UNITED STATES REPORTS VOLUME 442 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1978 May 24 Through June 20, 1979 Together With Opinions of Individual Justices in Chambers HENRY C. LIND REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1981 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS WARREN E. BURGER, Chief Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. POTTER STEWART, Associate Justice. BYRON R. WHITE, Associate Justice. THURGOOD MARSHALL, Associate Justice. HARRY A. BLACKMUN, Associate Justice. LEWIS F. POWELL, Jr., Associate Justice. WILLIAM H. REHNQUIST, Associate Justice. JOHN PAUL STEVENS, Associate Justice. retired STANLEY REED, Associate Justice. WILLIAM 0. DOUGLAS, Associate Justice. OFFICERS OF THE COURT GRIFFIN B. BELL, Attorney General. WADE H. McCREE, Jr., Solicitor General. MICHAEL RODAK, Jr., Clerk. HENRY C. LIND, Reporter of Decisions. ALFRED WONG, Marshal. ROGER F. JACOBS, Librarian. in 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, viz.: For the District of Columbia Circuit, Warren E. Burger, Chief Justice. For the First Circuit, William J. Brennan, Jr., Associate Justice. For the Second Circuit, Thurgood Marshall, Associate Justice. For the Third Circuit, William J. Brennan, Jr., Associate Justice. For the Fourth Circuit, Warren E. Burger, Chief Justice. For the Fifth Circuit, Lewis F. Powell, Jr., Associate Justice. For the Sixth Circuit, Potter Stewart, Associate Justice. For the Seventh Circuit, John Paul Stevens, Associate Justice. For the Eighth Circuit, Harry A. Blackmun, Associate Justice. For the Ninth Circuit, William H. Rehnquist, Associate Justice. For the Tenth Circuit, Byron R. White, Associate Justice. December 19, 1975. (For next previous allotment, see 404 U. S., p. v.) IV TABLE OF CASES REPORTED Note: All undesignated references herein to the United States Code are to the 1976 edition. Cases reported before page 901 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 901 et seq. are those in which orders were entered. Opinions reported on page 1301 et seq. are those written in chambers by individual Justices. Page Aberdeen & Rockfish R. Co. v. United States....................... 946 Acting Chief Probation Officer v. Michael C....................... 707 Addonizio; United States v........................................ 178 Adler, Barish, Daniels, Levin & Creskoff; Epstein v............... 907 ADM Industries, Inc.; Manufacturers Systems, Inc. v............... 918 Administrator, EPA v. Pacific Legal Foundation.................... 928 Agee v. United States............................................. 944 Ahmad v. Rodak.................................................... 914 Alaska; United States v........................................... 937 Alexander v. Estelle.............................................. 914 Alexander v. Illinois............................................. 945 Allegheny-Ludlum Steel Corp.; Alston v............................ 943 Allen; Tom Benson Chevway Rental & Leasing, Inc. v................ 930 Allen; Ulster County Court v...................................... 140 Allstate Insurance Co. v. Kelley.................................. 934 Allustiarte v. Peters............................................. 942 Alston v. Allegheny-Ludlum Steel Corp............................. 943 American Petroleum Institute; Industrial Union Dept, v.......... 938 American Petroleum Institute; Marshall v.......................... 938 AMF Inc.; Grayhill, Inc. v........................................ 930 Anderson; Machinists & Aerospace Workers v........................ 921 Andress; Stein v.................................................. 907 Andrus v. Sierra Club............................................. 347 Andrus v. Utah.................................................... 928 Anker; Brooks v................................................... 930 Anzaldua v. California............................................ 943 Aponte v. Secretary of Health, Education, and Welfare............. 948 Apostol v. United States.......................................... 933 Arambasich v. United States....................................... 916 V VI TABLE OF CASES REPORTED Page Arizona; Griffith v............................................. 936 Arizona; White v................................................ 936 Arizona State Tax Comm’n; Central Machinery Co. v............... 927 Arkansas; Brenneman v.......................................... 931 Arkansas v. Sanders............................................. 753 Arnold v. Johnson............................................... 935 Arnone v. United States......................................... 917 Assistant Hospital Administrator; Harrell v..................... 932 Association. For labor union, see name of trade. Atkins v. Louisiana............................................. 935 Atlantic Richfield Co. v. Thibodaux............................. 909 Attorney General; Ho Yin Wong v................................. 933 Attorney General of Michigan; Allstate Insurance Co. v.......... 934 Automobile Club of Michigan v. Bell............................. 918 Avedisian v. Hubbard............................................ 918 Avery; Kentucky v............................................... 914 Avon Products; Friedman v....................................... 911 Babbitt v. Farm Workers..................................... 289,936 Bain v. Califano................................................ 911 Baker v. Estelle................................................ 932 Baldwin; Safeguard Co. v........................................ 910 Bank of the Commonwealth; Roth v................................ 925 Baptist Hospital, Inc.; Labor Board v........................... 773 Barnes v. United States......................................... 913 Basciano v. Herkimer............................................ 929 Batchelder; United States v..................................... 114 Beaumont v. Michigan Department of Labor........................ 918 Beech Aircraft Corp. v. Braband................................. 928 Beggans v. Public Funds for Public Schools of N. J.............. 907 Bell; Automobile Club of Michigan v.. .......................... 918 Bell; Ho Yin Wong v............................................. 933 Bell v. New Jersey.............................................. 918 Belle v. United States.......................................... 911 Bell & Howell Co. v. Labor Board................................ 942 Bello v. Texas.................................................. 935 Benson Chevway Rental & Leasing, Inc. v. Allen.................. 930 Blackbum; Mallery v............................................ 940 Blackbum; Sam v................................................. 912 Blackburn; Tubbs v.............................................. 920 Bloomer v. Liberty Mutual Insurance Co.......................... 939 Blumenthal; O’Hair v............................................ 939 Board of Election Comm’rs of Chicago; Libertarian Party of Ill. v.. 918 Board of Governors of Federal Reserve System; Citicorp v....... 929 Bomber v. United States......................................... 919 TABLE OF CASES REPORTED vn Page Boothe v. Greater New York Savings Bank.......................... 921 Bordenkircher; Thacker v......................................... 912 Boring v. Mississippi............................................ 916 Braband; Beech Aircraft Corp, v.................................. 928 Braden; Charbonnet v............................................. 914 Brannon; Kentucky v.............................................. 914 Breest v. New Hampshire.......................................... 931 Brenneman v. Arkansas............................................ 931 Brinegar v. Metropolitan Branches of Dallas NAACP................ 938 Brokenleg v. Butts............................................... 946 Brooks v. Anker.................................................. 930 Brooks v. Washington Terminal Co................................. 910 Brotherhood. For labor union, see name of trade. Broward v. United States......................................... 941 Brown v. Felsen.................................................. 127 Brown; Nolen v................................................... 933 Brown v. United States....................................... 913,945 Bryant; California Brewers Assn, v............................... 916 Bub Davis Packing Co. v. United States........................... 924 Burks v. Lasker.................................................. 937 Burson v. Engle................................................. 944 Busic v. United States........................................... 916 Butler v. Dexter................................................. 929 Butts; Brokenleg v............................................... 946 Byrd; Ross v..................................................... 936 Byrne v. Public Funds for Public Schools of N. J................. 907 C.; Fare v....................................................... 707 Califano; Bain v................................................. 911 Califano; Miner v................................................ 931 Califano v. Yamasaki............................................. 682 California; Anzaldua v.......................................... 943 California; Chirolde v.......................................... 910 California; Johnson v............................................ 920 California; Najera v............................................. 932 California; Reece v.............................................. 920 California; Wiener v............................................. 945 California Brewers Assn. v. Bryant............................... 916 California Inspection Rating Bureau v. Labor Board............... 943 Callahan v. Kimball.............................................. 915 Carbon Fuel Co. v. Mine Workers.................................. 939 Carelli v. United States......................................... 911 Carlson v. Green................................................. 940 Carnow, In re.................................................. 908 Carter; Rose v................................................... 919 VIII TABLE OF CASES REPORTED Page Castle Rest Nursing Home v. Hynes............................... 936 Central Machinery Co. v. Arizona State Tax Comm’n............... 927 Chairman, Nebraska Parole Bd. v. Nebraska Penal Inmates....... 1 Chaney; Marchioro v............................................ 191 Charbonnet v. Braden........................................... 914 Charter v. Ohio................................................. 930 Chase v. Redman................................................. 920 Cherokee Indians; North Carolina Wildlife Resources Comm’n v... 939 Chiarella v. United States...................................... 927 Chicago-Midwest Meat Assn. v. Evanston....................... 946 Chilcote; Meyers v.............................................. 925 Chirolde v. California.......................................... 910 Chisnell v. Chisnell............................................ 940 Chrysler Corp. v. Gabriele.................................... 908 Church; Cross v................................................ 925 Citicorp v. Board of Governors of Federal Reserve System...... 929 Cities Service Oil Co.; Occidental of Umm Al Qaywayn, Inc. v.... 928 City. See name of city. City Council of Philadelphia v. Resident Advisory Board......... 947 Claiborne; Illinois Central Gulf R. Co. v....................... 934 Clark v. O’Brien............................................... 930 Clark v. United States.......................................... 944 Clayton v. United States........................................ 948 Clerk, Supreme Court of United States; Ahmad v................. 914 Clerk, Supreme Court of United States; Raitport v............ 927 Coates v. United States......................................... 913 Cohran v. United States......................................... 941 Coleman-American Cos. v. United States.......................... 929 College of Law of Syracuse University; Lupert v................. 925 Collins v. United States...................................... 945 Colon v. United States.......................................... 944 Colorado; Hinchman v............................................ 941 Commissioner; Sharon v.......................................... 941 Commissioner; United Telecommunications, Inc. v................. 917 Commissioner, Dept, of Human Resources of Georgia v. J. R..... 584 Commissioner of Corporations & Taxation of Mass.; Kantorski v.. 932 Commissioner of Internal Revenue. See Commissioner, Committee for Public Education & Religious Liberty v. Regan... 928 Committee of Legal Ethics of W. Va. State Bar; Jones v.......... 925 Commodity Futures Trading Comm’n; Hunt v........................ 921 Commonwealth. See name of Commonwealth. Comptroller of N. Y.; Committee for Public Education v........ 928 Confederated Tribes of Colville Indian Reservation; Washington v.. 938 Connecticut Board of Pardons v. Dumschat........................ 926 TABLE OF CASES REPORTED IX Page Consolidated Rail Corp.; Heller v.,.............................. 945 Consolidated Rail Corp. v. Illinois.............................. 942 Cook v. Hanberry................................................. 932 Cook v. Muskingum Watershed Conservancy District................. 924 Cook v. United States....................................... 909,921 Corrections Commissioner. See name of commissinnor. Costello v. United States........................................ 929 Costle v. Pacific Legal Foundation............................... 928 County. See name of county. County Clerk-Recorder of San Mateo County; Cross v............... 925 County Court of Ulster County v. Allen........................... 140 Cox v. United States............................................. 933 Crespo v. United States.......................................... 919 Cross v. Church.................................................. 925 Curios; Rega v................................................... 927 Curry v. Metropolitan Branches of Dallas NAACP................... 938 Dallas v. Hilton................................................. 912 Darby v. Electrical Workers...................................... 944 Davis v. Passman................................................. 228 Davis v. Pima County............................................. 942 Davis; Southeastern Community College v.......................... 397 Davis v. United States....................................... 917,946 Davis Packing Co. v. United States............................... 924 DeCarlo v. New Jersey............................................ 917 DeFillipo v. United States....................................... 920 Delaware; Franks v............................................... 928 DelPiano v. United States........................................ 944 Del Valle v. United States....................................... 909 Dennis v. Maryland............................................... 912 Department of Health, Education, and Welfare; Marinoff v....... 913 Deputy Attorney General of N. Y.; Castle Rest Nursing Home v.. 936 Deputy Attorney General of N. Y.; Fahey v........................ 936 Devoy; Stowe v................................................... 931 Dexter; Butler v................................................. 929 Dial Press; Linden v............................................. 908 Dinke v. Riggs National Bank of Washington....................... 912 Director, Dept, of Corrections of Illinois; Lockett v............ 912 Director, Dept, of Corrections, Tazewell, Va.; Mundy v........... 924 Director, Federal Bureau of Prisons v. Green..................... 940 Director of penal or correctional institution. See name or title of director. Disciplinary Bd. of Supreme Court of Pa.; Goichman v............. 942 DiSilvestro v. Veterans’ Administration.......................... 924 District Attorney of Bexar County v. Dexter...................... 929 X TABLE OF CASES REPORTED Page District Attorney of Washoe County; Jacobson v................... 930 District Judge. See U. S. District Judge. Dolliole v. United States........................................ 946 Dragon v. Indiana............................................... 912 Dumschat; Connecticut Board of Pardons v......................... 926 Dunaway v. New York.............................................. 200 Duncan v. New York............................................... 910 Dunn v. United States............................................ 100 Durham County Board of Education; Rinehart v..................... 912 East Carroll Parish Police Jury v. Marshall...................... 909 Eastern Band of Cherokee Indians; N. C. Wildlife Res. Comm’n v.. 939 Edwards v. Illinois.............................................. 931 Electrical Workers; Darby v...................................... 944 Electrical Workers v. Foust...................................... 42 Electrical Workers v. GTE-Automatic Electric Co.................. 929 Engle; Burson v.................................................. 944 Engle; Hoskinson v............................................... 920 Epperson v. Missouri............................................. 909 Epstein v. Adler, Barish, Daniels, Levin & Creskoff.............. 907 Estelle; Alexander v............................................. 914 Estelle; Baker v................................................. 932 Estelle; Rummel v................................................ 939 Estes v. Metropolitan Branches of Dallas NAACP................... 938 Euge; United States v............................................ 915 Evans v. Oregon.................................................. 937 Evanston; Chicago-Midwest Meat Assn, v........................... 946 Executive Director, N. Y. C. Employees Retire. Sys.; Basciano v.. 929 Fabsteel Co. of Louisiana v. Labor Board......................... 943 Fagan v. Romero.................................................. 916 Fahey v. Hynes................................................... 936 Falke; Welch v................................................... 920 Fare v. Michael C................................................ 707 Farmer v. U. S. Parole Comm’n.................................... 943 Farmers’ Home Mutual Ins.,Co.; Insurance Co. of N. A. v........ 942 Farm Workers; Babbitt v...................................... 289,936 Farris v. United States.......................................... 933 Federal Communications Comm’n; Western Communications v.... 947 Federal Energy Regulatory Comm’n v. McCombs...................... 529 Feeney; Personnel. Administrator of Massachusetts v.............. 256 Felsen; Brown v.................................................. 127 Ferguson v. Texas................................................ 934 Fernandez v. United States....................................... 911 Fernandez v. Washington......................................... 932 Fields v. United States......................................... 917 TABLE OF CASES REPORTED XI Page Figueroa v. United States...................................... 911 Filartiga v. Pena-Irala......................................... 901 Fleener v. United States........................................ 919 Fleming v. United States........................................ 931 Florida; Lebowitz v............................................. 935 Florida; Leveson v............................................. 930 Florida; Matthews v............................................. 911 Floyd v. Texas.................................................. 907 Ford Motor Credit Co. v. Milhollin.............................. 940 Forman v. Wolff................................................. 918 Formica Corp. v. Lefkowitz...................................... 917 Fortes v. United States......................................... 933 Foust; Electrical Workers v...................................... 42 Franks v. Delaware.............................................. 928 Freedson v. United States....................................... 942 Fried v. Warden................................................. 939 Friedman v. Avon Products....................................... 911 Friedman v. United States....................................... 917 Gabriele; Chrysler Corp, v...................................... 908 Gaines v. United States......................................... 944 Gates; Howell v................................................ 930 Geier; Tennessee Higher Education Comm’n v...................... 937 Geier; University of Tennessee v................................ 937 General Motors Corp.; Gottesman v..........,.................... 947 Georgia; Green v................................................. 95 Georgia; Redd v................................................. 934 Georgia; Tyler v................................................ 916 Giacalone v. United States...................................... 940 Gibson v. Louisiana............................................. 935 Goichman v. Disciplinary Bd. of Supreme Court of Pa............. 942 Gonzalez-Perez v. United States................................. 943 Goodwin v. Hopper............................................... 947 Gordon v. United States......................................... 935 Goss v. Revlon, Inc............................................. 919 Gottesman v. General Motors Corp................................ 947 Gould v. Members of N. J. Div. of Water Policy and Supply..... 913 Goulden v. Oliver............................................... 922 Governor of Arizona v. Farm Workers......................... 289,936 Governor of Idaho v. Oregon..................................... 937 Governor of New Jersey v. Public Funds for Public Schools..... 907 Grant v. United States........................................ 931,947 Grayhill, Inc. v. AMF Inc....................................... 930 Great American Federal Savings & Loan Assn. v. Novotny........ 366 Greater New York Savings Bank; Boothe v......................... 921 XII TABLE OF CASES REPORTED Page Great Western Sugar Co. v. Nelson............................... 92 Green; Carlson v............................................. 940 Green v. Georgia................................................ 95 Green v. United States......................................... 932 Greenholtz v. Nebraska Penal Inmates............................. 1 Griffith v. Arizona............................................ 936 Grumman Aerospace Corp. v. United States....................... 917 GTE-Automatic Electric Co.; Electrical Workers v............... 929 Guernsey County Board of Education; Losego v................... 941 Gully v. Kunzman............................................... 924 Guttman v. Labor Board......................................... 929 Hanberry; Cook v............................................... 932 Hanberry; Harbolt v............................................ 919 Haner v. United States........................................ 944 Harber; Ramey v............................................... 910 Harbolt v. Hanberry........................................... 919 Hardwick v. Reese.............................................. 925 Harrell v. Huff............................................... 932 Harris v. Inahara............................................. 918 Harrison v. Illinois........................................... 948 Hart v. United States......................................... 941 Hawkins; Iowa Beef Processors, Inc. v.......................... 921 Hayes v. National Transportation Safety Board................. 910 Haywood v. Illinois............................................ 925 Heller v. Consolidated Rail Corp.............................. 945 Helstoski v. Meanor............................................ 500 Helstoski; United States v.................................... 477 Henderson; Wilson v............................................ 945 Henry v. Mississippi.......................................... 937 Herkimer; Basciano v........................................... 929 Herman, In re................................................. 927 Highsaw v. Indiana............................................. 941 Hill v. United States............................................ 919 Hilton; Dallas v................................................. 912 Hinchman v. Colorado........................................... 941 Holland v. United States...................................... 933 Holsey v. Inmate Grievance Comm’n.......................... 912 Homel v. United States........................................... 933 Hopper; Goodwin v................................................ 947 Hoskinson v. Engle............................................... 920 Howard v. United States.......................................... 946 Howell v. Gates.................................................. 930 Ho Yin Wong v. Bell.............................................. 933 Hubbard; Avedisian v............................................. 918 TABLE OF CASES REPORTED XIII Page Huff; Harrell v............................................... 932 Huge; Long’s Hauling Co. v.......................................... 918 Hunt v. Commodity Futures Trading Comm’n............................ 921 Hynes; Castle Rest Nursing Home v................................... 936 Hynes; Fahey v...................................................... 936 Idaho ex rel. Evans v. Oregon....................................... 937 Illinois; Alexander v............................................... 945 Illinois; Consolidated Rail Corp, v................................. 942 Illinois; Edwards v................................................. 931 Illinois; Harrison v................................................ 948 Illinois; Haywood v................................................. 925 Illinois; Rehbein v................................................. 919 Illinois; Vriner v.................................................. 929 Illinois Central Gulf R. Co. v. Claiborne........................... 934 Inahara; Harris v................................................... 918 Indiana; Dragon v................................................... 912 Indiana; Highsaw v.................................................. 941 Industrial Union Dept. v. American Petroleum Institute.............. 938 Inmate Grievance Comm’n; Holsey v................................... 912 Inmates of Nebraska Penal Complex; Greenholtz v....................... 1 In re. See name of party. Institutionalized Juveniles; Secretary of Public Welfare of Pa. v.... 640 Insurance Co. of North America v. Farmers’ Home Mut. Ins. Co.. 942 International. For labor union, see name of trade. International Controls Corp.; Vesco v............................... 941 Interstate Commerce Comm’n; Nat. Motor Freight Traffic Assn. v. 909 Interstate Commerce Comm’n v. Seaboard Allied Milling Corp.... 444 Iowa v. Omaha Indian Tribe.......................................... 653 Iowa Beef Processors, Inc. v. Hawkins............................... 921 Isaac; Paulinski v.................................................. 918 Ison; Thacker v..................................................... 912 Jackson v. Martin................................................... 907 Jackson v. United States........................................ 931,941 Jacobson v. Rose.................................................... 930 Jago; Van Curen v................................................... 926 James v. United States.............................................. 917 Jim Kelley’s Tahoe Nugget v. Labor Board............................ 921 Johnson; Arnold v................................................... 935 Johnson v. California.............................................. 920 Johnson v. Meacham.................................................. 932 Joiner v. Wyrick.................................................... 920 Jones v. Committee of Legal Ethics of W. Va. State Bar.............. 925 Jones; Plemons v.................................................. 910 Jos. Schlitz Brewing Co. v. Smith................................ 908 XIV TABLE OF CASES REPORTED Page J. R.; Parham v............................................... 584 Judicial Standards Comm’n of North Carolina; Peoples v........ 929 Kaiser Aluminum & Chemical Corp. v. Weber..................... 927 Kantorski v. Commissioner of Corporations & Taxation of Mass.... 932 Kaufman, In re................................................ 937 Kelley; Allstate Insurance Co. v.............................. 934 Kelley’s Tahoe Nugget v. Labor Board.......................... 921 Kelso v. Nevada............................................... 921 Kentucky v. Avery............................................. 914 Kentucky v. Brannon........................................... 914 Kentucky v. Miller............................................ 915 Kentucky; Ohio v............................................. 937 Kentucky; Thomas v............................................ 941 Kentucky v. Williams.......................................... 914 Kentucky Bar Assn.; McMahon v................................. 910 Killebrew v. United States.................................. 933 Kimball; Callahan v........................................... 915 Kirkham v. Overberg........................................... 919 Kirshner v. United States..................................... 909 Kreps; Montana Contractors’ Assn, v........................... 935 Kriz v. United States......................................... 945 Kunzman; Gully v.............................................. 924 Kuyk; Poe v................................................... 943 Labor Board v. Baptist Hospital, Inc.......................... 773 Labor Board; Bell & Howell Co. v.............................. 942 Labor Board; California Inspection Rating Bureau v............ 943 Labor Board; Fabsteel Co. of Louisiana v...................... 943 Labor Board; Guttman v........................................ 929 Labor Board; Jim Kelley’s Tahoe Nugget v...................... 921 Labor Board; Liberty Nursing Center v........................ 929 Labor Board; Robeson v.................................... 917 Labor Board; Sahara-Tahoe Corp, v............................. 917 Labor Board; Tahoe Nugget, Inc. v............................. 921 Labor Board v. Yeshiva University............................. 938 Labor Union. See name of trade. LaMagna v. United States...................................... 915 LaMorte v. United States...................................... 999 LaRocca v. United States...................................... 9^9 Lasker; Burks v............................................... 937 Laurens District 56; Riggs v.................................. 913 Lebowitz v. Florida........................................... 935 Leeke; Williams v............................................. q-q Lefkowitz; Formica Corp, v.......................... .. 9^7 Leveson v. Florida............................................ 939 TABLE OF CASES REPORTED xv Page Lewis v. United States..................................... 939,946 Libbie Convalescent Home; Trageser v........................... 947 Libbie Rehabilitation Center, Inc.; Trageser v................. 947 Libertarian Party of Ill. v. Board of Election Comm’rs......... 918 Liberty Mutual Insurance Co.; Bloomer v........................ 939 Liberty Nursing Center v. Labor Board.......................... 929 Linden v. Dial Press........................................... 908 Local. For labor union, see name of trade. Lockett v. Director, Dept, of Corrections of Illinois.......... 912 Lodge. For labor union, see name of trade. Lo-Ji Sales, Inc. v. New York.................................. 319 Lombard v. Marcera............................................. 915 Long’s Hauling Co. v. Huge..................................... 918 Lopez v. United States......................................... 947 Los Angeles County; Richards v................................. 910 Los Angeles County; Sears, Roebuck & Co. v..................... 915 Losego v. Guernsey County Board of Education................... 941 Louisiana; Atkins v........................................... 935 Louisiana; Gibson v........................................... 935 Louisiana; Maryland v......................................... 937 Louisiana; Phillips v.......................................... 919 Lujan v. United States......................................... 919 Luna v. Secretary of Health, Education, and Welfare............ 935 Lundy v. Warden................................................ 931 Lupert v. College of Law of Syracuse University................ 925 Lyman v. United States......................................... 931 Machinists & Aerospace Workers v. Anderson..................... 921 Machinists & Aerospace Workers v. Turner....................... 919 Mallery v. Blackbum............................................ 940 Manufacturers Systems, Inc. v. ADM Industries, Inc............. 918 Marcera; Lombard v........................................... 915 Marchioro v. Chaney............................................ 191 Marinoff v. Department of Health, Education, and Welfare...... 913 Marshall v. American Petroleum Institute....................... 938 Marshall; East Carroll Parish Police Jury v.................... 909 Martin; Jackson v.............................................. 907 Maryland; Dennis v............................................. 912 Maryland v. Louisiana.......................................... 937 Maryland; Smith v.............................................. 735 Maryland; Toneman v...........•................................ 945 Massachusetts; Watkins v....................................... 932 Matthews v. Florida............................................ 911 Mattingly v. Wainwright........................................ 945 Maxey v. Morris................................................ 912 XVI TABLE OF CASES REPORTED Page McBrearty v. United States...................................... 943 McCombs; Federal Energy Regulatory Comm’n v..................... 529 McCombs; United Gas Pipe Line Co. v............................. 529 McDonald; United Air Lines v.................................... 934 McMahon v. Kentucky Bar Assn.................................... 910 McMahon v. United States........................................ 921 Meacham; Johnson v.............................................. 932 Meanor; Helstoski v............................................. 500 Members of New Jersey Div. of Water Policy and Supply; Gould v. 913 Metropolitan Branches of Dallas NAACP; Brinegar v............. 938 Metropolitan Branches of Dallas NAACP; Curry v................ 938 Metropolitan Branches of Dallas NAACP; Estes v................ 938 Meyers v. Chilcote.............................................. 925 Michael C.; Fare v.............................................. 707 Michigan Department of Labor; Beaumont v........................ 918 Midtaune v. United States....................................... 917 Migely v. United States......................................... 943 Milhollin; Ford Motor Credit Co. v.............................. 940 Miller; Kentucky v.............................................. 915 Miner v. Califano............................................... 931 Mine Workers; Carbon Fuel Co. v................................ 939 Mississippi; Boring v........................................... 916 Mississippi; Henry v............................................ 937 Mississippi; Simpson v.......................................... 930 Missouri; Epperson v............................................ 909 Missouri; Trice v............................................... 945 Missouri Board of Probation and Parole v. Williams.............. 926 Mitchell v. United States....................................... 940 Mitchell; United States v....................................... 940 Montana; Sandstrom v............................................ 510 Montana Contractors’ Assn. v. Kreps............................ 935 Montgomery County Prosecuting Attorney; Welch v................. 920 Moore v. Sims................................................... 415 Moree v. United States.......................................... 921 Morris; Maxey v................................................. 912 Mosher v. Saalfeld.............................................. 941 Mundy v. Director, Dept, of Corrections, Tazewell, Va........... 924 Muniz v. Texas.................................................. 924 Muniz v. United States........................................ 941 Munoz v. United States........................................ 909 Murray v. New Hampshire......................................... 908 Muskingum Watershed Conservancy District; Cook v................ 924 Myers v. United States.......................................... 913 Myers v. Washington............................................. 912 TABLE OF CASES REPORTED XVII Page Nachman Corp. v. Pension Benefit Guaranty Corp................. 940 Najera v. California........................................... 932 National Labor Relations Board. See Labor Board. National Motor Freight Traffic Assn. v. ICC.................... 909 National Transportation Safety Board; Hayes v.................. 910 Nebraska Penal Inmates; Greenholtz v............................. 1 Nelson; Great Western Sugar Co. v............................... 92 Nelums v. United States....................................... 910 Nevada; Kelso v................................................ 921 New Hampshire; Breest v........................................ 931 New Hampshire; Murray v.................................... 908 New Jersey; Bell v............................................. 918 New Jersey; DeCarlo v.......................................... 917 New Mexico v. Texas............................................ 908 New York; Dunaway v............................................ 200 New York; Duncan v............................................. 910 New York; Lo-Ji Sales, Inc. v.................................. 319 Nolen v. Brown................................................. 933 Noles v. United States......................................... 944 North Carolina v. United States................................ 909 North Carolina Wildlife Resources Comm’n v. Eastern Cherokees.. 939 North Dakota; Wells v........................................ 932 Norton Mfg. Co.; Washington v.................................. 942 Novotny; Great American Federal Savings & Loan Assn, v........ 366 O’Brien; Clark v............................................... 930 Occidental of Umm Al Qaywayn, Inc. v. Cities Service Oil Co... 928 O’Hair v. Blumenthal........................................... 930 Ohio; Charter v................................................ 930 Ohio v. Kentucky............................................... 937 Ohio; Siggers v................................................ 944 Oliver; Goulden v.............................................. 922 Omaha Indian Tribe; Iowa v..................................... 653 Omaha Indian Tribe; Wilson v................................... 653 Oregon; Idaho ex rel. Evans v.................................. 937 Orozco v. United States........................................ 920 Overberg; Kirkham v............................................ 919 Pacific Legal Foundation; Costle v............................. 928 Packard v. Vallejo............................................. 935 Parham v. J. R................................................. 584 Parker v. Randolph............................................ 62 Parris v. Wyrick....>.......................................... 945 Passman; Davis v............................................... 228 Patrick; Weiss v.............................................. 929 Paulinski v. Isaac............................................. 918 XVIII TABLE OF CASES REPORTED Page Peery v. United States.......................................... 913 Pena-Irala; Filartiga v......................................... 901 Pennsylvania Human Relations Comm’n v. Pittsburgh Press Co... 942 Pennsylvania State Board of Law Examiners; Wessel v............. 907 Pension Benefit Guaranty Corp.; Nachman Corp, v................. 940 Peoples v. Judicial Standards Comm’n of North Carolina......... 929 Peoples v. United States........................................ 911 Personnel Administrator of Massachusetts v. Feeney............. 256 Peters; AHustiarte v............................................ 942 Petsas v. United States......................................... 910 Phillips v. Louisiana........................................... 919 Phillips; Williams v............................................ 926 Pima County; Davis v............................................ 942 Pioneer Wear, Inc.; Wells v..................................... 918 Pittsburgh Press Co.; Pennsylvania Human Relations Comm’n v.. 942 Plemons v. Jones............................j................... 910 Poe v. Kuyk..................................................... 943 Powers v. United States......................................911,931 President of United States; Rose v.............................. 919 Public Funds for Public Schools of N. J.; Beggans v............. 907 Public Funds for Public Schools of N. J.; Byrne v............... 907 Puerto Rico; Torres v........................................... 465 Quern v. Zbaraz................................................ 1309 Quinones v. United States....................................... 920 R.; Parham v.................................................... 584 Raitport v. Clerk of Supreme Court of United States............. 927 Ramey v. Harber................................................. 910 Ramos-Chacon v. United States.................................. 933 Randolph; Parker v............................................... 62 Redd v. Georgia................................................. 934 Redington; Touche Ross & Co. v.............................. 560 Redman; Chase v................................................. 920 Reece v. California............................................. 920 Reese; Hardwick v.............................................. 925 Reeves v. United States......................................... 946 Rega v. Curios.................................................. 927 Regan; Committee for Public Education & Religious Liberty v.... 928 Rehbein v. Illinois............................................. 919 Reichel v. Supreme Court of California.......................... 928 Reiter v. Sonotone Corp......................................... 330 Resident Advisory Board of Philadelphia; City Council v........ 947 Revlon, Inc.; Goss v............................................ 919 Reynolds Tobacco Co.; States S.S. Co. v......................... 943 Richards v. Los Angeles County.................................. 910 TABLE OF CASES REPORTED XIX Page Richardson v. United States................................. 910,940 Riggs v. Laurens District 56.................................... 913 Riggs National Bank of Washington; Dinke v...................... 912 Rinehart v. Durham County Board of Education.................... 912 Risco v. United States.......................................... 946 R. J. Reynolds Tobacco Co.; States S.S. Co. v................... 943 Robeson v. Labor Board.......................................... 917 Roby v. United States........................................... 944 Rodak; Ahmad v.................................................. 914 Rodriguez v. Secretary of Health, Education, and Welfare....... 933 Romero; Fagan v................................................. 916 Rose v. Carter.................................................. 919 Rose; Jacobson v................................................ 930 Rose v. United States........................................... 929 Rosenbaum v. Rosenbaum.......................................... 935 Ross v. Byrd.................................................... 936 Roth v. Bank of the Commonwealth................................ 925 Royal International Optical Co.; Texas State Optical Co. v..... 930 Ruby Co. v. United States....................................... 917 Rummel v. Estelle............................................... 939 Rush v. Savchuk................................................. 939 Rutherford; United States v..................................... 529 Saalfeld; Mosher v.............................................. 941 Safeguard Co. v. Baldwin........................................ 910 Sahara-Tahoe Corp. v. Labor Board............................... 917 Sam v. Blackburn....................................T.......... 912 Sanders; Arkansas v............................................. 753 Sandoval v. Utah................................................ 932 Sandstrom v. Montana............................................ 510 Savchuk; Rush v................................................. 939 Schlitz Brewing Co. v. Smith.................................... 908 Seaboard Allied Milling Corp.; Interstate Commerce Comm’n v... 444 Seaboard Allied Milling Corp.; Seaboard Coast Line R. Co. v... 444 Seaboard Allied Milling Corp.; Southern R. Co. v............... 444 Seaboard Coast Line R. Co. v. Seaboard Allied Milling Corp... 444 Sears, Roebuck & Co. v. Los Angeles County...................... 915 Seatrain Shipbuilding Corp. v. Shell Oil Co..................... 940 Secretary of Commerce; Montana Contractors’ Assn, v............. 935 Secretary of Defense; Nolen v................................... 933 Secretary of Health, Education, and Welfare; Aponte v........... 948 Secretary of Health, Education, and Welfare; Bain v............. 911 Secretary of Health, Education, and Welfare; Luna v............. 935 Secretary of Health, Education, and Welfare; Miner v............ 931 Secretary of Health, Education, and Welfare; Rodriguez v....... 933 XX TABLE OF CASES REPORTED Page Secretary of Health, Education, and Welfare v. Yamasaki.......... 682 Secretary of Interior v. Sierra Club............................... 347 Secretary of Interior v. Utah...................................... 928 Secretary of Labor v. American Petroleum Institute................. 938 Secretary of Public Welfare of Pa. v. Institutionalized Juveniles.... 640 Secretary of State v. Terrazas..................................... 927 Secretary of Treasury; O’Hair v.................................... 930 Seward v. United States............................................ 931 Sharon v. Commissioner........................................... 941 Shear v. United States............................................. 909 Shell Oil Co.; Seatrain Shipbuilding Corp, v....................... 940 Shelton v. United States........................................... 909 Sierra Club; Andrus v.............................................. 347 Siggers v. Ohio.................................................... 944 Silvers v. United States........................................... 933 Simpson v. Mississippi............................................. 930 Simpson; Whirlpool Corp, v......................................... 908 Sims; Moore v...................................................... 415 Smith; Jos. Schlitz Brewing Co. v.................................. 908 Smith v. Maryland.................................................. 735 Smith v. United States......................................... 917,932 Smith v. Virginia.................................................. 932 Smith; Williams v.................................................. 920 Smith v. Woodard................................................... 926 Snell v. United States............................................. 944 Solvino v. United States........................................... 918 Sonotone Corp.; Reiter v........................................... 330 Soto v. United States.............................................. 930 Southeastern Community College v. Davis............................ 397 Southern R. Co. v. Seaboard Allied Milling Corp.................... 444 Southern R. Co. v. Yawn........................................... 934 Spenkelink v. Wainwright............................ 901,906,1301,1308 Spenkelink; Wainwright v......................................... 901 State. See name of State. States S.S. Co. v. R. J. Reynolds Tobacco Co....................... 943 States S.S. Co. v. Zirpoli......................................... 943 Steelworkers v. Weber.............................................. 927 Stein v. Andress................................................... 907 Steinkoetter v. United States...................................... 920 Stine v. United States............................................. 944 Stone; Thomas v.................................................... 911 Stowe v. Devoy..................................................... 931 Sullivan v. United States.......................................... 933 TABLE OF CASES REPORTED XXI Page Superintendent of penal or correctional institution. See name of superintendent. Supreme Court of California; Reichel v........................... 928 Tahoe Nugget, Inc. v. Labor Board................................ 921 Talbert v. United States......................................... 911 Tennessee; Williams v............................................ 932 Tennessee Higher Education Comm’n v. Geier....................... 937 Terrazas; Vance v................................... 7.......... 927 Texas; Bello v.................................................. 935 Texas; Ferguson v............................................. 934 Texas; Floyd v................................................. 907 Texas; Muniz v.................................................. 924 Texas; New Mexico v............................................. 908 Texas Optical; Texas State Optical Co. v......................... 930 Texas State Optical Co. v. Royal International Optical Co...... 930 Texas State Optical Co. v. Texas Optical................ 930 Thacker v. Bordenkircher......................................... 912 Thacker v. Ison.................................................. 912 Thibodaux; Atlantic Richfield Co. v................... 909 Thomas v. Kentucky............................................... 941 Thomas v. Stone.................................................. 911 Thornton v. United States........................................ 935 Tiberio v. United States......................................... 913 Tivian Laboratories, Inc. v. United States....................... 942 Tom Benson Chevway Rental & Leasing, Inc. v. Allen............... 930 Toneman v. Maryland............................................ 945 Torres v. Puerto Rico............................................ 465 Touche Ross & Co. v. Redington................................... 