may vote"); City
of Lockhart v. United States, 460 U. S. 125, 131-132 (1983)
(change from three-member commission to five-member com-
mission is subject to §5 preclearance); City of Rome v,
United States, 446 U. S. 156, 160-161 (1980) (it "is not dis-
puted" that an expansion in the size of a board of education
is subject to § 5 preclearance); Bunion v. Patterson, decided
with Allen v. State Bd. of Elections, 393 U. S. 544, 569-571
(1969) (change from elected to appointed office is subject to
§5 preclearance); id., at 566-567 (§2 should be given "the
broadest possible scope").
As JUSTICES KENNEDY and BLACKMUN both recognize, in
these cases we have consistently said that a change in size is
a "standard, practice, or procedure with respect to voting"
that is subject to § 5 preclearance. See ante, at 882 (opinion
of KENNEDY, J.); post, at 946-948 (BLACKMUN, J,, dissenting).
And though our cases involving size have concerned § 5, I do
not think it possible to read the terms of § 2 more narrowly
than the terms of § 5. Section 2 covers any "standard, prac-
tice, or procedure," while § 5 covers any "standard, practice,
or procedure with respect to voting." As a textual matter,
I cannot see how a practice can be a "standard, practice, or
procedure with respect to voting," yet not be a "standard,
practice, or procedure." Indeed, the similarity in language
led to our conclusion in Chisom v. Roemer, 501 U. S. 380,
Cite as: 512 U. S. 874 (1994) 887
Opinion of O'CONNOR, J.
401-402 (1991), that, at least for determining threshold cov-
erage, §§2 and 5 have parallel scope.
But determining the threshold scope of coverage does not
end the inquiry, at least so far as § 2 dilution challenges are
concerned. As JUSTICES KENNEDY and BLACKMUN agree,
the fact that the size of a governing authority is a "stand-
ard, practice, or procedure" does not answer the question
whether respondents may maintain a § 2 vote dilution chal-
lenge. See ante, at 880 (opinion of KENNEDY, J.); post, at
951 (BLACKMUN, J., dissenting). Section 2 vote dilution
plaintiffs must establish that the challenged practice is dilu-
tive. In order for an electoral system to dilute a minority
group's voting power, there must be an alternative system
that would provide greater electoral opportunity to minority
voters. "Put simply, in order to decide whether an electoral
system has made it harder for minority voters to elect the
candidates they prefer, a court must have an idea in mind
of how hard it 'should7 be for minority voters to elect their
preferred candidates under an acceptable system/' Gingles,
478 U. S., at 88 (O'CONNOR, J., concurring in judgment). As
we have said, "[u]nless minority voters possess the potential
to elect representatives in the absence of the challenged
structure or practice, they cannot claim to have been injured
by that structure or practice." Id., at 50, n. 17 (emphasis
in original); see also id., at 99 (O'CONNOR, J., concurring in
judgment) ("[T]he relative lack of minority electoral success
under a challenged plan, when compared with the success
that would be predicted under the measure of undiluted mi-
nority voting strength the court is employing, can constitute
powerful evidence of vote dilution") (emphasis added).
Accordingly, to determine whether voters possess the po-
tential to elect representatives of choice in the absence of
the challenged structure, courts must choose an objectively
reasonable alternative practice as a benchmark for the dilu-
tion comparison. On this, there is general agreement. See
ante, at 880 (opinion of KENNEDY, J.) ("[A] court must find a
HOLDER v. HALL
Opinion of O'CONNOR, J.
reasonable alternative practice as a benchmark against
which to measure the existing voting practice"); post, at 951
(BLACKMUN, J., dissenting) ("[T]he allegedly dilutive mecha-
nism must be measured against the benchmark of an alterna-
tive structure or practice that is reasonable and workable
under the facts of the specific case")- We require preclear-
ance of changes in size under § 5, because in a § 5 case the
question of an alternative benchmark never arises — the
benchmark is simply the former practice employed by the
jurisdiction seeking approval of a change. See ante, at 883
(opinion of KENNEDY, J.).
But §2 dilution challenges raise more difficult questions.
This case presents the question whether, in a §2 dilution
challenge to size, there can ever be an objective alternative
benchmark for comparison. And I agree with JUSTICE
KENNEDY that there cannot be. As JUSTICE KENNEDY
points out, ante, at 880, the alternative benchmark is often
self-evident. In a challenge to a multimember at-large sys-
tem, for example, a court may compare it to a system of
multiple single-member districts. See Gingles, supra, at 38,
50; Davidson, Minority Vote Dilution: An Overview, in Mi-
nority Vote Dilution 5 (CX Davidson ed. 1984). Similarly, a
court may assess the dilutive effect of majority vote require-
ments, numbered posts, staggered terms, residency require-
ments, or anti-single-shot rules by comparing the election
results under a system with the challenged practice to the
results under a system without the challenged practice. C£
City of Rome, supra, at 183-185; U. S. Common on Civil
Rights, The Voting Rights Act: Ten Years After, pp, 206-208
(1975); Note, Application of Section 2 of the Voting Rights
Act to Runoff Primary Election Laws, 91 Colum. L. Rev.
1127, 1148 (1991). Though there may be disagreements
about the precise appropriate alternative practice in these
cases, see Gingles, supra, at 88-89 (O'CONNOR, X, concurring
in judgment), there are at least some objectively determina-
ble constraints on the dilution inquiry.
Cite as: 512 U. S. 874 (1994) 889
Opinion of O'CONNOR, J.
This is not so with § 2 dilution challenges to size, however.
In a dilution challenge to the size of a governing authority,
choosing the alternative for comparison — a hypothetical
larger (or smaller) governing authority — is extremely prob-
lematic. See ante, at 881-882 (opinion of KENNEDY, J.).
The wide range of possibilities makes the choice inherently
standardless. Here, for example, respondents argued that
the single-member commission structure was dilutive in
comparison to a five-member structure, in which African-
Americans would probably have been able to elect one rep-
resentative of their choice. Some groups, however, will
not be able to constitute a majority in one of five districts.
Once a court accepts respondents' reasoning, it will have to
allow a plaintiff group insufficiently large or geographically
compact to form a majority in one of five districts to argue
that the jurisdiction's failure to establish a 10-, 15-, or 25-
commissioner structure is dilutive. See, e. g., Romero v. Po-
mona, 883 F. 2d 1418, 1425, n. 10 (CA9 1989); Heath, Manag-
ing the Political Thicket: Developing Objective Standards in
Voting Rights Litigation, 21 Stetson L. Rev. 819, 827 (1992)
("[O]nce one departs from the current number of districts
or other objective standard, the test loses its validity as a
threshold standard").
Respondents argue that this concern with arbitrary and
standardless intrusions into the size of local governing au-
thority is overstated. Respondents' principal support for
this conclusion is that a five-member commission is the most
common size for Georgia. But a five-member commission is
not the only common size in Georgia: 22 Georgia counties
have three-member commissions (and one county has an 11-
member commission). Moreover, there is no good reason
why the search for benchmarks should be limited to Georgia.
Expanding the search nationwide produces many 20-person
county commissions in Tennessee, and 40-member commis-
sions in Wisconsin. DeSantis, County Government: A Cen-
tury of Change, in The Municipal Yearbook 1989, pp. 80, 83.
890 HOLDER v HALL
Opinion of O'CONNOR, J.
In sum, respondents do not explain how common an alterna-
tive practice must be before it can be a reliable alternative
benchmark for the dilution comparison, nor do they explain
where the search for alternative benchmarks should begin
and end.
Respondents' failure to provide any meaningful principles
for deciding future cases demonstrates the difficulty with
allowing dilution challenges to the size of a governing au-
thority. Under respondents' open-ended test, a wide range
of state governmental bodies may be subject to a dilution
challenge. Within each State there are many forms of gov-
ernment, including county commissions that range dramati-
cally in size. For example, the majority of county commis-
sions in New Jersey have seven members, but three counties
have smaller commissions and one has a larger commission.
Id, at 76. Similarly, in South Carolina the norm is a seven-
member commission, but a number of counties deviate. Id.,
at 79. In Tennessee, the average size for a county commis-
sion is 19 members, but one county has as few as 9 and an-
other has as many as 40. Id, at 80. And in Wisconsin the
average size is 27 members, but the commission sizes range
from 7 to 46. Id., at 83.
Nor are deviations from the norm limited to counties.
Statewide governing authorities also range dramatically in
size, and often do not correlate to the size of the State. For
example, Texas has only 31 members in its State Senate,
while tiny Rhode Island has 50. Council of State Govern-
ments, State Elective Officials and the Legislatures 1993-94,
p. vi. The Texas Senate is smaller than the national average
and the Rhode Island Senate is larger. Similarly, California
has an unusually small 80-person Assembly, while New
Hampshire has a 400-person House. Ibid.
The discrepancies in size among state and local governing
authorities reinforce my concern that the limiting principle
offered by respondents will in practice limit very little.
Though respondents purport to present Bleckley County as
Cite as: 512 U. S. 874 (1994) 891
THOMAS, J., concurring in judgment
unique, it is not. County commissions throughout New Jer-
sey, South Carolina, Tennessee, and Wisconsin, and the state
legislatures of Texas, Rhode Island, California, and New
Hampshire are ripe for a dilution challenge under respond-
ents' theory, since they do not fit the norm for their State.
Moreover, though my examples are some of the more ex-
treme ones, they are not alone. In these cases, and perhaps
in many more, the potential reach of allowing dilution chal-
lenges to size will not be meaningfully circumscribed by
the open-ended requirement that the alternative benchmark
be "reasonable and workable." Post, at 951 (BLACKMUN, J.,
dissenting).
For these reasons, I concur in the conclusion that respond-
ents' dilution challenge to the size of the Bleckley County
Commission cannot be maintained under §2 of the Voting
Rights Act, and I join Parts I, II-A, and III of JUSTICE KEN-
NEDY'S opinion. Because the Court appropriately reverses
the judgment below and remands for consideration of re-
spondents' constitutional claim of intentional discrimination,
I also concur in the judgment.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
concurring in the judgment.
We are asked in this case to determine whether the size
of a local governing body is subject to challenge under §2
of the Voting Rights Act of 1965 as a "dilutive" practice.
While I agree with JUSTICES KENNEDY and O'CONNOR that
the size of a governing body cannot be attacked under § 2, I
do not share their reasons for reaching that conclusion. JUS-
TICE KENNEDY persuasively demonstrates that there is no
principled method for determining a benchmark against
which the size of a governing body might be compared to
determine whether it dilutes a group's voting power. Both
he and JUSTICE O'CONNOR rely on that consideration to
conclude that size cannot be challenged under §2 of the
Act. See ante, at 880-882, 885 (opinion of KENNEDY, J.);
892 HOLDER v. HALL
THOMAS, J., concurring in judgment
ante, at 888-891 (O'CONNOR, J., concurring in part and con-
curring in judgment).
While the practical concerns JUSTICES KENNEDY and
O'CONNOR point out can inform a proper construction of the
Act, I would explicitly anchor analysis in this case in the
statutory text. Only a "voting qualification or prerequisite
to voting, or standard, practice, or procedure" can be chal-
lenged under § 2. I would hold that the size of a governing
body is not a "standard, practice, or procedure'' within the
terms of the Act. In my view, however, the only principle
limiting the scope of the terms "standard, practice, or proce-
dure'' that can be derived from the text of the Act would
exclude, not only the challenge to size advanced today, but
also challenges to allegedly dilutive election methods that we
have considered within the scope of the Act in the past.
I believe that a systematic reassessment of our interpreta-
tion of § 2 is required in this case. The broad reach we have
given the section might suggest that the size of a governing
body, like an election method that has the potential for dilut-
ing the vote of a minority group, should come within the
terms of the Act. But the gloss we have placed on the
words "standard, practice, or procedure" in cases alleging
dilution is at odds with the terms of the statute and has
proved utterly unworkable in practice. A review of the cur-
rent state of our cases shows that by construing the Act to
cover potentially dilutive electoral mechanisms, we have im-
mersed the federal courts in a hopeless project of weighing
questions of political theory — questions judges must confront
to establish a benchmark concept of an "undiluted" vote-
Worse, in pursuing the ideal measure of voting strength, we
have devised a remedial mechanism that encourages federal
courts to segregate voters into racially designated districts
to ensure minority electoral success. In doing so, we have
collaborated in what may aptly be termed the racial "balkan-
iz[ation]" of the Nation. Shaw v. Reno, 509 U. S. 630, 658
(1993),
Cite as: 512 U. S. 874 (1994) 893
THOMAS, J., concurring in judgment
I can no longer adhere to a reading of the Act that does
not comport with the terms of the statute and that has
produced such a disastrous misadventure in judicial policy-
making. I would hold that the size of a government body is
not a "standard, practice, or procedure" because, properly
understood, those terms reach only state enactments that
limit citizens' access to the ballot.
If one surveys the history of the Voting Rights Act, 42
U. S. C. § 1973 et seq., one can only be struck by the sea
change that has occurred in the application and enforcement
of the Act since it was passed in 1965. The statute was orig-
inally perceived as a remedial provision directed specifically
at eradicating discriminatory practices that restricted
blacks' ability to register and vote in the segregated South.
Now, the Act has grown into something entirely different.
In construing the Act to cover claims of vote dilution, we
have converted the Act into a device for regulating, ration-
ing, and apportioning political power among racial and ethnic
groups. In the process, we have read the Act essentially as
a grant of authority to the federal judiciary to develop theo-
ries on basic principles of representative government, for it
is only a resort to political theory that can enable a court to
determine which electoral systems provide the "fairest" lev-
els of representation or the most "effective" or "undiluted"
votes to minorities.
Before I turn to an analysis of the text of § 2 to explain
why, in my view, the terms of the statute do not authorize
the project that we have undertaken in the name of the Act,
I intend first simply to describe the development of the basic
contours of vote dilution actions under the Voting Rights
Act.1 An examination of the current state of our decisions
1 Of course, many of the basic principles I will discuss are equally appli-
cable to constitutional vote dilution cases. Indeed, prior to the amend-
ment of the Voting Rights Act in 1982, dilution claims typically were
894 HOLDER u HALL
THOMAS, J., concurring in judgment
should make obvious a simple fact that for far too long has
gone unmentioned: Vote dilution cases have required the fed-
eral courts to make decisions based on highly political judg-
ments— -judgments that courts are inherently ill-equipped to
make. A clear understanding of the destructive assump-
tions that have developed to guide vote dilution decisions
and the role we have given the federal courts in redrawing
the political landscape of the Nation should make clear the
pressing need for us to reassess our interpretation of the
Act.
A
As it was enforced in the years immediately following its
enactment, the Voting Rights Act of 1965, Pub. L. 89-110, 79
Stat. 437, was perceived primarily as legislation directed at
eliminating literacy tests and similar devices that had been
used to prevent black voter registration in the segregated
South. See A. Thernstrom, Whose Votes Count? Affirma-
tive Action and Minority Voting Rights 17-27 (1987) (herein-
after Thernstrom). See also Guinier, The Representation of
Minority Interests: The Question of Single-Member Dis-
tricts, 14 Cardozo L. Rev. 1135, 1151 (1993) (referring to ac-
tions securing access to the ballot as the "first generation"
of Voting Rights Act claims).2 This focus in enforcement
flowed, no doubt, from the emphasis on access to the ballot
apparent in the central provision of the Act, § 4, which used
a mathematical formula based on voter registration and
brought under the Equal Protection Clause. See, e. g*f White v. Regester,
412 IT. S. 755 (1973); Whitcomb v. Ckavis, 403 U. S. 124 (1971); Burns v.
Richardson, 384 U. S. 73 (1966). The early development of our voting
rights jurisprudence in those cases provided the basis for our analysis of
vote dilution under the amended §2 in Thornburg v. Gingles, 478 U. S.
30 (1986).
2 Cf. L. Guinier, The Tyranny of the Majority 49, n. 68 (1994) (hereinafter
Guinier) ("The first generation of voting litigation, and the 1965 statute
which represented the congressional response, were concerned with the
complete and total exclusion of blacks firom the electoral process")-
Cite as: 512 U. S. 874 (1994) 895
THOMAS, J., concurring in judgment
turnout in 1964 to define certain "covered3" jurisdictions in
which the use of literacy tests was immediately suspended.
Pub. L. 89-110, §4, 79 Stat. 438. Section 6 of the Act re-
flected the same concern for registration as it provided that
federal examiners could be dispatched to covered jurisdic-
tions whenever the Attorney General deemed it necessary
to supervise the registration of black voters. 42 U. S. C.
§ 1973d. And to prevent evasion of the requirements of §4,
§ 5 required that covered jurisdictions obtain "preclearance"
from the Department of Justice before altering any "voting
qualification or prerequisite to voting, or standard, practice,
or procedure with respect to voting." § 1973c.
The Act was immediately and notably successful in remov-
ing barriers to registration and ensuring access to the ballot.
For example, in Mississippi, black registration levels sky-
rocketed from 6.7% to 59.8% in a mere two years; in Alabama
the increase was from 19.3% to 51.6% in the same time pe-
riod. See Thernstrom 18. By the end of 1967, black voter
registration had reached at least 50% in every covered State.
See B. Grofman, L. Handley, & R. Niemi, Minority Represen-
tation and the Quest for Voting Equality 22 (1992).
The Court's decision in Allen v. State Bd. of Elections, 393
U. S. 544 (1969), however, marked a fundamental shift in the
focal point of the Act. In an opinion dealing with four com-
panion cases, the Allen Court determined that the Act
should be given "the broadest possible scope." Id., at 567.
Thus, in Fairley v. Patterson, the Court decided that a
covered jurisdiction's switch from a districting system to an
at-large system for election of county supervisors was a
"standard, practice, or procedure with respect to voting,"
subject to preclearance under § 5. Id., at 569. Stating that
the Act "was aimed at the subtle, as well as the obvious,
state regulations which have the effect of denying citizens
their right to vote because of their race," id., at 565, the
Court reasoned that §5's preclearance provisions should
apply, not only to changes in electoral laws that pertain to
896 HOLDER u HALL
THOMAS, J., concurring in judgment
registration and access to the ballot, but to provisions that
might "dilute" the force of minority votes that were duly cast
and counted. See id., at 569. The decision in Allen thus
ensured that the terms "standard, practice, or procedure"
would extend to encompass a wide array of electoral prac-
tices or voting systems that might be challenged for reducing
the potential impact of minority votes.
As a consequence, Allen also ensured that courts would be
required to confront a number of complex and essentially
political questions in assessing claims of vote dilution under
the Voting Rights Act. The central difficulty in any vote
dilution case, of course, is determining a point of comparison
against which dilution can be measured. As Justice Frank-
furter observed several years before Allen, "[tjalk of 'debase-
ment' or 'dilution' is circular talk. One cannot speak of 'de-
basement' or 'dilution' of the value of a vote until there is
first defined a standard of reference as to what a vote should
be worth." Baker v. Carr, 369 U S. 186, 300 (1962) (dissent-
ing opinion). See also Thornburg v. Gingles, 478 U. S. 30,
88 (1986) (O'CONNOR, J., concurring in judgment) C'[I]n order
to decide whether an electoral system has made it harder for
minority voters to elect the candidates they prefer, a court
must have an idea in mind of how hard it 'should' be for
minority voters to elect their preferred candidates under an
acceptable system"). But in setting the benchmark of what
"undiluted" or fully "effective" voting strength should be, a
court must necessarily make some judgments based purely
on an assessment of principles of political theory. As Justice
Harlan pointed out in his dissent in Allen, the Voting Rights
Act supplies no rule for a court to rely upon in deciding, for
example, whether a multiinember at-large system of election
is to be preferred to a single-member district system; that is,
whether one provides a more "effective" vote than another.
"Under one system, Negroes have some influence in the elec-
tion of all officers; under the other, minority groups have
more influence in the selection of fewer officers." Allen,
Cite as: 512 U. S. 874 (1994) 897
THOMAS, J., concurring in judgment
supra, at 586 (opinion concurring in part and dissenting in
part). The choice is inherently a political one, and depends
upon the selection of a theory for defining the fully "effec-
tive" vote — at bottom, a theory for defining effective par-
ticipation in representative government. In short, what
a court is actually asked to do in a vote dilution case is
"to choose among competing bases of representation — ulti-
mately, really, among competing theories of political philoso-
phy." Baker, supra, at 300 (Frankfurter, J., dissenting).
Perhaps the most prominent feature of the philosophy
that has emerged in vote dilution decisions since Allen has
been the Court's preference for single-member districting
schemes, both as a benchmark for measuring undiluted mi-
nority voting strength and as a remedial mechanism for
guaranteeing minorities undiluted voting power. See, e. g.,
Growe v. Emison, 507 U. S. 25, 40 (1993); Gingles, supra, at
50, n. 17 (declaring that the "single-member district is gener-
ally the appropriate standard against which to measure mi-
nority group potential to elect"); Mobile v. Bolden, 446 U. S.
55, 66, n. 12 (1980) (plurality opinion) (noting that single-
member districts should be preferred in court-ordered reme-
dial schemes); Connor v. Finch, 431 U. S. 407, 415 (1977)
(same). Indeed, commentators surveying the history of
voting rights litigation have concluded that it has been the
objective of voting rights plaintiffs to use the Act to attack
multimember districting schemes and to replace them with
single-member districting systems drawn with majority-
minority districts to ensure minority control of seats. See
Guinier, 14 Cardozo L. Rev., at 1151; Guinier 49-54; Thern-
strom 193.
It should be apparent, however, that there is no principle
inherent in our constitutional system, or even in the history
of the Nation's electoral practices, that makes single-member
districts the "proper" mechanism for electing representa-
tives to governmental bodies or for giving "undiluted" effect
to the votes of a numerical minority. On the contrary, from
898 HOLDER u HALL
THOMAS, J., concurring in judgment
the earliest days of the Republic, multimember districts
were a common feature of our political systems. The Fram-
ers left unanswered in the Constitution the question whether
congressional delegations from the several States should be
elected on a general ticket from each State as a whole or
under a districting scheme and left that matter to be re-
solved by the States or by Congress. See U. S. Const., Art.
I, §4, cl. 1. It was not until 1842 that Congress determined
that Representatives should be elected from single-member
districts in the States. See Act of June 25, 1842, ch. 47, 5
Stat. 491.3 Single-member districting was no more the rule
in the States themselves, for the Constitutions of most of the
13 original States provided that representatives in the state
legislatures were to be elected from multimember districts.4
Today, although they have come under increasing attack
under the Voting Rights Act, multimember district systems
continue to be a feature on the American political landscape,
especially in municipal governments. See The Municipal
Yearbook 14 (table) (1988) (over 60% of American cities use
at-large election systems for their governing bodies).
The obvious advantage the Court has perceived in single-
member districts, of course, is their tendency to enhance the
ability of any numerical minority in the electorate to gain
control of seats in a representative body. See Gingles,
supra, at 50-51. But in choosing single-member districting
as a benchmark electoral plan on that basis the Court has
made a political decision and, indeed, a decision that itself
depends on a prior political choice made in answer to Justice
Harlan's question in Allen. Justice Harlan asked whether a
8 At that time, seven States elected their congressional delegations on
a statewide ticket See Wesberry v. Sanders, 376 U. S. 1, 8, n. 11 (1964),
4 See, e. g., Ga. Const, Art IV (1777); Mass. Const, Part II, ch. I, §11,
Arts. I, II (1780); N. H. Const, Part II (1784); N. J. Const, Art III (1776);
N. Y. Const, Art. IV (1777); S. C. Const, Art XIII (1778). See also Klain,
A New Look at the Constituencies: The Need for a Recount and a Reap-
praisal, 49 Am. Pol. Sci. Rev. 1105, 1112-1113 (1955).
Cite as: 512 U. S. 874 (1994) 899
THOMAS, J., concurring in judgment
group's votes should be considered to be more "effective"
when they provide influence over a greater number of seats,
or control over a lesser number of seats. See 393 U. S., at
586. In answering that query, the Court has determined
that the purpose of the vote — or of the fully "effective"
vote — is controlling seats. In other words, in an effort to
develop standards for assessing claims of dilution, the Court
has adopted the view that members of any numerically sig-
nificant minority are denied a fully effective use of the fran-
chise unless they are able to control seats in an elected body.5
Under this theory, votes that do not control a representative
are essentially wasted; those who cast them go unrepre-
sented and are just as surely disenfranchised as if they had
been barred from registering. Cf. id., at 569 (equating de-
nial of the ability to elect candidates with denial of the vote).
Such conclusions, of course, depend upon a certain theory of
the "effective" vote, a theory that is not inherent in the con-
cept of representative democracy itself.6
6 See, e. g., Gingles, 478 U. S., at 88 (O'CONNOR, J., concurring in judg-
ment) (noting that the Court has determined that "minority voting
strength is to be assessed solely in terms of the minority group's ability
to elect candidates it prefers") (emphasis deleted). See also Abrarns,
"Raising Politics Up": Minority Political Participation and Section 2 of the
Voting Rights Act, 63 N. Y. U. L. Rev. 449, 456, n. 43, 468-471 (1988)
(criticizing the Court's "electoral focus" as a narrow conception of "political
opportunity"); Guinier 49 (arguing that since Gingles, courts "have meas-
ured black political representation and participation solely by reference to
the number and consistent election of black candidates").
6 Undoubtedly, one factor that has prompted our focus on control of seats
has been a desire, when confronted with an abstract question of political
theory concerning the measure of effective participation in government,
to seize upon an objective standard for deciding cases, however much it
may oversimplify the issues before us. If using control of seats as our
standard does not reflect a very nuanced theory of political participation,
it at least has the superficial advantage of appealing to the "most easily
measured indicia of political power." Davis v. Bandemer, 478 U. S. 109,
157 (1986) (O'CONNOR, J., concurring in judgment).
900 HOLDER v. HALL
THOMAS, J., concurring in judgment
In fact, it should be clear that the assumptions that have
guided the Court reflect only one possible understanding of
effective exercise of the franchise, an understanding based
on the view that voters are "represented" only when they
choose a delegate who will mirror their views in the legisla-
tive halls. See generally EL Pitkin, The Concept of Repre-
sentation 60-91 (1967).7 But it is certainly possible to con-
struct a theory of effective political participation that would
accord greater importance to voters' ability to influence,
rather than control, elections. And especially in a two-party
system such as ours, the influence of a potential "swing"
group of voters composing 10% to 20% of the electorate in a
given district can be considerable.8 Even such a focus on
practical influence, however, is not a necessary component of
the definition of the "effective" vote. Some conceptions of
representative government may primarily emphasize the
formal value of the vote as a mechanism for participation in
7 Indeed, the assumptions underpinning the Court's conclusions largely
parallel principles that John Stuart Mill advanced in proposing a system
of proportional representation as an electoral reform in Great Britain.
See J. S. Mill, Considerations on Representative Government (1861). In
Mill's view, a just system of representative government required an elec-
toral system that ensured "a minority of the electors would always have
a minority of the representatives." Id., at 133. To Mill, a system that
allowed a portion of the population that constituted a majority in each
district to control the election of all representatives and to defeat the
minority's choice of candidates was unjust because it operated to produce
a "complete disfranchisement of minorities." Id., at 132.
8 We ourselves have tacitly acknowledged that our current view of what
constitutes an effective vote may be subject to reevaluation, or at least
that it may not provide an exclusive definition of effective voting power,
as we repeatedly have reserved the question whether a vote dilution claim
may be brought for failure to create minority "influence" districts. See,
e. g., Voinovich v. Quilter, 507 U. S. 146, 154 (1993) (citing cases). Of
Bandemer, supra, at 132 (noting that "the power to influence the political
process is not limited to winning elections"); Gingles, supra, at 99 (O'CON-
NOR, J., concurring in judgment) (suggesting that the Court should not
focus solely on a minority group's ability to elect representatives in assess-
ing the effectiveness of the group's votes).
Cite as: 512 U. S. 874 (1994) 901
THOMAS, J., concurring in judgment
the electoral process, whether it results in control of a seat
or not. Cf. id., at 14-59.9 Under such a theory, minorities
unable to control elected posts would not be considered es-
sentially without a vote; rather, a vote duly cast and counted
would be deemed just as "effective" as any other. If a
minority group is unable to control seats, that result may
plausibly be attributed to the inescapable fact that, in a
majoritarian system, numerical minorities lose elections.10
In short, there are undoubtedly an infinite number of theo-
ries of effective suffrage, representation, and the proper ap-
portionment of political power in a representative democracy
that could be drawn upon to answer the questions posed in
Allen. See generally Pitkin, supra. I do not pretend to
have provided the most sophisticated account of the various
possibilities; but such matters of political theory are beyond
the ordinary sphere of federal judges. And that is precisely
the point. The matters the Court has set out to resolve in
vote dilution cases are questions of political philosophy, not
questions of law.11 As such, they are not readily subjected
9 Cf. also Levinson, Gerrymandering and the Brooding Omnipresence of
Proportional Representation, 33 UCLA L. Rev. 257, 260-261 (1985).
10 There are traces of this view in our cases as well. See Whitcomb,
403 U. S., at 153, 155; id., at 160 ("The short of it is that we are unprepared
to hold that district-based elections decided by plurality vote are unconsti-
tutional in either single- or multi-member districts simply because the
supporters of losing candidates have no legislative seats assigned to
them")* See also League of United Latin American Citizens v. Midland
Independent School Dist, 812 F. 2d 1494, 1507 (CA5) (Higginbothain, J.,
dissenting) ("I had supposed that the essence of our republican arrange-
ment is that voting minorities lose"), vacated on rehearing, 829 F. 2d 546
(1987) (en bane) (per curiam).
11 The point is perhaps so widely accepted at this date that it needs little
further demonstration. See, e. g., L. Tribe, American Constitutional Law
§ 13-7, p. 1076, n. 7 (2d ed. 1988) (stating that "no strategy [in vote dilution
cases] can avoid the necessity for at least some hard substantive decisions
of political theory by the federal judiciary"); Howard & Howard, The Di-
lemma of the Voting Rights Act— Recognizing the Emerging Political
Equality Norm, 83 Colum. L. Rev. 1615, 1633, 1635 (1983) (hereinafter
902 HOLDER v. HALL
THOMAS, J., concurring in judgment
to any judicially manageable standards that can guide courts
in attempting to select between competing theories.
But the political choices the Court has had to make do not
end with the determination that the primary purpose of the
"effective" vote is controlling seats or with the selection of
single-member districting as the mechanism for providing
that control. In one sense, these were not even the most
critical decisions to be made in devising standards for assess-
ing claims of dilution, for, in itself, the selection of single-
member districting as a benchmark election plan will tell a
judge little about the number of minority districts to create.
Single-member districting tells a court "how" members of a
minority are to control seats, but not "how many" seats they
should be allowed to control.
But "how many" is the critical issue. Once one accepts
the proposition that the effectiveness of votes is measured
in terms of the control of seats, the core of any vote dilution
claim is an assertion that the group in question is unable to
control the "proper" number of seats — that is, the number of
seats that the minority's percentage of the population would
enable it to control in the benchmark "fair" system. The
claim is inherently based on ratios between the numbers of
the minority in the population and the numbers of seats con-
trolled. As JUSTICE O'CONNOR has noted, "any theory of
vote dilution must necessarily rely to some extent on a meas-
ure of minority voting strength that makes some reference
to the proportion between the minority group and the elec-
torate at large." Gingles, 478 U. S., at 84 (opinion concur-
ring in judgment). As a result, only a mathematical calcula-
tion can answer the fundamental question posed by a claim
of vote dilution. And once again, in selecting the proportion
that will be used to define the undiluted strength of a minor-
Howard & Howard) (arguing that the Court has developed a "substantive
theory of representative government" and a theory of "allocating political
power" in vote dilution cases).
Cite as: 512 U. S. 874 (1994) 903
THOMAS, J., concurring in judgment
ity — the ratio that will provide the principle for decision in
a vote dilution case — a court must make a political choice.
The ratio for which this Court has opted, and thus the
mathematical principle driving the results in our cases, is
undoubtedly direct proportionality. Indeed, four Members
of the Court candidly recognized in Gingles that the Court
had adopted a rule of roughly proportional representation,
at least to the extent proportionality was possible given
the geographic dispersion of minority populations. See id.,
at 85, 91, 98-99 (O'CONNOR, J., concurring in judgment).
While in itself that choice may strike us intuitively as the
fairest or most just rule to apply, opting for proportionality
is still a political choice, not a result required by any princi-
ple of law.
B
The dabbling in political theory that dilution cases have
prompted, however, is hardly the worst aspect of our vote
dilution jurisprudence. Far more pernicious has been the
Court's willingness to accept the one underlying premise
that must inform every minority vote dilution claim: the as-
sumption that the group asserting dilution is not merely a
racial or ethnic group, but a group having distinct political
interests as well. Of necessity, in resolving vote dilution ac-
tions we have given credence to the view that race defines
political interest. We have acted on the implicit assumption
that members of racial and ethnic groups must all think alike
on important matters of public policy and must have their
own "minority preferred" representatives holding seats in
elected bodies if they are to be considered represented at all.
It is true that in Gingles we stated that whether a racial
group is "politically cohesive" may not be assumed, but
rather must be proved in each case. See 478 U. S., at 51, 56.
See also Growe, 507 U. S., at 40-41. But the standards we
have employed for determining political cohesion have
proved so insubstantial that this "precondition" does not
present much of a barrier to the assertion of vote dilution
904 HOLDER u HALL
THOMAS, J., concurring in judgment
claims on behalf of any racial group.12 Moreover, it provides
no test — indeed, it is not designed to provide a test — of
whether race itself determines a distinctive political commu-
nity of interest. According to the rule adopted in Gingles,
plaintiffs must show simply that members of a racial group
tend to prefer the same candidates. See 478 U. S., at 61-67
(opinion of Brennan, J.). There is no set standard defining
how strong the correlation must be, and an inquiry into the
cause for the correlation (to determine, for example, whether
it might be the product of similar socioeconomic interests
rather than some other factor related to race) is unnecessary.
Ibid. See also id., at 100 (O'CONNOR, J., concurring in judg-
ment).13 Thus, whenever similarities in political preferences
along racial lines exist, we proclaim that the cause of the
correlation is irrelevant, but we effectively rely on the fact
of the correlation to assume that racial groups have unique
political interests.
12 Cf. Citizens for a Better Gretna v. Gretna, 834 F. 2d 496, 501-602 (CA5
1987) (emphasizing that political cohesion under Gingles can be shown
where a "significant number" of minority voters prefer the same candi-
date, and suggesting that data showing that anywhere from 49% to 67% of
the members of a minority group preferred the same candidate established
cohesion), cert, denied, 492 U. S. 905 (1989).
18 JUSTICE O'CONNOR agreed with Justice Brennan in Gingles that, inso-
far as determining political cohesion was concerned, the cause for a corre-
lation between race and candidate preference was irrelevant. She main-
tained, however, that evidence of the cause of the correlation would still
be relevant to the overall vote dilution inquiry and particularly to the
question whether a white majority will usually vote to defeat the minori-
ty's preferred candidate. See 478 U. S., at 100 (opinion concurring in judg-
ment). The splintering of opinions in Gingles on this point has produced,
at best, "uncertainty," Overton v. Austin, 871 F. 2d 529, 538 (CA5 1989),
and has allowed bivariate regression analysis — that is, an analysis that
measures merely the correlation between race and candidate preference
and that does not directly control for other factors — to become the norm
for determining cohesion in vote dilution cases. See id., at 539. But cf.
League of United Latin American Citizens v. Clements, 999 R 2d 831,
850-851 (CA5 1993), cert denied, 510 U. S, 1071 (1994).
Cite as: 512 U. S. 874 (1994) 905
THOMAS, J., concurring in judgment
As a result, Gingles* requirement of proof of political cohe-
siveness, as practically applied, has proved little different
from a working assumption that racial groups can be con-
ceived of largely as political interest groups. And operating
under that assumption, we have assigned federal courts the
task of ensuring that minorities are assured their "just"
share of seats in elected bodies throughout the Nation.
To achieve that result through the currently fashionable
mechanism of drawing majority-minority single-member dis-
tricts, we have embarked upon what has been aptly charac-
terized as a process of "creating racially 'safe boroughs/ "
United States v. Dallas County Comm'n, 850 F. 2d 1433, 1444
(CA11 1988) (Hill, J., concurring specially), cert, denied, 490
U. S. 1030 (1989). We have involved the federal courts, and
indeed the Nation, in the enterprise of systematically divid-
ing the country into electoral districts along racial lines — an
enterprise of segregating the races into political homelands
that amounts, in truth, to nothing short of a system of "politi-
cal apartheid." Shaw, 509 U. S., at 647. See also id., at 657
(noting that racial gerrymandering "may balkanize us into
competing racial factions"). Blacks are drawn into "black
districts" and given "black representatives"; Hispanics are
drawn into Hispanic districts and given "Hispanic repre-
sentatives"; and so on. Worse still, it is not only the courts
that have taken up this project. In response to judicial deci-
sions and the promptings of the Justice Department, the
States themselves, in an attempt to avoid costly and disrup-
tive Voting Rights Act litigation, have begun to gerrymander
electoral districts according to race. That practice now
promises to embroil the courts in a lengthy process of at-
tempting to undo, or at least to minimize, the damage
wrought by the system we created. See, e. g., Shaw, supra;
Hays v. Louisiana, 839 F. Supp. 1188 (WD La. 1993), appeal
pending, No. 93-1539.
The assumptions upon which our vote dilution decisions
have been based should be repugnant to any nation that
906 HOLDER v HALL
THOMAS, J., concurring in judgment
strives for the ideal of a color-blind Constitution. "The
principle of equality is at war with the notion that District
A must be represented by a Negro, as it is with the notion
that District B must be represented by a Caucasian, District
C by a Jew, District D by a Catholic, and so on/' Wright v.
Rockefeller, 376 U. S. 52, 66 (1964) (Douglas, J., dissenting).
Despite Justice Douglas' warning sounded 30 years ago, our
voting rights decisions are rapidly progressing toward a sys-
tem that is indistinguishable in principle from a scheme
under which members of different racial groups are divided
into separate electoral registers and allocated a proportion
of political power on the basis of race. C£ id., at 63-66.
Under our jurisprudence, rather than requiring registration
on racial rolls and dividing power purely on a population
basis, we have simply resorted to the somewhat less precise
expedient of drawing geographic district lines to capture mi-
nority populations and to ensure the existence of the "appro-
priate" number of "safe minority seats."
That distinction in the practical implementation of the con-
cept, of course, is immaterial.14 The basic premises underly-
ing our system of safe minority districts and those behind
the racial register are the same: that members of the racial
group must think alike and that their interests are so distinct
that the group must be provided a separate body of repre-
sentatives in the legislature to voice its unique point of view.
Such a "system, by whatever name it is called, is a divisive
force in a community, emphasizing differences between can-
didates and voters that are irrelevant." Id., at 66. Justice
Douglas correctly predicted the results of state sponsorship
of such a theory of representation: "When racial or religious
14 Of Lijphart, Proportionality by Non-PR Methods: Ethnic Representa-
tion in Belgium, Cyprus, Lebanon, New Zealand, West Germany, and Zim-
babwe, in Electoral Laws and Their Political Consequences 113, 116 (B.
Grofman & A. Lijphart eds. 1986) (describing methods other than separate
electoral registers to allocate political power on the basis of ethnicity or
race).
Cite as: 512 U. S. 874 (1994) 907
THOMAS, J., concurring in judgment
lines are drawn by the State, . . . antagonisms that relate to
race or to religion rather than to political issues are gener-
ated; communities seek not the best representative but the
best racial or religious partisan/' /d, at 67. In short, few
devices could be better designed to exacerbate racial ten-
sions than the consciously segregated districting system cur-
rently being constructed in the name of the Voting Rights
Act.
As a practical political matter, our drive to segregate polit-
ical districts by race can only serve to deepen racial divisions
by destroying any need for voters or candidates to build
bridges between racial groups or to form voting coalitions.
"Black-preferred" candidates are assured election in "safe
black districts"; white-preferred candidates are assured elec-
tion in "safe white districts." Neither group needs to draw
on support from the other's constituency to win on election
day. As one judge described the current trend of voting
rights cases: "We are bent upon polarizing political subdivi-
sions by race. The arrangement we construct makes it un-
necessary, and probably unwise, for an elected official from a
white majority district to be responsive at all to the wishes
of black citizens; similarly, it is politically unwise for a black
official from a black majority district to be responsive at all
to white citizens." Dallas County Comm'n, 850 F. 2d, at
1444 (Hill, J., concurring specially).
As this description suggests, the system we have insti-
tuted affirmatively encourages a racially based understand-
ing of the representative function. The clear premise of the
system is that geographic districts are merely a device to be
manipulated to establish "black representatives" whose real
constituencies are defined, not in terms of the voters who
populate their districts, but in terms of race. The "black
representative's" function, in other words, is to represent the
"black interest." Cf. Shaw, 509 U. S., at 650 (recognizing
that systems that "classify and separate voters by race"
threaten "to undermine our system of representative democ-
908 HOLDER u HALL
THOMAS, J., concurring in judgment
racy by signaling to elected officials that they represent a
particular racial group rather than their constituency as a
whole").
Perhaps not surprisingly, the United States has now
adopted precisely this theory of racial group representation,
as the arguments advanced in another case decided today,
Johnson v. De Grandy, post, p. 997, should show. The case
involved a claim that an apportionment plan for the Florida
Legislature should have provided another Hispanic district
in Bade County. Florida responded to the claim of vote di-
lution by arguing that the plan already provided Bade
County Hispanics with seats in proportion to their numbers.
According to the Solicitor General, this claim of proportional-
ity should have been evaluated, not merely on the basis of
the population in the Bade County area where the racial ger-
rymandering was alleged to have occurred, but on a state-
wide basis. It did not matter, in the Solicitor General's
view, that Hispanic populations elsewhere in the State could
not meet the Gingles geographic compactness test, see 478
U. S., at 50, and thus could not possibly have controlled dis-
tricts of their own. After all, the Solicitor General rea-
soned, the Hispanic legislators elected from Hispanic dis-
tricts in Bade County would represent, not just the interests
of the Bade County Hispanics, but the interests of all the
Hispanics in the State. Brief for United States in Johnson
v. De Grandy, 0. T. 1993, No. 92-519, p. 20. As the argu-
ment shows, at least some careful observers have recognized
the racial gerrymandering in our vote dilution cases for what
it is: a slightly less precise mechanism than the racial regis-
ter for allocating representation on the basis of race.
While the results we have already achieved under the Vot-
ing Rights Act might seem bad enough, we should recognize
that our approach to splintering the electorate into racially
designated single-member districts does not by any means
Cite as: 512 U. S. 874 (1994) 909
THOMAS, J., concurring in judgment
mark a limit on the authority federal judges may wield to
rework electoral systems under our Voting Rights Act juris-
prudence. On the contrary, in relying on single-member dis-
tricting schemes as a touchstone, our cases so far have been
somewhat arbitrarily limited to addressing the interests of
minority voters who are sufficiently geographically compact
to form a majority in a single-member district. See Gingles,
supra, at 49-50. There is no reason a priori, however, that
our focus should be so constrained. The decision to rely on
single-member geographic districts as a mechanism for con-
ducting elections is merely a political choice — and one that
we might reconsider in the future. Indeed, it is a choice that
has undoubtedly been influenced by the adversary process:
In the cases that have come before us, plaintiffs have focused
largely upon attacking multimember districts and have of-
fered single-member schemes as the benchmark of an "undi-
luted" alternative.
But as the destructive effects of our current penchant for
majority-minority districts become more apparent, cf. Shaw,
supra, courts will undoubtedly be called upon to reconsider
adherence to geographic districting as a method for ensuring
minority voting power. Already, some advocates have criti-
cized the current strategy of creating majority-minority dis-
tricts and have urged the adoption of other voting mecha-
nisms— for example, cumulative voting15 or a system using
16 Under a cumulative voting scheme, a system commonly used in corpo-
rations to protect the interests of minority shareholders, see R. Clark,
Corporate Law §9.1.3, pp. 361-366 (1986), each voter has as many votes
as there are posts to be filled, and the voter may cast as many of his votes
as he wishes for a single candidate. The system thus allows a numerical
minority to concentrate its voting power behind a given candidate without
requiring that the minority voters themselves be concentrated into a sin-
gle district. For a complete description of the mechanics of cumulative
voting, see Zimmerman, The Federal Voting Rights Act and Alternative
Election Systems, 19 Wm. & Mary L. Rev. 621, 654-657 (1978).
910 HOLDER v. HALL
THOMAS, J., concurring in judgment
transferable votes16 — that can produce proportional results
without requiring division of the electorate into racially seg-
regated districts. C£, e.g., Guinier 14-15, 94-101; How-
ard & Howard 1660; Karlan, Maps and Misreadings: The Role
of Geographic Compactness in Racial Vote Dilution Litiga-
tion, 24 Harv. Civ. Rights-Civ. Lib. L. Rev. 173, 174-175, 231-
236 (1989) (hereinafter Karlan); Taebel, Engstrom, & Cole,
Alternative Electoral Systems As Remedies for Minority
Vote Dilution, 11 Hamline J. of Public Law & Policy 19
(1990); Note, Reconciling the Right to Vote with the Voting
Rights Act, 92 Colum. L. Rev. 1810, 1857-1865 (1992).
Such changes may seem radical departures from the elec-
toral systems with which we are most familiar. Indeed,
they may be unwanted by the people in the several States
who purposely have adopted districting systems in their
electoral laws. But nothing in our present understanding of
the Voting Rights Act places a principled limit on the author-
ity of federal courts that would prevent them from institut-
ing a system of cumulative voting as a remedy under §2,
or even from establishing a more elaborate mechanism for
securing proportional representation based on transferable
votes.17 As some Members of the Court have already recog-
16 A system utilizing transferable votes is designed to ensure propor-
tional representation with "mathematical exactness." Id., at 640. Under
such a system, each voter rank orders his choices of candidates. To win,
a candidate must receive a fixed quota of votes, which may be set by any
of several methods. Ballots listing a given candidate as the voter's first
choice are counted for that candidate until the candidate has secured the
quota of votes necessary for election. Remaining first-choice ballots for
that candidate are then transferred to another candidate, usually the one
listed as the second choice on the ballot. See id., at 640-642* Like cumu-
lative voting, the system allows a minority group to concentrate its voting
power without requiring districting, and it has the additional advantage
of ensuring that "surplus" votes are transferred to support the election of
the minority voters' next preference.
17 Such methods of voting cannot be rejected out-of-hand as bizarre con-
coctions of Voting Rights Act plaintiffs. The system of transferable votes
was a widely celebrated, although unsuccessful, proposal for English par-
Cite as: 512 U. S. 874 (1994) 911
THOMAS, J., concurring in judgment
nized, geographic districting is not a requirement inherent
in our political system. See, e. g., Davis v. Bandemer, 478
U. S. 109, 159 (1986) (O'CONNOR, JL, concurring in judgment)
("Districting itself represents a middle ground between
winner-take-all statewide elections and proportional repre-
sentation for political parties"); id., at 160 (noting that our
current practice of accepting district-based elections as a
given is simply a "political judgment"). Rather, districting
is merely another political choice made by the citizenry in
the drafting of their state constitutions. Like other political
choices concerning electoral systems and models of represen-
tation, it too is presumably subject to a judicial override if
it comes into conflict with the theories of representation
and effective voting that we may develop under the Voting
Rights Act.
Indeed, the unvarnished truth is that all that is required
for districting to fall out of favor is for Members of this Court
to further develop their political thinking. We should not
be surprised if voting rights advocates encourage us to "re-
vive our political imagination," Guinier, 14 Cardozo L. Rev.,
at 1137, and to consider "innovative and nontraditional reme-
dies" for vote dilution, Karlan 221, for under our Voting
Rights Act jurisprudence, it is only the limits on our "politi-
cal imagination" that place restraints on the standards we
may select for defining undiluted voting systems. Once we
candidly recognize that geographic districting and other as-
pects of electoral systems that we have so far placed beyond
question are merely political choices, those practices, too,
liamentary reform in the last century. See generally T. Hare, Election of
Representatives (4th ed. 1873); J, S. Mill, Considerations on Representa-
tive Government (1861). And while it is an oddity in American political
history, cumulative voting in an at-large system has been employed in
some American jurisdictions. See Weaver, Semi-Proportional and Pro-
portional Representation Systems in the United States, in Choosing an
Electoral System 191, 198 (A. Lyphart & B. Grofiman eds. 1984); Hyne-
man & Morgan, Cumulative Voting in Illinois, 32 111. L. Rev. 12 (1937).
See also 111. Const., Art IV, §§7, 8 (1870).
912 HOLDER v. HALL
THOMAS, J., concurring in judgment
may fall under suspicion of having a dilutive effect on minor-
ity voting strength. And when the time comes to put the
question to the test, it may be difficult indeed for a Court
that, under Gingles, has been bent on creating roughly pro-
portional representation for geographically compact minori-
ties to find a principled reason for holding that a geographi-
cally dispersed minority cannot challenge districting itself as
a dilutive electoral practice. In principle, cumulative voting
and other non-district-based methods of effecting propor-
tional representation are simply more efficient and straight-
forward mechanisms for achieving what has already become
our tacit objective: roughly proportional allocation of politi-
cal power according to race.
At least one court, in fact, has already abandoned district-
ing and has opted instead for cumulative voting on a county-
wide basis as a remedy for a Voting Rights Act violation.
The District Court for the District of Maryland recently rea-
soned that, compared to a system that divides voters into
districts according to race, "[cumulative voting is less likely
to increase polarization between different interests," and
that it "will allow the voters, by the way they exercise their
votes, to 'district' themselves," thereby avoiding government
involvement in a process of segregating the electorate.
Cane v. Worcester County, 847 F. Supp. 369, 373 (1994).
Cf. Guinier, 14 Cardozo L. Rev., at 1135-1136 (proposing a
similar analysis of the benefits of cumulative voting); Karlan
236 (same). If such a system can be ordered on a county-
wide basis, we should recognize that there is no limiting
principle under the Act that would prevent federal courts
from requiring it for elections to state legislatures as welL
D
Such is the current state of our understanding of the Vot-
ing Rights Act. That our reading of the Act has assigned
the federal judiciary the task of making the decisions I have
described above should suggest to the Members of this Court
Cite as: 512 U. S. 874 (1994) 913
THOMAS, J., concurring in judgment
that something in our jurisprudence has gone awry.18 We
would be mighty Platonic guardians indeed if Congress had
granted us the authority to determine the best form of local
government for every county, city, village, and town in
America. But under our constitutional system, this Court
is not a centralized politburo appointed for life to dictate to
the provinces the "correct" theories of democratic represen-
tation, the "best" electoral systems for securing truly "rep-
resentative" government, the "fairest" proportions of minor-
ity political influence, or, as respondents would have us hold
today, the "proper" sizes for local governing bodies. We
should be cautious in interpreting any Act of Congress to
grant us power to make such determinations.
JUSTICE BLACKMUN suggests that, if we were to interpret
the Act to allow challenges to the size of governmental bod-
ies under § 2, the Court's power to determine the structure
that local governing bodies must take would be bounded by
the constraints that local customs provide in the form of
benchmarks. Post, at 952-953. But as JUSTICE O'CONNOR
rightly points out, such benchmarks are themselves arbi-
trarily selected and would provide no assured limits on judi-
cial power. Ante, at 888-891. In my view, the local stand-
ards to which JUSTICE BLACKMUN points today are little
different from the various standards to which the Court has
resorted in the past as touchstones of undiluted voting sys-
tems. The appeal to such standards, which are necessarily
arbitrarily chosen, should not serve to obscure the assump-
tion in the Court's vote dilution jurisprudence of a sweeping
18 JUSTICE STEVENS suggests that the discussion above outlines policy
arguments best addressed to Congress. See post, at 957. In one sense,
that is precisely my point. The issues I have discussed above involve
policy decisions that are matters best left to Congress. Our interpreta-
tion of the Voting Rights Act, however, has required federal courts to take
over the policy-making role in the area of voting rights and has forced
judges to make decisions on matters beyond the normal sphere of judi-
cial competence*
914 HOLDER v. HALL
THOMAS, J., concurring in judgment
authority to select the electoral systems to be used by every
governing body in each of the 50 States, and to do so based
upon little more than the passing preference of five Members
of this Court for one political theory over another.
A full understanding of the authority that our current in-
terpretation of the Voting Rights Act assigns to the federal
courts, and of the destructive effects that our exercise of that
authority is presently having upon our body politic, compels
a single conclusion: A systematic reexamination of our inter-
pretation of the Act is required.
II
Section 2(a) of the Voting Rights Act provides that "[n]o
voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any
State or political subdivision in a manner which results in a
denial or abridgement of the right of any citizen of the
United States to vote" on account of race, color, or member-
ship in one of the language minority groups defined in the
Act. 42 II S. C. §1973(a). Respondents contend that the
terms "standard, practice, or procedure" should extend to
cover the size of a governmental body. An examination of
the text of § 2 makes it clear, however, that the terms of the
Act do not reach that far; indeed, the terms of the Act do
not allow many of the challenges to electoral mechanisms
that we have permitted in the past. Properly understood,
the terms "standard, practice, or procedure" in §2(a) refer
only to practices that affect minority citizens' access to
the ballot. Districting systems and electoral mechanisms
that may affect the "weight" given to a ballot duly cast and
counted are simply beyond the purview of the Act.
In determining the scope of §2(a), as when interpreting
any statute, we should begin with the statutory language.
See Connecticut Nat Bank v. Germain, 503 U. S. 249, 253-
Cite as: 512 U. S. 874 (1994) 915
THOMAS, J., concurring in judgment
254 (1992). Under the plain terms of the Act, § 2(a) covers
only a defined category of state actions. Only "voting quali-
fication[s]," "prerequisite^] to voting/' or "standard[s], prac-
tice[s], or procedure[s]" are subject to challenge under the
Act. The first two items in this list clearly refer to condi-
tions or tests applied to regulate citizens' access to the ballot.
They would cover, for example, any form of test or require-
ment imposed as a condition on registration or on the process
of voting on election day.
Taken in isolation, the last grouping of terms — "standard,
practice, or procedure" — may seem somewhat less precise.
If we give the words their ordinary meanings, however — for
they have no technical significance and are not defined in the
Act — they would not normally be understood to include the
size of a local governing body. Common sense indicates that
the size of a governing body and other aspects of government
structure do not comfortably fit within the terms "standard,
practice, or procedure." Moreover, we need not simply
treat the terms in isolation; indeed, it would be a mistake to
do so. Cf. United Sav. Assn. of Tex. v. Timbers of Inwood
Forest Associates, Ltd., 484 U. S. 365, 371 (1988). Reading
the words in context strongly suggests that §2(a) must be
understood as referring to any standard, practice, or proce-
dure with respect to voting. And thus understood, the
terms of the section would not extend to the size of a gov-
ernmental body; we would not usually describe the size or
form of a governing authority as a "practice" or "procedure"
concerning voting.
But under our precedents, we have already stretched the
terms "standard, practice, or procedure" beyond the limits
of ordinary meaning. We have concluded, for example, that
the choice of a certain set of district lines is a "procedure," or
perhaps a "practice," concerning voting subject to challenge
under the Act, see Growe, 507 U. S., at 40-41, even though
the drawing of a given set of district lines has nothing to do
with the basic process of allowing a citizen to vote — that is,
916 HOLDER u HALL
THOMAS, J., concurring m judgment
the process of registering, casting a ballot, and having it
counted. Similarly, we have determined that the use of
multimember districts, rather than single-member districts,
can be challenged under the Act. See Gingles, 478 U. S,, at
46-51. Undoubtedly, one of the critical reasons we have
read § 2 to reach such districting decisions is that the choice
of one districting system over another can affect a minority
group's power to control seats in the elected body. See ibid.
In that respect, however, the districting practices we have
treated as subject to challenge under the Act are essentially
similar to choices concerning the size of a governing author-
ity. Just as drawing district lines one way rather than an-
other, or using one type of districting system rather than
another, can affect the ability of a minority group to control
seats, so can restricting the number of seats that are avail-
able. And if how districts are drawn is a "practice" concern-
ing voting, why not conclude that how many districts are
drawn is a "practice" as well?
To be sure, a distinction can be made between the size of
a local governing body and a districting mechanism. After
all, we would ordinarily think that the size of a government
has greater independent significance for the functioning of
the governmental body than the choice of districting systems
apportioning representation. Interfering with the form of
government, therefore, might appear to involve a greater in-
trusion on state sovereignty. But such distinctions between
the size of a governing body and other potential "voting
practices" do not, at bottom, depend upon how closely each
is related to "voting," and thus they are not rooted in any
way in the text of § 2(a). On the contrary, while it may seem
obvious that the size of a government is not within the reach
of the Act, if we look to the text of the statute for the limiting
principle that confines the terms "standard, practice, or pro-
cedure" and excludes government size from their reach, we
must conclude that the only line drawn in §2 excludes many
Cite as: 512 U. S. 874 (1994) 917
THOMAS, J., concurring in judgment
"practices" that we have already decided are subject to chal-
lenge under the Act.
If we return to the Act to reexamine the terms setting out
the actions regulated by §2, a careful reading of the statu-
tory text will reveal a good deal more about the limitations
on the scope of the section than suggested above. The
terms "standard, practice, or procedure" appear to have been
included in §2 as a sort of catchall provision. They seem
phrased with an eye to eliminating the possibility of eva-
sion.19 Nevertheless, they are catchall terms that round out
a list, and a sensible and long-established maxim of construc-
tion limits the way we should understand such general words
appended to an enumeration of more specific items. The
principle of ejusdem generis suggests that such general
terms should be understood to refer to items belonging to
the same class that is defined by the more specific terms in
the list. See, e. g., Cleveland v. United States, 329 U. S. 14,
18 (1946).
Here, the specific items described in § 2(a) ("voting qualifi-
cation[s]?? and "prerequisite[s] to voting") indicate that Con-
gress was concerned in this section with any procedure, how-
ever it might be denominated, that regulates citizens' access
to the ballot — that is, any procedure that might erect a bar-
rier to prevent the potential voter from casting his vote. In
describing the laws that would be subject to §2, Congress
focused attention upon provisions regulating the interaction
between the individual voter and the voting process — on
hurdles the citizen might have to cross in the form of "pre-
requisites" or "qualifications." The general terms in the
section are most naturally understood, therefore, to refer to
19 Cf. South Carolina v. Katzenbach, 383 U. S. 301, 335 (1966) (noting
that "Congress knew that some of the States . . . had resorted to the
extraordinary stratagem of contriving new rules of various kinds for the
sole purpose of perpetuating voting discrimination in the face of adverse
federal court decrees" and that "Congress had reason to suppose that
these States might try similar maneuvers in the future")-
918 HOLDER v. HALL
THOMAS, J., concurring in judgment
any methods for conducting a part of the voting process that
might similarly be used to interfere with a citizen's ability
to cast his vote, and they are undoubtedly intended to ensure
that the entire voting process — a process that begins with
registration and includes the casting of a ballot and having
the ballot counted — is covered by the Act. Cl infra, at 919-
920. Simply by including general terms in § 2(a) to ensure
the efficacy of the restriction imposed, Congress should not
be understood to have expanded the scope of the restriction
beyond the logical limits implied in the specific terms of the
statute. Cf. Cleveland, supra, at 18 ("Under the ejusdem
generis rule of construction the general words are confined
to the class and may not be used to enlarge it").
Moreover, it is not only in the terms describing the prac-
tices regulated under the Act that § 2(a) focuses on the indi-
vidual voter. The section also speaks only in the singular
of the right of "any citizen" to vote. Giving the terms
"standard, practice, or procedure" an expansive interpreta-
tion to reach potentially dilutive practices, however, would
distort that focus on the individual, for a vote dilution claim
necessarily depends on the assertion of a group right. Cf.
Bandemer, 478 U. S., at 150-151 (O'CONNOR, J., concurring
in judgment). At the heart of the claim is the contention
that the members of a group collectively have been unable
to exert the influence that their numbers suggest they might
under an alternative system. Such a group right, however,
finds no grounding in the terms of §2(a).
Of course, the scope of the right that is protected under
the Act can provide further guidance concerning the mean-
ing of the terms "standard, practice, or procedure." Under
the terms of the Act, only a "standard, practice, or proce-
dure" that may result in the "denial or abridgement of the
right ... to vote" is within the reach of §2(a). But nothing
in the language used in § 2(a) to describe the protection pro-
vided by the Act suggests that in protecting the "right to
vote," the section was meant to incorporate a concept of vot-
Cite as: 512 U. S. 874 (1994) 919
THOMAS, J., concurring in judgment
ing that encompasses a concern for the "weight" or "influ-
ence" of votes. On the contrary, the definition of the terms
"vote" and "voting" in § 14(c)(l) of the Act focuses precisely
on access to the ballot Thus, §14(c)(l) provides that the
terms "vote" and "voting" shall encompass any measures
necessary to ensure "registration" and any "other action re-
quired by law prerequisite to voting, casting a ballot, and
having such ballot counted properly and included in the ap-
propriate totals of votes cast." 42 U. S. C. § 1973Z(c)(l).
It is true that § 14(c)(l) also states that the term "voting"
"include[s] all action necessary to make a vote effective"
ibid, (emphasis added), and the Court has seized on this lan-
guage as an indication that Congress intended the Act to
reach claims of vote dilution. See Allen, 393 U. S., at 566.
But if the word "effective" is not plucked out of context, the
rest of § 14(c)(l) makes clear that the actions Congress
deemed necessary to make a vote "effective" were precisely
the actions listed above: registering, satisfying other voting
prerequisites, casting a ballot, and having it included in the
final tally of votes cast. These actions are described in the
section only as examples of the steps necessary to make a
vote effective. See 42 U. S. C. § 1973i(c)(l). And while the
list of such actions is not exclusive, the nature of all the ex-
amples that are provided demonstrates that as far as the Act
is concerned, an "effective" vote is merely one that has been
cast and fairly counted. See 393 U. S., at 590, n. 7 (Harlan,
J., concurring in part and dissenting in part).
Reading the Act's prohibition of practices that may result
in a "denial or abridgement of the right ... to vote" as pro-
tecting only access to the ballot also yields an interpretation
that is consistent with the Court's construction of virtually
identical language in the Fifteenth Amendment. The use of
language taken from the Amendment suggests that the sec-
tion was intended to protect a "right to vote" with the same
scope as the right secured by the Amendment itself; cer-
tainly, no reason appears from the text of the Act for giving
920 HOLDER u HALL
THOMAS, J., concurring in judgment
the language a broader construction in the statute than we
have given it in the Constitution. The Court has never de-
cided, however, whether the Fifteenth Amendment should
be understood to protect against vote "dilution." See Voin-
ovich v. Quitter, 507 U. S. 146, 159 (1993). See also Beer v.
United States, 425 U. S. 130, 142, n. 14 (1976) (noting that
there is no decision of this Court holding a legislative appor-
tionment plan violative of the Fifteenth Amendment).20
While the terms of §2(a) thus indicate that the section
focuses only on securing access to the ballot, it might be ar-
gued that reenactment of §2 in 1982 should be understood
as an endorsement of the interpretation contained in cases
such as Allen that the terms "standard, practice, or proce-
dure" were meant to reach potentially dilutive practices.
See Lorillard v. Pons, 434 U. S. 575, 580-581 (1978). It is
true that we generally will assume that reenactment of spe-
cific statutory language is intended to include a "settled judi-
cial interpretation" of that language. Pierce v. Underwood,
487 U.S. 552, 567 (1988). And while §2 was amended in
20 Indeed, in Mobile v. Bolden, 446 U. S. 65 (1980), a plurality of the
Court concluded that the Fifteenth Amendment did not address concerns
of dilution at all. See id., at 65. Cf id., at 84, n. 3 (STEVENS, J., concur-
ring in judgment) (noting that the plurality had concluded that the Fif-
teenth Amendment "applies only to practices that directly affect access to
the ballot and hence is totally inapplicable to the case at bar").
Contrary to JUSTICE STEVENS' suggestions, post, at 958, 962, Gomillion
v. Lightfoot, 364 U. S. 339 (1960), does not indicate that the Fifteenth
Amendment, in protecting the right to vote, incorporates a concern for
anything beyond securing access to the ballot. The Gomillwn plaintiffs'
claims centered precisely on access: Their complaint was not that the
weight of their votes had been diminished in some way, but that the bound-
aries of a city had been drawn to prevent blacks from voting in municipal
elections altogether. Id., at 341. Gomillwn thus "maintains the distinc-
tion between an attempt to exclude Negroes totally from the relevant
constituency, and a statute that permits Negroes to vote but which uses
the gerrymander to contain the impact of Negro suffrage." Allen v. State
Bd. of Elections, 393 U. S. 544, 589 (1969) (Harlan, X, concurring in part
and dissenting in part).