560 Trageser v. Libbie Convalescent Home............................. 947 Trageser v. Libbie Rehabilitation Center, Inc.................... 947 Trammel v. United States......................................... 939 Trans World Airlines v. Zipes.................................... 916 Trans World Airlines; Zipes v.................................... 916 Trice v. Missouri.............................................. 945 Tubbs v. Blackbum................................................ 920 Turner; Machinists & Aerospace Workers v......................... 919 Tussel v. United States.......................................... 943 Tyler v. Georgia................................................. 916 Ulster County Court v. Allen.................................... 140 Union. For labor union, see name of trade. United. For labor union, see name of trade. United Air Lines v. McDonald..................................... 934 United Artists Corp. v. United States............................ 943 United Gas Pipe Line Co. v. McCombs.............................. 529 XXII TABLE OF CASES REPORTED Page United States; Aberdeen & Rockfish R. Co. v........................... 946 United States v. Addonizio............................................ 178 United States; Agee v................................................. 944 United States v. Alaska............................................... 937 United States; Apostol v.............................................. 933 United States; Arambasich v........................................... 916 United States; Arnone v............................................... 917 United States; Bames v................................................ 913 United States v. Batchelder........................................... 114 United States; Belle v................................................ 911 United States; Bohmer v............................................... 919 United States; Broward v.............................................. 941 United States; Brown v............................................ 913,945 United States; Bub Davis Packing Co. v................................ 924 United States; Busic v................................................ 916 United States; Carelli v............................................. 911 United States; Chiarella v......................................... 927 United States; Clark v.............................................. 944 United States; Clayton v............................................ 948 United States; Coates v............................................. 913 United States; Cohran v............................................. 941 United States; Coleman-American Cos. v.............................. 929 United States; Collins v............................................ 945 United States; Colon v.............................................. 944 United States; Cook v...................................... 909,921 United States; Costello v.......................................... 929 United States; Cox v............................................. 933 United States; Crespo v..................................•............ 919 United States; Davis v........................................ 917,946 United States; DeFillipo v.......................................... 920 United States; DelPiano v........................................... 944 United States; Del Valle v............................................ 909 United States; Dolliole v........................................... 946 United States; Dunn v........................................... 100 United States v. Euge............................................... 915 United States; Farris v............................................ 933 United States; Fernandez v.......................................... 911 United States; Fields v............................................ 917 United States; Figueroa v........................................... 911 United States; Fleener v......................................... 919 United States; Fleming v.......................................... 931 United States; Fortes v............................................. 933 United States; Freedson v........................................... 942 United States; Friedman v......................................... 917 TABLE OF CASES REPORTED XXIII Page United States; Gaines v................................................ 944 United States; Giacalone v........................................... 940 United States; Gonzalez-Perez v........................................ 943 United States; Gordon v................................................ 935 United States; Grant v............................................. 931,947 United States; Green v................................................. 932 United States; Grumman Aerospace Corp, v............................... 917 United States; Haner v................................................. 944 United States; Hart v.................................................. 941 United States v. Helstoski............................................. 477 United States; Hill v.................................................. 919 United States; Holland v............................................... 933 United States; Homel v................................................. 933 United States; Howard v................................................ 946 United States; Jackson v........................................... 931,941 United States; James v................................................. 917 United States; Killebrew v............................................. 933 United States; Kirshner v.............................................. 909 United States; Kriz v.................................................. 945 United States; LaMagna v............................................... 915 United States; LaMorte v............................................... 909 United States; LaRocca v...........s................................... 916 United States; Lewis v........................................... 939,946 United States; Lopez v............................................... 947 United States; Lujan v............................................... 919 United States; Lyman v............................................... 931 United States; McBrearty v........................................... 943 United States; McMahon v............................................... 921 United States; Midtaune v.............................................. 917 United States; Migely v................................................ 943 United States v. Mitchell....'......................................... 940 United States; Mitchell v.............................................. 940 United States; Moree v................................................. 921 United States; Muniz v................................................. 941 United States; Munoz v................................................. 909 United States; Myers v................................................. 913 United States; Nelums v................................................ 910 United States; Noles v................................................. 944 United States; North Carolina v........................................ 909 United States; Orozco v................................................ 920 United States; Peery v................................................. 913 United States; Peoples v............................................... 911 United States; Petsas v................................................ 910 United States; Powers v............................................ 911,931 XXIV TABLE OF CASES REPORTED Page United States; Quinones v............................................ 920 United States; Ramos-Chacon v........................................ 933 United States; Reeves v............................................ 946 United States; Richardson v................................... 910,940 United States; Risco v............................................. 946 United States; Roby v............................................... 944 United States; Rose v.............................................. 929 United States; Ruby Co. v........................................ 917 United States v. Rutherford.......................................... 544 United States; Seward v............................................. 931 United States; Shear v............................................... 909 United States; Shelton v............................................. 909 United States; Silvers v............................................. 933 United States; Smith v........................................... 917,932 United States; Snell v............................................... 944 United States; Solvino v............................................. 918 United States; Soto v................................................ 930 United States; Steinkoetter v...................................... 920 United States; Stine v............................................... 944 United States; Sullivan v............................................ 933 United States; Talbert v............................................. 911 United States; Thornton v............................................ 935 United States; Tiberio v............................................. 913 United States; Tivian Laboratories, Inc. v........................... 942 United States; Trammel v............................................. 939 United States; Tussel v.............................................. 943 United States; United Artists Corp, v............................. 943 United States; Valenzuela-Lopez v.................................... 920 United States; Volpe v............................................... 947 United States; Wallace v............................................. 913 United States; Walters v............................................. 945 United States; Washington v......................................... 938 United States; Waugh v............................................... 913 United States v. Weber............................................... 927 United States; Wedelstedt v...................................... 916 United States; Whitehead v........................................... 911 United States; Whitmore v............................................ 917 United States; Williams v............................................ 946 United States; With Hom v............................................ 921 United States; Wood v................................................ 945 United States; Wounded Knee v........................................ 921 U. S. District Judge; Helstoski v.................................... 500 U. S. District Judge; States S.S. Co. v.............................. 943 U. S. Labor Party v. Whitman......................................... 919 TABLE OF CASES REPORTED XXV Page U. S. Marshal; Stowe v............................................ 931 U. S. Parole Comm’n; Farmer v..................................... 943 United Telecommunications, Inc. v. Commissioner................... 917 United Utilities, Inc. v. Commissioner............................ 917 Universal Amusement Co.; Vance v.................................. 928 University of Tennessee v. Geier.................................. 937 Utah; Andrus v.................................................... 928 Utah; Sandoval v.................................................. 932 Valenzuela-Lopez v. United States................................. 920 Vallejo; Packard v................................................ 935 Vance v. Terrazas................................................. 927 Vance v. Universal Amusement Co................................... 928 Van Curen v. Jago................................................. 926 Vesco v. International Controls Corp.............................. 941 Veterans’ Administration; DiSilvestro v........................... 924 Virginia; Smith v................................................. 932 Virginia; Waye v.................................................. 924 Volpe v. United States............................................ 947 Vriner v. Illinois................................................ 929 Wainwright; Mattingly v........................................... 945 Wainwright v. Spenkelink.......................................... 901 Wainwright; Spenkelink v............................ 901,906,1301,1308 Wallace v. United States.......................................... 913 Walters v. United States.......................................... 945 Warden. See also name of warden. Warden; Fried v.................................................. 939 Warden; Lundy v.................................................. 931 Washington; Fernandez v.......................................: 932 Washington; Myers v............................................... 912 Washington v. Norton Mfg. Co...................................... 942 Washington v. Confederated Tribes of Colville Indian Reservation.. 938 Washington v. United States....................................... 938 Washington Terminal Co.; Brooks v................................. 910 Watkins v. Massachusetts.......................................... 932 Waugh v. United States............................................ 913 Waye v. Virginia.................................................. 924 Weber; Kaiser Aluminum & Chemical Corp, v......................... 927 Weber; Steelworkers v............................................. 927 Weber; United States v............................................ 927 Wedelstedt v. United States....................................... 916 Weiss v. Patrick.................................................. 929 Welch v. Falke.................................................... 920 Wells v. North Dakota........................................... 932 Wells v. Pioneer Wear, Inc........................................ 918 XXVI TABLE OF CASES REPORTED Page Wessel v. Pennsylvania State Board of Law Examiners............. 907 Western Communications, Inc. v. Federal Communications Comm’n. 947 Whirlpool Corp. v. Simpson...................................... 908 White v. Arizona................................................ 936 Whitehead v. United States...................................... 911 Whitman; U. S. Labor Party v.................................... 919 Whitmore v. United States....................................... 917 Wiener v. California............................................ 945 Williams; Kentucky v........................................... 914 Williams v. Leeke............................................... 911 Williams; Missouri Board of Probation and Parole v.............. 926 Williams v. Phillips........................................... 926 Williams v. Smith.............................................. 920 Williams v. Tennessee........................................... 932 Williams v. United States.................................... 946 Williams v. Zbaraz.........................................915,1309 Wilson v. Henderson............................................. 945 Wilson v. Omaha Indian Tribe................................... 653 With Hom v. United States....................................... 921 Wolff; Forman v................................................. 918 Wong v. Bell.................................................... 933 Wood v. United States........................................... 945 Woodard; Smith v.............................................. 926 Wounded Knee v. United States................................... 921 Wyrick; Joiner v................................................ 920 Wyrick; Parris v................................................ 945 Yamasaki; Califano v............................................ 682 Yawn; Southern R. Co. v......................................... 934 Yeshiva University; Labor Board v............................... 938 Yeshiva University; Yeshiva University Faculty Assn, v.......... 938 Yeshiva University Faculty Assn. v. Yeshiva University.......... 938 Yin Wong v. Bell................................................ 933 Young v. Zant...........................,....................... 934 Zant; Young v................................................... 934 Zbaraz; Quern v................................................ 1309 Zbaraz; Williams v......................................... 915,1309 Zipes v. Trans World Airlines................................... 916 Zipes; Trans World Airlines v................................... 916 Zirpoli; States S.S. Co. v...................................... 943 TABLE OF OASIS CITED Page Abbott Laboratories v. Gardner, 387 U. S. 136 454,463 Aberdeen & Rockfish R. Co. v. SCRAP, 422 U. S. 289 363, 453,458,463 Abney v. United States, 431 U. S. 651 506-509 Adams v. United States ex rel. McCann, 317 U. S. 269 184 Adams v. Williams, 407 U. S. 143 210 Addington v. Texas, 441 U. S. 418 600,601, 606,609,619 Adickes v. S. H. Kress Co., 398 U. S. 144 370 Aetna Casualty & Surety Co. v. Sentilles, 160 So. 149 134 Aetna Life Ins. Co. v. Haworth, 300 U. S. 277 299 Affronti v. United States, 350 U. S. 79 189 Agnello v. United States, 269 U. S. 20 758 Agnew v. United States, 165 U. S. 136 520 Aguilar v. Texas, 378 U. S. 108 207 A. L. v. G. R. H., 163 Ind. App. 636 630,631 Alabama Federation of Labor v. McAdory, 325 U. S. 450 428, 429 Alabama Public Service Comm’n v. Southern R. Co., 341 U. S. 341 253 Alaska Pacific Fisheries v. United States, 248 U. S. 78 666 Albemarle Paper Co. v. Moody, 422 U. S. 405 283,285,375 Alexander v. Gardner-Denver Co., 415 U. S. 36 373, 377,391,393 Alexander v. Lousiana, 405 U. S. 625 284 Page Allen v. State Bd. of Elections, 393 U. S. 544 569, 577,582 Almeida-Sanchez v. United States, 413 U. S. 266 473, 474,761 AFL v. Swing, 312 U. S. 321 311 American Trucking Assns. v. Atchison, T. & S. F. R. Co., 387 U. S. 397 358 Anderson v. Wilson, 289 U. S. 20 555 Andrus v. Sierra Club, 442 U. S. 347 551 Apex Hosiery Co. v. Leader, 310 U. S. 469 554 Application of United States for Order, 546 F. 2d 243 738 Application of United States in Matter of Order, 538 F. 2d 956 738,739 Apton v. Wilson, 165 U. S. App. D. C. 22 244 Arkansas v. Tennessee, 246 U. S. 158 660,675,676 Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 272-276, 279,282,283,559 Armstrong v. Manzo, 380 U. S. 545 634 Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658 451,458-460 Ashwander v. TVA, 297 U. S. 288 692,768 Asphalt Roofing Mfg. Assn. v. ICC, 186 U. S. App. D. C. 1 448, 458 Atlantic Refining Co. v. Public Service Comm’n, 360 U. S. 378 536,542 August v. Bronstein, 369 F. Supp. 190 262,265 Automobile Workers v. Russell, 356 U. S. 634 51 XXVII xxvni TABLE OF CASES CITED Page Babbitt v. Farm Workers, 442 U. S. 289 936 Baggett v. Bullitt, 377 U. S. 360 308,317 Baker v. Carr, 369 U. S. 186 235,240,242 Baldwin v. Franks, 120 IT. S. 678 371 Ballou v. State Dept, of Civil Service, 75 N. J. 365 267 Balzac v. Porto Rico, 258 U. S. 298 469,475 Barber v. Page, 390 U. S. 719 87 Barlow v. Collins, 397 IT. S. 159 456 Barnes v. United States, 412 U. S. 837 156,157,166, 168-170,176,519 Barrett v. Indiana, 229 U. S. 26 272 Barrett v. United States, 423 U. S. 212 119,122 Bart, In re, 82 S. Ct. 675 1312 Bartley v. Kremens, 402 F. Supp. 1039 602,641, 652 Barton v. United States, 263 F. 2d 894 83 Batchellar v. Maryland, 397 U. S. 564 519,526 Baxstrom v. Herald, 383 U. S. 107 626 Baxter v. Palmigiano, 425 U. S. 308 25 Baylor Univ. Medical Center v. NLRB, 188 U. S. App. D. C. 109 781,788-790,795 Bayside Enterprises, Inc. v. NLRB, 429 U. S. 298 554 Beckwith v. United States, 425 U. S. 341 723 Beehive State Bank v. Buntine, 17 Utah 2d 351 134 Beer v. United States, 425 U, S. 130 283 Bell v. Burson, 402 U. S. 535 32 Bell v. Hood, 327 U. S. 678 236, 242,245 Bell v. United States, 349 U. S. 81 112 Bell v. Wolfish, 441 U. S. 520 23, 915 Bellotti v. Baird, 428 U. S. 132 317 Page Bennett v. Campbell, 564 F. 2d 329 244 Berenyi v. Immigration Director, 385 U. S. 630 46,82 Berger v. California, 393 U. S. 314 87 Berger v. United States, 295 U. S. 78 105 Berkovitz v. United States, 213 F. 2d 468 514,517 Berra v. United States, 351 U. S. 31 124 Beth Israel Hospital v. NLRB, 437 U. S. 483 778, 779, 781, 782, 784, 785, 787, 790-792, 795-797 Beth Israel Hospital v. NLRB, 544 F. 2d 477 780 Bey v. Connecticut Bd. of Parole, 443 F. 2d 1079 10,26 Bishop v. Wood, 426 U. S. 341 12, 154 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 229, 233, 234, 236, 242, 245-247, 248, 249, 252 Blair v. Gay, 33 Tex. 157 426 Bloch v. United States, 221 F. 2d 786 514 Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723 405, 572, 578 Blumenthal v. United States, 332 U. S. 539 74,88-90 Board of Comm’rs v. United States, 308 U. S. 343 674,675 Board of Curators of Univ, of Missouri v. Horowitz, 435 U. S. 78 608 Board of Governors of FRS v. First Lincolnwood Corp., 439 U. S. 234 539 Board of Regents v. Roth, 408 U. S. 564 7,11,18,33,39 Boilermakers v. Braswell, 388 F. 2d 193 59 Bollenbach v. United States, 326 U. S. 607 176, 519, 526,527 Bolling v. Sharpe, 347 U. S. 497 242,243 Bonanno v. United States, 571 F. 2d 588 183 TABLE OF CASES CITED XXIX Page Bordenkircher v. Hayes, 434 U. S. 357 124 Bounds v. Smith, 430 U. S. 817 23,923 Brady v. Maryland, 373 U. S. 83 504 Branch v. Du Bois, 418 F. Supp. 1128 267 Branzburg v. Hayes, 408 U. S. 665 751 Bravman v. Bassett Furniture Industries, 552 F. 2d 90 337 Breed v. Jones, 421 U. S. 519 627 Brinegar v. United States, 338 U. S. 160 208,212,213 Broadcast Employees v. Teamsters, 419 F. Supp. 263 381 Broadrick v. Oklahoma, 413 U. S. 601 155 Brooks v. Wainwright, 428 F. 2d 652 922 Brown v. Allen, 344 U. S. 443 185, 692 Brown v. Board of Ed., 347 U. S. 483 272 Brown v. Board of Ed., 349 U. S. 294 243 Brown v. GSA, 425 U. S. 820 247, 254, 376, 378, 381, 391, 393 Brown v. Illinois, 422 U. S. 590 204-206,215-219,224-227 Brown v. Lundgren, 528 F. 2d 1050 6,10 Brown v. Russell, 166 Mass. 14 266 Brown v. United States, 411 U. S. 223 71, 72, 75, 83, 86 Brown v. Wainwright, 419 F. 2d 1376 922 Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477 335,341,343 Bruton v. United States, 391 U. S. 123 64,67-89 Bryan v. Itasca County, 426 U. S. 373 666 Bryant v. Akron Park Dist., 281 U. S. 74 475 Buckley v. Valeo, 424 U. S. 1 299,311 Buffington v. Weinberger, Civ. No. 734—73C2 (WD Wash.) 690 Page Bumper v. North Carolina, 391 U. S. 543 329 Burford v. Sun Oil Co., 319 U. S. 315 253 Burgett v. Texas, 389 U. S. 109 187 Burgin v. Henderson, 536 F. 2d 501 923 Butler v. Teamsters, 514 F. 2d 442 45,58 Butz v. Economou, 438 U. S. 478 234,245,246 C., In re, 9 Cal. App. 3d 255 731 Caban v. Mohammed, 441 U. S. 380 273,287 Cady v. Dombrowski, 413 U. S. 433 761,763 Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886 12,14,26,608 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 469, 475 Califano v. Goldfarb, 430 U. S. 199 273,280,285,389 Califano v. Sanders, 430 U. S. 99 689 Califano v. Torres, 435 U. S. 1 470 Califano v. Webster, 430 U. S. 313 235,286,287 California v. Southland Royalty Co., 436 U. S. 519 537-539,542 California Bankers Assn. v. Shultz, 416 U. S. 21 748,749,751 California Human Resources Dept. v. Java, 402 U. S. 121 695 Callanan v. United States, 364 U. S. 587 394 Camara v. Municipal Court, 387 U. S. 523 208,219 Candarini v. Attorney General, 369 F. Supp. 1132 40 Cannon v. University of Chicago, 441 U. S. 677 235, 238, 239, 562, 568, 569, 577, 578, 581 Cardwell v. Lewis, 417 U. S. 583 761 Carmona v. Ward, 439 U. S. 1091 23 Carpenters v. NLRB, 365 U. S. 651 52 XXX TABLE OF CASES CITED Page Carpenters v. Ritter’s Cafe, 315 IL S. 722 311 Carpenters v. United States, 330 U. S. 395 516,519, 526,527 Carroll v. United States, 267 U. S. 132 208,473,757,760- 763, 765, 769, 771, 772 Case Co. v. Borak, 377 U. S. 426 569,576, 581,582 Castaneda v. Partida, 430 U. S. 482 284 Caswell v. Califano, 583 F. 2d 9 699,706 Catanzaro v. Mancusi, 404 F. 2d 296 68 Chaloner v. Sherman, 242 U. S. 455 627 Chambers v. Maroney, 399 U. S. 42 757, 761, 763, 765, 770, 772 Chambers v. Mississippi, 410 U. S. 284 87,97 Chaney v. Wainwright, 561 F. 2d 1129 730 Chapman v. California, 386 U. S. 18 78,526 Chapman v. FPC, 345 U. S. 153 361 Chapman v. Houston Welfare Rights Org., 441 U. S. 600 238, 368, 370, 382, 389, 390 Chappell v. United States, 270 i F. 2d 274 514 Chattanooga Foundry Pipe Works v. Atlanta, 203 U. S. 390 335,339,340 Chernick v. United States, 492 F. 2d 1349 131 Cherokee Nation v. Hitchcock, 187 U. S. 294 665 Cherry v. Mathews, 419 F. Supp. 922 404 Chicago v. United States, 396 U. S. 162 452,462 Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 131-132 Childs v. U. S. Bd. of Parole, 167 U. S. App. D. C. 268 38 Chimel v. California, 395 U. S. 752 326,760,771 Choate v. Trapp, 224 U. S. 665 657 Page Christiansburg Garment Co. v. EEOC, 434 U. S. 412 375 Chrysler Corp. v. Brown, 441 U. S. 281 562 Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 455 City. See name of city. Civil Rights Cases, 109 U. S. 3 383 Clearfield Trust Co. v. United States, 318 U. S. 363 48 Cleary v. Chalk, 159 U. S. App. D. C. 415 337 Coffin v. Coffin, 4 Mass. 1 491,493 Cole v. Arkansas, 333 U. S. 196 106,107,1303,1306 Coleman v. Alabama, 399 U. S. 1 527 Collins v. Hardyman, 341 U. S. 651 371,395 Colorado River Conservation Dist. v. United States, 424 U. S. 800 314 Commonwealth. See also name of Commonwealth. Commonwealth v. Renfrew, 332 Mass. 492 631 Confiscation Cases, 7 Wall. 454 124 Conley v. Gibson, 355 U. S. 41 47 Connally v. General Construc- tion Co., 269 U. S. 385 123 Cooke v. Painters, 529 F. 2d 815 59 Coolidge v. New Hampshire, 403 U. S. 443 326, 756, 758,760 Cooper v. Pate, 378 U. S. 546 23, 922 Corliss v. Civil Service Comm’rs, 242 Mass. 61 266 Cort v. Ash, 422 U. S. 66 232, 233, 240, 241, 567, 571, 575, 579-581 Couch v. United States, 409 U. S. 322 740,744 Cousins v. Wigoda, 419 U. S.’ 477 199 Craig v. Boren, 429 U. S. 190 273, 286,287 Cramer v. United States, 325 U. S. 1 279,520 TABLE OF CASES CITED XXXI Page Cromwell v. Sac County, 94 U. S. 351 139 Crowell v. Benson, 285 U. S. 22 122 693 Cruz v. Beto, 405 U. S. 319 ’ 23, 922,923 Cupp v. Murphy, 412 U. S. 291 212 Cupp v. Naughten, 414 U. S. 441 527 Czosek v. O’Mara, 397 U. S. 25 50 Dandridge v. Williams, 397 U. S. 471 272 Daugherty v. Reagan, 446 F. 2d 75 922 Davis v. Aetna Acceptance Co., 293 U. S. 328 135 Davis v. Mann, 377 U. S. 678 315 Davis v. Mississippi, 394 U. S. 721 214,215,224,225 Davis v. United States, 417 U. S. 333 186 Davis v. United States Steel Supply, 581 F. 2d 335 376 Davis v. Watkins, 384 F. Supp. 1196 628 Dayton Bd. of Ed. v. Brink-man, 433 U. S. 406 702 Deboles v. Trans World Airlines, 552 F. 2d 1005 45,58 De Jonge v. Oregon, 299 U. S. 353 106 Delaware v. Prouse, 440 U. S. 648 211,219,471 Delli Paoli v. United States, 352 U. S. 232 69,76,88,89 District of Columbia v. Brooke, 214 U. S. 138 281 District of Columbia v. Carter, 409 U. S. 418 370 Doe v. Bolton, 410 U. S. 179 298, 624 Doe v. McMillan, 412 U. S. 306 246,490 Dombrowski v. Dowling, 459 F. 2d 190 384 Dombrowski v. Eastland, 387 U. S. 82 236,508 Dombrowski v. Pfister, 380 U. S. 479 155 Dorr v. United States, 195 U.S. 138 469,475 Page Dorszynski v. United States, 418 U. S. 424 16 Douglas v. Jeannette, 319 U. S. 157 253,425 Downes v. Bidwell, 182 U. S. 244 468,475 Drayton v. McCall, 584 F. 2d 1208 26 Duff v. Zelker, 452 F. 2d 1009 68 Duke Power Co. v. Carolina Environmental Study Group, 438 U. S. 59 240 Duke Power Co. v. Greenwood County, 299 U. S. 259 93,94 Dunlop v. Bachowski, 421 U. S. 560 454,462 Dunn v. Blumstein, 405 U. S. 330 300 Dunn v. United States, 442 U. S. 100 121,123 Durrett v. Smith, 358 S. W. 2d 261 133 Dutton v. Evans, 400 U. S. 74 73 Eastland v. U. S. Servicemen’s Fund, 421 U. S. 491 235,251 Eaton v. Tulsa, 415 U. S. 697 106 Edelman v. Jordan, 415 U. S. 651 76,389 Ehnes v. Generazzo, 19 N. J. Mise. 393 134 Ellwood City v. FERC, 583 F. 2d 642 541 Elrod v. Burns, 427 U. S. 347 254 Emmanuel v. Carpenters, 560 F. 2d 382 45 Enomoto v. Spain, 424 U. S. 951 1316 Environmental Defense Fund v. TVA, 468 F. 2d 1164 357 Epperson v. Arkansas, 393 U. S. 97 298 EEOC v. Detroit Edison Co., 515 F. 2d 301 375 Ernst & Ernst v. Hochfelder, 425 U. S. 185, 563, 568, 572, 574, 577, 578 Evans v. Bennett, 440 U. S. 1301 1304 Evers v. Dwyer, 358 U. S. 202 298 XXXII TABLE OF CASES CITED Page Examining Board v. Flores de Otero, 426 U. S. 572 470, 471,475 Ex parte. See name of party. Fahey v. Darigan, 405 F. Supp. 1386 197 Fay v. Noia, 372 IT. S. 391 148, 149 FCC v. Pacifica Foundation, 438 U. S. 726 339 Feinerman v. Jones, 356 F. Supp. 252 267 Fidelity & Casualty Co. v. Golombosky, 133 Conn. 317 133, 134 Fireman’s Fund Indemnity Co. v. Caruso, 252 Minn. 435 133 Flint Ridge Development Co. v. Scenic Rivers Assn., 426 IT. S. 776 351 Floyd v. Wilkins, 367 F. 2d 990 83 Fontenelle v. Omaha Tribe of Nebraska, 298 F. Supp. 855 661 Ford Motor Co. v. Huffman, 345 U. S. 330 47 Four Inmates v. Hall, 550 F. 2d 1291 25 Francis v. Francis, 203 IT. S. 233 661 Franklin v. Shields, 569 F. 2d 784 6,10,15,25,28,38 Franks v. Delaware, 438 IT. S. 154 149 Frazier v. Levi, 440 S. W. 2d 393 631 Frontiero v. Richardson, 411 IT. S. 677 32,273,278,288 Fuentes v. Shevin, 407 IT. S. 67 440 Gagnon v. Scarpelli, 411 IT. S. 778 9, 14, 19, 24-26,28,38,39 Gallegos v. Colorado, 370 IT. S. 49 729,733 Garner v. Louisiana, 368 IT. S. 157 106 Garner v. United States, 424 U. S. 648 491 Gault, In re, 387 U. S. 1 597, 600, 627, 729, 732, 733 Gehlen v. Patterson, 83 N. H. 328 134 Page General Electric Co. v. Gilbert, 429 U. S. 125 358,412 General Trading Co. v. State Tax Comm’n, 322 U. S. 335 731 Geraghty v. U. S. Parole Comm’n, 579 F. 2d 238 184 Gerstein v. Pugh, 420 U. S. 103 208,431,440 Gertz v. Robert Welch, Inc., 418 U. S. 323 48,50, 51,318 Giaccio v. Pennsylvania, 382 U. S. 399 123 Gibson v. Berryhill, 411 U. S. 564 425,442 Givhan v. Western Line Consolidated School Dist., 439 U. S. 410 313 Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91 240 Glover v. St. Louis-S. F. R. Co., 393 U. S. 324 49 Goldberg v. Kelly, 397 U. S. 254 606-608,634,688,697 Golden v. Zwickler, 394 U. S. 103 298 Goldfarb v. Virginia State Bar, 421 U. S. 773 341 Goldsmith v. Board of Tax Appeals, 270 U. S. 117 26 Gomes v. Travisono, 510 F. 2d 537 25 Gomillion v. Lightfoot, 364 U. S. 339 272,283 Gooding v. Wilson, 405 U. S. 518 155 Goss v. Board of Ed., 373 U. S. 683 283 Goss v. Lopez, 419 U. S. 565 33, 608,627,636,637 Gravel v. United States, 408 U.S. 606 246,492 Grayer Tank & Mfg. Co. v. Linde Air Products Co., 336 U. S. 271 46,82 Graves v. Barnes, 405 U. S. 1201 1311,1312 Grayned v. Rockford, 408 U. S. 104 112 Green v. Carlson, 581 F. 2d 669 244 Green v. State, 115 Ga. App. 685 97 TABLE OF CASES CITED Page Green v. United States, 132 U. S. App. D. C. 98 515 Greene v. McElroy, 360 U. S. 474 693 Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 608, 926,936 Greenwell v. United States, 119 U. S. App. D. C. 43 83 Gregg v. Georgia, 428 U. S. 153 98,902,924,934,947,1302 Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U. S. 322 405 Griffin v. Breckenridge, 403 U. S. 88 370-372,379-381,383, 389, 391, 392, 394, 395 Griffin v. Illinois, 351 U. S. 12 283 Griggs v. Duke Power Co., 401 U. S. 424 392 Guinn v. United States, 238 U. S. 347 272 Gutierrez v. E. & J. Gallo Winery Co., 425 F. Supp. 1221 337 Hagans v. Lavine, 415 U. S. 528 394 Hague v. CIO, 307 U. S. 496 371 Haley v. Ohio, 332 U. S. 596 729, 733 Hall v. Cole, 412 U. S. 1 50 Hall v. State, 49 Ala. App. 381 514,518 Halperin v. Kissinger, 434 F. Supp. 1193 751 Hamman v. United States, 267 F. Supp. 420 339 Hammer v. United States, 271 U. S. 620 108 Hampton v. Mow Sun Wong, 426 U. S. 88 247 Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481 341 Hargandine-McKit trick Dry Goods Co. v. Hudson, 111 F. 361 138 Harman v. Forssenius, 380 U. S. 528 306,317 Harrington v. California, 395 U. S. 250 70,71,75,78,83 Harris v. New York, 401 U. S. 222 718,732 XXXIII Page Harris v. United States, 390 U. S. 234 765 Harrison v. NAACP, 360 U. S. 167 306,308,312 Harrison v. United Transp. Union, 530 F. 2d 558 46,48,58 Hawaii v. Standard Oil Co., 405 U. S. 251 336,341,342 Hawkins v. Merrill, Lynch, Pierce, Fenner & Beane, 85 F. Supp. 104 578 Hawks v. Hamill, 288 U. S. 52 253 Hecht Co. v. Bowles, 321 U. S. 321 694 Heckman v. United States, 224 U. S. 413 657 Heiser v. Woodruff, 327 U. S. 726 139 Heller v. New York, 413 U. S. 483 326-328 Helstoski v. Meanor, 442 U. S. 500 479 Helvering v. Hallock, 309 U. S. 106 554 Helvering v. Hammell, 311 U. S. 504 552 Henderson v. Kibbe, 431 U. S. 145 185 Henry v. United States, 361 U. S. 98 213 Hershey v. People, 91 Colo. 113 132 Hickory v. United States, 160 U. S. 408 523 Hicks v. Miranda, 422 U. S. 332 438,462 Highland Resources, Inc. v. FPC, 537 F. 2d 1336 541 Hill v. Estelle, 537 F. 2d 214 922 Hill v. United States, 368 U. S. 424 184,185 Hines v. Anchor Motor Freight, Inc., 424 U. S. 554 46,47 Hodge v. Mountain States Tel. & Tel. Co., 555 F. 2d 254 739, 742 Hodges v. Rose, 570 F. 2d 643 68 Hodgin v. Jefferson, 447 F. Supp. 804 381 Hoffa v. United States, 385 U. S. 293 744,749 XXXIV TABLE OF CASES CITED Page Holtzman v. Schlesinger, 414 U-. S. 1304 905 Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278 236,437 Hopper v. Louisiana, 392 U. S. 658 75,76,83 Houtman, In re, 568 F. 2d 651 131,136 Huddleston v. Dwyer, 322 U. S. 232 154 Huddleston v. United States, 415 U. S. 814 112 Hudgens v. NLRB, 424 U. S. 507 779 Huffman v. Pursue, Ltd., 420 U. S. 592 253, 423, 424, 429, 430, 436 Hughes v. Superior Court, 339 U. S. 460 311 Hull, Ex parte, 312 U. S. 546 23 Humphrey v. Cady, 405 U. S. 504 622,626 Humphrey v. Moore, 375 U. S. 335 46,47 Hutcheson v. Director of Civil Service, 361 Mass. 480 265,267 Ignacio v. Guam, 413 F. 2d 513 69 Illinois Brick Co. v. Illinois, 431 U. S. 720 337,344 Ingraham v. Wright, 430 U. S. 651 18 In re. See name of party. ICC v. Baird, 194 U. S. 25 454, 456 Jacobs v. United States, 290 U. S. 13 242 Jacobson v. Tahoe Regional Planning Agency, 566 F. 2d 1353 244 James v. Valtierra, 402 U. S. 137 272 Jefferson v. Hackney, 406 U. S. 535 272 Jehovah’s Witnesses v. King County Hospital, 278 F. Supp. 488 630 J. I. Case Co. v. Borak, 377 U. S. 426 569,576,581,582 Jilhaad v. Carlson, 410 F. Supp. 1132 023 Jimenez v. Weinberger, 417 U. S. 628 286 Page Jimenez v. Weinberger, 523 F. 2d 689 699,706 Johnson, In re, 323 F. 2d 574 131 Johnson v. Chairman, N. Y. Bd. of Parole, 500 F. 2d 925 10, 26,27,30,34,38 Johnson v. Georgia Highway Express, 417 F. 2d 1122 375 Johnson v. Mathews, 539 F. 2d 1111 699,706 Johnson v. Railway Express Agency, 421 U. S. 454 376, 377,391,393,569 Johnson v. United States, 333 U. S. 10 213, 759 Johnson v. Zerbst, 304 U. S. 458 491,652 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123 12, 24, 34, 637 Jones v. Alfred H. Mayer Co., 392 U. S. 409 377,391,569 Jones v. Califano, 576 F. 2d 12 699 Jones v. North Carolina Pris- oner’s Union, 433 U. S. 119 923 Jones v. United States, 357 U. S. 493 759 J. R. v. Parham, 412 F. Supp. 112 644 Juidice v. Vail, 430 U. S. 327 253, 423, 425, 427, 430, 432, 436, 439, 442 Jurek v. Texas, 428 U. S. 262 903 Kahn v. Shevin, 416 U. S. 351 288 Kaimowitz v. Michigan Dept. of Mental Health, 42 U. S. L. W. 2063 626 Kardon v. National Gypsum Co., 69 F. Supp. 512 578 Kastigar v. United States, 406 U. S. 441 87 Katz v. United States, 389 U. S. 347 739-741, 743, 746- 748, 750-752, 758, 760 Keene v. Operating Engineers, 569 F. 2d 1375 59 Kent v. United States, 383 U. S. 541 27 Kentucky v. Whorton, 441 U. S. 786 914,915 Ker v. California, 374 U. S. 23 208,326 TABLE OF CASES CITED XXXV Page Kerr v. U. S. District Court, 426 U. S. 394 506 King County Republican Central Committee v. Republican State Committee, 79 Wash. 2d 202 194 Kleppe v. Sierra Club, 427 U. S. 390 350,351 Knecht v. Gillman, 488 F. 2d 1136 626 Koelfgen v. Jackson, 355 F. Supp. 243 265 Kohlman v. Norton, 380 F. Supp. 1073 33 Konigsberg v. State Bar, 353 U. S. 252 26 Kotteakos v. United States, 328 U. S. 750 105 Kremens v. Bartley, 431 U. S. 119 641,644 Krulewitch v. United States, 336 U. S. 440 90,394 Kugler v. Helfant, 421 U. S. 117 433,436 Kusper v. Pontikes, 414 U. S. 51 306 L. v. G. R. H., 163 Ind. App. 636 630,631 Lake Carriers’ Assn. v. Mac- Mullan, 406 U. S. 498 306, 317,437 Lakeside v. Oregon, 435 U. S. 333 86 90 Lane v. Wilson, 307 U. S. 268 272 Lanzetta v. New Jersey, 306 U. S. 451 112,123 Larkins v. Oswald, 510 F. 2d 583 25 La Rocca v. Lane, 37 N. Y. 2d 575 151 Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682 238 Leary v. United States, 395 U. S. 6 147, 156-160, 165-167, 171, 172, 176, 519, 520, 526 Leis v. Flynt, 439 U. S. 438 23 Leonard v. Mississippi Parole Bd., 373 F. Supp. 699 33 Letourneau, In re, 559 F. 2d 892 706 Levin v. Singer, 277 Md. 47 133 Page Lewis v. United States, 385 U. S. 206 329 Liberty Alliance of the Blind v. Califano, 568 F. 2d 333 699 Linn v. Plant Guard Workers, 383 U. S. 53 309 Little v. Stynchcombe, 227 Ga. 311 96 Local Loan Co. v. Hunt, 292 U. S. 234 128 Lockett v. Ohio, 438 U. S. 586 97 Loe v. Armistead, 582 F. 2d 1291 244 Lopez v. United States, 373 U. S. 427 744,749,750 Los Angeles Dept, of Water & Power v. Manhart, 435 U. S. 702 411 Love v. Pullman Co., 404 U. S. 522 373 Machinists v. Street, 367 U. S. 740 48,52 Mack v. Maggio, 538 F. 2d 1129 69 Mackey v. Procunier, 477 F. 2d 877 626 Madison School Dist. v. Wisconsin Employment Relations Comm’n, 429 U. S. 167 313 Maguire v. Wilkinson, 405 F. Supp. 637 923 Maher v. Roe, 432 U. S. 464 1311, 1312 Mancusi v. DeForte, 392 U. S. 364 740 Mandeville Island Farms v. American Crystal Sugar Co., 334 U. S. 219 341 Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 239 Mapp v. Ohio, 367 U. S. 643 207, 736,758 Marbury v. Madison, 1 Cranch 137 242 Marcus v. Search Warrant, 367 U. S. 717 325,326 Marshall v. Barlow’s, Inc., 436 U. S. 307 219,325,473 Martin v. Rosenbaum, 329 U. S. 817 131 Martorell v. Ochoa, 276 F. 99 630 XXXVI TABLE OF CASES CITED Page Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270 298 Mason v. United States, 260 U. S. 545 661 Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 271,273 Mathews v. Eldridge, 424 U. S. 319 13,14,22,32,33,35,39, 40, 606, 613, 615, 633, 634, 690, 691, 696, 703 Mathews v. Lucas, 427 U. S. 495 287,389 Mattern v. Mathews, 582 F. 2d 248 692,696 Mattern v. Weinberger, 519 F. 2d 150 689,691,694 Mattox v. United States, 156 U. S. 237 73 Mayor of Lynn v. Commissioner of Civil Service, 269 Mass. 410 266 McBoyle v. United States, 283 U. S. 25 112 McCulloch v. Maryland, 4 Wheat. 316 241,252 McDonald v. United States, 335 U. S. 451 759 McGinnis v. Royster, 410 U. S. 263 282 McKeiver v. Pennsylvania, 403 U. S. 528 717 McLaughlin v. Florida, 379 U. S. 184 272 McMillan, In re, 579 F. 2d 289 131,136 McNeil v. Director, Patuxent Institution, 407 U. S. 245 627, 634 Meachum v. Fano, 427 U. S. 215 7,10,11,23,25 Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1 38 Mesa Petroleum Co. v. FPC, 441 F. 2d 182 542 Metropolis v. Turner, 437 F. 2d 207 69 Meyer v. Nebraska, 262 U. S. 390 602,603, 621,625 Meyerkorth v. State, 173 Neb. 889 631 Page Michigan v. Tucker, 417 U. S. 433 718 Michigan v. Tyler, 436 U. S. 499 219 Miller v. Rush, 155 Colo. 178 134 Miller v. Twomey, 479 F. 2d 701 25 Mims v. United States, 375 F. 2d 135 516 Mincey v. Arizona, 437 U. S. 385 220,471,758,760 Minnesota v. Wisconsin, 252 U. S. 273 658 Miranda v. Arizona, 384 U. S. 436 67,68,77,203,226, 709, 713-719, 721-733 Missouri v. Nebraska, 196 U. S. 23 660 Mitchell v. Cohen, 333 U. S. 411 265 Mitchell v. W. T. Grant Co., 416 U. S. 600 634, 696 Mitchell Energy Corp. v. FPC, 533 F. 2d 258 543 Mitchum v. Foster, 407 U. S. 225 433,437 M. K. R., In re, 515 S. W. 2d 467 631 Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35 156 Monaghan v. Standard Motor Co., 96 Mont. 165 518 Monell v. New York City Dept, of Social Services, 436 U. S. 658 370,394, 666 Monks v. New Jersey Parole Bd., 58 N. J. 238 40 Monongahela Navigation Co. v. United States, 148 U. S. 312 235 Monroe v. Board of Comm Vs 391 U. S. 450 283 Monroe v. Bombard 422 F. Supp. 211 923 Monroe v. Pape, 365 U. S. 167 371,437 Montana v. United States, 440 U- S. 147 131,139 Montana-Dakota Utilities Co. v. Northwestern Public Serv. Co., 341 U. S. 246 239 Montanye v. Haymes, 427 U. S. 236 7,11 TABLE OF CASES CITED XXXVII Page Moody v. Daggett, 429 U. S. 78 7 Moor v. Alameda County, 411 U. S. 693 405 Moore v. Illinois, 434 U. S. 220 527 Moore v. Koelzer, 457 F. 2d 892 244 Moore v. Ogilvie, 394 U. S. 814 300 Moore v. State, 240 Ga. 807 95 Morales v. New York, 396 U. S. 102 202,205,221,226 Morris v. Gressette, 432 II. S. 491 454 Morrisette v. United States, 342 U. S. 246 521,522 Morrison v. Work, 266 U. S. 481 657 Morrissey v. Brewer, 408 U. S. 471 5,9,12,14,18,19,22-31,34, 35, 38-40, 606-608, 634 Morrissey v. National Maritime Union, 544 F. 2d 19 59 Moskowitz v. Wilkinson, 432 F. Supp. 947 923 Motes v. United States, 178 U. S. 458 87 Mullane v. Central Hanover Trust Co., 339 U. S. 306 38 Mullaney v. Anderson, 342 U. S. 415 470,473 Mullaney v. Wilbur, 421 U. S. 648 149,156,158, 513, 519, 520, 524, 527 Murdock v. Memphis, 20 Wall. 590 731 Murphy Oil Corp. v. FERC, 589 F. 2d 944 543 Nardone v. United States, 308 ' U. S. 338 216 NAACP v. Alabama, 357 U. S. 44Q 900 7^1 NAACP v. Button, 371 U. s/ 415 318 NLRB v. Baylor Univ. Medical Center, 439 U. S. 9 795 NLRB v. Fruit Packers, 377 U. S. 58 311 NLRB v. Iron Workers, 434 U. S. 335 796 NLRB v. Weingarten, Inc., 420 U. S. 251 796 Page National Railroad Passenger Corp. v. Railroad Passengers, 414 U. S. 453 240, 241, 568, 571, 572, 574 Nebraska v. Iowa, 143 U. S. 359 659-661 Nebraska v. Iowa, 406 U. S. 117 659,672,676,678 Nelson v. Hudspeth, C. A. No. J75-40 (R) (SD Miss.) 626 New Jersey v. United States, 168 F. Supp. 324 462 New York City Transit Authority v. Beazer, 440 U. S. 568 154,272,273,692 New York State Assn, for Retarded Children v. Rockefeller, 357 F. Supp. 752 628 New York Times Co. v. Sullivan, 376 U. S. 254 301 Niagara Mohawk Power Corp. v. FPC, 126 U. S. App. D. C. 376 541 Nicholas, In re, 510 F. 2d 160 130, 131 North Carolina v. Butler, 441 U. S. 369 717,724,725 Northey v. Vandermark, 66 Wash. 2d 173 134 North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 634 Norton v. Mathews, 427 U. S. 524 405,705 O’Brien v. Brown, 409 U. S. 1 905 Occidental Life Ins. Co. v. EEOC, 432 U. S. 355 374 O’Connor v. Donaldson, 422 U. S. 563 609, 622, 627, 629, 636, 638 Ohio ex rel. Bryant v. Akron Park Dist., 281 U. S. 74 475 Oklahoma v. Texas, 258 U. S. 574 671 Oliphant v. Susquamish Indian Tribe, 435 U. S. 191 666 Oneida Indian Nation v. County of Oneida, 414 U. S. 661 662,665,670,671,674 Opinion of the Justices, 166 Mass. 589 266 Opper v. United States, 348 U. S. 84 74,88 XXXVIII TABLE OF CASES CITED Page Oregon v. Hass, 420 U. S. 714 717, 731 Oregon v. Mathiason, 429 U. S. 492 224 Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U. S. 363 662,669,670 Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F. 2d 187 237 Orr v. Orr, 440 U. S. 268 273, 285,287 Oscar Mayer & Co. v. Evans, 441 U. S. 750 908 O’Shea v. Littleton, 414 U. S. 488 298 Oyler v. Boles, 368 U. S. 448 124, .125 Palmer v. Thompson, 403 U. S. 217 283 Papachristou v. Jacksonville, 405 U. S. 156 123 Parham v. J. R., 442 U. S. 584 641, 646,650,651 Parker v. Ellis, 362 IT. S. 574 93 Parklane Hosiery Co. v. Shore, 439 U. S. 322 139 Patterson v. New York, 432 U. S. 197 513,520, 524 Paul v. Davis, 424 U. S. 693 600 Pell v. Procunier, 417 IT. S. 817 23 Pennsylvania v. Mimms, 434 U. S. 106 210 Pennsylvania v. West Virginia, 262 U. S. 553 298 People v. Arthur, 22 N. Y. 2d 325 151 People v. Barbaro, 395 Ill. 264 84 People v. Bennett, 29 N. Y. 2d 462 151 People v. Burton, 6 Cal. 3d 375 712-714,716,730 People v. De Bour, 40 N. Y. 2d 210 151 People v. De Renzzio, 19 N. Y. 2d 45 151 People v. Disbrow, 16 Cal. 3d 101 731 People v. Fisher, 249 N. Y. 419 84 People v. Fragale, 60 App. Div. 2d 972 150 Page People v. Garcia, 41 App. Div. 2d 560 156 People v. Leyva, 38 N. Y. 2d 160 153 People v. Logan, 94 N. Y. S. 2d 681 153 People v. McCaleb, 25 N. Y. 2d 394 153 People v. McLucas, 15 N. Y. 2d 167 151 People v. Moll, 26 N. Y. 2d 1 69 People v. Morales, 22 N. Y. 2d 55 205,211,226 People v. Morales, 22 N. Y. 2d 129 205,206,224 People v. Ramos, 33 App. Div. 2d 344 151 People v. Randall, 1 Cal. 3d 948 716 People v. Robins, 38 N. Y. 2d 913 151 People v. Robinson, 36 N. Y. 2d 224 151 People v. Rosochacki, 41 Ill. 2d 483 69 People v. Russo, 303 N. Y. 673 165 People v. Scott, 53 App. Div. 2d 703 155 People v. Terra, 303 N. Y. 332 165 People v. Travison, 59 App. Div. 2d 404 150 People v. Walker, 26 Mise. 2d 940 151 People v. White, 86 Mise. 2d 803 151 Perez v. Ledesma, 401 U. S. 82 433 Pfizer Inc. v. Government of India, 434 U. S. 308 337,341 Phillips v. Williams, 583 P. 2d 488 34 Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672 531 Pierce v. Society of Sisters, 268 U. S. 510 298, 602, 603, 621, 625, 637 Pigge, In re, 539 F. 2d 369 131, 134,136 Pinkerton v. United States, 328 U. S. 640 394 TABLE OF CASES CITED XXXIX Page Pioneer Finance Co. v. Powell, 21 Utah 2d 201 135 Piper v. Chris-Craft Industries, 430 U. S. 1 568,577 Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 603,604,621-623,627,631 Plaquemines Oil & Gas Co. v. FPC, 146 U. S. App. D. C. 287 541 Poelker v. Doe, 432 U. S. 519 1311,1312 Pointer v. Texas, 380 U. S. 400 85,87 Pollard’s Lessee v. Hagan, 3 How. 212 657 Porter v. Warner Holding Co., 328 U. S. 395 705 Powell v. McCormack, 395 U. S. 486 236 Preiser v. Newkirk, 422 U. S. 395 93 Presnell v. Georgia, 439 U. S. 14 1303,1305,1306 Price v. Sheppard, 307 Minn. 200 626 Prince v. Massachusetts, 321 U. S. 158 602,603,621,625, 630 Procunier v. Martinez, 416 U. S. 396 316,923 Procunier v. Navarette, 434 U. S. 555 23 Proffitt v. Ciccone, 506 F. 2d 1020 923 Proffitt v. Florida, 428 U. S. 242 902,1301 Public Service Comm’n v. Wycoff Co., 344 U. S. 237 429 Quarles, In re, 158 U. S. 532 389 Quern v. Hernandez, 440 U. S. 951 436 Quern v. Hernandez, 405 F. Supp. 575 426 Quern v. Mandley, 436 U. S. 725 411 R., In re, 515 S. W. 2d 467 631 R. v. Parham, 412 F. Supp. 112 644 Radio Officers v. NLRB, 347 U. S. 17 520 Radzanower v. Touche Ross & Co., 426 U. S. 148 122 Page Railroad Comm’n v. Pullman Co., 312 U. S. 496 253, 306,427,428 Railway Express Agency v. New York, 336 U. S. 106 272 Railway Express Agency v. United States, 82 S. Ct. 466 1312 Railway Mail Assn. v. Corsi, 326 U. S. 88 298 Rakas v. Illinois, 439 U. S. 128 219,329,740,741,747,761 Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 412,554 Reed v. Reed, 404 U. S. 71 273, 286,389 Reetz v. Bozanich, 397 U. S. 82 314 Regional Rail Reorganization Act Cases, 419 U. S. 102 298, 300 Reid v. Covert, 354 U. S. 1 476 Reporter’s Committee for Freedom of Press v. American Tel. & Tel. Co., 593 F. 2d 1030 751 Republic Aviation Corp. v. NLRB, 324 U. S. 793 778,787 Republic Steel Corp. v. NLRB, 311 U. S. 7 52,55,56 R. E. W., In re, 545 S. W. 2d 573 420,426 Rewis v. United States, 401 U. S. 808 112,121 Reynolds v. United States, 98 U. S. 145 520 Rice v. Guider, 275 Mich. 14 134 Rich v. Touche Ross & Co. v. 415 F. Supp. 95 573 Richardson v. Perales, 402 U. S. 389 15 Richardson v. Wright, 405 U. S. 208 695 Richerson v. Jones, 551 F. 2d 918 375 Richerson v. Wolff, 525 F. 2d 797 6,38 Rinehart v. Brewer, 491 F. 2d 705 922 Rios v. Dillman, 499 F. 2d 329 265 Roaden v. Kentucky, 413 U. S. 496 325 XL TABLE OF CASES CITED Page Page Roberts v. Louisiana, 428 U. S. 325 903 Roberts v. Russell, 392 U. S. 293 75,76,83 Rodriguez, In re, 14 Cal. 3d 639 33 Rodriguez v. U. S. Parole Comm’n, 594 F. 2d 170 184 Roe v. Wade, 410 U. S. 113 624, 1313 Roger S., In re, 19 Cal. 3d 921 607 Rosado v. Wyman, 397 U. S. 397 389,394 Rosario v. Rockefeller, 410 U. S. 752 300 Rosenberg v. United States, 346 U. S. 273 124,125,904 Rossi v. United States, 289 U. S. 89 148 Roviaro v. United States, 353 U. S. 53 158,520 Rowland, Ex parte, 104 U. S. 604 505 Runyon v. McCrary, 427 U. S. 160 377,385,391,393,394 S., In re, 19 Cal. 3d 921 607 St. Clair v. Teamsters, 422 F. 2d 128 48 St. John’s Hospital & School of Nursing v. NLRB, 557 F. 2d 1368 788,789 Sampson, In re, 65 Mise. 2d 658 630 Samuels v. Mackell, 401 U. S. 66 423 San Antonio School Dist. v. Rodriguez, 411 U. S. 1 272 Sanders v. United States, 373 U. S. 1 906 Santa Clara Pueblo v. Martinez, 436 U. S. 49 571 Santa Fe Industries, Inc. v. Green, 430 U. S. 462 405, 568,577 Scarborough v. United States, 431 U. S. 563 119,120 Scarpa v. U. S. Board of Parole, 477 F. 2d 278 6,10 Schilling v. Rogers, 363 U. S. 666 456,458 Schlesinger v. Ballard, 419 U. S. 498 278,284 Schneble v. Florida, 405 U. S. 427 71,78,81,86 Schware v. Board of Bar Examiners, 353 U. S. 232 26 Scientists’ Institute for Public Information v. AEC, 156 U. S. App. D. C. 395 357 Scott v. Corn, 19 S. W. 2d 412 134 Scott v. Donald, 165 U. S. 58 48, 50 Scott v. Kentucky Parole Bd., No. 74-1899 (CA6) 6 Scott v. Plante, 532 F. 2d 1136 626 Scripps-Howard Radio v. FCC, 316 U. S. 4 705 Scripto, Inc. v. Carson, 362 U. S. 207 731 Secretary of Public Welfare v. Institutionalized Juveniles, 442 U. S. 640 589 SEC v. Chenery Corp., 318 U. S. 80 40 SEC v. National Securities, Inc., 393 U. S. 453 124 Securities Investor Protection Corp. v. Barbour, 421 U. S. 412 238,239,241, 565, 571, 574, 577, 578 Security National Bank v. Boccio, 60 Mise. 2d 547 134 Seergy v. Kings County Republican County Comm., 459 F. 2d 308 197 Shadwick v. Tampa, 407 U. S. 345 328 Shapiro v. Thompson, 394 U. S. 618 272 Shapiro v. United States, 335 U. S. 1 122 Shelley v. Kraemer, 334 U. S. .1 384 Sibron v. New York, 392 U. S. 40 471 Sierra Club v. Morton, 395 F. Supp. 1187 354 Silverthorne Lumber Co. v. United States, 251 U. S. 385 216 Simmons v. United States, 348 U. S. 397 26 Simmons v. United States, 390 U. S. 377 761 TABLE OF CASES CITED XLI Page Simpson v. United States, 436 U. S. 6 121 Sinking Fund Cases, 99 U. S. 700 250,253 Slack v. Havens, 522 F. 2d 1091 375 Smith v. Hampton Training School, 360 F. 2d 577 375 Smith v. Organization of Foster Families, 431 U. S. 816 23,600 Snowden v. Hughes, 321 U. S. 1 371 Socialist Labor Party v. Rhodes, 89 S. Ct. 3 1312 Socialist Workers Party v. Attorney General, 463 F. Supp. 515 751 Souder v. McGuire, 423 F. Supp. 830 626 South Dakota v. Opperman, 428 U. S. 364 761,763 Southeastern Community Col- lege v. Davis, 442 U. S. 397 562 Specht v. Patterson, 386 U. S. 605 600,627,634 Speiser v. Randall, 357 U. S. 513 26,318 Spinelli v. United States, 393 U. S. 410 207 Stanbridge v. Zelker, 514 F. 2d 45 68 Stanford v. Texas, 379 U. S. 476 325 Stanley v. Illinois, 405 U. S. 656 32 Stanton v. Stanton, 421 U. S. 7 285 State. See also name of State. State v. Collins, 582 P. 2d 1179 521 State v. Elliott, 524 S. W. 2d 473 68 State v. McKenzie, 177 Mont. 280 520 State v. Oliver, 160 Conn. 85 69 State v. Perricone, 37 N. J. 463 630 State v. Pohlabel, 61 N. J. Super. 