Cite as: 512 U. S. 874 (1994) 921
THOMAS, J., concurring in judgment
1982, the amended section did retain the same language that
had appeared in the original Act regulating "standardfs],
practice^], or procedure[s]."21 But it was hardly well set-
tled in 1982 that Allen's broad reading of the terms "stand-
ard, practice, or procedure'' in § 5 would set the scope of § 2
as a provision reaching claims of vote dilution.
On the contrary, in 1980 in Mobile v. Bolden, 446 U. S.
55, a plurality of the Court construed § 2 in a manner flatly
inconsistent with the understanding that those terms were
meant to reach dilutive practices. Emphasizing that the
section tracked the language of the Fifteenth Amendment
by prohibiting the use of practices that might "deny or
abridge the right ... to vote," the Bolden plurality deter-
mined that § 2 was "intended to have an effect no different
from that of the Fifteenth Amendment itself/' Id., at 61.
In the plurality's view, however, the Fifteenth Amendment
did not extend to reach dilution claims; its protections were
satisfied as long as members of racial minorities could " 'reg-
ister and vote without hindrance/" Id., at 65. Bolden re-
mained the last word from this Court interpreting § 2 at the
time the section was amended in 1982. Cf. Rogers v. Lodge,
458 U. S. 613, 619, n. 6 (1982). Thus, the reenactment in the
amended section of the same language covering any "stand-
ard, practice, or procedure" and the retention of virtually
identical language protecting against the "denial or abridge-
ment of the right ... to vote" can hardly be understood as an
endorsement of a broad reading of the section as a provision
reaching claims of vote dilution.22
21 The original § 2 provided that no "standard, practice, or procedure"
should be imposed or applied "to deny or abridge the right ... to vote."
Pub. L. 89-110, §2, 79 Stat. 437.
22 If anything, applying the Lonllard v. Pans, 434 U. S. 575 (1978), prin-
ciple of construction might suggest that, by reenacting virtually the same
language derived from the Fifteenth Amendment to define the basic inter-
est protected by the Act, Congress intended to preserve the limitation
that the Bolden plurality found implicit in that language. It is clear from
the terms of the amendments passed in 1982 that where Congress sought
922 HOLDER v. HALL
THOMAS, J., concurring in judgment
Finally, as our cases have shown, reading §2(a) to reach
beyond laws that regulate in some way citizens' access to the
ballot turns the section into a command for courts to evalu-
ate abstract principles of political theory in order to de-
velop rules for deciding which votes are "diluted" and which
are not. See generally supra, at 894-903. Common sense
would suggest that we should not lightly interpret the Act
to require courts to address such matters so far outside the
normal bounds of judicial competence, and the mere use of
three more general terms at the end of the list of regulated
practices in § 2(a) cannot properly be understood to incorpo-
rate such an expansive command into the Act.
Properly understood, therefore, §2(a) is a provision de-
signed to protect access to the ballot, and in regulating
"standard[s], practice[s], and procedure[s]," it reaches only
"those state laws that [relate to] either voter qualifications
or the manner in which elections are conducted." Allen,
393 U. S., at 591 (Harlan, J., concurring in part and dissenting
in part). The section thus covers all manner of registration
requirements, the practices surrounding registration (includ-
ing the selection of times and places where registration takes
place and the selection of registrars), the locations of polling
places, the times polls are open, the use of paper ballots as
opposed to voting machines, and other similar aspects of the
voting process that might be manipulated to deny any citizen
the right to cast a ballot and have it properly counted. The
to alter the understanding of the Act announced in Bolden, it did so explic-
itly in the text of the statute. As I explain more fully, infra, at 923-925,
the 1982 amendments modified §2 to eliminate the requirement under
Bolden that §2 plaintiffs, like plaintiffs under the Fifteenth Amendment,
show that a challenged practice was adopted with a discriminatory intent,
see 446 U. S., at 62-63, and replaced that test with specific language in
§ 2(b) setting a standard based simply on discriminatory results. See Pub.
L. 97-205, §3, 96 Stat. 134. Had Congress intended to alter the under-
standing that § 2 protects a concept of the "right to vote" that does not
extend to prohibit vote dilution, it likely would have addressed that aspect
of Bolden explicitly as well.
Cite as: 512 U. S. 874 (1994) 923
THOMAS, J., concurring in judgment
section does not cover, however, the choice of a multimember
over a single-member districting system or the selection of
one set of districting lines over another, or any other such
electoral mechanism or method of election that might reduce
the weight or influence a ballot may have in controlling the
outcome of an election.
Of course, this interpretation of the terms "standard, prac-
tice, or procedure" effectively means that § 2(a) does not pro-
vide for any claims of what we have called vote "dilution."
But that is precisely the result suggested by the text of the
statute. Section 2(a) nowhere uses the term "vote dilution"
or suggests that its goal is to ensure that votes are given
their proper "weight." And an examination of §2(b) does
not suggest any different result. It is true that in constru-
ing § 2 to reach vote dilution claims in Thornburg v. Gingles,
478 U. S. 30 (1986), the Court relied largely on the gloss on
§ 2(b) supplied in the legislative history of the 1982 amend-
ments to the Act. See id., at 43-46. But the text of § 2(b)
supplies a weak foundation indeed for reading the Act to
reach such claims.
As the Court concluded in Gingles, the 1982 amendments
incorporated into the Act, and specifically into §2(b), a "re-
sults" test for measuring violations of § 2(a). That test was
intended to replace, for §2 purposes, the "intent" test the
Court had announced in Bolden for voting rights claims
under § 2 of the Voting Rights Act and under the Fourteenth
and Fifteenth Amendments. Section 2(a) thus prohibits
certain state actions that may "resul[t] in a denial or abridge-
ment" of the right to vote, and § 2(b) incorporates virtually
the exact language of the "results test" employed by the
Court in White v. Regester, 412 U. S. 755 (1973), and applied
in constitutional voting rights cases before our decision in
Bolden. The section directs courts to consider whether
"based on the totality of circumstances," a state practice re-
sults in members of a minority group "hav[ing] less opportu-
nity than other members of the electorate to participate in
924 HOLDER v. HALL
THOMAS, J., concurring in judgment
the political process and to elect representatives of their
choice." 42 U. S. C. §1973(b). Cf. White, supra, at 766;
Whitcomb v. Chavis, 403 U. S. 124, 149 (1971).
But the mere adoption of a "results" test, rather than an
"intent" test, says nothing about the type of state laws that
may be challenged using that test. On the contrary, the
type of state law that may be challenged under §2 is ad-
dressed explicitly in §2(a). As we noted in Chisom v. Roe-
mer, 501 U. S. 380 (1991), §§2(a) and (b) address distinct is-
sues. -While §2(a) defines and explicitly limits the type of
voting practice that may be challenged under the Act, § 2(b)
provides only "the test for determining the legality of such
a practice." Id., at 391. Thus, as an initial matter, there is
no reason to think that § 2(b) could serve to expand the scope
of the prohibition in § 2(a), which, as I described above, does
not extend by its terms to electoral mechanisms that might
have a dilutive effect on group voting power.
Even putting that concern aside for the moment, it should
be apparent that the incorporation of a results test into the
amended section does not necessarily suggest that Congress
intended to allow claims of vote dilution under §2. A re-
sults test is useful to plaintiffs whether they are challenging
laws that restrict access to the ballot or laws that accomplish
some diminution in the "proper weight" of a group's vote.
Nothing about the test itself suggests that it is inherently
tied to vote dilution claims. A law, for example, limiting the
times and places at which registration can occur might be
adopted with the purpose of limiting black voter registra-
tion, but it could be extremely difficult to prove the discrimi-
natory intent behind such a facially neutral law. The results
test would allow plaintiffs to mount a successful challenge to
the law under § 2 without such proof.
Moreover, nothing in the language § 2(b) uses to describe
the results test particularly indicates that the test was in-
tended to be used under the Act for assessing claims of dilu-
tion. Section 2(b) directs courts to consider whether, under
Cite as: 512 U. S. 874 (1994) 925
THOMAS, J., concurring in judgment
the "totality of circumstances/' members of a minority group
"have less opportunity than other members of the electorate
to participate in the political process and to elect representa-
tives of their choice." 42 U. S. C. § 1973(b). The most natu-
ral reading of that language would suggest that citizens have
an equal "opportunity" to participate in the electoral process
and an equal "opportunity" to elect representatives when
they have been given the same free and open access to the
ballot as other citizens and their votes have been properly
counted. The section speaks in terms of an opportunity — a
chance — to participate and to elect, not an assured ability to
attain any particular result. And since the ballot provides
the formal mechanism for obtaining access to the political
process and for electing representatives, it would seem that
one who has had the same chance as others to register and
to cast his ballot has had an equal opportunity to participate
and to elect, whether or not any of the candidates he chooses
is ultimately successful.
To be sure, the test in §2(b) could be read to apply to
claims of vote dilution as well. But to conclude, for example,
that a multimember districting system had denied a group
of voters an equal opportunity to participate in the political
process and to elect representatives, a court would have to
embark on the extended project in political theory that I
described above in Part I of this opinion. In other words, a
court would have to develop some theory of the benchmark
undiluted voting system that provides minorities with the
"fairest" or most "equitable" share of political influence. Un-
doubtedly, a dizzying array of concepts of political equality
might be described to aid in that task, and each could be used
to attribute different values to different systems of election.
See, e. g., Still, Political Equality and Election Systems, 91
Ethics 375 (1981).23 But the statutory command to deter-
28 See also Banzhaf, Multi-Member Electoral Districts— Do They Violate
the "One Man, One Vote" Principle, 75 Yale L. J. 1309 (1966) (suggesting
that how close different districting systems come to providing persons
926 HOLDER u HALL
THOMAS, J., concurring in judgment
mine whether members of a minority have had an equal
"opportunity ... to participate in the political process and
to elect representatives" provides no guidance concerning
which one of the possible standards setting undiluted voting
strength should be chosen over the others. And it would be
contrary to common sense to read § 2(b)*s reference to equal
opportunity as a charter for federal courts to embark on the
ambitious project of developing a theory of political equality
to be imposed on the Nation.24
It is true that one factor courts may consider under the
results test might fit more comfortably with an interpreta-
tion of the Act that reaches vote dilution claims. Section
2(b) provides that "one circumstance" that may be considered
in assessing the results test is the "extent to which members
of a protected class have been elected to office." 42 U. S. C,
§ 1973(b). Obviously, electoral outcomes would be relevant
to claims of vote dilution (assuming, of course, that control
equal political "power" can be measured by comparing the statistical prob-
ability under each system that a person's vote will determine the election
result). C£ Whitcomb, 403 U. S., at 145, n. 23.
24 In addition, in one respect there is a significant tension between the
terms of the results test and an interpretation of the Act that reaches vote
dilution claims. Section 2(b) provides that a violation may be established
where it is shown that members of a minority have less opportunity than
other members of the electorate "to participate in the political process
and to elect representatives of their choice." 42 U S. C. § 1973(b) (em-
phasis added). We have held that any challenged "standard, practice, or
procedure" must have both of these effects to violate the test outlined in
§2(b). See Chisom v. Roemer, 501 U. S, 380, 397 (1991). It is not clear,
however, that a potentially dilutive districting method can satisfy both
prongs of the test. The primary effect of the choice of one districting
system over another will be the direct and mathematically quantifiable
impact that the system will have on a minority group's ability to control
a given number of seats. But even if one assumes that a districting sys-
tem may therefore be said to impair a group's "opportunity" to "elect rep-
resentatives of its choice," it is difficult to see how a districting system
could be said to impair a group's opportunity to "participate in the political
process," at least if participation is understood to have any meaning dis-
tinct from controlling seats.
Cite as: 512 U. S. 874 (1994) 927
THOMAS, J., concurring in judgment
of seats has been selected as the measure of effective voting).
But in some circumstances, results in recent elections might
also be relevant for demonstrating that a particular practice
concerning registration or polling has served to suppress mi-
nority voting, Better factors to consider would be figures
for voter registration or turnout at the last election, broken
down according to race. But where such data are not
readily available, election results may certainly be "one cir-
cumstance" to consider in determining whether a challenged
practice has resulted in denying a minority group access to
the political process. The Act merely directs courts not to
ignore such evidence of electoral outcomes altogether.
Moreover, the language providing that electoral outcomes
may be considered as "one circumstance" in the results test
is explicitly qualified by the provision in §2(b) that most di-
rectly speaks to the question whether § 2 was meant to reach
claims of vote dilution — and which suggests that dilution
claims are not covered by the section. The last clause in the
subsection states in unmistakable terms that "nothing in this
section establishes a right to have members of a protected
class elected in numbers equal to their proportion in the pop-
ulation." 42 U. S. C. § 1973(b). As four Members of the
Court observed in Gingles, there is "an inherent tension"
between this disclaimer of proportional representation and
an interpretation of §2 that encompasses vote dilution
claims. 478 U. S., at 84 (O'CONNOR, J., concurring in judg-
ment). As I explained above, dilution claims, by their very
nature, depend upon a mathematical principle. The heart of
the claim is an assertion that the plaintiff group does not hold
the "proper" number of seats. As a result, the principle for
deciding the case must be supplied by an arithmetic ratio.
Either the group has attained the "proper" number of seats
under the current election system, or it has not.
By declaring that the section provides no right to propor-
tional representation, §2(b) necessarily commands that the
existence or absence of proportional electoral results should
928 HOLDER u HALL
THOMAS, J,, concurring in judgment
not become the deciding factor in assessing § 2 claims. But
in doing so, §2(b) removes from consideration the most logi-
cal ratio for assessing a claim of vote dilution. To resolve a
dilution claim under §2, therefore, a court either must arbi-
trarily select a different ratio to represent the "undiluted"
norm, a ratio that would have less intuitive appeal than di-
rect proportionality, or it must effectively apply a propor-
tionality test in direct contravention of the text of the
Act25 — hence the "inherent tension" between the text of the
Act and vote dilution claims. Given that § 2 nowhere speaks
in terms of "dilution," an explicit disclaimer removing from
the field of play the most natural deciding principle in dilu-
tion cases is surely a strong signal that such claims do not
fall within the ambit of the Act.26
25 As I discuss more fully below, our cases have pursued the latter
option. See infra, at 936-944.
26 In Johnson v. De Gran&y, post, p. 997, the Court suggests that § 2(b)
disclaims only a guarantee of success for minority candidates and thus
that it has nothing to say concerning remedial schemes designed to pro-
vide a minority group proportional control over seats. See post, at 1014,
n. 11. See also post, at 1026-1027 (KENNEDY, J., concurring in part and
concurring in judgment). Minority control, of course, may or may not
result in the election of minority candidates. The Court's reading of the
disclaimer, in my view, distorts the obvious import of the provision. The
clause rejecting a group's right to elect its own members in proportion to
their numbers must be understood as a disclaimer of a minority group's
right to proportional political power. Otherwise, in practical terms, the
clause would be reduced to a nullity.
It should be clear that a system that gives a minority group proportional
control effectively provides the "right" to elect a proportionate number of
minority candidates that the Act disclaims. Whether that right is utilized
by minority voters to elect minority candidates is a matter of the voters'
choice. The De Grandy Court's position seems to be that the proviso is
directed, not at a system intended to guarantee the ability to elect minor-
ity candidates in proportion to the minority's numbers, but only at a
system that will invariably guarantee the election of a proportionate
number of minority candidates. Only one system would fit that descrip-
tion: a system based on a racial register in which a quota of seats are set
aside for members of a minority group. I think it would be preposterous
Cite as: 512 U. S. 874 (1994) 929
THOMAS, J., concurring in judgment
It is true that the terms "standard, practice, or procedure"
in § 5 of the Act have been construed to reach districting
systems and other potentially dilutive electoral mechanisms,
see, e. g., Allen, 393 U. S., at 569, and Congress has reenacted
§ 5 subsequent to our decisions adopting that expansive in-
terpretation. See, e. g., United States v. Sheffield Bd. of
Comm'rs, 435 U. S. 110, 134-135 (1978); Georgia v. United
States, 411 U. S. 526, 533 (1973). Nevertheless, the text of
the section suggests precisely the same focus on measures
that relate to access to the ballot that appears in § 2. Sec-
tion 5 requires covered jurisdictions to obtain preclearance
for a change in "any voting qualification or prerequisite to
voting, or standard, practice, or procedure with respect to
voting." 42 U. S. C. § 1973c. As in §2, the specific terms in
the list of regulated state actions describe only laws that
would limit access to the ballot. Moreover, §5 makes the
focus on the individual voter and access to the voting booth
even more apparent as the section goes on to state that "no
person shall be denied the right to vote for failure to corn-
ply with such qualification, prerequisite, standard, practice,
or procedure." 42 U. S. C. § 1973c (emphasis added). This
command makes it explicit that in regulating standards,
practices, or procedures with respect to voting, "Congress
was clearly concerned with changes in procedure with which
to suggest that the disclaimer in § 2(b) was intended solely to prohibit the
use of such a system. Such a device has never, to my knowledge, been
proposed in any voting rights case. Moreover, to the extent that the deci-
sions in White and Whitcomb can inform our understanding of §2(b), they
suggest that in expressing a concern that "proportionality" not be used as
the measure of a voting rights violation, Congress was concerned with
proportional electoral power, not merely proportional election of minority
candidates. See, e. g., Whitcomb, 403 U. S., at 158 (rejecting the "failure
of [the minority group] to have legislative seats in proportion to its popula-
tion" as a sufficient basis for a claim) (emphasis added). The proviso has
been understood in the past simply as a disclaimer of a right to propor-
tional representation, see, e. g., Gingles, 478 U. S., at 84-86, 94 (O'CONNOR,
J,, concurring in judgment), and I think that understanding is correct.
930 HOLDER v. HALL
THOMAS, J., concurring in judgment
voters could comply." Allen, supra, at 587 (Harlan, J., con-
curring in part and dissenting in part). But it should be
obvious that a districting system, or any other potentially
dilutive mechanism for that matter, is not something with
which a voter can comply. As is the case with § 2, § 5?s de-
scription of the terms "standard, practice, or procedure" thus
suggests a focus on rules that regulate the individual voter's
ability to register and cast a ballot, not a more abstract con-
cern with the effect that various electoral systems might
have on the "weight" of the votes cast by a group that consti-
tutes a numerical minority in the electorate.
In my view, the tension between the terms of the Act and
the construction we have placed on § 5 at the very least sug-
gests that our interpretation of §5 should not be adopted
wholesale to supply the meaning of the terms "standard,
practice, or procedure" under §2. An expansive construc-
tion of § 5 was well established in 1980, yet a plurality of the
Court in Balden, after focusing on the terms of the Act, did
not adopt a similarly expansive construction of § 2. Rather,
the Bolden plurality concluded that §2 should be strictly lim-
ited to have the same reach as the Fifteenth Amendment,
which the plurality interpreted as addressing only matters
relating to access to the ballot. See Bolden, 446 IX S., at 61,
65. I would reach a similar result here. Where a careful
reading of the language of § 2 dictates a narrow interpreta-
tion of the section, there is no reason for transplanting our
interpretation of the terms of § 5 — an interpretation that I
believe is in tension with the text of §5 itself — to another
section of the Act.27
27 1 need not decide in this case whether I would overrule our decisions
construing the terms "standard, practice, or procedure" in § 5; the chal-
lenge here involves only § 2. Although in my view our construction of § 5
may well be incorrect as a matter of first impression, stare decisis would
suggest that such an error in prior decisions may not in itself justify over-
ruling settled precedent. Determining whether to abandon prior deci-
sions requires weighing a multitude of factors, one of the most important
of which is the extent to which the decisions in question have proved
unworkable. Cf infra, at 936-937. In that regard, while the practical
Cite as: 512 U. S. 874 (1994) 931
THOMAS, J., concurring in judgment
B
From the foregoing, it should be clear that, as far as the
text of the Voting Rights Act is concerned, "§2 does not
speak in terms of Vote dilution.' " Gingles, 478 U. S., at 87
(O'CONNOR, J., concurring in judgment). One might wonder,
then, why we have consistently concluded that "[w]e know
that Congress intended to allow vote dilution claims to be
brought under §2." Id, at 84. The juxtaposition of the
two statements surely makes the result in our cases appear
extraordinary, since it suggests a sort of statutory construc-
tion through divination that has allowed us to determine that
Congress "really meant'' to enact a statute about vote dilu-
tion even though Congress did not do so explicitly. In truth,
our method of construing § 2 has been only little better than
that, for the only source we have relied upon for the expan-
sive meaning we have given § 2 has been the legislative his-
tory of the Act.
We first considered the amended § 2 in Thornburg v. Gin-
gles. Although the precise scope of the terms "standard,
practice, or procedure" was not specifically addressed in that
case, Gingles nevertheless established our current interpre-
tation of the amended section as a provision that addresses
vote dilution, and in particular it fixed our understanding
that the results test in §2(b) is intended to measure vote
dilution in terms of electoral outcomes. See id., at 93
(O'CONNOR, J., concurring in judgment) (stating that Gingles
made electoral results the "linchpin" of vote dilution claims).
In reaching its interpretation of §2, the Gingles Court re-
differences in the application of §§2 and 5 that JUSTICE KENNEDY points
out, see ante, at 883-884, would not, in my view, suggest as an original
matter that the same terms in the two sections should be read to have
different meanings, JUSTICE KENNEDY'S observations might suggest that
different considerations would have a bearing on the question whether
our past interpretations should be abandoned in the § 5 and § 2 contexts.
Indeed, in the §6 context they might suggest a contrary conclusion to
the result I reach under §2. See infra, at 936-945. That, however, is a
question for another day.
932 HOLDER v. HALL
THOMAS, J., concurring in judgment
jected the argument advanced by the United States as ami-
cus curiae that §2(b)'s test based on an equal "opportunity
... to participate in the political process and to elect repre-
sentatives" suggested a focus on nothing more than securing
equal access to the political process, not a focus on measuring
the influence of a minority group's votes in terms of electoral
outcomes. See Brief for United States as Amicus Curiae
in Thornburg v. Gingles, O. T. 1985, No. 83-1968, pp. 7-19.
That understanding of § 2 is, of course, compatible with the
interpretation I have set out above.
In approaching § 2, the Gingles Court, based on little more
than a bald assertion that "the authoritative source for legis-
lative intent lies in the Committee Reports on the bill/' 478
U. S., at 43, n. 7, bypassed a consideration of the text of the
Act and proceeded to interpret the section based almost ex-
clusively on its legislative history.28 It was from the legisla-
tive history that the Court culled its understanding that § 2
28 In offering two citations to support the sweeping proposition that
committee reports provide the authoritative source for legislative intent,
Gingles plainly misread the import of our prior decisions. Far from giv-
ing an unqualified endorsement of committee reports as a guide to con-
gressional intent, the Court in Garcia v. United States, 469 U. S. 70 (1984),
merely indicated that, when resort to legislative history is necessary, it
is only committee reports, not the various other sources of legislative
history, that should be considered. See id., at 76. The Court, however,
carefully repeated Justice Jackson's admonition that "(r]esort to legislative
history is only justified where the face of the [statute] is inescapably am-
biguous." Id., at 76, n. 3 (quoting Schwegmann Brothers v. Calvert Dis-
tillers Corp., 341 U. S. 384, 395 (1951) (concurring opinion)). Similarly, in
Zuber v. Allen, 396 U. S. 168 (1969), we considered the reliability of com-
mittee reports only as a relative matter in comparing them to statements
made by individual Congressmen during floor debates. See id., at 186.
Even if I agreed with Justice Jackson that resort to legislative history
is permissible when the text of a statute is "inescapably ambiguous," 1
could not agree with the use the Court has made of legislative history in
interpreting § 2. I think it is clear, first, that in interpreting § 2 the Court
has never undertaken any inquiry into the meaning of the plain language
of the statute to determine whether it is ambiguous, and second, that the
text of § 2 is not riddled with such hopeless ambiguity.
Cite as: 512 U. S. 874 (1994) 933
THOMAS, J., concurring in judgment
is a provision encompassing claims that an electoral system
has diluted a minority group's vote and its understanding
that claims of dilution are to be evaluated based upon how
closely electoral outcomes under a given system approximate
the outcomes that would obtain under an alternative, undi-
luted norm. See, e. g., id., at 43-51.
Contrary to the remarkable "legislative history first"
method of statutory construction pursued in Gingles, how-
ever, I had thought it firmly established that the "authorita-
tive source" for legislative intent was the text of the statute
passed by both Houses of Congress and presented to the
President, not a series of partisan statements about purposes
and objectives collected by congressional staffers and pack-
aged into a committee report. "We have stated time and
again that courts must presume that a legislature says in a
statute what it means and means in a statute what it says
there." Germain, 503 U. S., at 253-254. See also United
States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241-242
(1989); Oneale v. Thornton, 6 Cranch 53, 68 (1810). Never-
theless, our analysis in Gingles was marked conspicuously by
the absence of any attempt to pursue a close reading of the
text of the Act. As outlined above, had the Court addressed
the text, it would have concluded that the terms of the Act
do not address matters of vote "dilution."
Moreover, the legislative history of §2 itself, and the
Court's use of it in Gingles, aptly illustrate that legislative
history is often used by this Court as "a forensic rather than
an interpretive device," Wisconsin Public Intervenor v.
Mortier, 501 U. S. 597, 621 (1991) (SCALIA, J., concurring in
judgment), and is read selectively to support the result the
Court intends to achieve. It is well documented in the his-
tory of the 1982 amendments to the Act that § 2 was passed
only after a compromise was reached through the addition of
the provision in §2(b) disclaiming any right to proportional
representation. See S. Rep. No. 97-417, pp. 2-4 (1982); id.,
at 94-97 (additional views of Sen. Hatch). But the views of
934 HOLDER u HALL
THOMAS, J., concurring in judgment
the author of that compromise, Senator Dole, hardly coincide
with the gloss the Court has placed on § 2.
According to Senator Dole, amended §2 would "Abso-
lutely not" provide any redress to a group of voters challeng-
ing electoral mechanisms in a jurisdiction "if the process is
open, if there is equal access, if there are no barriers, direct
or indirect, thrown up to keep someone from voting or hav-
ing their vote counted, or registering, whatever the process
may include." 128 Cong. Rec. 14133 (1982). Contrary to
the Court's interpretation of the section in Gingles, Senator
Dole viewed § 2 as a provision more narrowly focused on ac-
cess to the processes surrounding the casting of a ballot, not
a provision concerned with ensuring electoral outcomes in
accordance with some "undiluted" norm. See S. Rep. No.
97-417, supra, at 193-194 (additional views of Sen. Dole).
The legislative history thus hardly provided unambiguous
support for the Court's interpretation; indeed, it seems that
the Court used what was helpful to its interpretation in the
legislative history and ignored what was not. Cf. Mortier,
supra, at 617 (ScALiA, J., concurring in judgment),
Of course, as mentioned above, Gingles did not directly
address the meaning of the terms "standard, practice, or pro-
cedure" in §2(a). The understanding that those terms ex-
tend to a State's laws establishing various electoral mecha-
nisms dates to our decision in Allen, in which we construed
the identical terms in § 5 of the Act. But the Court's method
of statutory construction in Allen was little different from
that pursued in Gingles, and as the analysis of the text of § 5
above demonstrates, it similarly yielded an interpretation in
tension with the terms of the Act.
In Allen, after noting that § 14(c)(l) defined "voting" to
include "all action necessary to make a vote effective," 42
U. S. C. § 1973i(c)(l), the Court abandoned any further at-
tempt to construe the text of the Act and went on, instead,
to conclude that the "legislative history on the whole sup-
ports the view that Congress intended to reach any state
Cite as: 512 U. S. 874 (1994) 935
THOMAS, J., concurring in judgment
enactment which altered the election law of a covered State
in even a minor way." Allen, 393 U S., at 566. Not sur-
prisingly, the legislative history relied upon in Allen also dis-
played the typical flaws that one might expect — it was
hardly unequivocal. See id., at 590-591, and n. 9 (Harlan, J.,
concurring in part and dissenting in part) (noting inconsist-
encies in the legislative history). Thus, to the extent that
Allen implicitly has served as the basis for our subsequent
interpretation of the terms of §2, it hardly can be thought
to provide any surer rooting in the language of the Act than
the method of statutory construction pursued in Gingles.
Remarkably, thanks to our reliance on legislative history,
we have interpreted § 2 in such a way that four Members of
this Court at one time candidly admitted that "[t]here is an
inherent tension [in §2] between what Congress wished to
do and what it wished to avoid." Gingles, 478 U. S., at 84
(O'CONNOR, J., concurring in judgment). But our under-
standing of what Congress purportedly "wished to do" — that
is, to allow claims of vote "dilution" — depends solely on a
selective reading of legislative history, whereas Congress'
statement of what it "wished to avoid" appears explicitly in
§ 2(b)'s disclaimer of a right to proportional representation.
I can see no logical reason to import the "inherent tension"
between these two imperatives into the Act, when on its face
the statute incorporates only one of two potentially contra-
dictory commands. I would have thought the key to resolv-
ing any such conflict between the text and the legislative
history obvious: The text of the statute must control, and the
text of § 2 does not extend the Act to claims of dilution.
Were it our function to interpret and apply committee re-
ports or other pieces of legislative history, rather than Acts
of Congress, I might conclude that we had made the best of
a bad situation in interpreting §2 of the Voting Rights Act,
and that the quagmire that is § 2 was Congress' creation, not
our own. It is apparent, however, that we have arrived at
our current understanding of the Act, with all of its attend-
936 HOLDER u HALL
THOMAS, J., concurring in judgment
ant pitfalls, only by abandoning proper methods of statutory
construction. Our errors in method in past cases ordinarily
might not indicate a need to forsake an established line of
precedent But here they have produced an "inherent ten-
sion" between our interpretation of § 2 and the text of the
Act and have yielded a construction of the statute that, as I
discuss below, is so unworkable in practice and destructive
in its effects that it must be repudiated.
"Stare decisis is not an inexorable command," Payne v.
Tennessee, 501 U. S. 808, 828 (1991). Indeed, "when govern-
ing decisions are unworkable or are badly reasoned, this
Court has never felt constrained to follow precedent." Id,
at 827 (internal quotation marks omitted). The discussion
above should make clear that our decision in Gingles inter-
preting the scope of §2 was badly reasoned; it wholly substi-
tuted reliance on legislative history for analysis of statutory
text. In doing so, it produced a far more expansive inter-
pretation of § 2 than a careful reading of the language of the
statute would allow.
Our interpretation of § 2 has also proved unworkable. As
I outlined above, it has mired the federal courts in an inher-
ently political task — one that requires answers to questions
that are ill-suited to principled judicial resolution. Under
§2, we have assigned the federal judiciary a project that in-
volves, not the application of legal standards to the facts of
various cases or even the elaboration of legal principles on a
case-by-case basis, but rather the creation of standards from
an abstract evaluation of political philosophy.
Worse, our interpretation of § 2 has required us to distort
our decisions to obscure the fact that the political choice at
the heart of our cases rests on precisely the principle the Act
condemns: proportional allocation of political power accord-
ing to race. Continued adherence to a line of decisions that
necessitates such dissembling cannot possibly promote what
Cite as: 512 U. S. 874 (1994) 937
THOMAS, J., concurring in judgment
we have perceived to be one of the central values of the
policy of stare decisis: the preservation of "the actual and
perceived integrity of the judicial process." Payne, supra,
Sit 827.
I have endeavored to explain above that the core of any
vote dilution claim is an assertion that the plaintiff group
does not hold seats in the proportion that it should.29 There
is no logical way to avoid reliance on a simple ratio in evalu-
ating such a claim. And allocation of seats in direct propor-
tion to the minority group's percentage in the population
provides the most logical ratio to apply as an "undiluted"
norm. But § 2 makes it clear that the Act does not create a
right to proportional representation, and thus dictates that
proportionality should not provide the rule of decision for
§ 2 claims. See supra, at 927-928, and n. 26. Nevertheless,
despite the statutory command, in deciding claims of vote
dilution we have turned to proportionality as a guide, simply
for lack of any better alternative.
No formulation of the test for evaluating vote dilution
claims has ever dispensed with the inevitable need to consult
a mathematical formula to decide a case. The factors listed
in White v. Regester, 412 U. S., at 766-767, resurrected in the
Senate Report on the 1982 amendments to §2, see S. Rep.
No. 97-417, at 28-29, and finally reincorporated into our deci-
sion in Gingles, see 478 U. S., at 44-45, although praised in
our cases as a multifaceted test ensuring that vote dilution
is determined based on the "totality of circumstances," in
reality provide no rule for deciding a vote dilution claim
based on anything other than a numerical principle.
29 1 assume for purposes of the analysis here that the measure of effec-
tive votes is control of seats. That is precisely the measure the Court has
applied, both in the past, see, e. g.f Gingles, 478 U. S., at 46-51; id, at 93, 99
(O'CONNOR, X, concurring in judgment) (noting that the Court had made
electoral results the "linchpin" of dilution claims), and today, see Johnson
v. De Grandy, post, at 1014-1015 (equating "political effectiveness" with
control of majority-minority districts).
938 HOLDER v. HALL
THOMAS, J., concurring in judgment
In Gingles, we condensed the import of these "factors" into
a formula stating that the "essence" of a vote dilution claim
under §2 is that "a certain electoral law, practice, or struc-
ture interacts with social and historical conditions to cause
an inequality in the opportunities enjoyed by black and white
voters to elect their preferred representatives." Id., at 47.
But it should be apparent that whether an electoral practice
does or does not reduce the ability of a numerical minority
to control the election of representatives can be determined
wholly without reference to "social and historical condi-
tions." Ibid. The dilutive effects of various electoral pro-
cedures are matters of mathematics. The "social and histor-
ical conditions" "interact" with the election mechanism, and
thus are relevant in a vote dilution case, only to the extent
that they are important for establishing that the minority
group does in fact define a distinct political interest group
that might assert that its vote has been diluted by the mech-
anism at issue. Such social and historical considerations,
however, cannot supply the answer to the ultimate question
whether the group's vote has been diluted.
In reality, the list of White factors provides nothing more
than just that: a list of possible considerations that might be
consulted by a court attempting to develop a gestalt view of
the political and racial climate in a jurisdiction, but a list
that cannot provide a rule for deciding a vote dilution claim.
Take, for example, a case in which a district court determines
that a minority group constituting 34% of the population in
a certain jurisdiction has suffered discrimination in the past,
that the group currently bears the effects of that discrimina-
tion, and that there has been a history of racial campaigning
in the jurisdiction. Cf. White, supra, at 766-767. How can
these facts possibly answer the question whether the group's
votes have been diluted if the group controls two rather than
three seats in a 10-member governing body? Will the an-
swer to the ultimate question change if the first two factors
are found, but the third is not? Obviously, the various "fac-
Cite as: 512 U. S. 874 (1994) 939
THOMAS, J., concurring in judgment
tors," singly or in any combination, cannot provide a princi-
ple for determining the result. What one must know to de-
cide the case is whether 20% of the seats in the government
is sufficient to reflect "undiluted" voting strength, or if 30%
should be required.
Of course, as suggested above, the White factors may be
relevant to determining as a threshold matter whether the
minority group is a distinct political group that should be
able to assert a claim of dilution. But after Gingles, the
inquiry into whether race defines political interest effectively
has been boiled down to the weakened test for minority "po-
litical cohesiveness" and majority bloc voting embodied in
the second and third Gingles preconditions. See 478 U. SM
at 51. Once a plaintiff group establishes that it is mathe-
matically possible for it to control another seat (that is, that
it satisfies the first Gingles precondition of size and geo-
graphic compactness), see id., at 50, and that it is a distinct
political group (that is, that it can show political cohesion and
majority bloc voting), the only question remaining in the
vote dilution claim is whether the current number of seats is
the proper number or not. The other White factors have
become essentially superfluous. They may be dutifully in-
toned by courts performing the empty ritual of applying the
"totality of circumstances" test, but they can provide no
guidance concerning whether the current allocation of seats
constitutes "dilution/' Cf. Gingles, supra, at 92-93 (O'CoN-
NOR, J., concurring in judgment) (suggesting that the basic
contours of a dilution claim require no reference to most of
the White factors).
In short, it should be clear that the factors listed in Gin-
gles — in their various incarnations and by whatever names
they are known — are nothing but puffery used to fill out an
impressive verbal formulation and to create the impression
that the outcome in a vote dilution case rests upon a rea-
soned evaluation of a variety of relevant circumstances.
The "totality of circumstances" test outlined in Gingles thus
940 HOLDER v. HALL
THOMAS, J., concurring in judgment
serves to obscure the inherent conflict between the text of
the Act and an underlying reliance on proportionality.
The resort to proportionality in our cases should hardly
come as a surprise. Before §2 was amended in 1982, and
thus before the Act explicitly disavowed a right to propor-
tional representation, some Members of the Court recog-
nized the inevitable drift toward proportional representation
that would occur if the test outlined in White were used to
evaluate vote dilution claims. As Justice Stewart, writing
for four Members of the Court, observed, the factors listed
in White amounted to little more than "gauzy sociological
considerations," and it did not appear that "they could, in
any principled manner, exclude the claims of any discrete
political group that happens, for whatever reason, to elect
fewer of its candidates than arithmetic indicates it might."
Balden, 446 U. S., at 75, n. 22 (emphasis added). Indeed,
Justice Stewart was correct in concluding that "the putative
limits [imposed by the White factors] are bound to prove
illusory if the express purpose informing their application
would be," as our vote dilution cases have assumed, "to re-
dress the inequitable distribution of political influence."
Ibid, (internal quotation marks omitted).
In fact, the framework established by this Court for evalu-
ating vote dilution claims in Gingles was at its inception
frankly, and in my view correctly, labeled as setting a rule of
roughly proportional representation. See Gingles, supra, at
91, 93, 97-99 (O'CONNOR, J., concurring in judgment). Noth-
ing has happened in the intervening years to change the
basic import of the Gingles test. Yet we have continued to
apply the same Gingles framework, see, e. g., Growe v. Emi-
son, 507 U. S. 25 (1993), all the while suggesting that we are
pursuing merely a "totality of the circumstances" test.
In another case decided today, the Court reconfirms the
unstated centrality of proportional results in an opinion that
demonstrates the obfuscation that must come to characterize
our Voting Rights Act rulings if we continue to entertain
Cite as: 512 U. S. 874 (1994) 941
THOMAS, J., concurring in judgment
dilution claims while pretending to renounce reliance on pro-
portionality as a rule of decision. In Johnson v. De Grandy,
post, p. 997, the Court assures us that proportionality does
not provide the principle for deciding vote dilution claims.
Post, at 1000, 1017-1021. Rather, the result in each case
must depend on a searching inquiry into the ever-nebulously
defined " totality of circumstances." Post, at 1000.
But after the Gingles preconditions have been established,
post, at 1008-1009, and after White factors such as a history
of discrimination have been found, see post, at 1013, where
does the Court turn for a deciding principle to give some
meaning to these multifarious facts, which taken individually
would each appear to count in favor of a finding of vote
dilution? Quite simply, the Court turns to proportionality:
"Treating equal political opportunity as the focus of the
enquiry, we do not see how these district lines, apparently
providing political effectiveness [that is, majority-minority
districts] in proportion to voting-age numbers, deny equal
political opportunity." Post, at 1014. See also post, at 1013
(noting that in assessing "dilutive effect," the "pertinent
features" of the districting system at issue "were majority-
minority districts in substantial proportion to the minority's
share of voting-age population"); post, at 1025 (O'CONNOR, J.,
concurring) (the Court's central teaching in De Grandy "is
that proportionality — defined as the relationship between
the number of majority-minority voting districts and the mi-
nority group's share of the relevant population — is always
relevant evidence in determining vote dilution"). JUSTICE
O'CONNOR'S comment about the Court's holding in Davis
v. Bandemer, 478 U. S. 109 (1986), is equally applicable to
the course pursued in De Grandy today: "[The Court's deci-
sion] ultimately rests on a political preference for propor-
tionality— . . . a conviction that the greater the departure
from proportionality, the more suspect an apportionment
plan becomes." 478 U.S., at 159 (opinion concurring in
judgment).
942 HOLDER v. HALL
THOMAS, J., concurring in judgment
To be sure, the De Grandy Court repeatedly declares that
proportionality is not a defense to a vote dilution claim. See
post, at 1017-1021. That, of course, must be the stated rule if
we are not to abandon openly the explicit disclaimer enacted
by Congress in § 2(b). But given the Court's equivocation —
proportionality is still always relevant — and the Court's ulti-
mate analysis, such assurances ring hollow. The Court de-
cides the question of dilution based upon proportionality.
And it is apparent from the reasons the Court gives for re-
jecting maximization as a rule for decision that proportional-
ity will drive results in future dilution cases as well.
Consider, for example, the hypothetical rehearsed by the
Court concerning a jurisdiction with a 10-member elected
body and a 40% minority voting population. See post, at
1016-1017. Assume that as currently constituted the dis-
tricting scheme creates four majority-minority districts,
Even if it is established in this hypothetical jurisdiction that
all of the Gingles factors have been proved (as was found
in De Grandy), and that there are both a history of discrim-
ination and continuing discrimination (as was found in
De Grandy), can it be seriously contended that the minority
group can succeed, under any combination of facts, in bring-
ing a § 2 challenge to require the creation of the mathemati-
cally possible seven majority-minority districts? The Court
recognizes that it would be "absurd" to think that § 2 would
allow such a result. That, after all, would give the group
"effective political power 75 percent above its numerical
strength" — that is, above its proportion in the population.
Post, at 1017 (emphasis added). But if it is absurd to give
the members of the group seven seats, why is it not equally
ridiculous to give them six, or five? Or, indeed, anything
beyond the four that would secure them seats in proportion
to their numbers in the population?
If it is absurd to give members of the group seven seats,
that is because, as the Court tacitly acknowledges, we
assume that seats in accord with "numerical strength" will
Cite as: 512 U. S. 874 (1994) 943
THOMAS, J., concurring in judgment
ensure the group "equal" "political effectiveness." Thus,
deliberately drawing districts so as to give, under the as-
sumptions of the hypothetical, 40% of the population control
over 50% of the seats, while leaving 60% of the population
with control of a similar 50% of the seats, would seem to us
unfair. Greater deviations from proportionality may appear
more patently "absurd" than lesser, but the dividing line be-
tween what seems fair and what does not remains the same.
The driving principle is proportionality.30
Few words would be too strong to describe the dissem-
bling that pervades the application of the "totality of circum-
stances" test under our interpretation of § 2. It is an empty
incantation — a mere conjurer's trick that serves to hide the
80 Of course, throughout this discussion concerning the Court's inevitable
resort to proportionality, I have assumed that effective votes will be meas-
ured in terms of control of seats. See n. 29, supra. As JUSTICE O'CON-
NOR suggests in her opinion in De Grandy, if we were to measure the
effectiveness of votes not simply in terms of numbers of seats, but in terms
of some more amorphous concept of "access to the political process/' there
would be no need to make proportionality "dispositive." See De Grandy,
post, at 1026 (O'CONNOR, J., concurring). Cf. White, 412 U. S., at 765-766.
But Gingles made control of seats the determining factor in dilution
claims; that is the measure that has been applied in cases under Gingles,
and it remains the measure applied in practice in the cases handed down
today In my view, it is unrealistic to think that the Court will now re-
verse course and establish some broader understanding of "political effec-
tiveness" under the "totality of circumstances" test, after it consistently
has pursued a measure of effective voting that makes electoral results the
"linchpin" of dilution claims. See 478 U. S., at 93 (O'CONNOR, J., concur-
ring in judgment).
Indeed, any change in course is made more unlikely by one very practi-
cal consideration. As the Court's decision in De Grandy perhaps sug-
gests, measuring political effectiveness by any method other than counting
numbers of seats can rapidly become a wholly unmanageable task. As I
suggested above, see n. 6, supra, one of the reasons the Court seized upon
control of seats as a measure of effective political participation is simply
that control of seats provides the "most easily measured indicia of politi-
cal power." Bandemer, 478 U. S., at 157 (O'CONNOR, J., concurring in
judgment).
944 HOLDER v. HALL
THOMAS, J., concurring in judgment
drive for proportionality that animates our decisions. As
actions such as that brought in Shaw v. Reno, 509 IL S. 630
(1993), have already started to show, what might euphemisti-
cally be termed the benign "creation of majority-minority
single-member districts to enhance the opportunity of minor-
ity groups to elect representatives of their choice" might also
more simply and more truthfully be termed "racial gerry-
mandering." Similarly, what we might call a "totality of cir-
cumstances" test to determine whether an electoral practice
"interacts with social and historical conditions to cause an
inequality in the opportunities enjoyed by black and white
voters to elect their preferred representatives," Gingles, 478
U, S., at 47, might more accurately be called a test for ensur-
ing proportional electoral results according to race. Cf. id.,
at 97 (O'CONNOR, J., concurring in judgment).
In my view, our current practice should not continue. Not
for another Term, not until the next case, not for another
day. The disastrous implications of the policies we have
adopted under the Act are too grave; the dissembling in our
approach to the Act too damaging to the credibility of the
Federal Judiciary. The "inherent tension" — indeed, I would
call it an irreconcilable conflict — between the standards we
have adopted for evaluating vote dilution claims and the text
of the Voting Rights Act would itself be sufficient in my view
to warrant overruling the interpretation of § 2 set out in Gin-
gles. When that obvious conflict is combined with the de-
structive effects our expansive reading of the Act has had in
involving the Federal Judiciary in the project of dividing the
Nation into racially segregated electoral districts, I can see
no reasonable alternative to abandoning our current unfortu-
nate understanding of the Act.
Stare decisis is a powerful concern, especially in the field
of statutory construction. See Patterson v. McLean Credit
Union, 491 U. S. 164, 172 (1989). See also Fogerty v. Fan-
tasy, Inc., 510 U. S. 517, 538-539 (1994) (THOMAS, X, concur-
ring in judgment). But "we have never applied stare decisis
Cite as: 512 U. S. 874 (1994) 945
THOMAS, J., concurring in judgment
mechanically to prohibit overruling our earlier decisions de-
termining the meaning of statutes." Monell v. New York
City Dept. of Social Servs., 436 U. S. 658, 695 (1978). Stare
decisis should not bind the Court to an interpretation of the
Voting Rights Act that was based on a flawed method of
statutory construction from its inception and that in every
day of its continued existence involves the Federal Judiciary
in attempts to obscure the conflict between our cases and the
explicit commands of the Act. The Court has noted in the
past that stare decisis " 'is a principle of policy/ " Payne, 501
U. S., at 828 (quoting Helvering v. Hallock, 309 U. S. 106, 119
(1940)), and it " 'is usually the wise policy, because in most
matters it is more important that the applicable rule of law
be settled than it be settled right/ " 501 U. S., at 827 (quot-
ing Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406
(1932) (Brandeis, J., dissenting)). I cannot subscribe to the
view that in our decisions under the Voting Rights Act it is
more important that we have a settled rule than that we
have the right rule. When, under our direction, federal
courts are engaged in methodically carving the country into
racially designated electoral districts, it is imperative that
we stop to reconsider whether the course we have charted
for the Nation is the one set by the people through their
representatives in Congress. I believe it is not.
I cannot adhere to the construction of § 2 embodied in our
decision in Thornburg v. Gingles. I reject the assumption
implicit in that case that the terms "standard, practice, or
procedure" in §2(a) of the Voting Rights Act can be con-
strued to cover potentially dilutive electoral mechanisms.
Understood in context, those terms extend the Act's prohibi-
tions only to state enactments that regulate citizens' access
to the ballot or the processes for counting a ballot. The
terms do not include a State's or political subdivision's choice
of one districting scheme over another. The terms certainly
do not include, as respondents would argue, the size of a local
governing authority.
946 HOLDER u HALL
BLACKMUN, J., dissenting
III
For the foregoing reasons, I agree with the Court's conclu-
sion that the size of a governing body is not subject to chal-
lenge under § 2 of the Voting Rights Act, I therefore concur
in the Court's judgment reversing the judgment below and
remanding for consideration of respondents' constitutional
claim of intentional discrimination.
JUSTICE BLACKMUN, with whom JUSTICE STEVENS, JUS-
TICE SOUTER, and JUSTICE GINSBURG join, dissenting.
Five Justices today agree that the size of a governing body
is a "standard, practice, or procedure" under § 2 of the Voting
Rights Act of 1965 (Act), as amended, 42 U. S. C. § 1973. A
different five Justices decide, under three separate theories,
that voting rights plaintiffs cannot bring §2 dilution chal-
lenges based on size. I, however, believe that the Act, its
history, and our own precedent require us to conclude not
only that the size of a governing body is a "standard, prac-
tice, or procedure" under §2, but also that minority voters
may challenge the dilutive effects of this practice by demon-
strating their potential to elect representatives under an ob-
jectively reasonable alternative practice. Accordingly, I dis-
sent from the Court's decision that minority voters cannot
bring § 2 vote dilution challenges based on the size of an ex-
isting government body,
I
Section 2(a) of the Act prohibits the imposition or applica-
tion of any "voting qualification or prerequisite to voting, or
standard, practice, or procedure79 that "results In a denial or
abridgement of the right of any citizen of the United States
to vote on account of race or color." 42 U. S. C. § 1973(a)
(emphasis added). Section 5 parallels §2 by requiring cer-
tain jurisdictions to preclear with the Attorney General a
change in "any voting qualification or prerequisite to voting,
or standard, practice, or procedure with respect to voting."
42 U. S. C. § 1973c (emphasis added). Under the broad inter-
Cite as: 512 U. S. 874 (1994) 947
BLACKMUN, J., dissenting
pretation that this Court, Congress, and the Attorney Gen-
eral consistently have given the Act in general and §5 in
particular, the practice of electing a single commissioner, as
opposed to a multimember commission, constitutes a "stand-
ard, practice, or procedure" under § 2.
Nearly 30 years of precedent admonish us that the Act,
which was adopted "for the broad remedial purpose of 'rid-
[ding] the country of racial discrimination in voting/" Chi-
som v. Roemer, 501 U. S. 380, 403 (1991), quoting South Caro-
lina v. Katzenbach, 383 U. S. 301, 315 (1966), should be given
"the broadest possible scope," Allen v. State Bd. of Elec-
tions, 393 U. S. 544, 567 (1969). Because "the Act itself no-
where amplifies the meaning of the phrase 'standard, prac-
tice, or procedure with respect to voting/ " the Court "ha[s]
sought guidance from the history and purpose of the Act."
Dougherty County Bd. of Ed. v. White, 439 U S. 32, 37
(1978); see also McCain v. Lybrand, 465 U. S. 236, 246 (1984)
(the Act must "be interpreted in light of its prophylactic pur-
pose and the historical experience which it reflects").
Consistent with the Act's remedial purposes, this Court
has held that a wide variety of election- and voting-related
practices fit within the term "standard, practice, or proce-
dure." Among the covered practices are the annexation of
land to enlarge city boundaries, see Perkins v. Matthews, 400
U. S. 379, 388 (1971), and Pleasant Grove v. United States,
479 U. S. 462, 467 (1987); a rule requiring employees to take
leaves of absence while they campaign for elective office, see
Dougherty County Bd. of Ed., 439 U. S., at 34; candidate fil-
ing dates and other procedural requirements, see Whitley v.
Williams, decided with Allen v. State Bd. of Elections,
supra; Hadnott v. Amos, 394 U. S. 358, 365 (1969); NAACP
v. Hampton County Election Common, 470 U. S. 166, 176-177
(1985); and candidate residency requirements, see City of
Rome v. United States, 446 U. S. 156, 160 (1980).
Specifically, this Court long has treated a change in the
size of a governing authority as a change in a "standard,
948 HOLDER u HALL
BLACKMUN, J., dissenting
practice, or procedure" with respect to voting. In City of
Rome, 446 U. S., at 161, it noted that it "is not disputed" that
an expansion in the size of a board of education was "within
the purview of the Act" and subject to preclearance under
§5. In City of Lockhart v. United States, 460 U. S. 125, 131
(1983), it stated that a change from a three-member commis-
sion to a five-member commission was subject to § 5 preclear-
ance. And, most recently, it said that the term "standard,
practice, or procedure with respect to voting" included a
change in the size of a governing authority or an increase
or decrease in the number of elected offices. Presley v.
Etowah County Comm'n, 502 U. S. 491, 500 (1992).
This conclusion flowed naturally from the holding in Bun-
ton v. Patterson, 393 U. S. 544 (1969), that a change from an
elected to an appointed office was a "standard, practice, or
procedure with respect to voting," In Bunion, the Court
reasoned that the power of a citizen's vote is affected by the
change because the citizen has been "prohibited from elect-
ing an officer formerly subject to the approval of the voters,"
Id., at 570. The reverse is also true: A change from an ap-
pointed to an elected office affects a citizen's voting power
by increasing the number of officials for whom he may vote.
See McCain v. Lybrand, 465 U. S. 236 (1984). And, as the
Court recognized in Presley, a change in the size of a govern-
ing authority is a "standard, practice, or procedure with re-
spect to voting" because the change "increasefo] or dimin-
ish[es] the number of officials for whom the electorate may
vote," 502 U. S*, at 503; this change bears "on the substance
of voting power" and has "a direct relation to voting and the
election process," Ibid.
To date, our precedent has dealt with § 5 challenges to a
change in the size of a governing authority, rather than § 2
challenges to the existing size of a governing body. I agree
with JUSTICE O'CONNOR, ante, at 886-887, that, as a textual
matter, "standard, practice, or procedure" under §2 is at
Cite as: 512 U. S. 874 (1994) 949
BLACKMUN, J., dissenting
least as broad as "standard, practice, or procedure with re-
spect to voting" under § 5. In fact, because of the "close
connection" between §§2 and 5, we interpret them similarly.
See Chisom v. Roemer, 501 U. S., at 402 (concluding that it
would be "anomalous" to do otherwise). And in the context
of §2, the Court stated: "Section 2 protected the right to
vote, and it did so without making any distinctions or impos-
ing any limitations as to which elections would fall within its
purview." Id., at 392. See also Houston Lawyers' Assn. v.
Attorney General of Tex., 501 U. S. 419 (1991) (rejecting a
"single-member-office" exception to § 2).
Congress repeatedly has endorsed the broad construction
this Court has given the Act in general and § 5 in particular.1
Significantly, when Congress considered the 1982 amend-
ments to the Voting Rights Act, it made no effort to curtail
the application of § 5 to changes in size, in the face of the
longstanding practice of submitting such changes for pre-
clearance, and on the heels of this Court's recognition just
two years earlier that it was "not disputed" that a change in
the size of a governing body was covered under § 5. See
City of Rome, 446 U. S., at 161. Similarly, the Attorney
General, whose construction of the Act "is entitled to consid-
erable deference," NAACP v. Hampton County Election
Comm'n, 470 U. S., at 178-179, for years has required § 5
preclearance of the expansion or reduction of a governing
1 See Georgia v. United States, 411 U. S. 526, 533 (1973) ("After exten-
sive deliberations in 1970 on bills to extend the Voting Rights Act, during
which the Allen case was repeatedly discussed, the Act was extended for
five years, without any substantive modification of § 5") (footnote omitted);
Dougherty County Bd. of Ed. v. White, 439 U. S. 32, 39 (1978) ("Again in
1975, both the House and Senate Judiciary Committees, in recommending
extension of the Act, noted with approval the 'broad interpretations to the
scope of Section 5* in Allen and Perkins v. Matthews [400 U. S. 379
(1971)]"); NAACP v. Hampton County Election Comm'n, 470 U. S. 166,
176 (1985) (in the 1982 extension of the Act, "Congress specifically en-
dorsed a broad construction" of § S).
950 HOLDER v. HALL
BLACKMUN, J., dissenting
body.2 It is not surprising that no party to this case argued
that the size of a governing authority is not a "standard,
practice, or procedure."
In light of this consistent and expansive interpretation of
the Act by this Court, Congress, and the Attorney General,
the Act's "all-inclusive" definition of "standard, practice, or
procedure" cannot be read to exclude threshold coverage of
challenges to the size of a governing authority. As five
Members of the Court today agree, the size of a governing
authority is a "standard, practice, or procedure" with respect
to voting for purposes of §2 as well as §5 of the Voting
Rights Act.
II
Although five Justices agree that the size of a governing
body is a "standard, practice, or procedure" under § 2, a like
number of Justices conclude, under varying rationales, that
Voting Rights plaintiffs nonetheless cannot bring size chal-
lenges under §2. This conclusion is inconsistent with our
precedent giving the Act "'the broadest possible scope' in
combating racial discrimination," Chisom, 501 IX S., at 403,
quoting Allen, 393 U. S., at 567, and with the vote-dilution
2 See Hearings on S. 1992 before the Subcommittee on the Constitution
of the Senate Committee on the Judiciary, 97th Cong,, 2d Sess., 1748 (1982)
(noting Attorney General's objection in 1971 to proposed reduction in the
size of a school board); id., at 1751 (1971 objection to expansion of a parish
council); td, at 1782 (1980 objection to decrease in number of city council
members); id., at 1S84-1386 (the Voting Rights Act afforded protection
against "[s]hifts from ward to at-large elections, from plurality win to ma-
jority vote, from slating to numbered posts, annexations and changes in
the size of electoral bodies," that "could . . . deprive minority voters of
fair and effective procedures for electing candidates of their choice")
(statement of Drew S. Days III, former Assistant Attorney General for
Civil Rights) (emphasis added).
Since covered jurisdictions routinely have submitted changes in the size
of their legislative bodies for preclearance, it is not surprising that peti-
tioners concede that a change in the size of the Bleckley County Commis-
sion would be subject to §5 preclearance. Tr* of Oral Arg. 4, 13.
Cite as: 512 U. S. 874 (1994) 951
BLACKMUN, J., dissenting
analysis prescribed in Thornburg v. Gingles, 478 U. S. 30
(1986).
To prevail in a vote-dilution challenge, minority voters
must show that they "possess the potential to elect repre-
sentatives in the absence of the challenged structure or
practice/' Id., at 50, n. 17 (second emphasis supplied).3
There is widespread agreement, see ante, at 880 (opinion of
KENNEDY, J., and REHNQUIST, C. J.); ante, at 887 (opinion of
O'CONNOR, J.), that minority voters' potential "in the ab-
sence of" the allegedly dilutive mechanism must be meas-
ured against the benchmark of an alternative structure or
practice that is reasonable and workable under the facts of
the specific case.4
By all objective measures, the proposed five-member
Bleckley County Commission presents a reasonable, work-
able benchmark against which to measure the practice of
electing a sole commissioner. First, the Georgia Legisla-
ture specifically authorized a five-member commission for
Bleckley County. 1985 Ga. Laws 4406. Moreover, a five-
member commission is the most common form of governing
authority in Georgia. See Georgia Dept, of Community Af-
s Although Gingles dealt with the use of multimember districts, the
analysis it prescribes is applicable in certain other vote-dilution contexts,
such as a claim of "vote fragmentation" through single-member districts,
see Growe v. Emison, 507 U. S. 25, 37-42 (1993), or the case before us.
4 As the United States explains, the minority group must be permitted
to establish that, under "a proposed alternative voting arrangement that
is reasonable in the legal and factual context of a particular case," it could
constitute a majority. Brief for United States as Amiens Curiae 8. The
Court of Appeals followed this approach, concluding that "it is appro-
priate to consider the size and geographical compactness of the minority
group within a restructured form of the challenged system when the exist-
ing structure is being challenged as dilutive" (emphasis in original). 955
R 2d 1563, 1569 (CA11 1992). See also Carrollton Branch of NAACP
v. Stallings, 829 F. 2d 1547 (CA11 1987) (remand of challenge to sole-
commissioner system with instructions to consider size and geographic
compactness within proposed three- and five-member commission forms
of government).
952 HOLDER u HALL
BLACKMUN, J., dissenting
fairs, County Government Information Catalog (1989) (Table
LA: Form of Government) (76 of Georgia's 159 counties had
five commissioners, including 25 counties smaller than
Bleckley County). Bleckley County, as one of a small and
dwindling number of counties in Georgia still employing a
sole commissioner, markedly departs from practices else-
where in Georgia. This marked "departure] , . . from prac-
tices elsewhere in the jurisdiction . . . bears on the fairness
of [the sole commissioner's] impact/' S. Rep. No. 97-417,
p. 29, n. 117 (1982). Finally, the county itself has moved
from a single superintendent of education to a school board
with five members elected from single-member districts,
providing a workable and readily available model for com-
mission districts. Thus, the proposed five-member baseline
is reasonable and workable.
In this case, identifying an appropriate baseline against
which to measure dilution is not difficult. In other cases, it
may be harder. But the need to make difficult judgments
does not "justify a judicially created limitation on the cover-
age of the broadly worded statute, as enacted and amended
by Congress." Chisom, 501 U. S., at 403. Vote dilution is
inherently a relative concept, requiring a highly "flexible,
fact-intensive" inquiry, Gingles, 478 U. S., at 46, and calling
for an exercise of the "court's overall judgment, based on
the totality of circumstances and guided by those relevant
factors in the particular case," as mandated by Congress.
S. Rep. No. 97-417, at 29, n. 118. Certainly judges who
engage in the complex task of evaluating reapportionment
plans and examining district lines will be able to determine
whether a proposed baseline is an appropriate one against
which to measure a claim of vote dilution based on the
size of a county commission.
There are, to be sure, significant constraints on size chal-
lenges. Minority plaintiffs, who bear the burden of demon-
strating dilution, also bear the burden of demonstrating that
Cite as: 512 U. S. 874 (1994) 963
BLACKMUN, J., dissenting
their proposed benchmark is reasonable and workable. One
indication of a benchmark's reasonableness is its grounding
in history, custom, or practice. This consideration will dis-
courage size challenges to traditional single-member execu-
tive offices, such as governors and mayors, or even sheriffs or
clerks of court. By tradition and practice, these executive
positions are occupied by one person, so plaintiffs could
rarely point to an objectively reasonable alternative size that
has any foundation in the past or present. Cf. The Federal-
ist No. 69, p. 415 (C. Rossiter ed. 1961) (A. Hamilton) ("[T]he
executive authority, with few exceptions, is to be vested in
a single magistrate"). The sole commissioner, by contrast,
holds plenary legislative, as well as executive, power. Ga.
Code Ann. §36-5-22.1 (1993). A one-member legislature,
far from being the norm, is an anomaly. Accordingly, the
Eleventh Circuit, while permitting § 2 challenges to the prac-
tice of electing a sole commissioner, has held that this provi-
sion cannot be used to alter the practice of electing a single
person to offices such as lieutenant governor, sheriff, probate
judge, and tax collector. See Dillard v. Crenshaw County,
831 F. 2d 246, 251 (1987); United States v. Dallas County
Comm'n, 850 F. 2d 1430, 1432, n. 1 (1988), cert, denied, 490
U. S. 1030 (1989).5
Additionally, every successful vote-dilution challenge will
be based on the "totality of the circumstances," often in-
cluding the lingering effects of past discrimination. S. Rep.
No. 97-417, at 28-30. Not every racial or language minor-
ity that constitutes 5% of the population has a claim to
have a governing authority expanded to 20 members in
order to give them an opportunity to elect a representa-
tive. Instead, the voters would have to prove that a 20-
6 Of course, this is not to suggest that single-member executive offices
are not within the scope of §2, see Houston Lawyers9 Assn. v. Attorney
General of Tex., 501 U. S. 419, 425-428 (1991), but only that they are not
generally susceptible to size challenges under §2.
954 HOLDER u HALL
BLACKMUN, J., dissenting
member governing authority was a reasonable benchmark—
which, of course, respondents could not do here— and that
their claim satisfied the three Gingles preconditions, 478
U. S., at 49, and was warranted under the totality of the
circumstances.6
6 The Senate Report accompanying the 1982 amendments to the Act di-
rected that the vote-dilution inquiry include an examination of the factors
identified in White v. Regester, 412 U. S. 755 (1973), and refined and devel-
oped in Zimmer v. McKeithen, 485 F. 2d 1297 (CA5 1973) (en bane), aff d,
424 U, S. 636 (1976) (per curiam). This nonexclusive list of factors, now
known variously as the Regester-Zimmer factors or "Senate Report fac-
tors," includes "the extent of any history of official discrimination . . . that
touched the right of the members of the minority group to register, to
vote, or otherwise to participate in the democratic process; ... the extent
to which the state or political subdivision has used unusually large election
districts, majority vote requirements, anti-single shot provisions, or other
voting practices or procedures that may enhance the opportunity for dis-
crimination against the minority group; . . . [and] the extent to which
members of the minority group in the state or political subdivision bear
the effects of discrimination in such areas as education, employment and
health, which hinder their ability to participate effectively in the political
process." S. Rep. No. 97-417, pp. 28-29 (1982).
In this case, for example, the District Court found that, until the passage
of federal civil rights laws, Bleckley County "enforced racial segregation
in all aspects of local government — courthouse, jails, public housing, gov-
ernmental services — and deprived its black citizens of the opportunity to
participate in local government." Hall v. Holder, 757 F. Supp. 1560, 1562
(MD Ga. 1991). Until the passage of the Voting Rights Act of 1965, "black
citizens were virtually prohibited from registering to vote in Bleckley
County." JTd, at 1563. Until 1984, there were no African-American
voting registrars and no voter registration in places where African-
Americans normally congregated. Ibid. From 1978 until 1986, the re-
spondent probate judge appointed 224 poll managers, all white, and 509
poll clerks, 479 of whom were white. Ibid. Since 1964, the election of
Bleckley County's sole commissioner has been subject to a majority-vote
requirement. Although official segregation is no longer imposed, its ves-
tiges remain, as "more black than white residents of Bleckley County con-
tinue to endure a depressed socio-economic status," id, at 1562, which
"hinders the ability of and deters black residents of Bleckley County from
running for public office, voting and otherwise participating in the political
Cite as: 512 U. S. 874 (1994) 955
BLACKMUN, J., dissenting
With these limitations, successful vote-dilution challenges
to the size of a governing authority always will be based not
on abstract manipulation of numbers, but on a "searching
practical evaluation of the 'past and present reality/" S.
Rep, No. 97-417, at 30, quoting White v. Regester, 412 U. S.
755, 770 (1973). These limitations protect against a prolif-
eration of vote-dilution challenges premised on eccentric or
impracticable alternative methods of redistricting.
Ill
The Voting Rights Act of 1965 was bold and ambitious
legislation, designed to eradicate the vestiges of past dis-
crimination and to make members of racial and language mi-
norities full participants in American political life. Nearly
30 years after the passage of this landmark civil rights
legislation, its goals remain unfulfilled. Today, the most bla-
tant forms of discrimination — including poll taxes, literacy
tests, and "white" primaries — have been eliminated. But
subtler, more complex means of infringing minority voting
strength — including submergence or dispersion of minority
voters — are still present and indeed prevalent. We have
recognized over the years that seemingly innocuous and even
well-intentioned election practices may impede minority vot-
ers' ability not only to vote, but to have their votes count.
It is clear that the practice of electing a single-member
county commission can be one such dilutive practice. It is
equally clear that a five-member commission is an appro-
priate benchmark against which to measure the alleged dilu-
tive effects of Bleckley County's practice of electing a sole
commissioner. I respectfully dissent.
process," id., at 1563. The "barriers to active participation in the political
process are . . . compounded by the fact that Bleckley County now has
only one voting precinct for the entire 219 square-mile area." Id., at 1563,
n. 3. That single polling place is located at an all-white civic club. 955
F. 2d 1563, 1566 (CA11 1992).
956 HOLDER v. HALL
GINSBURG, J., dissenting
JUSTICE GINSBURG, dissenting,
I join the dissenting opinion by JUSTICE BLACKMUN and
the separate opinion of JUSTICE STEVENS, and add a farther
observation about the responsibility Congress has given to
the judiciary.
Section 2 of the Voting Rights Act of 1965 calls for an
inquiry into "[t]he extent to which members of a protected
class have been elected to office," but simultaneously dis-
claims any "right to have members of a protected class
elected in numbers equal to their proportion in the popula-
tion/' 42 IL S. C. § 1973(b). "There is an inherent tension
between what Congress wished to do and what it wished to
avoid" — between Congress' "inten[t] to allow vote dilution
claims to be brought under § 2" and its intent to avoid "creat-
[ing] a right to proportional representation for minority vot-
ers/' Thornburg v. Gingles, 478 U. S. 30, 84 (1986) (O'CON-
NOR, J., joined by Burger, C. J., and Powell and REHNQUIST,
JJ., concurring in judgment). Tension of this kind is hardly
unique to the Voting Rights Act, for when Congress acts on
issues on which its constituents are divided, sometimes bit-
terly, the give-and-take of legislative compromise can yield
statutory language that fails to reconcile conflicting goals
and purposes.
Title VII of the Civil Rights Act of 1964, for example, is
similarly janus faced, prohibiting discrimination against his-
torically disadvantaged groups, see 42 U. S. C. §§2000e-2(a),
(d), without "diminishing] traditional management preroga-
tives," Steelworkers v. Weber, 443 U. S. 193, 207 (1979), in
regard to employment decisions. See 42 U. S. C. § 20QOe-
2( j) (no requirement that employer "grant preferential treat-
ment to any individual or to any group because of ... race,
color, religion, sex, or national origin"); see also Johnson v,
Transportation Agency, Santa Clara Cty., 480 U. S. 616, 649
(1987) (O'CONNOR, J., concurring in judgment) (noting two
"conflicting concerns" built into Title VII: "Congress' intent
Cite as: 512 U. S. 874 (1994) 957
Opinion of STEVENS, J.
to root out invidious discrimination against any person on
the basis of race or gender, and its goal of eliminating the
lasting effects of discrimination against minorities") (empha-
sis in original) (citation omitted).
When courts are confronted with congressionally crafted
compromises of this kind, it is "not an easy task" to remain
"faithful to the balance Congress struck." Thornburg v.
Gingles, 478 U. S., at 84 (O'CONNOR, J., joined by Burger,
C. J., and Powell and REHNQUIST, JJ., concurring in judg-
ment). The statute's broad remedial purposes, as well as
the constraints on the courts' remedial powers, need to be
carefully considered in light of the particular circumstances
of each case to arrive at an appropriate resolution of the
competing congressional concerns. However difficult this
task may prove to be, it is one that courts must undertake
because it is their mission to effectuate Congress' multiple
purposes as best they can. See Chisom v. Roemer, 501 U. S.
380, 403 (1991) ("Even if serious problems lie ahead in apply-
ing the 'totality of the circumstances' [inquiry under § 2(b) of
the Voting Rights Act], that task, difficult as it may prove to
be, cannot justify a judicially created limitation on the cover-
age of the broadly worded statute[ .]")•
Separate opinion of JUSTICE STEVENS, in which JUSTICE
BLACKMUN, JUSTICE SOUTER, and JUSTICE GINSBURG join.
JUSTICE THOMAS has written a separate opinion proposing
that the terms "standard, practice, or procedure" as used in
the Voting Rights Act of 1965 should henceforth be con-
strued to refer only to practices that affect minority citizens'
access to the ballot. Specifically, JUSTICE THOMAS would no
longer interpret the Act to forbid practices that dilute minor-
ity voting strength. To the extent that his opinion advances
policy arguments in favor of that interpretation of the stat-
ute, it should be addressed to Congress, which has ample
power to amend the statute. To the extent that the opinion
968 HOLDER v. HALL
Opinion of STEVENS, J.
suggests that federal judges have an obligation to subscribe
to the proposed narrow reading of statutory language, it is
appropriate to supplement JUSTICE THOMAS' writing with a
few words of history.
I
JUSTICE THOMAS notes that the first generation of Voting
Rights Act cases focused on access to the ballot. Ante, at
894-895. By doing so, he suggests that the early pattern of
enforcement is an indication of the original meaning of the
statute. In this regard, it is important to note that the
Court's first case addressing a voting practice other than ac-
cess to the ballot arose under the Fifteenth Amendment. In
Gomillion v. Lightfoot, 364 U. S. 339 (I960), the Court held
that a change in the boundaries of the city of Tuskegee,
Alabama, violated the Fifteenth Amendment, In his opin-
ion for the Court, Justice Frankfurter wrote:
"The opposite conclusion, urged upon us by respondents,
would sanction the achievement by a State of any im-
pairment of voting rights whatever so long as it was
cloaked in the garb of the realignment of political sub-
divisions." Id., at 345.
"A statute which is alleged to have worked unconstitu-
tional deprivations of petitioners' rights is not immune
to attack simply because the mechanism employed by
the legislature is a redefinition of municipal boundaries.
According to the allegations here made, the Alabama
Legislature has not merely redrawn the Tuskegee city
limits with incidental inconvenience to the petitioners;
it is more accurate to say that it has deprived the peti-
tioners of the municipal franchise and consequent rights
and to that end it has incidentally changed the city's
boundaries. While in form this is merely an act rede-
fining metes and bounds, if the allegations are estab-
lished, the inescapable human effect of this essay in
geometry and geography is to despoil colored citizens,
Cite as: 512 U. S. 874 (1994) 959
Opinion of STEVENS, J.
and only colored citizens, of their theretofore enjoyed
voting rights/' Id., at 347.1
Because Gomillion was decided only a few years before
the Voting Rights Act of 1965 was passed, and because cover-
age under the Voting Rights Act is generally coextensive
with or broader than coverage under the Fifteenth Amend-
ment, see Katzenbach v. Morgan, 384 U. S. 641 (1966); Mo-
bile v. Bolden, 446 U. S. 55, 60-61 (1980) (plurality opinion),
it is surely not unreasonable to infer that Congress intended
the Act to reach the kind of voting practice that was at issue
in that case. Nevertheless, the text of the Act would also
have supported the opposite inference, because the language
of the Fifteenth Amendment would seem to forbid any denial
or abridgment of the right to vote, whereas §§2 and 5 of the
Voting Rights Act refer only to "voting qualification[s,] . . .
prerequisite[s] to voting, . . . standard[s], practice[s], [and]
procedure[s]."
During the years between 1965 and 1969 the question
whether the Voting Rights Act should be narrowly construed
to cover nothing more than impediments to access to the
ballot was an unresolved issue. What JUSTICE THOMAS de-
scribes as "a fundamental shift in the focal point of the Act,"
ante, at 895, occurred in 1969 when the Court unequivocally
rejected the narrow reading, relying heavily on a broad
1 In most of his opinion, JUSTICE THOMAS seems to use the phrase "ac-
cess to the ballot" to refer to the voter's ability to cast a vote. In an
attempt to characterize the Gomillion gerrymander as a practice that
interfered with access to the ballot, however, he seems to take the position
that the redrawing of the boundaries of a governmental unit is a practice
that affects access to the ballot because some voters' ballots could not
thereafter be cast for the same offices as before. See ante, at 920, n. 20.
Under such reasoning the substitution of an appointive office for an elec-
tive office, see Bunion v. Patterson, decided with Allen v. State Bd. of
Elections, 393 U. S. 544, 550-551 (1969), or a change in district boundaries
that prevented voters from casting ballots for the reelection of their in-
cumbent congressional Representatives, would also be covered practices.
960 HOLDER v. HALL
Opinion of STEVENS, J.
definition of the term "voting" as including " 'all action nec-
essary to make a vote effective/" Allen v. State Bd. of
Elections, 393 U. S. 544, 565-566.
Despite Allen's purported deviation from the Act's true
meaning, Congress one year later reenacted §5 without in
any way changing the operative words. During the next
five years, the Court consistently adhered to Allen, see Per-
kins v. Matthews, 400 U. S. 379 (1971); Georgia v. United
States, 411 U. S. 526 (1973), and in 1975, Congress again reen-
acted § 5 without change.
When, in the late seventies, some parties advocated a nar-
row reading of the Act, the Court pointed to these congres-
sional reenactments as solid evidence that Allen, even if not
correctly decided in 1969, would now be clearly correct. In
United States v. Sheffield Bd. of Commas, 435 U. S. 110, 132-
133 (1978), the Court noted:
"In 1970, Congress was clearly fully aware of this
Court's interpretation of §5 as reaching voter changes
other than those affecting the registration process and
plainly contemplated that the Act would continue to be
so construed. See, e« g., Hearings on BL R. 4249 et aL
before Subcommittee No. 5 of the House Committee on
the Judiciary, 91st Cong., 1st Sess., 1, 4, 18, 83, 130-131,
133, 147-149, 154-155, 182-184, 402-454 (1969); Hearings
on S. 818 et al. before the Subcommittee on Constitu-
tional Rights of the Senate Committee on the Judiciary,
91st Cong., 1st and 2d Sess., 48, 195-196, 369-370, 397-
398, 426-427, 469 (1970) ....
"The congressional history is even clearer with re-
spect to the 1975 extension * „ . ."2
2 See also United Jewish Organizations ofWilliamsburgh, Inc. v. Carey,
430 U S. 144, 157-159 (1977) (opinion of White, J.): "In Allen v. State Board
of Elections!, 393 U. S. 544 (1969),] ... we held that a change from district
to at-large voting for county supervisors had to be submitted for federal
approval under § 5, because of the potential for a ^dilution* of minority
voting power which could 'nullify [its] ability to elect the candidate of [its]
Cite as: 512 U. S. 874 (1994) 961
Opinion of STEVENS, J.
As the Court in that case also noted, when Congress reen-
acts a statute with knowledge of its prior interpretation, that
interpretation is binding on the Court.
"Whatever one might think of the other arguments
advanced, the legislative background of the 1975 re-
enactment is conclusive of the question before us.
When a Congress that re-enacts a statute voices its
approval of an administrative or other interpretation
thereof, Congress is treated as having adopted that
interpretation, and this Court is bound thereby. See,
e. g., Don E. Williams Co. v. Commissioner, 429 U. S.
569, 576-577 (1977); Albemarle Paper Co. v. Moody, 422
U. S. 405, 414 n. 8 (1975); H. Hart & A. Sacks, The Legal
Process: Basic Problems in the Making and Application
of Law 1404 (tent. ed. 1958); cf. Zenith Radio Corp. v.
Hazeltine Research, 401 U. S. 321, 336 n. 7 (1971); Girou-
ard v. United States, 328 U. S. 61, 69-70 (1946). Don E.
Williams Co. v. Commissioner, supra, is instructive.
As here, there had been a longstanding administrative
interpretation of a statute when Congress re-enacted it,
and there, as here, the legislative history of the re-
enactment showed that Congress agreed with that inter-
choice . . , .' 393 U. S., at 569. When it renewed the Voting Rights Act
in 1970 and again in 1975, Congress was well aware of the application of
§ 5 to redistricting. In its 1970 extension, Congress relied on findings by
the United States Commission on Civil Rights that the newly gained vot-
ing strength of minorities was in danger of being diluted by redistricting
plans that divided minority communities among predominantly white dis-
tricts. In 1975, Congress was unmistakably cognizant of this new phase
in the effort to eliminate voting discrimination. Former Attorney Gen-
eral Katzenbach testified that § 5 'has had its broadest impact ... in the
areas of redistricting and reapportionment/ and the Senate and House
Reports recommending the extension of the Act referred specifically to
the Attorney General's role in screening redistricting plans to protect the
opportunities for nonwhites to be elected to public office" (footnote
omitted).
962 HOLDER v. HALL
Opinion of STEVENS, J.
pretation, leading this Court to conclude that Congress
had ratified it 429 U. S., at 574-577." Id., at 134-135.
If the 1970 and 1975 reenactments had left any doubt as
to congressional intent, that doubt would be set aside by the
1982 amendments to §2. Between 1975 and 1982, the Court
continued to interpret the Voting Rights Act in the broad
manner set out by Allen. See City of Rome v. United
States, 446 U. S. 156 (1980); Dougherty County Bd. of Ed.
v. White, 439 U. S. 32 (1978); United Jewish Organizations
of Williamsburgh, Inc. v. Carey, 430 U. S. 144 (1977); Rich-
mond v. United States, 422 U. S- 358 (1975). In Mobile v.
Bolden, 446 U. S. 55 (1980), a plurality of this Court con-
cluded that violations of both the Voting Rights Act and the
Fifteenth Amendment required discriminatory purpose.
The case involved a claim that at~large voting diluted mi-
nority voting strength. In his opinion for the plurality in
Bolden, Justice Stewart expressly relied upon Gomillion
v. Lightfoot's holding "that allegations of a racially motivated
gerrymander of municipal boundaries stated a claim under
the Fifteenth Amendment." 446 U. S,, at 62; see also id., at
85-86 (STEVENS, J,, concurring in judgment). The only rea-
son Gomillion did not control the outcome in Bolden was
that an "invidious purpose" had been alleged in the earlier
case but not in Bolden. 446 U. S., at 63.3 The congres-
sional response to Bolden is familiar history. In the 1982
amendment to § 2 of the Voting Rights Act, Congress substi-
tuted a "results" test for an intent requirement. Pub. L,
97-205, §3, 96 Stat. 134; see 42 U. S. C. § 1973. It is crystal
8 The idea that the Court in Bolden cast doubt on whether the Voting
Rights Act reached diluting practices is flatly refuted by another decision
handed down the very same day as the Bolden decision* In City of Rome
v. United States, 446 U.S. 166, 186-187 (1980), the Court held that §6
required preclearance of annexations potentially diluting minority voting
strength. Even the dissenters did not suggest that vote dilution claims
were now questionable.
Cite as: 512 U. S. 874 (1994) 963
Opinion of STEVENS, JL
clear that Congress intended the 1982 amendment to cover
nonaccess claims like those in Bolden and Gomillion.4
II
JUSTICE THOMAS' narrow interpretation of the words "vot-
ing qualification . . . standard, practice, or procedure/' if
adopted, would require us to overrule Allen and the cases
that have adhered to its reading of the critical statutory lan-
guage. The radical character of that suggested interpreta-
tion is illustrated by the following passage from an opinion
decided only nine years after Allen:
"The Court's decisions over the past 10 years have
given § 5 the broad scope suggested by the language of
the Act. We first construed it in Allen v. State Board
of Elections, [393 U. S. 544 (1969)]. There our examina-
tion of the Act's objectives and original legislative his-
tory led us to interpret §5 to give it 'the broadest possi-
ble scope/ 393 U. S., at 567, and to require prior federal
scrutiny of 'any state enactment which altered the elec-
tion law in a covered State in even a minor way.' Id.,
Sit 566. In so construing § 5, we unanimously rejected —
as the plain terms of the Act would themselves have
seemingly required — the argument of an appellee that
§ 5 should apply only to enactments affecting who may
register to vote. 393 U. S., at 564. Our decisions have
required federal preclearance of laws changing the loca-
tion of polling places, see Perkins v. Matthews, 400 U. S.
4 We recently confirmed that interpretation of the 1982 amendment, stat-
ing: "Moreover, there is no question that the terms 'standard, practice, or
procedure' are broad enough to encompass the use of multimember dis-
tricts to minimize a racial minority's ability to influence the outcome of an
election covered by §2." Chisom v. Roemer, 501 U. S. 380, 390 (1991).
Though disagreeing with the Court's holding that the statute covered
judicial elections, even the dissenters in that case agreed that the
amended § 2 "extends to vote dilution claims for the elections of repre-
sentatives . . . ." Id , at 405.
964 HOLDEK u HAJUJL
Opinion of STEVENS, J.
379 (1971), laws adopting at-large systems of election,
ibid.; Fairley v. Patterson (decided with Alien, supra);
laws providing for the appointment of previously elected
officials, Bunion v. Patterson (decided with Allen,
supra); laws regulating candidacy, Whitley v. Williams
(decided with Allen, supra); laws changing voting proce-
dures, Allen, supra; annexations, City of Richmond v.
United States, 422 U. S. 358 (1975); City of Petersburg
v. United States, 410 U. S. 962 (1973), summarily aff ?g
354 R Supp. 1021 (DC 1972); Perkins v. Matthews,
supra; and reapportionment and redistricting, Beer v.
United States, 425 U. S. 130 (1976); Georgia v. United
States, 411 U. S. 526 (1973); see United Jewish Organiza-
tions v. Carey, 430 U S. 144 (1977). In each case, fed-
eral scrutiny of the proposed change was required be-
cause the change had the potential to deny or dilute the
rights conferred by §4(a).n United States v. Sheffield
Bd. ofComm'rs, 435 U. S., at 122-123 (footnote omitted).
The Allen interpretation of the Act has also been followed in
a host of cases decided in later years, among them Houston
Lawyers9 Assn. v. Attorney General of Tex., 501 U. S. 419
(1991); Pleasant Grove v. United States, 479 U. S, 462 (1987);
Thornburg v. Gingles, 478 U. S. 30 (1986); Port Arthur v,
United States, 459 U. S. 159 (1982); City of Rome v. United
States, 446 U. S. 156 (1980); Dougherty County Bd. of Ed. v.
White, 439 U. S. 32 (1978). In addition, JUSTICE THOMAS'
interpretation would call into question the numerous other
cases since 1978 that have assumed the broad coverage of
the Voting Rights Act that JUSTICE THOMAS would now have
us reject. Chisom v. Roemer, 501 U. S. 380 (1991); Clark v.
Roemer, 500 U. S. 646 (1991); McCain v. Lybrand, 465 U S.
236 (1984); Hathorn v. Lovorn, 457 U. S, 255 (1982); Blanding
v. DuBose, 454 U. S. 393 (1982); McDaniel v. Sanchez, 452
U. S. 130 (1981); Berry v. Doles, 438 U. S. 190 (1978); see also
Presley v. Etowah County Comm'n, 502 U. S. 491 (1992);
Voinovich v. Quilter, 507 U. S. 146 (1993); Growe v. Emison,
Cite as: 512 U. S. 874 (1994) 965
Opinion of STEVENS, J.
507 U. S. 25 (1993); City of Lockhart v. United States, 460
U. S. 125 (1983).
The large number of decisions that we would have to over-
rule or reconsider, as well as the congressional reenactments
discussed above, suggests that JUSTICE THOMAS' radical re-
interpretation of the Voting Rights Act is barred by the
well-established principle that stare decisis has special force
in the statutory arena. Ankenbrandt v. Richards, 504 U. S.
689, 700 (1992); Patterson v. McLean Credit Union, 491 U. S.
164, 171-172 (1989); Illinois Brick Co. v. Illinois, 431 U. S.
720, 736-737 (1977).
JUSTICE THOMAS attempts to minimize the radical implica-
tions of his interpretation of the phrase "voting qualification
. . . standard, practice, or procedure" by noting that this case
involves only the interpretation of § 2 of the Voting Rights
Act. Section 5, he hints, might be interpreted differently.
Even limiting the reinterpretation to §2 cases, however,
would require overruling a sizable number of this Court's
precedents. Houston Lawyers' Assn. v. Attorney General
of Tex., 501 U. S. 419 (1991); Chisom v. Roemer, 501 U. S. 380
(1991); Thornburg v. Gingles, 478 U. S. 30 (1986); see also
Voinovich v. Quilter, 507 U. S. 146 (1993); Growe v. Emison,
507 U. S. 25 (1993). In addition, a distinction between §§2
and 5 is difficult to square with the language of the statute.
Sections 2 and 5 contain exactly the same words: "voting
qualification . . . standard, practice, or procedure." If any-
thing, the wording of §5 is narrower, because it adds the
limiting phrase "with respect to voting" after the word "pro-
cedure." Moreover, when Congress amended the Voting
Rights Act in 1982 in response to Bolden, it amended §2.
As noted above, in those amendments Congress clearly en-
dorsed the application of the Voting Rights Act to vote dilu-
tion claims. While a distinction between §§2 and 5 might
be supportable on policy grounds, it is an odd distinction for
devotees of "plain language" interpretation.
Opinion of STEVENS, J.
Throughout his opinion, JUSTICE THOMAS argues that this
case is an exception to stare decisis, because Allen and its
progeny have "immersed the federal courts in a hopeless
project of weighing questions of political theory." Ante, at
892. There is no question that the Voting Rights Act has
required the courts to resolve difficult questions, but that is
no reason to deviate from an interpretation that Congress
has thrice approved. Statutes frequently require courts to
make policy judgments. The Sherman Act, for example, re-
quires courts to delve deeply into the theory of economic
organization. Similarly, Title VII of the Civil Rights Act
has required the courts to formulate a theory of equal oppor-
tunity. Our work would certainly be much easier if every
case could be resolved by consulting a dictionary, but when
Congress has legislated in general terms, judges may not
invoke judicial modesty to avoid difficult questions.
Ill
When a statute has been authoritatively, repeatedly, and
consistently construed for more than a quarter century, and
when Congress has reenacted and extended the statute sev-
eral times with full awareness of that construction, judges
have an especially clear obligation to obey settled law.
Whether JUSTICE THOMAS is correct that the Court's settled
construction of the Voting Rights Act has been "a disastrous
misadventure," ante, at 893, should not affect the decision in
this case. It is therefore inappropriate for me to comment
on the portions of his opinion that are best described as an
argument that the statute be repealed or amended in impor-
tant respects.
OCTOBER TERM, 1993 967
Syllabus
TUILAEPA v. CALIFORNIA
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
No. 93-5131. Argued March 22, 1994— Decided June 30, 1994*
A defendant in California is eligible for the death penalty when a jury
finds him guilty of first-degree murder and finds one or more of the
special circumstances listed in Cal. Penal Code Ann. § 190.2. The case
then proceeds to the penalty phase, where the jury is instructed to
consider numerous other factors listed in §190.3 in deciding whether
to impose death. Petitioners Tuilaepa and Proctor were convicted of
first-degree murder in separate cases. At the penalty phase of each
trial, the jury was instructed to consider the relevant sentencing factors
in §190.3. Both petitioners were sentenced to death, and the State
Supreme Court affirmed. Here, they challenge the constitutionality of
penalty-phase factor (a), which requires the sentencer to consider the
"circumstances of the crime of which the defendant was convicted . . .
and the existence of any special circumstances found to be true." Tui-
laepa also challenges factor (b), which requires the sentencer to consider
the "presence or absence of criminal activity [involving] the use or at-
tempted use of force or violence or the express or implied threat to use
force or violence," and factor (i), which requires the sentencer to con-
sider the defendant's age at the time of the crime.
Held: The factors in question are not unconstitutionally vague under
this Court's decisions construing the Cruel and Unusual Punishments
Clause. Pp. 971-980.
(a) The Court's vagueness review is quite deferential, and relies on
the basic principle that a factor is not unconstitutional if it has some
"common-sense core of meaning . . . that criminal juries should be capa-
ble of understanding." Jurek v. Texas, 428 U. S. 262, 279 (White, J.,
concurring in judgment). Petitioners' challenge to factor (a) is at some
odds with settled principles, for the circumstances of the crime are a
traditional subject for consideration by the sentencer, see, e. g.9 Woodson
v. North Carolina, 428 U. S. 280, 304 (plurality opinion), and factor (a)
instructs the jury in understandable terms. Factor (b) is framed in
conventional and understandable terms as well. Asking a jury to con-
sider matters of historical fact is a permissible part of the sentencing
process. Tuilaepa's challenge to factor (i) is also unusual in light of the
Together with No. 93-5161, Proctor v. California, also on certiorari to
the same court.
968 TUILAEPA v. CALIFORNIA
Syllabus
Court's precedents. See Eddings v. Oklahoma, 455 U. S. 104, 115-117.
While determining the bearing age ought to have in fixing the penalty
can pose a dilemma for the jury, difficulty in application is not the equiv-
alent of vagueness. Pp. 971-977.
(b) This Court's precedents also foreclose petitioners' remaining argu-
ments. Selection factors need not require answers to factual questions.
The States are not confined to submitting to the jury specific proposi-
tional questions, see, e. g., Zant v. Stephens, 462 U. S. 862, 878-880, 889,
and there is no constitutional problem where an instruction directs con-
sideration of a crime's facts and circumstances. Nor must a capital sen-
tencer be instructed how to weigh any particular fact in the sentencing
decision. See, e.g., California v. Ramos, 463 U.S. 992, 1008-1009,
Pp. 977-980.
No. 93-5131, 4 Cal. 4th 569, 842 R 2d 1142, and No. 93-5161, 4 Cal 4th
499, 842 R 2d 1100, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which REHNQXJIST,
C. J., and O'CONNOR, SCALIA, SQUTER, and THOMAS, JJ,, joined. SGALIA,
J., post, p. 980, and SOUTER, J., post, p. 980, filed concurring opinions.
STEVENS, J., filed an opinion concurring in the judgment, in which GINS-
BURG, J., joined, post, p. 981. BLACKMUN, J., filed a dissenting opinion,
post, p. 984.
Howard W. Gillingham, by appointment of the Court, 510
U. S. 1038, argued the cause and filed briefs for petitioner
in No. 93-5131. Wendy C. Lascher, by appointment of
the Court, 510 U. S* 1038, argued the cause for petitioner in
No. 93-5161. With her on the brief was Susan B. Lascher.
Wm. George Prahl, Deputy Attorney General of Califor-
nia, argued the cause for respondent in both cases- With
him on the brief were Daniel E. Lungren, Attorney General,
George Williamson, Chief Assistant Attorney General, and
Dane R. Gillette, Deputy Attorney General. t
^Michael Laurence, Paul L. Hoffman, and Mark Sitverstein filed a brief
for the American Civil Liberties Union et ai as amid curias urging rever-
sal in No. 93-5131. Clifford Gardner, Melissa W Johnson, Gail R. Wein-
heimer, and Steven W Parnes filed a brief for the California Appellate
Project as amicus curiae urging reversal in both cases.
Kent S. Scheidegger filed a brief for the Criminal Justice Legal Founda-
tion as amicus curiae urging affirmance in both eases.
CJite as: 512 U. S. 967 (1994) 969
Opinion of the Court
JUSTICE KENNEDY delivered the opinion of the Court.
In California, to sentence a defendant to death for first-
degree murder the trier of fact must find the defendant
guilty and also find one or more of 19 special circumstances
listed in CaL Penal Code Ann. § 190.2 (West 1988 and Supp.
1994). The case then proceeds to the penalty phase, where
the trier of fact must consider a number of specified factors
in deciding whether to sentence the defendant to death.
§ 190.3.* These two cases present the question whether
three of the §190.3 penalty-phase factors are unconstitu-
tionally vague under decisions of this Court construing the
*Section 190.3 provides in part:
"In determining the penalty, the trier of fact shall take into account any
of the following factors if relevant:
"(a) The circumstances of the crime of which the defendant was con-
victed in the present proceeding and the existence of any special circum-
stances found to be true pursuant to Section 190.1.
"(b) The presence or absence of criminal activity by the defendant
which involved the use or attempted use offeree or violence or the express
or implied threat to use force or violence.
"(c) The presence or absence of any prior felony conviction.
"(d) Whether or not the offense was committed while the defendant was
under the influence of extreme mental or emotional disturbance.
"(e) Whether or not the victim was a participant in the defendant's hom-
icidal conduct or consented to the homicidal act.
"(f) Whether or not the offense was committed under circumstances
which the defendant reasonably believed to be a moral justification or
extenuation for his conduct.
"(g) Whether or not defendant acted under extreme duress or under
the substantial domination of another person.
"(h) Whether or not at the time of the offense the capacity of the de-
fendant to appreciate the criminality of his conduct or to conform his con-
duct to the requirements of law was impaired as a result of mental disease
or defect, or the [e]ffects of intoxication.
"(i) The age of the defendant at the time of the crime.
"(j) Whether or not the defendant was an accomplice to the offense and
his participation in the commission of the offense was relatively minor.
"(k) Any other circumstance which extenuates the gravity of the crime
even though it is not a legal excuse for the crime."
v.
Opinion of the Court
Cruel and Unusual Punishments Clause of the Eighth
Amendment, made applicable to the States by the Four-
teenth Amendment.
I
Petitioner Tuilaepa's case arises out of a murder he com-
mitted in Long Beach, California, in October 1986. Tuilaepa
and an accomplice walked into the Wander Inn Bar in Long
Beach, where a small crowd had gathered to watch Monday
Night Football Tuilaepa, who was carrying a ,22-caliber
rifle, approached the bartender, pointed the rifle at him, and
demanded money from the cash register. After the bar-
tender turned over the money, Tuilaepa and his accomplice
began robbing the bar's patrons. When the accomplice de-
manded money from a man named Melvin Whiddon, Whid-
don refused and knocked the accomplice to the floor. Tui-
laepa shot Whiddon in the neck and next shot Whiddon's
brother, Kelvin, who was standing nearby. Tuilaepa turned
to another man, Bruce Monroe, and shot him in the stomach.
As Tuilaepa and his accomplice ran toward the back door,
they confronted Kenneth Boone* Tuilaepa shot Boone in the
neck. Melvin Whiddon died at the scene from the gunshot
wounds; the others suffered serious and in some cases per-
manent injuries.
The State sought the death penalty against Tuilaepa,
charging him with the murder of Melvin Whiddon and one
special circumstance under § 190.2: murder during the com-
mission of a robbery The jury found Tuilaepa guilty of
first-degree murder and also found the special circumstance
true. At the penalty phase, the trial judge instructed the
jury to consider the relevant sentencing factors specified in
§ 190.3. The jury was unanimous in sentencing Tuilaepa to
death.
Petitioner Proctor murdered Bonnie Stendal, a 55-year-old
schoolteacher who lived in Burney, a small community in
Shasta County, California. On a night in April 1982, Proctor
entered Mrs. StendaFs home and beat her, causing numerous
Cite as: 512 IL S. 967 (1994) 971
Opinion of the Court
cuts and bruises on her face. Proctor stabbed Mrs. Stendal
in the neck several times and inflicted seven stab wounds in
the area of the right breast. Proctor raped Mrs. Stendal
and committed further sexual assaults with a foreign object.
After beating, torturing, and raping Mrs. Stendal, Proctor
strangled her to death and dumped her body on the side of
the road near Lake Britton, 12 miles from Burney. The
body was found late the next afternoon, clad in a nightgown
with hands tied behind the back.
The State sought the death penalty against Proctor, charg-
ing him with murder and a number of special circumstances
under § 190.2 including murder during the commission of a
rape, murder during the commission of a burglary, and in-
fliction of torture during a murder. The jury found Proctor
guilty of murder and found the three special circumstances
true. After a mistrial at the penalty phase, Proctor's mo-
tion for change of venue was granted, and a new sentencing
jury was empaneled in Sacramento County. The trial judge
instructed the jury to consider the sentencing factors speci-
fied in § 190.3. The jury was unanimous in sentencing Proc-
tor to death.
Petitioners appealed to the Supreme Court of California,
which affirmed their convictions and death sentences.
No. 93-5131, 4 Cal. 4th 569, 842 P. 2d 1142 (1992), and
No. 93-5161, 4 Cal. 4th 499, 842 P. 2d 1100 (1992). We
granted certiorari, 510 U. S. 1010 (1993), and now affirm.
II
A
Our capital punishment cases under the Eighth Amend-
ment address two different aspects of the capital decision-
making process: the eligibility decision and the selection de-
cision. To be eligible for the death penalty, the defendant
must be convicted of a crime for which the death penalty is
a proportionate punishment. Coker v. Georgia, 433 U. S. 584
(1977). To render a defendant eligible for the death penalty
972 TU1LAEFA v. U
Opinion of the Court
in a homicide case, we have indicated that the trier of fact
must convict the defendant of murder and find one "aggra-
vating circumstance" (or its equivalent) at either the guilt or
penalty phase. See, e. g., Lowenfield v. Phelps, 484 U. S.
231, 244-246 (1988); Zant v. Stephens, 462 U. S. 862, 878
(1983). The aggravating circumstance may be contained in
the definition of the crime or in a separate sentencing factor
(or in both). Lowenfield, supra, at 244-246. As we have
explained, the aggravating circumstance must meet two re-
quirements. First, the circumstance may not apply to every
defendant convicted of a murder; it must apply only to a sub-
class of defendants convicted of murder. See Arave v,
Creech, 507 U. S. 463, 474 (1993) ("If the sentencer fairly
could conclude that an aggravating circumstance applies to
every defendant eligible for the death penalty, the circum-
stance is constitutionally infirm"). Second, the aggravating
circumstance may not be unconstitutionally vague. Godfrey
v. Georgia, 446 U. S. 420, 428 (1980); see Arave, supra, at 471
(court "'must first determine whether the statutory lan-
guage defining the circumstance is itself too vague to provide
any guidance to the sentencer'") (quoting Walton v. Ari-
zona, 497 U. S, 639, 654 (1990)).
We have imposed a separate requirement for the selection
decision, where the sentencer determines whether a defend-
ant eligible for the death penalty should in fact receive that
sentence. "What is important at the selection stage is an
individualized determination on the basis of the character
of the individual and the circumstances of the crime." Zant,
supra, at 879; see also Woodson v. North Carolina, 428 U. S.
280, 303-304 (1976) (plurality opinion). That requirement is
met when the jury can consider relevant mitigating evidence
of the character and record of the defendant and the circum-
stances of the crime. Blystone v. Pennsylvania, 494 U. S.
299, 307 (1990) ("requirement of individualized sentencing in
capital cases is satisfied by allowing the jury to consider all
Cite as: 512 U. S. 967 (1994) 973
Opinion of the Court
relevant mitigating evidence"); see Johnson v. Texas, 509
U. S. 350, 361 (1993).
The eligibility decision fits the crime within a defined clas-
sification. Eligibility factors almost of necessity require an
answer to a question with a factual nexus to the crime or
the defendant so as to "make rationally reviewable the proc-
ess for imposing a sentence of death." Arave, supra, at 471
(internal quotation marks omitted). The selection decision,
on the other hand, requires individualized sentencing and
must be expansive enough to accommodate relevant mitigat-
ing evidence so as to assure an assessment of the defendant's
culpability. The objectives of these two inquiries can be in
some tension, at least when the inquiries occur at the same
time. See Romano v. Oklahoma, ante, at 6 (referring to
"two somewhat contradictory tasks"). There is one princi-
ple common to both decisions, however: The State must en-
sure that the process is neutral and principled so as to guard
against bias or caprice in the sentencing decision. See
Gregg v. Georgia, 428 U. S. 153, 189 (1976) (joint opinion of
Stewart, Powell, and STEVENS, JJ.) (procedures must "mini-
mize the risk of wholly arbitrary and capricious action").
That is the controlling objective when we examine eligibil-
ity and selection factors for vagueness. Indeed, it is the
reason that eligibility and selection factors (at least in some
sentencing schemes) may not be "too vague." Walton,
supra, at 654; see Maynard v. Cartwright, 486 U. S. 356,
361-364 (1988).
Because "the proper degree of definition" of eligibility and
selection factors often "is not susceptible of mathematical
precision," our vagueness review is quite deferential. Wal-
ton, supra, at 655; see Gregg, supra, at 193-194 (factors "are
by necessity somewhat general"). Relying on the basic
principle that a factor is not unconstitutional if it has some
"common-sense core of meaning . . . that criminal juries
should be capable of understanding," Jurek v. Texas, 428
U. S. 262, 279 (1976) (White, J., concurring in judgment), we
974 TUILAEPA u CALIFORNIA
Opinion of the Court
have found only a few factors vague, and those in fact
are quite similar to one another. See Maynard, supra, at
363-364 (question whether murder was "especially heinous,
atrocious, or cruel"); Godfrey, supra, at 427-429 (question
whether murder was "outrageously or wantonly vile, horri-
ble and inhuman"); c£. Arave, 507 U. S., at 472 ("We are not
faced with pejorative adjectives . . . that describe a crime as
a whole"). In providing for individualized sentencing, it
must be recognized that the States may adopt capital sen-
tencing processes that rely upon the jury, in its sound judg-
ment, to exercise wide discretion. That is evident from the
numerous factors we have upheld against vagueness chal-
lenges. See, e.g., id., at 472-473 (question whether the de-
fendant was a "cold-blooded, pitiless slayer" is not unconsti-
tutionally vague); Walton, supra, at 654 (question whether
"perpetrator inflict[ed] mental anguish or physical abuse be-
fore the victim's death" with "[m]ental anguish including] a
victim's uncertainty as to his ultimate fate" is not unconstitu-
tionally vague) (internal quotation marks omitted); Proffitt
v. Florida, 428 IX S. 242, 255-258 (1976) (joint opinion of
Stewart, Powell, and STEVENS, JJ.) (various "mitigating"
questions not unconstitutionally vague, nor is the question
whether the crime was a "conscienceless or pitiless crime
which [wa]s unnecessarily torturous to the victim") (internal
quotation marks omitted); Jurek, supra, at 274-276 (question
"whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a con-
tinuing threat to society" is not unconstitutionally vague).
In our decisions holding a death sentence unconstitutional
because of a vague sentencing factor, the State had pre-
sented a specific proposition that the sentencer had to find
true or false (e.g., whether the crime was especially heinous,
atrocious, or cruel). We have held, under certain sentencing
schemes, that a vague propositional factor used in the sen-
tencing decision creates an unacceptable risk of randomness,
the mark of the arbitrary and capricious sentencing process
Cite as: 512 U. S. 967 (1994) 975
Opinion of the Court
prohibited by Furman v. Georgia, 408 U. S. 238 (1972). See
Stringer v. Black, 503 U. S. 222 (1992). Those concerns are
mitigated when a factor does not require a yes or a no
answer to a specific question, but instead only points the
sentencer to a subject matter. See Cal. Penal Code Ann.
§§ 190.3(a), (k) (West 1988). Both types of factors (and the
distinction between the two is not always clear) have their
utility. For purposes of vagueness analysis, however, in ex-
amining the propositional content of a factor, our concern is
that the factor have some "common-sense core of meaning
. . . that criminal juries should be capable of understanding."
Jurek, supra, at 279 (White, J., concurring in judgment).
B
With those principles in mind, we consider petitioners'
vagueness challenge to the California scheme. A defendant
in California is eligible for the death penalty when the jury
finds him guilty of first-degree murder and finds one of
the §190.2 special circumstances true. See California v.
Ramos, 463 U. S. 992, 1008 (1983) (jury found that "the de-
fendant [fell] within the legislatively defined category of per-
sons eligible for the death penalty [by] determining the truth
of the alleged special circumstance/' commission of murder
during the course of a robbery). (Petitioners do not argue
that the special circumstances found in their cases were
insufficient, so we do not address that part of California's
scheme save to describe its relation to the selection phase.)
At the penalty phase, the jury is instructed to consider nu-
merous other factors listed in § 190.3 in deciding whether to
impose the death penalty on a particular defendant. Petition-
ers contend that three of those § 190.3 sentencing factors are
unconstitutional and that, as a consequence, it was error to
instruct their juries to consider them. Both Proctor and Tu-
ilaepa challenge factor (a), which requires the sentencer to
consider the "circumstances of the crime of which the defend-
ant was convicted in the present proceeding and the exist-
976 TUILAEPA u CALIFORNIA
Opinion of the Court
ence of any special circumstances found to be true/1 Tui-
laepa challenges two other factors as well: factor (b), which
requires the sentencer to consider u[t]he presence or absence
of criminal activity by the defendant which involved the use
or attempted use of force or violence or the express or
implied threat to use force or violence"; and factor (i),
which requires the sentencer to consider "[t]he age of the
defendant at the time of the crime/' We conclude that
none of the three factors is defined in terms that violate
the Constitution.
Petitioners' challenge to factor (a) is at some odds with
settled principles, for our capital jurisprudence has estab-
lished that the sentencer should consider the circumstances
of the crime in deciding whether to impose the death penalty.
See, e.g., Woodson, 428 U. S., at 304 ("[Consideration of . . .
the circumstances of the particular offense [is] a constitution-
ally indispensable part of the process of inflicting the penalty
of death")* We would be hard pressed to invalidate a jury
instruction that implements what we have said the law re-
quires. In any event, this California factor instructs the
jury to consider a relevant subject matter and does so in
understandable terms. The circumstances of the crime are
a traditional subject for consideration by the sentencer, and
an instruction to consider the circumstances is neither vague
nor otherwise improper under our Eighth Amendment
jurisprudence.
Tuilaepa also challenges factor (b), which requires the sen-
tencer to consider the defendant's prior criminal activity.
The objection fails for many of the same reasons* Factor (b)
is phrased in conventional and understandable terms and
rests in large part on a determination whether certain
events occurred, thus asking the jury to consider matters of
historical fact. Under other sentencing schemes, in Texas
for example, jurors may be asked to make a predictive judg-
ment, such as "whether there is a probability that the de-
fendant would commit criminal acts of violence that would
Cite as: 512 U. S. 967 (1994) 977
Opinion of the Court
constitute a continuing threat to society/' See Jurek, 428
U. S., at 269. Both a backward-looking and a forward-
looking inquiry are a permissible part of the sentencing proc-
ess, however, and the States have considerable latitude in
determining how to guide the sentencer's decision in this
respect Here, factor (b) is not vague.
Tuilaepa's third challenge is to factor (i), which requires
the sentencer to consider "[t]he age of the defendant at the
time of the crime." This again is an unusual challenge in
light of our precedents. See Eddings v. Oklahoma, 455
U. S. 104, 115-117 (1982) (age may be relevant factor in sen-
tencing decision). The factual inquiry is of the most rudi-
mentary sort, and there is no suggestion that the term "age"
is vague. Petitioner contends, however, that the age factor
is equivocal and that in the typical case the prosecution ar-
gues in favor of the death penalty based on the defendant's
age, no matter how old or young he was at the time of the
crime. It is neither surprising nor remarkable that the rele-
vance of the defendant's age can pose a dilemma for the sen-
tencer. But difficulty in application is not equivalent to
vagueness. Both the prosecution and the defense may pre-
sent valid arguments as to the significance of the defendant's
age in a particular case. Competing arguments by adver-
sary parties bring perspective to a problem, and thus serve
to promote a more reasoned decision, providing guidance as
to a factor jurors most likely would discuss in any event.
We find no constitutional deficiency in factor (i).
Petitioners could not and do not take great issue with the
conclusion that factors (a), (b), and (i) provide common and
understandable terms to the sentencer. Cf. Godfrey, 446
U. S., at 429 ("jury's interpretation of [outrageously or wan-
tonly vile, horrible and inhuman factor] can only be the sub-
ject of sheer speculation")- Petitioners argue, however, that
selection factors must meet the requirements for eligibility
978 TUILAEPA v. CALIFORNIA
Opinion of the Court
factors, Brief for Petitioner in No. 93-5161, pp. 10-25, and
therefore must require an answer to a factual question, as
eligibility factors do. According to petitioners, a capital
jury may not be instructed simply to consider an open-ended
subject matter, such as "the circumstances of the crime" or
"the background of the defendant." Apart from the fact
that petitioners' argument ignores the obvious utility of
these open-ended factors as part of a neutral sentencing
process, it contravenes our precedents. Our decisions in
Zant and Gregg reveal that, at the selection stage, the States
are not confined to submitting to the jury specific preposi-
tional questions. In Zant, we found no constitutional diffi-
culty where the jury had been told to consider " *all facts
and circumstances presented in extenuation, mitigation, and
aggravation of punishment as well as such arguments as
have been presented for the State and for the Defense/"
462 U. S., at 878-880, 889, n. 25. We also stated that "Moth-
ing in the United States Constitution prohibits a trial judge
from instructing a jury that it would be appropriate to take
account of a defendant's prior criminal record in making its
sentencing determination/' Id, at 888, And in Gregg, we
rejected a vagueness challenge to that same Georgia sen-
tencing scheme in a case in which the "judge » . . charged the
jury that in determining what sentence was appropriate the
jury was free to consider the facts and circumstances, if any,
presented by the parties in mitigation or aggravation- n 428
U. S,, at 161, 203^204. In both cases, therefore, the Court
found no constitutional problem with a death sentence where
the jury instructions directed consideration of the "facts and
circumstances" of the case. In these cases as well, we must
reject petitioners' suggestion that the Constitution prohibits
sentencing instructions that require the trier of fact to con-
sider a relevant subject matter such as the "circumstance**
of the crime/'
Petitioners also suggest that the § 190,3 sentencing factors
are flawed because they do not instruct the senteneer how to
Cite as: 512 U. S. 967 (1994) 979
Opinion of the Court
weigh any of the facts it finds in deciding upon the ultimate
sentence. In this regard, petitioners claim that a single list
of factors is unconstitutional because it does not guide the
jury in evaluating and weighing the evidence and allows the
prosecution (as well as the defense) to make wide-ranging
arguments about whether the defendant deserves the death
penalty. This argument, too, is foreclosed by our cases. A
capital sentencer need not be instructed how to weigh any
particular fact in the capital sentencing decision. In Cali-
fornia v, Ramos, for example, we upheld an instruction in-
forming the jury that the Governor had the power to com-
mute life sentences and stated that "the fact that the jury is
given no specific guidance on how the commutation factor
is to figure into its determination presents no constitutional
problem/7 468 U.S., at 1008-1009, n. 22. Likewise, in
Proffitt v, Florida, we upheld the Florida capital sentencing
scheme even though "the various factors to be considered by
the sentencing authorities [did] not have numerical weights
assigned to them/' 428 U. S., at 258. In Gregg, moreover,
we "approval Georgia's capital sentencing statute even
though it clearly did not channel the jury's discretion by
enunciating specific standards to guide the jury's consider-
ation of aggravating and mitigating circumstances." Zant,
462 11 S.t at 875. We also rejected an objection "to the wide
scope of evidence and argument" allowed at sentencing hear-
ings, 428 U. S.f at 203-204. In sum, "discretion to evaluate
and weigh the circumstances relevant to the particular de-
fendant and the crime he committed" is not impermissible in
the capital sentencing process, McCleskey v. Kemp, 481
U S, 279, 816, n. 37 (1987). "Once the jury finds that the
defendant falls within the legislatively defined category of
persons eligible for the death penalty, „ „ . the jury then is
free to consider a myriad of factors to determine whether
death is the appropriate punishment." Ramos, supra, at
1008. Indeed, the sentencer may be given "unbridled dis-
cretion in determining whether the death penalty should be
980 TUILAEPA u CALIFORNIA
SOUTER, J., concurring
imposed after it has found that the defendant is a member
of the class made eligible for that penalty." Zant, supra, at
875; see also Barclay v. Florida, 463 U. S. 939, 948-951 (1983)
(plurality opinion). In contravention of those cases, peti-
tioners' argument would force the States to adopt a kind of
mandatory sentencing scheme requiring a jury to sentence a
defendant to death if it found, for example, a certain kind or
number of facts, or found more statutory aggravating factors
than statutory mitigating factors. The States are not re-
quired to conduct the capital sentencing process in that fash-
ion. See Gregg, supra, at 199-200, n. 50,
The instructions to the juries in petitioners* cases direct-
ing consideration of factor (a), factor (b), and factor (i) did
not violate the Constitution. The judgments of the Su-
preme Court of California are
Affirmed.
JUSTICE SCALIA, concurring.
It is my view that once a State has adopted a methodology
to narrow the eligibility for the death penalty, thereby ensur-
ing that its imposition is not "freakish/* Wainwright v,
Goode, 464 U. S, 78, 87 (1983) (per curiam), the distinctive
procedural requirements of the Eighth Amendment have
been exhausted. See Walton v. Arizona, 497 U. S- 639, 669-
673 (1990) (SCAL1A, X, concurring in part and concurring in
judgment). Today's decision adheres to our cases which ac-
knowledge additional requirements, but since it restricts
their further expansion it moves in the right direction. For
that reason, and without abandoning my prior views, I join
the opinion of the Court.
JUSTICE SOUTER, concurring.
I join the Court's opinion because it correctly recognizes
that factors adequate to perform the function of genuine nar-
rowing, as well as factors that otherwise guide the jury in
selecting which defendants receive the death penalty, are not
Cite as: 512 U. S. 967 (1994) 981
STEVENS, J,, concurring in judgment
susceptible to mathematical precision; they must depend for
their requisite clarity on embodying a "common-sense core
of meaning/' as Justice White put it in Jurek v. Texas, 428
U. S. 262, 279 (1976) (concurring opinion). Taking factor (b)
to be essentially prepositional, as the Court uses the term,
ante, at 974-975, I find it is sufficiently clear to pass muster;
and I agree with the Court's analysis of factor (i) and the
challenged portion of factor (a), neither of which is framed
as a proposition.
JUSTICE RTKVKNS, with whom JUSTICE GINSBURG joins,
concurring in the judgment.
AB these cases come to us they present a question that the
Court answered in Zant v. Stephens, 462 U. S. 862 (1983),
California, like Georgia, has provided a procedure for deter-
mining whether a defendant found guilty of murder is eligi-
ble for the death penalty. Petitioners have not challenged
the constitutionality of that procedure or its application in
these cases. Accordingly, our decision rests on the same as-
sumption that we made in Zant, namely, that the statutory
procedure for determining eligibility adequately confines the
class of persons eligible for the death penalty to a narrow
category in which there is a special justification for "the
imposition of a more severe sentence on the defendant
compared to others found guilty of murder. " Id., at 877.
The question is whether, in addition to adequately narrow-
ing the of death-eligible defendants, the State must
channel the juryfs sentencing discretion when it is deciding
whether to impose the death sentence on an eligible defend-
ant by requiring the trial judge to characterize relevant sen-
tencing factors as aggravating or mitigating. In Zant we
held that the incorrect characterisation of a relevant factor
as an aggravating factor did not prejudice the defendant; it
follows, 1 believe, that the failure to characterize factors such
as the age of the defendant or the circumstances of the crime
as either aggravating or mitigating is also unobjectionable.
982 TUILAEPA v. CALIFORNIA
STEVENS, J,» concurring in judgment
Indeed, I am persuaded that references to such potentially
ambiguous, but clearly relevant, factors actually reduces the
risk of arbitrary capital sentencing.
Prior to the Court's decision in Furman v. Georgia, 408
IL S. 238 (1972), in a number of States the death penalty was
authorized not only for all first-degree murders, but for leas
serious offenses such as rape, armed robbery, and kidnaping
as well. Moreover, juries had virtually unbridled discretion
in determining whether a human life should be taken or
spared. The risk of arbitrary and capricious sentencing,
specifically including the danger that racial prejudice would
determine the fate of the defendant,* persuaded a major-
ity of the Court in Furman that such capital sentencing
schemes were unconstitutional. The two principal protec-
tions against such arbitrary sentencing that have been en-
dorsed in our subsequent jurisprudence focus, respectively,
on the eligibility determination and the actual sentencing
decision.
First, as CHIEF JUSTICE REHNQUIST writing for the Court
in lowenfield v. Phelps, 484 U.S. 231 (1988), succinctly
stated: "To pass constitutional muster, a capital sentencing
scheme must 'genuinely narrow the class of persons eligible
for the death penalty and must reasonably justify the imposi-
tion of a more severe sentence on the defendant compared to
others found guilty of murder/" /&, at 244 (quoting Zant
v. Stephens, 462 U, Sv at 877). When only a narrow subclass
of murderers can be subjected to the death penalty, the risk
of cruel and unusual punishment — either because it is dispro-
portionate to the severity of the offense or because its impo-
sition may be influenced by unacceptable factors— is dimin*
ished. See McCleskey v. Kemp, 481 U. S. 279, 367 (1987)
(STEVENS, JL, dissenting). Because those risks can never be
entirely eliminated, however, the Court has identified an ad-
*See Justice Douglas1 concurring opinion* 4G8 U. 8*, at 249-25L
Cite as: 512 U. S. 967 (1994) 983
STEVENS, J.» concurring in judgment
diticmal safeguard to protect death-eligible defendants from
the arbitrary Imposition of the extreme penalty.
In LockeM v. Ohio, 438 U. S, 586, 602-605 (1978), Chief Jus-
tice Burger emphasized the importance of requiring the jury
to make an individualized determination on the basis of the
character of the individual and the circumstances of the
crime. Insisting that the jury have an opportunity to con-
sider all evidence relevant to a fair sentencing decision re-
duces the clanger that they might otherwise rely on an irrele-
vant and improper consideration such as the race of the
defendant. In Zant, even though the trial judge had incor-
rectly characterized the defendant's prior history of "assaul-
tive offenses" as a statutory aggravating circumstance, we
found no constitutional error because the evidence support-
ing that characterization was relevant and admissible. 462
II S., at 887-889. We made It clear, however, that it would
be error for a State to attach the "aggravating" label to, or
otherwise authorize the jury to draw adverse Inferences
from, "factors that are constitutionally Impermissible or to-
tally irrelevant to the sentencing process, such as for exam-
ple the race, religion, or political affiliation of the defendant."
/rf.f at 885.
The three penalty-phase factors In California's statute that
are challenged in these do not violate that command.
Matters such as the age of the defendant at the time of the
crime, the circumstances of the crime, and the presence or
of force or violence are, in my opinion, relevant to
an informed, individualized sentencing decision. Under
Lockett, the defendant has a right to have the sentencer con-
aider favorable evidence on each of these subjects, and under
it is permissible for the prosecutor to adduce unfavor-
on the subjects, If, as we held in Zant,
It is not constitutional error for the trial judge to place an
incorrect on the prosecutor's evidence, it necessarily
follows that refusing to characterize ambiguous evidence as
TUlJUAJbJm V. U
BLACKMUN, J.t dissenting
mitigating or aggravating is also constitutionally permissi-
ble. Indeed, as I have indicated, I think the identification of
additional factors that are relevant to the sentencing decision
reduces the danger that a juror may vote in favor of the
death penalty because he or she harbors a prejudice against
a class of which the defendant is a member.
Accordingly, given the assumption (unchallenged by these
petitioners) that California has a statutory "scheme" that
complies with the narrowing requirement defined in Lo wen-
field v. Phelps, 484 U. Sv at 244, I conclude that the sentenc-
ing factors at issue in these cases are consistent with the
defendant's constitutional entitlement to an individualized
"determination that death is the appropriate punishment in
a specific case/1 Woodson v. North Care /ma, 428 II 8. 280,
305 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.).
JUSTICE BLACKMUN, dissenting.
Adhering to my view that the death penalty cannot be
imposed fairly within the constraints of our Constitution, see
Callins v. Collins, 510 U S. 1141, 1143 (1994), 1 would vacate
petitioners' death sentences. Even if I did not hold this
view, I would find that the three challenged factors do not
withstand a meaningful vagueness analysis because* "as a
practical matter [they] fall to guide the sentoneer s discre-
tion/' Stringer v. Black, 5QS U. S. 222f 235 (1902),
I
A
The California capital punishment scheme more
simply direct the sentencing jurors* attention to certain sub-
ject matters- It lists 11 factors and authorizes the jury to
treat any of them as aggravating circumstances to be
on death's side of the scale* Jurors are instructed that they
"shall impose a death sentence If [they] eonclud[e] that the
aggravating circumstances outweigh the mitigating circum-
stances^ Cal Penal Code Ann, § 190,3 (West 1988), De-
Cite as: 512 U. S. 967 (1994) 985
RLACKMUN, J., dissenting
spite the critical — even decisive — role these factors play in
the determination of who actually receives the death penalty,
jurors are given no guidance in how to consider them. We
have stated: "A vague aggravating factor used in the weigh-
ing process . . . creates the risk that the jury will treat the
defendant as more deserving of the death penalty than he
might otherwise be by relying upon the existence of an illu-
sory circumstance/' Stringer, 503 U. S., at 235.
The majority introduces a novel distinction between
"prepositional" and "nonpropositional" aggravating circum-
stances* Ante, at 974. The majority acknowledges that the
"distinction between the two is not always clear," ante, at
975; I find it largely illusory. The Court suggests, but does
not make explicit, that prepositional factors are those that
"require a yes or a no answer to a specific question," while
nonpropositional factors are those that "only poin[t] the sen-
teneer to a subject matter," Ibid. Presumably, then, ask-
ing the jury whether "the murder was especially heinous,
atrocious, or cruel" would be a prepositional aggravator,
while directing the sentencer to "the presence or absence
of any especial heinousness, atrocity, or cruelty" would be a
nonpropositional factor. 1 am at a loss to see how the mere
rephrasing does anything mere to channel or guide jury dis-
cretion. Ner dees this propesitienal/nenpropositional dis-
tinction appear to play any role in the Court's decision. The
Court nowhere discloses specifically where the line is drawn,
en which side ef it the three challenged factors fall, and what
relevance, if any, this distinction should have to the Court's
future vagueness analysis,1
1 Nor it matter for Eighth Amendment purposes that California
one set of factor» (the § 190.2 "special circumstances") to determine
eligibility and another set (the § 1903 "relevant factors") in the weighing
or selection process* Whether an aggravator is used for narrowing, or
for weighing, or for both, it cannot be impermissibly vague. See Arave
v. Gre*ch> 607 U, S, 463 (1993) (vagueness analysis applied to aggravating
factor, even though remaining aggravating factor made defendant death
986 TUILAEPA u CALIFORNIA
BLACKMUN, J., dissenting
The more relevant distinction is not how an aggravating
factor is presented, but what the sentencer is told to do with
it. Where, as in Georgia, "aggravating factors as such have
no specific function in the jury's decision whether a defend-
ant who has been found to be eligible for the death penalty
should receive it under all the circumstances of the case/'
Stringer, 503 U. S., at 229-230, we have not subjected aggra-
vating circumstances to a vagueness analysis. See Zant v*
Stephens, 462 U. S. 862, 873-874 (1983). In California, by
contrast, where the sentencer is instructed to weigh the ag-
gravating and mitigating circumstances, a vague aggravator
creates the risk of an arbitrary thumb on death's side of the
scale, so we analyze aggravators for clarity, objectivity, and
principled guidance* See Maynard v. Cartwright, 486 U. S.
356 (1988); Godfrey v. Georgia, 446 U. S. 420 (1980); see also
Pensinger v. California, 502 U. S. 930f 931 (1991) (O'CoN-
NOR, J., dissenting from denial of certiorari) (observing that
California, like Mississippi, "requires its juries to weigh
aggravating and mitigating circumstances*1); Stringer, 503
U. S., at 231 (difference between "non weighing1 States like
Georgia and "weighing " States like California is "not one of
'semantics7") (citation omitted).
Each of the challenged California factors "leavels] the sen-
tencer without sufficient guidance for determining the pres-
ence or absence of the factor/' Espinosa v. Florida, 505
U, S. 1079, 1081 (1992). Each of the threo— rimimslanei*s
of the crime, age, and prior criminal activity— has been
exploited to convince jurors that just about anything is
aggravating.
Prosecutors have argued, and jurors are free to find, that
"circumstances of the crime" constitutes an aggravating fac-
tor because the defendant killed the victim for some purport-
eligible); Sochor v. Florida* 504 U. S, 527 (1992) (same); Walton v. Arizona,
497 U. S. 639 (1990) (same). The Court recognizes as much by subjecting
the challenged factors to a vagueness analysis*
Cite as: 512 U. S. 967 (1994) 987
BLACKMUN, J., dissenting
edly aggravating motive, such as money,2 or because the de-
fendant killed the victim for no motive at all;3 because the
defendant killed in cold blood,4 or in hot blood;6 because the
defendant attempted to conceal his crime,6 or made no at-
tempt to conceal it; 7 because the defendant made the victim
endure the terror of anticipating a violent death,8 or because
the defendant killed without any warning;9 and because the
defendant had a prior relationship with the victim,10 or
because the victim was a complete stranger.11 Similarly,
prosecutors have argued, and juries are free to find, that the
age of the victim was an aggravating circumstance because
the victim was a child, an adolescent, a young adult, in the
prime of life, or elderly; 12 or that the method of killing was
aggravating, because the victim was strangled, bludgeoned,
shot, stabbed, or consumed by fire; 13 or that the location of
2 JFVop/* v. Howard, Cal. Sup. Ct, No. S004462, Brief for California Ap-
pellate Project an Amicus Curiae 14, n. 9, 17, n. 29 (hereinafter Amicus
Brief).
v. Edwards, Cal Sup, Ct. No. S004766, id., at 15, n. 13, 17, n. 29,
v, Vter.iotti, Cal. Sup. Ct No. S004597, id., at 15, n. 15,
f> People v. Jennings, Cal. Sup. Ct. No. S004754, id., at 15, n. 16.
* Pwpl* v, Bmnon, Cal. Sup. Ct No. S004763, id, at 16, n. 17.
7 People v. Morales, Cal. Sup. Ct No. S004552, id, at 15, n. 18.
n People v. Webb, Cal. Sup. Ct. No. S006938, id, at 16, n. 19.
t» pmpif v, Frwman, Cal. Sup. Ct. No. S004787, id, at 18, n. 31.
wPe.oplf v, Padilla, Cal. Sup. Ct No. S0144964, id, at 16, n. 25.