242 33 State v. Roberts, 88 Wash. 2d 337 517 State v. Warbritton, 211 Kan. 506 514,517 Page State Land Bd. v. Corvallis Sand & Gravel Co., 429 U. S. 363 662,669,670 States Marine Lines, Inc. v. Shultz, 498 F. 2d 1146 244 Steele v. Louisville & N. R. Co., 323 U. S. 192 46, 47 49 53-55 Steffel v. Thompson, 415 U. S. 452 298,302,437 Steven C., In re, 9 Cal. App. 3d 255 731 Stevens v. Campbell, 332 F. Supp. 102 262 Stevens v. Marks, 383 U. S. 234 149 Stewart v. State, 257 Ark. 753 69 Stone v. Powell, 428 U. S. 465 185 Storer v. Brown, 415 U. S. 724 195,196,300,301 Strang v. Bradner, 114 U. S. 555 131 Street v. New York, 394 U. S. 576 151 Stuart, In re, 544 S. W. 2d 821 421 Stump v. Sparkman, 435 U. S. 349 621 Sullivan v. Little Hunting Park, 396 U. S. 229 377, 390,391,569 Sullivan v. Murphy, 156 U. S. App. D. C. 28 244 Sunal v. Large, 332 U. S. 174 184 Sun Oil Co. v. FPC, 364 U. S. 170 534,543 Sunray Mid-Continent Oil Co. v. FPC, 364 U. S. 137 537-539, 542 Superintendent of Ins. v. Bankers Life & Cas. Co., 404 U. S. 6 569,577 Swain v. Pressley, 430 U. S. 372 122 Swan v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 274 Syres v. Oil Workers, 350 U. S. 892 47 Tarble’s Case, 13 Wall. 397 245 Teamsters v. Daniel, 439 U. S. 551 411,568 Teamsters v. Morton, 377 U. S. 252 52,56 XLII TABLE OF CASES CITED Page Teamsters v. Vogt, Inc., 354 U. S. 284 311 TVA v. Hill, 437 U. S. 153 356, 361,552,555 Terry v. Ohio, 392 U. S. 1 207, 209, 210, 213, 214, 219, 220, 222, 223, 740 Teterud v. Burns, 522 F. 2d 357 923 Texas v. White, 423 U. S. 891 760, 763 Texas Gauze Mills v. Goatley, 119 S. W. 2d 887 426 Texas & N. O. R. Co. v. Railway & Steamship Clerks, 281 U. S. 548 239 Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33 580 Textile Workers v. Lincoln Mills, 353 U. S. 448 47 Theophil v. Sheller-Globe Corp., 446 F. Supp. 131 337 Thorpe v. Housing Authority of Durham, 386 U. S. 670 27 Time, Inc. v. Hill, 385 U. S. 374 309 T. I. M. E. Inc. v. United States, 359 U. S. 464 571, 572,574 Tinker v. Des Moines School Dist., 393 U. S. 503 627 Tot v. United States, 319 U. S. 463 156-159, 165, 166, 169-171, 520 Toijcey v. New York Life Ins. Co., 314 U. S. 118 554 Tracy v. Salamack, 572 F. 2d 393 25 Trainor v. Hernandez, 431 U. S. 434 240,253,423, 426, 427, 430, 433, 436 Trans Alaska Pipeline Rate Cases, 436 U. S. 631 458,459 Transamerica Mortgage Advisers, Inc. v. Lewis, 439 U. S. 952 562 Trimble v. Gordon, 430 U. S. 762 286,287 Turner v. United States, 396 U. S. 389 147,157, 158, 160, 172, 176, 519 Udall v. Tallman, 380 U. S. 1 554 Page Uhlhorn v. United States Gypsum Co., 336 F. 2d 211 663 Ulster County Court v. Allen, 442 U. S. 140 514, 519,520, 526 United Air Lines v. Evans, 431 U. S. 553 374 United Gas Pipe Line Co. v. FPC, 385 U. S. 83 537 United Jewish Organizations v. Carey, 430 U. S. 144 279 United States v. American Trucking Assns., 310 U. S. 534 552 United States v. Armour & Co., 402 U. S. 673 132 United States v. Augenblick, 393 U. S. 348 405 United States v. Bass, 404 U. S. 336 118,120,121 United States v. Beacon Brass Co., 344 U. S. 43 124 United States v. Beck, 483 F. 2d 203 485 United States v. Bergh, 352 U. S. 40 554 United States v. Borden Co., 308 U. S. 188 122 United States v. Bozza, 365 F. 2d 206 85,90 United States v. Brewster, 408 U. S.501 235,485,487-489,492-495, 497, 499, 503, 504 United States v. Brignoni- Ponce, 422 U. S. 873 210-212, 219 United States v. Brown, 333 U. S. i8 123 United States v. Chadwick, 433 U. S. 1 326,471,740,754,756- 763, 766-769, 771, 772 United States v. Chesapeake & Ohio R. Co., 426 U. S. 500 458, TT • , „ <59 United States v. Chiantese, 560 F. 2d 1244 514,518 United States v. Clegg, 509 F. 2d 605 739 United States v. CIO, 335 U. S. 106 Q92 United States v. Cooper Corp., 312 U. S. 600 667 United States v. Culbert, 435 U. S. 371 121,122 TABLE OF CASES CITED XLIII Page United States v. Dickinson, 331 U. S. 745 237 United States v. DiGilio, 538 F. 2d 972 68 United States v. Dionisio, 410 U. S. 1 740 United States v. Di Re, 332 U. S. 581 474 United States v. DiSilvio, 520 F. 2d 247 508 United States v. Employing Plasterers Assn., 347 U. S. 186 237 United States v. Evans, 333 U. S. 483 123,126 United States v. Falcone, 505 F. 2d 478 739 United States v. Finnegan, 568 F. 2d 637 754 United States v. Gainey, 380 U. S. 63 157-159,166,171,520 United States v. Garrett, 574 F. 2d 778 514 United States v. Giordano, 416 U. S. 505 736,739 United States v. Gradwell, 243 U. S. 476 113 United States v. Grayson, 438 U. S. 41 189 United States v. Grimaud, 220 U. S. 506 126 United States v. Harris, 106 U. S. 629 371,383 United States v. Harris, 347 U. S. 612 112,123 United States v. Hayman, 342 U. S. 205 185 United States v. Helstoski, 442 U. S. 477 501,503 United States v. Hudson, 7 Cranch 32 126 United States v. Jackson, 390 U. S. 570 86 United States v. Jeffers, 342 U. S. 48 760 United States v. Jim, 409 U. S. 80 665 United States v. Johnson, 383 U. S. 169 235, 487, 492, 494, 495, 503 United States v. Johnson, 390 U. S. 563 370,389,391,394 Page United States v. Key, 397 U. S. 322 552 United States v. Kimbel Foods, Inc., 440 U. S. 715 672,673 United States v. Knight, 14 Pet. 301 667 United States v. Krogh, 366 F. Supp. 1255 111 United States v. Lexington Mill & Elevator Co., 232 U. S. 399 551 United States v. Louisiana, 290 U. S. 70 452,453,455 United States v. Martinez-Fuerte, 428 U. S. 543 211, 212,219,759,760 United States v. Martin Linen Supply Co., 430 U. S. 564 516 United States v. Mauro, 436 U. S. 340 151 United States v. Mayer, 235 U. S. 55 186 United States v. Memphis Cotton Oil Co., 288 U. S. 62 237 United States v. Menasche, 348 U. S. 528 339 United States v. Miller, 425 U. S. 435 740,744,748 United States v. Mine Workers, 330 U. S. 258 667 United States v. Mosley, 238 U. S. 383 389 United States v. Munsingwear, Inc., 340 U. S. 36 93,94 United States v. Murray, 275 U. S. 347 189 United States v. Naftalin, 441 U. S. 768 121,124 United States v. New York Tel. Co., 434 U. S. 159 736, 739,741,742,747 United States v. Nixon, 418 U. S. 683 124,125,253 United States v. O’Brien, 391 U. S. 367 283 United States v. Oklahoma Gas & Electric Co., 318 U. S. 206 671 United States v. Omaha Indians, 253 U. S. 275 658 United States v. Ortiz, 422 U. S. 891 760 XLIV TABLE OF CASES CITED Page United States v. Peltier, 422 U. S. 531 226 United States v. Perryman, 100 U. S. 235 666,680,681 United States v. Price, 383 U. S. 787 389 United States v. Rabinowitz, 339 U. S. 56 759 United States v. Ramsey, 431 U. S. 606 473,764 United States v. Robinson, 361 U. S. 220 189 United States v. Robinson, 414 U. S. 218 764,770 United States v. Romano, 382 U. S. 136 157-160,166 168, 171, 174, 175, 520 United States v. Salerno, 538 F. 2d 1005 183 United States v. Scott, 437 U. S. 82 487 United States v. SCRAP, 412 U. S. 669 451,453,458 United States v. Solomon, 509 F. 2d 863 564 United States v. Sprinks, 470 F. 2d 64 69 United States v. Standard Oil Co., 332 U. S. 301 672 United States v. Stassi, 583 F. 2d 122 111 United States v. Stevie, 582 F. 2d 1175 754 United States v. Sullivan, 332 U. S. 689 122 United States v. Tucker, 404 U. S. 443 187 United States v. U. S. District Court, 407 U. S. 297 746, 758,759 United States v. United States Gypsum Co., 438 U. S. 422 522, 523,525 United States v. Vuitch, 402 U. S. 62 516 United States v. Waddell, 112 U. S. 76 389,394 United States v. Walton, 538 F. 2d 1348 69 United States v. Watson, 423 U. S. 411 208 Page United States v. Wharton, 139 U. S. App. D. C. 293 514, 515,517 United States v. White, 401 U. S. 745 740,741,744,748-751 United States v. Wilson, 420 U. S. 332 487 United States Credit Bureau v. Manning, 147 Cal. App. 2d 558 133 United States ex rel. Bey v. Connecticut Bd. of Parole, 443 F. 2d 1079 10,26 United States ex rel. Catanzaro v. Mancusi, 404 F. 2d 296 68 United States ex rel. Chapman v. FPC, 345 U. S. 153 361 United States ex rel. Duff v. Zelker, 452 F. 2d 1009 68 United States ex rel. Floyd v. Wilkins, 367 F. 2d 990 83 United States ex rel. Hill v. Deegan, 268 F. Supp. 580 83 United States ex rel. Johnson v. Chairman, N. Y. Bd. of Parole, 500 F. 2d 925 10, 26,27,30,34,38 United States ex rel. Larkins v. Oswald, 510 F. 2d 583 25 United States ex rel. Miller v. Twomey, 479 F. 2d 701 25 United States ex rel. Moore v. Koelzer, 457 F. 2d 892 244 United States ex rel. Richerson v. Wolff, 525 F. 2d 797 6,38 United States ex rel. Stanbridge v. Zelker, 514 F. 2d 45 68 Universal Camera Corp. v. NLRB, 340 U. S. 474 782,794 Universal C. I. T. Credit Corp, v. Woodmansee, 213 Tenn. 429 134 Vaca v. Sipes, 386 U. S. 171 46, 47,49-51, 53-57, 60 Vance v. Bradley, 440 U. S. 93 234,272 Veatch v. White, 23 F. 2d 69 663 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S. 519 559 Virginian R. Co. v. Railway Employees, 300 U. S. 515 52 TABLE OF CASES CITED XLV Page Von Lusch v. C & P Telephone Co., 457 F. Supp. 814 742 W., In re, 545 S. W. 2d 573 420, 426 Wainwright v. Sykes, 433 U. S. 72 148,150,154 Waley v. Johnston, 316 U. S. 101 185 Warden v. Hayden, 387 U. S. 294 208 Wardlaw v. United States, 203 F. 2d 884 514 Warm Springs Dam Task Force v. Gribble, 417 U. S. 1301 358 Warth v. Seldin, 422 U. S. 490 240 Washington v. Davis, 426 U. S. 229 260,272, 273, 275-277, 280, 284 Watkins, Ex parte, 3 Pet. 193 185 Watson v. Buck, 313 U. S. 387 428, 432 Weberman, In re, 198 Mise. 1055 631 Weems v. United States, 217 U. S. 349 23 Weiler v. United States, 323 U. S. 606 108 Weinberg v. Federated Department Stores, 426 F. Supp. 880 342 Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U. S. 609 549,555 Weinberger v. Salfi, 422 U. S. 749 691,699,703,706 Weinberger v. Wiesenfeld, 420 U. S. 636 273,280,285-287 Welsch v. Likins, 373 F. Supp. 487 628 Welsh v. Old Dominion Bank, 299 A. 2d 455 133 Westover v. United States, 384 U. S. 436 217 Whalen v. Roe, 423 U. S. 1313 1311,1312 Wheeldin v. Wheeler, 373 U. S. 647 248,579 Wheeler v. Glass, 473 F. 2d 983 628 Wheeler v. Montgomery, 397 U. S. 280 606 Page Wilcox v. Jackson, 13 Pet. 498 670 Williams v. Pacific Maritime Assn., 421 F. 2d 1287 45,58 Williams v. Rhodes, 393 U. S. 23 193,300 Willis v. Ciccone, 506 F. 2d 1011 25 Willner v. Committee on Character, 373 U. S. 96 26 Wilwording v. Swenson, 404 U. S. 249 23 Winship, In re, 397 U. S. 358 156, 513,519,520, 523 Winters v. Miller, 446 F. 2d 65 626 Wisconsin v. Yoder, 406 U. S. 205 602,603,621, 638 Wisconsin National Organization for Women v. Wisconsin, 417 F. Supp. 978 267 Wolf v. Colorado, 388 U. S. 25 758 Wolff v. McDonnell, 418 U. S. 539 12,14,19,23,25, 26, 28, 38, 39, 608, 634 Wong Sun v. United States, 371 U. S. 471 216,217,225 Woodson v. North Carolina, 428 U. S. 280 902,903 Workman v. Mitchell, 502 F. 2d 1201 25 Wright, In re, 584 F. 2d 83 131 Wright v. Raines, 457 F. Supp. 1082; 1 Kan. App. 2d 494 923 Wyatt v. Aderholt, 503 F. 2d 1305 628 Wyatt v. Hardin, No. 3195-N (MD Ala.) 626 Wyatt v. Stickney, 344 F. Supp. 387 628 Yick Wo v. Hopkins, 118 U. S. 356 272,275,384 Young v. United States, 315 U. S. 257 471 Younger v. Harris, 401 U. S. 37 253,298,299,422, 423, 432, 435-437, 443 Zemel v. Rusk, 381 U. S. 1 554 Zurcher v. Stanford Daily, 436 U. S. 547 220 Zwickler v. Koota, 389 U. S. 241 306,315,317 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1978 GREENHOLTZ, CHAIRMAN, BOARD OF PAROLE OF NEBRASKA, et al. v. INMATES OF THE NEBRASKA PENAL AND CORRECTIONAL COMPLEX et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 78-201. Argued January 17, 1979—Decided May 29, 1979 Under Nebraska statutes a prison inmate becomes eligible for discretionary parole when his minimum term, less good-time credits, has been served. Hearings are conducted in two stages to determine whether to grant or deny parole: initial review hearings and final parole hearings. Initial review hearings must be held at least once a year for every inmate. At the first stage, the Board of Parole examines the inmate’s preconfinement and postconfinement record, and holds an informal hearing; the Board interviews the inmate and considers any letters or statements presented in support of a claim for release. If the Board determines that the inmate is not yet a good risk for release, it denies parole, stating why release was deferred. If the Board determines that the inmate is a likely candidate for release, a final hearing is scheduled, at which the inmate may present evidence, call witnesses, and be represented by counsel. A written statement of the reasons is given if parole is denied. One section of the statutes (§83-1,114 (1)) provides that the Board “shall” order an inmate’s release unless it concludes that his release should be deferred for at least one of four specified reasons. Respondent inmates, who had been denied parole, brought a class action in Federal District Court, 1 2 OCTOBER TERM, 1978 Syllabus 442 U. S. which upheld their claim that the Board’s procedures denied them procedural due process. The Court of Appeals, agreeing, held that the inmates had the same kind of constitutionally protected “conditional liberty” interest as was recognized in Morrissey n. Brewer, 408 U. S. 471, also found a statutorily defined, protectible interest in § 83-1,114 (1), and required, inter alia, that a formal hearing be held for every inmate eligible for parole and that every adverse parole decision include a statement of the evidence relied upon by the Board. Held: 1. A reasonable entitlement to due process is not created merely because a State provides for the possibility of parole, such possibility providing no more than a mere hope that the benefit will be obtained. Parole revocation, for which certain due process standards must be met, Morrissey v. Brewer, supra, entails deprivation of a liberty one has and is a decision involving initially a wholly retrospective factual question as to whether the parolee violated his parole. Parole release involves denial of a liberty desired by inmates and that decision depends on an amalgam of elements, some factual but many purely subjective evaluations by the Board. Pp. 9-11. 2. While the language and structure of § 83-1,114 (1) provides a mechanism for parole that is entitled to some constitutional protection, the Nebraska procedure provides all the process due with respect to the discretionary parole decision. Pp. 11-16. (a) The formal hearing required by the Court of Appeals would provide at best a negligible decrease in the risk of error. Since the Board of Parole’s decision at its initial review hearing is one that must be made largely on the basis of the inmate’s file, this procedure adequately safeguards against serious risks of error and thus satisfies due process. Pp. 14-15. (b) Nothing in due process concepts requires the Board to specify the particular “evidence” in the inmate’s file or at his interview on which it rests its discretionary determination to deny release. The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords all the process that is due in these circumsta.nc.es, nothing more being required by the Constitution. Pp. 15-16. 576 F. 2d 1274, reversed and remanded. Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Blackmun, and Rehnquist, JJ., joined. Powell, J., filed an opinion concurring in part and dissenting in part, post, p. 18. Marshall, GREENHOLTZ v. NEBRASKA PENAL INMATES 3 1 Opinion of the Court J., filed an opinion dissenting in part, in which Brennan and Stevens, JJ., joined, post, p. 22. Ralph H. Gillan, Assistant Attorney General of Nebraska, argued the cause for petitioners. With him on the brief was Paul L. Douglas, Attorney General. Brian K. Ridenour argued the cause and filed a brief for respondents. William Alsup argued the cause for the United States as amicus curiae. On the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Easterbrook, and William G. Otis* Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to decide whether the Due Process Clause of the Fourteenth Amendment applies to discretionary parole-release determinations made by the Nebraska Board of Parole, and, if so, whether the procedures the Board currently provides meet constitutional requirements. I Inmates of the Nebraska Penal and Correctional Complex brought a class action under 42 U. S. C. § 1983 claiming that they had been unconstitutionally denied parole by the Board *Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O’Brien, Assistant Attorney General, and John T. Murphy and Karl S. Mayer, Deputy Attorneys General, for the State of California; and by Larry Derryberry, Attorney General, and John F. Fischer II, Assistant Attorney General, for the State of Oklahoma. Alvin J. Bronstein and Dean Hill Rivkin filed a brief for the National Prison Project of the American Civil Liberties Union Foundation as amicus curiae urging affirmance. Pierce O’Donnell and Robert L. Weinberg filed a brief for the Jerome N. Frank Legal Services Organization et al. as amici curiae. 4 OCTOBER TERM, 1978 Opinion of the Court 442U.S. of Parole. The suit was filed against the individual members of the Board. One of the claims of the inmates was that the statutes and the Board’s procedures denied them procedural due process. The statutes provide for both mandatory and discretionary parole. Parole is automatic when an inmate has served his maximum term, less good-time credits. Neb. Rev. Stat. § 83-1,107 (l)(b) (1976). An inmate becomes eligible for discretionary parole when the minimum term, less good-time credits, has been served. §83-1,110(1). Only discretionary parole is involved in this case. The procedures used by the Board to determine whether to grant or deny discretionary parole arise partly from statutory provisions and partly from the Board’s practices. Two types of hearings are conducted: initial parole review hearings and final parole hearings. At least once each year initial review hearings must be held for every inmate, regardless of parole eligibility. § 83-192 (9).1 At the initial review hearing, the Board examines the inmate’s entire preconfinement and postconfinement record. Following that examination it provides an informal hearing; no evidence as such is introduced, but the Board interviews the inmate and considers any letters or statements that he wishes to present in support of a claim for release. If the Board determines from its examination of the entire record and the personal interview that he is not yet a good risk for release, it denies parole, informs the inmate why release was deferred and makes recommendations designed to 1 The statute defines the scope of the initial review hearing as follows: “Such review shall include the circumstances of the offender’s offense, the presentence investigation report, his previous social history and criminal record, his conduct, employment, and attitude during commitment, and the reports of such physical and mental examinations as have been made. The board shall meet with such offender and counsel him concerning his progress and his prospects for future parole . . . .” Neb. Rev. Stat §83-192 (9) (1976). GREENHOLTZ v. NEBRASKA PENAL INMATES 5 1 Opinion of the Court help correct any deficiencies observed. It also schedules another initial review hearing to take place within one year. If the Board determines from the file and the initial review hearing that the inmate is a likely candidate for release, a final hearing is scheduled. The Board then notifies the inmate of the month in which the final hearing will be held; the exact day and time is posted on a bulletin board that is accessible to all inmates on the day of the hearing. At the final parole hearing, the inmate may present evidence, call witnesses and be represented by private counsel of his choice. It is not a traditional adversary hearing since the inmate is not permitted to hear adverse testimony or to cross-examine witnesses who present such evidence. However, a complete tape recording of the hearing is preserved. If parole is denied, the Board furnishes a written statement of the reasons for the denial within 30 days. § 83-1,111 (2).2 II The District Court held that the procedures used by the Parole Board did not satisfy due process. It concluded that the inmate had the same kind of constitutionally protected “conditional liberty” interest, recognized by this Court in Morrissey v. Brewer, 408 U. S. 471 (1972), held that some of the procedures used by the Parole Board fell short of constitutional guarantees, and prescribed several specific requirements. On appeal, the Court of Appeals for the Eighth Circuit agreed with the District Court that the inmate had a Morrissey-type, conditional liberty interest at stake and also found a 2 Apparently, over a 23-month period, there were eight cases with letters of denial that did not include a statement of reasons for the denial. A representative of the Board of Parole testified at trial that these were departures from standard practice. There is nothing to indicate that these inmates could not have received a statement if they had requested one or that a direct challenge to this departure from the statute would not have produced relief. See Neb. Rev. Stat. §25-1901 et seq. (1975). 6 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. statutorily defined, protectible interest in Neb. Rev. Stat. §83-1,114 (1976). The Court of Appeals, however, 576 F. 2d 1274, 1285, modified the procedures required by the District Court as follows: (a) When eligible for parole each inmate must receive a full formal hearing; (b) the inmate is to receive written notice of the precise time of the hearing reasonably in advance of the hearing, setting forth the factors which may be considered by the Board in reaching its decision; (c) subject only to security considerations, the inmate may appear in person before the Board and present documentary evidence in his own behalf. Except in unusual circumstances, however, the inmate has no right to call witnesses in his own behalf; (d) a record of the proceedings, capable of being reduced to writing, must be maintained; and (e) within a reasonable time after the hearing, the Board must submit a full explanation, in writing, of the facts relied upon and reasons for the Board’s action denying parole. The court’s holding mandating the foregoing procedures for parole determinations conflicts with decisions of other Courts of Appeals, see, e. g., Brown v. Landgren, 528 F. 2d 1050 (CA5), cert, denied, 429 U. S. 917 (1976); Scarpa, v. United States Board of Parole, 477 F. 2d 278 (CA5) (en banc), vacated as moot, 414 U. S. 809 (1973); Scott v. Kentucky Parole Board, No. 74-1899 (CA6 Jan. 15, 1975), vacated and remanded to consider mootness, 429 U. S. 60 (1976). See also Franklin v. Shields, 569 F. 2d 784, 800 (CA4 1977), cert, denied, 435 U. S. 1003 (1978); United States ex rel. Richerson v. Wolff, 525 F. 2d 797 (CA7 1975), cert, denied, 425 U. S. 914 (1976). We granted certiorari to resolve the Circuit conflicts. 439U. S. 817. GREENHOLTZ v. NEBRASKA PENAL INMATES 7 1 Opinion of the Court III The Due Process Clause applies when government action deprives a person of liberty or property; accordingly, when there is a claimed denial of due process we have inquired into the nature of the individual’s claimed interest. “[T]o determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake.” Board of Regents v. Roth, 408 U. S. 564, 570-571 (1972). This has meant that to obtain a protectible right “a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id., at 577. There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: “[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.” Meachum v. Fano, 427 U. S. 215, 224, (1976). Decisions of the Executive Branch, however serious their impact, do not automatically invoke due process protection; there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations. See Id., at 225; Montanye v. Haymes, 427 U. S. 236 (1976); Moody v. Daggett, 429 U. S. 78, 88 n. 9 (1976). This is especially true with respect to the sensitive choices presented by the administrative decision to grant parole release. A state may, as Nebraska has, establish a parole system, but it has no duty to do so. Moreover, to insure that the 8 OCTOBER TERM, 1978 Opinion of the Court 442U.S. state-created parole system serves the public-interest purposes of rehabilitation and deterrence,3 the state may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority. It is thus not surprising that there is no prescribed or defined combination of facts which, if shown, would mandate release on parole. Indeed, the very institution of parole is still in an experimental stage. In parole releases, like its siblings probation release and institutional rehabilitation, few certainties exist. In each case, the decision differs from the traditional mold of judicial decisionmaking in that the choice involves a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community.4 This latter conclusion requires the Board to assess whether, in light of the nature of the crime, the inmate’s release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine respect for the administration of justice. The entire inquiry is, in a sense, an “equity” type judgment that cannot always be articulated in traditional findings. IV Respondents suggest two theories to support their view that they have a constitutionally protected interest in a parole determination which calls for the process mandated by the Court of Appeals. First, they claim that a reasonable entitlement is created whenever a state provides for the possibility 3 These are the traditional justifications advanced to support the adoption of a system of parole. See generally A. von Hirsch & K. Hanrahan, Abolish Parole? 3 (1978); N. Morris, The Future of Imprisonment 47 (1974); J. Wilson, Thinking About Crime 171 (1975); D. Stanley, Prisoners Among Us 59, 76 (1976); Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash U. L. Q. 243, 249. 4 See Stanley, supra n. 3, at 50-55; Dawson, supra n. 3, at 287-288. GREENHOLTZ v. NEBRASKA PENAL INMATES 9 1 Opinion of the Court of parole. Alternatively, they claim that the language in Nebraska’s statute, Neb. Rev. Stat. §83-1,114(1) (1976), creates a legitimate expectation of parole, invoking due process protections. A In support of their first theory, respondents rely heavily on Morrissey v. Brewer, 408 U. S. 471 (1972), where we held that a parole-revocation determination must meet certain due process standards. See also Gagnon n. Scarpelli, 411 U. S. 778 (1973). They argue that the ultimate interest at stake both in a parole-revocation decision and in a parole determination is conditional liberty and that since the underlying interest is the same the two situations should be accorded the same constitutional protection. The fallacy in respondents’ position is that parole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires. The parolees in Morrissey (and probationers in Gagnon) were at liberty and as such could “be gainfully employed and [were] free to be with family and friends and to form the other enduring attachments of normal life.” 408 U. S., at 482. The inmates here, on the other hand, are confined and thus subject to all of the necessary restraints that inhere in a prison. A second important difference between discretionary parole release from confinement and termination of parole lies in the nature of the decision that must be made in each case. As we recognized in Morrissey, the parole-revocation determination actually requires two decisions: whether the parolee in fact acted in violation of one or more conditions of parole and whether the parolee should be recommitted either for his or society’s benefit. Id., at 479-480. “The first step in a revocation decision thus involves a wholly retrospective factual question.” Id., at 479. The parole-release decision, however, is more subtle and 10 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release. Unlike the revocation decision, there is no set of facts which, if shown, mandate a decision favorable to the individual. The parole determination, like a prisoner-transfer decision, may be made “for a variety of reasons and often involve [s] no more than informed predictions as to what would best serve [correctional purposes] or the safety and welfare of the inmate.” Meachum v. Fano, 427 U. S., at 225. The decision turns on a “discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.” Kadish, The Advocate and the Expert—Counsel in the Peno-Correctional Process, 45 Minn. L. Rev. 803, 813 (1961). The differences between an initial grant of parole and the revocation of the conditional liberty of the parolee are well recognized. In United States ex rel. Bey v. Connecticut Board of Parole, 443 F. 2d 1079, 1086 (1971), the Second Circuit took note of this critical distinction: “It is not sophistic to attach greater importance to a person’s justifiable reliance in maintaining his conditional freedom so long as he abides by the conditions of his release, than to his mere anticipation or hope of freedom.” Judge Henry Friendly cogently noted that “there is a human difference between losing what one has and not getting what one wants.” Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267, 1296 (1975). See also Brown v. Lundgren, 528 F. 2d, at 1053; Scarpa v. United States Board of Parole, 477 F. 2d, at 282; Franklin v. Shields, 569 F. 2d, at 799 (Field, J., dissenting); United States ex rel. Johnson v. Chairman, New GREENHOLTZ v. NEBRASKA PENAL INMATES 11 1 Opinion of the Court York State Board of Parole, 500 F. 2d 925, 936 (CA2 1974) (Hay, J., dissenting). That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained. Board of Regents n. Roth, 408 U. S., at 577. To that extent the general interest asserted here is no more substantial than the inmate’s hope that he will not be transferred to another prison, a hope which is not protected by due process. Meachum v. Fano, 427 U. S., at 225; Montanye v. Haymes, supra. B Respondents’ second argument is that the Nebraska statutory language itself creates a protectible expectation of parole. They rely on the section which provides in part: “Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because: “(a) There is a substantial risk that he will not conform to the conditions of parole; “(b) His release would depreciate the seriousness of his crime or promote disrespect for law; “(c) His release would have a substantially adverse effect on institutional discipline; or “(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.” Neb. Rev. Stat. §83-1,114 (1) (1976).5 Respondents emphasize that the structure of the provision together with the use of the word “shall” binds the Board of 5 The statute also provides a list of 14 explicit factors and one catchall factor that the Board is obligated to consider in reaching a decision. Neb. Rev. Stat. §§83-1,114 (2)(a)-(n) (1976). See Appendix to this opinion. 12 OCTOBER TERM, 1978 Opinion of the Court 442U.S. Parole to release an inmate unless any one of the four specifically designated reasons are found. In their view, the statute creates a presumption that parole release will be granted, and that this in turn creates a legitimate expectation of release absent the requisite finding that one of the justifications for deferral exists. It is argued that the Nebraska parole-determination provision is similar to the Nebraska statute involved in Wolff v. McDonnell, 418 U. S. 539 (1974), that granted good-time credits to inmates. There we held that due process protected the inmates from the arbitrary loss of the statutory right to credits because they were provided subject only to good behavior. We held that the statute created a liberty interest protected by due process guarantees. The Board argues in response that a presumption would be created only if the statutory conditions for deferral were essentially factual, as in Wolff and Morrissey, rather than predictive. Since respondents elected to litigate their due process claim in federal court, we are denied the benefit of the Nebraska courts’ interpretation of the scope of the interest, if any, the statute was intended to afford to inmates. See Bishop v. Wood, 426 U. S. 341, 345 (1976). We can accept respondents’ view that the expectancy of release provided in this statute is entitled to some measure of constitutional protection. However, we emphasize that this statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis. We therefore turn to an examination of the statutory procedures to determine whether they provide the process that is due in these circumstances. It is axiomatic that due process “is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S., at 481; Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 895 (1961); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 162- GREENHOLTZ v. NEBRASKA PENAL INMATES 13 1 Opinion of the Court 163 (1951) (Frankfurter, J., concurring). The function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions. Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error. Mathews n. Eldridge, 424 U. S. 319, 335 (1976). Here, as we noted previously, the Parole Board’s decision as defined by Nebraska’s statute is necessarily subjective in part and predictive in part. Like most parole statutes, it vests very broad discretion in the Board. No ideal, error-free way to make parole-release decisions has been developed; the whole question has been and will continue to be the subject of experimentation involving analysis of psychological factors combined with fact evaluation guided by the practical experience of the actual parole decisionmakers in predicting future behavior. Our system of federalism encourages this state experimentation. If parole determinations are encumbered by procedures that states regard as burdensome and unwarranted, they may abandon or curtail parole. Cf. Me. Rev. Stat. Ann., Tit. 34, §§ 1671-1679 (1964), repealed, 1975 Me. Acts, ch. 499, § 71 (repealing the State’s parole system). It is important that we not overlook the ultimate purpose of parole which is a component of the long-range objective of rehabilitation. The fact that anticipations and hopes for rehabilitation programs have fallen far short of expectations of a generation ago need not lead states to abandon hopes for those objectives; states may adopt a balanced approach in making parole determinations, as in all problems of administering the correctional systems. The objective of rehabilitating convicted persons to be useful, law-abiding members of society can remain a goal no matter how disappointing the progress. But it will not contribute to these desirable 14 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. objectives to invite or encourage a continuing state of adversary relations between society and the inmate. Procedures designed to elicit specific facts, such as those required in Morrissey, Gagnon, and Wolff, are not necessarily appropriate to a Nebraska parole determination. See Board of Curators, Univ, of Missouri v. Horowitz, 435 U. S. 78, 90 (1978); Cafeteria & Restaurant Workers v. McElroy, supra, at 895. Merely because a statutory expectation exists cannot mean that in addition to the full panoply of due process required to convict and confine there must also be repeated, adversary hearings in order to continue the confinement. However, since the Nebraska Parole Board provides at least one and often two hearings every year to each eligible inmate, we need only consider whether the additional procedures mandated by the Court of Appeals are required under the standards set out in Mathews v. Eldridge, supra, at 335, and Morrissey v. Brewer, supra, at 481. Two procedures mandated by the Court of Appeals are particularly challenged by the Board: 6 the requirement that a formal hearing be held for every inmate, and the requirement that every adverse parole decision include a statement of the evidence relied upon by the Board. The requirement of a hearing as prescribed by the Court of Appeals in all cases would provide at best a negligible decrease in the risk of error. See D. Stanley, Prisoners Among Us 43 (1976). When the Board defers parole after the initial review 6 The Board also objects to the Court of Appeals’ order that it provide written notice reasonably in advance of the hearing together with a list of factors that might be considered. At present the Board informs the inmate in advance of the month during which the hearing will be held, thereby allowing time to secure letters or statements; on the day of the hearing it posts notice of the exact time. There is no claim that either the timing of the notice or its substance seriously prejudices the inmate’s ability to prepare adequately for the hearing. The present notice is constitutionally adequate. GREENHOLTZ v. NEBRASKA PENAL INMATES 15 1 Opinion of the Court hearing, it does so because examination of the inmate’s file and the personal interview satisfies it that the inmate is not yet ready for conditional release. The parole determination therefore must include consideration of what the entire record shows up to the time of the sentence, including the gravity of the offense in the particular case. The behavior record of an inmate during confinement is critical in the sense that it reflects the degree to which the inmate is prepared to adjust to parole release. At the Board’s initial interview hearing, the inmate is permitted to appear before the Board and present letters and statements on his own behalf. He is thereby provided with an effective opportunity first, to insure that the records before the Board are in fact the records relating to his case; and second, to present any special considerations demonstrating why he is an appropriate candidate for parole. Since the decision is one that must be made largely on the basis of the inmate’s files, this procedure adequately safeguards against serious risks of error and thus satisfies due process.7 Cf. Richardson v. Perales, 402 U. S. 389,408 (1971). Next, we find nothing in the due process concepts as they have thus far evolved that requires the Parole Board to specify the particular “evidence” in the inmate’s file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release. The Board communicates the reason for its denial as a guide to the inmate for his future behavior. See Franklin v. Shields, 569 F. 2d, at 800 (en banc). To require the parole authority to provide a summary of the evidence would tend to convert the process into an adversary proceeding and to equate the Board’s 7 The only other possible risk of error is that relevant adverse factual information in the inmate’s file is wholly inaccurate. But the Board has discretion to make available to the inmate any information “[w]henever the board determines that it will facilitate the parole hearing.” Neb. Rev. Stat. § 83-1,112 (1) (1976). Apparently the inmates are satisfied with the way this provision is administered since there is no issue before us regarding access to their files. 16 OCTOBER TERM, 1978 Appendix to opinion of the Court 442U.S. parole-release determination with a guilt determination. The Nebraska statute contemplates, and experience has shown, that the parole-release decision is, as we noted earlier, essentially an experienced prediction based on a host of variables. See Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash. U. L. Q. 243, 299-300. The Board’s decision is much like a sentencing judge’s choice—provided by many states—to grant or deny probation following a judgment of guilt, a choice never thought to require more than what Nebraska now provides for the parole-release determination. Cf. Dorszynski v. United States, 418 U. S. 424 (1974). The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.8 So ordered. APPENDIX TO OPINION OF THE COURT The statutory factors that the Board is required to take into account in deciding whether or not to grant parole are the following: (a) The offender’s personality, including his maturity, sta- 8 The Court of Appeals in its order required the Board to permit all inmates to appear and present documentary support for parole. Since both of these requirements were being complied with prior to this litigation, the Board did not seek review of those parts of the court’s order and the validity of those requirements is not before us. The Court of Appeals also held that due process did not provide a right to cross-examine adverse witnesses or a right to present favorable witnesses. The practice of taping the hearings also was declared adequate. Those issues are not before us and we express no opinion on them. GREENHOLTZ v. NEBRASKA PENAL INMATES 17 1 Appendix to opinion of the Court bility, sense of responsibility and any apparent development in his personality which may promote or hinder his conformity to law; (b) The adequacy of the offender’s parole plan; (c) The offender’s ability and readiness to assume obligations and undertake responsibilities; (d) The offender’s intelligence and training; (e) The offender’s family status and whether he has relatives who display an interest in him or whether he has other close and constructive associations in the community; (f) The offender’s employment history, his occupational skills, and the stability of his past employment; (g) The type of residence, neighborhood or community in which the offender plans to live; (h) The offender’s past use of narcotics, or past habitual and excessive use of alcohol; (i) The offender’s mental or physical makeup, including any disability or handicap which may affect his conformity to law; (j) The offender’s prior criminal record, including the nature and circumstances, recency and frequency of previous offenses; (k) The offender’s attitude toward law and authority; (?) The offender’s conduct in the facility, including particularly whether he has taken advantage of the opportunities for self-improvement, whether he has been punished for misconduct within six months prior to his hearing or reconsideration for parole release, whether any reductions of term have been forfeited, and whether such reductions have been restored at the time of hearing or reconsideration; (m) The offender’s behavior and attitude during any previous experience of probation or parole and the recency of such experience; and 18 OCTOBER TERM, 1978 Opinion of Powell, J. 442U.S. (n) Any other factors the board determines to be relevant. Neb. Rev. Stat. § 83-1,114 (2) (1976). Mr. Justice Powell, concurring in part and dissenting in part. I agree with the Court that the respondents have a right under the Fourteenth Amendment to due process in the consideration of their release on parole. I do not believe, however, that the applicability of the Due Process Clause to parole-release determinations depends upon the particular wording of the statute governing the deliberations of the parole board, or that the limited notice of the final hearing currently given by the State is consistent with the requirements of due process. I A substantial liberty from legal restraint is at stake when the State makes decisions regarding parole or probation. Although still subject to limitations not imposed on citizens never convicted of a crime, the parolee enjoys a liberty incomparably greater than whatever minimal freedom of action he may have retained within prison walls, a fact that the Court recognized in Morrissey v. Brewer, 408 U. S. 471 (1972). “The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. . . . Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison.” Id., at 482. Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action. Ingraham v. Wright, 430 U. S. 651, 673-674 (1977); Board of Regents v. Roth, 408 GREENHOLTZ v. NEBRASKA PENAL INMATES 19 1 Opinion of Powell, J. U. S. 564, 572 (1972). Because this fundamental liberty “is valuable” and “its termination inflicts a ‘grievous loss’ on the parolee,” the Court concluded in Morrissey that the decision to revoke parole must be made in conformity with due process standards. 408 U. S., at 482. Similarly in Gagnon v. Scar-pelli, 411 U. S. 778 (1973), we held that a probationer must be accorded due process when a decision is to be made about the continuation of his probation. And the decision to rescind a prisoner’s “good-time credits,” which directly determine the time at which he will be eligible for parole, also must be reached in compliance with due process requirements. Wolff v. McDonnell, 418 U. S. 539 (1974). In principle, it seems to me that the Due Process Clause is no less applicable to the parole-release determination than to the decisions by state agencies at issue in the foregoing cases. Nothing in the Constitution requires a State to provide for probation or parole. But when a State adopts a parole system that applies general standards of eligibility, prisoners justifiably expect that parole will be granted fairly and according to law whenever those standards are met. This is so whether the governing statute states, as here, that parole “shall” be granted unless certain conditions exist, or provides some other standard for making the parole decision. Contrary to the Court’s conclusion, ante, at 9-11, I am convinced that the presence of a parole system is sufficient to create a liberty interest, protected by the Constitution, in the parole-release decision. The Court today, however, concludes that parole release and parole revocation “are quite different,” because “ ‘there is a . . . difference between losing what one has and not getting what one wants,’ ” ante, at 9, 10. I am unpersuaded that this difference, if indeed it exists at all, is as significant as the Court implies. Release on parole marks the first time when the severe restrictions imposed on a prisoner’s liberty by the prison regimen may be lifted, and his behavior in prison 20 OCTOBER TERM, 1978 Opinion of Powell, J. 442 U. S. often is molded by his hope and expectation of securing parole at the earliest time permitted by law. Thus, the parolerelease determination may be as important to the prisoner as some later, and generally unanticipated, parole-revocation decision. Moreover, whatever difference there may be in the subjective reactions of prisoners and parolees to release and revocation determinations is not dispositive. From the day that he is sentenced in a State with a parole system, a prisoner justifiably expects release on parole when he meets the standards of eligibility applicable within that system. This is true even if denial of release will be a less severe disappointment than revocation of parole once granted. I am unconvinced also by the Court’s suggestion that the prisoner has due process rights in the context of parole revocation but not parole release because of the different “nature of the decision that must be made in each case.” Ante, at 9. It is true that the parole-revocation determination involves two inquiries: the parole board must ascertain the facts related to the prisoner’s behavior on parole, and must then make a judgment whether or not he should be returned to prison. But unless the parole board makes parole-release determinations in some arbitrary or random fashion, these subjective evaluations about future success on parole also must be based on retrospective factual findings. See ante, at 14-15. In addition, it seems to me that even if there were any systematic difference between the factual inquiries relevant to release and revocation determinations, this difference, under currently existing parole systems, would be too slight to bear on the existence of a liberty interest protected by the Due Process Clause. It might be relevant, of course, in determining the process to be accorded in each setting. II The Court correctly concludes, in my view, that the Court of Appeals erred in ordering that a formal hearing be held for every inmate and that every adverse parole decision in- GREENHOLTZ v. NEBRASKA PENAL INMATES 21 1 Opinion of Powell, J. elude a statement of the evidence relied upon by the Board. Ante, at 14—16. The type of hearing afforded by Nebraska comports generously with the requirements of due process, and the report of the Board’s decision also seems adequate. Accordingly, I agree that the judgment of the Court of Appeals must be reversed and the case remanded. I do not agree, however, with the Court’s decision that the present notice afforded to prisoners scheduled for final hearings (as opposed to initial review hearings) is constitutionally adequate. Ante, at 14 n. 6. Under present procedures, a prisoner is told in advance the month during which his final hearing will be held, but is not notified of the exact date of the hearing until the morning of the day that it will occur. Thus, although a prisoner is allowed to “present evidence, call witnesses and be represented by private counsel,” ante, at 5, at the final hearing, his ability to do so necessarily is reduced or nullified completely by the State’s refusal to give notice of the hearing more than a few hours in advance. The Court’s opinion asserts that “[t]here is no claim that . . . the timing of the notice . . . seriously prejudices the inmate’s ability to prepare adequately for the hearing.” Ante, at 14 n. 6. But the original complaint in this case cited as an alleged denial of due process the State’s failure to “inform the [respondents] in advance of the date and time of their hearings before the Board of Parole.” The District Court ordered the petitioners to give prisoners notice of hearings at least 72 hours in advance of the hearings, and the Court of Appeals affirmed that order. The respondents have supported that judgment in this Court by arguing that the courts below correctly determined that the current notice procedure undermines the prisoner’s ability to present his case adequately at the final review hearing. Brief for Respondents 65. This conclusion accords with common sense, despite the petitioners’ comment that prisoners “are seldom gone on vacation or have conflicting appointments on the day their parole hear 22 OCTOBER TERM, 1978 Marshall, J., dissenting in part 442 U. S. ing is set.” Brief for Petitioners 30. It also imposes only a minimal burden on the State. I therefore agree with the decision of the courts below to require the State to give at least three days’ notice of final hearings, and I would not require the Court of Appeals to modify this portion of its judgment on remand. Mr. Justice Marshall, with whom Mr. Justice Brennan and Mr. Justice Stevens join, dissenting in part. My disagreement with the Court’s opinion extends to both its analysis of respondents’ liberty interest and its delineation of the procedures constitutionally required in parole release proceedings. Although it ultimately holds that the Nebraska statutes create a constitutionally protected “expectation of parole,” the Court nonetheless rejects the argument that criminal offenders have such an interest whenever a State establishes the possibility of parole. This gratuitous commentary reflects a misapplication of our prior decisions and an unduly narrow view of the liberty protected by the Fourteenth Amendment. Since the Court chooses to address the issue, I must register my opinion that all prisoners potentially eligible for parole have a liberty interest of which they may not be deprived without due process, regardless of the particular statutory language that implements the parole system. The Court further determines that the Nebraska Board of Parole already provides all the process that is constitutionally due. In my view, the Court departs from the analysis adopted in Morrissey v. Brewer, 408 U. S. 471 (1972), and Mathews v. Eldridge, 424 IT. S. 319, 335 (1976), and disregards considerations that militate for greater procedural protection. To supplement existing procedures, I would require that the Parole Board give each inmate reasonable notice of hearing dates and the factors to be considered, as well as a written statement of reasons and the essential facts underlying adverse decisions. GREENHOLTZ v. NEBRASKA PENAL INMATES 23 1 Marshall, J., dissenting in part I A It is self-evident that all individuals possess a liberty-interest in being free from physical restraint. Upon conviction for a crime, of course, an individual may be deprived of this liberty to the extent authorized by penal statutes.1 But when a State enacts a parole system, and creates the possibility of release from incarceration upon satisfaction of certain conditions, it necessarily qualifies that initial deprivation. In my judgment, it is the existence of this system which allows prison inmates to retain their protected interest in securing freedoms available outside prison.2 Because parole release proceedings clearly implicate this retained liberty interest, the Fourteenth Amendment requires that due process be observed, irrespective of the specific provisions in the applicable parole statute. This Court’s prior decisions fully support the conclusion that criminal offenders have a liberty interest in securing parole release. In Morrissey v. Brewer, supra, the Court held that all persons released on parole possess such an interest in remaining free from incarceration. Writing for the Court, Mr. Chief Justice Burger stated that the appli XA criminal conviction cannot, however, terminate all liberty interests. Wolff v. McDonnell, 418 U. S. 539, 555-556 (1974); see, e. g., Procunier v. Navarette, 434 U. S. 555 (1978); Bounds v. Smith, 430 U. S. 817 (1977); Pell v. Procunier, 417 U. S. 817, 822 (1974); Cruz v. Beto, 405 U. S. 319 (1972); Wilwording v. Swenson, 404 U. S. 249 (1971); Cooper v. Pate, 378 U. S. 546 (1964); Ex parte Hull, 312 IT. S. 546 (1941); Weems v. United States, 217 U. S. 349 (1910). See also Carmona n. Ward, 439 U.S. 1091 (1979) (Marshall, J., dissenting). 2 See Bell N. Wolfish, 441 U. S. 520, 568-571 (1979) (Marshall, J., dissenting) ; id., at 580-584 (Stevens, J., dissenting); Leis n. Flynt, 439 U. S. 438, 448-453 (1979) (Stevens, J., dissenting); Meachum n. Fano, 4^1 U. S. 215, 230 (1976) (Stevens, J., dissenting); cf. Bell v. Wolfish, supra, at 535-536, 545. See generally Smith n. Organization of Foster Families, 431 U. S. 816, 842-847 (1977). 24 OCTOBER TERM, 1978 Marshall, J., dissenting in part 442 U. S. cability of due process protections turns “on the extent to which an individual will be ‘condemned to suffer grievous loss/ ” citing Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring), and on the “nature of the interest.” 408 U. S., at 481. In assessing the gravity and nature of the loss caused by parole revocation, Morrissey relied on the general proposition that parole release enables an individual “to do a wide range of things open to persons who have never been convicted of any crime.” Id., at 482.3 Following Morrissey, Gagnon v. Scarpelli, 411 U. S. 778 (1973), held that individuals on probation also retain a liberty interest which cannot be terminated without due process of law. Nowhere in either opinion did the Court even intimate that the weight or nature of the criminal offender’s interest in maintaining his parole release or probation depends upon the specific terms of any statute, for in both cases the Court disregarded the applicable statutory language.4 Rather, this liberty interest derived solely from the 3 Because parolees’ enjoyment of these freedoms was subject to a number of restrictions, the Court characterized their liberty interest as “conditional.” See 408 U. S., at 480. The risk that violation of those conditions could lead to termination of parole status, however, did not diminish the significance of the parolees’ interest, since the Due Process Clause anticipates that most liberty interests may be abrogated under proper circumstances. So, too, here, respondents’ interest does not forfeit constitutional protection simply because their freedom would also be subject to conditions or because of the possibility that the Nebraska Parole Board will deny release after providing due process of law. 4 The state law in Morrissey, quoted only in the dissenting opinion, provided that “ ‘[a]ll paroled prisoners . . . shall be subject, at any time, to be taken into custody and returned to the institution ....’” 408 U. S., at 493 n. 2 (Douglas, J., dissenting in part). The statute specified no other criteria for parole revocation. Thus, had the Court relied solely on particular statutory language, it could not have held that parolees possess a constitutionally protected interest in continuing their status. In Scarpelli, the Court completely ignored the pertinent statutory language. See 411 U. S., at 781-782. GREENHOLTZ v. NEBRASKA PENAL INMATES 25 1 Marshall, J., dissenting in part existence of a system that permitted criminal offenders to serve their sentences on probation or parole. Wolff v. McDonnell, 418 U. S. 539 (1974), adopted a similar approach. There, the Court concluded that abrogation of a prisoner’s good-time credits implicates his interest in subsequently obtaining release from incarceration. Although the Court recognized that Nebraska was not constitutionally obligated to establish a credit system, by creating “a right to a shortened prison sentence through the accumulation of credits for good behavior,” id., at 557, the State had allowed inmates to retain a liberty interest that could be terminated only for “serious misbehavior.” This liberty interest derived from the existence of a credit system, not from the specific language of the implementing statute, see id., at 555-558, as decisions applying Wolff have consistently recognized.® B A criminal offender’s interest in securing release on parole is therefore directly comparable to the liberty interests we 5 Of. Baxter v. Palmigiano, 425 U. S. 308, 323-324 (1976). Lower courts have understood Wolff to require due process safeguards whenever goodtime credits are revoked, and have not focused on the language of various statutory provisions. See, e. g., Franklin v. Shields, 569 F. 2d 784, 788-790, 800-801 (CA4) (en banc), cert, denied, 435 U. S. 1003 (1978); United States ex rel. Larkins v. Oswald, 510 F. 2d 583 (CA2 1975); Gomes n. Travisono, 510 F. 2d 537 (CAI 1974); Willis v. Ciccone, 506 F. 2d 1011, 1017 (CA8 1974); Workman v. Mitchell, 502 F. 2d 1201 (CA9 1974). See also United States ex rel. Miller n. Twomey, 479 F. 2d 701, 712-713 (CA7 1973) (Stevens, J.), cert, denied sub nom. Gutierrez n. Department of Public Safety of III., 414 U. S. 1146 (1974). Meachum n. Fano, 427 U. S. 215 (1976), signals no departure from the basic principles recognized in Morrissey, Gagnon, and Wolff. While the majority in Meachum concluded that the prisoners did not have a protected liberty interest in avoiding transfers between penal institutions, the Court’s opinion rested on the absence of any limitation on such transfers rather than on particular statutory language. 427 U. S., at 225-228. See Tracy v. Salamack, 572 F. 2d 393, 395 n. 9 (CA2 1978); Four Certain Unnamed Inmates v. Hall, 550 F. 2d 1291, 1292 (CAI 1977). 26 OCTOBER TERM, 1978 Marshall, J., dissenting in part 442U.S. recognized in Morrissey, Scarpelli, and Wolff. However, because the Court discerns two distinctions between “parole release and parole revocation,” ante, at 9, it refuses to follow these cases here. In my view, the proffered distinctions do not support this departure from precedent. First, the Court finds a difference of constitutional dimension between a deprivation of liberty one has and a denial of liberty one desires. Ibid. While there is obviously some difference, it is not one relevant to the established constitutional inquiry. Whether an individual currently enjoys a particular freedom has no bearing on whether he possesses a protected interest in securing and maintaining that liberty. The Court acknowledged as much in Wolff v. McDonnell, supra, when it held that the loss of good-time credits implicates a liberty interest even though the forfeiture only deprived the prisoner of freedom he expected to obtain sometime hence. See Drayton v. McCall, 584 F. 2d 1208, 1219 (CA2 1978). And in other contexts as well, this Court has repeatedly concluded that the Due Process Clause protects liberty interests that individuals do not currently enjoy.6 The Court’s distinction is equally unrelated to the nature 6 See, e. g., Willner v. Committee on Character and Fitness, 373 U. S. 96 (1963); Speiser v. Randall, 357 U. S. 513 (1958); Konigsberg n. State Bar, 353 U. S. 252 (1957); Schware n. Board of Bar Examiners, 353 U. S. 232 (1957); Simmons v. United States, 348 U. S. 397 (1955); Goldsmith n. Board of Tax Appeals, 270 U. S. 117 (1926). The Second Circuit has characterized the attempt to differentiate between a liberty interest currently enjoyed but subject to termination, and an interest that can be enjoyed in the future following an administrative proceeding, as actually “nothing more than a reincarnation of the rightprivilege dichotomy in a not-too-deceptive disguise.” United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F. 2d 925, 927-928, n. 2, vacated as moot sub nom. Regan v. Johnson, 419 U. S. 1015 (1974), construing United States ex rel. Bey n. Connecticut Board of Parole, 443 F. 2d 1079, 1086 (CA2 1971), which the Court quotes ante, at 10; see Comment, The Parole System, 120 U. Pa. L. Rev. 282, 363 (1971). GREENHOLTZ v. NEBRASKA PENAL INMATES 27 1 Marshall, J., dissenting in part or gravity of the interest affected in parole release proceedings. The nature of a criminal offender’s interest depends on the range of freedoms available by virtue of the parole system’s existence. On that basis, Morrissey afforded constitutional recognition to a parolee’s interest because his freedom on parole includes “many of the core values of unqualified liberty.” 408 U. S., at 482. This proposition is true regardless of whether the inmate is presently on parole or seeking parole release. As the Court of Appeals for the Second Circuit has recognized, “[w]hether the immediate issue be release or revocation, the stakes are the same: conditional freedom versus incarceration.” United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F. 2d 925, 928, vacated as moot sub nom. Regan v. Johnson, 419 U. S. 1015 (1974). The Court’s second justification for distinguishing between parole release and parole revocation is based on the “nature of the decision that must be made in each case.” Ante, at 9. The majority apparently believes that the interest affected by parole release proceedings is somehow diminished if the administrative decision may turn on “subjective evaluations.” Yet the Court nowhere explains why the nature of the decisional process has even the slightest bearing in assessing the nature of the interest that this process may terminate.7 Indeed, the Court’s reasoning here is flatly inconsistent with its subsequent holding that respondents do have a protected liberty interest under Nebraska’s parole statutes, which require a decision that is “subjective in part and predictive in part.” Ante, at 13. For despite the Parole Board’s argument that such an interest exists “only if the statutory con 7 Government decisionmakers do not gain a “license for arbitrary procedure” when legislators confer a “substantial degree of discretion” regarding the assessment of subjective considerations. Kent v. United States, 383 U. S. 541, 553 (1966); see Thorpe n. Housing Authority of City of Durham, 386 U. S. 670, 678 (1967) (Douglas, J., concurring). 28 OCTOBER TERM, 1978 Marshall, J., dissenting in part 442U.S. ditions for [denying parole are] essentially factual, as in Wolff and Morrissey, rather than predictive,” ante, at 12, the Court nonetheless concludes that respondents’ interest is sufficient to merit constitutional protection. But even assuming the subjective nature of the decisionmaking process were relevant to due process analysis in general, this consideration does not adequately distinguish the processes of granting and revoking parole. See Morrissey v. Brewer, 408 U. S., at 477-480; Gagnon v. Scarpelli, 411 U. S., at 781-782. Contrary to the Court’s assertion that the decision to revoke parole is predominantly a “ ‘retrospective factual question,’ ” ante, at 9, Morrissey recognized that only the first step in the revocation decision can be so characterized. And once it is “determined that the parolee did violate the conditions [of parole, a] second question arise[s]: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation? The first step is relatively simple; the second is more complex. The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts. . . . [T]his second step, deciding what to do about the violation once it is identified, is not purely factual but also predictive and discretionary” 408 U. S., at 479-480 (emphasis added). Morrissey thus makes clear that the parole revocation decision includes a decisive subjective component. Moreover, to the extent parole release proceedings hinge on predictive determinations, those assessments are necessarily predicated on findings of fact.8 Accordingly, the presence of subjective 8 See Franklin v. Shields, 569 F. 2d, at 791; Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash. U. L. Q. 243, 248-285; cf. Morrissey v. Brewer, 408 U. 8., at GREENHOLTZ v. NEBRASKA PENAL INMATES 29 1 Marshall, J., dissenting in part considerations is a completely untenable basis for distinguishing the interests at stake here from the liberty interest recognized in Morrissey. C The Court also concludes that the existence of a parole system by itself creates “no more than a mere hope that the benefit will be obtained,” ante, at 11, and thus does not give rise to a liberty interest. This conclusion appears somewhat gratuitous, given the Court’s ultimate holding that the Nebraska statutes do generate a “legitimate expectation of [parole] release” which is protected by the Due Process Clause. Ante, at 12. Moreover, it is unclear what purpose can be served by the Court’s endeavor to depreciate the expectations arising solely from the existence of a parole system. The parole statutes in many jurisdictions embody the same standards used in the Model Penal Code, upon which both the Nebraska and federal provisions are patterned, and the Court’s analysis of the Nebraska statutes would therefore suggest that the other statutes must also create protectible expectations of release.9 479-480. The Nebraska statutes, in particular, demonstrate the factual nature of the parole release inquiry. One provision, quoted ante, at 16-18, enumerates factual considerations such as the inmate’s intelligence, family status, and employment history, which bear upon the four predictive determinations underlying the ultimate parole decision. See ante, at 11. 9 The parole statutes of 47 States establish particular standards, criteria, or factors to be applied in parole release determinations. A list of these statutes is set out in the Brief for Jerome N. Frank Legal Services Organization et al. as Amici Curiae 30-31, 23a-26a. These criteria presumably will be a significant source of inmates’ “legitimate expectations” regarding the availability of parole. Expectations would also be shaped by the role that parole actually assumes in a jurisdiction’s penological system, see infra, at 30-31. It is in these respects that most parole statutes are similar. While there are some differences in statutory language among jurisdictions, it is unrealistic to believe that variations such as the use of “may” rather than “shall,” see ante, at 11-12, could negate the expectations derived from 30 OCTOBER TERM, 1978 Marshall, J., dissenting in part 442U.S. Furthermore, in light of the role that parole has assumed in the sentencing process, I believe the Court misapplies its own test, see ante, at 11-12, by refusing to acknowledge that inmates have a legitimate expectation of release whenever the government establishes a parole system. As the Court observed in Morrissey: “During the past 60 years, the practice of releasing prisoners on parole before the end of their sentences has become an integral part of the penological system. . . . Rather than being an ad hoc exercise of clemency, parole is an established variation on imprisonment of convicted criminals.” 408 U. S., at 477. Indeed, the available evidence belies the majority’s broad assumptions concerning inmate expectations, at least with respect to the federal system, and there is no suggestion that experience in other jurisdictions is significantly different.10 Government statistics reveal that substantially less than one-third of all first-time federal offenders are held in prison until mandatory release.11 In addition, 88% of the judges responding to a recent survey stated that they considered the availability of parole when imposing sentence, and 47% acknowledged their expectation that defendants would be re- experience with a parole system and the enumerated criteria for granting release. 10 The New York State Parole Board, for example, granted parole in 75.4% of the cases it considered during 1972. See United States ex rel. Johnson n. Chairman of New York State Board of Parole, 500 F. 2d, at 928. In addition, recent studies show that parole is the method of release for approximately 70% of all criminal offenders returned each year to the community. Uniform Parole Reports, Parole in the United States: 1976 and 1977, p. 55 (1978). In some States, the figure is as high as 97%. See Kastenmeier & Eglit, Parole Release Decision-Making: Rehabilitation, Expertise, and the Demise of Mythology, 22 Am. U. L. Rev. 477, 481-482 (1973). 11 See Brief for United States in United States v. Addonizio, O. T. 1978, No. 78-156, p. 55 n. 47. GREENHOLTZ v. NEBRASKA PENAL INMATES 31 1 Marshall, J., dissenting in part leased on parole after serving one-third of their sentences.12 In accord with these views, the Administrative Conference of the United States has advised Congress that courts set maximum sentences anticipating “that a prisoner who demonstrates his desire for rehabilitation will not serve the maximum term or anything approaching the maximum.”13 And in discussing the sentencing provisions of the proposed revision of the Federal Criminal Code, S. 1437, the Senate Judiciary Committee observed: “A federal judge who today believes that an offender should serve four years in prison may impose a sentence in the vicinity of ten years, knowing that the offender is eligible for parole release after one third of the sentence.” S. Rep. No. 95-605, p. 1169 (1977). Thus, experience in the federal system has led both judges and legislators to expect that inmates will be paroled substantially before their sentences expire. Insofar as it is critical under the Court’s due process analysis, this understanding would certainly justify a similar expectation on the part of the federal inmates. Hence, I believe it is unrealistic for this Court to speculate that the existence of a parole system provides prisoners “no more than a mere hope” of release. Ante, at 11. II A I also cannot subscribe to the Court’s assessment of the procedures necessary to safeguard respondents’ liberty interest. Although the majority purports to rely on Morrissey v. 12 Project, Parole Release' Decisionmaking and the Sentencing Process, 84 Yale L. J. 810, 882 n. 361 (1975). 13 Hearings on H. R. 1598 and Identical Bills before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 93d Cong., 1st Sess., 163-164, 193 (1973) (testimony and statement of Antonin Scalia, Chairman of the Administm.-tive Conference of the United States). 32 OCTOBER TERM, 1978 Marshall, J., dissenting in part 442 U. S. Brewer and the test enunciated in Mathews n. Eldridge, 424 U. S. 319 (1976), its application of these standards is fundamentally deficient in several respects. To begin with, the Court focuses almost exclusively on the likelihood that a particular procedure will significantly reduce the risk of error in parole release proceedings. Ante, at 14-16. Yet Mathews advances three factors to be considered in determining the specific dictates of due process: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” 424 U. S., at 335. By ignoring the other two factors set forth in Mathews, the Court skews the inquiry in favor of the Board. For example, the Court does not identify any justification for the Parole Board’s refusal to provide inmates with specific advance notice of the hearing date or with a list of factors that may be considered. Nor does the Board demonstrate that it would be unduly burdensome to provide a brief summary of the evidence justifying the denial of parole. To be sure, these measures may cause some inconvenience, but “the Constitution recognizes higher values than speed and efficiency.” Stanley v. Illinois, 405 U. S. 645, 656 (1972); accord, Frontiero v. Richardson, 411 U. S. 677, 690 (1973); Bell v. Burson, 402 U. S. 535, 540-541 (1971). Similarly lacking in the Court’s analysis is any recognition of the private interest affected by the Board’s action. Certainly the interest in being released from incarceration is of sufficient magnitude to have some bearing on the process due.14 14 While the severity of a loss does not of itself establish that an interest deserves constitutional protection, this factor does weigh heavily in deter GREENHOLTZ v. NEBRASKA PENAL INMATES 33 1 Marshall, J., dissenting in part The second fundamental flaw in the Court’s analysis is that it incorrectly evaluates the only factor actually discussed. The contribution that additional safeguards will make to reaching an accurate decision necessarily depends on the risk of error inherent in existing procedures. See Mathews n. Eldridge, supra, at 334—335, 343-347. Here, the Court finds supplemental procedures to be inappropriate because it assumes existing procedures adequately reduce the likelihood that an inmate’s files will contain incorrect information which could lead to an erroneous decision. No support is cited for this assumption, and the record affords none. In fact, researchers and courts have discovered many substantial inaccuracies in inmate files, and evidence in the instant case revealed similar errors.15 Both the District Court and the Court of Appeals mining the procedural safeguards mandated by the Fourteenth Amendment. See Goss v. Lopez, 419 U. S. 565, 575-576 (1975); Board of Regents v. Roth, 408 U. S. 564 (1972). 15 In this case, for example, the form notifying one inmate that parole had been denied indicated that the Board believed he should enlist in a self-improvement program at the prison. But in fact, the inmate was already participating in all such programs available. Tr. 38-39. Such errors in parole files are not unusual. E. g., Kohlman v. Norton, 380 F. Supp. 1073 (Conn. 1974) (parole denied because file erroneously indicated that applicant had used gun in committing robbery); Leonard n. Mississippi State Probation and Parole Board, 373 F. Supp. 699 (ND Miss. 1974), rev’d, 509 F. 2d 820 (CA5), cert, denied, 423 U. S. 998 (1975) (prisoner denied parole on basis of illegal disciplinary action); In re Rodriguez, 14 Cal. 3d 639, 537 P. 2d 384 (1975) (factually incorrect material in file led parole officers to believe that prisoner had violent tendencies and that his “family reject [ed] him”); State v. Pohlabel, 61 N. J. Super. 242, 160 A. 2d 647 (1960) (files erroneously showed that prisoner was under a life sentence in another jurisdiction); Hearings on H. R. 13118 et al. before Subcommittee No. 3 of the House Judiciary Committee, 92d Cong., 2d Sess., pt. VII-A, p. 451 (1972) (testimony of Dr. Willard Gaylin: “I have seen black men listed as white and Harvard graduates fisted with borderline IQ’s”); S. Singer & D. Gottfredson, Development of a Data Base for Parole Decision-Making 2-5 (NCCD Research Center, Supp. Report 1, 1973) (information provided by FBI often lists same charge six or seven times without showing a final disposition). 34 OCTOBER TERM, 1978 Marshall, J., dissenting in part 442U.S. found additional procedures necessary to decrease the margin of error in Nebraska’s parole release proceedings. Particularly since the Nebraska statutes tie the parole decision to a number of highly specific factual inquiries, see ante, at 16-18, I see no basis in the record for rejecting the lower courts’ conclusion. Finally, apart from avoiding the risk of actual error, this Court has stressed the importance of adopting procedures that preserve the appearance of fairness and the confidence of inmates in the decisionmaking process. The Chief Justice recognized in Morrissey that “fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness,” 408 U. S., at 484 (citation omitted), a view shared by legislators, courts, the American Bar Association, and other commentators.16 This consideration is equally significant whether liberty interests are extinguished in parole release or parole revocation proceedings. As Mr. Justice Frankfurter argued in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S., at 171-172 (concurring opinion): “The validity and moral authority of a conclusion largely depend on the mode by which it was reached. Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the 16 See, e. g., S. Rep. No. 94-369, p. 19 (1975) (“It is essential, then, that parole has both the fact and appearance of fairness to all. Nothing less is necessary for the maintenance of the integrity of our criminal justice institutions”); United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F. 2d, at 928; Phillips n, Williams, 583 P. 2d 488, 490 (Okla. 1978), cert, pending, No. 78-1282; ABA, Standards Relating to the Legal Status of Prisoners (Tent. Draft 1977), in 14 Am. Crim. L. Rev. 377, 598 (1977); K. Davis, Discretionary Justice: A Prelim -inary Inquiry 126-133 (1969); Official Report of the New York State Special Commission on Attica 97, 98 (Bantam ed. 1972). GREENHOLTZ v. NEBRASKA PENAL INMATES 35 1 Marshall, J., dissenting in part case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done.” In my judgment, the need to assure the appearance, as well as the existence, of fairness supports a requirement that the Parole Board advise inmates of the specific dates for their hearings, the criteria to be applied, and the reasons and essential facts underlying adverse decisions. For “‘[o]ne can imagine nothing more cruel, inhuman, and frustrating than serving a prison term without knowledge of what will be measured and the rules determining whether one is ready for release.’” K. Davis, Discretionary Justice: A Preliminary Inquiry 132 (1969). B Applying the analysis of Morrissey and Mathews, I believe substantially more procedural protection is necessary in parole release proceedings than the Court requires. The types of safeguards that should be addressed here, however, are limited by the posture of this case.17 Thus, only three specific issues need be considered. 17 In accordance with the majority opinion, ante, at 16 n. 8, I do not address whether the Court of Appeals was correct in holding that the Nebraska Parole Board may not abandon the procedures it already provides. These safeguards include permitting inmates to appear and present documentary support at hearings, and providing a statement of reasons when parole ig denied or deferred. Because the inmates failed to seek review of the Court of Appeals’ decision, I also express no view on whether it correctly held that the Board’s practice of allowing inmates to present witnesses and retain counsel for final parole hearings was not constitutionally compelled. Finally, it would be inappropriate to consider the suggestion advanced here for the first time that inmates should be allowed access to their files in order to correct factual inaccuracies. Cf. ante, at 15 n. 7. Nevertheless, the range of protections currently afforded does- affect whether additional procedures are constitutionally compelled. The specific dictates of due process, of course, depend on what a particular situation 36 OCTOBER TERM, 1978 Marshall, J., dissenting in part 442 U. S. While the question is close, I agree with the majority that a formal hearing is not always required when an inmate first becomes eligible for discretionary parole. Ante, at 14—15. The Parole Board conducts an initial parole review hearing once a year for every inmate, even before the inmate is eligible for release. Although the scope of this hearing is limited, inmates are allowed to appear and present letters or statements supporting their case. If the Board concludes that an eligible inmate is a good candidate for release, it schedules a final and substantially more formal hearing. The Court of Appeals directed the Parole Board to conduct such a formal hearing as soon as an inmate becomes eligible for parole, even where the likelihood of a favorable decision is negligible, but the court required no hearing thereafter. 576 F. 2d 1274, 1285 (CA8 1978). From a practical standpoint, this relief offers no appreciable advantage to the inmates. If the Board would not have conducted a final hearing under current procedures, inmates gain little from a requirement that such a hearing be held, since the evidence almost certainly would be insufficient to justify granting release. And because the Court of Appeals required the Board to conduct only one hearing, inmates risk losing the right to a formal proceeding at the very point additional safeguards may have a beneficial impact. The inmates’ interest in this modification of the Board’s procedures is thus relatively slight.18 Yet the burden demands. See Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 895 (1961). Nebraska’s use of formal hearings when the possibility of granting parole is substantial and informal hearings in other cases, for example, combined with provision of a statement of reasons for adverse decisions, obviously reduces the need for supplemental procedures. 18 Although a formal hearing at the point of initial eligibility would reduce the risk of error and enhance the appearance of fairness, providing a summary of essential evidence and reasons, see n. 25, infra, together with allowing inmates to appear at informal hearings, decreases the justification for requiring the Board to conduct formal hearings in every case. See n. 17, supra. GREENHOLTZ v. NEBRASKA PENAL INMATES 37 1 Marshall, J., dissenting in part imposed on the Parole Board by the additional formal hearings would be substantial. Accordingly, I believe the Board’s current practice of combining both formal and informal hearings is constitutionally sufficient. However, a different conclusion is warranted with respect to the hearing notices given inmates. The Board currently informs inmates only that it will conduct an initial review or final parole hearing during a particular month within the next year. The notice does not specify the day or hour of the hearing. Instead, inmates must check a designated bulletin board each morning to see if their hearing is scheduled for that day. In addition, the Board refuses to advise inmates of the criteria relevant in parole release proceedings, despite a state statute expressly listing 14 factors the Board must consider and 4 permissible reasons for denying parole. See Neb. Rev. Stat. § 83-1,114 (1976), quoted ante, at 11, 16-18. Finding these procedures insufficient, the District Court and the Court of Appeals ordered that each inmate receive written advance notice of the time set for his hearing, along with a list of factors the Board may consider. 576 F. 2d, at 1285.19 Although the Board has proffered no justification for refusing to institute these procedures, id., at 1283, the Court sets aside the relief ordered below on the ground that “[t]here is no claim that either the timing of the notice or its substance seriously prejudices the inmate’s ability to prepare adequately for the hearing.” Ante, at 14 n. 6. But respondents plainly have contended throughout this litigation that reasonable advance notice is necessary to enable them to organize their evidence, call the witnesses permitted by the Board, and notify private counsel allowed to participate in the 19 The courts below found that 72 hours’ advance notice ordinarily would enable prisoners to prepare for their appearances. 576 F. 2d, at 1283. The Court of Appeals further determined that the statutory criteria were sufficiently specific that the Board need only include a list of those criteria with the hearing notices or post such a list in public areas throughout the institution. Ibid. 38 OCTOBER TERM, 1978 Marshall, J., dissenting in part 442 U. S. hearing, see Brief for Respondents 65-66; Answer Brief for Appellee Inmates in No. 77-1889 (CA8), pp. 6, 8-9, 25, 28; Trial Brief for Inmates in Civ. 72-L-335 (Neb.), pp. 17-18; and the courts below obviously agreed. See 576 F. 2d, at 1283; Mem. Op. in Civ. 72-1^335 (Neb., Oct. 21, 1977), App. to Pet. for Cert. 25, 39, 45-47. Given the significant private interests at stake, and the importance of reasonable notice in preserving the appearance of fairness, I see no reason to depart here from this Court’s longstanding recognition that adequate notice is a fundamental requirement of due process, e. g., Memphis Light, Gas & Water Division v. Craft, 436 U. S. 1, 13 (1978) ; Mullane v. Central Hanover Trust Co., 339 U. S. 306, 314 (1950), a principle heretofore found equally applicable in the present context. Wolff v. McDonnell, 418 U. S., at 563-564; Gagnon v. Scarpelli, 411 U. S., at 786; Morrissey v. Brewer, 408 U. S., at 486-487, 489. Finally, I would require the Board to provide a statement of the crucial evidence on which it relies in denying parole.20 At present, the Parole Board merely uses a form letter noting the general reasons for its decision. In ordering the Board to 20 Every other Court of Appeals holding the Due Process Clause applicable to parole release proceedings has also concluded that the parole board must advise the inmates in writing of the reasons for denying parole. See Franklin v. Shields, 569 F, 2d, at 800-801 (en banc); United States ex rel. Richerson v. Wolff, 525 F. 2d 797 (CA7 1975), cert, denied, 425 U. S. 914 (1976); Childs v. United States Board of Parole, 167 U. S. App. D. C. 268, 511 F. 2d 1270 (1974); United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F. 2d 925 (CA2), vacated as moot, 419 U. S. 1015 (1974). The parties to Franklin v. Shields did not request that the Parole Board also be required to provide a summary of the essential facts, see 569 F. 2d, at 787, 797, and the Fourth Circuit did not address the issue. The Second Circuit in Johnson expressly held that the statement of reasons must be supplemented by a summary of the “essential facts upon which the Board’s inferences are based.” 500 F. 2d, at 934. Richerson and Childs also indicated that the notice of reasons should include a description of the crucial facts. See 525 F 2d at 804 - 511 F 2d, at 1281-1284, aff’g 371 F. Supp. 1246,1247 (1973). GREENHOLTZ v. NEBRASKA PENAL INMATES 39 1 Marshall, J., dissenting in part furnish as well a summary of the essential facts underlying the denial, the Court of Appeals made clear that “ ‘detailed findings of fact are not required.’ ” 576 F. 2d, at 1284. The majority here, however, believes even this relief to be unwarranted, because it might render parole proceedings more adversary and equate unfavorable decisions with a determination of guilt. Ante, at 15-16. The Court nowhere explains how these particular considerations are relevant to the inquiry required by Morrissey and Mathews. Moreover, it is difficult to believe that subsequently disclosing the factual justification for a decision will render the proceeding more adversary, especially when the Board already provides a general statement of reasons.21 And to the extent unfavorable parole decisions resemble a determination of guilt, the Board has no legitimate interest in concealing from an inmate the conduct or failings of which he purportedly is guilty. While requiring a summation of the essential evidence might entail some administrative inconvenience, in neither Morrissey n. Brewer, supra, at 489; Gagnon v. Scarpelli, supra, at 786; nor Wolff v. McDonnell, supra, at 563, 564-565, did the Court find that this factor justified denying a written statement of the essential evidence and the reasons underlying a decision. It simply is not unduly “burdensome to give reasons when reasons exist. Whenever an application ... is denied . . . there should be some reason for the decision. It can scarcely be argued that government would be crippled by a requirement that the reason be communicated to the person most directly affected by the government’s action.” Board of Regents v. Roth, 408 U. S. 564, 591 (1972) (Marshall, J., dissenting). 21 Contrary to its supposition here, in Wolff n. McDonnell, 418 U. S., at 565, the Court could perceive no “prospect of prison disruption that can flow from the requirement of these statements.” 40 OCTOBER TERM, 1978 Marshall, J., dissenting in part 442 U. S. See Mathews v. Eldridge, 424 U. S., at 345-346; SEC v. Chenery Corp., 318 U. S. 80 (1943). And an inability to provide any reasons suggests that the decision is, in fact, arbitrary.22 Moreover, considerations identified in Morrissey and Mathews militate in favor of requiring a statement of the essential evidence. Such a requirement would direct the Board’s focus to the relevant statutory criteria and promote more careful consideration of the evidence. It would also enable inmates to detect and correct inaccuracies that could have a decisive impact.23 And the obligation to justify a decision publicly would provide the assurance, critical to the appearance of fairness, that the Board’s decision is not capricious. Finally, imposition of this obligation would afford inmates instruction on the measures needed to improve their prison behavior and prospects for parole, a consequence surely consistent with rehabilitative goals.24 Balancing these con- 22 See Hirschkop & Millemann, The Unconstitutionality of Prison Life, 55 Ya. L. Rev. 795, 811-812, 839 (1969). 23 The preprinted list of reasons for denying parole is unlikely to dis-close these types of factual errors. Out of 375 inmates denied parole during a 6-month period, the only reason given 285 of them was: “Your continued correctional treatment, vocational, educational, or job assignment in the facility will substantially enhance your capacity to lead a law-abiding life when released at a later date.” App. 4(M2. Although the denial forms also include a list of six “[r]ecommendations for correcting deficiencies,” such as “[e]xhibit some responsibility and maturity,” the evidence at trial showed that all six items were checked on 370 of the 375 forms, regardless of the facts of the particular case. App. 42: Tr 38-39 45-46. 24 See, e. g., cases cited in n. 20, supra; Candarini v. Attorney General of United States, 369 F. Supp. 1132, 1137 (EDNY 1974); Monks v. New Jersey State Parole Board, 58 N. J. 238, 249, 277 A. 2d 193, 199 (1971); K. Davis, Discretionary Justice: A Preliminary Inquiry 126-133 (1969); M. Frankel, Criminal Sentences 40-41 (1972); Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash. U. L. Q. 243, 302; Comment, 6 St. Mary’s L J 478 487 (1974). ' ’ GREENHOLTZ v. NEBRASKA PENAL INMATES 41 1 Marshall, J., dissenting in part siderations against the Board’s minimal interest in avoiding this procedure, I am convinced that the Fourteenth Amendment requires the Parole Board to provide inmates a statement of the essential evidence as well as a meaningful explanation of the reasons for denying parole release.26 Because the Court’s opinion both depreciates inmates’ fundamental liberty interest in securing parole release and sanctions denial of the most rudimentary due process protection, I respectfully dissent. 25 This statement of reasons and the summary of essential evidence should be provided to all inmates actually eligible for parole, whether the adverse decision is rendered following an initial review or a final parole hearing. 42 OCTOBER TERM, 1978 442 U. S. Syllabus INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al. v. FOUST CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 78-38. Argued February 26, 1979—Decided May 29, 1979 Respondent was discharged by his employer, the Union Pacific Railroad Co., for failing properly to request an extension of his medical leave of absence. Petitioner union filed a grievance on respondent’s behalf two days after the time for submission had expired. The National Railroad Adjustment Board denied respondent’s claim on the ground that the union had not complied with the filing deadline. Respondent then brought an unfair representation suit against the union. A jury found for respondent, awarding him actual and punitive damages. The Court of Appeals affirmed in most respects, but remanded the case for consideration of whether the punitive damages award was excessive. Held: The Railway Labor Act does not permit an employee to recover punitive damages for a union’s breach of its duty of fair representation in processing an employee’s grievance against his employer for wrongful discharge. Pp. 46-52. (a) Since Congress has not specified what remedies are available in unfair representation actions, this Court’s function is to implement a remedial scheme that will best effectuate the purposes of the Railway Labor Act, recognizing that the overarching legislative goal is to facilitate collective bargaining and to achieve industrial peace. Pp. 47-48. (b) The fundamental purpose of unfair representation suits is to compensate for injuries caused by violations of employees’ rights. To permit punitive damages, which, by definition, provide monetary relief in excess of actual loss, could impair the financial stability of unions and unsettle the careful balance of individual and collective interests which this Court has struck in the unfair representation area. Additionally, the prospect of punitive damages could curtail the broad discretion afforded unions in handling grievances and thereby inhibit the proper functioning of the collective-bargaining system. Inflicting such risks on employees, whose welfare depends on the strength of their unions, is too great a price for whatever deterrent effect punitive damages may have. Pp. 48-52. 572 F. 2d 710, reversed in part. ELECTRICAL WORKERS v. FOUST 43 42 Opinion of the Court Marshall, J., delivered the opinion of the Court, in which Brennan, Stewart, White, and Powell, JJ., joined. Blackmun, J., filed an opinion concurring in the result, in which Burger, C. J., and Rehnquist and Stevens, JJ., joined, post, p. 52. Laurence J. Cohen argued the cause for petitioners. With him on the briefs were William J. Hickey, Laurence Gold, and George Kaujmann. Terry W. Mackey argued the cause and filed a brief for respondent. Mr. Justice Marshall delivered the opinion of the Court. This action arises from the failure of petitioner union properly to process respondent’s grievance alleging wrongful discharge by his employer. The question presented is whether the Railway Labor Act1 permits an employee to recover punitive damages for such a breach of a union’s duty of fair representation. I Respondent, a member of the International Brotherhood of Electrical Workers (IBEW), was injured in March 1970 while working for the Union Pacific Railroad Co. (Union Pacific). He received a medical leave of absence through December 22, 1970. The collective-bargaining agreement between the union and the company required that employees either request an extension before their leave expired or return to work as scheduled. Accordingly, respondent sought to renew his leave in late December. Correspondence between Union Pacific and respondent’s attorney, however, revealed that the company had not received a doctor’s statement supporting respondent’s request. Notwithstanding Union Pacific’s written assurance on January 25, 1971, that it would await arrival of this document before reviewing respondent’s 144 Stat. 577, as amended, 45 U. S. C. § 151 et seq. 44 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. case, respondent was discharged on February 3 because, in the company’s view, he had not properly requested an extension. After respondent’s attorney failed to persuade Union Pacific to reconsider its decision, he wrote the IBEW District Chairman, D. F. Jones, requesting that the union initiate grievance proceedings on respondent’s behalf pursuant to Rule 21 of the collective-bargaining agreement.2 The letter was dated March 26, and was received by Jones on March 27, 52 days after the dismissal. Although Jones was aware that Rule 21 required presentation of grievances “within 60 days from the date of the occurrence on which the claim ... is based,” see n. 2, supra, and that this deadline was imminent, he did not imme-diately prepare a grievance letter. Rather, ne contacted the IBEW General Chairman, Leo Wisniski, who insisted that respondent personally request in writing the union’s assistance. Wisniski drafted a letter stating that the union could not “handle” the claim until such an authorization was received. App. to Brief for Respondent 8a. Instead of telephoning respondent or sending the letter directly to him, Wisniski mailed the letter to Jones, who then signed and forwarded it to respondent on April 5, 61 days after the discharge. Without awaiting the requested written authorization, Jones filed respondent’s claim with Union Pacific on April 6, two days after the time for submission had expired. The claim form had been prepared by Wisniski in Omaha, Neb., sent to Jones in Rawlins, Wyo., and then mailed by Jones to the railroad in Omaha. Both Union Pacific and the National Railroad Adjustment Board denied respondent’s claim on the ground that IBEW had not complied with the 60-day filing deadline. Respondent then brought this suit against the union and several of 2 Rule 21 (a)(1) provides: “All claims or grievances must be presented in writing by ... or on behalf of the employee involved, to the officer of the Carrier authorized to receive same, within 60 days from the date of the occurrence on which the claim or grievance is based.” ELECTRICAL WORKERS v. FOUST 45 42 Opinion of the Court its officers.3 He alleged that by filing the grievance out of time, the union had breached its duty of fair representation, which resulted in dismissal of his wrongful discharge claim. A jury found for respondent, awarding him $40,000 actual damages and $75,000 punitive damages, and the District Court accepted the jury’s award. No. C 74—50B (Wyo., May 17, 1976). The Court of Appeals affirmed the District Court’s judgment in most respects, but remanded the case for consideration of whether the punitive damages award was excessive. 572 F. 2d 710 (CAIO 1978).4 It rejected the suggestion of the Court of Appeals for the Third Circuit that punitive damages are impermissible in unfair representation suits,5 and declined to adopt the Eighth Circuit’s standard, which allows punitive damages only when union officers display malice toward the employee.6 Rather, following the Fourth Circuit, the Court of Appeals ruled that a punitive award is appropriate if a 3 Prior to initiating this action, respondent filed a separate suit against the railroad seeking recovery for work-related personal injuries and for the allegedly wrongful discharge. As part of a settlement of the personal injury action, respondent waived his wrongful discharge claim. App. 73. 4 The court held, inter alia, that the jury was correctly instructed on the elements of the cause of action and on the principles for assessing actual damages. It also found the evidence sufficient to support the jury verdict. 572 F. 2d, at 714-718. Our grant of certiorari was limited to the punitive damages question. See 439 U. S. 892 (1978). Consequently, for purposes of our analysis, we must take as correct the findings below that IBEW breached its duty of fair representation and that the $40,000 compensatory damages award was proper. 5 Deboles v. Trans World Airlines, Inc., 552 F. 2d 1005, 1019 (CA3), cert, denied, 434 U. S. 837 (1977). See also Williams v. Pacific Maritime Assn., 421 F. 2d 1287 (CA9 1970). 6 See Butler v. Teamsters Local 823, 514 F. 2d 442, 454 (CA8), cert, denied, 423 U. S. 924 (1975). Under the Eighth Circuit’s analysis, plaintiffs may be required to demonstrate that punitive damages are needed to deter future union misconduct. See 514 F. 2d, at 454; Emmanuel v. Omaha Carpenters District Council, 560 F. 2d 382, 386 (CA8 1977). 46 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. union has acted wantonly or in reckless disregard of an employee’s rights. See Harrison v. United Transportation Union, 530 F. 2d 558, 563-564 (CA4 1975), cert, denied, 425 U. S. 958 (1976).7 We granted certiorari to resolve this conflict among the Courts of Appeals as to what if any circumstances justify assessing punitive damages against a union that breaches its duty of fair representation. 439 U. S. 892 (1978). II This Court first recognized the statutory duty of fair representation in Steele v. Louisville & Nashville R. Co., 323 U. S. 192 (1944), a case arising under the Railway Labor Act. Steele held that when Congress empowered unions to bargain exclusively for all employees in a particular bargaining unit, and thereby subordinated individual interests to the interests of the unit as a whole, it imposed on unions a correlative duty “inseparable from the power of representation” to exercise that authority fairly. Id., at 202-204; see Humphrey v. Moore, 375 U. S. 335, 342 (1964); Vaca v. Sipes, 386 U. S. 171, 182 (1967); Hines v. Anchor Motor Freight, Inc., 424 U. S. 554, 564 (1976).8 The fair representation doctrine thus serves 7 The court below further determined that the jury instructions comported with this legal standard. The District Court had charged the jury that it could award punitive damages if petitioners acted “maliciously, or wantonly, or oppressively.” App. 65. Mr. Justice Blackmun surmises that “as a matter of law,” the union’s conduct “betrayed nothing more than negligence.” Post, at 53. This conclusion necessarily assumes that there was insufficient evidence of malicious, wanton, or oppressive conduct to justify the jury’s punitive damages award. We, however, are unwilling to substitute our judgment for that of the jury, District Court, and Court of Appeals on this essentially evidentiary question. See Tr. 270-271; App. 91-94; 572 F. 2d, at 719; Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U. S. 271, 275 (1949); Berenyi n. Immigration Director, 385 U. S. 630, 635-636 (1967). 