11 People v. Aitdrrwm, Cal. Sup. Ct No. S004385, id., at 16, n. 26.
12 People v. Dew?, Gal Sup. Ct No, S004722, id, at 17, n. 27 (victims
w0ro two and nix); People v, Benin, Cal. Sup. Ct No. S004565, i&id (vie-
timK were* adolescents); People v. Carpenter, Cal. Sup. Ct No. S004664,
ibid, (victim WEB 20); People v. Phillips, 41 Cal. 3d 29, 63, 711 R 2d 423,
444 (11186) (2fi-y<»ar old victim was "in the prime of his life"); People v.
Melton, Oal Sup. Ct No, S004518, Amicus Brief 17, n. 27 (victim was 77),
mPmple v. Clair, Cal Sup. Ct. No, S004789, id, at 17, n. 28 (strangula-
tion); Pmple v, Kipp> CaL Sup. Ct* No. S004784, ibid, (same); People v.
Fauber, Cal Sup, Ct No. S005868, i&id (use of an axe); People v. Benson,
Cal Sup, Ct No. S004763, i&id (use of a hammer); People v. Cain, Cal
Sup. Ct No, S006544, i&id. (use of a club); People v. Jackson, Cal Sup,
Ct No, S01Q723, i&id. (use of a gun); People v. Reilly, Cal Sup. Ct
988 TUILAEPA u CALIFORNIA
BLACKMUN, J., dissenting
the killing was an aggravating factor, because the victim was
killed in her own home, in a public bar, in a city park, or in
a remote location.14 In short, because neither the California
Legislature nor the California courts ever have articulated
a limiting construction of this term, prosecutors have been
permitted to use the "circumstances of the crime" as an ag-
gravating factor to embrace the entire spectrum of facts
present in virtually every homicide — something this Court
condemned in Godfrey v. Georgia, 446 U. S. 420 (1980). See
Maynard v. Cartwright, 486 U. S., at 363 (the Court "plainly
rejected the submission that a particular set of facts sur-
rounding a murder, however shocking they might be, were
enough in themselves, and without some narrowing principle*
to apply to those facts, to warrant the imposition of the
death penalty")*16
The defendant's age as a factor, applied inconsistently and
erratically, similarly fails to channel the jurors1 discretion,
In practice, prosecutors and trial judges have applied this
factor to defendants of virtually every age: in their teens*
twenties, thirties, forties, and fifties at the time of the
No, SQQ4607, ibid, (stabbing); People v. Scott, Cai Sup, Ct No. $010334,
ibid. (fire).
14 People v, Anderson, Cai Sup. Ct No. S00438S, ui, at IB, n. 31 (vic-
tim's home); People v. Freeman, Cai Sup, Ct No- SOG4787, ibid, (public
bar); People v. Asfamm, Cai Sup. Ct. No. S004723, t&wi (city park); Ptoplv
v. Carpenter, Cai Sup. Ct No, S004654, ibid, (forested area); People v.
Comtois, Cai Sup. Ct. No. S017116f ibid, (remote, isolated location).
15 Although we have required that jurors be allowed to consider "cut a
mitigating factor, any aspect of a defendant's character or record and any
of the circumstances of the offense that the defendant proffers m a
for a sentence less than death/" Lock€tt v, Ohio, 4m U. S. 686, 604 (1978)
(emphasis in original), we have never approved such unrestricted consider*
ation of a circumstance in aggravation. Similarly, while we approved the
Georgia capital sentencing scheme, which permita jurors to connfder all
the circumstances of the offense and the offender, we did so in the context
of a system in which aggravators performed no function beyond the eligi-
bility decision. See Zant v, Stephen®, 462 U S, 862, 873-874 (1983).
Cite as: 512 U. S. 967 (1994) 989
BLACKMUN, J., dissenting
crime.16 Far from applying any narrowing construction, the
California Supreme Court has described age as a "metonym
for any age-related matter suggested by the evidence or by
common experience or morality that might reasonably in-
form the choice of penalty/' People v. Lucky, 45 CaL 3d 259,
302, 753 P. 2d 1052, 1080 (1988), cert, denied, 488 U, S, 1034
(1989),
Nor do jurors find meaningful guidance from "the presence
or absence of criminal activity by the defendant which in-
volved the use or attempted use of force or violence." Al-
though the California Supreme Court has held that "crimi-
nal1' is "limited to conduct that violates a penal statute/'
People v. Wright, 52 CaL 3d 367, 425, 802 P. 2d 221, 259 (1990)
(emphasis in original), and that "force or violence" excludes
violence to property, People v. Boyd, 38 Cai 3d 762, 700 R
2d 782 (1985), that court has not required such an instruction,
and petitioner Tuilaepa's jurors were not so instructed.
This left the prosecution free to introduce evidence of "triv-
ial incidents of misconduct and ill temper/' id, at 774, 700 P.
2d, at 791, and left the jury free to find an aggravator on
that basis.17
t e.g.t People v- Williams, CaL Sup, Ct No. S004522, id., at 20,
nu 34 (teens); People v. Avena, CaL Sup, Ct No. S004422, ibid, (teens);
PtopU v. Bmnf 46 CaL 3d 919, 962, n. 18, 760 R 2d 996, 1017, n. 18 (1988)
(age 20); v. Coteman* 48 CaL 3d 112, 153-154, 768 R 2d 32, 55-56
(1989) (age 22), cert, denied, 494 U, S, 1038 (1990); People v. Gonzalez, 61
CaL 3d 1179, 1283, 800 P. 2d 1169, 1187 (1990) (age 31), cert denied, 602
U S, 836 (1991); v. McLain, 46 CaL 3d 97, 111-112, 767 R 2d 569,
576-577 (1988) (age 41), cert, denied, 489 U. S. 1072 (1989); People v. Doug-
tat, 60 CaL 3d 468, 638, 788 R 2d 640, 681 (1990) (age 56), cert, denied, 498
US. 1110(1991),
17 Even with the limiting construction, *'prior criminal activity involving
force or violence** is far more open ended than factors invalidated by other
state courts as vague or subjective. See, *, g., Arnold v, State, 236 Ga.
684, 640, 224 S. E, 2d 386, 391 (1976) (invalidating aggravating drcum-
stanca that the M *murder . » » was committed by a person - . . who has a
substantial history of serious assaultive convictions^*); State v. David, 468
990 TUILAEPA u CALIFORNIA
BLACKMUN, J., dissenting
No less a danger is that jurors — or even judges — will treat
the mere absence of a mltigator as an aggravator, transform-
ing a neutral or factually irrelevant factor into an illusory
aggravator.18 Although the California Supreme Court has
ruled that certain of the factors can serve only as mitiga-
tors,19 it has not required that the jury be so instructed.
See, e. g., People v. Raley, 2 Gai 4th 870, 919, 830 R 2d 712,
744^745 (1992), cert, denied, 507 U. S. 945 (1993). Nor has
that court restricted jury instructions to those aggravating
So. 2d 1126, 1129-1130 (La. 1985) (invalidating aggravating circumstance
of "significant" history of criminal conduct).
18 Judges, as well as juries, have fallen into this trap. See, «». g., People
v. Kaurisk, 52 Cal. 3d 648, 717, 802 R 2d 278, 316 (1990) (trial judge con-
cluded that factor (h), dealing with a defendant's impaired capacity to ap-
preciate the criminality of his actions, was an aggravating factor because
defendant did not have diminished capacity or other impairment), cert
denied, 502 U.S. 837 (1991); People v. Hamilton, 48 Cal 3d 1142, 1188,
774 R 2d 730, 757 (1989) (trial court concluded that 10 of 11 factors w<»re
aggravating, including factors (dMh) and (j)X cert, denied, 494 U. S. 1039
(1990).
19 The factors that can serve only as mitigators are:
"(d) Whether or not the offense was committed while the defendant waa
under the influence of extreme mental or emotional disturbance,
"(e) Whether or not the victim was a participant in the defendant's hom-
icidal act or consented to the homicidal act.
"(f) Whether or not the offense was committed under circunuttancea
which the defendant reasonably believed to be s moral justification or
extenuation for his conduct
4*(g) Whether or not defendant acted under extreme duress or under
the substantial domination of another person,
**(h) Whether or not at the time of the offense the capacity of the de-
fendant to appreciate the criminality of his conduct or to conform his con-
duct to the requirements of law was impaired as a result of mental
and defect, or the [ejffects of intoxication.
*(i) The age of the defendant at the time of the crime,
**( J) Whether or not the defendant was an accomplice to the md
his participation in the commission of the offense was relatively minor/*
Cai Penal Code Ann. §190J (West nee also Brief 22-24,
and niL 47, 48, and eases cited therein
Cite as: 512 U. S. 967 (1994) 991
BLACKMUN, J., dissenting
factors that are factually relevant to the case.20 Clearly,
some of the mitigating circumstances are so unusual that
treating their absence as an aggravating circumstance would
make them applicable to virtually all murderers. See Peo-
ple v. Davenport, 41 Gal 3d 247, 289, 710 P. 2d 861, 888 (1985)
(most murder cases present the absence of the mitigating
circumstances of moral justification and victim participation).
An aggravating factor that exists in nearly every capital case
fails to fulfill its purpose of guiding the jury in distinguishing
41 those who deserve capital punishment from those who do
not" Arave v. Creech, 507 U S. 463, 474 (1993). Moreover,
a process creating the risk that the absence of mitigation
will count as aggravation artificially inflates the number of
aggravating factors the jury weighs, "creating] the possibil-
ity not only of randomness but also of bias in favor of . . ,
death/' Stringer v. Black, 503 U S., at 236.
In short^ open-ended factors and a lack of guidance to reg-
ularize the jurors* application of these factors create a sys-
tem in which, as a practical matter, improper arguments can
be made in the courtroom and credited in the jury room. I
am at a loss to see how these challenged factors furnish the
** 'clear and objective standards* that provide 'specific and de-
tailed guidance/ and that ^make rationally reviewable the
process for imposing a sentence of death/ " Walton v. Ari-
zona, 497 U- S, 639, 651 (1990) (SCALIA, J., concurring in part
and dissenting in part), quoting Godfrey v. Georgiay 446
U, Bn at 428 (some internal quotation marks omitted).
B
One of the greatest evils of leaving jurors with largely
unguiflcd discretion is the risk that this discretion will be
» Although the trial judge at petitioner Tuilaepa's trial instructed the
jury on only thone factors that were factually relevant, the jury at peti-
tioner Proctor's trial was instructed on all of the factors in § 190.3, The
prosecutor argued that 9 of the 11 factors were aggravating. Brief for
Petitioner In No. 98-6161, pp. 4-6,
992 TUILAEPA v CALIFORNIA
BLACKMUN, J., dissenting
exercised on the basis of constitutionally impermissible con-
siderations— primary among them, race. Racial prejudice is
"the paradigmatic capricious and irrational sentencing fac-
tor." Graham v. Collins, 506 U. S. 461, 484 (1993) (THOMAS,
J., concurring). In part to diminish the danger that a sen-
tencer will "attac[h] the 'aggravating* label to factors that
are constitutionally impermissible or totally irrelevant to
the sentencing process/' Zant v. Stephens, 462 U. S., at 885,
this Court has required that a sentenced discretion be
curbed and informed by "clear and objective standards/*
Gregg v. Georgia, 428 U. S. 153, 198 (1976) (joint opinion
of Stewart, Powell, and STEVENS, JJ.) (internal quotation
marks omitted).
Because the "circumstances of the crime11 factor lacks clar-
ity and objectivity, it poses an unacceptable risk that a sen-
tencer will succumb to either overt or subtle racial impulses
or appeals. This risk is not merely theoretical For far too
many jurors, the most important "circumstances of the
crime" are the race of the victim or the defendant. Me-
Cleskey v. Kemp, 481 U. S. 279, 320 (1987) (Brennan, JM dis-
senting); see also General Accounting Office, Report to Sen-
ate and House Committees on the Judiciary, Death Penalty
Sentencing: Research Indicates Pattern of Racial Disparities
(Feb. 1990) (surveying and synthesizing studies and finding
a "remarkably consistent" conclusion that the race of the vic-
tim influenced the likelihood of being charged with capital
murder or receiving the death penalty in of cases), re*
printed at 136 Cong, Rec. 12267-12268 (1990),
The California capital sentencing scheme does little to
minimize this risk. The "circumstances of the criraeft factor
may be weighed in aggravation in addition to the applica-
ble special circumstances. Cai Penal Code Ann, § 190.#(a)
(West 1988) (the trier of fact shall take into account 4l[tjhe
circumstances of the crime of which the defendant was con-
victed in the present proceeding and the existence of any
special circumstances found to be true") (emphasis added).
Cite as: 512 U. S. 967 (1994) 993
BLACKMUN, J., dissenting
The special circumstances themselves encompass many of
the factors generally recognized as aggravating, including
multiple-murder convictions; commission of the murder in re-
lation to another felony; the "especially heinous, atrocious, or
cruel" nature of the murder; and the relevant identity of the
victim (as a law enforcement officer, a witness to a crime, a
judge, a prosecutor, or a public official). The statute, there-
fore, invites the jurors to speculate about, and give aggravat-
ing weight to, unspecified circumstances apart from these.
Nor has the California Supreme Court attempted to limit
or guide this ranging inquiry. Far from it. That court has
concluded that the "circumstances of the crime" factor ex-
tends beyond "merely the immediate temporal and spatial
circumstances of the crime/' People v. Edwards, 54 CaL 3d
787, 833, 819 P. 2d 436, 465 (1991), and leaves "the sentencer
free to evaluate the evidence in accordance with his or her
own subjective values," People v. Tuilaepa, 4 CaL 4th 569,
595, 842 E 2d 1142, 1158 (1992) (case below). The court has
even warned that it has not yet "explore[d] the outer reaches
of the evidence admissible as a circumstance of the crime."
People v. Edwards, 54 CaL 3d, at 835, 819 P. 2d, at 467.
Thus, the "unique opportunity for racial prejudice to operate
but remain undetected," Turner v. Murray, 476 U. S. 28, 35
(1986), exists unchecked in the California capital sentencing
scheme. This does not instill confidence in the jury's deci-
sion to impose the death penalty on petitioner Tuilaepa, who
is Samoan, and whose victim was white*
II
Although the Court today rejects a well-founded facial
challenge to 3 of the 11 factors that permit California jurors
to select from among capital defendants those who will re-
ceive the death penalty, it has not given the California sys-
tem a clean bill of health. Its unwillingness to conclude that
these factors are valid on their face leaves the door open to
a challenge to the application of one of these factors in such
994 TUILAEPA v. CALIFORNIA
BLACKMUN, J., dissenting
a way that the risk of arbitrariness is realized,21 The cases
before us, for example, do not clearly present a situation
in which the absence of a mitigator was treated as an
aggravator.
Additionally, the Court's opinion says nothing about the
constitutional adequacy of California's eligibility process,
which subjects a defendant to the death penalty if he is con-
victed of first-degree murder and the jury finds the existence
of one "special circumstance."22 By creating nearly 20 such
special circumstances, California creates an extraordinarily
large death pool. Because petitioners mount no challenge
to these circumstances, the Court is not called on to deter-
mine that they collectively perform sufficient, meaningful
narrowing. See Zant v. Stephens, 462 U. S. 862 (198S).
Of particular significance, the Court's consideration of a
small slice of one component of the California scheme aays
nothing about the interaction of the various components
the statutory definition of first-degree murder, the special
circumstances, the relevant factors, the statutoriiy required
weighing of aggravating and mitigating factors, and the
availability of judicial review, but not appellate proportional-
ity review — and whether their end result satisfies the Eighth
Amendment's commands. The Courtis treatment today of
the relevant factors as "selection factors11 alone rests on the
21 Such a challenge would require something more than merely pointing
to others who committed similar offenses and did not racnive the* death
penalty, Lewis v. Jeffers, 497 U. S. 764 (1990), but it is not hard to imagine
more pronounced erratic outcomes*
22 The special circumstances include premeditated and deliberate mur
der; felony murder based on nine felonies; the infliction of torture; that the
murder was especially heinous, atrocious, or cruel; that the victim
killed because of his race, religion, or ethnic origin; and the identity cif the
victim, including that he was a peace officer, a federal law enforcement
officer, a firefighter, a witness to a crime, a prosecutor or ajwntant proiw-
cutor, a former or current local, state, or federal judge, or an electwi or
appointed local, state, or federal official Cal Penal Coda Ann. §190.2
(West 1988).
Cite as: 512 U. S. 967 (1994) 995
BLACKMUN, J., dissenting
assumption, not tested, that the special circumstances per-
form all of the constitutionally required narrowing for eligi-
bility. Should that assumption prove false, it would further
undermine the Court's approval today of these relevant
factors.
Similarly, in Pulley v. Harris, 465 U. S. 37, 51 (1984), the
Court's conclusion that the California capital sentencing
scheme was not "so lacking in other checks on arbitrariness
that it would not pass constitutional muster without compar-
ative proportionality review" was based in part on an under-
standing that the application of the relevant factors " 'pro-
vide[s] jury guidance and lessen[s] the chance of arbitrary
application of the death penalty/ " thereby " 'guaranteeing]
that the jury's discretion will be guided and its consideration
deliberate/" Id., at 53, quoting Harris v. Pulley, 692 P. 2d
1189, 1194, 1195 (CA9 1982). As litigation exposes the fail-
ure of these factors to guide the jury in making principled
distinctions, the Court will be well advised to reevaluate its
decision in Pulley v, Harris.
In nummary, the Court isolates one part of a complex
scheme and says that, assuming that all the other parts are
doing their job, this one passes muster. But the crucial
question, and one the Court will need to face, is how the
parts are working together to determine with rationality and
fairness who is exposed to the death penalty and who re-
ceives it.
Ill
Per two decades now, the Court has professed a commit-
ment to guiding sentencers* discretion so as to "minimize the
risk of wholly arbitrary and capricious action/' Gregg v.
Georgia, 428 U- S., at 189 (joint opinion of Stewart, Powell,
and STEVKNS, JJ»), and to achieve principled distinctions be-
tween those who receive the death penalty and those who do
not, see, a y.t Espinosa v. Florida, 505 U. S. 1079 (1992);
Shell v, Mississippi, 498 U. S. 1 (1990); Maynard v. Cart-
996 TUILAEPA v. CALIFORNIA
BLACKMUN, J., dissenting
wright, 486 U. S. 356 (1988). The Court's approval today of
these California relevant factors calls into question the con-
tinued strength of that commitment. I respectfully dissent.
OCTOBER TERM, 1993 997
Syllabus
JOHNSON, SPEAKER OF THE FLORIDA HOUSE
OF REPRESENTATIVES, ET AL. v.
DE GRANDY ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
No, 92-519. Argued October 4, 1993— Decided June 30, 1994*
In these consolidated cases, a group of Hispanic voters, a group of black
voters, and the Federal Government claim that Florida's reapportion-
ment plan for the State's single-member Senate and House districts
(SJR 2-G) unlawfully dilutes the voting strength of Hispanics and
blacks in the Dade County area, in violation of §2 of the Voting Rights
Act of 1965. The State Supreme Court, in a review required by the
State Constitution, declared the plan valid under federal and state law,
while acknowledging that time constraints precluded full review and
authorizing1 any interested party to bring a §2 challenge in that court
The plaintiffs chose, however, to pursue their claims in federal court.
A three-judge District Court reviewed the totality of circumstances as
required by § 2 and Thornburg v, Gingles, 478 U. S. 30, and concluded
that the three Ghigle® preconditions for establishing dilution were satis-
fied, justifying a finding of vote dilution. Specifically, the court found
that voting proceeded largely along racial lines, producing a system of
"tripartite polities"; that Hispanics in the Dade County area could con-
Htitute a majority in 11 House and 4 Senate districts, but that SJR 2-G
had created only 8 House and 8 Senate districts with Hispanic majori-
ties; that an additional majority-black Senate district could have been
drawn; and that Florida's minorities had suffered historically from offi-
cial discrimination, the social, economic, and political effects of which
they continued to feel The court imposed a remedial plan with 11
majority-Hispanic House districts but, concluding that the remedies for
black* and Hinpanicn in the senatorial districts were mutually exclusive,
left SJR 2-0% Senate districts in force.
L The District Court properly refused to give preclusive effect to the
Supreme Court'** decision validating SJR 2-G. Pp. 1004-1006.
^Together with No. 92-598, DB Gmndy et al v. Johnson, Speaker of the
Florida Hou*t of RcprewnfatiMM, et alf and No, 92-767, United States
v, Florida, on appeal from the same court
Syllabus
2. There is no violation of §2 in SJR 2-Gfs House districts, where m
spite of continuing discrimination and racial bloc voting, minority voters
form effective voting majorities in a number of House districts roughly
proportional to their respective shares in the voting-age population.
While such proportionality is not dispositive, it is a relevant fact in the
totality of circumstances to be analyzed when determining whether mi-
nority voters have "less opportunity than other members of the elector-
ate to participate in the political process and to elect representatives of
their choice," 42 U. S. C. § 19?3{b), Pp. 10Q6-I022,
(a) This Court assumes without deciding that the first Gingtes
factor has been satisfied in these cases. Pp, 1008-1009.
(b) While proof of the Gingles factors is necessary to make out a
claim that a set of district lines violates § 2, it is not neceasarily suffi-
cient. Rather, a court must assess the probative significance of the*
Gingles factors after considering all circumstances with arguable bear-
ing on the issue of equal political opportunity. Here, the court min-
judged the relative importance of the Gingles factors and of historical
discrimination by equating dilution where these had been found with
failure to maximize the number of majority-minority districts. Dilution
cannot be inferred from the mere Mlure to guarantee minority voters
maximum political influence. Pp. 1009-1017.
(c) Ruling as the State proposes* that as a matter of law no dilution
occurs whenever proportionality exists, would likewise provide a
bright-line decMonal rule only in derogation of the statutory text.
While proportionality is an indication that minority voter** have equal
political and electoral opportunity in spite of racial polarization, it
is no guarantee, and it cannot serve as a shortcut to determining
whether a set of districts unJawftilly dilutes minority voting strength.
Pp. 1017-1021.
(d) This Court need not reach the United States* argument that
proportionality should be assessed only on a statewide in
challenging districts for electing a body with statewide jurisdiction.
The argument would recast this litigation m it comes before the Court,
for up until now the dilution claims have been litigated not on a state-
wide basis, but on a smaller geographical scale. Pp. 1021-1022*
3* The District Court's decision to leave undisturbed the State's plan
for Senate districts was correct. However, in reaching its decision* the
court once again misapprehended the legal test for vote dilution* As in
the case of the House districts, the totality of circumstances appears not
to support a finding of dilution in the Senate district*. Pp, 1023-1024.
815 R Supp. 1650, affirmed in part and reversed in part
Cite as: 512 U. S. 997 (1994) 999
Syllabus
SOUTER, J., delivered the opinion of the Court, in which REHNQUIST,
C. Jn and BLACKMUN, STEVENS, O'CONNOR, and GINSBURG, JJ., joined, and
in all but Parts III-B-2, III-B-4, and IV of which KENNEDY, J., joined.
O'CONNOR, J., filed a concurring opinion, post, p. 1025. KENNEDY, J., filed
an opinion concurring in part and concurring in the judgment, post,
p. 1026. THOMAS, J,, filed a dissenting opinion, in which SCAIIA, J., joined,
post, p. 1031.
Joel L Klein argued the cause for appellants in No. 92-519
and appellees in Nos. 92-593 and 92-767. With him on the
brief for appellees in Nos. 92-593 and 92-767 were Stephen
N. Zack, Keith E« Hope, Richard E. Doran, George L. Waas,
and Gerald B. Curington. Donald B. Verrilli, Jr., Scott A.
Binder, Kevin X, Crowley, James A. Peters, and Messrs.
Doran, Waas, and Curington filed briefs for appellants in
No. 92-519.
James A, Feldman argued the cause for the United States
in all cases. With him on the briefs were Solicitor General
Days, Acting Solicitor General Bryson, Acting Assistant
Attorney General Turner, Acting Deputy Solicitor General
Kneedler, and Jessica Dunsay Silver,
C, Allen Foster argued the cause for appellees in No. 92-
519 and appellants in No. 92-593, With him on the briefs
were Robert N. Hunter, Jr., Benjamin L. Ginsberg, Marshall
R, Hurley, E* Thorn Rumberger, and George N. Meros, Jr.
B« Barrett Prettyman, Jr., John C. Keeney, Jr., Charles G.
Burr, Dennis Courtland Hayes, and Willie Abrams filed a
brief in all cases for appellee Florida State Conference of
NAACP Branches^
f Marc DL Stern, Low C Waldman, and Richard F. Wolfson filed a brief
for the American Jewish Congress at al. as amici curiae urging reversal.
Briefs of amid curiae urging affirmance were filed for the Lawyers*
Committee for Civil Rights Under Law by Herbert M, Wachtell, William
H. Brown JJJ, Thomas J, Hmderson, Frank R. Parker, and Brenda
Wright; and for the Mexican American Legal Defense and Educational
Fund at al, by Kenmth Kimerling, Arthur A Boer, Antonia Hernandez,
and Judith Sanders-Castro.
[Footnote f is continued on p. 1000]
1000 JOHNSON v. DE GRANDY
Opinion of the Court
JUSTICE SOUTER delivered the opinion of the Court.
These consolidated cases are about the meaning of vote
dilution and the facts required to show it, when §2 of the
Voting Rights Act of 1965 is applied to challenges to single-
member legislative districts. See 79 Stat. 437, as amended,
42 U. S. d § 1973. We hold that no violation of §2 can be
found here, where, in spite of continuing discrimination and
racial bloc voting, minority voters form effective voting ma-
jorities in a number of districts roughly proportional to the
minority voters' respective shares in the voting-age popula-
tion. While such proportionality is not dispositive in a chal-
lenge to single-member districting, it is a relevant fact in the
totality of circumstances to be analysed when determining
whether members of a minority group have "less opportu-
nity than other members of the electorate to participate in
the political process and to elect representatives of their
choice." Ibid.
I
On the first day of Florida's 1992 legislative session, a
group of Hispanic voters including Miguel De Grandy (De
Grandy plaintiffs) complained in the United States District
Court against the speaker of Florida's House of Representa-
tives, the president of its Senate, the Governor, and other
state officials (State). The complainants alleged that the
districts from which Florida voters had chosen their
senators and representatives since 1982 were malai por-
tioned, failing to reflect changes in the State's population
during the ensuing decade The State Conference of
NAACP Branches and individual black voters (NAACP
Briefs of amid curiae were filed for Grant Woods, Attorney General
of Arizona, et al by Christopher D, Cerf; and for the Anti-Defamation
League of B'nai B'rith by Chesterfield Smith, David B« Cardwell, D.
Makar, and Steven M. Freeman.
Cite as: 512 U. S. 997 (1994) 1001
Opinion of the Court
plaintiffs) filed a similar suit, which the three-judge District
Court consolidated with the De Grandy case.1
Several months after the first complaint was filed, on April
10, 1992, the state legislature adopted Senate Joint Resolu-
tion 2-G (SJR 2-G), providing the reapportionment plan cur-
rently at issue. The plan called for dividing Florida into 40
single-member Senate, and 120 single-member House, dis-
tricts based on population data from the 1990 census. As
the Constitution of Florida required, the state attorney gen-
eral then petitioned the Supreme Court of Florida for a de-
claratory judgment that the legislature's apportionment plan
was valid under federal and state law. See Fla. Const., Art.
Ill, §16(eX The court so declared, while acknowledging
that state constitutional time constraints precluded full re-
view for conformity with §2 of the Voting Rights Act and
recognizing the right of any interested party to bring a § 2
challenge to the plan in the Supreme Court of Florida. See
In re Constitutionality of Senate Joint Resolution 2G, Spe-
cial Apportionment Session 1992, 597 So. 2d 276, 285-286
The De Grandy and NAACP plaintiffs responded to SJR
2-G by amending their federal complaints to charge the new
complaints also challenged Florida's congressional districts, but
that element of the litigation haa been resolved separately, see De Grandy
v. Wrthvrtll, 794 R Supp. 1076 (ND Fla. 1992) (three-judge court), and
without appeal.
2 In an additional step not directly relevant to this appeal, the State
HubmitUxl SJR 2-G to the Department of Justice for predearance pursu-
ant to 42 II & (1 §1978c (§5 of the Voting Eights Act of 1965). Five
Florida counties, but not Dade County, are subject to preclearance. De
tfrondy v. Wttkertll, 816 K Supp. 1550, 1574 (ND Fla. 1992). When the
Attorney General of the United States refused to preclear the plan's Sen-
ate diHtricta for the Hillsborough County area and the state legislature
reftaned to revine the plan, the Supreme Court of Florida ordered the ad-
juntmentH necessary to obtain predearance, 601 So. 2d 548 (1992); it is the
wrsfon of BJE 2-G so adjusted that is at issue in this litigation, 815 P.
Supp., at Iof>7-lf>5H.
1002 JOHNSON v. DE GRANDY
Opinion of the Court
reapportionment plan with violating §2,3 They claimed that
SJR 2-G " 'unlawfully fragments cohesive minority commu-
nities and otherwise impermissibly submerges their right to
vote and to participate in the electoral process/" and they
pointed to areas around the State where black or Hispanic
populations could have formed a voting majority in a politi-
cally cohesive, reasonably compact district (or in more than
one), if SJR 2-G had not fragmented each group among sev-
eral districts or packed it into just a few. De G randy v.
Wetkerell, 815 R Supp. 1550, 1559-1560 (Nl) Fla. 1992),
The Department of Justice filed a similar complaint, nam-
ing the State of Florida and several elected officials as de-
fendants and claiming that SJR 2-G diluted the voting
strength of blacks and Hispanics in two parts of the State in
violation of § 2. The Government alleged that S J R 2-< J di-
luted the votes of the Hispanic population in an area largely
covered by Dade County (including Miami) and the black
population in an area covering much of Kseambla County
(including Pensacola).4 App, 75. The District Court con-
solidated this action with the other two and held a 5-day
trial, followed immediately by an hours-long hearing on
remedy.
At the end of the hearing, on July 1, 1992, the District
Court ruled from the bench. It held the plan's provisions
for state House districts to be in violation of §2 because
"more than [SJR 2-Gls] nine Hispanic districts may be drawn
without having or creating a regressive effect upon black
voters/1 and it imposed a remedial plan offered by the De
Grandy plaintiffs calling for 11 majority-Hispanic House dia-
8 The complaints also alleged violation of Art* If §2f and the
and Fifteenth Amendments of the United States Constitution! but
claims were later dismissed voluntarily.
4 The Voting Rights Act of 1965 and constitutional claims m to the E»-
cambia County area were settled by the parties and are not at in
this appeal*
Cite as: 512 U. S. 997 (1994) 1003
Opinion of the Court
tricts. App. to Juris. Statement 2a, 203a. As to the Senate,
the court found that a fourth majority-Hispanic district could
be drawn in addition to the three provided by SJR 2-G, but
only at the expense of black voters in the area. Id., at 202a;
815 F. Supp., at 1560. The court was of two minds about the
implication of this finding, once observing that it meant the
legislature's plan for the Senate was a violation of §2 but
without a remedy, once saying the plan did not violate §2
at all/* In any event, it ordered elections to be held using
SJR 2-G's senatorial districts.
In a later, expanded opinion the court reviewed the total-
ity of circumstances as required by §2 and Thornburg v. Gin-
gles, 478 U S. 30 (1986). In explaining Dade County's "tri-
partite politics/' in which "ethnic factors . . . predominate
over all otherfsj . . . ," 815 R Supp., at 1572, the court found
political cohesion within each of the Hispanic and black popu-
lations but none between the two, id, at 1569, and a tendency
of non-Hispanic whites to vote as a bloc to bar minority
groups from electing their chosen candidates except in a dis-
f* The court9** judgment filed July 2, 1992, App, to Juris. Statement 5a,
«tid SJR 2-0*8 Htate nenatorial districts "do not violate Section 2," but its
8ub«equent opinion explaining the judgment said the senatorial districts
do indeed violate §2f and that its earlier language "should be read as
holding that the Florida Senate plan does not violate Section 2 swh that
a different rmwdy must he imposed," 815 R Supp., at 1682 (emphasis
added).
Any conflict in thane two formulations is of no consequence here. "This
Court 'reviews judgments* not statements in opinions/" California v.
Rtxm#y> 4&* W' s* 3Q7, 31 * (1987) (per curiam) (quoting Black v. Cutter
LaJboratwi**, 361 U. 8. 292, 297 (1966)), and the De Grandy plaintiffs and
the United have appealed the fiailure of the District Court to pro-
vide relief for alleged § 2 violations in SJR 2~G*s senatorial districts. The
State iH entitled to "urge any grounds which would lend support to the
judgment below/1 Dayton Bd. of Ed. v. Brinkman, 438 U. S. 406, 419
(1977), including the argument it makes here that the District Court was
correct not to impose a remedy different from SJR 2-G because the
Stated reapportionment plan did not violate §2.
1004 JOHNSON u DE GRANDY
Opinion of the Court
trict where a given minority makes up a voting majority,6
id., at 1572. The court further found that the nearly one
million Hispanics in the Dade County area could be combined
into 4 Senate and 11 House districts, each one relatively com-
pact and with a functional majority of Hispanic voters, id.,
at 1568-1569, whereas SJR 2-G created fewer majority-
Hispanic districts; and that one more Senate district with a
black voting majority could have been drawn, id., at 1576.
Noting that Florida's minorities bore the social, economic,
and political effects of past discrimination, the court con-
cluded that SJR 2-G impermissibly diluted the voting
strength of Hispanics in its House districts and of both His-
panics and blacks in its Senate districts. Idn at 1574. The
findings of vote dilution in the senatorial districts had no
practical effect, however, because the court held that reme-
dies for the blacks and the Hispanics were mutually exclu-
sive; it consequently deferred to the state legislature's work
as the "fairest" accommodation of all the ethnic communities
in south Florida, Id., at 1580.
We stayed the judgment of the District Court, 506 II 8,
1232 (1992), and noted probable jurisdiction, 507 U S. 907
(1993).
II
Before going to the issue at the heart of these cases, we
need to consider the District Court's refusal to give preclu-
sive effect to the decision of the State Supreme Court vali-
dating SJR 2-G. The State argues that the claims of the De
Grandy plaintiffs should have been dismissed as rea judicata
because they had a full and fair opportunity to litigate vote
dilution before the State Supreme Court, see In re Constitu-
tionality of Senate Joint Resolution 2G, Special Apportion-
ment Session 1992, 597 So. 2d, at 285. The promise, how-
6 The Court recognizes that the terms **blackf** *4HiBpamc,f* and "white"
are neither mutually exclusive nor collectively exhaustive. We follow the
practice of the District Court in uaing them as rough indicators* of south
Florida's three largest racial and linguistic minority groups
Cite as: 512 U. S. 997 (1994) 1005
Opinion of the Court
ever, is false, exaggerating the review afforded the De
Grandy plaintiffs in the state court and ignoring that court's
own opinion of its judgment's limited scope. Given the state
constitutional mandate to review apportionment resolutions
within 30 days, see Pla. Const, Art. Ill, § 16(c), the Supreme
Court of Florida accepted briefs and evidentiary submis-
sions, but held no trial In that court's own words, it was
"impossible ... to conduct the complete factual analysis con-
templated by the Voting Rights Act . . . within the time con-
straints of article III," and its holding was accordingly "with-
out prejudice to the right of any protestor to question the
validity of the plan by filing a petition in this Court alleging
how the plan violates the Voting Rights Act/' 597 So, 2d,
at 282, 285-286.
The State balks at recognizing this express reservation by
blaming the De Grandy plaintiffs for not returning to the
State Supreme Court with the §2 claims. But the plaintiffs
are free to litigate in any court with jurisdiction, and their
choice to forgo further, optional state review hardly con-
verted the state constitutional judgment into a decision fol-
lowing "full and fair opportunity to litigate/' Allen v. Me-
Curry, 449 U S. 90, 104 (1980), as res judicata would require,
For that matter, a federal court gives no greater preclusive
effect to a state-court judgment than the state court itself
would do, Marre.se v. American Academy of Orthopaedic
S//r//™//.s-, 470 U S* 373, 384-386 (1985), and the Supreme
Court of Florida made it plain that its preliminary look at
the vote dilution claims would have no preclusive effect
under Florida law.
The State does not, of course, argue that res judicata bars
the claims of the United States, which was not a party in the
Florida Supreme Court action. It contends instead that the
Federal Government's §2 challenge deserved dismissal
under this Court's RookerlFeldman abstention doctrine,
under which a party losing in state court is barred from seek-
ing what in substance would be appellate review of the state
1006 JOHNSON n DE GRANDY
Opinion of the Court
judgment in a United States district court, based on the los-
ing party's claim that the state judgment itself violates the
loser's federal rights. See District of Columbia Court of
Appeals v. Feldman, 460 U. S, 462, 482 (1983); Rocker v. Fi-
delity Trust Co., 263 U. S. 413, 416 (1923), But the invoca-
tion of Rooker/Feldman is just as inapt here, for unlike
Rooker or Feldman, the United States was not a party in the
state court. It was in no position to ask this Court to re-
view the state court's judgment and has not directly attacked
it in this proceeding. Cf. Feldman, supra, at 468t and n. 2t
472, and n. 8 (suing District of Columbia Court of Appeals);
Rooker, supra, at 414 (seeking to have state court's judg-
ment declared null and void). The United States merely
seeks to litigate its § 2 case for the first time, and the Govern-
ment's claims, like those of the private plaintiffs, are prop-
erly before the federal courts.
Ill
On the merits of the vote dilution claims covering the
House districts, the crux of the Stated argument ia the
power of Hispanics under SJR 2-G to elect candidates of
their choice in a number of districts that mirrors their share
of the Dade County area's voting-age population (i. $., 9 out
of 20 House districts); this power, according to the State*
bars any finding that the plan dilutes Hispanic voting
strength. The District Court is said to have that
conclusion by mistaking our precedents to require the plan
to maximize the number of Hispanic-controlled districta.
The State's argument takes us back to ground covered
Term in two cases challenging single-member districts.
Voinovich v. Quilter, 507 U. S, 146 (1993); Growe v, Emixon,
507 U. S. 25 (1993)- In Growe, we held that a claim of vote
dilution in a single-member district requires proof meeting
the same three threshold conditions for a dilution challenge
to a multimember district: that a minority group be "*suffi~
ciently large and geographically compact to constitute a ma-
Cite as: 512 U. S. 997 (1994) 1007
Opinion of the Court
jority in a single-member district7"; that it be "'politically
cohesive' "; and that " 'the white majority vot[e] sufficiently
as a bloc to enable it ... usually to defeat the minority's
preferred candidate/ " Id., at 40 (quoting Thornburg v. Gin-
gles, 478 U. S., at 50-51). Of course, as we reflected in Voin-
ovich and amplify later in this opinion, "the Gingles factors
cannot be applied mechanically and without regard to the
nature of the claim." 507 U. S., at 158.
In Voinovich we explained how manipulation of district
lines can dilute the voting strength of politically cohesive
minority group members, whether by fragmenting the mi-
nority voters among several districts where a bloc-voting
majority can routinely outvote them, or by packing them into
one or a small number of districts to minimize their influence
in the districts next door. See id., at 153-154. Section 2
prohibits either sort of line-drawing where its result, " 'inter-
actfingj with social and historical conditions/ impairs the
ability of a protected class to elect its candidate of choice on
an equal basis with other voters/' Ibid, (quoting Gingles,
supra* at 47) J
Plaintiffs in Growe and Voinovich failed to show vote dilu-
tion because the former did not prove political cohesiveness
of the minority group, Growe, supra, at 41-42, and the latter
showed no significant white bloc voting, Voinovich, supra, at
158, Here, on the contrary, the District Court found, and
the State does not challenge, the presence of both these Gin-
preconditions. The dispute in this litigation centers on
two quite different questions: whether Hispanics are suffi-
ciently numerous and geographically compact to be a major-
ity In additional single-member districts, as required by the
first Gingles factor; and whether, even with all three Gingles
7 See also 478 U. S., at 50, nu 16 (discussing vote dilution through gerry-
mandering district lines). For earlier precedents recognizing that racial
gerrymanders have played a central role in discrimination against minor-
ity groups, see Gomillwn v. Lightfoot, 364 U S. 339 (1960); Perkins v.
Matthew*, 400 U. S. 379 (1971); Connor v. Finch, 431 U. S. 407 (1977).
1008 JOHNSON u DE GRANDY
Opinion of the Court
conditions satisfied, the circumstances in totality support a
finding of vote dilution when Hispanics can be expected to
elect their chosen representatives in substantial proportion
to their percentage of the area's population.
When applied to a claim that single-member districts di-
lute minority votes, the first Gingles condition requires the
possibility of creating more than the existing number of rea-
sonably compact districts with a sufficiently large minority
population to elect candidates of its choice. The District
Court found the condition satisfied by contrasting SJE 2-G
with the De Grandy plan for the Bade County area, which
provided for 11 reasonably compact districts, each with a
voting-age population at least 64 percent Hispanic. 815 P.
Supp., at 1580. While the percentage figures are not dis-
puted, the parties disagree about the sufficiency of these su-
permajorities to allow HIspanies to elect representatives of
their choice in all 11 districts. The District Court agreed
with plaintiffs that the supermajorities would compensate
for the number of voting-age Hispanics who die! not vote,
most commonly because they were recent immigrants who
had not become citizens of the United States- Id., at 1567-
1568. The State protests that fully half of the Hispanic
voting-age residents of the region are not citizens, with the
result that several districts in the De Grandy plan lack
enough Hispanic voters to elect candidates of their choice
without cross-over votes from other ethnic groups. On
these assumptions, the State argues that the condition nec-
essary to justify tinkering with the State's plan disappears.
We can leave this dispute without a winner. The parties*
ostensibly factual disagreement raises an of law about
which characteristic of minority populations (e* g., citi-
zenship) ought to be the touchstone for proving a dilution
claim and devising a sound remedy. These may be
resolved, however, without reaching this issue or the related
Cite as: 612 tL S, 997 (1994) 1009
Opinion of the Court
question whether the first Gingles condition can be satisfied
by proof that a so-called influence district may be created
(that IH» by proof that plaintiffs can devise an additional dis-
trict in which members of a minority group are a minority
of the voters, but a potentially influential one). As in the
pant, we will assume without deciding that even if Hispanics
are not an absolute majority of the relevant population in
the additional districts, the first Gingles condition has been
satisfied in these cases* See Voinovich, supra, at 154; see
also Growth supra, at 41-42, n. 5 (declining to reach the
iH«ue); (Jingles, supra, at 46-47, n. 12 (same).
B
We dot however, part company from the District Court in
assessing the totality of circumstances. The District Court
found that the three Gingles preconditions were satisfied,
and that Hispanics had suffered historically from official dis-
mmination, the social, economic, and political effects of
which they #<*nerully continued to feel, 815 R Supp,, at 1573-
1574- Without more, and on the apparent assumption that
what could have been done to create additional Hispanic su-
P<»rmajonty districts should have been done, the District
Court found a violation of §2. But the assumption was erro-
neous, and more is required, as a review of Gingles will show.
1
Thnrnburg v. 478 U.S. 30 (1986), prompted this
Court's reading of §2 of the Voting Rights Act of 1965
after Its 1082 amendment.11 Section 2(a) of the amended Act
prohibits any "standard, practice, or procedure . . * which
results in a denial or abridgement of the right of any citizen
of the United States to vote on account of race or color [or
amended the statute to reach cases in which discriminatory
intent to not identified, adding new language designed to codify White v.
412 U. S, 756, 766 (1978). S. Rep, No. 97-417, p. 2 (1982) (herein-
after Report).
1010 JOHNSON v. DE GRANDY
Opinion of the Court
membership in a language minority group], „ „ ." Section
2(b) provides that a denial or abridgment occurs where,
"based on the totality of circumstances, it is shown that
the political processes leading to nomination or election
in the State or political subdivision are not equally open
to participation by members of a class of citizens pro-
tected by subsection (a) of this section in that its mem-
bers have less opportunity than other members of the
electorate to participate in the political process ancl to
elect representatives of their choice* The extent to
which members of a protected class have been elected
to office in the State or political ^ubdivu-Ion IB one
circumstance which may be considered: Provided, That
nothing in this section establishes a right to have mem-
bers of a protected class elected in numbers equal
to their proportion in the population." 42 II S. Cl
§ 197S(b).
Gingles provided some structure to the statute's "totality
of circumstances" test in a challm^mu multimember
legislative districts. See 478 U.S., at 46-51. The Court
listed the factors put forward as relevant in the Senate*
Report treating the 1982 amendments f9 and held that
* As summarized in Gittglea, 47H 11 S,, at 44-45: *The Bf*n»te Heport
specifies factors which typically may be relevant to a §2 claim; the history
of voting-related discrimination in the State or political Muixlivlhion; th«*
extent to which voting in the election of the or political tmbdivurirm
is racially polarized; the extent to which the State or political subdivision
has used voting practices or procedures that tend to enhance the opportu*
nity for discrimination against the minority group, Rueh a» unusually largi*
election districts, majority vote roquin*mt'nt>, and prohibitions ngain«t
bullet voting; the exclusion of members of the minority group from candi-
date slating processes; the extent to which minority group members
the effects of past discrimination in areas such as education, employment,
and health, which hinder their ability to participate effectively in the polit-
ical process; the use of overt or subtle racial appeals in political campaigns;
and the extent to which members of the minority group have
to public office in the jurisdiction* {Senate Report 28-29.] The Report
Cite as: 512 U. S. 997 (1994) 1011
Opinion of the Court
"[w]hile many or all of [them] may be relevant to a
claim of vote dilution through submergence in multi-
member districts, unless there is a conjunction of the
following circumstances, the use of multimember dis-
tricts generally will not impede the ability of minority
voters to elect representatives of their choice. Stated
succinctly, a bloc voting majority must usually be able
to defeat candidates supported by a politically cohesive,
geographically insular minority group." 7d, at 48-49
(footnote omitted) (emphasis in original).
The Court thus summarized the three now-familiar Gingles
factors (compactness/numerousness, minority cohesion or
bloc voting, and majority bloc voting) as "necessary precon-
ditions/* id., at 50, for establishing vote dilution by use of a
multimember district.
But if Gingles so clearly identified the three as generally
necessary to prove a §2 claim, it just as clearly declined to
hold them sufficient in combination, either in the sense that
a court's examination of relevant circumstances was com-
plete once the three factors were found to exist, or in the
Bense that the three in combination necessarily and in all
circumstances demonstrated dilution. This was true not
only because bloc voting was a matter of degree, with a vari-
able legal significance depending on other facts, id., at 55-58,
but also because* the ultimate conclusions about equality or
inequality of opportunity were intended by Congress to be
judgments resting on comprehensive, not limited, canvassing
of relevant facts. Lack of electoral success is evidence of
vote dilution, but courts must also examine other evidence
in the totality of circumstances, including the extent of the
opportunities minority voters enjoy to participate in the po~
notes alito that evidence demonstrating that elected officials are unrespon-
sive to the particularized needs of the members of the minority group and
that the policy underlying the State's or the political subdivision's use of
the contented practice or structure is tenuous may have probative value.
M, at 29."
1012 JOHNSON v DE GRANDY
Opinion of the Court
litical processes, /d, at 46? 79-80; id, at 98-99 (O'CONNOR,
J., concurring in judgment). To be sure, some §2 plaintiffs
may have easy cases, but although lack of equal electoral
opportunity may be readily imagined and unsurprising when
demonstrated under circumstances that include the three es-
sential Gingles factors, that conclusion must still be ad-
dressed explicitly, and without isolating any other arguably
relevant facts from the act of judgment.10
If the three Gingles factors may not be isolated as suffi-
cient, standing alone, to prove dilution in every multimember
district challenge, a fortiori they must not be when the chal-
lenge goes to a series of single-member districts, where dilu-
tion may be more difficult to grasp. Plaintiffs challenging
single-member districts may claim, not total submergence,
but partial submergence; not the chance for some electoral
10 If challenges to multimember districts are likely to be th«* easier plain-
tiffs' cases, it is worth remembering that even in multimember district
challenges, proof of the Gtn$le$ factors has not always portended liability
under §2. In Baird v. Consolidated City oflttdianapoli*, 976 F. 2d 367
(19&2), the Seventh Circuit confronted a scheme for electing a City-County
Council of 29 members. Voters chose 25 of their representatives* from
single-member districts and 4 at large, from s district n»pn\M*ntmK the
entire area. Black plaintiffs brought a vote dilution claim challenging the*
lines for single-member districts and the existence of the four-nwinber
at-large district. After the Council had redrawn its sintflo-nH'mlifr dis-
tricts to rectify dilution there, the District Court held, and the* Seventh
Circuit affirmed, that the four-member district did not dilute black voting
strength because proof of the three Ginglw factors wa« not enough MJf
other considerations show that the minority has an undiminished right
to participate in the political proceoa." 970 P. 2dt at 869. The "other
considerations" in Baird included the fact that the new MxiKl<*-m4-ml>«*r
districts were so drawn that black« formed a voting m^ority in H?v*n of
them (28 percent of the single-member districts and 24 percent of the
entire council) while blacks constituted 21 percent of the local population;
and that while the four aWarge tended to go to Republicans one of
the Republicans elected in 1991 was black /<t, at 368, 861.
Cite as: 512 U. S. 997 (1994) 1013
Opinion of the Court
success in place of none, but the chance for more success in
place of some. When the question thus comes down to the
reasonableness of drawing a series of district lines in one
combination of places rather than another, judgments about
inequality may become closer calls. As facts beyond the
ambit of the three Gingles factors loom correspondingly
larger, factfinders cannot rest uncritically on assumptions
about the force of the Gingles factors in pointing to dilution,
The cases now before us, of course, fall on this more
complex side of the divide, requiring a court to determine
whether provision for somewhat fewer majority-minority
districts than the number sought by the plaintiffs was dilu-
tion of the minority votes. The District Court was accord-
ingly required to assess the probative significance of the
Gingles factors critically after considering the further cir-
cumstances with arguable bearing on the issue of equal po-
litical opportunity. We think that in finding dilution here
the District Court misjudged the relative importance of the
Gingles factors and of historical discrimination, measured
against evidence tending to show that in spite of these facts,
SJR 2-G would provide minority voters with an equal meas-
ure of political and electoral opportunity,
The District Court did not, to be sure, commit the error of
treating the three Gingles conditions as exhausting the en-
quiry required by §2* Consistently with Gingles, the court
received evidence of racial relations outside the immediate
confines of voting behavior and found a history of discrimina-
tion against Hispanic voters continuing in society generally
to the present day. But the District Court was not critical
enough In asking whether a history of persistent discrim-
ination reflected in the larger society and its bloc-voting be-
havior portended any dilutive effect from a newly proposed
districting scheme, whose pertinent features were majority-
minority districts in substantial proportion to the minority's
share of voting-age population. The court failed to ask
whether the totality of facts, including those pointing to
1014 JOHNSON v. DE GRANDY
Opinion of the Court
proportionality,11 showed that the new scheme would deny
minority voters equal political opportunity.
Treating equal political opportunity as the focus of the
enquiry, we do not see how these district lines, apparently
providing political effectiveness in proportion to voting-age
numbers, deny equal political opportunity. The record es-
tablishes that Hispanics constitute 50 percent of the voting-
age population in Dade County and under SJR 2-G would
make up supermajorities in 9 of the 13 House districts lo-
cated primarily within the county. Likewise, if one consid-
ers the 20 House districts located at least in part within Dade
County, the record indicates that Hispanics would be an ef-
fective voting majority in 45 percent of them (i e.f nine), and
would constitute 47 percent of the voting-age population in
the area. 815 R Supp., at 1580; App, to Juris, Statement
180a-183a. In other words, under SJR 2-G Hispanics in the
Dade County area would enjoy substantial proportionality.
On this evidence, we think the State's scheme would thwart
the historical tendency to exclude Hispanics, not encourage
or perpetuate it. Thus in spite of that history and its legacy,
including the racial cleavages that characterize Dade County
politics today, we see no grounds for holding in these
""Proportionality" as the term m used here links the number of
majority-minority voting districts to minority m$rnb€»r»r share of the rele-
vant population. The concept Is distinct from the subject of the pro-
portional representation clause of §2f which provides that "nothing in
this section establishes a right to have members of a protected
elected in numbers equal to their proportion in the population." 42
11 S. C. § 1978(b). This proviso speaks to the of minority candi-
dates, as distinct from the political or electoral power of minority voter**
Of Senate Report 29, n. 115 (minority candidates* at the polio in
not conclusive proof of minority voters* to the political procetw).
And the proviso also confirms what is otherwise clear from the text of the
statute, namely, that the ultimate right of §2 is equality of opportunity,
not a guarantee of electoral success for minority-pn*fi*rn*d candidate*! of
whatever race.
Cite as: 512 XL S. 997 (1994) 1015
Opinion of the Court
that SJR 2-G?s district lines diluted the votes cast by His-
panic voters.
The De Grandy plaintiffs urge us to put more weight on
the District Court's findings of packing and fragmentation,
allegedly accomplished by the way the State drew certain
specific lines: "[T]he line of District 116 separates heavily
Hispanic neighborhoods in District 112 from the rest of the
heavily Hispanic Kendall Lakes area and the Kendall area,"
so that the line divides "neighbors making up the . . . same
housing development in Kendall Lakes," and District 114
"packs" Hispanic voters, while Districts 102 and 109 "frag-
menttj" them. 815 R Supp., at 1569 (internal quotation
marks omitted). We would agree that where a State has
split (or lumped) minority neighborhoods that would have
been grouped into a single district (or spread among several)
if the State had employed the same line-drawing standards
in minority neighborhoods as it used elsewhere in the juris-
diction, the inconsistent treatment might be significant evi-
dence of a § 2 violation, even in the face of proportionality.
The District Court, however, made no such finding. Indeed,
the propositions the court recites on this point are not even
phrased as factual findings, but merely as recitations of testi-
mony offered by plaintiffs* expert witness. While the Dis-
trict Court may well have credited the testimony, the court
was apparently wary of adopting the witness's conclusions as
findings. But even if one imputed a greater significance to
the accounts of testimony, they would boil down to findings
that several of SJR 2~G's district lines separate portions of
Hispanic neighborhoods, while another district line draws
several Hispanic neighborhoods into a single district. This,
however, would be to say only that lines could have been
drawn elsewhere, nothing more. But some dividing by dis-
trict lines and combining within them is virtually inevitable
and befalls any population group of substantial size. Attach-
ing the labels "packing" and "fragmenting" to these phenom-
1016 JOHNSON v DE GRANDY
Opinion of the Court
ena, without more, does not make the result vote dilution
when the minority group enjoys substantial proportionality.
It may be that the significance of the facts under § 2 was
obscured by the rule of thumb apparently adopted by the
District Court, that anything short of the maximum number
of majority-minority districts consistent with the Ginglrs
conditions would violate §2, at least where societal discrimi-
nation against the minority had occurred and continued to
occur. But reading the first Gingles condition in effect to
define dilution as a failure to maximize in the face of bloc
voting (plus some other incidents of societal bias to be ex-
pected where bloc voting occurs) causes its own dangers, and
they are not to be courted.
Assume a hypothetical jurisdiction of 1,000 voters divided
into 10 districts of 100 each, where members of a minority
group make up 40 percent of the voting population and vat-
ing is totally polarized along racial lines. With the right
geographic dispersion to satisfy the compactness require-
ment, and with careful manipulation of district lines, the mi-
nority voters might be placed in control of as many as 7 of
the 10 districts. Each such district could be drawn with at
least 51 members of the minority group, and whether the
remaining minority voters were added to the ^nmpin^s of
51 for safety or scattered in the other three districts, minor-
ity voters would be able to elect candidates of their choice* in
all seven districts.12 The point of the hypothetical m not, of
course, that any given district is likely to be open to such
extreme manipulation, or that bare majorities are likely to
vote in full force and strictly along racial lines, but that read-
ing §2 to define dilution as any failure to maximize* tends to
12 Minority voters might instead be denied control over a of
course. Each district would need to include merely 51 raemhem of thi*
majority group; minority voters fragmented among the 10 dintrictfi could
be denied power to affect the result in any district.
Cite as: 512 U. S. 997 (1994) 1017
Opinion of the Court
obscure the very object of the statute and to run counter to
its textually stated purpose. One may suspect vote dilution
from political famine, but one is not entitled to suspect (much
less infer) dilution from mere failure to guarantee a political
feast. However prejudiced a society might be, it would be
absurd to suggest that the failure of a districting scheme to
provide a minority group with effective political power 75
percent above its numerical strength 13 indicates a denial of
equal participation in the political process. Failure to maxi-
mize cannot be the measure of § 2.
While, for obvious reasons, the State agrees that a failure
to leverage minority political strength to the maximum pos-
sible point of power is not definitive of dilution in bloc- voting
societies, it seeks to impart a measure of determinacy by
applying a definitive rule of its own: that as a matter of
law no dilution occurs whenever the percentage of single-
member districts in which minority voters form an effec-
tive majority mirrors the minority voters' percentage of the
relevant population.14 Proportionality so defined, see n. 11,
lg When 40 percent of the population determines electoral outcomes in 7
out of 10 districts, the minority group can be said to enjoy effective politi-
cal power 76 percent above its numerical strength.
H"See Brief for Appellees in Nos. 92-593, 92-767, p. 20 ("If the statutory
prohibition against providing minorities 'less opportunity than other mem-
bers of the electorate ... to elect representatives of their choice' is given
its natural meaning, it cannot be violated by a single-member district plan
that assures minority groups voting control over numbers of districts that
are numerically proportional to their population in the area where pres-
ence of the three Gingles preconditions has been established")*
The parties dispute whether the relevant figure is the minority group's
share of the population, or of some subset of the population, such as those
who are eligible to vote, in that they are United States citizens, over 18
years of age, and not registered at another address (as students and mem-
bers of the militaty often are). Because we do not elevate this proportion
to the status of a magic parameter, and because it is not dispositive here,
we do not resolve that dispute. See supra, at 1008-1009*
1018 JOHNSON v. DE GRANDY
Opinion of the Court
supra, would thus be a safe harbor for any districting
scheme.
The safety would be in derogation of the statutory text
and its considered purpose, however, and of the ideal that
the Voting Rights Act of 1965 attempts to foster. An inflex-
ible rule would run counter to the textual command of
§ 2, that the presence or absence of a violation be assessed
"based on the totality of circumstances. " 42 11 S. O.
§ 1973(b). The need for such "totality" review springs from
the demonstrated ingenuity of state and local governments
in hobbling minority voting power, McCain v. Lyhnnttl, 465
US. 286, 243-246 (1984), a point recognized by Congress
when it amended the statute in 1982: "(Slinco the adoption
of the Voting Rights Act, [some] jurisdictions have substan-
tially moved from direct, overft] impediments to the right
to vote to more sophisticated devices that dilute minority
voting strength/' Senate Report 10 (discussing §5). In
modifying §2, Congress thus endorsed our view in White
v. Regester, 412 U. S, 755 (1978), that "whether the political
processes are 'equally open* depends upon a searching prac-
tical evaluation of the *past and present reality/" Senate
Report 30 (quoting 412 U. S., at 766, 770). In a substantial
number of voting jurisdictions, that past reality has included
such reprehensible practices as ballot box stuffing, outright
violence, discretionary registration, property requirements,
the poll tax, and the white primary; and other practicen cen-
surable when the object of their use is discriminatory, tmeh
as at-Iarge elections, runoff requirements, anti-aingle-Bhot
devices, gerrymandering, the impeachment of officeholders,
the annexation or deannexation of territory, and the* creation
or elimination of elective offices.11"" Some of those expedient s
16 See generally J. M. Kousaer, The Shaping of Southern Politic*: Suf-
frage Restriction and the Establishment of the One-Party Houth, 1HWO-
1910 (1974); Kousser, The Undermining of the First Reconstruction,
sons for the Second, in Minority Vote Dilution 27 (C. Davutaon <nl. 19H4);
Hearings on the Extension of the Voting Eights Act before the Kuitcom-
Cite as: 512 U. S. 997 (1994) 1019
Opinion of the Court
could occur even in a jurisdiction with numerically demon-
strable proportionality; the harbor safe for States would thus
not be safe for voters.16 It is, in short, for good reason that
we have been, and remain, chary of entertaining a simplifi-
cation of the sort the State now urges upon us. Cf. Gingles,
478 U. S., at 77 ("[P]ersistent proportional representation . . .
[may] not accurately reflect the minority group's ability to
elect its preferred representatives").
Even if the State's safe harbor were open only in cases of
alleged dilution by the manipulation of district lines, how-
ever, it would rest on an unexplored premise of highly sus-
pect validity: that in any given voting jurisdiction (or portion
of that jurisdiction under consideration), the rights of some
minority voters under §2 may be traded off against the
rights of other members of the same minority class. Under
the State's view, the most blatant racial gerrymandering in
half of a county's single-member districts would be irrelevant
under § 2 if offset by political gerrymandering in the other
half, BO long as proportionality was the bottom line. But see
Baird v. Consolidated City of Indianapolis, 976 F. 2d 357,
359 (CAT 1992) ("A balanced bottom line does not foreclose
proof of discrimination along the way"); Richmond v. United
State,*, 422 U. S. 358, 378-379 (1975) (territorial annexation
aimed at diluting black votes forbidden by § 5, regardless of
its actual effect).
Finally, we reject the safe harbor rule because of a tend-
ency the State would itself certainly condemn, a tendency to
promote and perpetuate efforts to devise majority-minority
districts even in circumstances where they may not be neces-
mittee cm Civil and Constitutional Rights of the House Committee on the
Judiciary, 07th Gong., 1st Sess., 1999-2022, 2116-2120 (1981),
wThe State might say, of course, that ostensibly "proportional" district-
ing schemes that were nonetheless subject to diluting practices would not
"assurM" minority voters their apparent voting power. But this answer
would take u» right back to a searching review of the factual totality,
leaving the State's defensive rule without any particular utility.
1UZU JUJdWbUN v. JL>jy UK AN in
Opinion of the Court
sary to achieve equal political and electoral opportunity. Be-
cause in its simplest form the State's rule would shield from
§2 challenge a districting scheme in which the number of
majority-minority districts reflected the minority's share of
the relevant population, the conclusiveness of the rule might
be an irresistible inducement to create such districts. It
bears recalling, however, that for all the virtues of majority-
minority districts as remedial devices* they rely on a quintes-
sentially race-conscious calculus aptly described as the "poli-
tics of second best," see B. Grofrnan, L. Handley, & R. NU>mit
Minority Representation and the Quest for Voting Equality
136 (1992). If the lesson of Gingles is that society \s racial
and ethnic cleavages sometimes necessitate majority-
minority districts to ensure equal political and electoral op-
portunity, that should not obscure the fact that there are
communities in which minority citizens are able to form co-
alitions with voters from other racial and ethnic groups, hav-
ing no need to be a majority within a single district In order
to elect candidates of their choice. Those candidate may
not represent perfection to every minority voter, but minor-
ity voters are not immune from the obligation to pull, haul,
and trade to find common political ground, the virtue of
which is not to be slighted in applying a statute meant to
hasten the waning of racism in American politics.
It is enough to say that, while proportionality in the
used here is obviously an indication that minority voters
have an equal opportunity, In spite of racial polarization, "to
participate in the political process and to elect n*pn^«*nta
tives of their choice/' 42 U S. C. § 1973(b), the of pro-
bative value assigned to proportionality may vary with other
facts.17 No single statistic provides courts with a shortcut
17 So, tooy the degree of probative value a»%ned to disproportionality*
in a case where it is shown* will vary not only with the of dtapro*
personality but with other fkstors as well "[TJhere is no indication thmt
Congress intended to mandate a single, universally applicable standard
for measuring undiluted minority voting strength, of local con-
Cite as: 812 U. S. 997 (1994) 1021
Opinion of the Court
to determine whether a set of single-member districts un-
lawfully dilutes minority voting strength.
While the United States concedes the relevance of propor-
tionality to a § 2 claim, it would confine proportionality to an
affirmative defense, and one to be made only on a statewide
basis in cases that challenge districts for electing a body with
statewide jurisdiction. In this litigation, the United States
would have us treat any claim that evidence of proportional-
ity supports the State's plan as having been waived because
the State made no argument in the District Court that the
proportion of districts statewide in which Hispanics consti-
tute an effective voting majority mirrors the proportion of
statewide Hispanic population.18
The argument has two flaws. There is, first, no textual
reason to segregate some circumstances from the statutory
totality, to be rendered insignificant unless the defendant
pleads them by way of affirmative defense. Second, and just
as importantly, the argument would recast these cases as
they come to us, in order to bar consideration of proportion-
ality except on statewide scope, whereas up until now the
ditions and regardless of the extent of past discrimination against minority
voters in a particular State or political subdivision." Gingle$9 478 U. S.,
at 94-95 (O'CONNOR, X, concurring in judgment).