8 The duty of fair representation is also implicit in the National Labor Relations Act, 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq., because ELECTRICAL WORKERS v. FOUST 47 42 Opinion of the Court as a “bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Vaca v. Sipes, supra, at 182. Under the doctrine, a union must represent fairly the interests of all bargaining-unit members during the negotiation, administration, and enforcement of collective-bargaining agreements. See, e. g., Conley v. Gibson, 355 U. S. 41, 46 (1957); Humphrey v. Moore, supra, at 342; Hines v. Anchor Motor Freight, Inc., supra, at 563-567. In particular, a union breaches its duty when its conduct is “arbitrary, discriminatory, or in bad faith,” as, for example, when it “arbitrarily ignore [s] a meritorious grievance or processes] it in [a] perfunctory fashion.” Vaca v. Sipes, supra, at 190, 191. The right to bring unfair representation actions is judicially “implied from the statute and the policy which it has adopted,” Steele v. Louisville & Nashville R. Co., supra, at 204, and Congress has not specified what remedies are available in these suits.9 Our function, therefore, is to implement a remedial scheme that will best effectuate the purposes of the Railway Labor Act, recognizing that the overarching legislative goal is to facilitate collective bargaining and to achieve industrial peace. See 323 U. S., at 204; Textile Workers v. that statute, like the Railway Labor Act, affords unions exclusive power to represent all employees of a bargaining unit. See, e. g., Sy res v. Oil Workers, 350 U. S. 892 (1955); Ford Motor Co. v. Huffman, 345 U. S. 330 (1953); Vaca v. Sipes, 386 U. S., at 177. For a discussion of the similarities between unfair representation suits under the two Acts, see Feller, A General Theory of the Collective Bargaining Agreement, 61 Calif. L. Rev. 663, 676-718 (1973). 9 Contrary to the fears expressed in the opinion concurring in the result, post, at 59, we express no view on the propriety of punitive awards in suits under the Landrum-Griffin Act. We are concerned here with judicially created remedies for a judicially implied cause of action. Whether the explicit statutory language of 29 U. S. C. §§ 411 and 412 and the accompanying legislative history authorize punitive damages awards obviously involves different considerations. 48 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. Lincoln Mills, 353 U. S. 448, 456-457 (1957); Machinists v. Street, 367 U. S. 740, 759 (1961); cf. Clearfield Trust Co. v. United States, 318 U. S. 363 (1943). Whether awarding punitive damages would comport with this national labor policy is the issue on which the instant case turns. Ill Punitive damages “are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.” Gertz v. Robert Welch, Inc., 418 U. S. 323, 350 (1974).10 In respondent’s view, this extraordinary sanction is necessary to vindicate an employee’s right to fair representation. Because actual damages caused by a union’s failure to pursue grievances may be de minimis, see Harrison v. United Transportation Union, supra, at 563; St. Clair v. Local Union No. 515, 422 F. 2d 128, 132 (CA6 1969); see also infra, at 50, respondent contends that a strong legal remedy is essential to encourage unfair representation suits and thereby inhibit union misconduct. We do not doubt that the prospect of lucrative monetary recoveries unrelated to actual injury would be a powerful incentive to bring unfair representation actions. Similarly, the threat of large punitive sanctions would likely affect unions’ willingness to pursue individual complaints. However, offsetting these potential benefits is the possibility that punitive awards could impair the financial stability of unions and unsettle the careful balance of individual and collective interests which this Court has previously articulated in the unfair representation area. The fundamental purpose of unfair representation suits is to compensate for injuries caused by violations of employees’ 10 See W. Prosser, Law of Torts §2, pp. 9-11 (4th ed. 1971) (hereinafter Prosser); D. Dobbs, Law of Remedies § 3.9, p. 204 (1973); Scott v Donald, 165 U. S. 58, 86 (1897). ELECTRICAL WORKERS v. FOUST 49 42 Opinion of the Court rights. In approving “resort to the usual judicial remedies of injunction and award of damages when appropriate,” Steele v. Louisville & Nashville R. Co., 323 U. S., at 207 (emphasis added), the Court emphasized that relief in each case should be fashioned to make the injured employee whole. Id., at 206-207. This compensation principle was again invoked in Vaca v. Sipes, supra, to govern an unfair representation suit for compensatory and punitive damages based on a union’s refusal to process a grievance alleging wrongful discharge.11 The Court there rejected the contention that an order compelling arbitration was the employee’s only remedy, and concluded that damages and equitable relief could be awarded when necessary to ensure full compensation. 386 U. a, at 196.12 The Court in Vaca applied the compensation principle not only to gauge the sufficiency of relief but also to limit union liability. Because an employee can recover in full from his employer for its breach of contract, we reasoned that a union which fails to process a grievance predicated on that breach cannot be held liable for damages attributable to the employ 11 Vaca involved a union certified under the National Labor Relations Act and a collective-bargaining agreement that permitted employees to initiate the grievance process, but precluded them from personally pursuing arbitration once grievance procedures were exhausted. 386 U. S., at 175 n. 3. The Railway Labor Act is somewhat more solicitous of individual rights. It authorizes employees who are unsuccessful at the grievance level to seek relief in their own right from the National Railroad Adjustment Board. §§ 3 First (i), (j), 45 U. 8. C. §§ 153 First (i), (j). 12 The compensation principle is also reflected in Vaca’s refusal to hold unfair representation claims within the exclusive jurisdiction of the National Labor Relations Board. Because the “public interest in effectuating the policies of the federal labor laws, not the wrong done the individual employee, is always the Board’s principal concern in fashioning unfair labor practice remedies,” we feared that denial of a judicial forum might, “frustrate the basic purposes underlying the duty of fair representation.” Vaca v. Sipes, supra, at 182 n. 8, 183 (emphasis added). See also Glover v. St. Louis-San Francisco R. Co., 393 U. S. 324, 328-329 (1969). 50 OCTOBER TERM, 1978 Opinion of the Court 442U.S. er’s conduct. Id., at 197. Recognizing the “real hardship” that large damages awards could impose on unions, the Court found “no merit in requiring [them] to pay the employer’s share of the damages.” Ibid. To avoid burdening unions beyond the extent necessary to compensate employees for their injuries, we refused to create an exception even for those unions with indemnification rights against employers. Ibid. Although acknowledging that this apportionment rule might in some instances effectively immunize unions from liability for a clear breach of duty, the Court found considerations of deterrence insufficient to risk endangering the financial stability of such institutions. Id., at 198. Accordingly, we vacated the jury’s award of compensatory and punitive damages against the union since “all or almost all” of the employee’s damages were attributable to the discharge. Ibid™ This limitation on union liability thus reflects an attempt to afford individual employees redress for injuries caused by union misconduct without compromising the collective interests of union members in protecting limited funds. To permit punitive damages, which, by definition, provide monetary relief “in excess of . . . actual loss,” Scott v. Donald, 165 U. S. 58, 86 (1897), could undermine this careful accommodation. Because juries are accorded broad discretion both as to the imposition and amount of punitive damages, see Gertz v. Robert Welch, Inc., supra, at 349-350; Prosser §2, pp. 13-14, the impact of these windfall recoveries is unpredictable and potentially substantial. Cf. Hall v. Cole, 412 U. S. 1, 9 n. 13 (1973).14 Such awards could deplete union treasuries, 13 On similar reasoning, the Court has applied Vaca’s apportionment principle to cases arising under the Railway Labor Act. In Czosek v. O’Mara, 397 U. S. 25, 29 (1970), we held that “damages against the union for loss of employment are unrecoverable except to the extent that its refusal to handle the grievances added to the difficulty and expense of collecting from the employer.” 14 Moreover, it cannot be ignored that punitive damages may be em ELECTRICAL WORKERS v. FOUST 51 42 Opinion of the Court thereby impairing the effectiveness of unions as collective-bargaining agents. Inflicting this risk on employees, whose welfare depends upon the strength of their union, is simply too great a price for whatever deterrent effect punitive damages may have. Cf. Automobile Workers v. Russell, 356 U. S. 634, 658 (1958) (Warren, C. J., dissenting). Additionally, the prospect of punitive damages in cases such as this could curtail the broad discretion that Vaca afforded unions in handling grievances. We there rejected the notion that employees could force unions to process their claims irrespective of the terms of the collective-bargaining agreement, and ruled that a union satisfies its obligation to represent employees fairly if it does not “arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion.” Vaca v. Sipes, 386 U. S., at 191-194. In so holding, the Court stressed that union discretion is essential to the proper functioning of the collective-bargaining system. Union supervision of employee complaints promotes settlements, avoids processing of frivolous claims, and strengthens the employer’s confidence in the union. Id., at 191-193. Without these screening and settlement procedures, the Court found that the costs of private dispute resolution could ultimately render the system impracticable. Ibid. Just as unlimited access to the grievance process could undermine collective bargaining, so too the threat of punitive ployed to punish unpopular defendants. As we observed in the defamation context: “[Since] juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused . . . they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger . . . .” Gertz n. Robert Welch, Inc., 418 U. S. 323, 350 (1974). Community hostility toward unions, management, or minority views can thus find expression in punitive awards. See Automobile Workers v. Russell, 356 U. S. 634, 651 (1958) (Warren, C. J., dissenting). 52 OCTOBER TERM, 1978 Blackmun, J., concurring in result 442U.S. damages could disrupt the responsible decisionmaking essential to peaceful labor relations. In order to protect against a future punitive award of unforeseeable magnitude, unions might feel compelled to process frivolous claims or resist fair settlements. Indeed, even those unions confident that most juries would hold in their favor could be deterred by the possibility of punitive damages from taking actions clearly in the interest of union members. Absent clear congressional guidance, we decline to inject such an element of uncertainty into union decisions regarding their representative functions. Acknowledging the “essentially remedial” objectives of the National Labor Relations Act, this Court has refused to permit punitive sanctions in certain unfair labor practice cases, see, e. g., Republic Steel Corp. v. NLRB, 311 U. S. 7, 10-12 (1940); Carpenters v. NLRB, 365 U. S. 651, 655 (1961), and in actions under § 303 of the Labor Management Relations Act, 29 U. S. C. § 187, Teamsters v. Morton, 377 U. S. 252, 260—261 (1964). Like the NLRA, the Railway Labor Act is essentially remedial in purpose. See supra, at 47-48; 45 U. S. C. § 151a; Virginian R. Co. v. Railway Employees, 300 U. S. 515, 542-548 (1937); Machinists v. Street, 367 U. 8., at 759-760; see also Republic Steel Corp. v. NLRB, supra, at 10-11. Because general labor policy disfavors punishment, and the adverse consequences of punitive damages awards could be substantial, we hold that such damages may not be assessed against a union that breaches its duty of fair representation by failing properly to pursue a grievance. Accordingly, we reverse the judgment below insofar as it upheld the award of punitive damages. So ordered. Mr. Justice Blackmun, with whom The Chief Justice, Mr. Justice Rehnquist, and Mr. Justice Stevens join, concurring in the result. The Court now adopts a per se rule that a union’s breach of its duty of fair representation can never render it liable for ELECTRICAL WORKERS v. FOUST 53 42 Blackmun, J., concurring in result punitive damages, no matter how egregious its breach maybe. I seriously doubt both the correctness and the wisdom of this holding. Whatever the merits of the Court’s per se rule, however, there is no need to propound such a blanket proscription in this particular case. The union’s conduct here betrayed nothing more than negligence, and thus presented an inappropriate occasion for awarding punitive damages under any formula. In order to dispose of this case, therefore, the Court need hold only that the trial judge erred as a matter of law in submitting the punitive damages issue to the jury; this is the holding I would adopt. Inasmuch as the Court reaches to outlaw punitive damages in all unfair representation cases, I shall attempt to show why I think the Court errs and why I concur only in the result. A Because the duty of fair representation is judicially created, the consequences of its breach necessarily are left to judicial determination. “The appropriate remedy for a breach of a union’s duty of fair representation,” the Court wrote in Vaca v. Sipes, 386 IT. S. 171, 195 (1967), “must vary with the circumstances of the particular breach.” Depending on the circumstances of the particular breach, the Court wrote in Steele v. Louisville & N. R. Co., 323 U. S. 192, 207 (1944), “the statute contemplates resort to the usual judicial remedies of injunction and award of damages.” These cases make clear that a court, seeking a remedy to match the union’s wrong, has at its disposal the full panoply of tools traditionally used by courts to do justice between parties. Punitive damages, being one of these tools, thus are presumptively available for use in appropriate cases, unless Congress has directed otherwise. Since Congress has never expressly interdicted their use, the Court’s decision to ban punitive damages from the arsenal necessarily rests upon inference—upon a perception that punitive damages in unfair representation 54 OCTOBER TERM, 1978 Blackmun, J., concurring in result 442U.S. suits are per se inconsistent with “federal labor policy.” The Court proffers four main theories to support this inference. I find none of them persuasive. First, the Court discerns in Vaca and Steele a “compensation principle,” a principle supposedly dictating that a damages award may “make the injured employee whole,” but may do no more. Ante, at 49, and n. 12. If these cases do embody a “compensation principle”—really, a neologism in this area of the law—it is a principle of a vastly different sort from that on which the Court relies. Steele and Vaca assuredly do stand for the proposition that a worker injured by his union’s breach of duty must at least be made whole. In Steele the Court held the plaintiffs entitled to a judicial damages remedy inasmuch as no “adequate administrative remedy” was available. 323 U. S., at 206-207. In Vaca it refused to find exclusive jurisdiction of unfair representation suits in the National Labor Relations Board, lest victims of union discrimination, owing to the Board’s limited remedial powers, on occasion be left remediless. 386 U. S., at 182-183. And in Vaca it also refused to limit judicial relief to a decree compelling arbitration of the underlying grievance, reasoning that an arbitrator might lack power to award damages against the union, and holding instead that “the court should be free to decide the contractual claim and to award the employee appropriate damages or equitable relief.” Id., at 196. In Vaca and Steele, in other words, the Court held that a worker’s remedies must include damages so that in all cases he would be fully compensated. But in neither case did it hold that the worker’s remedies must exclude damages to the extent they rise above the full compensation norm. The Court has read into Vaca’s affirmative compensation policy a negative pregnant; it has transformed its liberal “compensation principle” into a parsimonious limiting rule; it has converted the floor beneath the injured employee’s remedies into a ceiling on top of them. ELECTRICAL WORKERS v. FOUST 55 42 Blackmun, J., concurring in result Vaca and Steele, to my mind, contain no such negative pregnant. In Vaca the jury had awarded the worker both compensatory and punitive damages, 386 U. S., at 173; the Court held that “such damages are not recoverable from the Union, in the circumstances of this case,” id., at 195, pointing out that “all or almost all” of the worker’s damages were attributable to the employer, not to the union. Id., at 198. Vaca stands only for the proposition that a union not chargeable with compensatory damages may not be taxed with punitive damages either. If Vaca contains any negative pregnant, it is that when a union is chargeable with compensatory damages, it may be taxed with punitive damages too. In Steele, the Court held that “the statute contemplates resort to the usual judicial remedies of injunction and award of damages.” 323 U. S., at 207. This language, read in context, seems expansive to me. The Court now, by italicizing “usual,” implies that punitive damages, being an extraordinary sanction, are an “unusual remedy,” and hence outside Steele’s remedial compass. Ante, at 49. This reading is most strained. The Court’s italics may make its point clear, but they do not make its argument correct, and they provide no substitute for a fairminded appraisal of what Steele says. Neither Vaca nor Steele, in my view, supports the negative “compensation principle” upon which the Court relies. The Court’s second reason for banishing punitive damages from the pantheon, closely related to the first, is that federal labor policy is “essentially remedial” and hence inhospitable to punitive awards. Ante, at 52. The Court cites two major cases to support this theory. Neither is apposite. In Republic Steel Corp. v. NLRB, 311 U. S. 7 (1940), the Court held that the Board cannot order punitive sanctions. But the question in that case was whether “Congress [had] conferred the power upon the Board to impose such requirements.” Id., at 10. The question, in other words, was simply one of the Board’s statutory competence; the Court 56 OCTOBER TERM, 1978 Blackmun, J., concurring in result 442 U. S. decided that punitive sanctions were “beyond the Board’s authority” and that it lacked “jurisdiction” to impose them. Id., at 11, 13. Republic Steel has no pertinence here, since the federal courts have both the jurisdiction and the authority to impose punitive sanctions in their efforts to devise a federal law of remedies. In Teamsters n. Morton, 377 U. S. 252 (1964), the Court held that punitive damages may not be recovered in § 303 suits for damages from secondary boycotts. But Morton was a case of statutory construction. Section 303 expressly authorizes an employer’s recovery only of “the damages by him sustained.” 29 U. S. C. § 187 (b). “Punitive damages for violation of § 303,” the Court reasoned in Morton, “conflict with the congressional judgment, reflected both in the language of the federal statute and in its legislative history, that recovery for an employer’s business losses caused by a union’s peaceful secondary activities . . . should be limited to actual, compensatory damages.” 377 U. S., at 260 (footnotes omitted). Since Congress has expressed no such prohibition on punitive damages in unfair representation suits, Morton is simply inapposite here. Neither Republic Steel nor Morton, therefore, supports the Court’s invocation of an “essentially remedial” theory in the fair representation area. The third reason the Court gives in support of its per se rule is that punitive damages awards “could deplete union treasuries, thereby impairing the effectiveness of unions as collective-bargaining agents.” Ante, at 50-51. It is true that Vaca, in enunciating its formula for apportioning damages in wrongful-discharge cases, said that “[i]t could be a real hardship on the union” to pay damages in certain circumstances. 386 U. S., at 197. But the Court was not talking about unions’ fiscal soundness; one searches the opinion in vain for references to “depletion of union treasuries” or “impairment of union effectiveness in collective bargaining.” What Vaca said was that it could be a real hardship to make ELECTRICAL WORKERS v. FOUST 57 42 Blackmun, J., concurring in result a union pay “damages attributable solely to the employer’s breach of contract.” Ibid. It is, obviously, a “real hardship” for anyone, regardless of his wealth, to be forced to pay money for something that was not his fault. And even if Vaca were read to evince concern for union treasuries, even in cases where the union is at fault, this concern would not support the Court’s proscription of punitive damages where the union’s fault is egregious. As the Court notes, ante, at 48, the damages a union will be forced to pay in a typical unfair representation suit are minimal; under Vaca’s apportionment formula, the bulk of the award will be paid by the employer, the perpetrator of the wrongful discharge, in a parallel § 301 action. See 386 U. S., at 197-198. Union treasuries, in other words, will emerge unscathed in the general run of unfair representation cases. Given this, it can work no undue hardship on union fiscal soundness to permit punitive awards in those rare cases where the union has notoriously misbehaved. The fourth theory underpinning the Court’s per se rule is that “the prospect of punitive damages in cases such as this could curtail the broad discretion that Vaca afforded unions in handling grievances,” and thus “could disrupt the responsible decisionmaking essential to peaceful labor relations.” Ante, at 51, 52. The Court’s theory seems to be that a union, fearing punitive damages, might become more vigilant in processing workers’ grievances* that this vigilance might lead unions to process frivolous grievances; that this frivolity might antagonize the employer; and that this antagonism might beget disharmony at the bargaining table. This reasoning seems tenuous to me. Surely, the Court cannot believe that such airy speculations will induce union shop stewards to abandon all vestiges of common sense as they go about their diurnal chores. And even if the prospect of punitive damages did operate to chill a union’s reason “in cases such as this,” no Member of the Court is proposing to 58 OCTOBER TERM, 1978 Blackmun, J., concurring in result 442 U. S. award punitive damages “in cases such as this.” Everyone agrees that punitive damages here were improper. The question is whether punitive damages are also to be outlawed in cases, unlike this one, where the union’s conduct has been truly egregious. A little chilling of union “discretion” in those cases would not bother me. B The Court’s four proffered reasons in support of a per se ban on punitive damages thus leave me unpersuaded. I am not alone in feeling this way, for no Court of Appeals to consider the question has embraced the per se rule the Court today goes out of its way to adopt. As the Court observes, ante, at 45-46, the Fourth Circuit, followed by the Tenth in this case, has approved of punitive damages in unfair representation cases. Harrison n. United Transportation Union, 530 F. 2d 558, 563-564 (1975), cert, denied, 425 U. S. 958 (1976). The Eighth Circuit has expressed the view that punitive damages may be awarded where the union is guilty of “outrageous or extraordinary conduct.” Butler v. Teamsters Local 823, 514 F. 2d 442, 454, cert denied, 423 U. S. 924 (1975). The Ninth Circuit, while barring punitive damages on the facts, restricted its holding to “grievances of the kind alleged” in the case. Williams v. Pacific Maritime Assn., 421 F. 2d 1287, 1289 (1970). Even the Third Circuit, upon whose decision the Court relies to make out a Circuit conflict here, ante, at 45-46, declined to embrace the Court’s per se approach, refusing to “decide whether any circumstances exist in which a punitive-type remedy ... for union misconduct might be implied under the Railway Labor Act,” and holding only that punitive damages were unavailable where (as in that case) no actual damages had been shown. Deboles v. Trans World Airlines, Inc., 552 F. 2d 1005, 1019, cert, denied, 434 U. S. 837 (1977). ELECTRICAL WORKERS v. FOUST 59 42 Blackmun, J., concurring in result Equally instructive, in my view, are Court of Appeals cases upholding punitive damages awards in suits brought by workers against unions under the Landrum-Griffin Act. That Act outlines a “bill of rights” for union members, 29 U. S. C. §411 (a), and provides that actions for violation of those rights may be had to recover “such relief (including injunctions) as may be appropriate.” § 412. Every Circuit to consider the question has held that punitive damages are “appropriate relief” when a union’s conduct manifests “actual malice or reckless or wanton indifference” to members’ speech and associational rights. Boilermakers v. Braswell, 388 F. 2d 193, 199-201 (CA5), cert, denied, 391 U. S. 935 (1968); Cooke v. Orange Belt Dist. Council, 529 F. 2d 815, 820 (CA9 1976); Morrissey v. National Maritime Union, 544 F. 2d 19, 24—25 (CA2 1976); Keene v. IUOE Local 62^, 569 F. 2d 1375, 1381-1382, and n. 8 (CA5 1978). These courts noted that punitive damages would serve a legitimate deterrent purpose in appropriate cases, Braswell, 388 F. 2d, at 200; Cooke, 529 F. 2d, at 820/ and held that “ [i] f punitive damages can be awarded against other defendants, they can be awarded against unions as well.” Morrissey, 544 F. 2d, at 25. This reasoning, I think, is equally in point here. The Court properly reserves decision on Landrum-Griffin cases, ante, at 47 n. 9, but its pronouncements about “[t]he compensation principle,” about the “windfall” nature of punitive damages, about the need to safeguard union treasuries, and about the “essentially remedial” quality of federal labor policy, all would seem to apply with equal force to § 412 suits, and they leave me uneasy. Although the Court professes willingness to draw hairline distinctions between different types of tort suits brought by workers against unions under federal labor laws, this willingness, in my view, only suggests how tenuous is the evidence of “congressional intent” on which the Court relies to back up its per se rule here. 60 OCTOBER TERM, 1978 Blackmun, J., concurring in result 442 U. S. c The Court of Appeals’ unanimous refusal to erect a per se bar to punitive damages against unions, both in unfair representation cases and in Landrum-Griffin cases, seems judicious to me. If a union’s conduct should reveal intentional racial discrimination, deliberate personal animus, or conscious infringement of speech and associational freedoms, I can discern no principle of federal labor policy that stands in the way of a punitive award. Punitive damages in such an exceptional case will serve at least to deter egregious union conduct, and Vaca makes clear that deterrence is a proper objective in unfair representation actions. See 386 U. S., at 187. If the Court feels obliged to devise some “careful balance of individual and collective interests” here, ante, at 48, the solution, in my view, is not to ban punitive damages across the board, but to restrict them to their proper sphere, namely, to those rare cases where the union’s conduct can truly be described as outrageous. For these reasons, I would hesitate to embrace the Court’s per se rule even in a case that squarely presented that question for decision. What I find particularly hard to fathom is the Court’s willingness to promulgate a per se rule here, where the pronouncement is manifestly unnecessary to decision. This case involves no racial discrimination, no trampling on workers’ “bill of rights”; the record does not suggest—indeed, respondent does not even contend—that the union’s conduct was motivated by personal hostility. For all this record shows, the union, in neglecting to act promptly on respondent’s grievance, was simply following its standard operating procedure, a procedure admittedly inappropriate here, given the time constraints under which the union was operating, but a procedure for whose inappropriateness in this case respondent himself was at least partly responsible, since it was he who failed to notify the union until 52 days of the contract’s 60-day limit had expired. The union’s conduct, in ELECTRICAL WORKERS v. FOUST 61 42 Blackmun, J., concurring in result other words, was negligent or, at worst, grossly negligent. No court, to my knowledge, has ever held that negligence can form the basis for a proper punitive damages award. Especially should this be so in cases arising under the federal labor statutes. To decide this case, in sum, the Court need hold only that the trial judge erred as a matter of law in submitting the punitive damages issue to the jury. Because the Court goes further and proscribes punitive awards in much more difficult and questionable situations, not presented here, I cannot join the opinion and I concur in the result only. 62 OCTOBER TERM, 1978 Syllabus 442 U. S. PARKER v. RANDOLPH et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 78-99. Argued March 20, 1979—Decided May 29, 1979 Respondents were convicted, after a joint trial in a Tennessee court, of murder committed during the commission of a robbery. None of the respondents took the witness stand, and their oral confessions, found by the trial court to have been freely and voluntarily given, were admitted into evidence through police officers’ testimony. Respondent Pickens’ written confession was also admitted into evidence over his objection that it had been obtained in violation of his rights under Miranda v. Arizona, 384 U. S. 436. The trial court instructed the jury that each confession could be used only against the defendant who gave it and could not be considered as evidence of a codefendant’s guilt. Ultimately, the Tennessee Supreme Court upheld the convictions, holding that admission of repondents’ confessions did not violate the rule of Bruton n. United States, 391 U. S. 123, which held that a defendant’s rights under the Confrontation Clause of the Sixth Amendment were violated by the admission, at a joint trial, of the confession of a codefendant who did not take the stand. Respondents subsequently obtained writs of habeas corpus in a Federal District Court, which held that respondents’ rights under Bruton had been violated and that introduction of respondent Pickens’ written confession had violated his rights under Miranda. The Court of Appeals affirmed. Held: The judgment is affirmed as to respondent Pickens and reversed as to the other respondents. Pp. 69-77; 77-81. 575 F. 2d 1178, affirmed in part and reversed in part. Mr. Justice Rehnquist delivered the opinion of the Court with respect to Parts I and III, concluding that since the grant of certiorari was limited to the Bruton issue, the Court had no occasion to pass on the merits of the ruling that respondent Pickens’ rights under Miranda had been violated. Pp. 76-77. Mr. Justice Rehnquist, joined by The Chief Justice, Mr. Justice Stewart, and Mr. Justice White, concluded, in Part II, that admission of respondents’ confessions with proper limiting jury instructions did PARKER v. RANDOLPH 63 62 Syllabus not infringe respondents’ right of confrontation secured by the Sixth and Fourteenth Amendments. Pp. 69-76. (a) In Bruton, introduction at a joint trial of a nontestifying codefendent’s confession had a “devastating” effect on the nonconfessing defendant’s case. Introduction of such incriminating extrajudicial statements of a codefendant will seldom, if ever, have the same “devastating” consequences to a defendant who has himself confessed. The constitutional right of cross-examination protected by Bruton has far less practical value to a defendant who has confessed to the crime than to one who has consistently maintained his innocence. Pp. 72-73. (b) Nor does the natural “motivation to shift blame onto others,” recognized in Bruton to render the incriminating statements of codefendants “inevitably suspect,” require application of the Bruton rule when the incriminated defendant has corroborated his codefendant’s statements by heaping blame onto himself. P. 73. (c) The Confrontation Clause does not bar admission into evidence of every relevant extrajudicial statement by a nontestifying declarant simply because it in some way incriminates the defendant. And an instruction directing the jury to consider a codefendant’s extrajudicial statement only against its source is generally sufficient to avoid offending the implicated defendant’s confrontation right. Pp. 73-74. (d) When the defendant’s own confession is properly before the jury, as here, the possible prejudice resulting from the jury’s failure to follow the trial court’s instructions is not so “devastating” or “vital” to the confessing defendant as to require departure from the general rule allowing admission of evidence with limiting instructions. Pp. 74-75. Mr. Justice Blackmun would not find the rule of Bruton to be inapplicable simply because interlocking confessions are involved. Rather, even where the confessions of nontestifying codefendants overlap to some degree, he would follow the analysis indicated by Bruton and then determine whether the error was harmless beyond a reasonable doubt. On the facts of this case, he concludes that any error was clearly harmless beyond a reasonable doubt. Pp. 77-81. Rehnquist, J., announced the Court’s judgment and delivered an opinion of the Court with respect to Parts I and III, in which Burger, C. J., and Stewart, White, and Blackmun, J J., joined, and an opinion with respect to Part II, in which Burger, C. J., and Stewart and White, JJ., joined. Blackmun, J., filed an opinion concurring in part and concurring in the judgment, post, p. 77. Stevens, J., filed a dissenting opin 64 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. ion, in which Brennan and Marshall, JJ., joined, post, p. 81. Powell, J., took no part in the consideration or decision of the case. Michael E. Terry, Assistant Attorney General of Tennessee, argued the cause for petitioner. With him on the brief were William M. Leech, Jr., Attorney General, and Robert E. Kendrick, Deputy Attorney General. Walter L. Evans, by appointment of the Court, 439 U. S. 1064, argued the cause and filed a brief for respondents. Mr. Justice Rehnquist delivered the opinion of the Court (Parts I and III) together with an opinion (Part II), in which The Chief Justice, Mr. Justice Stewart, and Mr. Justice White joined, and announced the judgment of the Court. In Bruton v. United States, 391 U. S. 123 (1968), this Court reversed the robbery conviction of a defendant who had been implicated in the crime by his codefendant’s extrajudicial confession. Because the codefendant had not taken the stand at the joint trial and thus could not be cross-examined, the Court held that admission of the codefendant’s confession had deprived the defendant of his rights under the Confrontation Clause of the Sixth Amendment. The issue before us in this case is whether Bruton requires reversal of a defendant’s conviction when the defendant himself has confessed and his confession “interlocks” with and supports the confession of his codefendant. We hold that it does not. I Respondents were convicted of murder committed during the commission of a robbery and were sentenced to life imprisonment. The cast of characters playing out the scenes that led up to the fatal shooting could have come from the pen of Bret Harte.1 The story began in June 1970, when xAs the Court of Appeals aptly commented: “This appeal involves a sequence of events which have the flavor of the old West before the law PARKER v. RANDOLPH 65 62 Opinion of the Court one William Douglas, a professional gambler from Las Vegas, Nev., arrived in Memphis, Tenn., calling himself Ray Blaylock and carrying a gun and a deck of cards. It ended on the evening of July 6, 1970, when Douglas was shot and killed in a Memphis apartment. Testimony at the trial in the Tennessee state court showed that one Woppy Gaddy, who was promised a cut of Douglas’ take, arranged a game of chance between Douglas and Robert Wood, a sometime Memphis gambler. Unwilling to trust the outcome of the contest entirely to luck or skill, Douglas marked the cards, and by game’s end Robert Wood and his money had been separated. A second encounter between the two men yielded similar results, and Wood grew suspicious of Douglas’ good fortune. In order to determine whether and how Douglas was cheating, Wood brought to the third game an acquaintance named Tommy Thomas, who had a reputation of being a “pretty good poker player.” Unknown to Wood, however, Thomas’ father and Douglas had been close friends; Thomas, predictably, threw in his lot with Douglas, purposefully lost some $1,000, and reported to Wood that the game was clean. Wood nonetheless left the third game convinced that he was being cheated and intent on recouping his now considerable losses. He explained the situation to his brother, Joe E. Wood, and the two men decided to relieve Douglas of his ill-gotten gains by staging a robbery of the upcoming fourth game. At this juncture respondents Randolph, Pickens, and Hamilton entered the picture. To carry out the staged robbery, Joe Wood enlisted respondent Hamilton, who was one of his employees, and the latter in turn associated respondents Randolph and Pickens. Douglas and Robert Wood sat down to the fourth and final contest on the evening of July 6, 1970. Joe Wood and Thomas were present in the room as spectators. ever crossed the Pecos. The difference is that here there are no heroes and here there was a trial.” 575 F. 2d 1178, 1179 (CA6 1978). 66 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. During the course of the game, Douglas armed himself with a .38-caliber pistol and an automatic shotgun; in response to this unexpected development Joe Wood pulled a derringer pistol on Douglas and Thomas, gave the gun to Robert Wood, and left to tell respondents to move in on the game. Before respondents arrived, however, Douglas reached for his pistol and was shot and killed by Robert Wood. Moments later, respondents and Joe Wood broke down the apartment door, Robert Wood gathered up the cash left on the table, and the gang of five fled into the night. Respondents were subsequently apprehended by the police and confessed to their involvement in the crime. Respondents and the Wood brothers were jointly tried and convicted of murder during the commission of a robbery. Tenn. Code Ann. § 39-2402 (1975) .2 Each defendant was sentenced to life imprisonment. Robert Wood took the stand at trial, admitting that he had killed Douglas, but claiming that the shooting was in self-defense. Thomas described Douglas’ method of cheating at cards and admitted his complicity in the fraud on Robert Wood. He also testified in substance that he was present in the room when Joe Wood produced the derringer and when Robert Wood shot and killed Douglas. None of the respondents took the stand. Thomas could not positively identify any of them, and although Robert Wood named Hamilton as one of the three men involved in the staged robbery, he did not clearly identify Randolph and Pickens as the other two. The State’s case against respondents thus rested primarily on their oral confessions, found by 2 Tennessee Code Ann. §39-2402 (1975) provides in pertinent part as follows: “An individual commits murder in the first degree if . . . (4) he commits a willful, deliberate and malicious killing or murder during the perpetration of any arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb.” PARKER v. RANDOLPH 67 62 Opinion of the Court the trial court to have been freely and voluntarily given, which were admitted into evidence through the testimony of several officers of the Memphis Police Department.3 A written confession signed by Pickens was also admitted into evidence over his objection that it had been obtained in violation of his rights under Miranda v. Arizona, 384 U. S. 436 (1966). The trial court instructed the jury that each confession could be used only against the defendant who gave it and could not be considered as evidence of a codefendant’s guilt. The Tennessee Court of Criminal Appeals reversed respondents’ convictions, holding that they could not be guilty of felony murder since Douglas had been shot before they arrived on the scene and, alternatively, that admission of their confessions at the joint trial violated this Court’s decision in Bruton. The Tennessee Supreme Court in turn reversed the Court of Criminal Appeals and reinstated the convictions. Because “each and every defendant either through words or actions demonstrated his knowledge that ‘killing may be necessary,’ ” App. 237, the court held that respondents’ agreement to participate in the robbery rendered them liable under the Tennessee felony-murder statute for Douglas’ death. The Tennessee Supreme Court also disagreed with the Court of Criminal Appeals that Bruton had been violated, emphasizing that the confession at issue in Bruton had inculpated a nonconfessing defendant in a joint trial at which neither defendant took the stand. Here, in contrast, the “interlocking inculpatory confessions” of respondents Randolph, Pickens, and Hamilton, “clearly demonstrated the involvement of each, as to crucial facts such as time, location, felonious activity, and 3 Each of the confessions was subjected to a process of redaction in which references by the confessing defendant to other defendants were replaced with the words “blank” or “another person.” As the Court of Appeals for the Sixth Circuit observed below, the confessions were nevertheless “such as to leave no possible doubt in the jurors’ minds concerning the ‘person [s]’ referred to.” 575 F. 2d, at 1180. 68 OCTOBER TERM, 1978 Opinion of the Court 442U.S. awareness of the overall plan or scheme.” App. 245. Accordingly, the Tennessee Supreme Court concluded: “The fact that jointly tried codefendants have confessed precludes a violation of the Bruton rule where the confessions are similar in material aspects.” Ibid., quoting State n. Elliott, 524 S. W. 2d 473, 477-478 (Tenn. 1975). The United States District Court for the Western District of Tennessee thereafter granted respondents’ applications for writs of habeas corpus, ruling that their rights under Bruton had been violated and that introduction of respondent Pickens’ uncounseled written confession had violated his rights under Miranda N. Arizona, supra. The Court of Appeals for the Sixth Circuit affirmed, holding that admission of the confessions violated the rule announced in Bruton and that the error was not harmless since the evidence against each respondent, even considering his confession, was “not so overwhelming as to compel the jury verdict of guilty . . . .” 575 F. 2d 1178, 1182 (1978). The Court of Appeals frankly acknowledged that its decision conflicts with decisions of the Court of Appeals for the Second Circuit holding the Bruton rule inapplicable “[w]here the jury has heard not only a codefendant’s confession but the defendant’s own [interlocking] confession . . . United States ex rel. Catanzaro v. Mancusi, 404 F. 2d 296, 300 (1968), cert, denied, 397 U. S. 942 (1970). Accord, United States ex rel. Stanbridge v. Zelker, 514 F. 2d 45, 48—50, cert, denied, 423 U. S. 872 (1975); United States ex rel. Duff v. Zelker, 452 F. 2d 1009, 1010 (1971), cert, denied, 406 U. S. 932 (1972). We granted certiorari in this case to resolve that conflict.4 439 U. S. 978 (1978). 4 The conflict extends throughout the Courts of Appeals. The Courts of Appeals for the Third and Sixth Circuits have expressly ruled that the Bruton rule applies in the context of interlocking confessions, see Hodges v. Rose, 570 F. 2d 643 (CA6 1978); United States v. DiGilio, 538 F. 2d 972, 981-983 (CA3 1976), cert, denied sub nom. Lupo v. United States, 429 U. S. 1038 (1977), and the Court of Appeals for the Ninth Circuit has PARKER v. RANDOLPH 69 62 Opinion of Rehnquist, J. II In DeUi Paoli v. United States, 352 U. S. 232 (1957), a nontestifying codefendant’s confession, which incriminated a defendant who had not confessed, was admitted at a joint trial over defendant’s hearsay objection. Concluding that “it was reasonably possible for the jury to follow” the trial court’s instruction to consider the confession only against the declarant, this Court held that admission of the confession did not constitute reversible error. Little more than a decade later, however, Delli Paoli was expressly overruled in Bruton v. United States. In that case, defendants Bruton and Evans were convicted of armed postal robbery after a joint trial. Although Evans did not take the stand, a postal inspector was allowed to testify that Evans had orally confessed to having committed the robbery with Bruton. The trial judge instructed the jury that Evans’ confession was competent evidence against Evans, but was inadmissible hearsay against done so impliedly, see Ignacio n. Guam, 413 F. 2d 513, 515-516 (1969), cert, denied, 397 U. S. 943 (1970). In addition to the Court of Appeals for the Second Circuit, at least four other Courts of Appeals have rejected the Bruton claims of confessing defendants. Cases from the Fifth and Seventh Circuits have reasoned that the Bruton rule does not apply in the context of interlocking confessions and that, even if it does, the error was harmless beyond a reasonable doubt. See Mack v. Maggio, 538 F. 2d 1129, 1130 (CA5 1976); United States v. Spinks, 470 F. 2d 64, 65-66 (CA7), cert, denied, 409 U. S. 1011 (1972). Two other Courts of Appeals have rejected the Bruton claims of confessing defendants, refusing to concern themselves “with the legal nicety as to whether the . . . case is ‘without’ the Bruton rule, or is ‘within’ Bruton [and] the violation thereof consti-tut[es] only harmless error.” Metropolis n. Turner, 437 F. 2d 207, 208-209 (CAIO 1971); accord, United States v. Walton, 538 F. 2d 1348, 1353-1354 (CA8), cert, denied, 429 U. S. 1025 (1976). State-court decisions in this area are in similar disarray. Compare, e. g., Stewart v. State, 257 Ark. 753, 519 S. W. 2d 733 (1975), and People v. Moll, 26 N. Y. 2d 1, 256 N. E. 2d 185, cert, denied sub nom. Stanbridge v. New York, 398 U. S. 911 (1970), with People v Rosochacki, 41 Ill. 2d 483, 244 N. E. 2d 136 (1969), and State v. Oliver, 160 Conn. 85, 273 A. 2d 867 (1970). 70 OCTOBER TERM, 1978 Opinion of Rehnquist, J. 442U.S. Bruton and therefore could not be considered in determining Bruton’s guilt. This Court reversed Bruton’s conviction, noting that despite the trial court’s admittedly clear limiting instruction, “the introduction of Evans’ confession added substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination.” 391 U. S., at 127-128. Bruton was therefore held to have been denied his Sixth Amendment right of confrontation. The Bruton court reasoned that although in many cases the jury can and will follow the trial judge’s instruction to disregard inadmissible evidence, “there are some contexts in which the risk that the jury will not, or cannot, 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. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.” Id., at 135-136 (citations and footnotes omitted). One year after Bruton was decided, this Court rejected the notion that erroneous admission at a joint trial of evidence such as that introduced in Bruton automatically requires reversal of an otherwise valid conviction. See Harrington v. California, 395 U. S. 250 (1969). In some cases, the properly PARKER v. RANDOLPH 71 62 Opinion of Rehnquist, J. admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission so insignificant by comparison, that it is clear beyond a reasonable doubt that introduction of the admission at trial was harmless error.5 5 In Harrington v. California, 395 U. S. 250 (1969), four defendants were found guilty of murder after a joint trial. Defendant Harrington’s extrajudicial statements placed him at the scene of the crime, but ‘'fell short of a confession.” Id., at 252. His three codefendants, however, confessed, and their confessions were introduced at trial with the instruction that the jury was to consider each confession only against its source. One of Harrington’s codefendants, whose confession implicated Harrington, took the stand and was subject to cross-examination. The other two codefendants, whose statements corroborated Harrington’s admitted presence at the scene of the crime, did not take the stand. Noting the overwhelming evidence of Harrington’s guilt, and the relatively insignificant prejudicial impact of his codefendants’ statements, the Court held that "the lack of opportunity to cross-examine [the non-testifying co-defendants] constituted harmless error under the rule of Chapman [v. California, 386 U. S. 18 (1967)].” Id., at 253. On two subsequent occasions, this Court has applied the harmless-error doctrine to claimed violations of Bruton. In Schneble v. Florida, 405 U. S. 427 (1972), Schneble and a codefendant were found guilty of murder following a joint trial. Although neither defendant took the stand, police officers were allowed to testify as to a detailed confession given by Schneble and a statement given by his codefendant which tended to corroborate certain portions of Schneble’s confession. We assumed, without deciding, that admission of the codefendant’s statement had violated Bruton, but held that in view of the overwhelming evidence of Schneble’s guilt and the comparatively insignificant impact of the codefendant’s statement, "any violation of Bruton that may have occurred at petitioner’s trial was harmless [error] beyond a reasonable doubt.” 405 U. S., at 428 (emphasis added). In Brown n. United States, 411 U. S. 223 (1973), the prosecution introduced police testimony regarding extrajudicial statements made by two nontestifying codefendants. Each statement implicated both of the codefendants in the crimes charged. Neither codefendant took the stand, and the police testimony was admitted into evidence at their joint trial. Because the Solicitor General conceded that the statements were admitted into evidence in violation of Bruton, we had no occasion to consider the question whether introduction of the interlocking confessions violated 72 OCTOBER TERM, 1978 Opinion of Rehnquist, J. 442U.S. Petitioner urges us to follow the reasoning of the Court of Appeals for the Second Circuit and to hold that the Bruton rule does not apply in the context of interlocking confessions. Alternatively, he contends that if introduction of interlocking confessions at a joint trial does violate Bruton, the error is all but automatically to be deemed harmless beyond a reasonable doubt. We agree with petitioner that admission at the joint trial of respondents’ interlocking confessions did not infringe respondents’ right of confrontation secured by the Sixth and Fourteenth Amendments to the United States Constitution, but prefer to cast the issue in a slightly broader form than that posed by petitioner. Bruton recognized that admission at a joint trial of the incriminating extrajudicial statements of a nontestifying codefendant can have “devastating” consequences to a nonconfessing defendant, adding “substantial, perhaps even critical, weight to the Government’s case.” 391 U. S., at 128. Such statements go to the jury untested by cross-examination and, indeed, perhaps unanswered altogether unless the defendant waives his Fifth Amendment privilege and takes the stand. The 'prejudicial impact of a codefendant’s confession upon an incriminated defendant who has, insofar as the jury is concerned, maintained his innocence from the beginning is simply too great in such cases to be cured by a limiting instruction. The same cannot be said, however, when the defendant’s own confession—“probably the most probative and damaging evidence that can be admitted against him,” id., at 139 (White, J., dissenting)—is properly introduced at trial. The defendant is “the most knowledgeable and unimpeachable source of information about his past conduct,” id., at 140 Bruton. Proceeding from the Solicitor General’s concession, we held that the police testimony “was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury.” 411 U. S., at 231. Thus, any Bruton error was harmless beyond a reasonable doubt. PARKER v. RANDOLPH 73 62 Opinion of Rehnquist, J. (White, J., dissenting), and one can scarcely imagine evidence more damaging to his defense than his own admission of guilt. Thus, the incriminating statements of a codefendant will seldom, if ever, be of the “devastating” character referred to in Bruton when the incriminated defendant has admitted his own guilt. The right protected by Bruton—the “constitutional right of cross-examination,” id., at 137—has far less practical value to a defendant who has confessed to the crime than to one who has consistently maintained his innocence. Successfully impeaching a codefendant’s confession on cross-examination would likely yield small advantage to the defendant whose own admission of guilt stands before the jury unchallenged. Nor does the natural “motivation to shift blame onto others,” recognized by the Bruton Court to render the incriminating statements of codefendants “inevitably suspect,” id., at 136, require application of the Bruton rule when the incriminated defendant has corroborated his codefendant’s statements by heaping blame onto himself. The right of confrontation conferred by the Sixth Amendment is a safeguard to ensure the fairness and accuracy of criminal trials, see Dutton v. Evans, 400 U. S. 74, 89 (1970), and its reach cannot be divorced from the system of trial by jury contemplated by the Constitution. A crucial assumption underlying that system is that juries will follow the instructions given them by the trial judge. Were this not so, it would be pointless for a trial court to instruct a jury, and even more pointless for an appellate court to reverse a criminal conviction because the jury was improperly instructed. The Confrontation Clause has never been held to bar the admission into evidence of every relevant extrajudicial statement made by a nontestifying declarant simply because it in some way incriminates the defendant. See, e. g., id., at 80; Mattox v. United States, 156 U. S. 237, 240-244 (1895). And an instruction directing the jury to consider a codefendant’s extrajudicial statement only against its source has been found sufficient to 74 OCTOBER TERM, 1978 Opinion of Rehnquist, J. 442U.S. avoid offending the confrontation right of the implicated defendant in numerous decisions of this Court.6 When, as in Bruton, the confessing codefendant has chosen not to take the stand and the implicated defendant has made no extrajudicial admission of guilt, limiting instructions cannot be accepted as adequate to safeguard the defendant’s rights under the Confrontation Clause. Under such circumstances, the “practical and human limitations of the jury system,” Bruton v. United States, supra, at 135, override the theoretically sound premise that a jury will follow the trial court’s instructions. But when the defendant’s own confession is properly before the jury, we believe that the constitutional scales tip the other way. The possible prejudice resulting from the failure of the jury to follow the trial court’s instructions is not so “devastating” or “vital” to the confessing defendant to require departure from the general rule allowing admission of evidence with limiting 6 In Opper n. United States, 348 U. S. 84 (1954), petitioner contended that the trial court had erred in overruling his motion for severance, arguing that the jury may have improperly considered statements of his codefendant, which were inadmissible as to petitioner, in finding petitioner guilty. This Court rejected the contention: “It was within the sound discretion of the trial judge as to whether the defendants should be tried together or severally and there is nothing in the record to indicate an abuse of such discretion when petitioner’s motion for severance was overruled. The trial judge here made clear and repeated admonitions to the jury at appropriate times that Hollifield’s incriminatory statements were not to be considered in establishing the guilt of the petitioner. To say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the court in arriving at their verdict. Our theory of trial relies upon the ability of a jury to follow instructions. There is nothing in this record to call for reversal because of any confusion or injustice arising from the joint trial. The record contains substantial competent evidence upon which the jury could find petitioner guilty.” Id., at 95 (footnote omitted). See, e. g., Blumenthal v. United States, 332 U. S. 539, 552-553 (1947). PARKER v. RANDOLPH 75 62 Opinion of Rehnquist, J. instructions.7 We therefore hold that admission of interlocking confessions with proper limiting instructions conforms to the requirements of the Sixth and Fourteenth Amendments to the United States Constitution.8 Accordingly, the judg 7 Mr. Justice Stevens characterizes our decision as an attempt “to create a vaguely defined exception” to the Bruton rule for cases involving interlocking confessions, post, at 82, and suggests that the “proposed exception” is designed “to limit the effect of [the Bruton] rule to the largely irrelevant set of facts in the case that announced it.” Post, at 87. First, the dissent describes what we believe to be the “rule” as the “exception.” The “rule”—indeed, the premise upon which the system of jury trials functions under the American judicial system—is that juries can be trusted to follow the trial court’s instructions. Bruton was an exception to this rule, created because of the “devastating” consequences that failure of the jury to disregard a codefendant’s inculpatory confession could have to a nonconfessing defendant’s case. We think it entirely reasonable to apply the general rule, and not the Bruton exception, when the defendant’s case has already been devastated by his own extrajudicial confession of guilt. Second, under the reasoning of Bruton, its facts were anything but “irrelevant” to its holding. The Bruton Court recognized: “[T]here are some contexts in which the risk that the jury will not, or cannot, 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. . . . Such a context is presented here . . . .” 391 U. S., at 135. Clearly, Bruton was tied to the situation in which it arose: “where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” Id., at 135-136. 8 Mr. Justice Stevens, in dissent, states that our holding “squarely overrule[s]” this Court’s decisions in Roberts n. Russell, 392 U. S. 293 (1968); Hopper v. Louisiana, 392 U. S. 658 (1968); Brown v. United States, 411 U. S. 223 (1973); and Harrington v. California, 395 U. S. 250 (1969). “In all four of these cases,” according to the dissent, “the Court found a Bruton error even though the defendants’ confessions interlocked.” Post, at 83 n. 3. We disagree. We think that the dissent fails both to note significant factual distinctions between the present case and Roberts n. Russell, supra, and to recognize the difference in precedential value between decisions of this 76 OCTOBER TERM, 1978 Opinion of the Court 442U.S. ment of the Court of Appeals as to respondents Hamilton and Randolph is reversed. The Court of Appeals affirmed the District Court’s granting of habeas corpus relief to respondent Pickens on the additional Court which have been fully argued and disposed of on their merits and unargued summary dispositions, a difference which we noted in Edelman n. Jordan, 415 U. S. 651,670-671 (1974). In Roberts “[t]he facts paralleled] the facts in Bruton.” 392 U. S., at 293. Petitioner was convicted of armed robbery after a joint trial in which a codefendant’s confession inculpating petitioner was introduced through the testimony of a police officer. Petitioner’s cousin testified at trial that petitioner had “indicated that he thought . . . Tennessee was an easy place to commit a robbery.” App. to Brief in Opposition, 0. T. 1967, No. 920, Mise., p. 4. This extra-judicial statement, while inculpatory, was by no stretch of the imagination a “confession.” The District Court denied petitioner’s application for a writ of habeas corpus, expressly relying on the authority of Delli Paoli n. United States, 352 U. S. 232 (1957), and the Court of Appeals affirmed. This Court subsequently overruled Delli Paoli in Bruton, and granted the petition for certiorari in Roberts to consider “the question whether Bruton [was] to be applied retroactively.” Roberts n. Russell, supra, at 293. The Court decided the question affirmatively, vacated the judgment of the Court of Appeals, and remanded the case to the District Court for further consideration in light of Bruton, in no way passing on the merits of petitioner’s Bruton claim. Thus, Roberts, contrary to the dissent’s reading, neither involved interlocking confessions nor “found a Bruton error.” Hopper v. Louisiana, supra, came to this Court in much the posture as Roberts. Petitioners’ manslaughter convictions were affirmed by the Louisiana Supreme Court when Delli Paoli was still good law, but while their petition for certiorari was pending before this Court, Bruton was decided. In a two-sentence summary disposition, this Court granted petitioners’ petition for certorari, vacated the judgment of the Louisiana Supreme Court, and remanded the case “for further consideration in light of Bruton v. United States, 391 U. S. 123, and Roberts v. Russell, [392 U. S.] 293.” 392 U. 8., at 658. Not having passed on the merits of petitioners’ Bruton claim, this Court can hardly be said to have “found a Bruton error” in Hopper. The dissent, we believe, likewise misreads Harrington v. Calif onia, supra, and Brown v. United States, supra, as our discussion of those cases in n. 5, supra, reveals. PARKER v. RANDOLPH 77 62 Opinion of Blackmun, J. ground that his rights under Miranda v. Arizona, 384 U. S. 436 (1966), had been violated. Although petitioner sought review of this ruling, our grant of certiorari was limited to the Bruton issue. We thus have no occasion to pass on the merits of the Court of Appeals’ Miranda ruling. Accordingly, the judgment of the Court of Appeals as to respondent Pickens is affirmed. Affirmed in part and reversed in part. Mr. Justice Powell took no part in the consideration or decision of this case. Mr. Justice Blackmun, concurring in part and concurring in the judgment. I join Parts I and III of the principal opinion and concur in the Court’s judgment affirming in part and reversing in part the judgment of the Court of Appeals. For me, any error that existed in the admission of the confessions of the codefendants, in violation of Bruton v. United States, 391 U.S. 123 (1968), was, on the facts of this case, clearly harmless beyond a reasonable doubt. I refrain from joining Part II of the principal opinion because, as I read it, it abandons the harmless-error analysis the Court previously has applied in similar circumstances and now adopts a per se rule to the effect that Bruton is inapplicable in an interlocking confession situation. In Bruton, of course, the Court held that the admission in a joint trial of the confession of a codefendant who did not take the stand violated the Sixth Amendment confrontation right of the other defendant. Because in most cases the impact of admitting a codefendant’s confession is severe, and because the credibility of any such confession “is inevitably suspect,” id., at 136, the Court went on to hold that a limiting jury instruction could not alleviate the resultant substantial threat to a fair trial the Confrontation Clause was designed to protect. Id., at 136-137. 78 OCTOBER TERM, 1978 Opinion of Blackmun, J. 442U.S. In Harrington n. California, 395 U. S. 250 (1969), however, the Court recognized that evidence of guilt could be sufficiently overwhelming so as to render any Bruton error “harmless beyond a reasonable doubt,” under Chapman v. California, 386 U. S. 18 (1967). Reversal of a conviction, then, was not required merely because of the existence of a Bruton error. The Court applied a similar harmless-error analysis in Schneble v. Florida, 405 U. S. 427 (1972), a case concerning the defendant’s own confession and a partially corroborating statement given by a nontestifying codefendant. In the present case, the principal opinion appears to me to depart from this harmless-error approach and analysis to hold that Bruton simply does not apply in a case involving interlocking confessions. It concludes that in circumstances where one defendant has confessed, the interlocking confession of a codefendant “will seldom, if ever, be of the ‘devastating’ character referred to in Bruton.” Ante, at 73. Similarly, it finds that the fact that the confession of a codefendant is “inevitably suspect” is of little weight where interlocking confessions are in evidence. Ibid. Thus, it holds that the right protected by Bruton, i. e., the Confrontation Clause right of cross-examination, “has far less practical value to a defendant who has confessed to the crime than to one who has consistently maintained his innocence.” Ibid. Accordingly, it concludes “that admission of interlocking confessions with proper limiting instructions conforms to the requirements” of the Constitution. Ante, at 75. The Court has not departed heretofore from a harmless-error approach in Bruton cases. It is unclear where the present analysis will lead in cases where interlocking confessions are not in issue, but where any Bruton error appears harmless under Chapman; for where the Bruton error is harmless, the error in admitting the nontestifying codefendant’s confession will be far from devastating. I would be unwilling to depart from the traditional harmless-error anal PARKER v. RANDOLPH 79 62 Opinion of Blackmun, J. ysis in the straightforward Bru ton-error situation. Neither would I depart from the harmless-error approach in interlocking confession cases. The fact that confessions may interlock to some degree does not ensure, as a per se matter, that their admission will not prejudice a defendant so substantially that a limiting instruction will not be curative. The two confessions may interlock in part only. Or they may cover only a portion of the events in issue at the trial. Although two interlocking confessions may not be internally inconsistent, one may go far beyond the other in implicating the confessor’s codefendant. In such circumstances, the admission of the confession of the codefendant who does not take the stand could very well serve to prejudice the defendant who is incriminated by the confession, notwithstanding that the defendant’s own confession is, to an extent, interlocking. I fully recognize that in most interlocking-confession cases, any error in admitting the confession of a nontestifying codefendant will be harmless beyond a reasonable doubt. Even so, I would not adopt a rigid per se rule that forecloses a court from weighing all the circumstances in order to determine whether the defendant in fact was unfairly prejudiced by the admission of even an interlocking confession. Where he was unfairly prejudiced, the mere fact that prejudice was caused by an interlocking confession ought not to override the important interests that the Confrontation Clause protects. It is possible, of course, that the new approach will result in no more than a shift in analysis. Instead of focusing on whether the error was harmless, defendants and courts will be forced, instead, to inquire whether the confessions were sufficiently interlocking so as to permit a conclusion that Bruton does not apply. And I suppose that after making a determination that the confessions did not interlock to a sufficient degree, the court then would have to make a harmless- 80 OCTOBER TERM, 1978 Opinion of Blackmun, J. 442U.S. error determination anyway, thus adding another step to the process. Unfortunately, it is not clear that the new approach mandates even an inquiry whether the confessions interlock. Respondents have argued that the confessions in this case, in fact, did not interlock. Brief for Respondents 34-38. The principal opinion, however, simply assumes the interlock. It thus comes close to saying that so long as all the defendants have made some type of confession which is placed in evidence, Bruton is inapplicable without inquiry into whether the confessions actually interlock and the extent thereof. If it is willing to abandon the factual inquiry that accompanies a harmless-error determination, it should be ready, at least, to substitute an inquiry into whether there is genuine interlocking before it casts the application of Bruton, and the underlying Confrontation Clause right, completely aside. I merely add that in this case, any Bruton error, in my view, clearly was harmless. The principal issue concerning respondents at trial was whether three Negro males identified by a number of witnesses as having been at the murder scene were indeed the respondents. Each confession placed the confessing respondent at the scene of the killing. Each confession implicated the confessor in the Woods’ plan to rob the poker game. Each confession largely overlapped with and was cumulative to the others. Corroborative testimony from witnesses who were in the apartment placed respondent Hamilton at the scene of the murder and tentatively identified respondent Randolph as one of the Negroes who received a share of the proceeds in Hamilton’s apartment immediately after the killing. The testimony of five witnesses to the events outside the apartment strongly corroborated the confessions. In these circumstances, considering the confession of each respondent against him, I cannot believe that “there is a reasonable possibility that the improperly admitted evidence contributed to the conviction.” PARKER v. RANDOLPH 81 62 Stevens, J., dissenting Schneble v. Florida, 405 U. S., at 432. Reversal on the Bruton issue, therefore, is required. Mr. Justice Stevens, with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting. As Mr. Justice Blackmun makes clear, ante, at 77-78, proper analysis of this case requires that we differentiate between (1) a conclusion that there was no error under the rule of Bruton v. United States, 391 U. S. 123, and (2) a conclusion that even if constitutional error was committed, the possibility that inadmissible evidence contributed to the conviction is so remote that we may characterize the error as harmless. Because Mr. Justice Blackmun properly rejects the first conclusion, my area of disagreement with him is narrow. In my view, but not in his, the concurrent findings of the District Court and the Court of Appeals that the error here was not harmless1 preclude this Court from reaching a 1 As Judge Edwards noted, writing for the Court of Appeals: “In evaluating the question of harmless error in this case, it is important to point out the factors which might affect a jury’s verdict in relation to these three defendants in separate trials where the Bruton rule was observed: “1) Randolph, Pickens and Hamilton were not involved in the gambling game between Douglas, the Las Vegas gambler, and Robert Wood, the hometown gambler who got cheated. “2) They were not involved in originating the plan for recouping Robert Wood’s losses. “3) They were not in the room (and had not been) when Robert Wood killed Douglas. “4) Indeed, the jury could conclude from the admissible evidence in this case that when Joe Wood pulled out his pistol, the original plan for three ‘unknown’ blacks to rob the all-white poker game was aborted and that petitioners’ subsequent entry into the room did not involve them in the crime of murder. “Additionally, if we return to consideration of the joint trial, that jury as charged by the state court judge had the responsibility of determining whether or not any of the three confessions testified to by Memphis police was voluntarily given. Assuming that two of the three confessions had 82 OCTOBER TERM, 1978 Stevens, J., dissenting 442U.S. different result on this kind of issue. E. g., Berenyi v. Immigration Director, 385 U. S. 630, 635; Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U. S. 271, 275. But see opinion of Mr. Justice Blackmun, ante, at 80-81. My area of disagreement with the plurality opinion is far wider and prompts more extended remarks. The plurality adopts the first conclusion above—that no constitutional error was committed when the confessions of all three respondents were admitted into evidence at their joint trial. Without purporting to modify the Bruton rule precluding the use of a nontestifying codefendant’s extrajudicial admissions against a defendant in a joint trial, the plurality reaches this conclusion by attempting to create a vaguely defined exception for cases in which there is evidence that the defendant has also made inculpatory statements which he does not repudiate at trial.2 If ever adopted by the Court, such an exception would been removed from jury consciousness by adherence to Bruton, we find it impossible to conclude that the jury finding and ultimate verdict would, ‘beyond reasonable doubt/ have been the same. “These factors serve to distinguish this case from Harrington v. California, [395 U. S. 250,] and Schneble v. Florida, [405 U. S. 427,] and to convince us that the Bruton errors found by the District Judge cannot (as he also held) be determined to be harmless beyond reasonable doubt.” 575 F. 2d 1178, 1182-1183. 2 As Mr. Justice Blackmun points out, ante, at 78-79, it is unclear whether the plurality restricts its analysis to “interlocking” confessions, opinion of Mr. Justice Rehnquist, ante, at 75 (and, if so, what an “interlock” is), or whether a “broader” exception is established for all confessions. Ante, at 72. Indeed, its opinion does not explain how inculpatory a statement must be before it qualifies as a “confession,” an extrajudicial admission of guilt,” or a “statemen [t] . . . heaping blame onto [oneself].” Ante, at 73, 74. Moreover, the plurality variously states its test as applicable “when [ever] the incriminated defendant has [once] admitted his own guilt” {i. e-> whenever he has not “maintained his inno-cence from the beginning”), or only when he has once confessed and has left his “admission of guilt . . . before the jury unchallenged” by any evidence of its invalidity. Ante, at 72, 73. PARKER v. RANDOLPH 83 62 Stevens, J., dissenting seriously undercut the Court’s decision in Bruton by limiting its effect to a small and arbitrarily selected class of cases. Indeed, its adoption would squarely overrule holdings in four decisions of this Court that applied the rule of Bruton.3 3 In Roberts v. Russell, 392 U. S. 293, petitioner and a codefendant were jointly tried and convicted of armed robbery, to which the codefendant had confessed, implicating petitioner. In addition, petitioner’s cousin testified that petitioner made certain inculpatory statements to him concerning the robbery—statements that the State Supreme Court relied upon heavily in upholding the jury finding of petitioner’s guilt. App. to Brief in Opposition, 0. T. 1967, No. 920, Mise., pp. 4, 6. That court also held that the redaction of the codefendant’s confession to omit the references to petitioner as well as a cautionary instruction to the jury to consider the confession as evidence against the codefendant alone was sufficient to avoid any problem under the Confrontation Clause. On habeas corpus, the District Court and the Court of Appeals agreed. This Court granted the writ of certiorari and summarily vacated the conviction and remanded for reconsideration in light of Bruton. In so doing, it established both that the Bruton rule applied to the States and that it was retroactive. 392 U. S., at 294—295. Similarly, in Hopper v. Louisiana, 392 U. S. 658, the Court vacated the convictions of two defendants both of whom had made full confessions that were introduced at their joint trial with the usual cautionary instructions. See 251 La. 77, 104, 203 So. 2d 222, 232-233 (1967). On remand, the Louisiana Supreme Court held that the Bruton errors as to both defendants were harmless beyond a reasonable doubt in light of the overwhelming untainted evidence inculpating both, 253 La. 439, 218 So. 2d 551 (1969), and this Court denied certiorari. 396 U. S. 1012. In two subsequent decisions, the Court held that error had been committed under the rule of Bruton, although it found the error to be harmless. Brown v. United States, 411 U. S. 223, 230-231; Harrington n. California, 395 IT. S. 250, 254. In all four of these cases the Court found a Bruton error even though the defendants’ confessions interlocked. The plurality’s analysis is also inconsistent with almost half of the lower federal and state court opinions relied on in Bruton in support of its reasoning. 391 U. S., at 129, 135, and nn. 4, 8, 9. In 6 of the 14 cases cited there, the defendant as well as the codefendant had confessed. See United States ex rel. Floyd n. Wilkins, 367 F. 2d 990 (CA2 1966); Greenwell v. United States, 119 U. S. App. D. C. 43, 336 F. 2d 962 (1964); Barton v. United States, 263 F. 2d 894 (CA5 1959); United States ex rel. Hill 84 OCTOBER TERM, 1978 Stevens, J., dissenting 442U.S. Evidence that a defendant has made an “extrajudicial admission of guilt” which “stands before the jury unchallenged,” ante, at 74, 73, is not an acceptable reason for depriving him of his constitutional right to confront the witnesses against him.4 In arguing to the contrary, and in striving “to cast the issue” presented “in a ... broader form” than any of the parties felt necessary to dispose of the case, ante, at 72, the plurality necessarily relies on two assumptions. Both are erroneous. First, it assumes that the jury’s ability to disregard a codefendant’s inadmissible and highly prejudicial confession is invariably increased by the existence of a corroborating statement by the defendant. Second, it assumes that all unchallenged confessions by a defendant are equally reliable. Aside from two quotations from the dissent in Bruton, however, the plurality supports these assumptions with nothing more than the force of its own assertions. But the infinite variability of inculpatory statements (whether made by defendants or codefendants), and of their likely effect on juries, makes those assertions untenable. A hypothetical example is instructive. Suppose a prosecutor has 10 items of evidence tending to prove that defendant X and codefendant Y are guilty of assassinating a public figure. The first is the tape of a televised interview with Y describing in detail how he and X planned and executed the crime. Items 2 through 9 involve circumstantial evidence of a past association between X and Y, a shared hostility for the victim, and an expressed wish for his early demise—evidence that in itself might very well be insufficient to convict X. Item 10 is the testimony of a drinking partner, a former cellmate, or a divorced spouse of X who vaguely recalls X saying that he had been with Y v. Deegan, 268 F. Supp. 580 (SDNY 1967); People n. Barbaro, 395 Ill. 264, 69 N. E. 2d 692 (1946); People n. Fisher, 249 N. Y. 419, 432, 164 N. E. 336, 341 (1928) (Lehman, J., dissenting). 4 The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . .. PARKER v. RANDOLPH 85 62 Stevens, J., dissenting at the approximate time of the killing. Neither X nor Y takes the stand. If Y’s televised confession were placed before the jury while Y was immunized from cross-examination, it would undoubtedly have the “devastating” effect on X that the Bruton rule was designed to avoid. 391 U. S., at 128. As Mr. Justice Stewart’s characteristically concise explanation of the underlying rationale in that case demonstrates, it would also plainly violate X’s Sixth Amendment right to confront his accuser.5 Nevertheless, under the plurality’s first remarkable assumption, the prejudice to X—and the violation of his constitutional right—would be entirely cured by the subsequent use of evidence of his own ambiguous statement. In my judgment, such dubious corroboration would enhance, rather than reduce, the danger that the jury would rely on Y’s televised confession when evaluating X’s guilt. See United States v. Bozza, 365 F. 2d 206, 215 (CA2 1966) (Friendly, J.), quoted in n. 13, infra. Even if I am wrong, however, there is no reason to conclude that the prosecutor’s reliance on item 10 would obviate the harm flowing from the use of item 1. The dubiousness of X’s confession in this example—as in any case in which the defendant’s inculpatory statement is 5 “I think it clear that the underlying rationale of the Sixth Amondmont/s Confrontation Clause precludes reliance upon cautionary instructions when the highly damaging out-of-court statement of a codefendant, who is not subject to cross-examination, is deliberately placed before the jury at a joint trial. A basic premise of the Confrontation Clause, it seems to me, is that certain kinds of hearsay (see, e. g., Pointer n. Texas, 380 U. S. 400; Douglas v. Alabama, 380 U. S. 415) are at once so damaging, so suspect, and yet so difficult to discount, that jurors cannot be trusted to give such evidence the minimal weight it logically deserves, whatever instructions the trial judge might give. See the Court’s opinion, [391 U. S.,] at 136 n. 12. It is for this very reason that an out-of-court accusation is universally conceded to be constitutionally inadmissible against the accused, rather than admissible for the little it may be worth.” 391 U. S., at 137-138 (Stewart, J., concurring). 86 OCTOBER TERM, 1978 Stevens, J., dissenting 442U.S. ambiguous, incomplete, the result of coercive influences, or simply the product of the well-recognized and often untrustworthy “urge to confess” 6—illustrates the inaccuracy of the plurality’s second crucial .assumption. It is no doubt true that in some cases a defendant’s confession will constitute such convincing evidence of his guilt that the violation of his constitutional rights is harmless beyond a reasonable doubt. E. g., Brown v. United States, 411U. S. 223; Schneble n. Florida, 405 U. S. 427. But in many cases, it is not so convincing. Moreover, such evidence is not inherently more incriminating or more reliable than other kinds of evidence such as fingerprints, photographs, or eyewitness testimony. Yet, if these types of corroboration are given the same absolute effect that the plurality would accord confessions, the Bruton rule would almost never apply.7 I am also at a loss to understand the relevance of X’s failure to “challenge” his confession at trial. Ante, at 73. For there is nothing he could say or not say about his own alleged confession that would dispel the dramatically damning effect of Y’s. Furthermore, even apart from the general rule that a defendant should not be penalized for exercising one right (in this case the right not to take the stand or to introduce other evidence) by having another taken away (in this case the right to confront one’s accuser), e. g., United States v. Jackson, 390 U. S. 570, it is unclear why X’s failure to repudiate it necessarily enhances the reliability of a selfimpeaching “confession” such as the one hypothesized above. Cf. Lakeside v. Oregon, 435 U. S. 333, 343-344 (Stevens, J., dissenting). 6E. g., Foster, Confessions and the Station House Syndrome, 18 DePaul L. Rev. 683 (1969); Sterling, Police Interrogation and the Psychology of Confession, 14 J. Pub. L. 25 (1965). See generally T. Reik, The Compulsion to Confess 267 (1959). 7 Indeed, George Bruton was identified at trial as the perpetrator by an eyewitness to the robbery. App. in Bruton v. United States, 0. T 1967 No. 705. n. 70. PARKER v. RANDOLPH 87 62 Stevens, J., dissenting In short, I see no logic to commend the proposed exception to the rule of Bruton save, perhaps, a purpose to limit the effect of that rule to the largely irrelevant set of facts in the case that announced it. If relevant at all in the present context, the factors relied on by the plurality support a proposition no one has even remotely advocated in this case— that the corroborated evidence used in this case was so trustworthy that it should have been fully admissible against all of the defendants, and the jury instructed as much. Conceivably, corroborating or other circumstances surrounding otherwise inadmissible hearsay may so enhance its reliability that its admission in evidence is justified in some situations.8 But before allowing such a rule to defeat a defendant’s fundamental right to confront his accusers, this Court surely should insist upon a strong showing not only of the reliability of the hearsay in the particular case but also of the impossibility, or at least difficulty, of making the accusers available for cross-examination.9 And, in most cases the prosecution will be hard pressed to make the latter showing in light of its ability to try the defendant and codefendant separately and to afford each immunity from the use against him of his testimony at the other’s trial. See Kastigar v. United States, 406 U. S. 441. Absent admissibility of the codefendants’ confessions against respondents, therefore, the controlling question must be whether it is realistic to assume that the jury followed the judge’s instructions to disregard those confessions when it was 8 Cf. Fed. Rule Evid. 804 (b) (3) (“A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement”); Chambers v. Mississippi, 410 U. S. 284. 9 See Berger v. California, 393 U. S. 314; Barber v. Page, 390 U. S. 719; Pointer v. Texas, 380 U. S. 400; Motes v. United States, 178 U. S. 458; Rule 804 (b), supra n. 8. See generally Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 582-586, and n. 43 (1978). 88 OCTOBER TERM, 1978 Stevens, J., dissenting 442U.S. evaluating respondents’ guilt. The plurality would answer this question affirmatively. But in so doing, it would repudiate much that has been said by the Court and by an impressive array of judicial and scholarly authorities who have addressed the issue. As the plurality sees it, the answer to this question is supplied by the “crucial assumption underlying [the jury] system . . . that juries will follow the instructions given them by the trial judge.” Ante, at 73. This assumption, it is argued, has been applied in “numerous decisions of this Court” regarding codefendants’ confessions. Ante, at 74, and n. 6, citing Opper v. United States, 348 U. S. 84, and Blumenthal v. United States, 332 U. S. 539. But this reasoning was advanced just as forcefully in the case that Bruton overruled— a case, incidentally, that relied on the same “numerous” decisions that the plurality resurrects in favor of its analysis. See Delli Paoli v. United States, 352 U. S. 232, 242. What Bruton said in response to this reasoning—despite the plurality’s contrary assertions, see ante, at 70-73—is no less applicable in the present context: “[T]here are some contexts in which the risk that the jury will not, or cannot, 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. . . . Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged ac PARKER v. RANDOLPH 89 62 Stevens, J., dissenting complice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.” 391 IT. S., at 135-136 (citations and footnotes omitted). Rather than falling back on once numerous but now discredited decisions, I prefer to stand by the observations about this sort of question by jurists like Felix Frankfurter, Learned Hand,10 Wiley Rutledge,11 Robert Jackson,12 and Henry 10 In his dissenting opinion in Delli Paoli n. United States, 352 U. S. 232, Mr. Justice Frankfurter commented on the recurring difficulties arising in the trial of two or more persons accused of collaborating in a criminal enterprise when incriminating declarations by one or more of the defendants are not admissible against others. He observed: “The dilemma is usually resolved by admitting such evidence against the declarant but cautioning the jury against its use in determining the guilt of the others. The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell. While enforcing the rule of admitting the declaration solely against a declarant and admonishing the jury not to consider it against other defendants, Judge Learned Hand, in a series of cases, has recognized the psychological feat that this solution of the dilemma demands of juries. He thus stated the problem: “ Tn effect, however, the rule probably furthers, rather than impedes, the search for truth, and this perhaps excuses the device which satisfies form while it violates substance; that is, the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody else’s.’ Nash v. United States, 54 F. 2d 1006, 1007. “. . . The Government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.” Id., at 247-248. 11 Writing for the Court in Blumenthal v. United States, 332 U. S. 539, 559-560, Mr. Justice Rutledge said: “The grave danger in this case, if any, arose not from the trial court’s rulings upon admissibility or from its instructions to the jury. As we have said, these were as adequate as might reasonably be required in a [Footnote 12 is on p. 90] 90 OCTOBER TERM, 1978 Stevens, J., dissenting 442U.S. Friendly,13 and by scholars like Wigmore and Morgan.14 In my judgment, as I think in theirs, the odds that a jury will obey a command to ignore a codefendant’s confession15— joint trial. The danger rested rather in the risk that the jury, in disregard of the court’s direction, would transfer, consciously or unconsciously, the effect of the excluded admissions from the case as made against Goldsmith and Weiss across the barrier of the exclusion to the other three defendants. “That danger was real. It is one likely to arise in any conspiracy trial and more likely to occur as the number of persons charged together increases. Perhaps even at best the safeguards provided by clear rulings on admissibility, limitations of the bearing of evidence as against particular individuals, and adequate instructions, are insufficient to ward off the danger entirely. It is therefore extremely important that those safeguards be made as impregnable as possible.” 12 Referring to the passage quoted from Blumenthal in the preceding footnote, Mr. Justice Jackson made his frequently quoted observation: “The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal n. United States, 332 U. S. 539, 559, all practicing lawyers know to be unmitigated fiction.” Krulewitch v. United States, 336 U. S. 440, 453 (concurring opinion). 13 “Not even appellate judges can be expected to be so naive as really to believe that all twelve jurors succeeded in performing what Judge L. Hand aptly called ‘a mental gymnastic which is beyond, not only their powers, but anybody’s else.’ Nash v. United States, 54 F. 2d 1006, 1007 (2 Cir. 1932). It is impossible realistically to suppose that when the twelve good men and women had [the codefendant’s] confession in the privacy of the jury room, not one yielded to the nigh irresistible temptation to fill in the blanks [caused by the redaction of the defendants’ names] with the keys [the other evidence] provided and [to] ask himself the intelligent question to what extent Jones’ statement supported [that evidence], or that if anyone did yield, his colleagues effectively persuaded him to dismiss the answers from his mind.” United States v. Bozza 365 F. 2d 206, 215. 14 See 8 J. Wigmore, Evidence § 2272, p. 416 (3d ed. 1940); E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 105 (1956). 15 Indeed, the judge’s command to ignore the confession may well assure that any juror who happened to miss the connection to the defendant at first will nonetheless have made it by the time he enters the jury room. Lakeside v. Oregon, 435 U. S. 333, 345 (Stevens, J., dissenting). PARKER v. RANDOLPH 91 62 Stevens, J., dissenting whether or not the defendant has himself confessed—are no less stacked against the defendant than was the deck of cards that William Douglas used to Robert Wood’s, and ultimately to his own, downfall in the game of chance arranged by Woppy Gaddy. In contests like this, the risk that one player may be confused with another is not insubstantial. I respectfully dissent. 92 OCTOBER TERM, 1978 Per Curiam 442 U. S. GREAT WESTERN SUGAR CO. v. NELSON ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 78-1060. Decided May 29, 1979 Held: Upon dismissing as moot an appeal from the District Court’s order requiring arbitration of a dispute as to respondent’s discharge by petitioner—the arbitration proceedings having been completed before the appeal could be decided on the merits—the Court of Appeals erred in holding that the District Court’s judgment should remain in effect. Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and to remand the cause with directions to dismiss. Duke Power Co. v. Greenwood County, 299 U. S. 259; United States v. Munsingwear, Inc., 340 U. S. 36. Certiorari granted; vacated and remanded. Per Curiam. Respondent Nelson sued in the United States District Court for the District of Colorado to compel arbitration of his discharge by petitioner Great Western Sugar Co. The District Court held that the presumption of arbitrability consistently applied by the Court of Appeals for the Tenth Circuit required that the dispute be submitted to arbitration. Before petitioner’s appeal from the District Court’s order could be decided on the merits, the arbitration proceedings had been completed, and respondent filed a suggestion of mootness with the Court of Appeals. The Court of Appeals, in an order and opinion admirable for its conciseness, if not for its fidelity to our case law, said: “This matter comes on for consideration of the appellee’s suggestion of mootness and motion to vacate judgment of the District Court and to remand the captioned cause with instructions to dismiss. The appellant filed a brief in response arguing that the appeal be allowed to GREAT WESTERN SUGAR CO. v. NELSON 93 92 Per Curiam continue but if not the judgment of the trial court should be reversed and the cause be remanded with directions to dismiss. “Upon consideration whereof, the order of the Court is as follows: “1. The appeal is dismissed on the ground of mootness. “2. The judgment of the trial court is allowed to stand.” App. to Pet. for Cert. A5. In Duke Power Co. v. Greenwood County, 299 U. S. 259, 267 (1936), this Court said: “Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and to remand the cause with directions to dismiss.” (Emphasis supplied.) The course of action prescribed in Duke Power has been followed in countless cases in this Court. See, e. g., Preiser v. Newkirk, 422 U. S. 395 (1975); Parker v. EUis, 362 U. S. 574 (1960); United States v. Munsingwear, Inc., 340 U. S. 36 (1950).* Here neither the law nor the facts are in dispute. The Court of Appeals has proceeded on the assumption that the case is moot and has dismissed the appeal for that reason. It has nonetheless stated that the judgment of the District Court shall remain in effect, a statement totally at odds with the holding of Duke Power. The reasons for not allowing the District Court judgment to remain in effect when the fact of mootness had been properly called to the attention of the Court of Appeals were fully stated in United States n. *United States v. Munsingwear, Inc., is perhaps the leading case on the proper disposition of cases that become moot on appeal. There the Court reiterated that “[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” 340 U. S.» at 39. 94 OCTOBER TERM, 1978 Stevens, J., dissenting 442U.S. Munsingwear, Inc., supra, at 39-41, and need not be restated here. The Court of Appeals’ disposition of this case may have been the result of a desire to show approval of the reasoning of the District Court in directing arbitration, but that motive cannot be allowed to excuse its failure to follow the teaching of Duke Power Co., supra. Because the fact of mootness is clear, and indeed is relied upon by the Court of Appeals as its reason for dismissing petitioner’s appeal, and because the law as laid down by this Court in Duke Power Co., supra, and United States v. Munsingwear, Inc., supra, is equally clear, the petition for certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals with directions to vacate the District Court’s judgment and to remand the case for dismissal of respondent’s complaint. It is so ordered. Mr. Justice Stevens, dissenting. If we have time to grant certiorari for the sole purpose of correcting a highly technical and totally harmless error, one might reasonably (but incorrectly) infer that we have more than enough time to dispatch our more important business. I would deny the petition for a writ of certiorari. GREEN v. GEORGIA 95 Per Curiam GREEN v. GEORGIA ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA No. 78-5944. Decided May 29, 1979 Petitioner, who was indicted with one Moore for rape and murder, was tried separately in a Georgia state court. After the jury determined that petitioner was guilty of murder, a second proceeding was held to decide whether capital punishment would be imposed, and petitioner attempted to introduce the testimony of a third person, who had testified for the State at Moore’s earlier trial (wherein Moore was convicted of both crimes and sentenced to death), to the effect that Moore had confided to the witness that Moore had killed the victim, shooting her twice after ordering petitioner to run an errand. The trial court refused to admit the testimony, ruling that it constituted inadmissible hearsay under Georgia law. The petitioner was sentenced to death, and the Georgia Supreme Court upheld the conviction and sentence. Held: Regardless of whether the proffered testimony comes within Georgia’s hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amend-ment, denying petitioner a fair trial on the issue of punishment and thus requiring that the sentence be vacated. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, and substantial reasons existed to assume its reliability. Perhaps most important, the State considered the testimony sufficiently reliable to use it against Moore and to base a death sentence upon it. Certiorari granted; 242 Ga. 261, 249 S. E. 2d 1, reversed and remanded Per Curiam. Petitioner and Carzell Moore were indicted together for the rape and murder of Teresa Carol Allen. Moore was tried separately, was convicted of both crimes, and has been sentenced to death. See Moore v. State, 240 Ga. 807, 243 S. E. 2d 1, cert, denied, 439 U. S. 903 (1978). Petitioner subsequently was convicted of murder, and also received a capital sentence. The Supreme Court of Georgia upheld the conviction and sentence, 242 Ga. 261, 249 S. E. 2d 1 (1978), and 96 OCTOBER TERM, 1978 Per Curiam 442U.S. petitioner has sought review of so much of the judgment as affirmed the capital sentence. We grant the motion for leave to proceed in forma pauperis and the petition for certiorari and vacate the sentence. The evidence at trial tended to show that petitioner and Moore abducted Allen from the store where she was working alone and, acting either in concert or separately, raped and murdered her. After the jury determined that petitioner was guilty of murder, a second trial was held to decide whether capital punishment would be imposed. See Ga. Code § 27-2503 (1978). At this second proceeding, petitioner sought to prove he was not present when Allen was killed and had not participated in her death. He attempted to introduce the testimony of Thomas Pasby, who had testified for the State at Moore’s trial. According to Pasby, Moore had confided to him that he had killed Allen, shooting her twice after ordering petitioner to run an errand. The trial court refused to allow introduction of this evidence, ruling that Pasby’s testimony constituted hearsay that was inadmissible under Ga. Code § 38-301 (1978).1 The State then argued to the jury that in the absence of direct evidence as to the circumstances of the crime, it could infer that petitioner participated directly in Allen’s murder from the fact that more than one bullet was fired into her body.2 1 Georgia recognizes an exception to the hearsay rule for declarations against pecuniary interest, but not for declarations against penal interest. See 242 Ga. 261, 269-272, 249 S. E. 2d 1, 8-9 (1978), quoting Little v. Stynchcombe, 227 Ga. 311, 180 S. E. 2d 541 (1971). 2 The District Attorney stated to the jury: “We couldn’t possibly bring any evidence other than the circumstantial evidence and the direct evidence that we had pointing to who did it, and I think it’s especially significant for you to remember what Dr. Dawson said in this case. When the first shot, in his medical opinion, he stated that Miss Allen had positive blood pressure when both shots were fired but I don’t know whether Carzell Moore fired the first shot and handed the gun to Roosevelt Green and he fired the second shot or whether it was vice versa or whether Roosevelt Green had the gun and fired the shot or GREEN v. GEORGIA 97 95 Brennan and Marshall, JJ., dissenting Regardless of whether the proffered testimony comes within Georgia’s hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, see Lockett v. Ohio, 438 U. S. 586, 604^605 (1978) (plurality opinion); id., at 613-616 (opinion of Blackmun, J.), and substantial reasons existed to assume its reliability. Moore made his statement spontaneously to a close friend. The evidence corroborating the confession was ample, and indeed sufficient to procure a conviction of Moore and a capital sentence. The statement was against interest, and there was no reason to believe that Moore had any ulterior motive in making it. Perhaps most important, the State considered the testimony sufficiently reliable to use it against Moore, and to base a sentence of death upon it.3 In these unique circumstances, “the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers v. Mississippi, 410 U. S. 284, 302 (1973).4 Because the exclusion of Pasby’s testimony denied petitioner a fair trial on the issue of punishment, the sentence is vacated and the case is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. Mr. Justice Brennan and Mr. Justice Marshall, adhering to their view that the death penalty is in all circum Carzell Moore had the gun and fired the first shot or the second, but I think it can be reasonably stated that you Ladies and Gentlemen can believe that each one of them fired the shots so that they would be as equally involved and one did not exceed the other’s part in the commission of this crime.” Pet. for Cert.,10. 