IHThc argument for proportionality statewide favors the State if it is
baited on the proportion of Hispanic citizens of voting age statewide. Ac-
cording to census data not available at the time of trial and thus not in
the record, Hinpanic» constitute 7.15 percent of the citizen voting-age pop-
ulation of Florida, which corresponds to eight or nine Hispanic-majority
House district* (120 x 716% - 8.58).
If instead one calculates the proportion of statewide Hispanic-majority
House districts on the basis of total population or voting-age population,
the result fevors plaintiffs* Hispanics constitute 12.2 percent of the
Stated total population and 11.7 percent of the State's voting-age popula-
tion, corresponding to 14 or 15 seats (120 X 12.2% « 14,64; 120 X 11.7%
w 14.04)- We need not choose among these calculations to decide these
cases.
1022 JOHNSON u DE GRANDY
Opinion of the Court
dilution claims have been litigated on a smaller geographical
scale. It is, indeed, the plaintiffs themselves, including the
United States, who passed up the opportunity to frame their
dilution claim in statewide terms. While the United States
points to language in its complaint alleging that the redis-
tricting plans dilute the votes of "Hispanic citizens and black
citizens in the State of Florida/' App. 77, the complaint iden-
tifies "several areas of the State" where such violations of
§ 2 are said to occur, and then speaks in terms of Hispanics
in the Dade County area (and blacks in the area of Escambia
County), id., at 75-76, Nowhere do the allegations indicate
that claims of dilution "in the State of Florida" are not to be
considered in terms of the areas specifically mentioned.
The complaint alleges no facts at all about the contours, de-
mographics, or voting patterns of any districts outside the
Dade County or Escambia County areas, and neither the evi-
dence at trial nor the opinion of the District Court addressed
white bloc voting and political cohesion of minorities state-
wide. The De Grandy plaintiffs even voluntarily dismissed
their claims of Hispanic vote dilution outside the Dade
County area. See 815 P. Supp., at 1559f n. 18, Thus we
have no occasion to decide which frame of reference should
have been used if the parties had not apparently agreed in
the District Court on the appropriate geographical scope for
analyzing the alleged §2 violation and devising its remedy.
In sum, the District Court's finding of dilution did not ad-
dress the statutory standard of unequal political and elec-
toral opportunity, and reflected instead a misconstruction of
§2 that equated dilution with failure to maximize the number
of reasonably compact majority-minority districts, Because
the ultimate finding of dilution in districting for the Florida
House was based on a misreading of the governing law, we
hold it to be clearly erroneous. See 478 IX Sn at
79.
Cite as: 512 U. S. 997 (1994) 1023
Opinion of the Court
IV
Having found insufficient evidence of vote dilution in the
drawing of House districts in the Bade County area, we look
now to the comparable districts for the state Senate. As in
the case of House districts, we understand the District Court
to have misapprehended the legal test for vote dilution when
it found a violation of § 2 in the location of the Senate district
lines. Because the court did not modify the State's plan,
however, we hold the ultimate result correct in this instance.
SJR 2-G creates 40 single-member Senate districts, 5 of
them wholly within Bade County. Of these five, three have
Hispanic supermajorities of at least 64 percent, and one has
a clear majority of black voters. Two more Senate districts
crossing county lines include substantial numbers of Dade
County voters, and in one of these, black voters, although
not close to a majority, are able to elect representatives of
their choice with the aid of cross-over votes* 815 F. Supp.,
at 1574, 1579,
Within this seven-district Dade County area, both minor-
ity groups enjoy rough proportionality, The voting-age pop-
ulation in the seven-district area is 44.8 percent Hispanic and
15.8 percent black. Record, U. S, Exh. 7. Hispanics pre-
dominate in 42.9 percent of the districts (three out of seven),
as do blacks in 14,8 percent of them (one out of seven).
While these numbers indicate something just short of per-
fect proportionality (42.9 percent against 448; 14,3 percent
against 15.8), the opposite is true of the five districts located
wholly within Dade County.19
m In the five districts wholly within Dade County, where Hispanics are
concentrated, the voting-age population is 53,9 percent Hispanic and 13.5
percent black. Sixty percent of the districts are Hispanic majority (three
out of five), and 20 percent are black majority (one out of five), so that
each minority group protected by §2 enjoys an effective voting majority
in marginally more districts than proportionality would indicate (60 per-
cent over 63.9; 20 percent over 13.5).
1024 JOHNSON u DE GRANDY
Opinion of the Coiirt
The District Court concentrated not on these facts but on
whether additional districts could be drawn In which either
Hispanics or blacks would constitute an effective majority,
The court found that indeed a fourth senatorial district with
a Hispanic supermajority could be drawn, or that an addi-
tional district could be created with a black majority, in each
case employing reasonably compact districts* Having pre-
viously established that each minority group was politically
cohesive, that each labored under a legacy of official discrimi-
nation, and that whites voted as a bloc, the District Court
believed it faced "two independent, viable Section 2 claims/1
815 R Supp., at 1577. Because the court did not* however,
think it was possible to create both another Hispanic district
and another black district on the same map, it concluded that
no remedy for either violation was practical and, deferring to
the State's plan as a compromise policy, imposed SJE 2-G#s
senatorial districts. Id., at 1580.
We affirm the District Court's decision to leave the State's
plan for Florida State Senate districts undisturbed. As in
the case of the House districts, the totality of circumstances
appears not to support a finding of vote dilution here, where
both minority groups constitute effective voting majorities
in a number of state Senate districts substantially propor-
tional to their share in the population, and where plaintiffs
have not produced evidence otherwise indicating that under
SJR 2-G voters in either minority group have "less opportu-
nity than other members of the electorate to participate in
the political process and to elect of their
choice." 42 U. S. C. § 1973(bX
V
There being no violation of the Voting Rights Act shown,
we have no occasion to review the District Court's
going to remedy. The judgment of the District Court is
accordingly affirmed in part and reversed in part.
It W to
Cite as: 512 U. S. 997 (1994) 1025
O'CONNOR, J., concurring
JUSTICE O'CONNOR, concurring.
The critical issue in these cases is whether §2 of the Vot-
ing Rights Act of 1965, 42 U. S. (X § 1973, requires courts to
"maximize" the number of districts in which minority voters
may elect their candidates of choice. The District Court,
applying the maximization principle, operated "on the appar-
ent assumption that what could have been done to create
additional Hispanic supermajority districts should have been
clone/1 Ante, at 1009. The Court today makes clear that
the District Court was in error, and that the Voting Rights
Act does not require maximization. Ante, at 1017 ("Failure
to maximize cannot be the measure of § 2"); ante, at 1022 (the
District Court improperly "equated dilution with failure to
maximize the number of reasonably compact majority-
minority districts").
But today *s opinion does more than reject the maximiza-
tion principle. The opinion's central teaching is that propor-
tionality—defined as the relationship between the number of
majority-minority voting districts and the minority group's
share of the relevant population — is always relevant evi-
dence in determining vote dilution, but is never itself disposi-
tive. Laek of proportionality is probative evidence of vote
dilution. a[A]ny theory of vote dilution must necessarily
rely to some extent on a measure of minority voting strength
that makes some reference to the proportion between the
minority group and the electorate at large*" Thornburg v.
Gingles, 478 U. S, 30, 84 (1986) (O'CONNOR, J., concurring in
judgment). Thus, in evaluating the Gingles preconditions
and the totality of the circumstances a court must always
consider the relationship between the number of majority-
minority voting districts and the minority group's share of
the population. C£ id., at 99 OtT]he relative lack of minor-
ity electoral success under a challenged plan, when compared
with the success that would be predicted under the measure
of undiluted minority voting strength the court is employing,
can constitute powerful evidence of vote dilution").
1026 JOHNSON v. DE GRANDY
Opinion of KENNEDY, J,
The Court also makes clear that proportionality is never
dispositive. Lack of proportionality can never by itself
prove dilution, for courts must always carefully and search-
ingly review the totality of the circumstances, including the
extent to which minority groups have access to the political
process. Ante, at 1011-1012. Nor does the presence of pro-
portionality prove the absence of dilution. Proportionality
is not a safe harbor for States; it does not immunize their
election schemes from §2 challenge. Ante, at 1017-1021.
In sum, the Court's carefully crafted approach treats pro-
portionality as relevant evidence, but does not make it the
only relevant evidence* In doing this the Court makes clear
that §2 does not require maximization of minority voting
strength, yet remains faithful to §2fs command that minority
voters be given equal opportunity to participate in the politi-
cal process and to elect representatives of their choice,
With this understanding, I join the opinion of the Court.
JUSTICE KENNEDY, concurring in part and concurring in
the judgment.
At trial, the plaintiffs alleged that the State violated §2 of
the Voting Rights Act of 1965, 42 U. S. (1 § 1973, by not creat-
ing as many majority-minority districts as feasible,
The District Court agreed and found a violation of §2f thus
equating impermissible vote dilution with the failure to max-
imize the number of majority-minority districts, 1
with the Court that the District Court's maxirnixut It HI theory
was an erroneous application of §2.
A more difficult question is whether proportionality, as-
certained by comparing the number of majority-minority
districts to the minority group's proportion of the relevant
population, is relevant in deciding whether there has been
vote dilution under §2 in a challenge to election district
lines. The statutory text does not yield a clear answer.
The statute, in relevant part, provider: l<rPhe extent to
which members of a protected have to
Cite as: 512 U. S. 997 (1994) 1027
Opinion of KENNEDY, J.
office in the State or political subdivision is one circumstance
which may be considered [in determining whether there has
been vote dilution]: Provided, That nothing in this section
establishes a right to have members of a protected class
elected in numbers equal to their proportion in the popula-
tion/* §1973(b) (emphasis in original). By its terms, this
language addresses the number of minorities elected to of-
fice, not the number of districts in which minorities consti-
tute a voting majority. These two things are not synony-
mous, and it would be an affront to our constitutional
traditions to treat them as such. The assumption that
majority-minority districts elect only minority representa-
tives, or that majority-white districts elect only white repre-
sentatives, is false as an empirical matter. See Voinovich v.
Quitter, 507 U. S. 146, 151-152, 158 (1993); A. Thernstrom,
Whose Votes Count? Affirmative Action and Minority Voting
Rights 210-216 (1987); a Swain, Black Faces, Black Inter-
ests, ch. 6 (1993). And on a more fundamental level, the
assumption reflects "the demeaning notion that members of
the defined racial groups ascribe to certain 'minority views'
that must be different from those of other citizens/' Metro
Broadcasting, Inc. v, FCC, 497 U. S. 547, 636 (1990) (KEN-
NEDY, X, dissenting); see also United Jewish Organizations
QfWilliam&burgh, Inc. v. Carey, 430 U. S. 144, 186-187 (1977)
(Burner, C. J., dissenting).
Although the statutory text does not speak in precise
terms to the issue, our precedents make clear that propor-
tionality, or the lack thereof, has some relevance to a vote
dilution claim under §2. In a unanimous decision last Term,
we recognized that single-member districts were subject to
vote dilution challenges under §2, and further that "[d]ivid-
ing fa politically cohesive] minority group among various
[single-member] districts so that it is a majority in none" is
one "device for diluting minority voting power" within the
moaning of the statute. Voinovich v* Quilter, 507 U. S., at
152-153, If "the fragmentation of a minority group among
1028 JOHNSON v. DE GRANDY
Opinion of KENNEDY, J.
various districts" is an acknowledged dilutive device, id, at
153, it follows that analysis under § 2 takes some account of
whether the number of majority-minority districts falls short
of a statistical norm. C£ Washington v. Davu, 426 U S.
229, 242 (1976) (discriminatory impact relevant to allegation
of intentional discrimination). Both the majority and con-
curring opinions in Thornburg v. Gingles, 478 U S. 30 (1986),
reflect the same understanding of the statute. See id., at
50, n. 16 (In a "gerrymander case, plaintiffs might allege that
the minority group that is sufficiently large and compact to
constitute a single-member district has been split between
two or more multimember or single-member districts, with
the effect of diluting the potential strength of the minority
vote"); id., at 84 (O'CONNOR, J., concurring in judgment)
("[A]ny theory of vote dilution must necessarily rely to some
extent on a measure of minority voting strength that makes
some reference to the proportion between the minority
group and the electorate at large"). Indeed, to say that pro-
portionality is irrelevant under the §2 results test is the
equivalent of saying (contrary to our precedents) that no § 2
vote dilution challenges can be brought to the drawing of
single-member districts.
To be sure, placing undue emphasis upon proportionality
risks defeating the goals underlying the Voting Eights Act
of 1965, as amended. See Gingles, supm, at 99 (OfCoNNou,
J., concurring in judgment). As today's decision provides, a
lack of proportionality is "never dispositive" proof of vote
dilution, just as the presence of proportionality <4is not a
harbor for States [and] does not immunize their election
schemes from §2 challenge/' Ante, at 1026 (O'CONNOR, J,f
concurring); see also ante, at 1020-1021, n. 17- But given
our past construction of the statute, I would hesitate to con-
clude that proportionality has no relevance to the §2 inquiry.
It is important to emphasize that the precedents to which
I refer, like today's decision, only construe the statute, and
Cite as: 512 U. S. 997 (1994) 1029
Opinion of KENNEDY, J.
do not purport to assess its constitutional implications. See
Chisom v, Roemer, 501 U. S. 380, 418 (1991) (KENNEDY, J.,
dissenting). Operating under the constraints of a statutory
regime in which proportionality has some relevance, States
might consider it lawful and proper to act with the explicit
goal of creating a proportional number of majority-minority
districts in an effort to avoid §2 litigation. Likewise, a
court finding a § 2 violation might believe that the only ap-
propriate remedy is to order the offending State to engage
in race-based redistricting and create a minimum number of
districts in which minorities constitute a voting majority.
The Department of Justice might require (in effect) the same
as a condition of granting preclearance, under § 5 of the Act,
42 U. S, C. § 1973c, to a State's proposed legislative redis-
tricting. Those governmental actions, in my view, tend to
entrench the very practices and stereotypes the Equal Pro-
tection Clause is set against. See Metro Broadcasting, Inc.
v. PCC, supra, at 636-687 (KENNEDY, J., dissenting). As a
general matter, the sorting of persons with an intent to di-
vide by reason of race raises the most serious constitutional
questions.
l4The moral imperative of racial neutrality is the driving
force of the Equal Protection Clause." Richmond v. J, A.
Croson Co., 488 U. S. 469, 518 (1989) (KENNEDY, J., concur-
ring in part and concurring in judgment). Racial classifica-
tions "are by their very nature odious to a free people whose
institutions are founded upon the doctrine of equality," and
are presumed invalid. Shaw v. Reno, 509 U. S. 630, 643
(1993) (internal quotation marks omitted); see also A. Bickel,
The Morality of Consent 133 (1975). This is true regardless
of "the race of those burdened or benefited by a particular
classification/1 Croson* supra, at 494 (opinion of O'CONNOR,
J.); 488 U S., at 520 (SCALIA, J., concurring in judgment).
Furthermore, "[i]t is axiomatic that racial classifications do
not become legitimate on the assumption that all persons
JUHNSON U DJK GKANDY
Opinion of KENNEDY, J.
suffer them in equal degree. " Powers v. Ohio, 499 U. S. 400,
410 (1991); see also Plessy v. Ferguson, 163 U. S. 537, 560
(1896) (Harlan, J., dissenting).
These principles apply to the drawing of electoral and
political boundaries. As Justice Douglas, joined by Justice
Goldberg, stated 30 years ago:
"When racial or religious lines are drawn by the State,
the multiracial, multireligious communities that our
Constitution seeks to weld together as one become sepa-
ratist; antagonisms that relate to race or to religion
rather than to political issues are generated . . . , Since
that system is at war with the democratic ideal, it should
find no footing here.11 Wright v. Rockefeller, 376 U B.
52, 67 (1964) (dissenting opinion).
In like fashion, Chief Justice Burger observed that the "use
of a mathematical formula" to assure a minimum number of
majority-minority districts "tends to sustain the existence of
ghettos by promoting the notion that political clout is to be
gained or maintained by marshaling particular racial, ethnic,
or religious groups in enclaves-" United Jewish Organiza-
tions v, Carey, 430 U. S., at 136 (dissenting opinion). And
last Term in Shaw, we voiced our agreement with
sentiments, observing that "[r]acial gerrymandering, even
for remedial purposes, may balkani&e us into compiling
racial factions; it threatens to cany us further from the
goal of a political system in which race no longer matters™
a goal that the Fourteenth and Fifteenth Amendments em-
body, and to which the Nation continues to aspire/1 509
U. S., at 667,
Our decision in Shaw alluded to, but did not resolve,
the broad question whether <4the intentional creation of
majority-minority districts, without more, always
to an equal protection claim/" Id, at 649 (internal quotation
marks omitted); see also id, at 667. While recognizing that
redistricting differs from many other kinds of state decision-
Cite as; 512 U. S. 997 (1994) 1031
THOMAS, J., dissenting
making "in that the legislature always is aware of race when
it draws district lines, just as it is aware of age, economic
status, religion and political persuasion," we stated that "the
difficulty of determining from the face of a single-member
districting plan that it purposefully distinguishes between
voters on the basis of race" does "not mean that a racial
gerrymander, once established, should receive less scrutiny
under the Equal Protection Clause than other state legisla-
tion classifying citizens by race/7 Id., at 646 (emphasis in
original). We went on to hold that "a reapportionment
scheme so irrational on its face that it can be understood only
as an effort to segregate voters into separate voting districts
because of their race" must be subject to strict scrutiny
under the Equal Protection Clause. Id., at 658; see also id.,
at (549, 653. Given our decision in Shaw, there is good rea-
son for state and federal officials with responsibilities related
to redistricting, as well as reviewing courts, to recognize
that explicit race-based districting embarks us on a most
dangerous course. It is necessary to bear in mind that re-
districting must comply with the overriding demands of the
Equal Protection Clause. But no constitutional claims were
brought here, and the Court's opinion does not address any
constitutional issues. C£ Voinomch v. Quilter, 507 U. S.,
at 157.
With these observations, I concur in all but Parts III-B-2,
HI-B-4, and IV of the Court's opinion and in its judgment.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
dissenting.
For the reasons I explain in Holder v. Hall, ante, p. 891, I
would vacate the judgment of the District Court and remand
with instructions to dismiss the actions consolidated in these
for failure to state a claim under §2 of the Voting
Rights Act of 1965. 42 U. S. C* § 1973. Each of the actions
consolidated in these cases asserted that Florida's appor-
tionment plan diluted the vote of a minority group. In ac-
1032 JOHNSON v. DE GEANDY
THOMAS, J.f dissenting
cordance with the views I express in Holder, I would hold
that an apportionment plan is not a "standard, practice, or
procedure" that may be challenged under §2* I therefore
respectfully dissent
REPORTER'S NOTE
The next page in purposely numbered 1201. The numbers between
10,12 and 1201 were* intentionally omitted, in order to make it possible to
publiHh the* onlern with fwrmanent page numbers, thus making the official
cStationn available upon publication of the preliminary prints of the United
Stat(*«
ORDERS FOR JUNE 13 THROUGH
SEPTEMBER 30, 1994
JUNE 13, 1994
Certiorari Granted^*- Vacated and Remanded
^ No. 93-428. LIVINGSTONE v. DONAHEY ET AL. C. A. 6th Cir.
Certiorari granted, judgment vacated, and case remanded for fur-
ther consideration in light of Key Tronic Corp. v. United States,
511 U. S. 809 (1994). Reported below: 987 R 2d 1250.
Miscellaneous Orders
No. A-99L GRIGSBY v. O'DONNELL, JUDGE, 301ST DISTKICT
COURT, DALLAS COUNTY, TEXAS. Dist. Ct., 301st Jud. Dist.,
Dallas County, Tex. Application for stay, addressed to JUSTICE
GINSBURG and referred to the Court, denied.
No. D-1063. IN RE DISBARMENT op WEISS. Disbarment en-
tered, [For earlier order herein, see 502 U. S. 101 L]
No. D-1375. IN RE DISBARMENT OF MCNAMARA. Disbar-
ment entered. [For earlier order herein, see 511 U. S. 1002J
No. D-1380. IN RE DISBARMENT OF COOPER. Disbarment
entered. (For earlier order herein, see 511 U. S. 1016 J
No, D-1385. IN RE DISBARMENT OF MCCLENNY. Disbarment
entered, [For earlier order herein, see 511 U. S, 1028 J
No* D-1405. IN RE DISBARMENT OF WARNER. It is ordered
that Marq J- Warner, of Englewood, Colo., be suspended from the
practice of law in thin Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
No* D-1406. IN RE DISBARMENT OF BRENNAN. It is ordered
that John Daniel Brennan, of Evanston, III, be suspended from
the practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
No, D-1407. IN RE DISBARMENT OF AN AST. It is ordered
that Nick J. Anast, of Schererville, Ind., be suspended from the
1201
1202 OCTOBER TERM, 1993
June 13, 1994 512 U. 8.
practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
No. D-1408. IN RE DISBARMENT OF LESLIE. It in ordered
that Brian Hal Leslie, of Miami, Fla., be suspended from the
practice of law in this Court and that a rule issue, returnable*
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in thin Court,
No. D-1409. IN RE DISBARMENT OF SELLER. It IB ordered
that Louis R. Seller, of Miami Beach , Fla*, be suspended from the
practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court*
No. S-3. IN RE DISBARMENT OP POWKLL. Disbarment en-
tered. [For earlier order herein, see No. 882, MIHC., 389 U. S.
924J
No, 65, Grig. TEXAS u NEW MEXICO. Motion of the River
Master for approval of fees and expenses grants!, and thc^ River
Master is awarded $836 for the period January 1 through March
31, 1994, to be paid equally by the parties. fFor earlier order
herein, see, e.g., 510 U.S. 1106*]
No. Ill, Orlg. DELAWARE ET AL, IA NEW YORK. Upon consid-
eration of the Report of the Special Master, the Exceptions of
Plaintiff-Intervenor States of Alabama et al, and the Reply of
Delaware, it is ordered that Dekwarefs complaint against New
York is dismissed, that the renewed motion of Delaware to dismiss
the complaint without prejudice is denied, and that the motion of
New York to amend its answer in order to certain counter-
claims is denied without prejudice. The Court no action at
this time on the recommendation of the Special Master for deter-
mining the location of noncorporate debtors. This tthall
now be known as State of Texm et alf Plaintiffalntervenvr*
v. State of New York. [For earlier order herein, see, e.a, 611
U R 1028,]
No. 92-1012, SIMPSON PAPER (VBEMONT) Co* v. DEPARTMENT
OF ENVIRONMENTAL CONSERVATION ET AL» Sup, Ct Vt In
light of the dismissal of the petition on January 5, [510 11 S.
ORDERS 1203
512 U. S. June 13, 1994
1082], the order entered June 6, 1994 [511 U. S. 1141], denying
the petition for writ of certiorari is vacated.
No. 98-986. MclNTYRE u OHIO ELECTIONS COMMISSION.
Sup. Ct. Ohio. [Certiorari granted, 510 U. S. 1108.] Motion to
substitute Joseph Mclntyre, Executor, in place of Margaret Me-
Intyre, deceased, as petitioner in this case granted. Motion of
respondent to dismiss denied.
No, 93-1224. TODD SHIPYARDS CORP. ET AL. u EDWARDS
ET AL., 511 U. S. 1081. Motion of respondent Richard Edwards
for assessment of costs and attorney's fees denied without preju-
dice to refiling in the United States Court of Appeals for the
Ninth Circuit,
No. 93-1585. WEST PENN POWER Co. ET AL. v. PENNSYLVANIA
PUBLIC UTILITY COMMISSION ET AL. Commw. Ct. Pa. Motions
of Metropolitan Edison Co. et al and Edison Electric Institute for
leave to file briefs as amid curias granted.
No, 93-1652, CALDERON, WARDEN, ET AL. u HAMILTON.
C. A, 9th Cir. Motion of respondent for leave to proceed in
forma pauper fa granted. Motion of Criminal Justice Legal Foun-
dation for leave to file a brief as amicus curiae granted.
No. 93-8312. IN RE ANDERSON. Motion of petitioner for re-
consideration of order denying leave to proceed in forma pau~
peri* [511 U. S. 364] denied,
No, 03-90(50- IN RE LEWIS; and
No. 98-9171, IN RE NOLT. Petitions for writs of habeas cor-
pus denied*
No, !« 8H02. IN BE BIBRLEY Petition for writ of manda-
denied*
No. 93-1418. IN RE CALDERON, WARDEN, ET AL, Motion of
respondent Melvin Wade for leave to proceed in forma pauperis
granted Petition for writ of mandamus denied.
Certiorari Granted
No* 93-1631. BKNTSKN, SECRETARY OF THE TREASURY u
ADOLPH COORS Co. C. A, 10th Cir. Certiorari granted. Re-
ported below: 2 R 3d S56.
1204 OCTOBER TERM, 1993
June 13, 1994 612 II. a
No. 98-1636. SWINT ET AL. v. CHAMBERS COUNTY COMMIS-
SION ET AL. C. A. llth Cir. Certiorari granted. Reported
below: 5 R 3d 1435 and 11 F. 3d 1080,
No. 93-1677. OKLAHOMA TAX COMMISSION ti JKFFKRSON
LINES, INC. C. A. 8th Cir. Certiorari granted. Reported
below; 15 F. 3d 90.
Certiorari Denied
No. 98-1328. INTERNATIONAL UNION OF ELECTRONIC, ELEC-
TRICAL, TECHNICAL, SALARIED & MACHINK WORKKKS, AFL-
CIO, ET AL. v. UNITED STATES. C, A. Fed. Cir, Certiorari
denied. Reported below: 6 R 3d 151 L
No. 93-1348. ADAMS v. UNITED STATES. C. A. 5th Cir. Cer-
tiorari denied. Reported below; 5 P. 3d 529,
No. 93-1377. WARDLAW tx PICKKTT ET AL, C. A. D. C. Car.
Certiorari denied. Reported below: 1 P, 3d 1297.
No. 93-1437. GILFORD PAHTNKKS v. PlZITZ ET AL. Sup. Ct.
Ala. Certiorari denied. Reported below; 630 So. 2d 404.
No* 93-1459. GREENFIELD u UNITED STATES. C* A. llth
Cir. Certiorari denied. Reported below: 12 R 3d 217.
No. 93-1461. MAG INSTRUMENT, INC, v. COMMISSION OF
PATENTS AND TRADEMARKS, C A. Fed. Cir. Certlorart denied.
Reported below: 17 F. 3d 1442.
No. 93-1488, SOUTH WKSTKKN BELL TKLKPHONK Co* & FED-
ERAL COMMUNICATIONS COMMISSION ET AL* C A, D, C Cir,
Certiorari denied. Reported below: 10 E 3d 892,
No. 98-1468. POFELKA ET AL, u ET AL, Cl A. 9th Cir.
Certiorari denied. Reported below: 17 E 3d 305,
No. 93-1469. POXWOOD MANAGEMENT Co. ET AL* % FEDERAL
DEPOSIT INSURANCE CORPORATION ET AL. C, A* 8th Cir, Cer-
tiorari denied. Reported below: 15 R M 180.
No- 98-1478. ANDERSON ET AL, u MERIT SYSTEMS PROTEC-
TION BOARD. C. A. Fed. Cir. Cartiormr! denied. Reported
below: 12 R Sd 1069.
ORDERS 1205
512 II. & June 13, 1994
No. 93-1486. FEDERAL DEPOSIT INSURANCE CORPORATION, AS
RECEIVER OF TEXAS INVESTMENT BANK, N. A. v. DAWSON ET AL.
C. A, 5th Cir. Certiorari denied. Reported below: 4 R 3d 1303.
No. 93-1489. LOWERY, TREASURER OP CLEVELAND COUNTY,
OKLAHOMA, ET AL. v. FEDERAL DEPOSIT INSURANCE CORPORA-
TION. C. A. 10th Cir. Certiorari denied. Reported below: 12
R 3d 995.
No. 93-1519. FAIRFAX HOSPITAL v. NATIONAL LABOR RELA-
TIONS BOARD ET AL, C. A. 4th Cir. Certiorari denied. Re-
ported below: 14 R 3d 594,
No, 93-1562, MR. SPROUT, INC., ET AL. v. UNITED STATES
ET AL. C. A. 2d Cir, Certiorari denied. Reported below: 8
P. 3d 118.
No. 93-1569. BOARDS ET AL. u UNITED STATES. C. A. 8th
Cir, Certiorari denied. Reported below: 10 R 3d 587.
No. 98-1597. COMEIE ET AL. v. FEDERAL NATIONAL MORT-
GAGE ASSOCIATION. C. A. llth Cir. Certiorari denied. Re-
ported below: 8 R 3d 36,
No. 98-1602. FIRST INTERSTATE BANK OF DENVER, N. A. v.
DrFFiKLix C. A, 10th Cir. Certiorari denied. Reported below;
18 R 3d 1403.
No. 93-1608. MCBEATH u COOPER ET AL. C. A. 5th Cir.
Certiorari denied. Reported below; 11 R 3d 547.
No. 03-1015. ILLINOIS DEPARTMENT OF THE LOTTERY v.
MARCHIANDO. C. A. 7th Cir* Certiorari denied. Reported
below: 13 P. 3d 1111.
No, 93-1636. PIGNATO v. AMERICAN TRANS AIR, INC. C. A.
7th Cir. Certiorari denied. Reported below: 14 P. 3d 842.
No, 93-1646. ADVANCED MICRO DEVICES, INC. u INTEL CORP.
C A. 0th Cir. Certiorari denied. Reported below: 12 R 3d 908.
No- §8-1050, ELJEE MANUFACTURING, INC. u KOWIN DEVEL-
OPMENT CORF. C. A. 7th Cir. Certiorari denied. Reported
below: 14 R 3d 1250.
No, 98-1054 CRUTCHFIELD v. MCGREGOR. Ct. App. Ore.
Certiorari denied.
1206 OCTOBER TERM, 1993
June IB, 1994 512 U.S.
No. 93-1656. ElCHELBBRGER ET AL. V. AYCOCK ET AL. Cl A.
5th Cir. Certiorari denied. Reported below: 12 F. Sd 1097,
No. 93-1657. LOWERY v. REDD ET AL. C A. 4th Cir, Oer-
tiorari denied. Reported below: 14 F, 3d 595*
No. 93-1659. CAMPBELL u CALIFORNIA. C. A. 9th Cir. Or-
tiorari denied.
No. 93-1665. HUNGER ET AL. w, AB ET AL. Cl A. Kth Cir.
Certiorari denied* Reported below: 12 R 3d 118.
No. 93-1666. STEVENS v. BOARD OF LAW EXAMINKKS OF
TEXAS, Sup. Ct. Tex. Certiorari denied. Reported below: 868
S. W. 2d 773.
No. 93-1667. ALABAMA v. Me REYNOLDS. Ct. Grim. App.
Ala. Certiorari denied. Reported below: 681 So. 2d 280,
No, 93-1671. FRENCH v. KING, DIRECTOR OF CAROLINE
COUNTY, VIRGINIA, SOCIAL SERVICES, ET AL, Cl A, 4th Cir,
Certiorari denied. Reported below; 14 P* 3d 594.
No. 93-1675. DBMATTEIS v. PENNSYLVANIA. Super. Ct. Pa.
Certiorari denied. Reported below; 425 Pa. Super, 827, 61ft
A, 2d 787,
No, 93-1676. PULLER ET AL, v. GOLDEN A«K FXSHKRIKS
ET AL. C, A. 9th Cir. Certiorari denied* Reported below; 14
R Sd 1405,
No. 98-1681, Ross ET AL* u FOED MOTOR CREDIT Co. Ct
App. Mo.» Western Disk Certiorari denied. Reported below:
867 S* W. 2d 546,
No. 93-1682. BALCOR REAL ESTATE HOLDINGS, INC.,
BALCQR REAL ESTATE FINANCE, INC, v. CLARE, TRUSTEE, BANK-
RUPTCY ESTATES OF MEEIDITH HOFFMAN PAKTNKKS ET AL.
C. A. 10th Cir. Certio3Rar! deni^, below: 12 F. 3d
1549-
Na 93-1688. WHEELER v. KIDDEE, PEAEODY & c;0#r INC.,
ET AL- C. A* 5th Cir. Certiorari denied. Reported below: 8
R Sd 21.
No, 98-1685, HBBEET u BROWN, SECRETARY or VKTKKANS
AJTAIRS, C A, Fed* Cir. Certioimi denied* below;
14 R 3d 612.
ORDERS 1207
512 U. S. June 13, 1994
No. 93-1688. CENTRAL DISTRIBUTORS OF BEER, INC. v. CONN
ET AL. C. A, 6th Cir. Certiorari denied. Reported below: 5
F. 3d 181.
No. 93-1689. RICE v. OHIO DEPARTMENT OF TRANSPORTATION
ET AL. C. A. 6th Cir. Certiorari denied. Reported below: 14
F. 3d 1133.
No. 93-1691. MANESS u STAR-KIST FOODS, INC., ET AL. C. A.
8th Cir, Certiorari denied. Reported below: 7 F. 3d 704.
No. 93-1698. SAUNDERS u BUSH, FORMER PRESIDENT OF THE
UNITED STATES, ET AL. C. A. 5th Cir. Certiorari denied. Re-
ported below: 15 F. 3d 64.
No. 93-1704. ABRAHAM, PERSONAL REPRESENTATIVE OF THE
ESTATE OF ABRAHAM, ET AL. u PWG PARTNERSHIP ET AL. Sup.
Ct N. M. Certiorari denied. Reported below: 116 N. M. 583,
866 P. 2d 311.
No. 93-1737. WOZNICK u HiNSON, ADMINISTRATOR, FEDERAL
AVIATION ADMINISTRATION. C. A. 6th Cir. Certiorari denied.
Reported below: 16 R 3d 1224.
No. 98-1755. MOBIL OIL CORK u TOWN OF CYRIL. C. A. 10th
Cir. Certiorari denied. Reported below: 11 F. 3d 996.
No. 93-1785, ORGANIZACION JD LTDA. ET AL. u UNITED
STATES ET AL. C. A. 2d Cir. Certiorari denied. Reported
below: 18 R 3d 91.
No. 98-1791. REIVES v. UNITED STATES. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 15 F. 3d 42.
No* 93-1804. SACRAMENTO CITY UNIFIED SCHOOL DISTRICT
BOAED OF EDUCATION u HOLLAND, BY AND THROUGH HER
GUARDIAN AD LITEM, HOLLAND, ET AL. C. A. 9th Cir. Certio-
rari denied. Reported below: 14 F* 3d 1398,
No. 93-1807. SCHLEDWITZ u UNITED STATES. C. A. 6th Cir.
Certiorari denied. Reported below: 14 F. 3d 603.
No. 93-1808. ALAGO u UNITED STATES. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 15 F. Sd 1092.
No. 98-1815. BURNS-TOOLE v. BYRNE ET AL* C. A. 5th Cir.
Certiorari denied- Reported below: 11 F. 3d 1270.
1208 OCTOBER TERM, 1993
June 13, 1994 512 U. S.
No. 93-1819. GONZALEZ v. UNITED STATES. C. A. llth Cir,
Certiorarl denied. Reported below: 16 R 3d 1232.
No. 93-1868. ORTMAN v. OAKLAND COUNTY, MICHIGAN, ET AL.
C. A. 6th Cir. Certiorarf denied. Reported below: 16 P. 3d 1220.
No. 93-6289. SMITH v. UNITED STATES, C. A. llth Cir, Cer-
tiorari denied. Reported below: 996 F. 2d 1231.
No. 93-7161. MURRAY u DUNCAN, WARDEN, C, A. 9th Cir.
Certiorari denied. Reported below: 996 R 2d 1226.
No. 93-8056. COPELAND u UNITED STATES, C. A. 4th Cir.
Certiorari denied. Reported below: 10 F. 3d 1044.
No. 93-8382. WILSON v. UNITED STATES;
No. 93-8403. WILLIAMS v. UNITED STATES; and
No. 93-8450. JONES v. UNITED STATES. C. A, 4th Cir. Cer-
tiorari denied. Reported below: 14 P. 3d 59H.
No. 93-8395. GuiLLOXJ u UNITED STATES. C. A- llth Cir.
Certiorari denied. Reported below; 12 F. 8d 219,
No. 93-8559- GRIGGS v. KANSAS ET AL. C, A, 10th Cir, Cer-
tiorari denied. Reported below: 16 R 3d 416.
No. 93-8737. RODKNBATTGH u RonKNBAnai ET AL. C. A, 3d
Cir, Certiorari denied,
No. 93-8740, RODENBAUGH U RODENBAUGK ET AL. C, A. 3d
Cir. Certiorari denied.
No. 93-8750, WILLOUGHBY u CALIFORNIA* Ct. App. Gal,
4th App. Dist. Certiorari denied.
No. 93-8751. WALKER v. LANHAM ET AL. C, A, 4th Cir,
Certiorari denied. Reported below; 17 F. 3d 1486.
No. 93-H75H. WYATT v. OKLAHOMA, Ct. Grim, App. Okla.
Certiormri denied.
No. 93-8759, CARMICHARL u BEYAH% ATTORNEY GENERAL
OF ARKANSAS, ET AL. C A. 8th Cir. Certiorari denied. Re-
ported below: 16 F. 3d 1227.
No. 93-8766. IRVINE v. TEXAS, Ct App* Tex., 1st Dist. Cer-
tiorari denied. Reported below: 857 S, WL 2d 920*
ORDERS 1209
512 U. S. June 13, 1994
No. 98-8768. PUQUA u GOMEZ, DIRECTOR, CALIFORNIA DE-
PARTMENT OF CORRECTIONS. C. A. 9th Cir. Certiorari denied.
Reported below: 10 F. 3d 808.
No. 98-8769. JACKSON u SHALALA, SECRETARY OF HEALTH
AND HUMAN SERVICES. C. A. 7th Cir. Certiorari denied. Re-
ported below: 12 F. 3d 1100.
No. 98-8771. EDWARDS v. HARGETT, WARDEN. C. A. 10th
Cir. Certiorari denied. Reported below: 9 F. 3d 1557.
No. 93-8788. EVANS v. NEW YORK. App. Div., Sup. Ct. N. Y.,
1st Jud. Dept. Certiorari denied. Reported below: 199 App.
Div, 2d 191, 605 N. Y, S. 2d 287.
No, 93-8793. MURPHY u MAASS, SUPERINTENDENT, OREGON
STATE PKNITRNTIARY. Ct. App. Ore. Certiorari denied. Re-
ported below: 122 Ore. App. 376, 857 P. 2d 890.
No. (W 8795. LYON v. TEXAS. Ct. Grim. App. Tex. Cer-
tiorari denied. Reported below: 872 S. W, 2d 732.
No, 93-8796. PRICE u CONNECTICUT. Sup. Ct. Conn. Cer-
tiorari denied.
No. 98-8799. STRINGER u MISSISSIPPI. Sup. Ct. Miss. Cer-
tiorari denied. Reported below: 627 So. 2d 326.
No, !«- 8800. GOPP u BURTON ET AL. C. A. 8th Cir. Cer-
tiorari denied. Reported below: 7 F. 3d 734.
No, 98-8801. HOZDISH v. TYRA ET AL. C, A. 5th Cir. Cer-
tiorari denied. Reported below: 12 F. 3d 208.
Na («J-«8o:t RUPFIN v, MEAOIIUM, COMMISSIONER, CONNECT-
ICUT DKPAKTMKNT OF CORRECTION, BT AL. C. A. 2d Cir Cer-
tiorari denied* Reported below: 17 F. 3d 391.
No, 98-8805. MORRIS u PERLGS, C. A. 6th Cir. Certiorari
denied.
No, 93-8810. DBA u PENNSYLVANIA ET AL. C. A. 3d Cir.
Certiorari denied. Reported below: 14 F. 3d 47.
No. 98-8813. JOHNSON ET ux. u STATE FARM GENERAL
LVSURANOK Co. C. A. 5th Cir. Certiorari denied. Reported
below: 14 F. 3d 58.
1210 OCTOBER TERM, 1993
June 13, 1994 512 II. S.
No. 93-8818. DESMOND u NORDBERG ET AL. App, Ot Mass.
Certiorari denied. Reported below: 36 Mass. App, 1104, 629
N. E. 2d 1016.
No. 93-8820. RODENBAUGH v. GERSON. C. A. 3d Cir. Oer-
tiorari denied. Reported below: 14 F. 3d 49.
No. 93-8827. YOUNG v. PENNSYLVANIA. Super Ct Pa. Oer-
tiorari denied.
No. 93-8830. BELL ET AL, u COUGHLIN, COMMISSIONER. NEW
YORK STATE DEPARTMENT OF CORRECTIONAL SKRVICKS, ET AL.
C. A. 2d Cir. Certiorari denied. Reported below: 17 F. M 390.
No. 93-8831. BARNES u GARKTNER ET AL. Ct. App. Ohio,
Cuyahoga County* Certiorari denied.
No. 93-8832. WIESE u UNITED STATES, C. A. 8th Cir, Ger-
tiorari denied. Reported below: 15 R 3d 100*
No. 93-8837. CHAMBERS v. UNITED STATES. C. A. 6th Cir,
Certiorari denied. Reported below: 16 R 3d 1221.
No. 93-8853. WHITLEY v. FLORIDA, Sup, Ct. Fla. Certiorari
denied. Reported below: 630 So. 2d 1103.
No, 93-8869. PENALES GUERRERO u CALIFORNIA. Ct. App.
Cal, 2d App. Dist Certiorari denied. Reported below: 10
Cal. App. 4th 401, 23 Cai Rptn 2d BOS.
No. 93-8861. COOLEY ET ux. u KHAFF BT AL* Sup, CL Ala.
Certiorari denied. Reported below: 639 So. 2d 960*
No. 98-8864, HILL % CARUSO, WAEDEN. C A, 6th Cir. Car-
tiorari denied*
No, 93-8865. JOHNSON u WHITAKER. C. A, 5th Cir. Cer-
tiorari denied. Reported below: 20 F. 3d 466*
No. 93-8866, THOMAS u ZAVARAS, EXKOITTIVK DIHKCTOK,
COLORADO DEPARTMENT OP CORRECTIONS, ET AL. Cl A. 10th
Cir, Certiorari denied. Reported below: 16 F. 3d 417,
No. 93-8870* SWINEY u HARRELSON, WARPEH, ET AL, C, A.
llth Cir* Certiorari denied.
ORDERS 1211
512 11 S. June 13, 1994
No, 93-8874. TRAINA v. MISSOURI. Sup, Ct. Mo. Certiorari
denied.
No. 98-8876. HERRERA v. NEVADA. Sup. Ct. Nev. Certio-
rari denied. Reported below: 109 Nev. 1400, 875 R 2d 1062.
No. 93-8909. MIDDLETON v. UNITED STATES. C. A. 4th Cir.
Certiorari denied. Reported below: 14 F. 3d 598.
Na 93-8017, DOLAN v. MAASS, SUPERINTENDENT, OREGON
STATE PENITENTIARY. C. A. 9th Cir. Certiorari denied. Re-
ported below: 21 R 3d 1112.
No. 93-8926, BETKA u OREGON DEPARTMENT OF REVENUE
KT AL. Sup. Ct. Ore, Certiorari denied. Reported below: 318
Ore. 55, 861 E 2d 1018.
No. 93-8927. BARRING u UNITED STATES. C. A. D. C. Cir.
Certiorari denied* Reported below: 8 R 3d 71.
No, 93-8935. STROLLAE v. UNITED STATES. C. A. llth Cir.
Certiorari denied. Reported below: 10 F. 3d 1574.
No, 98-8941. ROSAS v. UNITED STATES. C. A. 7th Cir. Cer-
tiorari denied. Reported below: 16 R 3d 1226.
Na 98-8945. TAYLOR v. LUNGREN, ATTORNEY GENERAL OF
CALIFORNIA, ET AL. C. A, 9th Cir. Certiorari denied.
No, 93-8950, PULLER v. UNITED STATES. C. A. 7th Cir.
Oertioniri denied. Reported below: 15 F. 3d 646.
No. 98-8970. CASIMONO v. HUNDLEY, WARDEN, ET AL. C. A.
3d Cir* Certiorari denied.
No, JW-H986. COLUNS u UNITED STATES- C. A. 6th Cir.
Certiorari denied, Reported below: 19 F. 3d 1434.
No, 93-0008* JONES u UNITED STATES. C, A, llth Cir. Cer-
tiorari denied* Reported below: 15 R 3d 1096,
No, 98-9013. JOHNSON v. UNITED STATES. C. A. 8th Cir.
Ortiorari denied. Reported below: 12 R 3d 760.
No, 98-9019, DAVIS u UNITED STATES. C. A. 4th Cir. Cer-
tiorari denied. Reported below; 17 R 3d 1435.
1212 OCTOBER TERM, 1993
June 13, 1994 512 U.S.
No. 93-9020. CARPER u UNITED STATES. C. A. 10th Cir.
Certiorari denied. Reported below: 16 F. 3d 417,
No. 93-9031. ONOKPACHERE v. UNITED STATES. C. A, llth
Cir. Certiorari denied. Reported below: 14 R 3d 59.
No. 93-9044. JOHNSON u UNITED STATES. C. A, 6th Cir.
Certiorari denied. Reported below: 9 F. 3d 506.
No. 93-9056. MCCARTHY v. HEDRICK, WARDEN. C- A. 8th
Cir. Certiorari denied.
No. 93-9083. SAMUELS u UNITED STATES. C. A. 6th Cir.
Certiorari denied. Reported below: 16 R 3d 122 L
No. 93-9092. TAYLOR v. UNITED STATES. C. A, 5th Cir.
Certiorari denied. Reported below: 16 R 3d 1215.
No. 93-9101. BADARACCO u UNITED STATES. C. A. 9th Cir,
Certiorari denied. Reported below: 17 R 3d 396.
No. 93-9104. PLORES ET ux. u UNITED STATES. C A. 7th
Cir. Certiorari denied. Reported below: 15 R 3d 632.
No. 93-9107. GOMEZ v. UNITED STATES. C. A, 5th Cir. Cer-
tiorari denied. Reported below: 16 R 3d 1214.
No. 93-9115. MOSES u UNITED STATES. C. A. 8th Cir. Cer-
tiorari denied. Reported below: 15 F- 3d 774,
No* 93-9119. AUSTIN u PETERS ET AL. C, A, 6th Cir, Cer-
tiorari denied.
No, 98-9120, MERIT u UNITED STATES. C. A, 6th Cir, Cer-
tiorari denied,
No. 93-9129. DIXON u UNITED STATES, C, A, 5th Cir, Cer-
tiorari denied. Reported below; 19 R 3d 15.
No. 98-9132. TIPTON ET AL. u UNITED STATES. C. A, 6th
Cir, Certiorari denied- Reported below: 11 R 3d 602.
No. 98-914L GOSHEN tt UNITED STATES* C A* 6th Cir.
Certiorari denied. Reported below: 14 R 3d 602.
No, 93-9156. KEITH u MCCAUGHTRY, WABDER C. A* 7th Cir.
Certiorari denied. Reported below: 1 R 3d 1244.
ORDERS 1213
512 U. S. June 13, 1994
No. 93-960. MAYCO OIL & CHEMICAL Co. ET AL. v. TRANS-
TECH INDUSTRIES, INC., ET AL. CX A. 3d Cir. Certiorari denied.
JUSTICE BLACKMUN took no part in the consideration or decision
of this petition. Reported below: 5 F. 3d 51.
No. 98-1383. ILLINOIS v. PERKINS. App. Ct. 111., 5th Dist.
Motion of respondent for leave to proceed in forma pauperis
granted, Certiorari denied. Reported below: 248 111. App. 3d
762, 618 N. E. 2d 1275.
No, 98-1490, RENT STABILIZATION ASSOCIATION OP NEW
YORK CITY, INC., ET AL. v. HIGGINS ET AL. Ct. App. N. Y. Mo-
tion of Pacific Legal Foundation for leave to file a brief as amicus
curiae granted, Certiorari denied. Reported below: 83 N. Y. 2d
156, 630 N. E. 2d 626.
No. 93-1674. TRUSTEES OF COLUMBIA UNIVERSITY IN THE
CITY OF NEW YORK ET AL. u KARIBIAN ET AL. C. A. 2d Cir.
Motions of Chamber of Commerce of the United States of
America* Commission on Independent Colleges and Universities,
and Equal Employment Advisory Council et aL for leave to file
briefs as amid curiae granted, Certiorari denied. Reported
below: 14 R 8d 778.
No, 93-5044. MULLET u ARIZONA. Ct* App. Ariz. Certiorari
denied- JUSTICE O'CONNOR took no part in the consideration or
decision of this petition.
No, 93-8855. KING u BOONE, WARDEN, ET AL. C. A. 10th
Cir. Motion of petitioner to defer consideration of petition for
writ of certiorari denied. Certiorari denied. Reported below:
16 R 3d 416,
No. 93-7545* HlLL u TEXAS* Ct, Grim. App. Tex.;
No. itt-8(>K8. ROMINE u ZANT, WARDEN. Sup. Ct Ga.;
No, 93-8728. SCOTT u OHIO, Ct. App. Ohio, Cuyahoga
County;
No. 93-8730. GILES u ALABAMA. Sup. Ct, Ala,; and
No. 93-9049. PALMER u CLARKE, WARDEN. C, A. 8th Cm
Oortiorari denied. Reported below: No. 98-8730, 632 So, 2d 577;
No, 98*4)049, 12 R 3d 781.
JUSTICE BLACKMUN, dissenting.
Adhering to my view that the death penalty cannot be imposed
fairly within the constraints of our Constitution, see my dissent
1214 OCTOBER TERM, 1993
June 13, 1994 512 U. S.
in Callins v. Collins, 510 US. 1141, 1143 (1994), I would grant
certiorari and vacate the death sentences in these cases.
No. 93-9506 (A-1028). CRANK v. SCOTT, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION.
C. A. 5th Cir. Application for stay of execution of sentence of
death, presented to JUSTICE SCALIA, and by him referred to the
Court, denied. Certiorari denied. JUSTICE STEVENS and JUS-
TICE GINSBURG would grant the application for stay of execution,
Reported below; 19 R 3d 172,
JUSTICE BLACKMUN, dissenting.
Adhering to my view that the death penalty cannot be imponed
fairly within the constraints of our Constitution, see my dissent
in Callins v. Collins, 510 U.S. 1141, 1148 (1994), I would grant
the application for stay of execution and the petition for certiorari
and would vacate the death sentence in this cane.
Rehearing Denied
No, 93-1015. CARDWELL u UNITED STATES, 511 US. 1051;
No. 93-1269, YOUNG IN HONG v. CHILDREN'S MEMORIAL HOS-
PITAL, 511 U.S. 1005;
No. 93-1404. MARTIN v. FLORIDA POWER CORK, 511 II S. 1053;
No, 93-1531. POLYAK v. HAMILTON, JUDGE; POLYAK; a RKFORD
EVANS & SONS; POLYAK v. BOSTON ET AJU; POLYAK *;. HULEN
ET AL.; POLYAK v. HULEN; and POLYAK v. STACK ET AL.» 511
U. S, 1053;
No. 93-5455. SIMS u UNITED STATES, 511 U. S, 1034;
No. 93-7484. NEWSOME u PKTKRS, DIRECTOR, ILLINOIS DE-
PARTMENT OF CORRECTIONS, ET AL,, 510 U S. 1198;
No. 93-7828. YiTREP v. WORKERS* COMPENSATION AJ>I»KALS
BOARD OP CALIPORNIA ET AL.¥ 511 U* S. 1036;
No. 93-7882. JIMENEZ u MGMf 511 U, S. 1022;
No. 93-7099. IN RE SANDERS, 511 II S, 1029;
No. 93-8088. CLAY u MURRAY, DIKKCTOH, VIRGINIA DEPART-
MENT OP CORRECTIONS, 611 U.S. 1065;
No. 93-8046. DINGLE u CRAWFORD ET AL,, 511 U S, 1055;
No. 98-8051. WHITEHEAD u BRADLEY UNIVERSITY ET AL*(
511 U.S. 1055;
No. 93-8091. BAKER u LOFATIN, MILLER, FHKKDMAN, BLUE-
STONE, ERLICH, ROSEN & BARTNICK, ATTORNEYS AT LAW, R C.,
511 U.S. 1056;
ORDERS 1215
U. S. June 13, 14, 1994
No. 93-8113. ARNETT v. KELLOGG Co., 511 U. S. 1040;
No. 93-8159. BROWN-BRUNSON ET vra v. HUNTER, SUPERIN-
TENDENT, BALTIMORE COUNTY BOARD OF EDUCATION, ET AL.,
511 U.S. 1057; and
No. 93-8342. BOALBEY v. ROCK ISLAND COUNTY ET AL., 511
U. S. 1076. Petitions for rehearing denied.
No. 93-7098. RICHLEY v. NORRIS, DIRECTOR, ARKANSAS DE-
PARTMENT OP CORRECTION, 511 U. S. 1063;
No. 93-7167. HOLMES ET AL. u NORRIS, DIRECTOR, ARKANSAS
DEPARTMENT OF CORRECTION, 511 U. S. 1063;
No. 93-7441. JEFFERSON v. ZANT, WARDEN, 511 U. S. 1046; and
No. 93-7730. ELKINS v. SOUTH CAROLINA, 511 U.S. 1063.
Petitions for rehearing denied. JUSTICE BLACKMUN dissents
from the denial of rehearing. He would grant the petitions for
rehearing, grant the petitions for certiorari, and vacate peti-
tioners' death sentences. See Callins v. Collins, 510 U. S. 1141,
1143 (1994).
No. 93-7178. DAVIS u UNITED STATES, 510 U. S. 1127. Motion
for leave to ftle petition for rehearing denied.
JUNE 14, 1994
Miscellaneous Order
No. 93-1984, IN RE LAWSON ET AL. Motion of petitioners for
oxpoditod review granted. Petition for writ of mandamus denied.
Certiorari Denied
No. 93-9638 (A-1036). LAWSON v. DIXON, WARDEN. C. A. 4th
Cir. Application for stay of execution of sentence of death, pre-
sented to THE CHIEF JUSTICE, and by him referred to the Court,
denied. Certiorari denied. Reported below: 25 F. 3d 1040.
JUSTICE BIACKMUN, dissenting.
Despite alleged procedural problems, I find petitioner's consti-
tutional challenge to the gas chamber to be a serious one. Only
four States, Arizona, California, Mississippi, and North Carolina,
still use the gas chamber as a method of execution. Its cruelty
has been attested to on more than one occasion. See, e. g.f the
dissenting opinion of Justice Marshall, joined by Justice Brennan,
in Gray v, Lucas, 463 U. S. 1287, 1240 (1983).
1216 OCTOBER TERM, 1993
June 14, 16, 17, 20, 1994 512 11 S.
In addition, adhering to my view that the death penalty cannot
be imposed fairly within the constraints of our Constitution, aee
my dissent in Callins v. Collins, 510 U. S. 1141, 1143 (1994), I
would grant the application for stay of execution and the petition
for certiorari and would vacate the death sentence in this case.
JUNE 16, 1994
Dismissals Under Rule 46
No, 98-1241. VIRTUAL MAINTENANCE, INC. v. COMPUTER-
VISION CORP.; and
No. 98-1826. COMPUTEKVISIOX CORE v. VIRTUAL MAINTE-
NANCE, INC. C. A. 6th Cir. Certiorari dismissed under thi«
Court's Rule 46-1- Reported below: 11 R M 660,
JUNE 17, 1994
Dismissal Under Rule 46
No. 93-6026, GoscH v. SCOTT, DIRECTOR, TEXAS DEPART-
MENT OP CRIMINAL JUSTICE, INSTITUTIONAL DIVISION. €1 A,
5th Cir- Certiorari dismissed under this Court'n Rule 46, Re-
ported below: 8 R 3d 20.
JUNE 20, 1994
Certiorari Granted — Vacated and
No, 93-81. HART u STOCKMAR ENERGIE, INC., DBA L, R C.
POWER CORE Ct. App* CaL, 8d App. Disk Certiorari granted,
judgment vacated, and case remanded for farther eorusideraimn
In light of Livada* v. Bmd$haw9 p« 107*
No, 98-1068. ARMADOEES DE CABOTAJE, S. A. v. YOUNG. Ck
App. La., 4th Cir. Certiorari granted^ judgment vacated, and
case remanded for further consideration in light of ftawlett v,
Bir/cdale Shipping Ca, ante, p. 92, Reported below: 617 So. 2d
517,
No, 93-1293. SCINDIA STEAM NAVIGATION Co, ET AU v. RXCXS&
C. A. 9th Cir. Certiorari granted, judgment vacated, and
remanded for further consideration in light of Hewlett v,
Shipping Ca, ante, p. 92* Reported below: 8 R 3d 1442,
ORDERS 1217
512 U. S. June 20, 1994
No. 9S-5044, WRIGHT u VIRGINIA. Sup. Ct. Va. Motion of
petitioner for leave to proceed in forma paupens granted. Cer-
tiorari granted, judgment vacated, and case remanded for further
consideration in light of Simmons v. South Carolina, ante, p. 154.
Reported below: 245 Va. 177, 427 S. E. 2d 379.
No. 93-8309, RAMDASS v. VIRGINIA. Sup. Ct. Va. Motion of
petitioner for leave to proceed in forma pauperis granted. Cer-
tiorari granted, judgment vacated, and case remanded for further
consideration in light of Simmons v. South Carolina, ante, p. 154,
Reported below: 246 Va. 413, 437 S. E. 2d 566.
Miscellaneous Orders
No. _ _ _. CABAL v. L T., INC.; and
No. _- — . THREATT ET AL. u FULTON COUNTY. Motions
to direct the Clerk to file petitions for writs of certiorari out of
time denied.
No, — - - — „ BURDEN u UNITED STATES. Motion of Jon M.
Hunter for leave to intervene in order to file petition for writ of
certiorari denied.
No, — --— . DUNEIN ET AL. U LOUISIANA-PACIFIC CORP.
ET AL. Motion to direct the Clerk to file petition for writ of
certiorari denied.
No* A-96S. MORRISON u UNITED STATES. Application for
bail, addressed to JUSTICE BLACKMUN and referred to the
Court, denied,
No, 0*1379. IN RE DISBARMENT OF FRESCO. Disbarment en-
tered. [For earlier order herein, see 511 U. S. 1016,]
No. D-1410. IN RE DISBARMENT OP VANDER VORT. It is or-
dered that Wayne A. Vander Vort, of Minneapolis, Minn., be sus-
pended from the practice of law in this Court and that a rule
issue, returnable within 40 days, requiring him to show cause why
he should not be disbarred from the practice of law in this Court.
No, D-141L IN RE DISBARMENT OF KARSCEL It is ordered
that Stephen Elias Karsch, of New York, N. Y.f be suspended
from the practice of law in this Court and that a rule issue,
returnable within 40 days, requiring him to show cause why he
should not be disbarred from the practice of law in this Court.
1218 OCTOBEK TERM, 1993
June 20, 1994 5 12 U.S.
No. 93-180. BOCA GRANDE CLUB, INC. v. FLORIDA POWER &
LIGHT Co., INC., 511 U. S. 222. Motion of respondent to relax
costs denied.
No. 93-9098. Doss u CHEVY CHASE SAVINGS, F. S, B. Ct.
App. D. C. Motion of petitioner for leave to proceed in forma
pauperis denied. Petitioner is allowed until July 11, 1994, within
which to pay the docketing fee required by Rule 38(a) and to
submit a petition in compliance with Rule 33 of the Rules of
this Court,
No. 93-9320. IN RE FRANZ. Petition for writ of habea« cor-
pus denied.
No. 93-8925, IN RE JACKSON; and
No. 93-9080, IN RE EISMAR Petitions for write of manda-
mus denied*
No. 93-8977, IN RE AL'SHABAZZ. Petition for writ of prohibi-
tion denied,
Certiorofri Granted
No, 93-1151. FEDERAL ELECTION COMMISSION v. NRA POLIT-
ICAL VICTORY FUND ET AL, C. A* D. C. Cir. Oertlomri granted.
JUSTICE GINSBURC took no part in the consideration or decision
of this petition. Reported below: 6 F. 3d 821.
No. 98-1456, U S. TERM LIMITS, INC., ET AL. u THORNTON*
ET AL.; and
No. 93-1828. BRYANT, ATTORNEY GENERAL OP ARKANSAS v.
HILL ET AL, Sup. Ct Ark, Motions of Citizens for Term Limits
et ai and Washington Legal Foundation et si for to file
briefs as amid curiae in No. 93~1828 grunted. C&ztiorari
granted* eases consolidated, and a total of one hour allotted for
oral argument Reported below: 316 Ark 251, 872 S, W, 2d 949.
Certioran Denied
No, 92-1831. NORTHERN KENTUCKY WteLPAEB
ET AL. v. JONES, GOVERNOR OF KENTUCKY. (X A, 6th Cir* Car-
tiorari denied. Reported below: 985 F. 2d 561*
No, 98-569. PERMAN, EXECUTRIX OF THE ESTATE OF PAGLIN,
DECEASED u UNITED STATES. C- A, 5th Cm Certiorari denied,
Reported below: 998 P. 2d 485-
ORDERS 1219
612 U. S. June 20, 1994
No. 93-651. FEDERAL DEPOSIT INSURANCE CORPORATION v.
SHRADER & YORK ET AL. C. A. 5th Cir. Certiorari denied. Re-
ported below: 991 R 2d 216.
No. 93-1313. WHITE v. RUNYON, POSTMASTER GENERAL.
C, A. 4th Cir. Certiorari denied. Reported below: 8 F. 3d 823.
No. 93-1327. BRANCH ET AL. u TUNNELL, INDIVIDUALLY AND
AS SPECIAL AGENT OF THE BUREAU OP LAND MANAGEMENT.
C. A. 9th Cir, Certiorari denied. Reported below: 14 F. 3d 449.
No, 93-1358. JACKSON v. HOYLMAN ET AL. C. A. 6th Cir.
Certiorari denied. Reported below: 12 F. 3d 212.
No. 93-1422. WEISSICH ET AL. u UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 4 F. 3d 810.
No, 93-1446. CRETAN, WIDOW OF CRETAN, ET AL. v. DIREC-
TOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, ET AL.
C- A, 9th Cir. Certiorari denied. Reported below: 1 R 3d 843.
No, 93-1471. SOMENSKI ET AL. U COMPANHIA DE NAVEGACIO
LLOYD BKASILEIBO. C. A. 3d Cir. Certiorari denied. Reported
below: 9 P. 3d 1541,
No. 03-1475. WONG v. UNITED STATES. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 2 F, 3d 927.
No. 93-1522. MABAVILLA ET AL. u UNITED STATES. C. A. 1st
Cir, Certiorari denied. Reported below: 7 F. 3d 219.
No, 93-1540. McNiCHOLS u COMMISSIONER OF INTERNAL
RKVKNUK. C. A. 1st Cir. Certiorari denied. Reported below:
18 R 3d 432*
No, 93-1560. HUFF ET AL. u UNITED STATES, C, A. 9th Cir.
Certiorari denied. Reported below: 10 F- 3d 1440*
No. 93-1564. ALASKA ET AL. u UNITED STATES; and
No, 93-1689. UNITED STATES v. ALASKA ET AL. C. A. 9th
Cir. Certiorari denied. Reported below: 8 F. 3d 33.
No, 93-1582. LEBLANC ET AL, u LOUISIANA DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT. Sup. Ct. La. Certiorari
denied. Reported below: 626 So, 2d 1151.
1220 OCTOBER TERM, 1993
June 20, 1994 512 II. S.
No. 93-1625. NORTH STAR ALASKA HOUSING CORP. v. UNITED
STATES ET AL. C. A. 9th Cm Certlorari denied. Reported
below: 14 R 3d 36.
No. 93-1652. CALDERON, WARDEN, ET AL. v. HAMILTON.
C. A. 9th Cir. Certlorari denied. Reported below: 17 F. 3d 1149.
No. 93-1692. COUNTY OF SAN DIEGO ET AL. u MURPHY.
C A. 9th Cir. Certiorari denied. Reported below: 9^0 R 2d
1518.
No. 93-1697. REILLY v. TUCSON ELECTRIC POWER Co- ET AL.