3 A confession to a crime is not considered hearsay under Georgia law when admitted against a declarant. Ga. Code §38-414 (1978); Green v. State, 115 Ga. App. 685,155 S. E. 2d 655 (1967). 4 See Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 592-593 (1978). 98 OCTOBER TERM, 1978 Rehnquist, J., dissenting 442U.S. stances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg n. Georgia, 428 U. S. 153, 227, 231 (1976), would vacate the death sentence without remanding for further proceedings. Mr. Justice Rehnquist, dissenting. The Court today takes another step toward embalming the law of evidence in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. I think it impossible to find any justification in the Constitution for today’s ruling, and take comfort only from the fact that since this is a capital case, it is perhaps an example of the maxim that “hard cases make bad law.” The Georgia trial court refused to allow in evidence certain testimony at petitioner’s sentencing trial on the ground that it constituted inadmissible hearsay under Ga. Code § 38-301 (1978). This Court does not, and could not, dispute the propriety of that ruling. Instead, it marshals a number of ad hoc reasons why Georgia should adopt a code of evidence that would allow this particular testimony to be admitted, and concludes that “[i]n these unique circumstances, ‘the hearsay rule may not be applied mechanistically to defeat the ends of justice.’ ” Ante, at 97. Nothing in the United States Constitution gives this Court any authority to supersede a State’s code of evidence because its application in a particular situation would defeat what this Court conceives to be “the ends of justice.” The Court does not disagree that the testimony at issue is hearsay or that it fails to come within any of the exceptions to the hearsay rule provided by Georgia’s rules of evidence. The Court obviously is troubled by the fact that the same testimony was admissible at the separate trial of petitioner’s codefendant at the behest of the State. But this fact by no means demonstrates that the Georgia courts have not evenhandedly applied their code of evidence, with its various hearsay exceptions, so as to deny GREEN v. GEORGIA 99 95 Rehnquist, J., dissenting petitioner a fair trial. No practicing lawyer can have failed to note that Georgia’s evidentiary rules, like those of every other State and of the United States, are such that certain items of evidence may be introduced by one party, but not by another. This is a fact of trial life, embodied throughout the hearsay rule and its exceptions. This being the case, the United States Constitution must be strained to or beyond the breaking point to conclude that all capital defendants who are unable to introduce all of the evidence which they seek to admit are denied a fair trial. I therefore dissent from the vacation of petitioner’s sentence. 100 OCTOBER TERM, 1978 442 U.S. Syllabus DUNN v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 77-6949. Argued March 28, 1979—Decided June 4, 1979 Petitioner’s testimony before a grand jury in June 1976 implicated one Musgrave in various drug-related offenses, and an indictment of Musgrave followed. On September 30, 1976, petitioner recanted his testimony in an oral statement made under oath in the office of Musgrave’s attorney. Musgrave then moved to dismiss his indictment, alleging that it was based on perjured testimony. At an evidentiary hearing on this motion on October 21, 1976, petitioner adopted his September 30 statement and testified that only a small part of his grand jury testimony was true. As a result, the charges against Musgrave were reduced. Petitioner was subsequently indicted for violations of 18 U. S. C. § 1623 (1976 ed., Supp. I), which prohibits false declarations made under oath “in any proceeding before or ancillary to any court or grand jury.” The indictment charged that petitioner’s grand jury testimony was inconsistent with statements made “on September 30, 1976, while under oath as a witness in a proceeding ancillary to” the Musgrave prosecution. At trial, the Government introduced, over petitioner’s objection, pertinent parts of his grand jury testimony, his testimony at the evidentiary hearing, and his sworn statement to Musgrave’s attorney. Petitioner was convicted, and the Court of Appeals affirmed. Although it agreed with petitioner that the September interview in the attorney’s office was not an ancilliary proceeding under § 1623, the court concluded that the October 21 hearing was such a proceeding. While acknowledging that the indictment specified the September 30 interview rather than the October 21 hearing as the ancillary proceeding, the court construed this discrepancy as a nonprejudicial variance between the indictment and the proof at trial. Held: 1. Since the indictment and jury instructions specified the September 30 interview as the ancillary proceeding, the Court of Appeals erred in predicating its affirmance on petitioner’s October 21 testimony. To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury offends the most basic notions of due process. Although the jury might well have reached the same verdict had the prosecution built its case on petitioner’s October 21 testimony adopting DUNN v. UNITED STATES 101 100 Opinion of the Court his September 30 statement rather than on the latter statement itself, the offense was not so defined, and appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial. Pp. 105-107. 2. As both the language and legislative history of Title IV of the 1970 Organized Crime Control Act make clear, an interview in a private attorney’s office at which a sworn statement is given does not constitute a “proceeding ancillary to a court or grand jury” within the meaning of § 1623. Moreover, to characterize such an interview as an ancillary proceeding would contravene the long-established practice of resolving doubt concerning the ambit of criminal statutes in favor of lenity. Pp. 107-113. 577 F. 2d 119, reversed. Marshall, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the case. Daniel J. Sears, by appointment of the Court, 439 U. S. 1064, argued the cause and filed briefs for petitioner. Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, William C. Bryson, Sidney M. Glazer, and Kathleen A. Felton. Mr. Justice Marshall delivered the opinion of the Court. Title IV of the Organized Crime Control Act of 1970, 18 U. S. C. § 1623 (1976 ed., Supp. I), prohibits false declarations made under oath “in any proceeding before or ancillary to any court or grand jury of the United States.” 1 This case turns 1 In pertinent part, 18 U. S. C. § 1623 (1976 ed., Supp. I) provides: “(a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the 102 OCTOBER TERM, 1978 Opinion of the Court 442U.S. on the scope of the term ancillary proceeding in § 1623, a phrase not defined in that provision or elsewhere in the Criminal Code. More specifically, we must determine whether an interview in a private attorney’s office at which a sworn statement is given constitutes a proceeding ancillary to a court or grand jury within the meaning of the statute. I On June 16, 1976, petitioner Robert Dunn testified before a federal grand jury under a grant of immunity pursuant to 18 U. S. C. § 6002.2 The grand jury was investigating illicit same to contain any false material declaration, shall be fined not more than $10,000 or imprisoned not more than five years, or both. “(c) An indictment or information for violation of this section alleging that, in any proceedings before or ancillary to any court or grand jury of the United States, the defendant under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false, need not specify which declaration is false if— “(1) each declaration was material to the point in question, and “(2) each declaration was made within the period of the statute of limitations for the offense charged under this section. “In any prosecution under this section, the falsity of a declaration set forth in the indictment or information shall be established sufficient for conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury. It shall be a defense to an indictment or information made pursuant to the first sentence of this subsection that the defendant at the time he made each declaration believed the declaration was true.” 2 Under 18 U. S. C. § 6002: “Whenever a witness refuses, on the basis of his privilege against selfincrimination, to testify or provide other information in a proceeding before or ancillary to— “(1) a court or grand jury of the United States, “(2) an agency of the United States, or “(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House, and the person presiding over the proceeding communicates to the witness DUNN v. UNITED STATES 103 100 Opinion of the Court drug activity at the Colorado State Penitentiary where petitioner had been incarcerated. Dunn’s testimony implicated a fellow inmate, Phillip Musgrave, in various drug-related offenses. Following petitioner’s appearance, the grand jury indicted Musgrave for conspiracy to manufacture and distribute methamphetamine. Several months later, on September 30, 1976, Dunn arrived without counsel in the office of Musgrave’s attorney, Michael Canges. In the presence of Canges and a notary public, petitioner made an oral statement under oath in which he recanted his grand jury testimony implicating Musgrave. Canges subsequently moved to dismiss the indictment against Musgrave, alleging that it was based on perjured testimony. In support of this motion, the attorney submitted a transcript of Dunn’s September 30 statement. The District Court held an evidentiary hearing on Musgrave’s motion to dismiss on October 21, 1976. At that hearing, petitioner, who was then represented by counsel, adopted the statement he had given in Canges’ office and testified that only a small part of what he had told the grand jury was in fact true. App. 46. As a result of petitioner’s testimony, the Government reduced the charges against Musgrave to misdemeanor possession of methamphetamine. See 21 U. S. C. § 844. Petitioner was subsequently indicted on five counts of making false declarations in violation of 18 U. S. C. § 1623 (1976 ed., Supp. I). The indictment charged that Dunn’s testimony before the grand jury was inconsistent with statements made “on September 30, 1976, while under oath as a witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but ho testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.” 104 OCTOBER TERM, 1978 442 U.S. Opinion of the Court in a proceeding ancillary to United States v. Musgrave, . . . to the degree that one of said declarations was false . . . .” App. 5-6.3 In response to petitioner’s motion for a bill of particulars, the Government indicated that it would rely on the “inconsistent declarations” method of proof authorized by § 1623 (c). Under that subsection, the Government must establish the materiality and inconsistency of declarations made in proceedings before or ancillary to a court or grand jury, but need not prove which of the declarations is false. See n. 1, supra. At trial, the Government introduced over objection pertinent parts of Dunn’s grand jury testimony, his testimony at the October 21 evidentiary hearing, and his sworn statement to Musgrave’s attorney. After the Government rested its case, petitioner renewed his objections in a motion for acquittal. He contended that the September 30 statement was not made in a proceeding ancillary to a federal court or grand jury as required by § 1623 (c). In addition, Dunn argued that use of his grand jury testimony to prove an inconsistent declaration would contravene the Government’s promise of immunity, in violation of 18 U. S. C. § 6002 and the Fifth Amendment. The court denied the motion and submitted the case to the jury. Petitioner was convicted on three of the five counts of the indictment and sentenced to concurrent 5-year terms on each count. The Court of Appeals for the Tenth Circuit affirmed. 577 F. 2d 119 (1978). Although it agreed with petitioner that the interview in Canges’ office was not an ancillary proceeding under § 1623, the court determined that the October 21 hearing at which petitioner adopted his September statement was a proceeding ancillary to a grand jury investigation. 577 F. 2d, at 123. Acknowledging that the indictment specified the September 30 interview rather than the October 21 hear 3 Each count alleged that a specific representation in the September 30 statement was inconsistent with a corresponding portion of petitioner’s grand jury testimony. See App. 3-11. DUNN v. UNITED STATES 105 100 Opinion of the Court ing as the ancillary proceeding, the Court of Appeals construed this discrepancy as a nonprejudicial variance between the indictment and proof at trial. Id., at 123-124. The court also upheld the use of petitioner’s immunized grand jury testimony to prove a § 1623 violation. In so ruling, the court stated that immunized testimony generally may not be used to establish an inconsistent declaration without a prior independent showing that the testimony is false. But, in the court’s view, petitioner’s unequivocal concession at the October hearing that he had testified falsely before the grand jury justified the Government’s reliance on that testimony. 577 F. 2d, at 125-126. We granted certiorari, 439 U. S. 1045 (1978). Because we disagree with the Court of Appeals’ ultimate disposition of the ancillary-proceeding issue, we reverse without reaching the question whether petitioner’s immunized testimony was admissible to prove a violation of § 1623. II A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment. Berger n. United States, 295 U. S. 78 (1935). In the instant case, since the indictment specified the September 30 interview rather than the October 21 hearing as the ancillary proceeding, the Court of Appeals identified a variance between the pleadings and the Government’s proof at trial. However, reasoning that petitioner’s October 21 testimony was “inextricably related” to his September 30 declaration, the court concluded that petitioner could have anticipated that the prosecution would introduce the October testimony. 577 F. 2d, at 123. The court therefore determined that the variance was not fatal to the Government’s case. See Kotteakos v. United States, 328 U. S. 750, 757 (1946). In our view, it is unnecessary to inquire, as did the Court of Appeals, whether petitioner was prejudiced by a variance 106 OCTOBER TERM, 1978 Opinion of the Court 442U.S. between what was alleged in the indictment and what was proved at trial. For we discern no such variance. The indictment charged inconsistency between petitioner’s statements in the September 30 interview and his grand jury testimony. That was also the theory on which the case was tried and submitted to the jury.4 Indeed, the October 21 testimony was introduced by the Government only in rebuttal to dispel any inference that petitioner’s grand jury testimony was true. See Tr. 82-83. But while there was no variance between the indictment and proof at trial, there was a discrepancy between the basis on which the jury rendered its verdict and that on which the Court of Appeals sustained petitioner’s conviction. Whereas the jury was instructed to rest its decision on Dunn’s September statement, the Tenth Circuit predicated its affirmance on petitioner’s October testimony. The Government concedes that this ruling was erroneous. Brief for United States 15, 35; Tr. of Oral Arg. 25. We agree. To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. Few constitutional principles are more firmly established than a defendant’s right to be heard on the specific charges of which he is accused. See Eaton v. Tulsa, 415 U. S. 697, 698-699 (1974) (per curiam); Garner n. Louisiana, 368 U. S. 157, 163-164 (1961); Cole v. Arkansas, 333 U. S. 196, 201 (1948); De Jonge v. 4 The District Court instructed the jury that in order to convict petitioner, it had to determine beyond a reasonable doubt that petitioner “while under oath, made irreconcilably contradictory declarations ... in any proceeding before or ancillary to a court or grand jury.” Tr. 179. The court did not define the term ancillary proceeding, but admonished the jury to render its verdict on the charges alleged in the indictment, which specified June 16, 1976, and September 30, 1976, as the proceedings at which inconsistent statements were given. Id., at 175-176; App. 3-11. Moreover, both the Assistant United States Attorney and defense counsel focused their summations on the September 30 statement. See Tr. 151, 167. DUNN v. UNITED STATES 107 100 Opinion of the Court Oregon, 299 U. S. 353, 362 (1937). There is, to be sure, no glaring distinction between the Government’s theory at trial and the Tenth Circuit’s analysis on appeal. The jury might well have reached the same verdict had the prosecution built its case on petitioner’s October 21 testimony adopting his September 30 statement rather than on the September statement itself. But the offense was not so defined, and appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial. As we recognized in Cole v. Arkansas, supra, at 201, “[i]t is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Thus, unless the September 30 interview constituted an ancillary proceeding, petitioner’s conviction cannot stand. Ill Congress enacted § 1623 as part of the 1970 Organized Crime Control Act, Pub. L. 91-452, 84 Stat. 922, to facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries. S. Rep. No. 91-617, pp. 58-59 (1969). Invoking this broad congressional purpose, the Government argues for an expansive construction of the term ancillary proceeding. Under the Government’s analysis, false swearing in an affidavit poses the same threat to the factfinding process as false testimony in open court. Brief for United States 21. Thus, the Government contends that any statements made under oath for submission to a court, whether given in an attorney’s office or in a local bar and grill, fall within the ambit of § 1623. See Tr. of Oral Arg. 31. In our judgment, the term “proceeding,” which carries a somewhat more formal connotation, suggests that Congress had a narrower end in view when enacting § 1623. And the legislative history of the Organized Crime Contol Act confirms that conclusion. 108 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. Section 1623 was a response to perceived evidentiary problems in demonstrating perjury under the existing federal statute, 18 U. S. C. § 1621.5 As Congress noted, the strict commonlaw requirements for establishing falsity which had been engrafted onto the federal perjury statute often made prosecution for false statements exceptionally difficult.6 By relieving the Government of the burden of proving which of two or more inconsistent declarations was false, see § 1623 (c), Congress sought to afford “greater assurance that testimony obtained in grand jury and court proceedings will aid the cause of truth.” S. Rep. No. 91-617, p. 59 (1969). But nothing in the language or legislative history of the statute suggests that Congress contemplated a relaxation of the Government’s burden of proof with respect to all inconsistent statements given under oath. Had Congress intended such a result, it presumably would have drafted § 1623 to encompass all sworn declarations irrespective of whether they were made in pro 5 Title 18 U. S. C. § 1621 provides: “Whoever— “(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or “(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; “is guilty of perjury and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.” 6 In particular, Congress focused on the two-witness rule, under which “the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused.” Hammer n. United States, 271 U. S. 620, 626 (1926); accord, Weiler v. United States, 323 U. S. 606, 608-610 (1945). See S. Rep. No. 91-617, pp. 57-59 (1969). DUNN v. UNITED STATES 109 100 Opinion of the Court ceedings before or ancillary to a court or grand jury. Particularly since Congress was aware that statements under oath were embraced by the federal perjury statute without regard to where they were given,7 the choice of less comprehensive language in § 1623 does not appear inadvertent. That Congress intended § 1623 to sweep less broadly than the perjury statute is also apparent from the origin of the term ancillary proceeding. As initially introduced in Congress, the Organized Crime Control Act contained a version of § 1623 which encompassed only inconsistent statements made in any “trial, hearing, or proceeding before any court or grand jury.” 8 When asked to comment on the proposed statute, the Department of Justice noted that the scope of the inconsistent declarations provision was “not as inclusive” as the perjury statute. See Hearings on S. 30 et al. before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 372 (1969) (hereinafter S. 30 Hearings). Significantly, the Justice Department did not suggest that the provision be made coextensive with the perjury statute. However, in subsequent Senate Subcommittee hearings, Assistant Attorney General Wilson indicated, without elaboration, that the Department advocated “including [under § 1623] other testimony, preliminary testimony and other statements, in the perjury field.” Id., at 389. In response to that general suggestion, Senator McClellan, 7 See id., at 110-111; n. 5, supra. 8 In its entirety, the original version of § 1623 (a) provided: “Whoever, having taken an oath in any trial, hearing, or proceeding before any court or grand jury, in which a law of the United States authorizes the oath, knowingly falsifies fact, or makes any false, fictitious, or fraudulent statement or representation, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.” S. 30, 91st Cong., 1st Sess., §401 (1969). 110 OCTOBER TERM, 1978 Opinion of the Court 442U.S. on behalf of the Subcommittee, sent a letter to the Assistant Attorney General clarifying its purpose: “You also read Title IV not to cover ‘pre-trial depositions, affidavits and certifications.’ This was not our intent in drafting the bill. We had hoped that it would be applicable, for example, to situations such as [the] kind of pre-trial depositions that the enforcement of S. 1861 would present. If we included in the statute the phrase ‘proceedings before or ancillary to any court or grand jury,’ do you feel that this intent would be adequately expressed?” Id., at 409.9 The Government attaches great significance to the qualification, “for example,” in Senator McClellan’s letter. Because pretrial depositions were mentioned as illustrative, the Government interprets the term ancillary proceeding to subsume affidavits and certifications as well. But that is not the inference the Department of Justice originally drew from the Senator’s letter. Responding to the proposed modification of § 1623, Assistant Attorney General Wilson did not advert to affidavits or certifications but stated only that “[i]nclusion of the phrase ‘proceedings before or ancillary to any court or grand jury’ in the false statement provision would in our opinion adequately bring within the coverage of the provision pre-trial depositions such as that contained in S. 1861.” S. 30 Hearings 411. In our view, the Justice Department’s contemporaneous rather than its current interpretation offers the more plausible reading of the Subcommittee’s intent. Its attention having been drawn to the issue, had the Subcommittee wished to bring all affidavits and certifications within the statutory 9 The provision of S. 1861 to which the Senator adverted involved use of depositions in racketeering investigations. It is currently codified as 18 U. S. C. § 1968. DUNN v. UNITED STATES 111 100 Opinion of the Court prohibition, Senator McClellan presumably would have so stated. Finally, to construe the term ancillary proceeding in § 1623 as excluding statements given in less formal contexts than depositions would comport with Congress’ use of the phrase in a related provision of the Organized Crime Control Act. Title II of the Act, 18 U. S. C. § 6002, authorizes extension of immunity to any witness who claims his privilege against self-incrimination “in a proceeding . . . ancillary to” a court, grand jury, or agency of the United States, or before Congress or one of its committees. See n. 2, supra. Although neither the House nor Senate Report defines the precise scope of § 6002, they both specify pretrial depositions as the sole example of what would constitute an ancillary proceeding under that provision. H. R. Rep. No. 91-1549, p. 42 (1970); S. Rep. No. 91-617, p. 145 (1969). Thus, both the language and history of the Act support the Court of Appeals’ conclusion that petitioner’s September 30 interview “lackfed] the degree of formality” required by § 1623. 577 F. 2d, at 123.10 For the Government does not and could not seriously maintain that the interview in Canges’ office constituted a deposition. See Tr. of Oral Arg. 10 In arguing that petitioner’s September 30 interview was an ancillary proceeding, the Government relies on United States v. Stassi, 583 F. 2d 122 (CA3 1978), and United States v. Krogh, 366 F. Supp. 1255, 1256 (DC 1973). The defendant in Stassi was convicted under § 1623 of making statements in a Fed. Rule Crim. Proc. 11 guilty plea hearing that were irreconcilable with his declarations in an affidavit supporting a motion to vacate sentence. Without adverting to any legislative history, the Court of Appeals affirmed on the theory that a false affidavit “offends the administration of criminal justice as much as [other] false material declaration [s].” 583 F. 2d, at 127. Insofar as Stassi’s analysis is inconsistent with our decision here, we decline to follow it. And Krogh affords no support for the Government’s position in this case since the court there held only that a sworn deposition taken in the office of an Assistant United States Attorney General was a proceeding ancillary to a grand jury investigation. 112 OCTOBER TERM, 1978 Opinion of the Court 442U.S. 25. Musgrave’s counsel made no attempt to comply with the procedural safeguards for depositions set forth in Fed. Rule Crim. Proc. 15 and 18 U. S. C. § 3503. A court order authorizing the deposition was never obtained.11 Nor did petitioner receive formal notice of the proceeding or of his right to have counsel present.12 Indeed, petitioner did not even certify the transcript of the interview as accurate.13 To characterize such an interview as an ancillary proceeding would not only take liberties with the language and legislative history of § 1623, it would also contravene this Court’s long-established practice of resolving questions concerning the ambit of a criminal statute in favor of lenity. Huddleston n. United States, 415 U. S. 814, 831 (1974); Rewis v. United States, 401 U. S. 808, 812 (1971); Bell v. United States, 349 U. S. 81, 83 (1955). This practice reflects not merely a convenient maxim of statutory construction. Rather, it is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited. Grayned v. City of Rockford, 408 U. S. 104, 108 (1972); United States n. Harriss, 347 U. S. 612, 617 (1954); Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939); McBoyle v. United States, 283 IL S. 25, 27 (1931). Thus, to ensure that a legislature speaks with special clarity when marking the boundaries of criminal conduct, courts must decline to impose punishment for actions 11 Title 18 U. S. C. § 3503 (a) provides: “Whenever due to exceptional circumstances it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved, the court at any time after the filing of an indictment or information may upon motion of such party and notice to the parties order that the testimony of such witness be taken by deposition ....” The language of Fed. Rule Crim. Proc. 15 (a) is substantially the same. 12 See 18 U. S. C. §§3503 (b), (c) ; Fed. Rule Crim. Proc. 15 (b). 13 See App. 46; 18 U. S. C. §3503 (d); Fed. Rule Crim Proc. 15 (d). DUNN v. UNITED STATES 113 100 Opinion of the Court that are not “ ‘plainly and unmistakably’ ” proscribed. United States v. Gradwell, 243 U. S. 476, 485 (1917). We cannot conclude here that Congress in fact intended or clearly expressed an intent that § 1623 should encompass statements made in contexts less formal than a deposition. Accordingly, we hold that petitioner’s September 30 declarations were not given in a proceeding ancillary to a court or grand jury within the meaning of the statute.14 The judgment of the Court of Appeals is Reversed. Mr. Justice Powell took no part in the consideration or decision of this case. 14 The Government points out that if this Court reverses petitioner’s conviction on the ground that the September 30 statement was not given in an ancillary proceeding, petitioner will be subject to reindictment for making declarations in the October 21 hearing inconsistent with his testimony in the June 16 grand jury proceeding. Thus, the Government urges us to reach the second question decided by the Court of Appeals concerning the use of petitioner’s immunized testimony to prove a violation of § 1623. Brief for United States 36-37. We decline to render an advisory opinion based on the Government’s suppositions not only that petitioner will be reindicted but also that he will be convicted after a trial at which the immunized testimony is introduced. 114 OCTOBER TERM, 1978 Syllabus 442 U. S. UNITED STATES v. BATCHELDER CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 78-776. Argued April 18, 1979—Decided June 4, 1979 Respondent was found guilty of violating 18 U. S. C. §922 (h), which is part of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 (Act). That provision prohibits previously convicted felons from receiving a firearm that has traveled in interstate commerce. The District Court sentenced respondent under 18 U. S. C. § 924 (a) to five years’ imprisonment, the maximum term authorized for violation of § 922 (h). The Court of Appeals affirmed the conviction but remanded for resentencing. Noting that the substantive elements of § 922 (h) and 18 U. S. C. App. § 1202 (a), which is contained in Title VII of the Act, are identical as applied to a convicted felon who unlawfully receives a firearm, the court interpreted the Act to allow no more than the 2-year maximum sentence provided by § 1202 (a). Held: A defendant convicted of violating §922 (h) is properly sentenced under § 924 (a) even though his conduct also violates § 1202 (a). Pp. 118-126. (a) Nothing in the language, structure, or legislative history of the Act suggests that because of the overlap between §§ 922 (h) and 1202 (a), a defendant convicted under §922 (h) may be imprisoned for no more than the maximum term specified in § 1202 (a). Rather, each substantive statute, in conjunction with its own sentencing provision, operates independently of the other. Pp. 118-121. (b) The Court of Appeals erroneously relied on three principles of statutory interpretation in construing § 1202 (a) to override the penalties authorized by § 924 (a). The doctrine that ambiguities in criminal statutes must be resolved in favor of lenity is not applicable here since there is no ambiguity to resolve. Nor can § 1202 (a) be interpreted as implicitly repealing § 924 (a) whenever a defendant’s conduct might, violate ^both sections. Legislative intent to repeal must be manifest in the “ ‘positive repugnancy between the provisions.’ ” United States v. Borden Co., 308 U. S. 188, 199. In this case, the penalty provisions are fully capable of coexisting because they apply to convictions under different statutes. Finally, the maxim that statutes should be construed to avoid constitutional questions offers no assistance here, since this principle applies only when an alternative interpretation is fairly possible from the language of the statute. There is simply no basis in UNITED STATES v. BATCHELDER 115 114 Opinion of the Court the Act for reading the term “five” in § 924 (a) to mean “two.” Pp. 121-122. (c) The statutory provisions at issue are not void for vagueness because they unambiguously specify the activity proscribed and the penalties available upon conviction. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied. P. 123. (d) Nor are the statutes unconstitutional under the equal protection component or Due Process Clause of the Fifth Amendment on the theory that they allow the prosecutor unfettered discretion in selecting which of two penalties to apply. A prosecutor’s discretion to choose between §§922 (h) and 1202 (a) is not “unfettered”; selectivity in the enforcement of criminal laws is subject to constitutional constraints. Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion. Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced. Pp. 123-125. (e) The statutes are not unconstitutional as impermissibly delegating to the Executive Branch the Legislature’s responsibility to fix criminal penalties. Having clearly informed the courts, prosecutors, and defendants of the permissible punishment alternatives available under each statute, Congress has fulfilled its duty. Pp. 125-126. 581 F. 2d 626, reversed. Marshall, J., delivered the opinion for a unanimous Court. Andrew J. Levander argued the cause for the United States pro hac vice. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Frey, Sidney Glazer, and Frank J. Marine. Charles A. Bellows argued the cause for respondent. With him on the brief were Jason E. Bellows and Carole K. Bellows. Mr. Justice Marshall delivered the opinion of the Court. At issue in this case are two overlapping provisions of the Omnibus Crime Control and Safe Streets Act of 1968 (Omni 116 OCTOBER TERM, 1978 Opinion of the Court 442U.S. bus Act).1 Both prohibit convicted felons from receiving firearms, but each authorizes different maximum penalties. We must determine whether a defendant convicted of the offense carrying the greater penalty may be sentenced only under the more lenient provision when his conduct violates both statutes. I Respondent, a previously convicted felon, was found guilty of receiving a firearm that had traveled in interstate commerce, in violation of 18 U. S. C. § 922 (h).2 The District Court sentenced him under 18 U. S. C. § 924 (a) to five years’ imprisonment, the maximum term authorized for violation of § 922 (h).3 The Court of Appeals affirmed the conviction but, by a divided vote, remanded for resentencing. 581 F. 2d 626 (CA7 1978). The majority recognized that respondent had been indicted and convicted under § 922 (h) and that § 924 (a) permits five years’ imprisonment for such violations. 581 F. 2d, at 629. However, noting that the substantive elements 182 Stat. 197. 2 In pertinent part, 18 U. S. C. § 922 (h) provides: “It shall be unlawful for any person— “(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug ... or narcotic drug . . . ; or “(4) who has been adjudicated as a mental defective or who has been committed to any mental institution; “to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 3 Title 18 U. S. C. § 924 (a) provides in relevant part: “Whoever violates any provision of this chapter . .. shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.” UNITED STATES v. BATCHELDER 117 1’14 Opinion of the Court of § 922 (h) and 18 U. S. C. App. § 1202 (a) are identical as applied to a convicted felon who unlawfully receives a firearm, the court interpreted the Omnibus Act to allow no more than the 2-year maximum sentence provided by § 1202 (a). 581 F. 2d, at 629.4 In so holding, the Court of Appeals relied on three principles of statutory construction. Because, in its view, the “arguably contradictory]” penalty provisions for similar conduct and the “inconclusive” legislative history raised doubt whether Congress had intended the two penalty provisions to coexist, the court first applied the doctrine that ambiguities in criminal legislation are to be resolved in favor of the defendant. Id., at 630. Second, the court determined that since § 1202 (a) was “Congress’ last word on the issue of penalty,” it may have implicitly repealed the punishment provisions of § 924 (a). 581 F. 2d, at 630. Acknowledging that the “first two principles cannot be applied to these facts without some difficulty,” the majority also invoked the maxim that a court should, if possible, interpret a statute to avoid constitutional questions. Id., at 630-631. Here, the court reasoned, the “prosecutor’s power to select one of two statutes that are identical except for their penalty provisions” implicated “important constitutional protections.” Id., at 631. 4 Section 1202 (a) states: “Any person who— “(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or “(2) has been discharged from the Armed Forces under dishonorable conditions, or “(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or “(4) having been a citizen of the United States has renounced his citizenship, or “(5) being an alien is illegally or unlawfully in the United States, “and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” 18 U. S. C. App. § 1202 (a). 118 OCTOBER TERM, 1978 Opinion of the Court 442U.S. The dissent found no basis in the Omnibus Act or its legislative history for engrafting the penalty provisions of § 1202 (a) onto §§ 922 (h) and 924 (a). 581 F. 2d, at 638-639. Relying on “the long line of cases . . . which hold that where an act may violate more than one criminal statute, the government may elect to prosecute under either, even if [the] defendant risks the harsher penalty, so long as the prosecutor does not discriminate against any class of defendants,” the dissent further concluded that the statutory scheme was constitutional. Id., at 637. We granted certiorari, 439 U. S. 1066 (1979), and now reverse the judgment vacating respondent’s 5-year prison sentence. II This Court has previously noted the partial redundancy of §§ 922 (h) and 1202 (a), both as to the conduct they proscribe and the individuals they reach. See United States v. Bass, 404 U. S. 336,341-343, and n. 9 (1971). However, we find nothing in the language, structure, or legislative history of the Omnibus Act to suggest that because of this overlap, a defendant convicted under § 922 (h) may be imprisoned for no more than the maximum term specified in § 1202 (a). As we read the Act, each substantive statute, in conjunction with its own sentencing provision, operates independently of the other. Section 922 (h), contained in Title IV of the Omnibus Act, prohibits four categories of individuals from receiving “any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” See n. 2, supra. Persons who violate Title IV are subject to the penalties provided by §924 (a), which authorizes a maximum fine of $5,000 and imprisonment for up to five years. See n. 3, supra. Section 1202 (a), located in Title VII of the Omnibus Act, forbids five categories of individuals from “receivfing], possess[ing], or transport [ing] in commerce or affecting commerce . . . any firearm.” This same section authorizes a maximum fine of UNITED STATES v. BATCHELDER 119 1'14 Opinion of the Court $10,000 and imprisonment for not more than two years. See n. 4, supra. While §§ 922 and 1202 (a) both prohibit convicted felons such as petitioner from receiving firearms,5 each Title unambiguously specifies the penalties available to enforce its substantive proscriptions. Section 924 (a) applies without exception to “[w] hoever violates any provision” of Title IV, and § 922 (h) is patently such a provision. See 18 U. S. C., ch. 44; 82 Stat. 226, 234; S. Rep. No. 1097, 90th Cong., 2d Sess., 20-25, 117 (1968). Similarly, because Title Vil’s substantive prohibitions and penalties are both enumerated in § 1202, its penalty scheme encompasses only criminal prosecutions brought under that provision. On their face, these statutes thus establish that § 924 (a) alone delimits the appropriate punishment for violations of § 922 (h). That Congress intended to enact two independent gun control statutes, each fully enforceable on its own terms, is confirmed by the legislative history of the Omnibus Act. Section 922 (h) derived from § 2 (f) of the Federal Firearms Act of 5 Even in the case of convicted felons, however, the two statutes are not coextensive. For example, Title VII defines a felony as “any offense punishable by imprisonment for a term exceeding one year, but does not include any offense (other than one involving a firearm or explosive) classified as a misdemeanor under the laws of a State and punishable by a term of imprisonment of two years or less.” 18 U. S. C. App. §1202 (c)(2). Under Title IV, “a crime punishable by imprisonment for a term exceeding one year,” 18 U. S. C. § 922 (h)(1), excludes “(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices . . . , or “(B) any State offense (other than one involving a firearm or explosive) classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” 18 U. S. C. § 921 (a) (20). In addition, the Commerce Clause elements of §§ 922 (h) and 1202 (a) may vary slightly. See Barrett v. United States, 423 U. S. 212 (1976); Scarborough n. United States, 431 U. S. 563, 571-572 (1977). 120 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. 1938, 52 Stat. 1251, and § 5 of that Act, 52 Stat. 1252, authorized the same maximum prison term as § 924 (a). Title IV of the Omnibus Act merely recodified with some modification this “carefully constructed package of gun control legislation,” which had been in existence for many years. Scarborough v. United States, 431 U. S. 563, 570 (1977); see United States v. Bass, supra, at 343 n. 10; 15 U. S. C. §§ 902, 905 (1964 ed.). By contrast, Title VII was a “last-minute” floor amendment, “hastily passed, with little discussion, no hearings, and no report.” United States v. Bass, supra, at 344, and n. 11; see Scarborough v. United States, supra, at 569-570, and n. 9. And the meager legislative debates involving that amendment demonstrate no intention to alter the terms of Title IV. Immediately before the Senate passed Title VII, Senator Dodd inquired whether it would substitute for Title IV. 114 Cong. Rec. 14774 (1968). Senator Long, the sponsor of the amendment, replied that § 1202 would “take nothing from” but merely “add to” Title IV. 114 Cong. Rec. 14774 (1968). Similarly, although Title VII received only passing mention in House discussions of the bill, Representative Machen made clear that the amendment would “complement . . . the gun-control legislation contained in title IV.” Id., at 16286. Had these legislators intended to pre-empt Title IV in cases of overlap, they presumably would not have indicated that the purpose of Title VII was to complement Title IV. See Scarborough v. United States, supra, at 573.6 6 Four months after enacting the Omnibus Act, the same Congress amended and re-enacted Titles IV and VII as part of the Gun Control Act of 1968. 82 Stat. 1213. This latter Act also treats the provisions of Titles IV and VII as independent and self-contained. Title I of the Gun Control Act amended Title IV, compare 82 Stat. 225 with 82 Stat. 1214, and Title III of the Gun Control Act amended Title VII. Compare 82 Stat. 236 with 82 Stat. 1236. The accompanying legislative Reports nowhere indicate that the sentencing scheme of § 1202 (a) was to govern convictions under § 922. See H. R. Conf. Rep. No. 1956, 90th Cong., 2d Sess., 31, 34 (1968); S. Rep. No. 1501, 90th Cong., 2d Sess., 21, 37 (1968). UNITED STATES v. BATCHELDER 121 114 Opinion of the Court These discussions, together with the language and structure of the Omnibus Act, evince Congress’ clear understanding that the two Titles would be applied independently.7 In construing § 1202 (a) to override the penalties authorized by § 924 (a), the Court of Appeals relied, we believe erroneously, on three principles of statutory interpretation. First, the court invoked the well-established doctrine that ambiguities in criminal statutes must be resolved in favor of lenity. E. g., Rewis v. United States, 401 U. S. 808, 812 (1971); United States v. Bass, 404 U. S., at 347; United States v. Culbert, 435 U. S. 371,379 (1978); United States'?. Najtalin, 441 U. S. 768, 778-779 (1979); Dunn v. United States, ante, at 112-113. Although this principle of construction applies to sentencing as well as substantive provisions, see Simpson v. United States, 435 U. S. 6, 14^15 (1978), in the instant case there is no ambiguity to resolve. Respondent unquestionably violated § 922 (h), and § 924 (a) unquestionably permits five years’ imprisonment for such a violation. That § 1202 (a) provides different penalties for essentially the same conduct is no justification for taking liberties with unequivocal stat 7 The anomalies created by the Court of Appeals’ decision further suggest that Congress must have intended only the penalties specified in § 924 (a) to apply to violations of §922 (h). For example, a person who received a firearm while under indictment for murder would be subject to five years’ imprisonment, since only § 922 (h) includes those under indictment for a felony. 18 U. S. C. §922 (h)(1). If he received the firearm after his conviction, however, the term of imprisonment could not exceed two years. Similarly, because § 922 (h) alone proscribes receipt of ammunition, a felon who obtained a single bullet could receive a 5-year sentence, while receipt of a firearm would be punishable by no more than two years’ imprisonment under § 1202 (a). In addition, the Court of Appeals’ analysis leaves uncertain the result that would obtain if a sentencing judge wished to impose a maximum prison sentence and a maximum fine for conduct violative of both Titles. The doctrine of lenity would suggest that the $5,000 maximum of § 924 (a) and the 2-year maximum of § 1202 (a) would apply. However, if the doctrine of implied repeal controls, arguably the $10,000 fine authorized by § 1202 (a) could be imposed for a violation of § 922 (h). See infra, at 122. 122 OCTOBER TERM, 1978 Opinion of the Court 442U.S. utory language. See Barrett v. United States, 423 U. S. 212, 217 (1976). By its express terms, § 1202 (a) limits its penalty scheme exclusively to convictions obtained under that provision. Where, as here, “Congress has conveyed its purpose clearly, ... we decline to manufacture ambiguity where none exists.” United States v. Culbert, supra, at 379. Nor can § 1202 (a) be interpreted as implicitly repealing § 924 (a) whenever a defendant’s conduct might violate both Titles. For it is “not enough to show that the two statutes produce differing results when applied to the same factual situation.” Radzanower v. Touche Ross & Co., 426 U. S. 148, 155 (1976). Rather, the legislative intent to repeal must be manifest in the “ ‘positive repugnancy between the provisions.’ ” United States v. Borden Co., 308 U. S. 188, 199 (1939). In this case, however, the penalty provisions are fully capable of coexisting because they apply to convictions under different statutes. Finally, the maxim that statutes should be construed to avoid constitutional questions offers no assistance here. This “ ‘cardinal principle’ of statutory construction ... is appropriate only when [an alternative interpretation] is ‘fairly possible’ ” from the language of the statute. Swain v. Pressley, 430 U. S. 372, 378 n. 11 (1977); see Crowell v. Benson, 285 U. S. 22, 62 (1932); United States v. Sullivan, 332 U. S. 689, 693 (1948); Shapiro v. United States, 335 U. S. 1, 31 (1948). We simply are unable to discern any basis in the Omnibus Act for reading the term “five” in § 924 (a) to mean “two.” Ill In resolving the statutory question, the majority below expressed “serious doubts about the constitutionality of two statutes that provide different penalties for identical conduct.” 581 F. 2d, at 633-634 (footnote omitted). Specifically, the court suggested that the statutes might (1) be void for vagueness, (2) implicate “due process and equal protection interest [s] in avoiding excessive prosecutorial discretion and in UNITED STATES v. BATCHELDER 123 114 Opinion of the Court obtaining equal justice,” and (3) constitute an impermissible delegation of congressional authority. Id., at 631-633. We find no constitutional infirmities. A It is a fundamental tenet of due process that “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). A criminal statute is therefore invalid if it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” United States n. Harriss, 347 U. S. 612, 617 (1954). See Connally v. General Construction Co., 269 U. S. 385, 391-393 (1926); Papachristou v. Jacksonville, 405 U. S. 156, 162 (1972); Dunn v. United States, ante, at 112-113. So too, vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute. See United States v. Evans, 333 U. S. 483 (1948); United States v. Brown, 333 U. S. 18 (1948); cf. Giaccio v. Pennsylvania, 382 U. S. 399 (1966). The provisions in issue here, however, unambiguously specify the activity proscribed and the penalties -available upon conviction. See supra, at 119. That this particular conduct may violate both Titles does not detract from the notice afforded by each. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied. B This Court has long recognized that when an act violates more than one criminal statute, the Government may prose 124 OCTOBER TERM, 1978 Opinion of the Court 442U.S. cute under either so long as it does not discriminate against any class of defendants. See United States n. Beacon Brass Co., 344 IT. S. 43, 45-46 (1952); Rosenberg v. United States, 346 IT. S. 273, 294 (1953) (Clark, J., concurring, joined by five Members of the Court); Oyler v. Boles, 368 IT. S. 448, 456 (1962); SEC v. National Securities, Inc., 393 IT. S. 453, 468 (1969); United States v. Naftalin, 441 IT. S., at 778. Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion. See Confiscation Cases, 7 Wall. 454 (1869); United States v. Nixon, 418 IT. S. 683, 693 (1974); Borden-kircher v. Hayes, 434 IT. S. 357, 364 (1978). The Court of Appeals acknowledged this “settled rule” allowing prosecutorial choice. 581 F. 2d, at 632. Nevertheless, relying on the dissenting opinion in Berra n. United States, 351 IT. S. 131 (1956),8 the court distinguished overlapping statutes with identical standards of proof from provisions that vary in some particular. 