C. A. 9th Cir. Certiorari denied. Reported below: 8 R 3d 1370.
No. 93-1702. HIDALGO u PEATHERLITE BUILDING PRODUCTS
CORP. C. A. 5th Cm Certiorari denied. Reported below: 14
R 3d 52.
No. 93-1705. HALL ET AL. v. SAN BERNARD ELECTRIC COOP-
ERATIVE, INC., ET AL. C. A. 5th Cir. Certiorari denied. Re-
ported below: 14 F. 3d 54.
No, 93-1708. WABDELL u TRACY. Ct. Sp> App. Md* Gertie**
ran denied. Reported below: 97 McL App» 772.
No. 93-1709. NEW ORLEANS 2000 PARTNERSHIP v, BOARD OF
COMMISSIONERS OF THE NEW ORLEANS EXHIBITION HALL AU-
THORITY, Ct. App. La., 4th Cir. Certiorari denied. Reported
below: 625 So, 2d 1070,
No. 98-1714. KEFLJNGER v. WILSON ET AL* C. A* 6th Cir.
Certlorari denied, Reported below: 12 R 3d 212-
No, 98-1716. PROFILE MANUFArTORlNG, INC., ET AL, u
ET AL. Cir* Ct, Maeomb County, Mich* Certlorari denied,
No. 93-1717, SNYDER u CONSOHDATKD PKKK;HT\VAYS, INC.,
ET AL. C. A. 9th Cir. Certiorari denied. Reported below: 15
R Ed 1089.
No, 93-1719* LINDMARK u PEHNSYLYAMIA BOAED OP LAW
EXAMINERS. Sup- Ct. Pa. Certiorari denied.
No, 98-1720, EVANS v, WEIR ET AL* Ct, App. Cat, 2d App,
Dist Certiorari denied,
ORDERS 1221
612 U. S. June 20, 1994
No. 93-1722. MORGAN u FORD ET AL. C. A. llth Cm Cer-
tiorari denied. Reported below: 6 F. 3d 750.
No. 93-1724. CABAZON BAND OF MISSION INDIANS ET AL. u
NATIONAL INDIAN GAMING COMMISSION ET AL. C. A. D. C. Cir.
Certiorarl denied. Reported below: 14 F. 3d 633.
No. 98-1726. TARRANT SERVICE AGENCY, INC. v. AMERICAN
STANDARD, INC., DBA TRANE Co. C. A. 6th Cir. Certiorari de-
nied. Reported below: 12 F. 3d 609.
No. 93-1732. GILDER u AETNA LIFE & CASUALTY. C. A. 5th
Cir, Certiorari denied. Reported below: 9 F. 3d 1546.
No. 93-1738. MARINE RECREATIONAL OPPORTUNITIES, INC. v.
HERMAN ET ux. C. A. 2d Cir. Certiorari denied. Reported
below: 15 F. 3d 270.
No, 93-1739. THOMPSON u VIRGINIA. C. A. 4th Cir. Certio-
rari denied. Reported below: 16 F. 3d 576.
No. 93-1740. KUHN u PHILIP MORRIS U. S. A. C. A. 3d Cir.
Certiorari denied. Reported below: 16 F. 3d 404.
No. 93-1741. SEARS, ROEBUCK & Co. v. NEWPORT LTD. C. A.
5th Cir. Certiorari denied. Reported below: 6 F. 3d 1058.
No. 93-1744. CHOATE u TRW, INC. C. A, D. C. Cir. Certio-
rari denied. Reported below: 14 F. 3d 74.
No. 93-1754. DANESHMAND u R. B. HAZARD, INC., ET AL.
a A. 4th Cir, Certiorari denied. Reported below: 16 F. 3d 409.
No, 98-1762. LARSON ET AL. u SANFT ET AL. Sup. Ct. Minn.
Certiorari denied*
No. 93-1766. U S* ANCHOR MANUFACTURING, INC. u RULE
INDUSTRIES, INC., ET AL, C. A, llth Cm Certiorari denied.
Reported below: 7 R 3d 986.
No. 93-1771. CASILLAN ET AL. u REGIONAL TRANSPORTATION
DISTRICT ET AL- C- A. 10th Cir. Certiorari denied. Reported
below; 16 F. 3d 415.
No, 98-1774. BEHRENS u SHARP ET AL. C. A. 5th Cir. Cer-
tiorari denied. Reported below: 15 F. 3d 180.
1222 OCTOBER TERM, 1998
June 20, 1994 512 U.S.
No, 93-1777. LACHANCE v. RENO, ATTORNEY GENERAL, ET
AL. C. A. 2d Cir. Certiorari denied. Reported below: 13 F.
3d 586.
No. 93-1778. SHAW u UNITED STATES. C. A, llth Gin Cer-
tiorari denied. Reported below: 12 F- 3d 217,
No. 93-1799. ROSENBAUM U ROSENBAUM ET AL. App, Ct.
111., 1st Dist. Certiorari denied, Reported below; 253 III App.
3d 1108, 667 N. E. 2d 747.
No. 93-1814. FLORES DE BRENES, INDIVIDUALLY, AND AS EX-
ECUTOR, ADMINISTRATOR, OR PERSONAL RKPRKSKNTATIVK OF
THE ESTATE OP BRENES, DECEDENT, ET AL. v. TRANSPORTKS
AEREOS NACIONALES, S* A., ET AL. Dist. Ct. App. Fla.f 3d Diat,
Certiorari denied. Reported below: 625 So, 2d 4.
No. 93-1822. O'CONNER t>. COMMONWEALTH EDISON 00, ET
AL. C. A. 7th Cir. Certiorari denied. Reported below: 13 F*
3d 1090.
No. 93-1838, KING tx BUTTON, WAKDKN. C. A. 6th Cir, Cer-
tiorari denied. Reported below: 17 R 3d 151.
No. 93-1856. CLAY u UNITED STATES, C. A. 5th Cir. Cer-
tiorari denied. Reported below; 16 R 3d 1216.
No. 93-1858. BREWER u ROGERS ET AL. Ct, App, Ga» Cer-
tiorari denied. Reported below: 211 Ga. App. 343, 430 S. E, 2d 77,
No. 93-1859. MEISLEE u GANNETT Co., INC. C A, llth Cir.
Certiorari denied. Reported below; 12 R 3d 1026.
No. 93-1861, PSI ENERGY, IMC. v. EXXON COAL USA, INC.,
ET AL. C. A, 7th Cir, Certiorari denied. Reported below: 17
R M 969.
No. 98-1864. KUHZAWA u WISCONSIN. Sup* Ct Wis* Certio-
rari denied. Reported below; 180 Win. 2d 502, 500 R W. 2d 712,
No, 93-487L ANTONIO URHBO0 v. UNITED STATES. C A. 5th
Cir. Certiorari denied. Reported below; 12 R 3d 1389.
No. 98-1888, BEUN v. KENTUCKY. Ct- App* Ky* Cartiorari
denied.
ORDERS 1223
512 U, S. June 20, 1994
No. 93-7932. CHAPMAN v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 7 F. 3d 66.
No. 93-8320, PIRON u DEPARTMENT OF ENERGY ET AL.
C. A, 9th Cir. Certiorari denied.
No. 93-8381. SMITH u UNITED STATES. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 16 F. 3d 413.
No. 93-8429. DERSHEM u UNITED STATES. C. A. 3d Cir.
Certiorari denied. Reported below: 16 F. 3d 406.
No. 93-8442. DARDEN-BEY ET AL. v. UNITED STATES. C. A.
8th Cir. Certiorari denied.
No. 93-8468* CHOATE u UNITED STATES. C. A. 4th Cir.
Certiorari denied. Reported below: 12 F. 3d 1318.
No. 93-8540. CALDWELL ET AL. u UNITED STATES. C. A. 3d
Cir, Certiorari denied. Reported below: 17 F. 3d 1428.
No. 93-8581. SEPULVEDA ET AL. u UNITED STATES (two
eases), C. A. 1st Cir. Certiorari denied. Reported below: 15
F. 3d 1216 (first case) and 1161 (second case).
No. 93-8625. GooDLEY u UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 14 F, 3d 54.
No. 93-8654. SWORD u SHALALA, SECRETARY OF HEALTH AND
HUMAN SERVICES. C. A. 6th Cir. Certiorari denied.
No. 93-8656. TORRES~TIRADO u UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 8 F. 3d 236.
No, 93-8687. MORRIS u GRAVEN ET AL. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 7 F. 3d 234.
No. 9S-8807, SULE u UNITED STATES. C, A. 2d Cir. Cer-
tiorari denied. Reported below: 14 F. 3d 590.
No. 93-8840. MANUEL L. v. CALIFORNIA. Sup. Ct. Cal. Cer-
tiorari denied. Reported below: 7 Cal. 4th 229, 865 R 2d 718.
No, 93-8867. ENGRON u DEPARTMENT OF LABOR. C. A. 7th
Cir. Certiorari denied. Reported below: 9 R 3d 112.
No. 98-8871. SMITH u UNITED STATES. C. A. 10th Cir. Cer-
tiorari denied. Reported below: 16 F. 3d 417.
1224 OCTOBER TERM, 1993
June 20, 1994 612 11 S.
No. 93-8877. WILSON u TEXAS. Ct. App. Tex.» 4th Dist.
Certiorarl denied.
No. 98-8890. ROCHON v. ROEMER, GOVERNOR OP LOUISIANA,
ET AL, Sup. Ct. La. Certiorarl denied. Reported below; 630
So. 2d 247.
No. 93-8891. MQSLEY v. VIRGINIA. Sup, Ct. Va. Certiorari
denied.
No. 93-8894. MLO v. NORTH CAROLINA. Sup, Ct N. C. Or-
tiorari denied. Reported below; 835 N. C. 358, 440 S. E. 2d 9H.
No. 93-8899. WILLIAMS v. SCOTT, DIRECTOR, TEXAS DEPART-
MENT OF CRIMINAL JUSTICE, LvsTrrrTioNAL DIVISION. (1 A.
5th Cir. Certiorari denied.
No. 93-8922. JONES v. TooMBSt WARDEN. C. A. 6th Cir.
Certiorari denied. Reported below; 16 P. lid 1220,
No. 93-8924. JACKSON u MAKEL, WARDEN. C* A* 6th Cir.
Certiorari denied,
No. 98-8929. DEANGELO v. UNITED STATES, C. A, Hth Cin
Certiorari denied. Reported below; 13 F. 3d 122H,
No. 93-8987. LAGATTA u UNITED STATES. C. A. 2<J Oir.
Certiorari denied. Reported below: 12 R 3d 1178.
No* 93-8980. CHEVALIER u WHITLKY, WAHHKN, ET AL, C A.
5th Cir. Certiorari denied.
No. 93-8981, STARNES u UNITED STATES, C A, 7th Cin
Certiorari denied. Reported below: 14 E 3d 1207.
No, 93-8991, ANDERSEN u ARIZONA. Ct. App. Ariz. Cer-
tiorari denied. Reported below: 177 Ariz. 881, 86A P. 2d iW4
No, 98-901& DRAKE u OHIO. Ct App. Ohio, Cuyahoga
County. Certiorarl denied.
No. 98-9036. DEARIXGEH v, BAUDOT ruv Sri>KKiNTKNr>KS'i,
TWIN RIVERS CORRECTIONS CENTER, C- A, 9th CIr. Certiorari
denied. Reported below: 12 R 3d 1106,
No. 98-9040* AKDITJ u RUNYON, POSTMASTKK OKN
C. A- 6th Cm Certiorarl denied* Reported below: 12 R 3d 21 L
ORDERS 1225
512 U. S. June 20, 1994
No. 93-9041. DEVITTO u SINGLETARY, SECRETARY, FLORIDA
DEPARTMENT OP CORRECTIONS, ET AL. Sup. Ct. Fla. Certiorari
denied. Reported below: 634 So. 2d 623.
No. 93-9042. COOPER ET AL. v. MISSOURI BOARD OF PROBA-
TION AND PAROLE ET AL. Sup. Ct. Mo. Certiorari denied. Re-
ported below; 866 S. W, 2d 135.
No. 93-9043. HAYES u UNITED STATES. C. A. 8th Cir. Cer-
tiorari denied. Reported below: 15 F. 3d 125.
No, 93-9062, ANDRISANI v. LUCAS ET AL. C. A. 9th Cir.
Certiorari denied. Reported below: 993 F. 2d 881.
No, 93-9065. BRIM v. WRIGHT, WARDEN, ET AL. C. A. 4th
Oir. Certiorari denied. Reported below: 14 F, 3d 593.
No. 93-9066. SHIRAE u OFFICE OF PERSONNEL MANAGEMENT.
C. A. Fed. Cir. Certiorari denied. Reported below: 17 F. 3d
1442.
No. 93-9067. SWASEY u CALIFORNIA. Ct. App. Cal., 2d App.
DM. Certiorari denied,
No. 93-9084. BELLUCCi u UNITED STATES. C. A. 9th Cir.
Certiorari denied. Reported below: 995 F. 2d 157.
No. 93-9086. WENDT u SCOTT, DIRECTOR, TEXAS DEPART-
MENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION. C. A.
5th Cir. Certiorari denied. Reported below: 20 F. 3d 1169.
No. 93-9093. BOYLAND v. UNITED STATES. C. A. 9th Cir.
Certiorari denied. Reported below: 17 F. 3d 396.
No, 93-9095. TOLVER v. UNITED STATES. C. A. 9th Cir.
Certiorari denied. Reported below: 17 F. 3d 397.
No. 93-9100. BACKSTROM u UNITED STATES. C. A. 3d Cir.
Certiorari denied. Reported below: 19 F. 3d 644.
No. 98-9105. HOLLON u UNITED STATES. C. A. 6th Cir.
Certiorari denied. Reported below: 16 F. 3d 1222.
NO. 93-9111. WlTHERSFOON ET AL. V. UNITED STATES. C. A.
4th Cir. Certiorari denied. Reported below: 16 F. 3d 414.
UCTUBJEK TJ&KM,
June 20, 1994 512 U. S.
No. 93-9124. TAYLOR v. UNITED STATES, a A, 2d Cir. Cer-
tiorari denied. Reported below: 18 F. 3d 55.
No. 93-9127. CAMPBELL v. FLORIDA. Dist. Ct, App, Fla.» l«t
Dist Certiorarl denied. Reported below: 688 So. 2d 1070,
No. 93-9138. BOSARGE v. DEPARTMENT OF EDUCATION ET AL,
C. A. llth Cir. Certiorari denied. Reported below: 5 F, 3d 1414,
No. 98-9142. GLASGOW u UNITED STATES. C, A. 4th Cir,
Certiorari denied. Reported below: 17 F. 3d I486.
No. 98-9143. JOYNER u UNITED STATES. C. A. llth Cir.
Certiorari denied. Reported below: 17 F, 3d 1439.
No. 93-9147. LOGAN v. UNITED STATES, C. A. 6th Cir. Or-
tiorari denied. Reported below: 16 R 3d 1222.
No. 98-9154. HAMILTON u UNITED STATES, C. A, II C, Cm
Certiorari denied. Reported below: 18 F, 3d 958.
No. 93-9168. OSPINA v. UNITED STATES. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 18 F, 3d 1832.
No. 93-9180. D EXTRAS u UNITED STATES. C. A. llth Cir,
Certiorari denied. Reported below: 16 F. 3d 123L
No, 93-9187, KLEIN u UNITED STATES, C, A. 8th Cir, Or-
tiorari denied. Reported below: 18 F, 3d 1182.
No. 93-9190. PARKER u UNITED STATES. C, A, 7th Cir, Cer-
tiorari denied. Reported below: 9 F. 3d 113.
No, 93-9200. DELBRIDGE ET ux. u NEW JERSEY DIVISION OF
YOUTH AND FAMILY SERVICES ET AL, C, A. 3d Gin Certiorari
denied. Reported below; 17 R 3d 1429,
No, 93-9209. TAVAKKZ v. UNITED C. A, llth Cir,
Certiorari denied. Reported below: 16 R 3d 1281.
No. 93-9210. STROPB u UNITED C, A. 3d Cir, Cer-
tiorari denied. Reported below; 14 E 3d 50.
No. 93-9211- DICKINSON u GOPALAN ET AL. C. A, 9th Cir*
Certiorari denied, Reported below: 19 F. 3d 1480.
No, 93-9213. CHAVES u UNITED STATES. C. A* llth Cir.
Certiorari denied. Reported below: 13 P. 3d 1464.
ORDERS 1227
512 U. S. June 20, 1994
No. 93-9215. SILVERS v. UNITED STATES. C. A. 10th Cir.
Certiorari denied. Reported below: 16 R 3d 1101.
No. 93-9232. WITHERSPOON v. REES, WARDEN. C. A. 6th Cir.
Certiorari denied.
No. 93-9236. ISANG u UNITED STATES. C. A. 5th Cir. Cer-
tiorari denied. Reported below: 14 R 3d 54.
No. 93-9252. FAULKNER v. WISCONSIN. Ct. App. Wis. Cer-
tiorari denied. Reported below: 181 Wis. 2d 369, 514 N. W. 2d
423.
No. 93-9277. JAMES u MANN, SUPERINTENDENT, SHAWAN-
GUNK CORRECTIONAL FACILITY. C. A. 2d Cir. Certiorari de-
nied. Reported below: 22 R 3d 1090.
No. 93-9306, HAWKINS v. ABRAMAJTYS, WARDEN. C. A. 6th
Cir. Certiorari denied.
No, 93-9312- GATLIN u SINGLETARY, SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS. C. A. llth Cir. Certiorari de-
nied. Reported below: 17 F. 3d 1438.
Na 93-9315. PREWITT u PARKE, WARDEN. C. A. 6th Cir.
Certiorari denied. Reported below: 16 R 3d 1221.
No. 93-9316, LAMPHEAR u ABRAHAMSON, WARDEN. C. A.
7th Cir- Certiorari denied.
No. 93-241. JAFFE u SNOW ET AL. Dist. Ct. App. Fla., 5th
Dist. Motions of Government of Canada, International Human
Rights Law Group et al, and Canadian Helsinki Watch Group for
leave to file briefs as amid curiae granted. Certiorari denied.
Reported below: 610 So. 2d 482.
No* 93-1033. CHANDLER u UNITED STATES. C. A. llth Cir.;
No. 93-4191. HICKS t>. TEXAS, Ct. Crim. App. Tex.;
No. §8-6220. JOHNSON u ILLINOIS. Sup. Ct 111.;
No* 93-7042- CoLViN-EL v. MARYLAND, Ct. App. Md.;
No, 98-KK23. VALDES u FLORIDA. Sup. Ct. Fla.;
No* JW-W83J). MILKE u ARIZONA. Sup. Ct. Ariz.; and
No. 93-8948* MoRDENTi v. FLORIDA. Sup. Ct. Fla. Certio-
rsri denied. Reported below: No. 98-1083, 996 P. 2d 1073; No.
98-6191, 860 S. W. 2d 419; No. 98-6220, 154 111. 2d 356, 609 N. E.
2d 294; No. 98-7042, 382 Md. 144, 630 A. 2d 725; No. 93-8823, 626
OCTOBER TEKM?
June 20, 1994 512 II S.
So. 2d 1316; No. 93-8839, 177 Ariz. 118, 865 R 2d 779; No. 9JJ-H943,
630 So. 2d 1080.
JUSTICE BLACKMUN, dissenting,
Adhering to my view that the death penalty cannot be imposed
fairly within the constraints of our Constitution, see my dissent
in Callins v. Collins, 510 U S. 1141, 1143 (1994), I would grant
certiorari and vacate the death sentences in these cases*
No. 93-1222. GARCIA ET AL. v. SPUN STEAK Co, C. A. 9th
Cir Certiorari denied. JUSTICE BLACKMI'N and JUSTICE
O'CONNOR would grant certiorari. Reported below: 998 R 2d
1480.
No. 93-1592. INTERNATIONAL HOUSE OF PANCAKKS v. PIN-
NOCK ET AL. C. A. 9th Cir. Certiorari before judgment denied.
No. 93-1710. PHILIP MORRIS INC., DBA PHILIP MORKSH
U. S. A. v. CABAERUS COUNTY, NORTH CAROLINA. Sup, Ct. M (1
Motions of Committee on State Taxation, North Carolina Citizen**
for Business and Industry, and Institute of Property Taxation for
leave to file briefs as amid granted. Certiorari denied,
Reported below: 835 N. C. 227, 4S6 S. E. 2d 82H.
No. 93-1742, LUMMI INDIAN TEIBB u WHATCOM r.orsTY.
WASHINGTON, ET AL. C, A, 9th Cir. Motion of Tribe
of Indians for leave to file a brief as
Certiorari denied. Reported below: 5 R 3d 1355.
No. 93-1833. CITIZENS FOR TEEM LIMITS a POLBY ET AL,
C* A, 9th Cir. Motion of petitioner to consideration of
petition for writ of eertiorari granted. Certiorari judg-
ment denied.
No, 93-1955. GRKGOIRK, ATTORXKY GENERAL OF WASHING-
TON, ET AL. v. THOHSTED ET ML C. A* 9th Cir, of peti-
tioners to expedite consideration of petition for writ of certiorari
granted, Certiorari before judgment denied*
No; 93-7724, BUCEAHAH tt UNITED C A* 8th Cir,
Certiorari denied, JUSTICE BLACKMUN and would grant
the petition for writ of eertiorari and remand the for reentry
of judgment and appointment of counsel Rejxrted below: 986
P. 2d 1372,
ORDERS 1229
512 U S. June 20, 1994
No. 93-8423. HOPKINS u UNITED STATES. C. A. 8th Cir.
Certiorari denied. JUSTICE BLACKMUN dissents and would grant
the petition for writ of certiorari and remand the case for reentry
of judgment and appointment of counsel Reported below: 972
P. 2d 856.
No. 93-8699. HAMILTON v. CALDERON, WARDEN, ET AL. C. A.
0th Cir. Motion of counsel to supplement the petition for writ of
certiorari denied. Certiorari denied. Reported below: 17 F. 3d
1149.
JUSTICE BLACKMUN, dissenting.
Adhering to my view that the death penalty cannot be imposed
fairly within the constraints of our Constitution, see my dissent
in Callin* v. Collins, 510 U. S. 1141, 1143 (1994), I would grant
certiorari and vacate the death sentence in this case.
Rrficarhig Denied
No, 93-594. WATTS u RICE, SECRETARY OF THE ARMY, ET AL.,
510 U. S. 1012;
No. 98-1386. RICHARDSON v. SHALALA, SECRETARY OF
HEALTH AND HUMAN SERVICES, ET AL., 511 U. S. 1033;
No- 03-1410. UNIVERSITY OF COLORADO, BOULDER, ET AL. u
DKHDKYN, 511 US. 1070;
No- 93-8066. WITCHEK u WITCHER, 511 U. S. 1055;
No, 98-8187. LAFLAMME v. GOMEZ, 511 U. S. 1073;
No. 93-B190. PRICE u SHALALA, SECRETARY OF HEALTH AND
HUMAN SERVICES, 511 U. S. 1073;
No. 93-8200. HAZZARD u CITY OF OAKLAND, CALIFORNIA,
BT AL,, 511 U. S. 1073;
No, 93-8208* ISRAEL, AKA BRYANT u UNITED STATES DIS-
TRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, 511 U, S.
1110; and
No, j«-8&'#. COCHBAN u MURRAY, DIRECTOR, VIRGINIA DE-
J'AUTMKNT OF CORRECTIONS, ET AL,, 511 U. S. 1075. Petitions
for rehearing denied.
No, 9&-7809. IN EB BENNETT ET AL., 511 U. S. 1016. Motion
for leave to file petition for rehearing denied.
1230 OCTOBER TERM, lim
June 22, 27, 11194 512 f.S
JUNE 22, 1994
Certioran Denied
No. 93-9361 (A-1017). DEPUTY r. TAYLOR, WARDEN. r. A.
3d Cir. Application for stay of execution of sent<*ne<* of death*
presented to JUSTICE KOUTKR, and by him referred to the* Court,
denied. Certiorari denied. JUSTICE STKVKNS ami Ji STJ< K
GINSBUEG would grant the application for stay of execution. Re-
ported below: 19 F. 3d 1485.
JUSTICE BLACKMUN, di^
Adhering to my view that the death penalty cannot be imposed
fairly within the constraints of our {Constitution, see my dissent
in Calling v. Collins, 510 US, 1141, 1143 (1994), 1 would «rant
the application for stay of execution and the petition for eertiorari
and would vacate the death sentence in this cast*.
No. 98-9675 (A-1077). DKITTY /<. SNYDKH, WAKDKN. r. A.
3d Cir, Application for stay of execution of sentence of death,
presented to JUSTICE SOUTKK, and by him referred to the ( *«urt,
denied, Certiorari denied.
JUSTICE BI-ACKMVN, di^eutiritr.
Adhering to my view that the death penalty cannot be imposed
fairly within the constraints of our Constitution, HW my duwcnt
in Calling v. Collins, 510 U.S. 1141, 1143 (HHM), 1 would
the application for ntay of execution and the petition for ewlioruri
and would vacate the death sentence in this cane*.
JUNE 27, 1994
Vacated a^id Rew&ndtfd ow Appeal
Na 93-45. NATIONAL INTKKFAITH CABLE CoALrn**N. INC\,
OPKHATINC; AS THE VISION INTKKKAITU SATKJ IJTK
ET AL. v. FEDERAL COMMUNICATION** COMMISSION ET AL, A{>*
peal from D. C. D* C. Judgment and for
farther consideration In light of Turner System,
Inc. v. FCCf ante, p. 622. Reported below; 819 K Supp. 82.
No* 93-1539. Lot-isiANA ET AL* v. HAYS KT AL, frtim
D. C. Wl D. La* Judgraent vacated and far further
consideration in light of Act 1 of the Extraordinary ^^
ORDERS 1231
512 U. S. June 27, 1994
aion of the 1994 Louisiana Legislature and the parties' filings in
this Court concerning Act 1. Reported below: 839 F. Supp. 1188.
Certiorari Granted,— Vacated and Remanded
No, 93-696. SHALALA, SECRETARY OP HEALTH AND HUMAN
SERVICES u OHIO STATE UNIVERSITY, DBA OHIO STATE HOSPI-
TALS. C* A. 6th Cir. Certiorari granted, judgment vacated, and
case remanded for further consideration in light of Thomas Jeffer-
son Univ. v. Shalala, ante, p. 504. Reported below: 996 F. 2d 122.
No. 98-697, SNAP-ON TOOLS CORK ET AL. u EULRICH ET AL.
Ct. App. Ore. Certiorari granted, judgment vacated, and case
rc»manded for further consideration in light of Honda Motor Co.
v. Oberg, ante, p. 415. Reported below: 121 Ore. App. 25, 853
P. 2d 1850.
No, 93-842. EHRLICH u CITY OF CULVER CITY ET AL. Ct.
App. Cal., 2d App. Disk Motion of Pacific Legal Foundation for
leave to file a brief as amicus curiae granted. Certiorari
granted, judgment vacated, and case remanded for further consid-
eration in light of Dolan v. City of Tigard, ante, p. 374. JUSTICE
BLACKMTIN, JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE
GINS Brut; would deny certiorari. Reported below: 15 CaL App.
4th 1737, 10 Cai Rptr. 2d 468.
No. 93-935. FREEMAN UNITED COAL MINING Co. v. JONES,
WIDOW OF JONES, DECEASED, ET AL. C. A. 7th Cir. Certiorari
granted, judffmont vacated, and case remanded for farther consid-
eration in light of Director, Office of Workers' Compensation Pro-
grams v. Greenwich Collieries, ante, p* 267. Reported below:
P. 2d 706.
No, 93-964. CONSOLIDATION COAL Co, u SKUKAN ET AL.
C, A, 6th Cir. Certiorari granted, judgment vacated, and case
remanded for further consideration in light of Director, Office of
Worker*' Compensation Programs v* Greenwich Collieries, ante,
p. 267, Reported below: 998 R 2d 1228.
No, 98-1584, HIEEAS v. NATIONAL RAILROAD PASSENGER
CORPORATION. C. A, 5th Cir. Certiorari granted, judgment va-
cated* and ease remanded for further consideration in light of
Hawaiian Airlines, Inc. v. Norris, ante, p. 246. Reported below:
10 R 3d 1142.
1232 OCTOBER TERM, 1993
June 27, 1994 512 U. S.
Miscellaneous Orders
No. . ESCAMILLA V. NEBRASKA;
No. . HOLLOWAY v. BURCH ET AL.; and
No. . KING v. VAUGHN ET AL. Motions to direct the
Clerk to file petitions for writs of certiorari out of time denied.
No. . SMITH u HARGETT, COMMISSIONER, MISSISSIPPI
DEPARTMENT OF CORRECTIONS, ET AL. Motion for leave to pro-
ceed in forma pauperis without an affidavit of indigency executed
by petitioner granted.
No. D-1381. IN RE DISBARMENT OF MEACHAM. Disbarment
entered. [For earlier order herein, see 511 U. S. 1027.]
No. D-1386. IN RE DISBARMENT OF HEIMAN. Disbarment en-
tered. [For earlier order herein, see 511 U. S. 1028.]
No. D-4403. IN RE DISBARMENT OF MOSTMAN. Paul Ian
Mostman, of Granada Hills, CaL, having requested to resign »K a
member of the Bar of this Court, it is ordered that his name be
stricken from the roll of attorneys admitted to practice before the
Bar of this Court. The rule to show cause, heretofore issued on
June 6, 1994 [511 U. S. 1140], is hereby discharged.
No. D-1412. IN RE DISBARMENT OP LEDEEBEEO, It IB or-
dered that Joshua Lederberg, of Babylon, N» Y.f be suspended
from the practice of law in this Court and that a rule issue,
returnable within 40 days, requiring him to show cause why he
should not be disbarred from the practice of law in this Court.
No, D-4413. IN RE DISBARMENT OF KILPATRICK. It is or-
dered that Donald E. Kilpatrick, of Houston, Tex., be suspended
from the practice of law in this Court and that a rule fotme,
returnable within 40 days, requiring him to show cause why he
should not be disbarred from the practice of law in this Court,
No. D-1414. IN RE DISBARMENT OF WOODSIDB. It is ordered
that Jon Lee Woodside, of Portland, Ore, be suspended from the
practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court,
No. D-1415. IN RE DISBARMENT OF MARGOLIS. It is ordered
ORDERS 1233
512 U. S. June 27, 1994
practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
No. D-1416. IN RE DISBARMENT OF MEYER. It is ordered
that Gary Kenneth Meyer, of New York, N. Y., be suspended from
the practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
No. 93-404. GUSTAPSON ET AL. v. ALLOYD Co., INC., FKA
ALLOYD HOLDINGS, INC., ET AL. C. A. 7th Cir. [Certiorari
granted, 510 U. S. 1176.] Motion of the Solicitor General for leave
to participate in oral argument as amicus curiae and for divided
argument granted,
No. 93-1286. AMERICAN AIRLINES, INC. v. WOLENS ET AL.
Sup. Gt. Ill [Certiorari granted, 511 U.S. 1017.] Motion of
the Solicitor General for leave to participate in oral argument as
amicus curiae and for divided argument granted.
No. 93-7407. O'NEAL u MCANINCH, WARDEN. C. A. 6th Cir.
[Certiorari granted, 511 U. S. 1017.] Motion of the Solicitor Gen-
eral for leave to participate in oral argument as amicus curiae
and for divided argument granted.
No. 93-823. NEBRASKA DEPARTMENT OF REVENUE v. LOEW-
KNSTKIN. Sup. Ct Neb, [Certiorari granted, 510 U. S. 1176.]
Motion of Dreyfus Corp. for leave to file a brief as amicus
curiae granted.
No, 93-1612. NATIONSBANK OF NORTH CAROLINA, N. A.,
ET AL. v. VARIABLE ANNUITY LIFE INSURANCE Co. ET AL.; and
No. 93-1613. LUDWIG, COMPTROLLER OF THE CURRENCY,
ET AL, t>. VARIABLE ANNUITY LIFE INSURANCE Co. ET AL. C. A.
5th Cm f CVrtiorari granted, 511 U. S. 1141 J Motion of petition-
ers to dispense with printing the joint appendix granted.
No. 93-1660, ARIZONA v. EVANS. Sup. Ct. Ariz. [Certiorari
granted, 511 U. S, 1126,] Motion for appointment of counsel
granted, and it is ordered that Carol A. Carrigan, Esq., of Phoe-
nix, Ari&, be appointed to serve as counsel for respondent in
1234 OCTOBER TERM, 1993
June 27, 1994 512 U. S.
No. 93-8394. DiDoMENico v. BERK ET AL. Super. Ct. Pa.
Motion of petitioner for reconsideration of order denying leave
to proceed in forma pauperis [511 U. S. 1081] denied.
No. 93-8569. IN RE WHITAKER. Motion of petitioner for re-
consideration of order denying leave to proceed in forma pau-
peris [511 U. S. 1105] denied.
No. 93-9593. GENDRON v. UNITED STATES. C. A. 1st Cir.
Motion of petitioner to expedite consideration of petition for writ
of certiorari denied.
No. 93-9335. IN RE THOMAS; and
No. 93-9433. IN RE ANDERSEN. Petitions for writs of habeas
corpus denied.
No. 93-8620. IN RE MONROE;
No. 93-8893. IN RE McCuRDY;
No. 93-8919. IN RE TYLER; and
No. 93-8990. IN RE BILYEU. Petitions for writs of manda-
mus denied.
Certiorari Granted
No. 93-768. MILWAUKEE BREWERY WORKERS' PENSION PLAN
v. Jos. SCHLITZ BREWING Co. ET AL. C- A. 7th Cir. Certiorari
granted limited to Question 1 presented by the petition. Re-
ported below: 3 F. 3d 994.
No. 93-7659. HARRIS u ALABAMA. Sup. Ct, Ala. Motion of
petitioner for leave to proceed in forma pauper is granted. Cer-
tiorari granted limited to Questions 1 and 2 presented by the
petition. Reported below: 632 So. 2d 543.
Certiorari Denied
No. 92-1751. ALCAN ALUMINUM CORP. v. FRANCHISE TAX
BOARD OF CALIFORNIA. Ct. App. CaL, 2d App. Dist* Certio-
rari denied.
No. 92-8835. DEAN u KENTUCKY. Sup, Ct. Ky» Certiorari
denied. Reported below: 844 S. W. 2d 417,
No. 93-474. SANTORO u MAHER TERMINALS, INC., ET AL.; and
No. 93-666. MAHER TERMINALS, INC. v. SANTORO ET AL.
C. A. 3d Cir. Certiorari denied. Reported below: 992 P. 2d 1277,
ORDERS 1235
512 U. S. June 27, 1994
No. 93-813. ALCAN ALUMINUM CORP. u FRANCHISE TAX
BOARD OF CALIFORNIA. Ct. App. CaL, 3d App. Dist. Certio-
rari denied.
No- 93-1132. REUTERS LTD. u TAX APPEALS TRIBUNAL
ET AL. Ct. App. N. Y. Certiorari denied. Reported below: 82
N. Y. 2d 112, 623 N. E. 2d 1145.
No. 93-1401. ABI-GHANEM v. UNITED STATES. C. A. 8th Cir.
Certiorari denied. Reported below: 9 F, 3d 114.
No. 93-1450, CEDARS-SINAI MEDICAL CENTER ET AL. u
O'LEARY, SECRETARY OF ENERGY. C. A. Fed. Cir. Certiorari
denied. Reported below: 11 F. 3d 1573.
No. 93-1544. NEBRASKA v. HUGHES. Sup. Ct. Neb. Certio-
rari denied* Reported below: 244 Neb. 810, 510 N. W. 2d 33.
No. 93-1570. PREFERRED COMMUNICATIONS, INC. u CITY OF
Los ANGELES ET AL.; and
No. 1)3-1759. CITY OF Los ANGELES ET AL. u PREFERRED
COMMUNICATIONS, INC. C. A. 9th Cm Certiorari denied. Re-
ported below: 13 R 3d 1327.
No. 93-1576. UNITED TEXAS TRANSMISSION Co. u UNITED
STATES ARMY CORPS OF ENGINEERS ET AL. C. A. 5th Cir.
Certiorari denied. Reported below: 7 F. 3d 436.
No. 93-1587. LOVELL ET AL. u PEOPLES HERITAGE SAVINGS
BANK ET AL, C. A. 1st Cir, Certiorari denied. Reported
below: 14 R 3d 44,
No. 98-1691. DELGADO GARCIA ET AL, u FEDERAL DEPOSIT
INSURANCE; CORPORATION, AS RECEIVER FOR FIRST CITY,
TEXAS-HOUSTON, N. A., ET AL. C. A. 5th Cir. Certiorari de-
nied. Reported below: 12 R 3d 209.
No. 98-1599. HENRY u UNITED STATES. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 12 R 3d 215.
No. 93-1609. CALVAEY BAPTIST CHURCH ET AL. u OKLAHOMA
DEPARTMENT OP HUMAN SERVICES ET AL. Ct App. Okla. Cer-
tiorari denied.
No, 98-1621* HARDY u MERIT SYSTEMS PROTECTION BOARD.
C. A, Fed. Cir. Certiorari denied. Reported below: 13 F. 3d
1671,
1236 OCTOBER TERM, 1993
June 27, 1994 512 U. S.
No. 93-1626. TRUEX u UNITED STATES. C. A. llth Cir.
Certiorari denied. Reported below: 11 F. 3d 165.
No. 93-1629. STEPHENS v. SHALALA, SECRETARY OP HEALTH
AND HUMAN SERVICES. C. A. llth Cir. Certiorari denied. Re-
ported below: 9 F. 3d 121.
No. 93-1643. BUDD ET ux. u CITY OF SEWARD, ALASKA,
ET AL. Sup. Ct. Alaska. Certiorari denied.
No. 93-1673. CHONICH ET AL. u WAYNE COUNTY COMMUNITY
COLLEGE ET AL. C. A. 6th Cir. Certiorari denied.
No. 93-1745. KILPATRICK v. STATE BAR OF TEXAS. Sup. Ct.
Tex. Certiorari denied. Reported below: 874 S. W. 2d 656.
No. 93-1746. TWEEDY u AMERICAN AIRLINES, INC. C. A.
10th Cir. Certiorari denied. Reported below: 13 F. 3d 404.
No. 93-1747. EIGHT UNKNOWN OFFICERS u CENTANNL C. A.
6th Cir. Certiorari denied. Reported below: 15 F. 3d 587.
No. 93-1749. SCHOOLCRAFT v. UTAH ET AL. C. A. 10th Cir.
Certiorari denied. Reported below: 16 F. 3d 417.
No. 93-1750. MACE v. BLUNT ET AL. C. A. 8th Gin Cer-
tiorari denied. Reported below: 7 F. 3d 1042.
No. 93-1753. CITY OF TIMBER LAKE, SOUTH DAKOTA, ET AL.
v. CHEYENNE RIVER Sioux TRIBE ET AL. C. A. 8th Cir. Cer-
tiorari denied. Reported below: 10 F. 3d 554.
No. 93-1756. COHEN u CITY OF DES PLAINES. C. A. 7th Cir.
Certiorari denied. Reported below: 8 F. 3d 484.
No. 93-1760. OHIO v. CARPENTER. Sup. Ct. Ohio. Certiorari
denied. Reported below: 68 Ohio St. 3d 59, 623 N. K 2d 66.
No. 93-1761. SCHMIDT ET AL. v. TEXAS ET AL. Sup. Ct. Tex.
Certiorari denied. Reported below: 867 S. W. 2d 769.
No. 93-1764. TAKEALL u PEPSICO, INC. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 14 F. 3d 596.
No. 93-1769. SCHOOL DISTRICT No. 1J, MULTNOMAH COUNTY,
OREGON u ACANDS, INC., ET AL. C. A. 9th Cir. Certiorari de-
nied. Reported below: 5 F. 3d 1255.
ORDERS 1237
512 II 8. June 27, 1994
No, 98-1770. CIMORELLI v. GENERAL ELECTRIC Co. C. A* 1st
(Jin Certiorari denied. Reported below: 16 R 3d 401.
No. 95M772. PUSHY u CITY OP YOUNGSTOWN, OHIO, ET AL.
O. A. 6th Oir. Oertiorari denied. Reported below: 11 R 3d 652.
No. 93-177:1 DEATON ET AL. u CITY OF DAYTON ET AL. C. A.
6th Oir. Oertiorari denied Reported below: 14 R 3d 600.
No. 93-1775. MOSESIAN u UNITED STATES. C. A. 9th Cir.
Oertiorari denied. Reported below: 972 R 2d 1346.
No, 93-178(1 RYAN u SC-HITTTKK ET AL. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 12 R 3d 1108.
No. J>3~1781. KFENCE v. NORFOLK SOUTHERN RAILWAY Co.
KT AL. (It. Apjx (Ja, Certiorari denied. Reported below: 210
On. App. 284f 485 S. E. 2d 680.
No, 98-1786. GALIN CORE KT AL. u MCI TELECOMMUNICA-
TIONS CORE 11 A. .5th Cir. Certiorari denied. Reported below:
12 R 3d 465.
Nix 93-1788. BROVVNLKK ET AL. u LEAR SIEGLER MANAGE-
MENT SKKVIC-KS CORP. (1 A. 10th Cir. Certiorari denied. Re-
ported below; 15 R 3d 970,
No. 93-1792. JONES v. ARKANSAS. Sup. Ct Ark, Certiorari
dmml Reported below: 314 Ark. 888, 862 S. W. 2d 273.
No. i>n 17I»H. ROOD u PINELLAS COUNTY ET AL. C. A. llth
Oir. Oertiorari denied Reported below: 16 F. 3d 1096.
No. 93- 1800. SACKMAN ET ux. v. ZONING BOARD OF ADJUST-
MENT OF THE TOWNSHIP OF EAST BRUNSWICK, NEW JERSEY.
d A. 3d Oir. Oertiorari denied. Reported below: 14 R 3d 49.
No. »:; [MM. BYRNE ET AL. u UNITED STATES, a A. Fed.
Cir, Certiorari denied. Reported below: 19 R 3d 40.
No. 03-1813. KL VOCERO DE PUERTO Rico (CAEIBBEAN IN-
TERNATIONAL NEWS CORP.) BT AL. u RODRIGUEZ BT AL» Sup.
Ct, E R* Certlorari denied. Reported below: 135 D. R R. — .
No. 08-1818. HlCKEY u HOLUCTEE ET AL, Q A. 6th Cir.
Certiorari denied. Reported below: 19 P. Sd 18.
1238 OCTOBER TERM, 1993
June 27, 1994 512 U. S.
No. 93-1834. AQUARIAN FOUNDATION ET AL. u WASHINGTON.
C. A. 9th Cir. Certiorari denied- Reported below: 19 P. 3d 25.
No. 93-1837. ABBOTT u SHEARSON LEHMAN HUTTON, INC.,
ET AL, C. A. 5th Cir. Certiorari denied. Reported below; 18
F. 3d 935.
No. 93-1853. HARTLINE, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OP THE ESTATE OF HARTLINE, ET AL, a
UNITED STATES. C. A. 4th Cir. Certiorari denied. Reported
below: 19 F. 3d 11.
No. 93-1862, MESSA v. FOLEY, SECRETARY OF DEPARTMENT
OF LABOR AND INDUSTRY OF PENNSYLVANIA, ET AL. C. A. 3d
Cir. Certiorari denied. Reported below: 17 R 3d 1430.
No. 93-1895. THOMAS, A MINOR BY THOMAS ET AL., His NATU-
RAL PARENTS AND GUARDIANS u ZUBRITZKY ET AL, Super. Ct.
Pa. Certiorari denied. Reported below: 427 Pa. Super. 656, 625
A. 2d 100.
No. 93-1901. BEDDOE u SPILLMAN ET AL, C. A, 9th Cir.
Certiorari denied. Reported below: 24 F. Ed 244.
No. 93-1905. KODAK, PKA KOZUCK u COMMISSIONER OF IN-
TERNAL REVENUE. C. A. 3d Cir. Certiorari denied. Reported
below: 14 F. M 47.
No. 93-1919. BERGMANN v. LEE DATA CORE ET AL. (Jt. App.
Minn. Certiorari denied.
No. 98-5738. HARRISON u KENTUCKY Sup. Ct. Ky.
tiorari denied. Reported below: 858 S. W. 2d 172.
No, 93-5743* ROGDANOFF v. UNITED STATES, G. A. 9th Oir.
Certiorari denied. Reported below: 993 R 2d 884.
No. 98-6747. TniGPEN ET AL. u UNITED STATES. (X A, nth
Cir. Certiorari denied, Reported below; 4 F, 3d 167£
No. 98-»7000. FISHBB u UNITED STATES, (1 A. 8d Cir. Or-
tiorari denied. Reported below: 10 F* 3d 115,
No. 93-7159. MCLEAN u HAMBLEN ET AL. C, A. 4th Cir.
Certiorari denied. Reported below: 7 F. 3d 224,
No. 98-7604. YEFES-GoNZALEZ u IMMIGRATION AND NATU-
RALIZATION SERVICE. C. A. 2d Cir. Certiorari denied.
ORDERS 1239
512 U. S. June 27, 1994
No. 93-8050. BARBER u NORTH CAROLINA. Sup. Ct. N. C.
Certiorari denied. Reported below: 335 N. C. 120, 436 S. E. 2d
106.
No. 93-8126. PIERCE v. UNITED STATES. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 16 F. 3d 1223.
No. 93-8262. ANGELL u UNITED STATES; and
No. 98-9125. ANGELL u UNITED STATES. C. A. 8th Cir.
Certiorari denied. Reported below: 11 R 3d 806.
No. 93-8426. HARPER u INTERIOR BOARD OF LAND APPEALS.
C. A. D. C. Cir. Certiorari denied.
No. 93-8427. JONES u SHALALA, SECRETARY OF HEALTH AND
HUMAN SERVICES. C, A. 4th Cir. Certiorari denied. Reported
below: 981 F. 2d 1251.
No. 93-8472. NHAN KIEM TRAN u UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 7 F. 3d 229.
No. 93-8477. SCOTT u UNITED STATES, a A. 2d Cir. Cer-
tiorari denied. Reported below: 14 F. 3d 591.
No. 93-8478. TURNER u LUMADUE. C. A. D. C. Cir. Cer-
tiorari denied. Reported below; 13 F, 3d 421.
No. 93-8479. URREGO u UNITED STATES. C. A. 2d Cir. Cer-
tiorari denied.
No. 93-8490, GAYDOS u NATIONAL FIRE INSURANCE Co.
ET AL. C, A* 3d Cir, Certiorari denied.
No, 93-H503. ABBBU u UNITED STATES. C. A. 10th Cir. Cer-
tiorari denied. Reported below: 997 F. 2d 825.
No- 98-8506. PALMER u NEVADA. Sup. Ct. Nev. Certiorari
denied. Reported below: 109 Nev. 1421, 875 R 2d 1083.
No. 98-8516, HAYES u UNITED STATES. C. A. 6th Cir.
tiorari denied. Reported below: 12 R 3d 218*
No, 93-8551. PARE ET AL, u UNITED STATES. C. A. 2d Cir.
Certiorari denied* Reported below: 14 F. 3d 590.
No. 98-8557. CoLON-Osomo u UNITED STATES. C. A. 1st Cir.
Certiorari denied. Reported below: 10 R 3d 41.
1240 OCTOBER TERM, 1993
June 27, 1994 512 U. S.
No. 93-8570. ALLEN v. UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF OREGON. C. A, 9th Cir. Certiorari denied.
No, 93-8579. SYKES u JAMES. C. A, 2d Cir. Certiorari de-
nied. Reported below: 13 R 3d 515.
No. 93-8608. BROOKS u McCAUSELAND. C. A. 3d Cir. Cer-
tiorari denied. Reported below: 14 R 3d 46.
No. 93-8609. AJAYI v. IMMIGRATION AND NATURALIZATION
SERVICE. C. A. 5th Cir. Certiorari denied. Reported below: 9
R 3d 103.
No. 93-8614. WILSON v. UNITED STATES. C. A. 10th Cir.
Certiorari denied. Reported below: 10 R 3d 734.
No. 93-8627. DONALDSON u SWIDERSKI ET AL. C. A, 7th Cir,
Certiorari denied.
No. 93-8645. WALKER v. UNITED STATES- C. A. 2d Cir.
Certiorari denied. Reported below: 996 R 2d 301.
No. 93-8647. BERDUZCO u UNITED STATES. C. A, 9th Cir.
Certiorari denied. Reported below: 19 R 3d 32.
No, 93-8665. GIBBS u UNITED STATES, C. A. 6th Cir. Cer-
tiorari denied. Reported below: 14 R 3d 603*
No. 93-8688. RUTHERS u UNITED STATES. C. A, 4th Cir.
Certiorari denied. Reported below: 14 R 3d 596.
No. 93-8760. DANIEL u UNITED STATES. C. A. llth Cir.
Certiorari denied* Reported below: 9 R 3d 1559.
No. 93-8772. JOHNSON u UNITED STATES. C. A* 2d Cir.
Certiorari denied. Reported below; 14 R 3d 766.
No. 93-8838. TAPLIN u UNITED STATES. C. A, 5th Cir. Cer-
tiorari denied. Reported below: 20 R 3d 468.
No. 93-8846. BEASLBY u UNITED STATES. C, A. llth Cir.
Certiorari denied* Reported below: 2 R 3d 1551.
No. 93-8907, NETTLES u UNITED STATES. C. A. llth Cir.
Certiorari denied. Reported below: 14 R 3d 57.
No. 93-8914. BARFIELD u UNITED STATES* C- A. 4th Cir.
Certiorari denied. Reported below: 21 R 3d 425*
ORDERS 1241
612 U. S. June 27, 1994
No. 93-8933. CLIFFORD u ESPY, SECRETARY OF AGRI-
CULTURE, ET AL. C, A. 6th Cir. Certiorari denied. Reported
below: 16 R 3d 1218.
No. 93-8944. REEVES u KEANE, SUPERINTENDENT, SING
SING CORRECTIONAL FACILITY. C. A. 2d Cir. Certiorari denied.
Reported below: 23 F. 3d 396.
No, 93-8954. GEORGESCU v. BECHTEL CONSTRUCTION, INC.
(I A. 9th Gin Certiorari denied. Reported below: 15 F. 3d 1085.
No. 93-8957. GEORGE u ILLINOIS (two cases). App. Ct. 111.,
1st Dist. Certioraxi denied. Reported below: 263 I1L App. 3d
968, 636 N. E. 2d 682 (first case); 251 111. App. 3d 1106, 661 N. E.
2d 1197 (second case).
No. 93-8958. DUVALL u PURKETT, WARDEN. C. A. 8th Cir.
Certiorari denied. Reported below: 15 F. 3d 745.
No, 93-8959. BOODRAM u MARYLAND FARMS CONDOMINIUM
ET AL. C. A* 4th Cir. Certiorari denied. Reported below: 16
R 3d 408.
No. 93-8970, PONCE-BRAN v. CALIFORNIA FACULTY ASSN.
ET AL. Ct. App* CaL, 3d App. Dist. Certiorari denied.
No. 93-8975, JONES u WASHINGTON, WARDEN. C. A. 7th Cir.
Certiorari denied. Reported below: 15 F. 3d 671.
No. 93-8982, CUT WRIGHT u UNITED STATES; and
No, 98-9114. McKiBBEN u UNITED STATES. C. A. 6th Cir.
Certiorari denied. Reported below; 16 F. 3d 1221.
No, 93-8992. LORAH v. DEPARTMENT OF HUMAN RIGHTS.
C. A. D. C. Cir* Certiorari denied.
No* 93-8997. CHAVEZ v. NEW MEXICO, Ct. App. N. AL Cer-
tiorari denied. Reported below: 116 N. M. 807, 867 R 2d 1189.
No. 93-8998. SMITH u OKLAHOMA. Ct. Grim. App. Okla.
Certiorari denied.
No, 03-9016, DASILVA u CALIFOKNIA, Ct. App. CaL, 1st App.
Dist. Certiorari denied.
No, 93-9109* LONG u UNITED STATES; and
No. 98-9206. JACKSON u UNITED STATES. C. A. 3d Cir.
Certiorari denied* Reported below: 13 R 3d 711.
1242 OCTOBER TERM, 1993
June 27, 1994 512 U. S.
No. 93-9131. D'ANJOU v. UNITED STATES. C. A, 4th Cir.
Certiorari denied. Reported below: 16 F, 3d 604.
No. 93-9159. BRYANT v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 16 P. 3d 1215.
No. 93-9161. CARLTON u BUTTON, WARDEN. C, A, 6th Cir,
Certiorari denied.
No, 93-9162. WATTS v. FEDERAL BUREAU OF PRISONS (two
cases). C. A. D. C. Cir. Certiorari denied.
No. 93-9163. QUINN u UNITED STATES, C. A. 9th Cir. Cer-
tiorari denied. Reported below: 18 F. 3d 1461.
No. 93-9167. WHITE u UNITED STATES. C. A, 9th Cir. Cer-
tiorari denied.
No. 93-9188. KLEIN v. ARIZONA, Sup. Ct. Ariz. Certiorari
denied.
No. 93-9189. GUERRERO u UNITED STATES* C. A. 5th Cir,
Certiorari denied. Reported below: 16 R 3d 1216.
No. 93-9191. POINTER u UNITED STATES. C- A, 7th Cir,
Certiorari denied. Reported below: 16 R 3d 1226.
No. 93-9192. AILPORT u UNITED STATES. C. A, 8th Cir.
Certiorari denied. Reported below: 17 F. 3d 235.
No. 93-9194. ARIONUS u UNITED STATES. C. A. 8th Cir.
Certiorari denied. Reported below: 21 R 3d 433,
No. 93-9198. DANIEL u FLORIDA. Cir. Ct, Fla,, HilLsbonmgh
County* Certiorari denied.
No. 93-9219. WILSON u UNITED STATER C. A. llth Or.
Certiorari denied. Reported below: 12 R 3d 217.
No. 93-9226. TATE u UNITED STATES. C, A. 6th Cir. Cer-
tiorari denied. Reported below: 16 F 3d 1223.
No. 98-9227. ALLEN u UNITED STATES, C* A, 6th Cir. Cer-
tiorari denied. Reported below: 16 R 3d 1221.
No. 93-9229. SLOLBY u UNITED STATES. C, A. 4th Cir,
Certiorari denied. Reported below: 19 F, 8d 149.
ORDERS 1243
512 U. S. June 27, 1994
No. 98-9241. WORYTKO v. NlCKERSON. App. Term, Sup. Ct.
N. Y.f 9th and 10th Jud. DIsts. Certiorari denied.
No. 93-9243, AUTRBY v. UNITED STATES. C. A. llth Cir.
Oertiorari denied. Reported below: 17 F. 3d 1439.
No. 98-9246. WILLIAMS v. JOSEPHS ET AL. C. A. 2d Cir.
CJertiorari denied.
No. 98-9258. KIMBLE u UNITED STATES. C. A. 6th Cir.
Oertiorari denied. Reported below: 16 F. 3d 1222.
No. 93-9254. FULTON ET AL. v. UNITED STATES; and
No. 93-9310. CUERO-GONGORA, AKA AKROYA-RlENA V.
UNITED STATES. C. A. 5th Cir. Certiorari denied. Reported
below: 18 F. Sd 935,
No. 98-9255. BUHL v. UNITED STATES. G. A. 3d Cir. Cer-
tiorari denied. Reported below: 17 F. 3d 1481.
No, 93-9202. LEONARD v. UNITED STATES. C. A. 5th Cir.
Ortiorari denied. Reported below: 18 F. 3d 935.
No, 93-9266. REID u UNITED STATES. C. A. llth Cir. Cer-
tiorari dented. Reported below: 17 F. 3d 1439.
No. 93-927L BEARD v. UNITED STATES. C. A. 5th Cir. Cer-
tiorari denied. Reported below: 20 F. 3d 465.
No. !*;*- 9272. TAYLOR v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 20 F. 3d 467.
Na iw 92SO, HOPSQN u UNITED STATES. C. A, 6th Cir.
Ortiorari denied. Reported below: 19 F, 3d 1434*
No. i*:; JteJM. HOPSON v. UNITED STATES. C. A. 7th Cir.
(Vrtiornri denied, Reported below: 18 F, 3d 465.
No. JKI £»2N-i. WRIGHT ?;. UNITED STATES. C. A. 6th Cir.
(tartioruri denied. Reported below: 16 R 3d 1429.
No. $$-9285. LKCROIX u UNITED STATES. C. A. 9th Cir.
(Vrtiorari denied- Reported below; 19 F. 3d 31.
No. i)»-J)294. SmuKNKMANN v, HAMBS, COMMISSIONER,
ALASKA DEPARTMENT OF CORRECTIONS. C. A. 9th Cir. Cer-
tiorari dented. Reported below: 17 R 3d 896.
1244 OCTOBER TERM, 1993
June 27, 1994 512 U. S,
No. 93-9297, BRADSHAW u UNITED STATES. C. A. llth Cir.
Certiorari denied. Reported below: 17 F. 3d 1439.
No. 93-9298. DAMATTA-OLIVERA V. UNITED STATES, Ct Mil
App. Certiorari denied. Reported below; 37 M. J. 474.
No. 93-9299. MCPHAIL ET AL. v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 20 F. 3d 465.
No. 93-9302. MATTHEWS v. UNITED STATES. C. A, 9th Cir.
Certiorari denied. Reported below: 8 F. 3d 32.
No. 93-9304. MINTZ v. UNITED STATES, G A. 10th Cir.
Certiorari denied. Reported below: 16 F. 3d 1101.
No. 93-9307. ANGEL GONZALEZ u UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 18 R 3d 936.
No. 93-9323. O'NEAL v. UNITED STATES. C. A, llth Cir.
Certiorari denied. Reported below: 17 F. 3d 1439.
No. 93-9324, MACMILLAN u UNITED STATES. C. A. 9th Cir.
Certiorari denied. Reported below: 12 F. 3d 1109,
No. 93-9329. ALEXANDER u UNITED STATES* C* A, 8th Cir,
Certiorari denied* Reported below; 12 F. 3d 1103.
No. 93-9330. WHITE u UNITED STATES. G A. 6th Gin Cer-
tiorari denied. Reported below: 16 R 3d 1223,
No. 93-9332, LEE u UNITED STATES* C, A, 0th Cir. Cer-
tiorari denied. Reported below; 15 P. 3d 1092,
No. 93-9338. LEGG v. UNITED STATES. C. A, 4th Cir*
tiorari denied. Reported below: 18 P. 3d 240.
No. 93-9336. DAVIS u UNITED STATES, C. A, llth Cir.
tiorari denied. Reported below: 17 R 3d 1438.
No, 98-9337. BALLARB v. UNITED STATES. C. A. 10th Cir,
Certiorari denied. Reported below: 16 R 3d 1110.
No, 93-9338. DUAETE v. UNITED STATES. G A, 9th Cir,
Certiorari denied, Reported below: 24 P. 3d 251.
No. 93-9342. CASTNEE u UNITED STATES, C, A, 6th Cir.
Certiorari denied. Reported below: 19 R 3d 1434,
512 U. S, June 27, 1994
No. 98-9843. BRYAN v. UNITED STATES. C. A. 9th Cm Cer-
tiorari denied. Reported below: 19 P. 3d 30.
No. 93-9346. NASH v. UNITED STATES. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 19 R 3d 31.
No, 93-9357. WARE v. YUKINS, WARDEN. C. A. 6th Cir.
Certiorari denied. Reported below: 19 F. 3d 1435.
No. 93-9365. ROMANO v. UNITED STATES. C. A. 3d Cir.
Certiorari denied. Reported below: 22 P. 3d 304.
No. 93-9370. COVINGTON u MOODY, SUPERINTENDENT, WILD-
WOOD CORRECTIONAL CENTER. C. A. 9th Cir. Certiorari de-
nied. Reported below: 15 P. 3d 1084.
No. 93-9390. ANDERSON v. SUNY HEALTH SCIENCE CENTER
AT SYRACUSE ET AL. C. A. 2d Cir. Certiorari denied. Re-
ported below: 23 P. 3d 396.
No, 93-541. NCR CORP. u NEW MEXICO TAXATION AND REV-
ENUE DEPARTMENT. Ct. App. N. M. Certiorari denied. JUS-
TICE O'CONNOR took no part in the consideration or decision of
thin petition. Reported below: 115 N. M. 612, 856 R 2d 982.
No. 93-1416. NCR CORP. v. SOUTH CAROLINA DEPARTMENT
OF RKVKNUK AND TAXATION. Sup. Ct. S. C. Certiorari denied.
JUSTICE O'CONNOR took no part in the consideration or decision
of this petition* Reported below: 312 S. C. 52, 439 S. E. 2d 254.
No. 93-1854. LEWIS, DIRECTOR, ARIZONA DEPARTMENT OF
foRRKrTioNs, ET AL. v. JACOB Y. C. A. 9th Cir. Motion of re-
spondent for leave to proceed in forma pauperis granted. Cer-
tiorari denied, Reported below: 8 R 3d 27.
No. itt-1572. UNITED STATES u VILLEGAS. C. A. 2d Cir.
Motion of respondent for leave to proceed in forma pauperis
granted. Certiorari denied. Reported below: 8 F. 3d 643.
No, 93-1718. WAYPIELD u TOWN OF TISBURY ET AL. C. A.
1st Cm Motion of Polish Historical Society for leave to file a
brief an amicus cnriae granted. Certiorari denied. Reported
below; 10 P. 3d 805.
No, 93-1797. INSURANCE COMPANY OF NOKTH AMERICA
ET AL. u MORTON INTERNATIONAL, INC. Sup. Ct. N. J. Motion
June 27, 1994
512 U. S.
of Insurance Environmental Litigation Association for leave to file
a brief as amicus curiae granted. Certiorari denied. Reported
below: 134 N. J. 1, 629 A. 2d 831.
No. 93-1870. AIDANT, INC., ET AL. v. SIREX, U S. A.f INC.,
ET AL.; AIDANT, L. P., ET AL. v. HUMMEL ET AL.; and IZADPANAH
ET AL. v. HUMMEL ET AL. Sup. Ct. Va. Motion of petitioners to
strike respondents' brief in opposition denied. Certiorari denied,
No. 93-1878. ROE u LOUISIANA SITPREMK COURT ET AL.
C. A. 5th Cir. Motion of petitioner to direct that the response
to the petition and the lodging be placed under seal denied. Mo-
tion of John Doe for leave to intervene and other relief denied
Certiorari denied. Reported below: 8 F. 3d 28.
No. 92-8717. ROBINSON v, TEXAS. Ct. Crim. App. Tex,;
No. 98-6225. SLAWSON u FLORIDA. Sup. Ct. Ph.;
No. 93-7248. McBRlDE v. TEXAS, Ct, Crim, App. Tex.;
No. 93-764 L MARTINEZ v. TEXAS. Ct Grim. App* Tex.;
No. 93-8096. EDGESTON u ILLINOIS, Sup, Ct, 111.;
No. 93-8147. BYRD u OHIO. Sup. Ct. Ohio;
No, 93-8358. HICKS v. OHIO, Sup. Ct. Ohio;
No. 93-8360. PoiNDEXTER v. OHIO. Sup, Ct, Ohio;
No, 93-8372. HENDERSON v. OHIO, Sup. Ct. Ohio;
No. 93-8501. GIBBS v. NORTH CAROLINA. Sup. Ct. N. C.;
No. 93-8505. SOWKLL v. OHIO, Sup. Ct. Ohio;
No. 93-8571* BYRD v. OHIO; GREER u OHIO; HENDERSON a
OHIO; HICKS u OHIO; JAMISON v. OHIO; MONTGOMERY v. OHIO;
POINDEXTER t7. OHIO; SCOTT U OHIO; End SWKU, u OHIO, Sup.
Ct Ohio;
No, 93-8586. OTEY u HOPKINS, WARDEN. C A. 8th Cir.;
No, 98-8604. TENNER u ILLINOIS. Sup, Ct III*;
No. 93-8728. BEDFORD u OHIO. Sup, Ct, Ohio;
No. 93-8825. SMITH v. OHIO. Sup, Ct- Ohio;
No, 98-8852. STBFFEN u OHIO, Sup, Ct. Ohio;
No, 93-8854. SCOTT v. OHIO. Sup. Ct. Ohio;
No. 93-9025. RESNOVEK u CARTER, ATTORNEY GENEEAL OF
INDIANA, ET AL, a A. 7th Cir.;
No. 93-9046. HALL u SOUTH CAROLINA, Sup. Ct S, C;
No. 93-9112. WOODARD v. OHIO, Snip, Ct- Ohio; and
No, 93-9364, ROSE u NORTH CAROLINA, Sup, Ct- N, C, Car*
tiorari denied. Reported below; No, 92-8717, 851 S, W, 2d 216;
512 U. S. June 27, 1994
No. 93-6225, 619 So. 2d 255; No. 93-7248, 862 S. W. 2d 600;
No. 93-7641, 867 S. W. 2d 30; No. 93-8096, 157 111. 2d 201, 623
N. E. 2d 329; No. 93-8147, 67 Ohio St. 3d 1485, 621 N. E. 2d 407;
No. 93-8358, 67 Ohio St. 3d 1485, 621 N. E. 2d 407; No. 93-8360,
67 Ohio St. 3d 1485, 621 N. E. 2d 407; No. 93-8372, 67 Ohio St.
3d 1485, 621 N. E. 2d 407; No. 93-8501, 335 N. C. 1, 436 S. E.
2d 321; No. 93-8505, 67 Ohio St. 3d 1500, 622 N. E. 2d 649;
No. 93-8571, 67 Ohio St. 3d 1487, 621 N. E. 2d 409 (first through
eighth cases), 67 Ohio St. 3d 1502, 622 N. E. 2d 651 (ninth case);
No. 93-8586, 5 F. 3d 1125; No. 93-8604, 157 111. 2d 341, 626 N. E.
2d 138; No. 93-8723, 67 Ohio St. 3d 1509, 622 N. E. 2d 656;
No. 93-8825, 68 Ohio St. 3d 1404, 623 N. E. 2d 562; No. 93-8852,
67 Ohio St. 3d 1500, 622 N. E. 2d 649; No. 93-8854, 67 Ohio St.
3d 1485, 621 N. E. 2d 407; No. 93-9025, 9 P. 3d 113; No. 93-
9046, 312 S. C. 95, 439 S. E. 2d 278; No. 93-9112, 68 Ohio St. 3d
70, 623 N. E. 2d 75; No. 93-9364, 335 N. C. 301, 439 S. E. 2d 518.
JUSTICE BLACKMUN, dissenting.
Adhering to my view that the death penalty cannot be imposed
fairly within the constraints of our Constitution, see my dissent
in Callms v. Collins, 510 U. S. 1141, 1143 (1994), I would grant
certiorari and vacate the death sentences in these cases.
Rehearing Denied
No. 92-903. POSTERS 'N' THINGS, LTD., ET AL. v. UNITED
STATES, 511 U.S. 513;
No. 92-1370. BFP v. RESOLUTION TRUST CORPORATION, AS
RKCKIVKH OF IMPERIAL FEDERAL SAVINGS ASSN., ET AL., 511
U. S. 531;
No. 98-289. DALTON, SECRETARY OF THE NAVY, ET AL. v.
SPECTER ET AL., 511 U. S. 462;
No. 93-1257. CATLETT v. VIRGINIA, 511 U. S. 1005;
No. 93-1407. PEARSON v. UNITED STATES, 511 U. S. 1126;
No. 93-1498. SAKARIA ET AL. v. TRANS WORLD AIRLINES, 511
U. S. 1083;
NO. 93-7824. TlTLEMORE V. RAYMOND ET AL., 511 U. S. 1036;
No. 93-7995. EDWARDS v. PHOEBE PUTNEY MEMORIAL HOS-
PITAL ET AL.t 511 U. S. 1039;
No. 93-8189. CRAWFORD v. CONNELL, 511 U. S. 1073;
No. 93-8280. BACON v. DEPARTMENT OF THE Am FORCE,
511 U.S. 1043;
1248 OCTOBER TERM, 1993
June 27, 30, 1994 512 U.S.
No. 93-8343. SPYCHALA v. GOMEZ, 511 U. S. 1089;
No* 93-8367. DUNN v. REGENTS OF THE UNIVERSITY OF CALI-
FORNIA, 511 U.S. 1090;
No. 93-8446. DORADO u MARYLAND, 511 U.S. 1092;
No. 93-8460. SEAGRAVE v. COUNTY OF LAKE ET AL,, 511
U. S. 1092;
No. 93-8480. DEMPSEY u RANGAIRE CORP., 511 U.S. 1092;
No. 93-8518. KOTAS ET ux. v. JOURNAL COMMUNICATIONS KT
AL., 511 US. 1093;
No. 93-8519. IN RE PREUSS, 511 U.S. 1081;
No. 93-8556. JACKSON ET ux. v. CITY OF RENO, 511 U. S. 1094;
No. 93-8653. WALLACE v. UNITED STATES, 511 II S. 1095;
and
No. 93-9003. RYSKAMP ?;. UNITED STATES, 511 U.K. 1148.
Petitions for rehearing denied.
No. 93-609, MORGAN STANLEY & Co., INC., ET AL. v. PACIFIC
MUTUAL LIFE INSURANCE Co. ET AL., 511 IIS. 658. Petition
for rehearing denied. JUSTICE O'CONNOR took no part in the*
consideration or decision of this petition.
No. 93-8226. FORD a ALABAMA, 511 U.S. 1078;
No. 93-8405. CODE v. LOUISIANA, 511 II. S. 1100; and
No. 98-8736. CONKLIN u ZANT, WARDKN, 511 U.S. 1100. P*-
titionft for rehearing denied, JUSTICE RLAf'KMTN dmsentn from
the denial of rehearing. He would grant the petitions for re-
hearing, grant the petitions for cortiorari, and vacate petition-
ers' death sentences. See Callins v. Collin*, 510 US. 1141,
1148 (1994).
No, 93-8289. TRAUNIG U DEFARTMEHT OF VKTKKANS AF-
FAIRS, 511 U, S. 1044; and
No. 98-8615. DOWKLL v. WEIGHT ET AL., 511 II S. 1077. Mo-
tions for leave to file petitions for rehearing denied*
JUNE SO, 19H4
Vacated and Remanded on Appeal
No. 93-1108. MoWHKKTEK, GOVERNOR OP TKNNKSSKK, ET AL,
u RURAL WEST TENNESSEE AFRICAN- AMKKICAN AFFAIRS COUN-
CIL, INC,, ET AL.; and
ORDERS 1249
512 U. S. June 30, 1994
No. 98-1379. RURAL WEST TENNESSEE AFRICAN-AMERICAN
AFFAIRS COUNCIL, INC., ET AL. v. MCWHERTEE, GOVERNOR OF
TKNNKSSKE, ET AL. Appeals from D. C. W. D. Term. Judgment
vacated and cases remanded for further consideration in light of
Johnson v. De Grandy, ante, p. 997. Reported below: 836 F.
Supp. 458.
Certiorari Grantedr— Vacated and Remanded
No. 93-828. PEARSON ET AL. u PLANNED PARENTHOOD MAR-
GARET SANGER CLINIC (MANHATTAN) ET AL. C. A. 2d Cir. Cer-
tiorari granted, judgment vacated, and case remanded for further
eonnideration in light of Mine Workers v. Bagwell, ante, p. 821.
Reported below: 996 R 2d 1351.
No, 98-1279. REALI ET AL. u FEMINIST WOMEN'S HEALTH
rKNTKR. Ct. App. Cal, 3d App. Dist. Certiorari granted,
judgment vacated, and case remanded for further consideration
in light of Madsen v. Women's Health Center, Inc., ante, p. 753.
Reported below: 17 Gal App, 4th 1543, 22 Cal Rptr. 2d 184.
No, 98-1894. TYUS ET AL. u BOSLEY ET AL, C. A. 8th Cir.
Certiorari granted, judgment vacated, and case remanded for fur-
ther consideration in light of Johnson v, De Grandy, anter p. 997.
Reported below: 099 R 2d 1801.
No, JW-7848. PRICE v. NORTH CAROLINA, Sup. Ct. N. C. Mo-
tion of petitioner for leave to proceed in forma pauperis granted.
Certiorari granted, judgment vacated, and case remanded for fur-
ther consideration in light of Simmons v. South Carolina, ante,
p. 154. Reported below; 384 N- C. 615, 483 S. E. 2d 746.
JtiHTiCE BLACKMPN, concurring.
Although I concur in the Court's remand of this case for further
consideration in light of the recent decision in Simmons v. South
Cartolina, ante, p. 154, I write to note that there remains another
wwioutt error in this case, one this Court has not reached before
and doc*H not reach today*
It IK undisputed that petitioner's sentencing jury was given
the very inntruetion found unconstitutional in McKoy v. North
Cnroltrni, 494 U. S. 488 (1990)- This instruction ran afoul of Mills
v, Mary land, 486 II S, 367 (1988), by requiring that all jurors
agree* on the existence of a mitigating circumstance before any
1250 OCTOBER TERM,
BLACKMUN, J., concurring 512 U. S.
juror could give it effect. The North Carolina Supreme Court
concluded, however, that this McKay error was harmleBH beyond
a reasonable doubt. 331 N. C. 620, 418 S. E. 2d 169 (1992). The
state court's analysis does not support its conclusion.
The State Supreme Court relied on a poll of the sentencing
jurors. In that poll, each juror first was asked;
" *Do you unanimously find from the evidence the existence
of one or more of the following mitigating circumstances?' n
/A, at 626, 418 S. E. 2d, at 172.
Then, for each of 10 mitigating circumstances submitted to the
jury, each juror was asked, for example:
"Q: As to the mitigating factors. 'Number 1: Thin murder
was committed while the defendant WEB under the influence
of mental illness or emotional disturbance. Answer; No/ IH
this your answer?
"A: Yes.
"Q: Do you still assent thereto?
"A: Yes/1 Ibid.
The State's Supremo Court ruled that. In thin context, the ques-
tion, "*Is this your answer?* )f could reasonably be understood only
aB asking each juror "Is this your own individual answer?1* M,
at 627r 418 S. E, 2dy at 173. Our concern, howc»v«/r. in "not what
the State Supreme Court declares the meaning of the [poll qu<w-
tion] to be, but rather what a reasonable juror could have under-
stood the [poll question] as meaning.1* Pmncw v. Franklin, 471
U. S. 307, 315-816 (1985). It is equally plausible that a reawonable
juror could have interpreted "Is this your answer?"1 to **!B
this your, the jury'*, answer?** Since the jurors had been in-
structed that they could answer **ye8?f only if they unanimously
agreed, a juror's answer to the poll question easily could have
meant, "Yes, that was our answer, we could not achieve
unanimity on the existence of that factor/* Or even If the juror
was answering for himself, he could be saying "Yes, that was my
answer, but only because I could not get the others unanimously
to agree that this mitigating circumstance existed.11 Jurons are
presumed to follow their instructions. See, e. g^ v, JKvatt,
500 US. 391, 403 (1991); Ricfmrd$on v. Marsh, 481 US. 200,
211 (1987).
1249 BLACKMUN, J., concurring
Given the ambiguity of the poll, I "cannot say with any de-
gree of confidence which interpretation [Price's] jury adopted,"
Mills, 486 U, S., at 383, and consequently, I cannot conclude that
the McKay error was harmless. A finding of harmlessness is
warranted only if it appears "beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained."
Chapman v. California, 386 US. 18, 24 (1967). Because the
unanimity instruction preceded and shaped the jury's consid-
eration of mitigating evidence, it may have contributed to the
verdict by directing the jury to "examin[e] the evidence with the
wrong question in mind." Yates v. Evatt, 500 U.S., at 413
(SCALIA, J., concurring). The poll tells us nothing about how
the juror would have voted — either on a particular mitigating
circumstance or on the ultimate life-or-death question — had he
been instructed that he could give effect to all the mitigating
evidence, as the Constitution requires. Thus, the state court's
analysis does not satisfy the "high standard" of harmlessness
for federal constitutional error. See Sochor v. Florida, 504 U. S.
527, 541 (1992) (O'CONNOR, J., concurring); see also demons v.
Mississippi, 494 U. S. 738 (1990) (remanding a case to state court
for "detailed explanation" and analysis of its conclusion of
harmlessness).
Because the poll does not demonstrate convincingly, much less
beyond a reasonable doubt, that no juror interpreted the uncon-
stitutional instruction to block consideration of mitigating evi-
dence on which the jurors were not unanimous, I do not share
the state court's "confidence]" that the poll "demonstrates un-
equivocally" that the instruction did not prevent any juror from
giving weight to any mitigating evidence. See 331 N. C., at 628,
418 S. B. 2d, at 173. Concern that the McKoy instruction may
have precluded consideration of relevant mitigating evidence is
only fueled by the North Carolina Supreme Court's acknowledg-
ment "there [wa]s evidence which supported] several of the miti-
gating circumstances not found by the jury." 331 N. C,, at 628,
418 S* E, 2d, at 178. Cf. McNeil v. North Carolina, 494 U. S.
1050 (1990) (KENNEDY, X, dissenting from grant of certiorari)
(noting that McKay error may be harmless where the defendant
did not present mitigating evidence).
It is true that this is the third time we have remanded this
for further consideration in light of an intervening deci-
sion, again providing the state court the opportunity to consider
1252 OCTOBER TERM,
June 30, 1994 512 U.S.
and to correct constitutional error. See 498 U.S. 802 (1990) (va-
cated and remanded In light of McKay v. North Carolina, 494
U. S. 433 (1990)); 506 U. S. 1043 (1993) (vacated and remanded
in light of Morgan v. Illinois, &G4 U S. 719 (1992)). On thin
remand, if the North Carolina Supreme Court concludes that
there is Simmons error that requires reaentenelng, the new sen-
tencing jurors will not receive the now-abandoned AfcKoy instruc-
tion, and the case will be purged of any existing nonharmlet-w
McKoy error. But if petitioner does not receive a new sentenc-
ing hearing, I believe the harmlessness of the McKay error de-
serves this Court's attention on the next round, notwithstanding;
petitioner's previous visits to this Court.
No. 93-7494, MORENO v. SCOTT, DIRECTOR, TEXAS DEPART-
MENT OF CRIMINAL JUSTICE, INSTITT-TIONAJ- DIVISION. (*. A.
5th Cir, Motion of petitioner for leave to proem! in farma pau-
peris granted. Certiorari granted, judgment vacated, and caw
remanded for further consideration in light of McFnrland v. tfcott,
ante, p. 849, Reported below: 15 P. #d 180,
No. 93-7739. JOINER v. SCOTT, DIRKCTUK, TEX AH HKPAKT-
MENT OF CRIMINAL JUSTICE* INSTITUTIONAL DIVISION* O, A,
5th Cir. Motion of petitioner for leave to procewl in farma jm«~
peris granted. Certiorari grant4*d, judgment
remanded for further consideration in light of MrFbrtand v, Krvtt,
ante, p. 849. Reported below: 15 P. 3d' 1079,
No. 93-8283. CLAYTON v. SCOTT, DIRECTOR, TEXAH I>KI*AUT-
MENT OF CRIMINAL JrsTifK, iNsrirr-TioNAi DrvistfLV. <1 A*
5th Cir, Motion of petitioner for leave to proceed in far ma
peris granted, Certiorari granted* jud^nu'iuf vacated, and
remanded for further consideration in light of MrFnrt<n*<l \\ Kcott,
ante, p. 849, Reported below: 19 K 3d 15.
Miscellaneous Orrfer
No, 98-8621. MCDONALD v. ET AL. C. A. 10th
Cir. Motion of petitioner for reconsideration of orcl^r denying
leave to proceed in forma [511 US- 1125) denied,
Certiorari Denied
No. 98-812, RED CLAY CONVOUI>ATRI> SCHOOL I)ISTKKVT
BOARD OF EDUCTATIOX ET AL, n, JENKINS ET AL. (1 A. 3d Cir.
Certiorari denied, Reported below; 4 P. 3d 1108.
ORDERS 1253
512 II S. June 30, 1994
No, 93-1454. CALDERON, WARDEN, ET AL. v. CLAIR. C. A. 9th
Cir. Certiorari denied,
No, 92-8482. ESPINOZA u CALIFORNIA. Sup. Ct. CaL;
No. 98-5140. NOGUERA v. CALIFORNIA. Sup. Ct. CaL;
No. 93-6801. MAYFIELD u CALIFORNIA. Sup. Ct. CaL;
No. 98-6863, WADER u CALIFORNIA. Sup. Ct. CaL;
No. 93-7249. PAGE v. ILLINOIS. Sup. Ct. 111.;
No. 93-7278. MlTCHAM v, CALIFORNIA. Sup. Ct. CaL;
No. 93-7376. MIRANDA v. CALIFORNIA. Sup. Ct. CaL;
No. 93-7399. DOUGLAS u CALDERON, WARDEN. Sup. Ct. CaL;
No. 98-7414. SIMS u CALIFORNIA. Sup. Ct. CaL;
No. 93-7442. EDWARDS u CALDERON, WARDEN. Sup. Ct. CaL;
No. 98-7631. BAGIGALUPO v. CALIFORNIA. Sup. Ct. CaL;
No. 93-7680. MONTIEL v. CALIFORNIA. Sup. Ct. CaL;
No. 98-7955. RUDD v. TEXAS. Ct. Grim. App. Tex.; and
No. 98-8118. CLARK u CALIFORNIA. Sup. Ct. CaL Certio-
rari denied. Reported below: No. 92-8482, 3 CaL 4th 806, 838
E 2d 204; No. 93-5140, 4 CaL 4th 599, 842 P. 2d 1160; No. 93-
6801, 5 CaL 4th 142, 852 P. 2d 331; No. 93-6863, 5 CaL 4th 610,
854 P. 2d 80; No, 98-7249, 156 111. 2d 258, 620 N. E. 2d 339;
No. 93-7414, 6 CaL 4th 405, 853 P. 2d 992; No. 93-7631, 6 CaL 4th
457, 862 R 2d 808; No, 93-7680, 5 CaL 4th 877, 855 R 2d 1277;
No. 93-8118, 5 CaL 4th 950, 857 R 2d 1099.
JUSTICE BLACKMUN, dissenting.
Adhering to my view that the death penalty cannot be imposed
fairly within the constraints of our Constitution, see my dissent
in Callins v. Collins, 510 US, 1141, 1143 (1994), I would grant
and vacate the death sentences in these cases.
NO. 9&-H59. WlNFIELD ET AL. U KAPLAN ET AL. Sup. Ct.
R C. Certiorari denied. Reported below: 335 N. C. 175, 436
8. E, 2d 379.
JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE
THOMAS join, dissenting,
In Greensboro, North Carolina, a state trial court entered a
preliminary injunction prohibiting antiabortion protesters from
picketing, parading, marching, or demonstrating anywhere on re-
spondent's street or within 300 feet of the center line of that
street. The North Carolina Court of Appeals affirmed and the
1254 OCTOBER TERM, 1993
June 30, 1994 512 V S.
Supreme Court of North Carolina denied discretionary review.
The protesters petitioned this Court for review. When their peti-
tion first came before us for consideration, we voted to defer
disposition pending the announcement of our judgment in Marfww
v. Women's Health Center, Inc., ante, p. 758, because of the simi-
larity of the issues presented in the two cases.
In Part III-E of the Madsen opinion, announced today, we find
unconstitutional an injunctive provision— forbidding congregat-
ing, picketing, patrolling, and demonstrating within 800 feet of
the residences of respondents1 omplnyoos - indict intfwshuble in
relevant respects from the one that remains in effect in the pres-
ent case. The obviously appropriate* course of action, thc*rt*fons
is to grant the present petition for certiorari, vacate the judgment
below, and remand the cause to the North Carolina Court of
Appeals for reconsideration in light of Madwn. That is what we*
ordinarily do with petitions that have been held for the decision
of cases that, in the event, show the petitions to have merit*
Instead, the Court chooses to deny the petition for eertioruri.
The only conceivable explanation for thin decision IK that because
the injunction presently under consideration is temporary, the
North Carolina courts will have the benefit of our Madwn opinion
when they come to decide whether a permanent injunction should
issue. But if that fact alone justifies denial of the petition, we*
should have denied it at the outset, rather than held it pending
Madsen*
No possible resolution of Madsen could have shown this
more flatly wrong than the opinion that is»ued. By holding the*
petition for Madsen, and then, in light of letting the*
challenged injunction stand^ we send a confusing messag*4 to the
North Carolina courts. And also, of course, we leave a clear
judicial abridgment of petitioners* First Amendment rights in ef-
fect. For these reasons* 1 dissent front the denial of certiorarl
No. 98-7200. MCCOLLUM t\ NORTH CAROLINA. Sup, €t N. 0.
Certlorari denied. Reported below: 834 N. Cl 208, 433 8. E. 2cl
144.
JUSTICE RLACKMX;N\ dissenting,
Henry Lee "Buddy" McCollum is sentenced to be for
his part in a brutal crime. He participated with three other
young men in the rape and murder of an II -year-old girl, Each
raped the child, and McCollum hold her down while an-
ORDERS 1255
1254 BLACKMUN, J., dissenting
other young man stuffed her panties down her throat with a stick.
When I announced in Callins v. Collins, 510 U. S. 1141, 1143
(1994) (opinion dissenting from denial of certiorari), that I had
reached the conclusion that the death penalty, as currently ad-
ministered, is unconstitutional, JUSTICE SCALIA questioned why I
did not choose Buddy McCollum's case as the vehicle to announce
that position, /d, at 1142-1143 (SCALIA, J., concurring in denial
of certiorari). He seemed to believe that my position would be
harder to defend in a case like this one that "cries out for punish-
ment." 834 N. G. 208, 245, 433 S. E. 2d 144, 165 (1993) (Exum,
C. J,, concurring in part and dissenting in part). Far from it.
The crime indeed is abhorrent, but there is more to the story.
Buddy McCollum is mentally retarded. He has an IQ between
60 and 69 and the mental age of a 9-year-old. He reads on a
second-grade level This factor alone persuades me that the
death penalty in his case is unconstitutional. See Penry v.
Lynavgh, 492 U. S. 302, 350 (1989) (STEVENS, J., concurring in
part and dissenting in part) (executions of the mentally retarded
are unconstitutional).
The nentencing jury found two aggravating circumstances: that
the murder was committed to avoid arrest and that the murder
was especially heinous, atrocious, or cruel. It found seven miti-
gating circumstances: that McCollum was mentally retarded, that
he had difficulty thinking clearly under stress, that he was easily
influenced by others, that he committed the felony murder under
the influence of mental or emotional disturbance, that he had
cooperated with the police* that he had no significant history of
prior criminal activity, and that he had adapted well to prison.
In addition* the trial judge concluded that "[a]ll of the evidence
tends to show that [McCollum's] capacity ... to appreciate the
criminality of his conduct or to conform his conduct to the re-
quirements of law was impaired*" App. to Pet. for Cert. 50.
McCollum was 19 at the time of the crime.
Along with these compelling mitigating circumstances, the evi-
dence at trial tended to show that Buddy MeCollum was far from
the most culpable of the four accomplices. He was not the one
who initiated the rape, the one who proposed the murder, or the
one who actually committed the murder. Nonetheless, he was
the only one convicted of murder and the only one sentenced
to die.
June 30, 1994 512 U S.
North Carolina's death penalty scheme require* appellate pro-
portionality review, N, C. Gen. Stat, § 15A-20QO(d){2) (1988), and
the Chief Justice of the North Carolina Supreme Court found
himself compelled to conclude that the death penalty for Buddy
McCollum was disproportionate. 384 N. C.f at 248-250, 48S H. K.
2d, at 167-168 (Exum, C. J.f dissenting). North Carolina jurorw
had never before recommended death for a defendant whom they
had found mentally retarded. Only once had jurors recommended
death where there was even any evidence of mental retardation.
No North Carolina jury ever had recommended death for a felony
murderer under 20 years of age. Nor had any jury recommended
death in a sexual offense felony murder when* there wan evidence*
of the defendant's mental and emotional disturbance, not even
where the defendant was the actual perpetratnr of an especially
heinous, atrocious, or cruel killing.
That our system of capital punishment would single out Buddy
McCollum to die for this brutal crime only confirms my conclu-
sion that the death penalty experiment has failed. Our system
of capital punishment simply does not accurately and r'^^f-ntlv
determine which defendants most "deserve" to
No, 93-8040. MCPARLAND u. SCOTT* DiREcrroR, TEXAS DE-
PARTMENT OF CRIMINAL Jrs'iu'K. INSTITUTION xi. DIVISION.
C, A. 5th Cir. Certiorari denied. Reported below: K K 3d 256.
JUSTICE BLACKMUN, dissenting.
Today in McFarland v. Scott, ante, p. 84flf this (Jourt addressed
the right to qualified legal counsel guaranteed to all capital de-
fendants in federal habeas corpus pi-weeding See 21 US, C
§ 848(q)(4)(B). More often than notf lumwer, it m in the {irweed-
ingn antecedent to federal habeas <-<)rjm,- the capital trial, and
to a lesser extent Ktate pontoon viction prnrefdinp- that a capital
defendant's case is won or lent. Frequently the* counwl
available to capital defendants at these critical i» wcmfully
inadequate, I therefore write to address the in trial
state postconviction legal rc-presc'iitalinn for capital
that forms the backdrop to the federal right to counfwi
by §84S(q)(4)(B).
Without question, "the principal fallings of the capital puniah-
ment review process today are the inadequacy and inadociuato
compensation of counsel at trial and the unavailability of counsel
in state post-conviction proceedings/1 Rabbin**, Toward a More
BLACKMUN, J., dissenting
Junt and Effective System of Review in State Death Penalty
Oases, Report of the American Bar Association's Recommen-
dations Concerning Death Penalty Habeas Corpus, 40 Am. IX L.
Rev. 1, 16 (1990) (ABA Report). The unique, bifurcated nature
of capital trials and the special investigation into a defendant's
personal history and background that may be required, the com-
plexity and fluidity of the law, and the high, emotional stakes
involved all make capital cases more costly and difficult to litigate
than ordinary criminal trials. Yet, the attorneys assigned to rep-
resent indigent capital defendants at times are less qualified than
those appointed in ordinary criminal cases. See Green, Lethal
Fiction: The Meaning of 'Counsel' in the Sixth Amendment, 78
Iowa L, Rev, 433, 484 (1993); Coyle, et al., Fatal Defense, 12 Nat.
L. J. HO, 44 (June 11, 1990) (Capital-defense attorneys in eight
States were disbarred, suspended, or disciplined at rates 3 to 46
times higher than the general attorney-discipline rates).
Two factors contribute to the general unavailability of qualified
attorneys to represent capital defendants. The absence of stand-
ards governing court-appointed capital-defense counsel means
that unqualified lawyers often are appointed, and the absence
of funds to compensate lawyers prevents even qualified lawyers
from beting able to present an adequate defense. Many States
that regularly impose the death penalty have few, if any, stand-
ards governing the qualifications required of court-appointed
capital-defense counsel. In 21 U. S. C. §§848(q)(5) and (6), Con-
gr<»HS has required that attorneys appointed to represent capital
defendants in federal habeas corpus proceedings must have five
yearn of experience litigating before the relevant court and three
yearn of felony experience. See McFarland, ante, at 854, n. 2.
According to a 1000 survey by the National Law Journal, how-
ever, Florida, Georgia^ Mississippi, Texas, and California have no
binding statewide qualification criteria for capital-defense counsel.
Hee Coyle, 12 Nat, L J.t at 32. Capital-defense attorneys in Loui-
siana muHt have five years* experience practicing in some area
of law, but are not required to have experience in capital defense
or any form of criminal practice. Ibid.
In addition to the lack of standards, compensation for attorneys
representing indigent capital defendants often is perversely low.
Although a properly conducted capital trial can involve hundreds
of hours of investigation, preparation, and lengthy trial proceed-
ings, many States severely limit the compensation paid for capital
1258 OCTOBER TEKM,
BLACKMUN, J.f dissenting 512 U. S.
defense. Louisiana limits the compensation for court-appointed
capital-defense counsel to $1,000 for all pretrial preparation and
trial proceedings. Kentucky pays a maximum of $2,500 for the
same services. Alabama limits reimbursement for out-of-court
preparation in capital cases to a maximum of $1,000 each for the
trial and penalty phases. Ala- Code §15-12-21(a) (Supp. 1992);
Op, Ala, Atty. Gen, No, 91-00206 (Mar. 21, 1991). See generally
Klein, The Eleventh Commandment: Thou Shalt Not Be Com-
pelled to Render the Ineffective Assistance of Counsel, 6H IncL
L. J. 368, 364-375 (1993),
Court-awarded funds for the appointment of investigators and
experts often are either unavailable, severely limited, or not pro-
vided by state courts. As a result, attorneys appointed to rep-
resent capital defendants at the trial level frequently are unable
to recoup even their overhead costs and out-of-pocket expenses,
and effectively may be required to work at minimum wage or
below while funding from their own pockets their client'a defense.
A recent survey by the Mississippi Trial Lawyers* Association
estimated that capital-defense attorneys in that State are compen-
sated at an average rate of $11.75 per hour* Coylef 12 Nat,
L. J., at 32, Compensation rates of $5 per hour or are not
uncommon. Strasser, $1,000 Pee Cap Makes Death Row's 'Jus-
tice' A Bargain for the State, 12 Nat L, J. 38 (June 11, 1990}, *
The prospect that hours spent in trial preparation or funds ex-
pended hiring psychiatrists or ballistics experts will be uncom-
pensated unquestionably chills even a qualified attorney^ 2»alou«
representation of his client,
1 Recent improvements have bean iwadef howaver* Hi® Florida Suprrmt'
Court struck down the State's maximum fee of m unconstitutional
when applied in such a manner as to Impinge on the right to coun-
sel in capita! cases, White v. Board of County CcwimVv, 537 So. 2d 1370
(1989). The court found itself **hard to find any capital in
which the circumstances would not warrant an award of attorn«*y>«* In
excess of the ($3,500] fee cap." Id., at 1378* South CtrollnA1! Supreme
Court also refused, on Sixth Amendment grounds, to «nforee the $10
and $15 per hour and $6,000 maximum compensation in capital
Bailey v. Stat^, 424 S, E. 2d 603, 608 (1992). The Oklahoma wad
Supreme Courts recently struck down their States* respective compensation
caps of $S,200 and $1,000 as unconstitutional takings when applied to capital
cases. See Stat® v. Lynch, 796 P. 2d 1160 (Okla. 1990); Arnold v. Kemp.
Ark. 294, 813 a W, 2d 770 (1»1).
ORDERS 1259
BLACKMUN, J., dissenting
The practical costs of such ad hoc systems of attorney selection
and compensation are well documented. Capital defendants have
been sentenced to death when represented by counsel who never
bothered to read the state death penalty statute, e, #., Smith v.
State, 581 So. 2d 497 (Ala. Grim. App. 1990), slept through or
otherwise were not present during trial, or failed to investigate
or present any mitigating evidence at the penalty phase, Mitchell
v. Kemp, 488 U S. 1026 (1987) (Marshall, J., dissenting from denial
of certiorari). Other indigent defendants have been represented
by attorneys who had been admitted to the bar only six months
before and never had conducted a criminal trial. E. g., Paradis
v. Aram, 954 F. 2d 1483, 1490-1491 (CA9 1992), vacated and re-
manded, 507 U. S. 1026 (1993), relief denied, 20 R 3d 950, 959
(1994). One Louisiana defendant was convicted of capital murder
following a 1-day trial and 20-minute penalty phase proceeding,
in which his counsel stipulated to the defendant's age at the time
of the crime and rested. State v. Messiah, 538 So. 2d 175, 187
(La. 1988), cert, denied, 493 U. S. 1063 (1990). When asked to
cite the criminal cases he knew, one defense attorney who failed
to challenge his client's racially unrepresentative jury pool could
name only two cases; Miranda v. Arizona, 384 U. S. 436 (1966),
and Dred Scott v. Sandford, 19 How. 393 (1857). See Bright,
Counsel for the Poor; The Death Sentence Not for the Worst
Crime but for the Worst Lawyer, 103 Yale L. J. 1885, 1839, and
n- 82 (1094), citing Tr. of Hearing 231 (Apr. 25-27, 1988) in State
v. Birt, No. 2360 (Super. Ct. Jefferson Cty., Ga. 1988).
The consequences of such poor trial representation for the capi-
tal defendant, of course, can be lethal. Evidence not presented
at trial cannot later be discovered and introduced; arguments and
objections not advanced are forever waived. Nor is a capital
defendant likely to be able to demonstrate that his legal counsel
was ineffective, given the low standard for acceptable attorney
conduct and the high showing of prejudice required under Strick-
v, Washington, 466 U S- 668 (1984). Ten years after the
articulation of that standard, practical experience establishes that
the Strickland test, in application, has failed to protect a defend-
ant's right to be represented by something more than "a person
who happens to be a lawyer." Id», at 685.
The impotence of the Strickland standard is perhaps best evi-
denced in the eases in which ineffective-assistance claims have
1260 OCTOBER TERM, 1993
BLACKMUK, J., dissenting 512 11 S.
been denied. John Young, for example, was represented in his
capital trial by an attorney who was addicted to drugs and who
a few weeks later was incarcerated on federal drug charges. The
Court of Appeals for the Eleventh Circuit rejected Young's
ineffective-assistance-of-eounsel claim on federal habeas. Young v.
Kemp, 727 F. 2d 1489 (1984), and this Court denied review, 470
IX S. 1009 (1985). Young was executed in 1985- John Smith and
his codefendant Rebecca Machetti were sentenced to death by
juries selected under the same Georgia statute, Machetti'tt attor-
neys successfully challenged the statute under a recent Supreme
Court decision, Taylor v, Louisiana, 419 IX S. 622 (1975), winning
Machetti a new trial and ultimately a life sentence, Machetti v.
Linahan, 679 R 2d 236 (CA11 1982). Smith's counsel was un-
aware of the Supreme Court decision, however^ and failed simi-
larly to object at trial Smith v. Kemp, 715 F. 2d 1459 (CA11
1983), Smith was executed in 1983.
Jesus Romero's attorney failed to present any evidence at the
penalty phase and delivered a closing argument totaling 29 words,
Although the attorney later was suspended on unrelated grounds,
Romero's ineffective-assistance claim was rejected by the Court
of Appeals for the Fifth Circuit, Rowmro v* Lj/naugk, 884 K 2d
871, 875 (1989), and this Court denied certiorari, 494 U. a 1012
(1990), Romero was executed in 1992, Larry Heath repre-
sented on direct appeal by counsel who filed a 6-page brief before
the Alabama Court of Criminal Appeals. The attorney failed to
appear for oral argument before the Alabama Supwm<* Court and
filed a brief in that court containing a 1-page argument and citing
a single case. The Eleventh Circuit found no prejudice?, v.
Jones, 941 P. 2d 1126, 1131 (1991), and this Court denied review,
502 U, S. 1077 (1992). Heath was executed In Alabama In
James Messer, a mentally impaired capital defendant, was rep-
resented by an attorney who at the triafs guilt phase
no defense, made no objections, and emphasized the horror of the
capital crime in his closing statement At the penalty the
attorney presented no evidence of mental impairment, to
introduce other substantial mitigating evidence, and again repeat-
edly suggested in dosing that death was the appropriate punish-
ment. The EleYenth Circuit refused to grant relief, v,
Kemp, 760 F. 2d 1080 (1986) (Johnson, X, dissenting), and this
Court denied certiorari, 474 U, S. 1088 (I960)* was
ORDERS 1261
1266 BLACKMUN, J., dissenting
euted in 1988. Even the attorney who could name only Miranda
and Dred Scott twice has survived ineffective-assistance chal-
lenges. See Birt v. Montgomery, 725 P. 2d 587, 596-601 (CA11)
(en bane), cert denied, 469 U. S. 874 (1984); Williams v. State,
258 Oa. 281, 368 S. E. 2d 742 (1988), cert, denied, 492 U. S. 925
(1989).2 None of these cases inspires confidence that the adver-
sarial system functioned properly or "that the trial ca[n] be relied
on as having produced a just result" Strickland, 466 U. S., at
686. Yet, in none of these cases was counsel's assistance found
to be ineffective.
Regardless of the quality of counsel, capital defendants constitu-
tionally are entitled to have some "person who happens to be a
lawyer , . , present at trial alongside the accused." Id., at 685.
The same cannot be said for state postconviction review. State
habeas corpus proceedings are a vital link in the capital review
process, not the least because all federal habeas claims first must
be adequately raised in state court. This Court thus far has
declined to hold that indigent capital defendants have a right to
counsel at this level, based on the assumption that capital defend-
ants generally can obtain volunteer or other counsel to represent
them in these state proceedings. Murray v. Giarratano, 492
XL S. 1, 14 (1989) (KENNEDY, J,, joined by O'CONNOR, J., concur-
ring in judgment) (In "the case before us ... no prisoner on
death row in Virginia has been unable to obtain counsel to repre-
sent him in postconviction proceedings").
Though perhaps true for some jurisdictions, this assumption
hears little resemblance to the realities confronting McFarland
ancl other condemned inmates in Texas. A recent study of state
pofttconviction capital representation in Texas sponsored by the
State Bar of Texas concluded that the capital-defense situation in
that is <€desperate," The Spangenberg Group, A Study of
Representation in Capital Cases in Texas, ii (Mar. 1993). Accord-
ing to the Spangenberg Group, "Texas has already reached the
crisis in capital representation and . . „ the problem is
substantially worse than that faced by any other state with the
death penalty/1 /d, at L
* For farther discussion of these and other examples of indigent capital
^presentation, see, e. g., Bright, Counsel for the Poor: The Death
Sentence Not for the Worst Crime but for the Worst Lawyer, 108 Yale L. J.
1836 (1904); ABA Report, at 65-TO.
1262 OCTOBER TERM, 1993
BLACKMUN, Jn dissenting 512 U. H.
Texas has the second largest death row In the* country, with
approximately 875 inmates currently facing execution. Since
1976, Texas has executed approximately one third of all the de-
fendants put to death in the United States, NAAOP Legal De-
fense and Educational Fund, Inc., Death Row, U.S. AM 10 (spring
1994), and the pace of executions in Texas is increasing. In June
1993, this Court denied certiorari in an unpivmlontfd 20 capital
cases from Texas, including McFarland's. During the ensuing
period between June 1 and October 21t 1993, Texas scheduled
39 executions and actually executed 10 capital defendants. All
told, the Lone Star State set more than 100 execution dates in
1993, at least 8 of which were set within 45 days of the close of
direct review.
Finding qualified defense counsel capable of meeting this de-
mand might be formidable even if an adequate* pool of attor-
neys and adequate funds were available. Capital ch*fc*ndants in
Texas, however, have no statutory right to counsel in state post-
conviction proceedings, receive little benefit from the State's skel-
etal public defender service, and are not provided «»vc»n discre-
tionary court-appointed counsel. Although the* Texan (?odo of
Criminal Procedure, Arts, 11.07, 26.04 1 26.05, gives state courts
discretion to appoint and compensate counsel for state habeas
corpus proceedings, *4this IB almost never done/* Spanwnlu'rtf
Group, at viL Funds for experts and cither t*\pi*n,M^ also "are
almost never uppro\ed.n Ibid. Indeed, the Texas Bar study
found that "[p]re»ently no funds are allocated for payment of coun-
sel or litigation expenses at the state habeas level/* Span^.fn
berg Group, at ii. Capital defendants In post rtmvirt Ion
proceedings must rely almost exclusively on volunteer private
counsel— volunteern who are increasingly difficult to find TI»XIW
thus ha« become "the only death penalty in which death-
sentenced prisoners are not routinely represented in ntatt* pout-
conviction proceedings." Brief for American Bar Association
as AmiciM Curiae, McFarland v, »SVoif, No, 0S-6407, p. 8f and
n. 9* The lack of attorney compensation and Texas' aggn^sm*
practice of "[d locket control by execution elate/1 Jrmos, Death
Penalty Procedures: A Proposal for Reform, 58 Tex. Bar J. 850,
851 (1990), have left an estimated 75 capital defendants in Texas
who currently are facing execution dates without any legal
rcpresentati on.
ORDERS 1263
BLACKMUN, J., dissenting
The right to qualified legal counsel in federal habeas corpus
proceedings bestowed by § 848(q)(4)(B) is triggered only after a
capital defendant has completed his direct review and, generally,
some form of state postconviction proceeding. The continuing
importance of federal habeas corpus in correcting constitutional
errors is well documented. Of the capital cases reviewed in fed-
eral habeas corpus proceedings between 1976 and 1991, nearly
half (46#) were found to have constitutional error. Liebman,
More than 'Slightly Retro:' The Rehnquist Court's Rout of Habeas
( JorpUH Jurisdiction in Teague v. Lane, 18 N. Y. U. Rev. L. & Soc.
Change 537, 541, n. 15 (1990-1991). The total reversal rate of
capital canes at all stages of review during the same time period
was estimated at 60% or more. Id., at 541, n. 15; see also Murray
v, Giarratano, 492 11 8., at 23-24, and n. 13 (STEVENS, J., joined
by Brennan, Marshall, and BLACKMUN, JJ., dissenting) (citing a
federal habeas corpus success rate of 60% to 70% in capital cases,
vernuK 0,25% to 7% in noncapital cases); id., at 14 (KENNEDY, J.,
joined by O'CONNOR, J., concurring in judgment). This Court
itself frequently has granted capital defendants relief in federal
hahean corpun procoodings. See, e. g., Parker v. Dugger, 498 U. S.
308 (1901); Fatea v. Evatt> 500 U.S. 391 (1991); Yates v. Aiken,
4H4 U.S. 211 (1988); Yates v. Aiken, 474 U.S. 896 (1985); Penry
v, Lynaugh, 492 U S. 302 (1989); Amadeo v. Zcmt, 486 U. S. 214
C1«IBB); Mni/nanl v. Cartwright, 486 U.S. 356 (1988); Johnson v.
Af;««/V«.s/;;/;/f 486 U.S. 578 (1988); Hitchcock v. Dugger, 481 U.S.
»98 (1087); Ford v. Wainurright, 477 U. S. 399 (1986).
The mere presence of "Much a high incidence of uncorrected
error*1 found in capital habeas corpus proceedings, Murray v.
Giarratano, 402 U.S., at 24 (STEVENS, J., joined by Brennan,
Marshall, and BLACKMUN, JJ., dissenting), testifies to the inade-
quacy of the legal representation afforded at the trial and state
postconviction stages. Yet the barriers to relief in federal habeas
corpUH proceedings are high. Even the best lawyers cannot rec-
tify a meritorious constitutional claim that has been procedurally
defaulted or waived by prior inadequate counsel. The accumu-
lating and often byzantlne restrictions this Court has imposed
on federal habeas corpus review, see, & g., Herrera v. Collins,
606 IIS, 890 (1998); Sawyer v. Whitley, 505 U.S. 333 (1992);
v. Tr*9nayo-Reyes, 504 U.S. 1 (1992); Coleman v. Thomp-
nan, 501 II S. 722 (1991); McCleskey v, Zant, 499 U. S. 467 (1991);
v, MeKellar, 494 U- S. 407 (1990); Teague v. Lane, 489 U. S.
June 30, 1994 512 U. S.
288 (1989), make it even less likely that future capital defendants
who receive qualified legal counsel in federal habeas actually will
obtain relief. And it is the capital defendant who pays the price
for the failings of counsel and this review process— generally with
his life*
Our system of justice is adversarial and depends for its legit-
imacy on the fair and adequate representation of all parties at
all levels of the judicial process. The trial Is the main event in
this system, where the prosecution and the defense do battle to
reach a presumptively reliable result. When we execute a capi-
tal defendant in this country, we rely on the belief that the Indi-
vidual was guilty, and was convicted and sentenced after a fair
trial, to justify the imposition of state-sponnored killing. And
when this Court curtails federal oversight of state-court proceed-
ings, it does so in reliance on the proposition that justice haw been
done at the trial level My 24 years of overseeing the imposition
of the death penalty from this Court have left me in grave doubt
whether this reliance is justified and whether the constitutional
requirement of competent legal counsel for capital defendants IB
being fulfilled. It is my hope and belief that thi« Nation «oon
will come to realize that capital punishment cannot morally or
constitutionally be imposed. Until that time, however, w<* mu«t
have the courage to recognize the failings of our present system
of capital representation and the conviction to do what i« neces-
sary to improve it.
Adhering to my belief that the death penalty cannot be im-
posed fairly within the constraints of our Constitution, Callin* v.
Collins, 510 U.S. 1141, 1148 (1994) (RLArKMrx X, dissenting),
I would grant the petition for certiorari and vacate the death
sentence.
Rehearing Denied
No. 98-7699. KARIM-PANAHI v. UNITED ET AL., 511
U a 1109;
No. 93--829S* WARREN u UNITED STATES, 611 U. a 1110;
No. 93-84QL PROMAL u VIRGINIA STATE BAR DISCIPLINARY
BOARD, 511 U S. 1090;
No. 93-8458. WOODS V. SlNGLBTABY, SECRETARY, FLORIDA
DEPARTMENT OF CORRECTION^ ET AL., Sll US. 1002; and
No. 93-8858. WHITLEY u FLORIDA, ante, p. 1210, Petitions
for rehearing denied.
ORDERS 1265
U S. July 12, 28, 29, August 1, 1994
JULY 12, 1994
Dismissal Under Rule 46
No. 92-1996, ALASKA HOUSING FINANCE CORR v. KURTH.
0, A. 9th Cir. Certiorarl dismissed under this Court's Rule 46.1.
Reported below: 980 R 2d 737.
JULY 28, 1994
Miscellaneous Order
No, A-60 (0. T. 1994), AMSDEN ET AL, v. BIDEN, CHAIRMAN,
SENATE JUDICIARY COMMITTEE, ET AL. Application for injunc-
tion, presented to JUSTICE SOUTER, and by him referred to the
Court, denied.
JULY 29, 1994
Dismissal Under Rule 46
No, JKJ- 0795. TOENOW u IMMIGRATION AND NATURALIZATION
SKKVICK. C, A. 6th Cir. Certiorari dismissed under this Court's
Rule 46.
AUGUST 1, 1994
Dismissal Under Rule 46
No. 93-1812* SEA SAVAGE, INC., ET AL. v. CHEVRON U, S. A.,
lNC» (1 A. 5th Cir. Certiorari dismissed under this Court's Rule
46,1. Reported below; 13 R 3d 888.
Certiorari Denied
No, 94-5427 (A-100). DREW u TEXAS. Ct Grim. App. Tex.
Application for stay of execution of sentence of death, presented
to JUSTICE SCALIA^ and by him referred to the Court, denied.
Ortiorari denied.
JUSTICE BLACKMUN, dissenting.
Adhering to my view that the death penalty cannot be imposed
fairly within the constraints of our Constitution, see my dissent
In Collins v, Collins, 510 U. S. 1141, 1143 (1994), I would grant
the application for stay of execution and the petition for certiorari
and would vacate the death sentence in this case.
1266 OCTOBER TERM, 1993
August 1, 2, 1994 §12 IX S.
No. 94-5446 (A-98). DREW v. SCOTT, DIRECTOR, TEXAS DE-
PARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION.
C. A. 5th Cir. Application for stay of execution of sentence of
death, presented to JUSTICE SCALIA, and by him referred to the
Court, denied. Certiorari denied. Reported below: 28 R Hd 460.
JUSTICE BLACKMUN, dissenting.
Adhering to my view that the death penalty cannot be imposed
fairly within the constraints of our Constitution, see my dissent
in Callins v. Collins, 510 U.S. 1141, 1148 (1994), I would grant
the application for stay of execution and the petition for certiorari
and would vacate the death sentence in this case.
AUGUST 2, 1994
Appointment of Marshal
It is ordered by this Court that Dale B. Bonley be, and he is
hereby, appointed Marshal of this Court, effective Augu»t 1, 1994*
Miscellaneous Orders
No. D-1356, IN HE DISBARMENT OP SEEMAR Disbarment
entered. [For earlier order herein, see 510 U.S. 1104.]
No. D-1371. IN EE DISBARMENT OF MCGRATH* Disbarment
entered. [For earlier order herein, see 510 U* S. 11744
No. D-1383. IN BE DISBARMENT OP BUDMAN. Disbarment
entered. [For earlier order herein^ see 511 US, 1027 J
No. D-1384, IN EE DISBARMENT OF WELLS. Disbarment en-
tered. [For earlier order herein, see 511 U. S, 1028.]
No. D-1388. IN EE DISBARMENT OF KLEIN. Disbarment en-
tered. [For earlier order herein, see 611 IX S. 1051.]
No. D-1390, IN EE DISBARMENT OF DUBOW, Disbarment en-
tered. [For earlier order herein* see 511 U, S. 1066*]
No. D-1393, IN RE DISBARMENT or Coincx. Disbarment en-
tered, [For earlier order herein, see 511 U S. 1104]
No, D-1394, IN RE DISBARMENT OF FARHAT. Disbarment en-
tered* [For earlier order herein, see 511 U S, 1104.]
ORDERS 1267
512 It S. August 2, 1994
No. D-1895. IN RE DISBARMENT OP MORINGIELLO. Disbar-
ment entered. [For earlier order herein, see 511 U. S. 1104.]
No. D-1897. IN RE DISBARMENT OF CLOUTIER. Disbarment
entered. [For earlier order herein, see 511 U. S. 1125.]
No. D-1898. IN RE DISBARMENT OF SLOAN. Disbarment en-
tered. [For earlier order herein, see 511 U. S. 1139.]
No. D-1402. IN RE DISBARMENT OF GRIFFIN. James H. Grif-
fin, of LOB Angeles, Cal, having requested to resign as a member
of the Bar of this Court, it is ordered that his name be stricken
from the roll of attorneys admitted to practice before the Bar of
thin Court. The rule to show cause, heretofore issued on June 6,
1094 [511 II 3, 1140], is hereby discharged,
No, D-1417. IN RE DISBARMENT OF ASBELL. It is ordered
that Samuel Aabeil, of Camden, N. J., be suspended from the
practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
No. D-1418, IN RE DISBARMENT OF GRIFFITH. It is ordered
that John B. Griffith, of Silver Spring, Md., be suspended from
the practice of law in this Court and that a rule issue, returnable
within 40 dayn* requiring him to show cause why he should not
b^ disbarred from the practice of law in this Court.
No. IM419. IN RE DISBARMENT OF LASHLEY. It is ordered
that Douglas L. Lashley, of Olney, Md., be suspended from the
practice of law in this Court and that a rule issue, returnable
within 40 day**, requiring him to show cause why he should not
b<e disbarred from the practice of law in this Court,
Na D-1420, IN BE DISBAEMENT OF BERNSTEIN. It is or-
dered that Harry J. Bernstein, of Belmore, N- Y., be suspended
from the practice of law in this Court and that a rule issue,
returnable within 40 days, requiring him to show cause why he
should not be disbarred from the practice of law in this Court.
No. D-142L IN RE DISBARMENT OF SLAN, It is ordered that
Allan G. Slan, of Rockville, Md., be suspended from the practice
of law in this Court and that a rule issue, returnable within 40
daya, requiring him to show cause why he should not be disbarred
from the practice of law in this Court,
1268 OCTOBER TERM, 1993
August 2, 1994 512 U. S.
No. D-1422. IN RE DISBARMENT OP MOSELY. It is ordered
that Fred M. Mosely, of East Cleveland, Ohio, be suspended from
the practice of law In this Court and that a rule is«ucf returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court,
No. D-142S. IN RE DISBARMENT OF OKGCHA. It it* ordered
that Nwabueze Vincent Okocha, of Cleveland, Ohio, be suspended
from the practice of law in this Court and that a rule issue,
returnable within 40 days, requiring him to show cause* why he*
should not be disbarred from the practice of law in this Court.
No. D-1424. IN RE DISBARMENT OF HOLZMANN. It is ordered
that James Charles Holzmann, of San Diego, Gal, be suspended
from the* practice of law in this Court and that a rule isBue,
returnable within 40 days, requiring him to show cause why ht4
should not be disbarred from the practice of law in this Court.
No. D-14JJ6. IN BE DISBARMENT OF It is ordered
that Harold B. Abramsf (if Los Angeles, Oal.» be Mi>pi*ndt*d from
the practice* of law in this C !ourt and that a rule issu**? returnable
within 40 days, requiring him to show why hi* should not
be disbarred from the practice of law in this Court.
No. D-1426. IN RE DISBAKMKNTT OF Nm*AN. It in ordered
that Patrick James Nolan, of Sacramento, CaL, be >uxp<*nd«*d from
the practice of law in this Court and that a rule imm*t returnable*
within 40 clays, requiring him to show why he nhcmld not
be disbarred from the practice of law in this Court
No, D-1427, IN RE Dl^BAKMKNT OF S«'HKrHTKHMAN. It 18
ordered that Lawrence Srli«'<*hlt*rm;m, of Boca Raton, Fla.» be*
suspended from the practice of law In thin Court and that a ruk*
Issue, returnable within 40 days, requiring him to i^how CHUH*
why he should not be disbarred from the practice* of law in this
Court*
No, D-142& IN RE DISBAKMKNT OF STKKXisKR<; It m or-
dered that Les Paul St^rnborg, of Sunrise, FUM be «u«pc*n<U»d
from the practice of law in this Court and that a rule issue*
returnable within 40 days, requiring him to Mhow why he
should not b€ debarred from the practice of law In thin Court,
ORDERS 1269
512 U. S, August 2, 1994
No. D-1429. IN RE DISBARMENT OF BERNARD. It is ordered
that Donald Ray Bernard, of Seabrook, Tex., be suspended from
the practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
No. D-1430. IN RE DISBARMENT OF FIELD. It is ordered that
Car! M, Field, of Cedarhurst, K Y., be suspended from the prac-
tice of law in this Court and that a rule issue, returnable within
40 day**, requiring him to show cause why he should not be dis-
barred from the practice of law in this Court.
No. D-148L IN RE DISBARMENT OF SCHMIEDER. It is or-
dered that Robert W. Schmieder, of Belleville, 111., be suspended
from the practice of law in this Court and that a rule issue,
returnable within 40 days, requiring him to show cause why he
should not be disbarred from the practice of law in this Court.
No. D-1432. IN RE DISBARMENT OF THOMPSON. It is ordered
that Bruce A. Thompson, of Fair Haven, N. J., be suspended from
the practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court,
No. D-1488. IN RE DISBARMENT OF GORGES. It is ordered
that Charles B. Corces, of Tampa, Fla., be suspended from the
practice of law in this Court and that a rule issue, returnable
within 40 dayn, requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
No, 5*2 2(>:W. ASGROW SEED CO. U WlNTERBOER ET AL., DBA
DKKBKKS, Cl A. Fed, Cir. [Certiorari granted, 511 U.S. 1029 J
Motion of the Solicitor General for leave to participate in oral
argument aa amicus curiae and for divided argument granted.
No, 93-154& MCKKNNON v. NASHVILLE BANNER PUBLISHING
Co, C. A. 6th Gin [Certiorari granted, 511 U. S. 1106 J Motion
of th* Solicitor General for leave to participate in oral argument
as amicu* curiae and for divided argument granted.
No. 0B-4S40* UNITED STATES v. MBZZANATTO, C. A- 9th Cir.
(Certiorari granted, 511 U. S. 1029 J Motion of National Associa-
tion of Criminal Defense Lawyers et al for leave to file a brief
an amwi curias granted.
1270 OCTOBER TERM,
August 2, 1994 r>12 U. S.
No. 98-1631. BENTSEN, SECRETARY OF THE TRKV^CRY v.
ADOLPH COOES Co. a A. 10th Cir. [Certiorari granted, ante,
p. 1208.] Motion of respondent to substitute Coons Brewing Co.
in place of Adolph Coors Co. granted,
No. 98-1636. SWINT ET AL. v. CHAMBERS rorx-rv COMMIS-
SION ET AL. C. A, llth Cir. {Certiorari granted, ante, p. 1204.)
Motion of petitioners to dispense with printing the joint appen-
dix granted.
No. 93-7901. SCHLUP v. DELO, SITKRINIKNI^NT, Pcmxsi
CORRECTIONAL CENTER. Cl A* 8th Cir. f Certiorari i^niuMl, 511
U. S. 1003.] Motion of Criminal Justice Legal Foundation for
leave to file a brief as amicus cunae granted.
Rehearing Denied
No. 92-7264, WALKER v. SCOTT, DIRECTOR, TKXAH DEPART-
MENT OP CRIMINAL JUSTICE, INSTITT-TIONAL DIVISION, 507 U.S.
964;
No. 93-1829. DiPiNTO ET AL. v. SPKKUNO ET AL., 511 U.S.
1082;
No. 98-1877. WARDLAW tx PICKETT ET AL., ante, p. 1204;
No. 98-1469, POXWOOD MANAGEMENT Co* ET AL. r. FKDKRAL
DEPOSIT INSURANCE CORPORATION ET AL., ante, p. 1204;
No, 93-1620, RUBENS ET AL, & SHINE, JULXANELLK, KAKP,
BQZBLKO & KARAZIN, P. C.t 511 US. 1142;
No. 93-1652. CALDERON, WAKDKN. ET AL* & H AMU/ION,
ante, p. 1220;
No. 98-1654, CRUTCHFIELD v. MCGREOOH, ante, p, 1205;
No- 93-1730. MICCIO v. NEW JERSEY DEPARTMENT OF COM-
MUNITY AFFAIRS ET AL., 511 11 S, 1129;
No* 93-1815. BUKN8-T00LE n BYRNE ET AIL, ante* p. 1207;
No. 98-1868. OETMAN v. OAKLAND COT-NTY, MICHIGAN, ET
AL,, ante, p. 1208;
No, 93-7394. McCLEMDON v. TAUKOKXIA, 511 US. 1085;
No. i«»7J«r». SMITH v. UNITED STATKS, 511 US. I ISO;
No. 93-8044. TOEGEMANN u RICH ET AL,, 511 li S* 1065;
No. u:j-8272. GAYDOS v. CHEETOFF, UNITED STATES ATTOR-
NEY, ET AL., 511 U S, 1087;
No- 98^8315, RUCHTI v. HENLEY ET AL.f 511 11 a 1088;
No. 93-8368. ASRAB v. UNITED STATES, 511 U, S.
No. 93-8486. REID v. CITY OP PONT ET AL., 511 II S. 1001;
ORDERS 1271
512 U. S. August 2, 3, 1994
No. 98-8439. CLINTON v. SMITH, WARDEN, ET AL., 511 U. S.
1091;
No. 93-8494. HAWKINS v. GREEN ET AL., 511 U. S. 1093;
No. 93-8510. MARK v. UNITED STATES ET AL., 511 U. S. 1144;
No. 93-8530. PAYNE u ESCAMBIA COUNTY SHERIFF, 511
us, mi;
No. 93-8595. KLEINSCHMIDT ET AL. U LIBERTY MUTUAL IN-
SURANCE CO. ET AL., 511 U. S. 1112;
No. 93-8619. LANGE u HEITKAMP ET AL., 511 U. S. 1131;
No. 93-8628. TAVERAS u NEW YORK DEPARTMENT OF COR-
RECTIONAL SERVICES ET AL., 511 U. S. 1132;
No. 93-8639. JEFFRESS v. BROWN, SECRETARY OF VETERANS
AFFAIRS, 511 U.S. 1112;
No, 93-8664. BURNETT u FAIRLEY ET AL., 511 U. S. 1132;
No. 93-8695. CARPENTER ET ux. u BLANKENSHIP, 511 U. S.
1183;
No. 93-8718. PROMAL u ROBINS ET AL., 511 U. S. 1133;
No. JW-8727. POOLE U HOLLAND, WARDEN, 511 U. S. 1145;
No. 03-8771. EDWARDS u HARGETT, WARDEN, ante, p. 1209;
No. 93-8807. SULE u UNITED STATES, ante, p. 1223;
No, 93-8831. BARNES v. GARETNER ET AL., ante, p. 1210;
No. 03-8861. COOLEY ET ux. u KJSTAPP ET AL., ante, p. 1210;
No. 93-891 L OKOR u UNITED STATES, 511 U. S. 1146;
No. 98-9057. NEWKIRK u SMITH, WARDEN, ET AL., 511 U. S.
1149; and
No, 93-9320. IN RE FRANZ, ante, p. 1218. Petitions for re-
hearing denied.
No. 93-10. CULLEN u TRAINOR, ROBERTSON, SMITS & WADE
KT AL*, 510 U. S. 859, Motion for leave to file petition for rehear-
ing denied*
No. 93-1448. MAKIN v. EVANS ET AL., 511 U. S. 1082. Motion
of petitioner for leave to proceed further herein in forma pan-
perm granted. Petition for rehearing denied.
AUGUST 8, 1994
Dwmwsal Under Rule 46
No, 93-1904, COLORADO u LEFTWICH ET AL. Sup. Ct. Colo.
Certlorarl dismissed under this Court's Eule 46. Reported below:
869 E 2d 1200,
1272 OCTOBER TERM,
August 3. 4, 1994 512 IT. B.
Miscellaneous Orders
No. A-79 (0. T. 1994). RiCHLEY v. NoBRis, DIKWTOH. ARKAN-
SAS DEPARTMENT OF CORRECTION, Application for stay of exe-
cution of sentence of death, presented to JUSTICE BLACKMUN, and
by him referred to the Court, denied. JUSTICE BREYKR took no
part in the consideration or decision of this application,
No. A-83 (0, T. 1994). RICHLEY ET AL. v. GAINBS KT AL. Ap-
plication for stays of execution of sentences of death, presented
to JUSTICE THOMAS, and by him referred to the Court, denied.
JUSTICE BREYER took no part in the consideration or decision of
this application.
No, A-87 (0. T. 1994), HOLMES n MORRIS* DIRECTOR, ARKAN-
SAS DEPARTMENT OF CORRECTION. Application for stay of exe-
cution of sentence of death, presented to JrsTirK THOMAS, and
by him referred to the Court, denied. JUSTICE BHKYKH took no
part in the consideration or decision of this application.
Certiorari Denied
No. 94-5469 (A-81). CLINES t\ NORRIS, PIKKCTOK. AHKANHAH
DEPARTMENT OP CORRECTION. C A. 8th Cir. Application for
stay of execution of sentence of death* presented to Ji 'STICK
BLACKMUN, and by him referred to the Court, denied. Certiorari
denied. JUSTICE BREYER took no part in the consideration or
decision of this application and this petition,
Assignment Order
Pursuant to the provisions of 2H II 8. C §42, It is ordered that
JUSTICE THOMAS be, and he Is hereby, ;ixsign<*d to the Eighth
Circuit as Circuit Justice pending further order of the Court,
ArursT 4f
Rehearing Denied
No, A-79 (0, T. 1994). RiCHLEY u NOERIS, DmKcrrou, AEKAH-
SAS DEPARTMENT OF CORRECTION, this Amendment
to the application for stay of execution is treated as a motion for
reconsideration and is denied. JUSTICE SCAOA would not treat
the amendment as a motion for reconsideration and therefore
registers no vote JUSTICE BHKYEK took no part in the conald-
eration or decision of this matter.
ORDERS 1273
512 U. S. August 4, 5, 9, 11, 1994
No. A-83 (0. T. 1994). RICHLEY ET AL. v. GAINES ET AL., ante,
p. 1272. Amendment to the application for stays of executions is
treated as a motion for reconsideration and is denied. JUSTICE
SCALIA would not treat the amendment as a motion for reconsid-
eration and therefore registers no vote. JUSTICE BREYER took
no part in the consideration or decision of this matter.
AUGUST 5, 1994
Certiorari Denied
No. 94-5016 (A-56), FIERRO v. SCOTT, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION.
C. A. 5th Oir. Application for stay of execution of sentence of
death, presented to JUSTICE SCALIA, and by him referred to the
Court, denied. Certiorari denied, JUSTICE BREYER took no
part in the consideration or decision of this application and this
petition. Reported below: 22 R 3d 1095.
AUGUST 9, 1994
Dismissal Under Rule 46
No. 98-1940. ROYAL SOVEREIGN CORP. ET AL. v. BEVERLY
HILLS FAN Co, C, A. Fed. Cir. Certiorari dismissed under this
Court'8 Rule 46. L Reported below: 21 F. 3d 1558.
AUGUST 11, 1994
Miscellaneous Order
No. A-64 (0. T. 1994). LOUISIANA ET AL. v. HAYS ET AL.; and
No. A-76 (0. T. 1994). UNITED STATES v. HAYS ET AL. Ap-
plications for Btay, presented to JUSTICE SCALIA, and by him
referred to the Court, granted, and it is ordered that the judg-
ment of the United States District Court for the Western Dis-
trict of Louisiana, Civil Action No. CV 92-1522S, filed July 25,
1994, IB stayed pending the timely filing of statements as to ju-
riKdiction in this Court, Should such statements be so timely
filed, this order ghall remain in effect pending this Court's action
on the appeals. If the judgment should be affirmed, or the ap-
peals dismissed, this stay shall expire automatically. In the event
jurisdiction is noted or postponed, this order shall remain in ef-
fect pending the sending down of the judgment of this Court.
JUSTICE SCALIA would deny the applications.
1274 OCTOBER TERM, 1993
August 18, 24, 1994 §12 U. S.
AUGUST 18, 1994
Dismissal Under Rule 1*6
No. 94-5107, MOORE u REYNOLDS, WARDEN. C, A. 10th Cir.
Certiorarl dismissed under this Court's Rule 46.
AUGUST 24, 1994
Miscellaneous Orders
No. A-41 (93-1988). RABIN v. UNITED STATES INTKIJJCJKNVK
ET AL. C. A, 2d Gin Application for stay, addressed to JUSTICE
GINSBURG and referred to the Court, denied. JUSTICE BRKYKU
took no part in the consideration or decision of this application
No. A-42 (0. T. 1994). BUENO u COLORADO. Dtet. €ts Doug-
las County, Colo. Application for stay, addre««ed to JUSTICE
SCALIA and referred to the Court, denied. JUSTICE RRKYKH took
no part in the consideration or decision of this application*
No. D-1389. IN RE DISBARMENT OF SCHWARTZ Disbarment
entered. [For earlier order herein, see 511 U. S. 1066.]
No. D-1392. IN RE DISBARMENT OF BLKDSOK* Disbarment
entered. [For earlier order herein^ see 511 U. S. 1104.]
No. D-1396. IN EE DISBARMENT OF CAIRO. Dtebarnumt en-
tered. [For earlier order herein, see 511 U.S. 1104*1
No, D-1399. IN RE DISBARMENT OF AGAJANIAN. Dinbarnumt
entered. [For earlier order herein, see 511 U. S. 11H9.)
No. D-1400. IN EE DISBARMENT OF FEGG. Disbarment en-
tered. [For earlier order herein, see 511 U. S, 11894
No. D-140L IN RE DIKBAHMKNT OF HUNT* Disbarment en-
tered* [For earlier order herein, nee 511 11 S- 11404
No. D-1404, IN RE DISBAKMKNT OF YAM ADA, Disbarment
entered. [For earlier order herein, see oil U.S. 11404
No- D-1405* IN RE DISKAHMKNT OP WAKNKK. Dinbarment
entered, [For earlier order herein, see p. 120 L]
No. D-1406. IN RE DISBARMENT OF BHKNNAN. Disbarment
entered, [For earlier order herein, see p. 1201 4
No, D-1407. IN EE DISBARMENT or ANAST, Disbarment en-
tered. [For earlier order herein, see p, 1201.]
No- D-1409. IN BE DISBARMENT OF SELLER. Disbarment en-
tered. [For earlier order herein* see p* 12024
ORDERS 1275
612 U S. August 24, 1994
No. D-4410. IN RE DISBARMENT OF VANDER VORT. Disbar-
ment entered. [For earlier order herein, see ante, p. 1217J
No. D-1412. IN RE DISBARMENT OF LEDERBERG. Disbar-
ment entered. [For earlier order herein, see ante, p. 1232 J
No. D-1434. IN RE DISBARMENT OF PERRY. It is ordered
that Harold L. Perry, of Oakland, Cai, be suspended from the
practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
No. D-1485. IN RE DISBARMENT OF MCGREEVY. It is or-
dered that Timothy J. McGreevy, of Sioux Falls, S, D., be sus-
pended from the practice of law in this Court and that a rule
issue, returnable within 40 days, requiring him to show cause why
h# should not be disbarred from the practice of law in this Court.
No, D-1486. IN RE DISBARMENT OF SIMS. It is ordered that
William Sims, of Buffalo, N. Y., be suspended from the practice
of law in this Court and that a rule issue, returnable within 40
ciayn, requiring him to show cause why he should not be disbarred
from the practice of law in this Court.
No* D-1487. IN RE DISBARMENT OF JONES. It is ordered that
Fred Everett Jones, of Memphis, Tenn., be suspended from the
practice* of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
No. D-148R, IN RE DISBARMENT OF KENNEDY. It is ordered
that Patrick JameB Kennedy, of Dallas, Tex., be suspended from
the practice* of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
No. D-14H9. IN RE DISBARMENT OP CRIST. It is ordered that
John A. Crist, of Middlctown, Ohio, be suspended from the prac-
tice of law in this Court and that a rule issue, returnable within
40 days, requiring him to show cause why he should not be dis-
barred from the practice of law in this Court.
No, D-1440. IN BE DISBARMENT OF OFFSTEIN. It is ordered
that Jorrold N. Offatein, of San Francisco, CaL, be suspended from
the practice of law in this Court and that a rule issue, returnable
1276 OCTOBER TJBKM,
August 24, 19S4 512 US.
within 40 days, requiring him to show cause why he nhould not
be disbarred from the practice of law in this Court.
No. D-1441. IN RE DISBARMENT OP HAMBH. It in ordered
that Brenda Joyce Hamerf of Glendale, Gal, be suspended from
the practice of law in this Court and that a rule issue, returnable
within 40 days, requiring her to show cause why she should not
be disbarred from the practice of law in this Court.
No. D-1442. IN RE DISBARMENT OP PELDMAN, It is ordered
that Richard Stewart Felclman, of Ushers, N. Y,, be suspended
from the practice of law in this Court and that a rule Issue,
returnable within 40 days, requiring him to show cause why he
should not be disbarred from the practice of law in this Court,
No, D-1443. IN RE DISBARMENT OF KAGAN. It i» ordered
that Philip I Kagan, of New York, N. Y,, be suspended from the
practice of law in this Court and that a rule itwue, returnable
within 40 days* requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
No. D-1444. IN EE DISBARMENT OF GASFERL It IB ordered
that Edward ML Gasperi, of Saratoga Springs N* Y., be Mu-p
from the practice of law in this Court and that a rule
returnable within 40 days, requiring him to show why hi*
should not be disbarred from the practice of law in thin Court.
No* D-1445. IN EE DISBAKMKNT OF SPARROW. It Is ordered
that Victor H, Sparrow III, of Washington, D. C.» h«t Misp^nded
from the practice of law in Court and that a rule
returnable within 40 days* requiring him to show why he*
should not be disbarred from the practice of law in this Court
No. D-1446. IN EE DISBARMENT or KKNDKHIAN. It m or-
dered that Ronald V, Kt*nderian, of Alpine, N* Jf.t be *fUHp<*nd«*cl
from the practice of law in this Court and a rule
returnable within 40 days, requiring hinm to show why hit
should not be disbarred from the of law in this Court,
No. D-1447. IN RE DISBARMENT OF CREGAN. It in ordered
that Lawrence Vincent Cre^n, of YounKHt<»wut Ohio» be
pended from the praetice of law in this Court and that m rule
issue, returnable within 40 dmysf requiring him to show why
he should not be disbarred from the of law in this Court
1277
August 24, 1994
No. D-1448. IN RE DISBARMENT OF CROWLEY. It is ordered
that Jamen Tyner Crowley, of Cleveland, Ohio, be suspended from
the practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
he disbarred from the practice of law in this Court,
No. D-1449, IN RE DISBARMENT OF LEVINE. It is ordered
that Leah? Ira Levine, of Mt. KJSGO, N. Y., be suspended from the
practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be (Unbarred from the practice of law in this Court.
fh'ht nt huj Denied
No. 92-8717. ROBINSON u TEXAS, ante, p. 1246;
N«. 93-HHO. MADSEN ET AL. u WOMEN'S HEALTH CENTER,
lN(\ KT AL,, ante, p. 758;
No. 93-1 0&*i CHANDLER v. UNITED STATES, ante, p. 1227;
No. 9JJ-1264, FEDEEACION DE MAESTROS DE PUERTO Rico u
1*1 -Kino Rico LABOR RELATIONS BOARD, 511 U. S, 1069;
No. 93-1848. ADAMS v. UNITED STATES, ante, p. 1204;
Na I*:; ir>22. MARAVILLA ET AL. u UNITED STATES, ante,
p. 1210;
No. 93-1732- GILDER u AETNA LIFE & CASUALTY, ante,
p.
No, HS» 1745. KJLPATRICK u STATE BAR OF TEXAS, ante,
p, 12311;
No. ft8~1746. TWKKDY v. AMERICAN AIRLINES, INC., ante,
p,
NIK uw-1771. CAHILLAN ET AL. u REGIONAL TRANSPORTATION
Di.vrurrr ET AL.* p, 1221;
NCI, 98-1778, SHAW u UNITED STATES, ante, p. 1222;
No* i*:; 17!>7. INSURANCE COMPANY OF NORTH AMERICA ET
AL, v. INTERNATIONAL, INC,, ante, p, 1245;
No, Jtt- 1 798. EOOD u PlNBLLAS COUNTY ET AL., ante, p. 1237;
No. 98-1799. E0SENBAUM u ROSENBAUM ET AL,, ante, p. 1222;
No, v. POLEY, SECRETARY OF DEPARTMENT
(IF AMP iNOrSTRY OP PENNSYLVANIA, ET AL., ante, p. 1238;
NCI* ft»-f>4ia* REED u PARLEY, SUPERINTENDENT, INDIANA
STATE PRISON, ET ALn ante, p. 339;
No, IM (5220. JOHNSON u ILLINOIS, ante, p, 1227;
Ma 9&-7060. WICKLIFFE u FARUEY, WARDEN, ET AL., 510
UR 1124;
1278
August 24, 19S4 312 r. S.
No. 93-7200. McCoLLUM v. NORTH CAROLINA, ante, p. 1254;
No, 98-7631. BACIGALUPO n CALIFORNIA, ante, p. 125H;
No. 93-7680. MONTIEL v. CALIFORNIA, ante, p. 1253;
No. 93-7724. BUCHANAN n UNITED STATES, ante, p. 122K;
No, 93-8220, DUVALL v. ADMINISTRATOR KASIKHN PENNSYL-
VANIA PSYCHIATRIC INSTITUTE, ET AL., 511 U.S. 1074;
No. 93-8423. HOPKINS v. UNITED STATES, ante, p. 122U;
No. 93-8442. DARDEN-BEY ET AL. l\ UNITED STATES, ante,
p. 1223;
No. 93-8478- TURXKR ?<. LUMADUE, ante, p. 1239;
No. 93-8485. JACKSON v. DEPARTMENT OF THE TKKASI u\. 51 1
U S. 1144;
No. 93-8490. GAYDOS v. NATIONAL FIRE INST-KAN'-I-, Co. KT
AL,» ante, p. 1239;
No, 93-8869. FREEMAN ?i UNITED STATKH. 511 U.K. 1KI4;
No. !«-8«»:i. IN RE MrfYKivst. ante, p. 12*fi4;
No. 93--H924. JACKSON i;. MAKEL, WARDEN, ante, p. 1224;
No. 93-8925. IN RE JACKSON, a/ifr, p. 1218;
No. 93-8970. PONCE-BEAN II CALIFORNIA FACULTY ASHN. ET
AL.f atite, p» 1241;
No. 98-8975. JONES v. WASHIN«;TON. WARDEN, ai-ifA p. 1241;
No. 93-9025. RKSNOVKR n CAHTKU, ATTOUNKY f JKNKKAI/ OF
INDIANA, ET AL*, ante, p. 1246;
No, 93-9040, ARDITI t\ IlrxvoN. POSTMASTI-:K (}ENKRAU
antet p. 1224;
No. 93-9041. DKVlTTO V. SlHGLETARY, SKCKKTAUV, FlX)RH>A
DEPARTMENT OF roRRKrnoNs, ET AL., p. 1225;
No. 93-9042. COOPER ET AL. v. MISSOT-KI BOARD OF PROBA-
TION AND PAKOLE ET AL., p.
No. 98-9120, MERIT ti UNITED STATKS. p. 1212;
No, 93-9162< WATTS a FEDERAL RfUKAt- OF PRISONS (two
canes), ante, p. 1242;
No. 98-9255* BUHL tx UNITED STATES, ante, p. 1243;
No. 93-0366* ROMANO % UNITED STATES* ante, p. 1245; and
No. 93-9483. IN EE ANDERSEN, p. Petition* for
rehearing denied. JrsTirK BHKYKR took no part In the conHider*
ation or decision of these petitions.
No. 93-44. TURXKR BHDADCASTINC; SYSTEM, INC., ET AL. v.
FEDERAL COMMUNICATIONS COMMISSION ET AUf p, 622,
Petition of Daniels Cablevision for r«*he;irin# denied* Ji'STK'K
512 U. S. August 24, 29, September 1, 6, 1994
BREYER took no part in the consideration or decision of this
petition.
No. 98-1715. JARMUSIK u MERIT SYSTEMS PROTECTION
BOARD, 511 U.S. 1148;
No, 93-8482. ELDRIDGE v. JOHNSON ET AL., 511 U. S. 1092; and
No, 93-8992. LORAH u DEPARTMENT OF HUMAN RIGHTS,
ante, p. 1241. Motions for leave to file petitions for rehearing
denied. JUSTICE BREYER took no part in the consideration or
decision of these motions.
Assignnwnt Order
An order of THE CHIEF JUSTICE designating and assigning
Justice Powell (retired) to perform judicial duties in the United
States Court of Appeals for the Fourth Circuit from September
26, 1994, through June 9, 1995, and for such time as may be
required to complete unfinished business, pursuant to 28 U. S* C.
§294(a), is ordered entered on the minutes of this Court pursuant
to 2H US, C §295.
AUGUST 29, 1994
Dlnmimal Under Rule 46
No. 93-1551. PRESTON ET AL. u FRANTZ ET AL. C. A. 2d Cir.
Ortiorari dismissed under this Court's Rule 46,1- Reported
hetow: 11 P. 3d 357.
SEPTEMBER 1, 1994
Ctfrtwrari Denied
No, 94-5887 (A-156). OTEY u STENBERG, ATTORNEY GEN-
KEAL OF NEBRASKA, ET AL. C. A. 8th Cir. Application for stay
of execution of sentence of death, presented to JUSTICE THOMAS,
and by him referred to the Court, denied. Certiorari denied.
JUSTICE STEVENS and JUSTICE GINSBURG would grant the appli-
cation for Btay of execution. JUSTICE BREYER took no part in
the consideration or decision of this application and this petition,
Reported below: 34 P. 3d 685.
SEPTEMBER 6, 1994
Di#miM*al Under Rule k&
No. 93-9279. HERNANDEZ V, BISCAYNE AQUA-CENTER, INC.
Dlst Ck App. Pla, Sd Disk Certiorari dismissed under this
Rule 46.1, Reported below: 630 So. 2d 620.
1280 OCTOBER TERM, 1993
September 7, 8f 9r 14, 1994 512 U. S.
SEPTEMBER 7, 1994
Dismissal Under Rule 46
No. 94-5240. WHITAKER v. UNITED STATES. Cl A. 9th Oir,
Certiorari dismissed under this Court's Rule 46. Reported below:
3 F. 3d 1812.
SEPTEMBER 8, 1994
Miscellaneous Order
No. 98-404. GUSTAFSON ET AL. r. ALLOYD Co., INC., PKA
ALLOYD HOLDINGS, INC., ET AL, C. A. 7th Osr. [Ortiorari
granted, 510 U.S. 1176.] The parties are ordered to file on or
before Tuesday, October 11, 1994, suppleim-nta! briefs addretw-
ing the question whether § 12(2) of the Securitien Act of
applies to secondary transactions as well as to initial nf
of securities. Oral argument in this ca^e* presently ttcheduUxi for
October 11, 1994, is postponed. Ji -STICK RTKVKNS and JUSTICE
GINSBURG dissent from the entry of the foivKoing order*
SKPTKMHKK 9f 194*4
Dismissal Under Rule 46
No, 93-1937. WACHS ET AL. n TRKVINO, A MINOE, BY AND
THROUGH HER NEXT FRIEND, HER GRANDMOTHER, CRUZ.
C. A. 9th Cir. Certiorari dismissed under thta Courts Rule 46,
Miscellaneous Order
No. 93-1151. FEDERAL ELECTIOH COMMISSION v. NRA PO-
LITICAL VICTORY FOND ET AL, C A. D. C- Cir, [Ortiorari
granted, p. 12184 This will be heard on oral argu-
ment October 11, 1994, in of No. 98-404, Gu&tafMn et aL
v. Alloyd Co., Inc.* et aL
SEPTEMBER 14, 1994
Miscellaneous Orders
No. A-2Q (94-5859). GILES v. SNOW ET AL, C. A, llth Oir.
Application for stay, addressed to JUSTICE STEVENS and referred
to the Court, denied, JUSTICE BREYEE took no part in the con-
sideration or decision of this application.
UJtUJJtLiJttb
U. a September 14, 1994
No. A-72 ((). T. 1994). McCuRDY u CRANDELL, WARDEN.
Application for bail, addressed to JUSTICE BREYER and referred
to the Court, denied,
No, A- 103 (94-5808). BROCKMAN u SWEETWATER COUNTY
SCHOOL DISTRICT No. L C, A. 10th Cir. Application for stay,
addreHBcd to THE CHIEF JUSTICE and referred to the Court, de-
nied, JUSTICE BREYER took no part in the consideration or deci-
nion of thin application.
No. A- 157 ((), T, 1994). DUFFY ET AL. u WETZLER ET AL.
App, I)iv.t Sup, Ct. N- Y., 2d Jud. Dept. Application for stay,
addn*HH«*d to JUSTICE SOUTER and referred to the Court, denied.
JUSTICE HREYKE took no part in the consideration or decision of
thi« application.
No. I)- 14 15. IN RE DISBARMENT OF MARGOLIS. Disbarment
entered. fPor earlier order herein, see ante, p. 1232.]
No. I)- 1427. IN RE DISBARMENT OF SCHECHTERMAN. Law-
rence Kchc'chterman, of Boca Raton, Fla., having requested to
resign a« a member of the Bar of this Court, it is ordered that
hi« name* be stricken from the roll of attorneys admitted to
practice before the Bar of this Court. The rule to show cause,
hi»rf*t«for«* iHHued on August 2, 1994 [ante, p. 1268], is hereby
discharged
No. D-1429. IN RK DISBARMENT OF BERNARD. Donald Ray
Hernanl, of Se&brook, Tex,, having requested to resign as a mem-
ber of the* Bar of this Court, it is ordered that his name be
Htridken from the roll of attorneys admitted to practice before the
Bar cif thin Court. The rule to show cause, heretofore issued on
August 2, 1994 [ante, p. 1269], is hereby discharged.
No. D- 14411 IN RE DISBARMENT OF KAGAN. It having been
reported to the Court that Philip L Kagan, of Toms River, N. J.,
has died, the rule to show cause, heretofore issued on August 24,
[ante, p. !27Gjt in hereby discharged.
No. D-1450- IN RE DISBARMENT OF KARCH, It is ordered
that RIeharcl L, Kareh, of Los Angeles, Gal, be suspended from
the* practice of law in this Court and that a rule issue, returnable
within 40 day**, requiring him to show cause why he should not
be debarred from the practice of law in this Court.
1282 OCTOBER TERM, 1998
September 14, 15, 1994 512 U. S.
No. D-145L IN RE DISBARMENT OF LINDER. It in ordered
that Robert Alan Lander, of Batavla, Ohio, be suspended from the
practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court,
No, D-1452. IN RE DISBARMENT OF MITWOL. It is ordered
that Michael Roger Mitwol, of Palm Harbor, Fla., be suspended
from the practice of law in this Court and that a rule iBSue,
returnable within 40 days, requiring him to show cause why he
should not be disbarred from the practice of law in this Court.
No, D-1453. IN BE DISBARMENT OF ZBLMAK It i« ordered
that Allan G. Zelman, of Arlington, Mans,, be nuspondc*<l from the
practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court,
No. D-1464. IN RE DISBARMENT OF ANTHONY. It is ordered
that William D, Anthony, of Pittsburgh, Pa.» be suspended from
the practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show why he should not
be disbarred from the practice of law in this Court.
No. D-1465. IN RE DISBARMENT OP WONG* It is ordered that
Allan Yon Kwong Wong* of Somerville, Mass., be suspended from
the practice of law in this Court and that a rule issue, returnable
within 40 days, requiring him to show cause why he should not
be disbarred from the practice of law in this Court,
No. D-1456. IN RE DISBARMENT OF FKEBDMAN. It is or-
dered that Kenneth B. Freedman, of Stow, Mass** be suspended
from the practice of law in this Court that a rule i&sue*
returnable within 40 days, requiring him to show cause why he
should not be disbarred from the practice of tow in this Court.
SEPTEMBER 15, 1994
Certwrari Dented
No. 94-6046 (A*-192). GUTIERREZ t>. SCOTT, DIRECTOR, TEXAS
DEPARTMENT OP CRIMINAL JUSTICE, INSTITUTIONAL DIVISION.
d A. 5th Cir. Application for stay of execution of sentence of
death, presented to JUSTICE SCALIA, and by him referred to the
Court, denied* Certiorari denied. JUSTICE STEVENS and Jus*
ORDERS 1283
612 U. 8. September 15, 19, 23, 1994
TICK GINSBURG would grant the application for stay of execution.
JUSTICE BREYER took no part in the consideration or decision of
thin application and this petition. Reported below: 36 R 3d 90.
SEPTEMBER 19, 1994
Dismissal Under Rule 46
No. 94-20 L STEPHENS, COMMISSIONER OF INSURANCE OF
KKNTK<:KY, IN His CAPACITY AS LIQUIDATOR OF DELTA AMERICA
RE INSURANCE Co. u INSTITUTO DE RESSEGUROS DO BRASIL
(1KB). App, Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari dis-
missed under this Court's Rule 46, Reported below: 196 App.
Div, 2d 250f 608 N. Y. S, 2d 166.
SEPTEMBER 23, 1994
Certiorari Granted — Vacated and Remanded
No, 94-218 (A-183). CITY OF BRIDGEPORT, CONNECTICUT,
ET AL* U RRIIXIKPORT COALITION FOR FAIR REPRESENTATION
ET AL» (two cases), C. A. 2d Cir. Certiorari granted, judgments
vacated, and cases remanded to the Court of Appeals with in-
structions to vacate the judgments of the United States District
Court for the District of Connecticut and then to remand the
to the District Court for further consideration in light of
Johfimn v. Zfe Grandy, ante, p, 997. The Clerk is directed to
the judgment forthwith. Application for stay, presented to
JUSTICE THOMAS, and by him referred to the Court, dismissed as
moot. JUSTICE BREYER took no part in the consideration or deci-
sion of this petition and this application. Reported below: 26
F. 3d 271 (first ease) and 280 (second case).
Order
No. A-190 (O. T. 1994). MILLER, GOVERNOR OF GEORGIA,
ET AL. u JOHNSON ET AL-;
No- A-200 (0* T. 1994), ABRAMS ET AL, u JOHNSON ET AL.; and
No. A-2Q3 (0. T. 1994). UNITED STATES u JOHNSON ET AL.
Applications for stay, presented to JUSTICE KENNEDY, and by him
referred to the Court, granted, and it is ordered that the judg-
ment of the United States District Court for the Southern District
of Georgia, Civil Action No, 194-008, dated September 12, 1994,
is stayed pending the timely filing of statements as to jurisdiction
1284 OCTOBER TERM, 1993
September 23, 26, 1994 512 II. S.
in this Court. Should such statements be so timely filed, this
order shall remain in effect pending this Court's action on the
appeals. If the judgment should be affirmed, or the appeals
dismissed, this stay shall expire automatically. In the event
jurisdiction is noted, or postponed, this order shall remain in
effect pending the sending down of the judgment of thin Court,
JUSTICE SCALIA took no part in the consideration or decision of
these applications.
SEPTEMBER 26, 19S4
Miscellaneous Orders
No. A-196 (94-5319). CLARK n SCOTT, DIRK^TOK, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION.
C. A. 5th Cir. Application for atay of execution of sentence of
death, presented to JUSTICE SCALIA, and by him referred to the
Court, granted pending the disposition by this Court of the peti-
tion for writ of certiorari. Should the* petition for writ of cwtio-
rari be denied, this stay terminates automatically. In the event
the petition for writ of certiorari in granted, thin stay shall con-
tinue pending the sending down of the judgment of this Court,
No. D-1411, IN EE DISBARMENT OF KAKS<*H. Disbarment en-
tered, [For earlier order herein, «ee antef p, 1217-3
No. D-1414. IN RE DISBARMENT OF Jon Lee
Woodside, of Portland, Ore., having requested to resign as a mem-
ber of the Bar of this Court* it is ordered that his be
stricken from the roll of attorneys admitted to practice before the
Bar of this Court* The rule to show heretofore issued on
June 27, 1994 [ante. p. 1232], is hereby
No. D-1416. IN EE DISBARMENT OF MEYBB* Diabarment
entered, [For earlier order herein, »ee ante, p. 123*1]
No. D-1418. IN EE DISBARMENT op GRIFFITH. Dtabarment
entered, [For earlier order herein, nee ante, p. 1267,]
No. D-1422. IN EE DISBARMENT OP MOHELY, Disbarment
entered, [For earlier order herein* see ante, p. 1268*3
No. D-1423. IN RE DISBARMENT or OEOCHA. Disbarment
entered, [For earlier order herein, see ante, p* 1268*1
No. D-14S8, IN EE DISBARMENT OF CORCBS* Disbannent
entered, [For earlier order herein, see p. 1209.]
ORDERS 1285
612 II S. September 26, 1994
No, D-1487. IN RE DISBARMENT OP JONES. Fred Everett
Jones, of Memphis, Term., having requested to resign as a member
of the Bar of this Court, it is ordered that his name be stricken
from the roll of attorneys admitted to practice before the Bar of
this Court, The rule to show cause, heretofore issued on August
24f im4 [ante, p. 1275], is hereby discharged.
No, D-1457. IN RE DISBARMENT OF GERLIN. It is ordered
that William Lance Gerlin, of Coral Gables, Fla., be suspended
from the practice of law in this Court and that a rule issue,
returnable within 40 days, requiring him to show cause why he
should not be disbarred from the practice of law in this Court.
No. D-1458. IN RE DISBARMENT OF COLE. It is ordered that
David Fatten Cole, of Columbia, S. C., be suspended from the
practice of law in this Court and that a rule issue, returnable
within 40 daya, requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
No, D-1459. IN RE DISBARMENT OF DURUSAU. It is ordered
that Patrick L, Durunau, of Conyers, Ga., be suspended from the
practice of law in this Court and that a rule issue, returnable
within 40 dmysf requiring him to show cause why he should not
be disbarred from the practice of law in this Court.
Na !te 2o:*s. ASGKOW SEED Co. u WINTERBOER ET AL., DBA
DKKRKKS. C A, Fed* Cir, [Certiorari granted, 511 U. S. 1029.]
Motion of respondents for additional time for oral argument
denied,
No. 93-768. MILWAUKEE BREWERY WORKERS' PENSION PLAN
R Jew. ROHUTZ RKKWINC; Co. ET AL. C. A. 7th Cir. [Certiorari
granted, ante, p. 1284.] Motion of Central States, Southeast and
Southwettt Areas Pension Fund for leave to participate in oral
argument as curiae and for divided argument denied.
No, 93-1121. PLAUT ET AL, u SPENDTHRIFT FARM, INC.,
ET AL. C. A. 6th Cir. [Certiorari granted, 511 U. S. 1141J Mo-
tions of National Association of Securities and Commercial Law
Attorneys, Pacific Mutual Life Insurance Co., and Michael B.
Dashjian for leave to file briefs as amid curiae granted. Motion
of the Solicitor General for divided argument granted.
No* 9&-116L FEDERAL ELECTION COMMISSION u NRA PO-
LITICAL VICTORY FUND ET AL. C. A. D. C. Cir, [Certiorari
1286 OCTOBER TERM,
September 26, 1994 512 II 8,
granted, ante, p. 1218J Motion of the Solicitor General for leave
to participate in oral argument as amicus curme and for divided
argument granted. JUSTICE GINSBURG took no part in the con-
sideration or decision of this motion.
No. 93-1199. STONE v. IMMIGRATION AND NATURALIZATION
SERVICE. Q A. 6th Gin [Certiorari granted, 511 U.S. 1105.J
Motion of the Solicitor General to dispense with printing the joint
appendix granted.
No. 93-1260, UNITED STATES v. LOPEZ. C, A. 5th Gir.
[Certiorari granted, 511 U. S. 1029.] Motion of Coalition to Stop
Gun Violence et al. for leave to file a brief as amid curiae mat of
time denied*
No. 98-1456. U S. TERM LIMITS, INC., ET AL. r. THORNTON
ET AL/, and
No. 93-1828. BRYANT, ATTORNEY GENERAL OF ARKANSAS e»
HILL ET AL* Sup, Ct. Ark, [Certiorari granted, ante, p. 121H.J
Motion of petitioners U. S, Term Limits, Inc., et al* for additional
time for oral argument granted* and their motion for divided
argument denied. Motion of the Attorney General of Arkansas
for additional time for oral argument and for divided argument
granted, and 15 additional minutes allotted for that purpose. Mo-
tion of respondents for additional time for oral jirgumcnt granted,
and their motion for divided argument denied. Motion of tht»
Solicitor General for leave to participate In oral arg-un^ni an ami*
cus cutiae and for divided argument granted, and an additional
15 minutes allotted for that purpose*.
No. 98-1612. NATIONSBANK OF NORTH CAEOLIMA, N. A.,
ET AL. u VARIABLE ANNUITY LIFE INST-UANCK Co. ET AL,; and
No. 98-161B* LUDWIG, COMPTROLLER OP THE tVUHKNVy, ET
AL. u VARIABLE ANNUITY LIFE INST-KAN^K Co, ET AL, C A,
5th Cm [Certiorari granted, 511 LI S. 114LJ Motion of th<* So-
licitor General for divided argument granted.
No, 03-1636, SWINT ET AL, & CHAMBERS rorxTY COMMIS-
SION ET AL, a A; llth Cir. [Certiorari grant ft! t ante* jp* 1204,1
Motion of the Solicitor General for leave to participate in oral
argument as amicm and for divided argument #ranti'tl.
No, 98-1660, ARIZONA u EVANS, Sup, Ct. Ariz- iCartlormri
granted, 511 U S, 1126J Motion of Washington Foundation
UKJDEKS 1287
IT. 8. September 26, 1994
et al for leave to participate in oral argument as amid curiae
and for divided argument denied.
(Vrfi'orari Granted
No. 93-1462. CALIFORNIA DEPARTMENT OF CORRECTIONS ET
AL. u RAMON MORALES, a A. 9th Cir. Certiorari granted.
Brief of petitioners is to be filed with the Clerk and served upon
opposing counHel on or before 8 p.m., Tuesday, November 8, 1994.
Brief of respondent IB to be filed with the Clerk and served upon
opposing counsel on or before 3 p.m., Tuesday, December 6, 1994.
A reply brief, if any> in to be filed with the Clerk and served upon
«il>l»«i>intf counsel on or before 3 p.m., Tuesday, December 20, 1994.
Thin Court's Rule 29.2 does not apply. Reported below: 16 F.
Sc! I (MIL
No. 9:1-1577. QtiALiTEx Co. v. JACOBSON PRODUCTS Co., INC.
C. A, £Hh Cir* Motions of Dr. Pepper/Seven-Up Corp., Interna-
tional Trademark Association, and American Bar Association for
leave to file* briefs as amid curiae granted. Certiorari granted
limited to Question 1 presented by the petition. Brief of peti-
tioner w to be filed with the Clerk and served upon opposing
counsel on 0r before 3 p.m., Tuesday, November 8, 1994. Brief
of m^pondt*nf is to be filed with the Clerk and served upon op-
counsel on or before 3 p*m*, Tuesday, December 6, 1994.
A reply brief. If any, ia to be filed with the Clerk and served
ufxm opposing counsel on or before 3 p.m., Tuesday, December 20,
ItllM. This <'*mrtfH Rule 29-2 does not apply. Reported below:
ia K ;
No, iw iTK'i. DIKKCTOR, OFFICE OF WORKERS' COMPENSATION
PKCXSKAMB, DEPARTMENT OF LABOR v. NEWPORT NEWS SHIP-
iti-rMiixc; & DRY DOCK Co. ET AL. C. A. 4th Cm Certiorari
granted. Brief of petitioner ia to be filed with the Clerk and
twrviti upon uppcisins eounsel on or before 8 p,m., Tuesday, No-
vi*mbc*r 8f 199-1, Hriff of respondents is to be filed with the Clerk
and wrved opposing counsel on or before 8 p.m., Tuesday,
8f 1994* A reply brief, if any, is to be filed with the
(!U*rk and Herved upon opposing counsel on or before 3 p.m., Tues-
day, December 20, 1994. This Court's Rule 29.2 does not apply.
Reported below: 8 R 8d 175,
No* i« IS2!i. MlSSOl^Rl ET AL, U JENKINS BT AL. (two cases).
(.1 A, 8th Cir. Certiorari granted. Brief of petitioners is to be
1288 OCTOBER TERM, 1993
September 26, 1994 512 U. S.
filed with the Clerk and served upon opposing counsel on or be-
fore 3 p.m., Tuesday, November 8, 1994. Brief of respondents is
to be filed with the Clerk and served upon opposing counsel on
or before 3 p.m., Tuesday, December 6, 1994. A reply brief, if
any, is to be filed with the Clerk and served upon opposing counsel
on or before 3 p.m., Tuesday, December 20, 1994. This Court's
Rule 29.2 does not apply. Reported below: 11 F. 3d 755 (first
case); 13 F. 3d 1170 (second case).
No. 93-1841. ADARAND CONSTRUCTORS, INC. v. PENA, SECRE-
TARY OF TRANSPORTATION, ET AL. C. A. 10th Cir. Certiorari
granted. Brief of petitioner is to be filed with the Clerk and
served upon opposing counsel on or before 3 p.m., Tuesday, No-
vember 8, 1994. Brief of respondents is to be filed with the Clerk
and served upon opposing counsel on or before 3 p.m., Tuesday,
December 6, 1994, A reply brief, if any, is to be filed with the
Clerk and served upon opposing counsel on or before 3 p.m., Tues-
day, December 20, 1994. This Court's Rule 29.2 does not apply.
Reported below: 16 F. 3d 1537.
No. 93-1883. ANDERSON, DIRECTOR, CALIFORNIA DEPART-
MENT OF SOCIAL SERVICES, ET AL. v. EDWARDS, GUARDIAN AD
LITEM FOR EDWARDS, ET AL. C. A. 9th Cir. Certiorari granted.
Brief of petitioners is to be filed with the Clerk and served upon
opposing counsel on or before 3 p.m., Tuesday, November 8, 1994.
Brief of respondents is to be filed with the Clerk and served upon
opposing counsel on or before 3 p.m., Tuesday, December 6, 1994.
A reply brief, if any, is to be filed with the Clerk and served upon
opposing counsel on or before 3 p.m., Tuesday, December 20, 1994.
This Court's Rule 29.2 does not apply. Reported below: 12 F.
3d 154.
No. 93-1935. CURTISS- WRIGHT CORP. u SCHOONEJONGEN ET
AL. C. A. 3d Cir. Motions of Chamber of Commerce of the
United States and National Union Fire Insurance Company of
Pittsburgh, Pennsylvania, for leave to file briefs as amid curiae
granted. Certiorari granted. Brief of petitioner is to be filed
with the Clerk and served upon opposing counsel on or before 3
p.m., Tuesday, November 8, 1994. Brief of respondents is to be
filed with the Clerk and served upon opposing counsel on or be-
fore 3 p.m., Tuesday, December 6, 1994. A reply brief, if any, is
to be filed with the Clerk and served roon opposing- counsel on
September 26, 80, 1994
or hofnn- 3 p.m., Tuesday, December 20, 1994. This Court's Rule
2H2 floes not apply. Reported below: 18 F. 3d 1034.
No. 94-226. FLORIDA BAR v. WENT FOR IT, INC., ET AL.
<*. A. llth Cir. Oertiorari granted. Brief of petitioner is to be
film! with the Clerk and nerved upon opposing counsel on or be-
fore !i p.m., Tuewday, November 8, 1994. Brief of respondents is
to hi* tlhni with the Clerk and served upon opposing counsel on
or before* 3 p.m., Tuewday, December 6, 1994. A reply brief, if
any, w to be* tiled with the Clerk and served upon opposing counsel
on or bt»foxv # p.m., Tuesday, December 20, 1994. This Court's
Rul<» 2112 doc»« riot apply. Reported below: 21 F. 3d 1038.
( *i » r f i ti m r i I)e w i cd
No, i>4» 5<X)4. WILLIAMS v. SCOTT, DIRECTOR, TEXAS DEPART-
MENT OF (CRIMINAL JUSTICE, INSTITUTIONAL DIVISION. C. A.
5th Clr, (Vrtinrari denied. Reported below: 16 F. 3d 626.
30y 1994
Order*
No. 1J3-1462 (A-204)* CALIFORNIA DEPARTMENT OF CORREC-
TIONH ET AL- i?. ItAMON MORALES. C. A. 9th Cir. [Certiorari
gran^*!!, ante, p. 1287, J Application for stay, presented to Jus-
TirK OTONNOW, and by her referred to the Court, granted, and
it ii4 ordered that the mandate of the United States Court of
Appeal** for the Ninth Circuit, case No. 92-56262, is stayed pend-
ing the* Bending down of the judgment of this Court.
*K«r th« Court'* order making allotment of Justices, see ante, p, vi.
REPORTER'S NOTE
The next page is purposely numbered 1301. The numbers between
1289 and 1301 were intentionally omitted, in order to make it possible to
publish in-chambers opinions with permanent page numbers, thus making
the official citations available upon publication of the preliminary prints of
the* United States Reports.
OPINION OF INDIVIDUAL JUSTICE
IN CHAMBERS
EDWARDS, GOVERNOR OF LOUISIANA, ET AL. v.
HOPE MEDICAL GROUP FOR WOMEN ET AL.
ON APPLICATION FOR STAY
No. A-424. Decided August 17, 1994
An application to stay the District Court's order is denied. That court
enjoined applicants, Louisiana officials, from enforcing a state law pro-
hibiting the use of public funds for abortion except when medically nec-
essary to prevent the mother's death, finding that the law is inconsistent
with what the court termed the requirement of Title XIX of the Social
Security Act that States participating in the Medicaid program fund
abortions for women whose fetuses were conceived by acts of rape or
incest. The premise that Title XIX requires participating States to
fund abortions unless federal funding for those procedures is proscribed
by the Hyde Amendment has been uniformly supported by those Courts
of Appeals that have addressed this question. It is certain that four
Justices will not be found to vote for certiorari on this question until
there is a Circuit conflict.
JUSTICE SCALIA, Circuit Justice.
Applicants, officers of the State of Louisiana, ask that I
stay an order entered by the United States District Court
for the Eastern District of Louisiana which enjoins them
from enforcing La. Rev, Stat. Ann. §40:1299.34.5 (West 1992)
while at the same time accepting federal Medicaid funds pur-
suant to Title XIX of the Social Security Act, as added, 79
Stat. 348, 42 U. S. C. § 1396 et seq. (1988 ed and Supp. IV).
The District Court stayed its judgment until 5 p.m. on Au-
gust 19, 1994. Yesterday, the Court of Appeals for the Fifth
Circuit unanimously denied the applicants7 motion for stay
pending appeal.
1301
1302 EDWARDS v. HOPE MEDICAL GROUP FOR WOMEN
Opinion in Chambers
Section 40:1299.34.5 provides in relevant part:
"[N]o public funds . . . shall be used in any way for, to
assist in, or to provide facilities for an abortion, except
when the abortion is medically necessary to prevent the
death of the mother."
The District Court concluded that this statute was inconsist-
ent with what it determined to be the requirement of Title
XIX, as modified by the 1994 version of the Hyde Amend-
ment, Pub. L. 103-112, §509, 107 Stat. 1113, that States par-
ticipating in the Medicaid program fund medically necessary
abortions upon fetuses conceived by acts of rape or incest.
Accordingly, it ordered applicants either to cease enforcing
§40:1299.34.5 or to withdraw from participation in the Medic-
aid program. Hope Medical Group for Women v. Edwards,
No. 94-1129 (ED La., July 28, 1994).
The practice of the Justices has consistently been to grant
a stay only when three conditions obtain. There must be
a reasonable probability that certiorari will be granted, a
significant possibility that the judgment below will be re-
versed, and a likelihood of irreparable harm (assuming the
applicants7 position is correct) if the judgment below is not
stayed. Barnes v. E-Systems, Inc. Group Hospital Medi-
cal & Surgical Ins. Plan, 501 U. S. 1301, 1302 (1991) (SCALIA,
J., in chambers). Moreover, when a district court judgment
is reviewable by a court of appeals that has denied a motion
for a stay, the applicant seeking an overriding stay from
this Court bears "an especially heavy burden," Packwood v.
Senate Select Comm. on Ethics, 510 U. S. 1319, 1320 (1994)
(REHNQUIST, C. J., in chambers).
Under this standard, I have no authority to stay the judg-
ment here. The only issue potentially worthy of certiorari
is the premise underlying the District Court's decision: that
Title XIX requires States participating in the Medicaid pro-
gram to fund abortions (at least "medically necessary" ones)
fed Aral frmdincr for those procedures is Droscribed bv
Cite as: 512 U. S. 1301 (1994) 1303
Opinion in Chambers
the Hyde Amendment. The Courts of Appeals to address
this question have uniformly supported that premise. See
Roe v. Casey, 623 R 2d 829, 831, 834 (CAS 1980); Hodgson v.
Board of County Comm'rs of Hennepin, 614 F. 2d 601, 611
(CAS 1980); Zbaraz v. Quern, 596 F. 2d 196, 199 (CAT 1979),
cert, denied, 448 U S. 907 (1980); Preterm, Inc. v. Dukakis,
591 F. 2d 121, 126-127, 134 (CA1), cert, denied, 441 U, S. 952
(1979). We have already denied certiorari in two of those
cases, and it is in my view a certainty that four Justices will
not be found to vote for certiorari on the Title XIX question
unless and until a conflict in the Circuits appears.
Accordingly, the application for a stay of the judgment of
the District Court for the Eastern District of Louisiana is
denied.
STATEMENT SHOWING THE NUMBER OF CASES FILED, DISPOSED OF AND REMAINING ON
DOCKETS AT CONCLUSION OF OCTOBER TERMS, 1991, 1992 AND 1993
ORIGINAL
PAID
IN FORMA PAUPERIS
TOTALS
1991
1992
1993
1991
1992
1993
1991
1992
1993
1991
1992
1993
Number of cases on dockets _
12
1
12
1
12
1
2,451
2,072
2,441
2,099
2,442
2,065
4,307
3,755
4,792
4,256
5,332
4,616
6,770
5,828
7,245
6,356
7,786
6,682
Number disposed of during term ..__..
Number remaining on dockets
11
11
11
369
342
377
552
536
716
942
889
1,104
OSP<* argiied during term ____.
TERMS
1991
1992
1993
127
120
3
4
120
75
66
116
111
M
0
100
109
46
99
93
6
0
2 99
3 70
2 40
Number disposed of by full opimc
Number disposed of by per curiai
Number set for reargument
ms__
n opimo
ns
Cases granted review this term „„„ _,_„__„„„_
Cases reviewed and decided without oral argument
Total cases to be available for argument at outset of i
ollowin|
r term___ _-_„._ „_ ,_ „
1 Does not include No, 91-2086, dismissed per Rule 46, April 12, 1993
2 Includes 93-714, suggestion of mootness
3 Includes 92-6259, denied June 14, 1993
JUNE 30, 1994
INDEX
ABORTIONS. Bee Constitutional Law, VI, 4; Stays.
ADMINISTRATIVE PROCEDURE ACT.
Rwjitit da i/na— -Labor Department rule — Burden of persuasion-
Lahor I)«partm<'nt'H "true doubt" rule, which shifts burden of persuasioi
to party opposing a claim for benefits under Black Lung Benefits Act o
Longshore' and Harbor Workers' Compensation Act when evidence i
equally balanced, violate §7(c) of APA. Director, Office of Workers
(-omiwnBalion Piognuns v. Greenwich Collieries, p. 267.
ADMISSION OF EVIDENCE. See Evidence.
ADVERTISING BY ATTORNEYS. See Constitutional Law, VI, 3.
ANTI-DRUG ABUSE ACT OF 1988.
dffendantu— Right to qualified counsel in habeas corpus pro
ct'i>diri(/x.—A capital defendant need not file a formal habeas petition ii
order to invoke Act's right to qualified legal representation in federa
halnsatt proewdingH and to establish a federal court's jurisdiction to staj
<*xraition. McFarland v. Scott, p. 849,
APPORTIONMENT. See Voting Rights Act of 1965, 2.
ARBITRATION. See Labor.
ATTORNEY ADVERTISING. See Constitutional Law, VI, 3.
BENEFITS CLAIMS. See Administrative Procedure Act.
BLACK LUNG BENEFITS ACT. See Administrative Procedure Act
BUILDING PERMITS. See Constitutional Law, IV.
BURDEN OF PERSUASION. See Administrative Procedure Act.
CABLE TELEVISION CONSUMER PROTECTION AND COMPETI
TION ACT OF 1992. See Constitutional Law, VI, 1.
CALIFORNIA. See Conflict of Laws; Constitutional Law, I, 1;
Labor; Taxes.
CAPITAL MURDER. See Anti-Drug Abus« Act of 1988; Constitu-
tional Law, I; in, 1.
1305
1306 INDEX
CERTIFIED FINANCIAL PLANNER. See Constitutional Law, VI, 3.
CERTIFIED PUBLIC ACCOUNTANT See Constitutional Law, VI,
3.
CIGARETTE TAXES. See Indian Trader Statutes.
CIVIL RIGHTS ACT OF 1871. See also Labor.
Damages for alleged unlawful conviction. — In order to recover dam-
ages for an allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render a convic-
tion or sentence invalid, a plaintiff bringing suit under 42 U. S. C. § 1983
must prove that conviction or sentence has been reversed on appeal, ex-
punged by executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal court's
issuance of a writ of habeas corpus. Heck v. Humphrey, p. 477.
COLLECTIVE-BARGAINING AGREEMENTS. See Railway Labor
Act.
COMMERCE CLAUSE. See Constitutional Law, II; Taxes.
COMMERCIAL SPEECH. See Constitutional Law, VI, 3.
COMMUNICATIONS.
Long distance telephone carriers — Tariff filing. — Federal Communica-
tions Commission's decision to make tariff filing optional for all nondomi-
nant long distance telephone carriers is not a valid exercise of its power to
''modify" any requirements of 47 U. S. C. §203. MCI Telecommunications
Corp. v. American Telephone & Telegraph Co., p. 218.
COMPULSORY SELF-INCRIMINATION. See Constitutional Law,
VII.
CONFLICT OF LAWS.
Tort liability — Rule of decision to be applied in federal court. — In a
suit by Federal Deposit Insurance Corporation as receiver of a California
savings and loan, California rule of decision, rather than a federal common-
law rule, governed tort liability of attorneys who provided services to
bank. O'Melveny & Myers v. FDIC, p. 79.
CONSTITUTIONAL LAW. See also Civil Rights Act of 1871; Taxes.
I. Cruel and Unusual Punishment.
1. Capital murder — Penalty -phase factors — Factors — facts of crime,
use of force or violence, and defendant's age — that two California juries
considered during penalty phase of petitioners' capital murder trials
are not unconstitutionally vague under Cruel and Unusual Punishments
Clause. Tuilaepa v. California, p. 967.
INDEX 1307
CONSTITUTIONAL LAW— Continued.
2. Death penalty— Admission of evidence of prior death sentence — Due
process— Admission of evidence regarding Romano's prior death sentence
at sentencing phase of subsequent state-court trial for first-degree murder
clid not amount to constitutional error under Eighth and Fourteenth
Amendments, Romano v. Oklahoma, p. 1.
II. Discrimination Against Interstate Commerce.
Milk pricing order — A Massachusetts pricing order, which subjects
fluid milk sold by dealers to retailers to an assessment that is funded
through dealers' "premium payments" and distributed to m-state dairy
farmers, unconstitutionally discriminates against interstate commerce.
Went Lynn Creamery, Inc. v. Healy, p. 186.
III. Due Process.
L Death penalty—Jury instructions. — South Carolina Supreme
Court's decision that due process was not violated by trial court's refusal
to instruct sentencing jury in petitioner's capital murder trial that he was
parole ineligible if sentenced to life imprisonment is reversed. Simmons
v. South Carolina, p. 154.
2. E*tat$ taxes— Retroactive application of Internal Revenue Code
(tnwtidwwnk— Because retroactive application of 1987 amendment to 26
1 1. 8. (1 §2057— which limited availability of estate tax deduction for pro-
ceeds of stock sales to employee stock-ownership plans — is rationally re-
lated to a legitimate legislative purpose, amendment, as applied to Carl-
ton's 1986 transactions, is consistent with Due Process Clause. United
Ktates v, Garlton, p« 26.
8, Punitive damages awards— Judicial review. — Oregon's denial of
judicial review of size of punitive damages awards violates Fourteenth
Amendment's Due Process Clause, Honda Motor Co. v. Oberg, p. 415.
IV* Eminent Domain*
Conditions on building permit— Dedication of private land for public
KK#.~Conditioning city'8 approval of petitioner's building permit on dedi-
cation of part of her land to a pedestrian/bicycle pathway and part to a
public tfn»i*nway constitutes an unconstitutional taking of property.
Dolan v. City of Tigard, p* 874.
V. Establishment of Religion.
School diMrwt— Boundaries coextensive with religious group's vil-
la^#.~~New York's special law creating a school district coextensive with
boundaries of a village inhabited exclusively by practitioners of a strictly
observant form of Judaism violates First Amendment's Establishment
Clause. Board of Ed, of Kiryas Joel Village School Dist. v. Grumet, p. 687.
1308 INDEX
CONSTITUTIONAL LAW— Continued.
VI. Freedom of Speech.
1. Cable Television Consumer Protection and Competition Act of
1992 — Must-carry provisions. — District Court order granting appellants
summary judgment and finding Act's must-carry provisions consistent
with First Amendment is vacated. Turner Broadcasting System, Inc. v.
FCC, p. 622.
2. City ordinance — Ban on residential signs. — City's ordinance, which
bans almost all residential signs, violates a Ladue resident's right to free
speech. City of Ladue v. Gilleo, p. 43.
3. Commercial speech — Law practice advertising. — Respondent Ac-
countancy Board's decision to censure attorney for using designations
"Certified Public Accountant" and "Certified Financial Planner" in her law
practice advertising and other communication is incompatible with First
Amendment. Ibanez v. Florida Dept. of Business and Professional Regu-
lation, Bd. of Accountancy, p. 136.
4. State-court injunction — Restriction on abortion clinic protests. — A
content-neutral, state-court injunction restricting abortion clinic protests
is valid in part and invalid in part under applicable First Amendment
standard: whether it burdens no more speech than necessary to serve
a significant government interest. Madsen v. Women's Health Center,
Inc., p. 753.
VII. Privilege Against Self-Incrimination.
Waiver of Miranda rights — Request for an attorney. — After a knowing
and voluntary waiver of rights under Miranda v. Arizona, 384 U. S. 436,
law enforcement officers may continue questioning until and unless sus-
pect clearly requests an attorney. Davis v. United States, p. 452.
VIII. Right to Jury Trial.
Contempt fines — Violations of strike injunction. — Senous contempt
fines imposed on a union for violations of a strike injunction wer^ criminal
and constitutionally could be imposed only through a jury trial. Mine
Workers v. Bagwell, p. 821.
CONTEMPT FINES. See Constitutional Law, VIII.
CORPORATE INCOME TAXES. See Taxes.
COUNTY COMMISSION ELECTIONS. See Voting Rights Act of
1965, 1.
CRIMINAL LAW. See Anti-Drug Abuse Act of 1988; Constitutional
Law, I; VII; VIII; Evidence; Habeas Corpus; Jury Instructions.
CRUEL AND UNUSUAL PUNISHMENT. See Constitutional Law, L
INDEX 1309
DAMAGES. See Civil Rights Act of 1871; Constitutional Law, III, 3.
DEATH PENALTY, See Constitutional Law, I; III, 1.
DEDICATION OF PRIVATE LAND FOR PUBLIC USE. See Constitu-
tional Law, IV.
DETAINERS. See Habeas Corpus.
DISABILITY BENEFITS. See Administrative Procedure Act.
DISCHARGE OF EMPLOYEES. See Railway Labor Act.
DISCRIMINATION AGAINST FOREIGN COMMERCE. See Taxes.
DISCRIMINATION AGAINST INTERSTATE COMMERCE. See Con-
stitutional Law, II; Taxes.
DISCRIMINATION ON BASIS OF RACE. See Voting Rights Act of
1965, 2.
DRUGS, See Anti-Drug Abuse Act of 1988.
DUE PROCESS. See Constitutional Law, I, 2; III; Taxes.
DUTY TO WARN. See Longshore and Harbor Workers' Compensa-
tion Act.
EDUCATIONAL EXPENSES AS REIMBURSABLE MEDICARE
COSTS. See Social Security.
EIGHTH AMENDMENT. See Constitutional Law, I.
ELECTIONS. See Voting Rights Act of 1965.
EMINENT DOMAIN. See Constitutional Law, IV.
EMOTIONAL DISTRESS. See Federal Employers' Liability Act,
EMPLOYER AND EMPLOYEES. See Administrative Procedure Act;
Federal Employers' Liability Act; Labor; Railway Labor Act.
ESTABLISHMENT OF RELIGION. See Constitutional Law, V.
ESTATE TAXES. See Constitutional Law, III, 2.
EVIDENCE.
Federal Rules of Evidence — Admission of hearsay — Statements
against penal interest — Rule 804(b)(3)'s hearsay exception for statements
against penal interest does not allow admission of non-self-inculpatory
1310 INDEX
EVIDENCE— Continued.
statements, even those made within a broader narrative that is generally
self-inculpatory. Williamson v. United States, p. 594.
FEDERAL EMPLOYERS' LIABILITY ACT.
Negligent infliction of emotional distress — Standard for evaluation of
claims. — Common-law "zone of danger" test is proper standard for evalu-
ating FELA claims for negligent infliction of emotional distress. Consoli-
dated Rail Corporation v. Gottshall, p. 532.
FEDERAL RULES OF EVIDENCE. See Evidence.
FEDERAL-STATE RELATIONS. See Constitutional Law, II; Indian
Trader Statutes; Railway Labor Act.
FEDERAL TAXES, See Constitutional Law, III, 2.
FIFTH AMENDMENT. See Constitutional Law, III, 2; IV; VII
FINES. See Constitutional Law, VIII.
FIRST AMENDMENT. See Constitutional Law, V; VI
FIRST-DEGREE MURDER. See Constitutional Law, I
FLORIDA. See Constitutional Law, VI, 3; Voting Rights Act of
1965, 2.
FOREIGN COMMERCE. See Taxes.
FOURTEENTH AMENDMENT. See Constitutional Law, I, 2; III, 1,
3; IV.
FREEDOM OF SPEECH. See Constitutional Law, VI.
GEORGIA. See Voting Rights Act of 1965, 1.
HABEAS CORPUS. See also Anti-Dreg Abuse Act of 1988-
Detainer — Speedy trial — A state court's failure to observe Interstate
Agreement on Detainers' Article IV(c) speedy trial rule is not cognizable
under 28 U. S. C. §2254, where defendant did not object to his trial date
when it was set and suffered no prejudice from delay. Reed v. Farley,
p. 339.
HEARSAY. See Evidence.
HOSPITAL MEDICARE REIMBURSEMENT, See Social Security,
HYDE AMENDMENT. See Stays.
INCOME TAXES. See Taxes.
Evidence.
INDEX 1311
INDIAN TRADER STATUTES.
State cigarette taxes — Pre-emption. — State regulations — which impose
recordkeeping requirements and quotas on quantity of untaxed cigarettes
wholesalers can sell to Indian tribes in order to prevent non-Indians from
escaping tax by purchasing such cigarettes — do not violate federal Indian
Trader Statutes. Department of Taxation and Finance of N. Y. v. Milhelm
Attea & Bros., p. 61.
INJUNCTIONS. See Constitutional Law, VI, 4; VIII
INSANITY DEFENSE REFORM ACT OF 1984. See Jury In-
structions.
INTERNAL REVENUE CODE. See Constitutional Law, III, 2.
INTERSTATE AGREEMENT ON DETAINERS. See Habeas Corpus.
INTERSTATE COMMERCE. See Constitutional Law, II; Taxes.
JUDICIAL REVIEW OF PUNITIVE DAMAGES AWARDS. See Con-
stitutional Law, III, 3.
JURIES. See also Constitutional Law, I, 1; III, 1; VIII.
Instructions — Federal criminal charges — Consequences of a verdict of
"not guilty by reason of insanity." — A federal district court is not re-
quired to instruct a jury as to consequences to defendant of a verdict of
not guilty by reason of insanity, either under Insanity Defense Reform Act
of 1984 or as a matter of general federal criminal practice. Shannon v.
United States, p. 573.
LABOR. See also Administrative Procedure Act; Constitutional
Law, VIII; Railway Labor Act.
National Labor Relations Act — State-law wage and penalty claims —
Pre-emption. — California's refusal to enforce state-law wage and penalty
claims by employees subject to a labor agreement containing an arbitra-
tion clause abridges employees' federal NLRA rights and is pre-empted,
and they may seek relief under 42 U. S. C. § 1983. Livadas v. Bradshaw,
p. 107.
LATENT DEFECTS IN SHIP'S CARGO AREAS. See Longshore and
Harbor Workers' Compensation Act.
LEGAL REPRESENTATION. See Anti-Drag Abuse Act of 1988.
LONG DISTANCE TELEPHONE CARRIERS. See Communications.
LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT.
See also Administrative Procedure Act.
Latent defects — Duty to warn. — Under § 5 of Act, a vessel's duty to
warn of latent defects in cargo stow and cargo area does not require vessel
1312 INDEX
LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT—
Continued.
to supervise loading stevedore's operations or to inspect completed stow.
Howlett v. Birkdale Shipping Co., p. 92.
LOUISIANA. See Stays.
MASSACHUSETTS. See Constitutional Law, II.
MEDICAID. See Stays.
MEDICAL SCHOOLS. See Social Security.
MEDICARE. See Social Security.
MILK PRICES. See Constitutional Law, II.
MIRANDA RIGHTS. See Constitutional Law, VII.
MURDER. See Anti-Drug Abuse Act of 1988; Constitutional Law,
I; III, 1.
MUST-CARRY RULES. See Constitutional Law, VI, 1.
NATIONAL LABOR RELATIONS ACT. See Labor.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS. See Fed-
eral Employers1 Liability Act.
NEW YORK. See Constitutional Law, V; Indian Trader Statutes.
OKLAHOMA. See Constitutional Law, I, 2.
OREGON. See Constitutional Law, III, 3.
PRE-EMPTION OF STATE LAW. See Indian Trader Statutes; Labor.
PRIVATE PROPERTY TAKEN FOR PUBLIC USE. See Constitu-
tional Law, IV.
PRIVILEGE AGAINST SELF-INCRIMINATION. See Constitutional
Law, VII.
PROPERTY RIGHTS. See Constitutional Law, IV.
PROTESTS. See Constitutional Law, VI, 4,
PROVIDER REIMBURSEMENT. See Social Security.
PUBLIC FUNDS FOR ABORTIONS. See Stays.
PUNITIVE DAMAGES. See Constitutional Law, III, 3.
RACIAL BLOC VOTING. See Voting Rights Act of 1965, 2.
RACIAL DISCRIMINATION. See Voting Rights Act of 1965, 2.
INDEX 1313
RAILWAY LABOR ACT.
Pre-emption of wrongful discharge action.— Act does not pre-empt
state-law wrongful discharge actions that are independent of a collective-
bargaining agreement. Hawaiian Airlines, Inc. v. Norris, p. 246.
REAPPORTIONMENT. See Voting Rights Act of 1965, 2.
REIMBURSEMENT UNDER MEDICARE. See Social Security.
RETROACTIVITY OF FEDERAL LAWS. See Constitutional Law,
III, 2.
RIGHT TO COUNSEL. See Anti-Drug Abuse Act of 1988.
RIGHT TO JURY TRIAL. See Constitutional Law, VIII.
RIGHT TO REMAIN SILENT. See Constitutional Law, VII.
RULES OF DECISION. See Conflict of Laws.
SAVINGS AND LOANS. See Conflict of Laws.
SCHOOL DISTRICT BOUNDARIES. See Constitutional Law, V
SECTION 2. See Voting Rights Act of 1965.
SECTION 1983. See Civil Rights Act of 1871; Labor.
SELF-INCRIMINATION. See Constitutional Law, VII; Evidence.
SELF-INCULPATORY STATEMENTS. See Evidence.
SENTENCING. See Constitutional Law, I.
SIGNAGE BANS. See Constitutional Law, VI, 2.
SIXTH AMENDMENT. See Constitutional Law, VIII.
SOCIAL SECURITY. See also Stays.
Medicare — Reimbursement — Hospital educational costs. — Secretary of
Health and Human Services7 interpretation of 42 CPR §413.85(c) to forbid
reimbursement to hospitals for educational costs that were borne in prior
years by requesting hospital's affiliated medical school is a reasonable
construction of regulatory language. Thomas Jefferson Univ. v. Shalala,
p. 504.
SOUTH CAROLINA. See Constitutional Law, III, 1.
SPEEDY TRIALS. See Habeas Corpus.
STATEMENTS AGAINST PENAL INTEREST, See Evidence.
STATE TAXES. See Indian Trader Statutes:
1314 INDEX
STAYS.
State abortion restriction inconsistent with Hyde Amendment. — Loui-
siana officials' request for a stay of a District Court order enjoining them
from enforcing a state law — which prohibits use of public funds for abor-
tion except where necessary to prevent mother's death— on ground that
it is inconsistent with Hyde Amendment requirement that Medicaid fund
abortions for women who conceived by acts of rape or incest, is denied.
Edwards v. Hope Medical Group for Women (SCALIA, J., in chambers),
p. 1301.
STEVEDORE OPERATIONS. See Longshore and Harbor Workers'
Compensation Act.
SUPREME COURT.
1. Retirement of JUSTICE BLACKMUN, p. vn.
2. Appointment of JUSTICE BREYER, p. XL
3. Retirement of Alfred Wong as Marshal, p. xv.
4. Appointment of Dale E. Bosley as Marshal, p. xv.
5. Term statistics, p. 1304.
TAKING OF PRIVATE PROPERTY FOR PUBLIC USE. See Constitu-
tional Law, IV.
TARIFF FILINGS. See Communications.
TAXES. See also Constitutional Law, III, 2; Indian Trader Statutes*
State corporate income tax — Constitutionality. — California's corporate
income tax, determined using a worldwide reporting scheme, is not uncon-
stitutional under Due Process Clause or Commerce Clause when applied
to foreign-based multinational corporations or to domestic corporations'
income earned outside country. Barclays Bank PLC v. Franchise Tax
Board of Cal., p. 298.
TELEPHONES. See Communications.
TELEVISION, See Constitutional Law, VI, 1.
TRIALS. See Habeas Corpus.
"TRUE DOUBT" RULE. See Administrative Procedure Act.
UNIONS. See Constitutional Law, VIII
VOTING RIGHTS ACT OF 1965.
1. Vote dilution — County commission election, — Court of Appeals*
order that practice in Bleckley County, Georgia, of electing a single county
commissioner, rather than a multimember board of commissioners^ is sub-
INDEX 1315
VOTING RIGHTS ACT OF 1965— Continued.
ject to challenge as dilutive under § 2 of Act is reversed. Holder v. Hall,
p. 874.
2. Vote dilution — Reapportionment scheme. — Section 2 was not vio-
lated where, in spite of continuing discrimination and racial bloc voting in
Florida, minority voters formed effective voting majorities in a number
of districts roughly proportional to their respective shares in voting-age
population. Johnson v. De Grandy, p. 997.
WAGE CLAIMS. See Labor.
WAIVER OF MIRANDA RIGHTS. See Constitutional Law, VII.
WRONGFUL DISCHARGE. See Railway Labor Act.
"ZONE OF DANGER" TEST. See Federal Employers' Liability Act.
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