581 F. 2d, at 632-633. In the court’s view, when two statutes prohibit “exactly the same conduct,” the prosecutor’s “selection of which of two penalties to apply” would be “unfettered.” Id., at 633, and n. 11. Because such prosecutorial discretion could produce “unequal justice,” the court expressed doubt that this form of legislative redundancy was constitutional. Id., at 631. We find this analysis factually and legally unsound. Contrary to the Court of Appeals’ assertions, a prosecutor’s discretion to choose between §§ 922 (h) and 1202 (a) is not 8 Berra involved two tax evasion statutes, which the Court interpreted as proscribing identical conduct. The defendant, who was charged and convicted under the felony provision, argued that the jury should have been instructed on the misdemeanor offense as well. The Court rejected this contention and refused to consider whether the defendant’s sentence was invalid because in excess of the maximum authorized by the misdemeanor statute. The dissent urged that permitting the prosecutor to control whether a particular act would be punished as a misdemeanor or a felony raised “serious constitutional questions.” 351 U. S., at 139-140. UNITED STATES v. BATCHELDER 125 114 Opinion of the Court “unfettered.” Selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints.9 And a decision to proceed under § 922 (h) does not empower the Government to predetermine ultimate criminal sanctions. Rather, it merely enables the sentencing judge to impose a longer prison sentence than § 1202 (a) would permit and precludes him from imposing the greater fine authorized by § 1202 (a). More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. Cf. Rosenberg v. United States, supra, at 294 (Clark, J., concurring); Oyler v. Boles, supra, at 456. Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced. See U. S. Const., Art. II, §§ 2, 3; 28 U. S. C. §§515, 516; United States v. Nixon, supra, at 694. C Approaching the problem of prosecutorial discretion from a slightly different perspective, the Court of Appeals postulated that the statutes might impermissibly delegate to the Executive Branch the Legislature’s responsibility to fix criminal pen 9 The Equal Protection Clause prohibits selective enforcement “based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler n. Boles, 368 U. S. 448, 456 (1962). Respondent does not allege that his prosecution was motivated by improper considerations. 126 OCTOBER TERM, 1978 Opinion of the Court 442U.S. alties. See United States v. Hudson, 7 Cranch 32, 34 (1812); United States v. Grimaud, 220 U. S. 506, 516-517, 519 (1911); United States n. Evans, 333 U. 8., at 486. We do not agree. The provisions at issue plainly demarcate the range of penalties that prosecutors and judges may seek and impose. In light of that specificity, the power that Congress has delegated to those officials is no broader than the authority they routinely exercise in enforcing the criminal laws. Having informed the courts, prosecutors, and defendants of the permissible punishment alternatives available under each Title, Congress has fulfilled its duty. See United States v. Evans, supra, at 486,492, 495. Accordingly, the judgment of the Court of Appeals is Reversed. BROWN v. FELSEN 127 Opinion of the Court BROWN v. FELSEN CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 78-58. Argued February 21, 1979—Decided June 4, 1979 In the settlement of a state-court collection suit, respondent stipulated that petitioner should have judgment against respondent. Shortly thereafter, respondent filed for bankruptcy, and petitioner sought to establish that respondent’s debt to him was not dischargeable because it was the product of respondent’s fraud, deceit, and malicious conversion and thus came within §§ 17a (2) and (4) of the Bankruptcy Act, which provide that such debts are not affected by a discharge. The bankruptcy court granted summary judgment for respondent. The court held that the record in the state-court proceeding did not establish that respondent had committed fraud, and res judicata barred petitioner from offering additional evidence to prove the underlying nature of the debt. The District Court and Court of Appeals affirmed. Held: The bankruptcy court is not confined to a review of the judgment and record in the prior state-court proceeding when determining the dischargeability of respondent’s debt. When a debtor asserts the new defense of bankruptcy, res judicata does not bar the creditor from offering additional evidence to meet that defense. A contrary rule would force premature federal issues on the state courts and would frustrate the command of the Bankruptcy Act that only honest debts are to be discharged. Pp. 131-139. Reversed. Blackmun, J., delivered the opinion for a unanimous Court. Craig A. Christensen argued the cause for petitioner. With him on the briefs was Deanna E. Hickman. Alex Stephen Keller argued the cause and filed a brief for respondent. Mr. Justice Blackmun delivered the opinion of the Court. The issue here is whether a bankruptcy court may consider evidence extrinsic to the judgment and record of a prior 128 OCTOBER TERM, 1978 Opinion of the Court 442U.S. state suit when determining whether a debt previously reduced to judgment is dischargeable under § 17 of the Bankruptcy Act, 11 U. S. C. § 35. I Petitioner G. Garvin Brown III was a guarantor for respondent Mark Paul Felsen and Felsen’s car dealership, Le Mans Motors, Inc. Petitioner’s guarantee secured a bank loan that financed the dealership’s trading in Lotus, Ferrari, and Lamborghini automobiles. In 1975, the lender brought a collection suit against petitioner, respondent, and Le Mans in Colorado state court. Petitioner filed an answer to the bank’s complaint, and a cross-claim against respondent and Le Mans. The answer and the cross-claim, by incorporating the answer, alleged that respondent and Le Mans induced petitioner to sign the guarantee “by misrepresentations and non-disclosures of material facts.” App. 35. The suit was settled by a stipulation. It provided that the bank should recover jointly and severally against all three defendants, and that petitioner should have judgment against respondent and Le Mans. Neither the stipulation nor the resulting judgment indicated the cause of action on which respondent’s liability to petitioner was based. Because the case was settled, respondent’s sworn deposition was never made part of the court record. A short time later, respondent filed a petition for voluntary bankruptcy and sought to have his debt to petitioner discharged. Through discharge, the Bankruptcy Act provides “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt,” Local Loan Co. v. Hunt, 292 U. S. 234, 244 (1934). By seeking discharge, however, respondent placed the rectitude of his prior dealings squarely in issue, for, as the Court has noted, the Act limits that opportunity to the “honest but unfortunate debtor.” Ibid. Section 14 of the Act, 11 U. S. C. § 32, specifies that a debtor may not obtain BROWN v. FELSEN 129 127 Opinion of the Court a discharge if he has committed certain crimes or offenses. Section 17a, the focus of this case, provides that certain types of debts are not affected by a discharge. These include, under § 17a (2), “liabilities for obtaining money or property by false pretenses or false representations ... or for willful and malicious conversion of the property of another” and, under § 17a (4), debts that “were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity.” 1 In the bankruptcy court, petitioner sought to establish that respondent’s debt to petitioner was not dischargeable. Petitioner alleged that the guarantee debt was the product of respondent’s fraud, deceit, and malicious conversion and so came within §§ 17a (2) and 17a (4). Petitioner contended that respondent had prepared false title certificates, sold automobiles out of trust, and applied the proceeds to private purposes. Respondent answered and moved for summary judgment. Respondent said that the prior state-court proceeding did not result in a finding of fraud, and contended that res judicata barred relitigation of the nature of respondent’s debt to petitioner, even though the application of § 17 had not been in issue in the prior proceeding. Before 1970, such res judicata claims were seldom heard in federal court. Traditionally, the bankruptcy court determined whether the debtor merited a discharge under § 14, but left the dischargeability under § 17 of a particular debt to the court in which the creditor sued, after bankruptcy, to enforce his prior judgment. Typically, that court was a state court. In 1970, however, Congress altered § 17 to require creditors to apply to the bankruptcy court for adjudication 1In 1978, Congress repealed the Bankruptcy Act, effective October 1, 1979. See Bankruptcy Reform Act of 1978, Pub. L. 95-598, § 401 (a), 92 Stat. 2682. A case commenced under the Bankruptcy Act continues to be governed by it. § 403 (a), 92 Stat. 2683. Discharge provisions substantially similar to § 17 of the Bankruptcy Act appear in § 523 of the new law. 11 U. S. C. App. § 523 (1976 ed., Supp. II). 130 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. of certain dischargeability questions, including those arising under §§ 17a (2) and 17a (4).2 In In re Nicholas, 510 F. 2d 160, cert, denied, 421 U. S. 1012 (1975), the United States Court of Appeals for the Tenth Circuit, confronting for the first time the res judicata question presented here, resolved it by holding that, in determining the dischargeability of a claim previously reduced to judgment, the District Court had properly limited its review to the record and judgment in the prior state-court proceeding. The Court of Appeals found that its decision accorded with the majority rule among state courts previously considering the question. The bankruptcy court here, bound by Nicholas, somewhat reluctantly3 confined its consideration to the judgment, pleadings, exhibits, and stipulation which were in the state-court record. It declined to hear other evidence, and it refused to consider respondent’s deposition that had never been made part of that record. The court concluded that, because neither the judgment nor the record showed that petitioner’s allegation of misrepresentation was the basis for the judgment on the cross-claim against respondent, the liability had not been shown to be within §§ 17a (2) and 17a (4). The court granted summary judgment for respondent and held that the debt was dischargeable. App. 44—48. Both the United States District Court for the District of Colorado, id., at 49, and the United States Court of Appeals for the Tenth Circuit affirmed. In an unpublished opinion, the Court of Appeals followed Nicholas, applied res judicata, and said that the prior consent decree was conclusive as to the nature of respondent’s liability. The court noted that neither the stipulation nor the judgment mentioned fraud, and the 2 See Pub. L. 91-467, §§5-7, 84 Stat. 992; H. R. Rep. No. 91-1502 (1970); S. Rep. No. 91-1173 (1970). 3 The court observed that, in its experience, the Nicholas rule had “created more difficulties and more problems than it has solved.” Tr. in No. 76 B 56 (Colo., Dec. 14, 1976), p. 13. BROWN v. FELSEN 131 127 Opinion of the Court court said that petitioner had not even met the state requirement that fraud be pleaded with specificity. See Colo. Rule Civ. Proc. 9 (b). The court agreed that respondent’s debt was dischargeable. App. 50-56. Since Nicholas was decided, every other Court of Appeals that has considered the question has rejected res judicata and held that extrinsic evidence may be admitted in order to determine accurately the dischargeability under § 17 of a debt previously reduced to judgment in state court.4 We granted certiorari to resolve this conflict. 439 U. S. 925 (1978). II Res judicata ensures the finality of decisions. Under res judicata, “a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” Montana v. United States, 440 U. S. 147, 153 (1979). Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding. Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 378 (1940); IB J. Moore, Federal Practice fl 0.405 [1] (2d ed. 1974). Res judicata thus encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes. Bankruptcy often breeds litigation, and respondent contends that the policy of repose which underlies res judicata 4 See In re Wright, 584 F. 2d 83, 84 (CA5 1978); In re McMillan, 579 F. 2d 289, 293, and n. 6 (CA3 1978); In re Houtman, 568 F. 2d 651, 653-654 (CA9 1978); In re Pigge, 539 F. 2d 369, 371-372 (CA4 1976). Two Circuits held that extrinsic evidence was admissible under pre-1970 law. See Martin v. Rosenbaum, 329 F. 2d 817, 820 (CA9 1964); In re Johnson, 323 F. 2d 574 (CA3 1963). But cf. Chernick v. United States, 492 F. 2d 1349, 1351, and n. 4 (CA7 1974) (bound by prior postbankruptcy judgment). This Court, in dictum, indicated that extrinsic evidence could be admitted in a proceeding under the 1867 Bankruptcy Act. Strang v. Bradner, 114 U. S. 555, 560-561 (1885). 132 OCTOBER TERM, 1978 Opinion of the Court 442U.S. has particular force here. Respondent argues that petitioner chose not to press the question of fraud in the state-court proceeding even though an adjudication of fraud would have entitled petitioner to extraordinary remedies such as exemplary damages and body execution.5 Respondent says that because petitioner did not obtain a stipulation concerning fraud in the prior state-court proceeding, he is now barred from litigating matters that could have been concluded in the consent judgment. See United States n. Armour & Co., 402 U. S. 673, 681-682 (1971). Applying res judicata in bankruptcy court, it is argued, prevents a creditor from raising as an afterthought claims so insubstantial that they had previously been overlooked. In respondent’s view, res judicata stops harassment and promotes the orderly processes of justice by encouraging the consolidation of the entire dispute between debtor and creditor into one prior proceeding. Because res judicata may govern grounds and defenses not previously litigated, however, it blockades unexplored paths that may lead to truth. For the sake of repose, res judicata shields the fraud and the cheat as well as the honest person. It therefore is to be invoked only after careful inquiry. Petitioner contends, and we agree, that here careful inquiry reveals that neither the interests served by res judicata, the process of orderly adjudication in state courts, nor the policies of the Bankruptcy Act would be well served by foreclosing petitioner from submitting additional evidence to prove his case. A Respondent’s res judicata claim is unlike those customarily entertained by the courts. For example, this case is readily distinguishable from Chicot County Drainage Dist. v. Baxter 5 In Colorado, body execution is a statutory remedy which, under certain circumstances, permits a creditor to have a tortious judgment, debtor imprisoned at the creditor’s expense. See Hershey v. People, 91 Colo. 113, 12 P. 2d 345 (1932); Colo. Rev. Stat. §13-59-103 (1973). BROWN v. FELSEN 133 127 Opinion of the Court State Bank, supra. There, bondholders participated in a federal statutory proceeding for the readjustment of indebtedness and a judgment was entered. After parties from another State succeeded in having the statute declared unconstitutional, the bondholders brought a suit seeking to collect the sums that had been due before readjustment. The Court held that res judicata barred the second suit and said that the bondholders “were not the less bound by the decree” because they failed to raise the constitutional claim in the first proceeding. 308 U. S., at 375. Here, in contrast, petitioner readily concedes that the prior decree is binding. That is the cornerstone of his claim. He does not assert a new ground for recovery, nor does he attack the validity of the prior judgment. Rather, what he is attempting to meet here is the new defense of bankruptcy which respondent has interposed between petitioner and the sum determined to be due him. A substantial minority of statecourt decisions, particularly those following Fidelity & Casualty Co. n. Golombosky, 133 Conn. 317, 322-324, 50 A. 2d 817, 819-820 (1946) (Maltbie, C. J.), have recognized this distinction and have refused to apply res judicata in determining the dischargeability of debts previously reduced to judgment.6 Respondent has upset the repose that would 6 See United States Credit Bureau v. Manning, 147 Cal. App. 2d 558, 562, 305 P. 2d 970, 973 (2d Dist. 1957); Welsh n. Old Dominion Bank, 229 A. 2d 455, 456 (D. C. App. 1967); Levin n. Singer, 227 Md. 47, 57-60, 175 A. 2d 423, 428-430 (1961); Fireman’s Fund Indemnity Co. v. Caruso, 252 Minn. 435, 439-441, 90 N. W. 2d 302, 305-306 (1958); Durrett v. Smith, 358 S. W. 2d 261, 263 (Mo. App. 1962). The Golombosky case has been applauded by the commentators. See J. MacLachlan, Bankruptcy 111 (1956); Note, Fraudulent Financial Statements and Section 17 of the Bankruptcy Act—The Creditor’s Dilemma, 1967 Utah L. Rev. 281, 288-290, 296; Developments in the Law—Res Judicata, 65 Harv. L. Rev. 818, 885 (1952); Comment, 60 Harv. L. Rev. 638 (1947); Comment, 33 Va. L. Rev. 508 (1947). Cf. 8 H. Remington, Bankruptcy Law 186 (6th ed. 1955) (contrary decisions are sound only 134 OCTOBER TERM, 1978 Opinion of the Court 442U.S. justify treating the prior state-court proceeding as final, and it would hardly promote confidence in judgments to prevent petitioner from meeting respondent’s new initiative. B Respondent contends that the § 17 questions raised here, or similar issues of state law, could have been considered in the prior state-court proceeding and therefore are not “new.” Respondent argues that the state-court collection suit is the appropriate forum for resolving all debtor-creditor disputes, including those concerning dischargeability. While in some circumstances the consolidation of proceedings may be desirable, here consolidation would undercut a statutory policy in favor of resolving § 17 questions in bankruptcy court, and would force state courts to decide these questions at a stage when they are not directly in issue and neither party has a full incentive to litigate them. See In re Pigge, 539 F. 2d 369, 371-372 (CA4 1976). 1. Considerations material to discharge are irrelevant to the ordinary collection proceeding. The creditor sues on the when applied to the “typical ‘afterthought’ and harassment case”). But see Note, 21 J. Nat. Assn, of Referees in Bankruptcy 94 (1947). Other States, however, continued to apply res judicata and refused to admit additional evidence. See Miller n. Rush, 155 Colo. 178, 188, 393 P. 2d 565, 571 (1964); Security National Bank v. Boccio, 60 Mise. 2d 547, 548, 303 N. Y. S. 2d 610, 611 (Nassau Cty. 1969); Universal C. I. T. Credit Corp. v. Woodmansee, 213 Tenn. 429, 437, 374 S. W. 2d 386, 390 (1964); Beehive State Bank n. Buntine, 17 Utah 2d 351, 352, 411 P. 2d 967, 968 (1966); Northey v. Vander mark, 66 Wash. 2d 173, 176, 401 P. 2d 873, 875-876 (1965). The state decisions predating Golombosky are close to unanimity in adhering to res judicata. See Aetna Casualty & Surety Co. n. Sentilles, 160 So. 149, 151 (La. App. 1935); Rice n. Guider, 275 Mich. 14, 18, 265 N. W. 777, 778 (1936); Ehnes v. Generazzo, 19 N. J. Mise. 393, 396, 20 A. 2d 513, 515 (Com. Pl. 1941); Scott v. Corn, 19 S. W. 2d 412, 415 (Tex. Civ. App. 1929), cert, denied, 281 U. S. 736 (1930); Annot., 170 A. L. R. 368 (1947). But see Gehlen v. Patterson, 83 N. H. 328, 331, 141 A. 914, 916 (1928). BROWN v. FELSEN 135 127 Opinion of the Court instrument which created the debt. Even if an issue similar to those created by § 17 should arise, the state-law concept is likely to differ from that adopted in the federal statute. See 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy If 17.16 [6], p. 1650.1 (14th ed. 1978). For example, in Davis v. Aetna Acceptance Co., 293 U. S. 328 (1934), the Court held that a mere technical conversion by a bankrupt dealer in automobiles was not “willful and malicious” within the meaning of § 17 by virtue of being actionable under state law, nor was a misappropriation of funds, held pursuant to a “trust receipt,” a breach of an express trust sufficient to constitute an act done “as an officer or in any fiduciary capacity.” When § 17 issues are not identical to those arising under state law, the parties have little incentive to litigate them. In the collection suit, the debtor’s bankruptcy is still hypothetical. The rule proposed by respondent would force an otherwise unwilling party to try § 17 questions to the hilt in order to protect himself against the mere possibility that a debtor might take bankruptcy in the future. In many cases, such litigation would prove, in the end, to have been entirely unnecessary, and it is not surprising that at least one state court has expressly refused to embroil itself in an advisory adjudication of this kind. See Pioneer Finance Ac Thrift Co. v. Powell, 21 Utah 2d 201, 204, 443 P. 2d 389, 391 (1968). And absent trial on the merits, there is no particular reason to favor extraneous facts thrown into a record for § 17 purposes over facts adduced before the bankruptcy court. 2. If a state court should expressly rule on § 17 questions, then giving finality to those rulings would undercut Congress’ intention to commit § 17 issues to the jurisdiction of the bankruptcy court. The 1970 amendments eliminated postbankruptcy state-court collection suits as a means of resolving certain § 17 dischargeability questions. In those suits, creditors had taken advantage of debtors who were unable to retain counsel because bankruptcy had stripped them of their 136 OCTOBER TERM, 1978 Opinion of the Court 442U.S. assets. Congress’ primary purpose was to stop that abuse. A secondary purpose, however, was to take these § 17 claims away from state courts that seldom dealt with the federal bankruptcy laws and to give those claims to the bankruptcy court so that it could develop expertise in handling them.7 By the express terms of the Constitution, bankruptcy law is federal law, U. S. Const., Art. I, § 8, cl. 4, and the Senate Report accompanying the amendment described the bankruptcy court’s jurisdiction over these § 17 claims as “exclusive.” S. Rep. No. 91-1173, p. 2 (1970). While Congress did not expressly confront the problem created by prebankruptcy state-court adjudications, it would be inconsistent with the philosophy of the 1970 amendments to adopt a policy of res judicata which takes these § 17 questions away from bankruptcy courts and forces them back into state courts. See In re McMillan, 579 F. 2d 289, 293 (CA3 1978); In re Hout man, 568 F. 2d 651, 654 (CA9 1978); In re Pigge, 539 F. 2d, at 371; 1 D. Cowans, Brankruptcy Law and Practice 7 See S. Rep. No. 91-1173, pp. 2-3 (1970); H. R. Rep. No. 91-1502, p. 1 (1970). A statement by Professor Lawrence King, prepared for the National Bankruptcy Conference, included in both the House and Senate Reports and placed in the Congressional Record by Representative Wiggins, said: “One of the strongest arguments in support of the bill is that, if the bill is passed, a single court, to wit, the bankruptcy court, will be able to pass upon the question of dischargeability of a particular claim and it will be able to develop an expertise in resolving the problem in particular cases. The State court judges, however capable they may be, do not have enough cases to acquire sufficient experience to enable them to develop this expertise. Moreover, even under the present system, in the last analysis, it is the U. S. Supreme Court which has the ultimate word on the construction of section 17 of the Bankruptcy Act. . . . Since this is a Federal statute, the Federal courts necessarily have the final word as to the meaning of any terms contained therein.” S. Rep. No. 91-1173, p. 9 (1970); H. R. Rep. No. 91-1502, p. 8 (1970); 116 Cong. Rec. 34819 (1970). See also S. Rep. No. 91-1173, p. 6 (1970) (letter of Royal E. Jackson, Chief, Division of Bankruptcy, quoting Prof. Charles Seligson). BROWN v. FELSEN 137 127 Opinion of the Court § 253, p. 298 (1978). Compare 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy fl 17.16 [6], p. 1650.1 n. 50 (14th ed. 1978) (1970 Act), with id., fl 17.16 [4], p. 1643 (prior state law). Respondent argues that petitioner could have avoided such a result and preserved his dischargeability contentions for bankruptcy court review by bargaining for a stipulation that § 17 issues were not resolved by the consent judgment. It makes little sense, however, to resolve a federal dischargeability question according to whether or not the parties in state court waived their right to engage in hypothetical litigation in an inappropriate forum. 3. Respondent also contends that petitioner had an adequate incentive to prove state-law fraud, which might have entailed proof identical to that required by § 17. Petitioner, however, rejected whatever lure exemplary damages and body execution may have provided. That rejection does not conclusively show that petitioner thought respondent was innocent of fraud. Petitioner may have thought those remedies would not be advantageous to him.8 While respondent is certainly entitled to claim that res judicata would bar further pursuit of those extraordinary remedies in state court, their hypothetical desirability provides no basis for preventing 8 So long as a debtor is solvent, the debtor and creditor alike may prefer a simple contract suit to complex tort litigation. Default and consent judgments are common in collection proceedings. For the creditor, the prospect of increased attorney’s fees and the likelihood of driving the debtor into bankruptcy may offset the advantages of exemplary damages or other extraordinary remedies. Bankruptcy deprives the debtor of his creditworthiness and so impairs his ability to repay. In the words of a Shakespearean creditor, fearing the worst: “When every feather sticks in his own wing, Which Timon will be left a naked Gull, Which flashes now a Phoenix.” Timon of Athens, Act 2, Scene 1, in VII The Works of Shakespeare 294 (Henley ed. 1903). Nor does body execution aid in the collection of a debt if the debtor needs to be out of jail in order to earn the money to repay the debt. 138 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. petitioner from recovering on the debt, the remedy he elected from the beginning. C Refusing to apply res judicata here would permit the bankruptcy court to make an accurate determination whether respondent in fact committed the deceit, fraud, and malicious conversion which petitioner alleges. These questions are now, for the first time, squarely in issue. They are the type of question Congress intended that the bankruptcy court would resolve. That court can weigh all the evidence, and it can also take into account whether or not petitioner’s failure to press these allegations at an earlier time betrays a weakness in his case on the merits. Some indication that Congress intended the fullest possible inquiry arises from the history of § 17. In the 1898 Bankruptcy Act, Congress provided that only “judgments” sounding in fraud would be excepted from a bankrupt’s discharge. 30 Stat. 550. In 1903, Congress substituted “liabilities” for “judgments.” 32 Stat. 798. The amendment, said the accompanying House Report, was “in the interest of justice and honest dealing and honest conduct,” and it was intended “to exclude beyond peradventure certain liabilities growing out of offenses against good morals.”9 This broad language suggests that all debts arising out of conduct specified in § 17 should be excepted from discharge and the mere fact that a conscientious creditor has previously reduced his claim to judgment should not bar further inquiry into the true nature of the debt. Cf. Hargadine-McKittrick Dry Goods Co. v. Hudson, 111 F. 361, 362-363 (ED Mo. 1901), aff’d, 122 F. 232, 235-236 (CA8 1903) (comparing 1903 Act to prior law). In sum, we reject respondent’s contention that res judicata applies here and we hold that the bankruptcy court is not confined to a review of the judgment and record in the prior 9 H. R. Rep. No. 1698, 57th Cong., 1st Sess., 3, 6 (1902). See 36 Cong. Rec. 1375 (1903). BROWN v. FELSEN 139 127 Opinion of the Court state-court proceedings when considering the dischargeability of respondent’s debt. Adopting the rule respondent urges would take § 17 issues out of bankruptcy courts well suited to adjudicate them, and force those issues onto state courts concerned with other matters, all for the sake of a repose the bankrupt has long since abandoned.10 This we decline to do. The judgment of the Court of Appeals is reversed. It is so ordered. 10 This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v. United States, 440 U. S. 147, 153 (1979); Parklane Hosiery Co. v. Shore, 439 U. S. 322, 326 n. 5 (1979); Cromwell n. County of Sac, 94 U. S. 351, 352-353 (1877). If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Because respondent does not contend that the state litigation actually and necessarily decided either fraud or any other question against petitioner, we need not and therefore do not decide whether a bankruptcy court adjudicating a § 17 question should give collateral-estoppel effect to a prior state judgment. In another context, the Court has held that a bankruptcy court should give collateral-estoppel effect to a prior decision. Heiser v. Woodruff, 327 U. S. 726, 736 (1946). The 1970 amendments to the Bankruptcy Act, however, have been interpreted by some commentators to permit a contrary result. See 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy § 17.16 [6], p. 1650.2 (14th ed. 1978); Countryman, The New Dischargeability Law, 45 Am. Bankr. L. J. 1, 49-50 (1971). But see 1 D. Cowans, Bankruptcy Law and Practice § 253 (1978). 140 OCTOBER TERM, 1978 Syllabus 442 U.S. COUNTY COURT OF ULSTER COUNTY, NEW YORK, ET AL. V. ALLEN ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 77-1554. Argued February 22, 1979—Decided June 4, 1979 Respondents (three adult males) and a 16-year-old girl (Jane Doe) were jointly tried in a New York state court on charges, inter alia, of illegally possessing two loaded handguns found in an automobile in which they were riding when it was stopped for speeding. The guns had been positioned crosswise in Jane Doe’s open handbag on either the front floor or front seat on the passenger side where she was sitting. All four defendants objected to the introduction of the guns into evidence, arguing that the State had not adequately demonstrated a connection between the guns and the defendants. The trial court overruled the objection, relying on the presumption of possession created by a New York statute providing that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle, except when, inter alia, the firearm is found “upon the person” of one of the occupants. The trial court also denied respondents’ motion to dismiss the charges on the alleged ground that such exception applied because the guns were found on Jane Doe’s person, the court concluding that the applicability of the exception was a question of fact for the jury. After being instructed that it was entitled to infer possession from the defendants’ presence in the car, to consider all circumstances tending to support or contradict such inference, and to decide the matter for itself without regard to how much evidence the defendants introduced, the jury convicted all four defendants of illegal possession of the handguns. Defendants’ post-trial motion in which they challenged the constitutionality of the New York statute as applied to them, was denied. Both the intermediate appellate court and the New York Court of Appeals affirmed the convictions, the latter court holding that it was a jury question whether the guns were on Jane Doe’s person, treating this question as having been resolved in the prosecution’s favor, and concluding that therefore the presumption applied and that there was sufficient evidence to support the convictions. The court also summarily rejected the argument that the presumption was unconstitutional as applied in this case. Respondents then filed a ULSTER COUNTY COURT v. ALLEN 141 140 Syllabus habeas corpus petition in Federal District Court, contending that they were denied due process of law by the application of the statutory presumption. The District Court issued the writ, holding that respondents had not “deliberately bypassed” their federal claim by their actions at trial and that the mere presence of two guns in a woman’s handbag in a car could not reasonably give rise to the inference that they were in the possession of three other persons in the car. The United States Court of Appeals affirmed, holding that the New York Court of Appeals had decided respondents’ constitutional claim on its merits rather than on any independent state procedural ground that might have barred collateral relief and, without deciding whether the presumption was constitutional as applied in this case, that the statute is unconstitutional on its face. Held: 1. The District Court had jurisdiction to entertain respondents’ claim that the statutory presumption is unconstitutional. There is no support in New York law or the history of this litigation for an inference that the New York courts decided such claim on an independent and adequate state procedural ground that bars the federal courts. from addressing the issue on habeas corpus. If neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim. Pp. 147-154. 2. The United States Court of Appeals erred in deciding the facial constitutionality issue. In analyzing a mandatory presumption, which the jury must accept even if it is the sole evidence of an element of an offense (as opposed to a purely permissive presumption, which allows, but does not require, the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant), it is irrelevant that there is ample evidence in the record other than the presumption to support a conviction. Without determining whether the presumption in this case was mandatory, the Court of Appeals analyzed it on its face as if it were, despite the fact that the state trial judge’s instructions made it clear that it was not. Pp. 154r-163. 3. As applied to the facts of this case, the statutory presumption is constitutional. Under the circumstances, the jury would have been entirely reasonable in rejecting the suggestion that the guns were in Jane Doe’s sole possession. Assuming that the jury did reject it, the case is tantamount to one in which the guns were lying on the car’s floor or seat in the plain view of respondents, and in such a case it is 142 OCTOBER TERM, 1978 Opinion of the Court 442U.S. surely rational to infer that each of the respondents was fully aware of the guns’ presence and had both the ability and the intent to exercise dominion and control over them. The application of the presumption in this case thus comports with the standard, Leary n. United States, 395 U. S. 6, that there be a “rational connection” between the basic facts that the prosecution proved and the ultimate fact presumed, and that the latter is “more likely than not to flow from” the former. Moreover, the presumption should not be judged by a more stringent “reasonable doubt” test, insofar as it is a permissive rather than a mandatory presumption. Pp. 163-167. 568 F. 2d 998, reversed. Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Rehnquist, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 167. Powell, J., filed a dissenting opinion, in which Brennan, Stewart, and Marshall, JJ., joined, post, p. 168. Eileen F. Shapiro, Assistant Attorney General of New York, argued the cause for petitioners. With her on the briefs were Robert Abrams, Attorney General, Louis J. Lefkowitz, former Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, Patricia C. Armstrong, Assistant Attorney General, and George D. Zuckerman, Assistant Solicitor General. Michael Young argued the cause and filed a brief for respondents. Mr. Justice Stevens delivered the opinion of the Court. A New York statute provides that, with certain exceptions, the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle.1 The United States Court of Appeals for the 1 New York Penal Law § 265.15 (3) (McKinney 1967): “The presence in an automobile, other than a stolen one or a public omnibus, of any firearm, defaced firearm, firearm silencer, bomb, bombshell, gravity knife, switchblade knife, dagger, dirk, stiletto, billy, blackjack, metal knuckles, sandbag, sandclub or slungshot is presumptive evidence of its possession by all persons occupying such automobile at the time such ULSTER COUNTY COURT v. ALLEN 143 140 Opinion of the Court Second Circuit held that respondents may challenge the constitutionality of this statute in a federal habeas corpus proceeding and that the statute is “unconstitutional on its face.” 568 F. 2d 998, 1009. We granted certiorari to review these holdings and also to consider whether the statute is constitutional in its application to respondents. 439 U. S. 815. Four persons, three adult males (respondents) and a 16-year-old girl (Jane Doe, who is not a respondent here), were jointly tried on charges that they possessed two loaded handguns, a loaded machinegun, and over a pound of heroin found in a Chevrolet in which they were riding when it was stopped for speeding on the New York Thruway shortly after noon on March 28, 1973. The two large-caliber handguns, which together with their ammunition weighed approximately six pounds, were seen through the window of the car by the investigating police officer. They were positioned crosswise in an open handbag on either the front floor or the front seat of the car on the passenger side where Jane Doe was sitting. Jane Doe admitted that the handbag was hers.2 The machineweapon, instrument or appliance is found, except under the following circumstances: “(a) if such weapon, instrument or appliance is found upon the person of one of the occupants therein; (b) if such weapon, instrument or appliance is found in an automobile which is being operated for hire by a duly licensed driver in the due, lawful and proper pursuit of his trade, then such presumption shall not apply to the driver; or (c) if the weapon so found is a pistol or revolver and one of the occupants, not present under duress, has in his possession a valid license to have and carry concealed the same.” In addition to the three exceptions delineated in §§ 265.15 (3) (a)-(c) above as well as the stolen-vehicle and public-omnibus exception in § 265.15 (3) itself, § 265.20 contains various exceptions that apply when weapons are present in an automobile pursuant to certain military, law enforcement, recreational, and commercial endeavors. 2 The arrest was made by two state troopers. One officer approached the driver, advised him that he was going to issue a ticket for speeding, requested identification, and returned to the patrol car. After a radio 144 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. gun and the heroin were discovered in the trunk after the police pried it open. The car had been borrowed from the driver’s brother earlier that day; the key to the trunk could not be found in the car or on the person of any of its occupants, although there was testimony that two of the occupants had placed something in the trunk before embarking in the borrowed car.3 The jury convicted all four of possession of the handguns and acquitted them of possession of the contents of the trunk. Counsel for all four defendants objected to the introduction into evidence of the two handguns, the machinegun, and the drugs, arguing that the State had not adequately demonstrated a connection between their clients and the contraband. The trial court overruled the objection, relying on the pre- check indicated that the driver was wanted in Michigan on a weapons charge, the second officer returned to the vehicle and placed the driver under arrest. Thereafter, he went around to the right side of the car and, in “open view,” saw a portion of a .45-caliber automatic pistol protruding from the open purse on the floor or the seat. People v. Lemmons, 40 N. Y. 2d 505, 508-509, 354 N. E. 2d 836, 838-839 (1976). He opened the car door, removed that gun, and saw a .38-caliber revolver in the same handbag. He testified that the crosswise position of one or both of the guns kept the handbag from closing. After the weapons were secured, the two remaining male passengers, who had been sitting in the rear seat, and Jane Doe were arrested and frisked. A subsequent search at the police station disclosed a pocketknife and marihuana concealed on Jane Doe’s person. Tr. 187-192, 208-214, 277-278, 291-297, 408. 3 Early that morning, the four defendants had arrived at the Rochester, N. Y., home of the driver’s sister in a Cadillac. Using her telephone, the driver called their brother, advised him that “his car ran hot” on the way there from Detroit and asked to borrow the Chevrolet so that the four could continue on to New York City. The brother brought the Chevrolet to the sister’s home. He testified that he had recently cleaned out the trunk and had seen no weapons or drugs. The sister also testified, stating that she saw two of the defendants transfer some unidentified item or items from the trunk of one vehicle to the trunk of the other while both cars were parked in her driveway. Id., at 17-19, 69-73, 115-116, 130-131, 193-194. ULSTER COUNTY COURT v. ALLEN 145 140 Opinion of the Court sumption of possession created by the New York statute. Tr. 474-483. Because that presumption does not apply if a weapon is found “upon the person” of one of the occupants of the car, see n. 1, supra, the three male defendants also moved to dismiss the charges relating to the handguns on the ground that the guns were found on the person of Jane Doe. Respondents made this motion both at the close of the prosecution’s case and at the close of all evidence. The trial judge twice denied it, concluding that the applicability of the “upon the person” exception was a question of fact for the jury. Tr. 544-557, 589-590. At the close of the trial, the judge instructed the jurors that they were entitled to infer possession from the defendants’ presence in the car. He did not make any reference to the “upon the person” exception in his explanation of the statutory presumption, nor did any of the defendants object to this omission or request alternative or additional instructions on the subject. Defendants filed a post-trial motion in which they challenged the constitutionality of the New York statute as applied in this case. The challenge was made in support of their argument that the evidence, apart from the presumption, was insufficient to sustain the convictions. The motion was denied, id., at 775-776, and the convictions were affirmed by the Appellate Division without opinion. People v. Lemmons, 49 App. Div. 2d 639, 370 N. Y. S. 2d 243 (1975). The New York Court of Appeals also affirmed. People v. Lemmons, 40 N. Y. 2d 505, 354 N. E. 2d 836 (1976). It rejected the argument that as a matter of law the guns were on Jane Doe’s person because they were in her pocketbook. Although the court recognized that in some circumstances the evidence could only lead to the conclusion that the weapons were in one person’s sole possession, it held that this record presented a jury question on that issue. Since the defendants had not asked the trial judge to submit the question to the 146 OCTOBER TERM, 1978 Opinion of the Court 442U.S. jury, the Court of Appeals treated the case as though the jury had resolved this fact question in the prosecution’s favor. It therefore concluded that the presumption did apply and that there was sufficient evidence to support the convictions. Id., at 509-512, 354 N. E. 2d, at 839-841. It also summarily rejected the argument that the presumption was unconstitutional as applied in this case. See infra, at 153-154. Respondents filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York contending that they were denied due process of law by the application of the statutory presumption of possession. The District Court issued the writ, holding that respondents had not “deliberately bypassed” their federal claim by their actions at trial and that the mere presence of two guns in a woman’s handbag in a car could not reasonably give rise to the inference that they were in the possession of three other persons in the car. App. to Pet. for Cert. 33ar-36a. The Court of Appeals for the Second Circuit affirmed, but for different reasons. First, the entire panel concluded that the New York Court of Appeals had decided respondents’ constitutional claim on its merits rather than on any independent state procedural ground that might have barred collateral relief. Then, the majority of the court, without deciding whether the presumption was constitutional as applied in this case, concluded that the statute is unconstitutional on its face because the “presumption obviously sweeps within its compass (1) many occupants who may not know they are riding with a gun (which may be out of their sight), and (2) many who may be aware of the presence of the gun but not permitted access to it.”4 Concurring separately, Judge 4The majority continued: “Nothing about a gun, which may be only a few inches in length (e. g., a Baretta or Derringer) and concealed under a seat, in a glove compartment or beyond the reach of all but one of the car’s occupants, assures that its presence is known to occupants who may be hitchhikers or other ULSTER COUNTY COURT v. ALLEN 147 140 Opinion of the Court Timbers agreed with the District Court that the statute was unconstitutional as applied but considered it improper to reach the issue of the statute’s facial constitutionality. 568 F. 2d, at 1011-1012. The petition for a writ of certiorari presented three questions: (1) whether the District Court had jurisdiction to entertain respondents’ claim that the presumption is unconstitutional; (2) whether it was proper for the Court of Appeals to decide the facial constitutionality issue; and (3) whether the application of the presumption in this case is unconstitutional. We answer the first question in the affirmative, the second two in the negative. We accordingly reverse. I This is the sixth time that respondents have asked a court to hold that it is unconstitutional for the State to rely on the presumption because the evidence is otherwise insufficient to convict them.® No court has refused to hear the claim or casual passengers, much less that they have any dominion or control over it.” 568 F. 2d, at 1007. 5 Respondents first made the argument in a memorandum of law in support of their unsuccessful post-trial motion to set aside the verdict. App. 36a-38a. That memorandum framed the argument in three parts precisely as respondents would later frame it in their briefs in the Appellate Division and Court of Appeals, see id., at 41a-44a, 50a-52a, and in their petition for a writ of habeas corpus. See id., at 6a-10a: First, “[t]he only evidence” relied upon to convict them was their presence in an automobile in which the two handguns were found. Id., at 35a. Second, but for the presumption of possession, this evidence was “totally insufficient to sustain the conviction.” Id., at 38a. And third, that presumption is “unconstitutional as applied” (or, “ ‘arbitrary,’ and hence unconstitutional”) under Leary v. United States, 395 U. S. 6, 36, a case in which this Court established standards for determining the validity under the Due Process Clauses of statutory presumptions in criminal cases. App. 36a. This sufficiency-focused argument on the presumption is amply supported in our case law. E. g., Turner v. United States, 396 U. S. 398, 424 (“[A] conviction resting on [an unconstitutional] presump- 148 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. suggested that it was improperly presented. Nevertheless, because respondents made it for the first time only after the jury had announced its verdict, and because the state courts were less than explicit in their reasons for rejecting it, the question arises whether the New York courts did so on the basis of an independent and adequate state procedural ground that bars the federal courts from addressing the issue on habeas corpus.6 See Wainwright v. Sykes, 433 U. S. 72; Fay tion cannot be deemed a conviction based on sufficient evidence”). See also Rossi v. United States, 289 U. S. 89, 90. Although respondents’ memorandum did not cite the provision of the Constitution on which they relied, their citation of our leading case applying that provision, in conjunction with their use of the word “unconstitutional,” left no doubt that they were making a federal constitutional argument. Indeed, by its responses to that argument at every step of the way, the State made clear that it, at least, understood the federal basis for the claim. E. g., Respondent’s Brief and Appendix in the Court of Appeals of the State of New York, p. 9. 6 Petitioners contend that, in addition to the timing of respondents’ claim and the alleged silence of the New York courts, there is another basis for concluding that those courts rejected respondents’ claim on procedural grounds. Petitioners point out that respondents—having unsuccessfully argued to the trial court (as they would unsuccessfully argue on appeal) that the “upon the person” exception applied as a matter of law in their case—failed either to ask the trial court to instruct the jury to consider the exceptions or to object when the court omitted the instruction. They further point out that the majority of the New York Court of Appeals, after concluding that the exception’s application was a jury question in this case, refused to review the trial court’s omission of an instruction on the issue because of respondents’ failure to protest that omission. 40 N. Y. 2d, at 512, 354 N. E. 2d, at 841. Petitioners argue that we should infer from the Court of Appeals’ explicit treatment of this state-law claim—a claim never even pressed on appeal—how that court implicitly treated the federal claim that has been the crux of respondents’ litigation strategy from its post-trial motion to the present. There is no basis for the inference. Arguing on appeal that an instruction that was never requested should have been given is far more disruptive to orderly judicial proceedings than arguing in a post-trial motion that the evidence was insufficient to support the verdict. Moreover, that the Court of Appeals felt compelled expressly to reject, on ULSTER COUNTY COURT v. ALLEN 149 140 Opinion of the Court v. Nola, 372 U. S. 391, 438. We conclude that there is no support in either the law of New York or the history of this litigation for an inference that the New York courts decided respondents’ constitutional claim on a procedural ground, and that the question of the presumption’s constitutionality is therefore properly before us. See Franks v. Delaware, 438 U. S. 154, 161-162; Mullaney v. Wilbur, 421 U. S. 684, 704-705, and n. (Rehnquist, J., concurring).7 procedural grounds, an argument never made is hardly proof that they would silently reject on similar grounds an argument that was forcefully made. As we discuss, infra, at 153-154, it is clear that the court did address the constitutional question and did so on the merits, albeit summarily. Petitioners also contend that respondents, having failed to seek a jury determination based on state law that the presumption does not apply, may not now argue that the presumption is void as a matter of federal constitutional law. The argument is unpersuasive. Respondents’ failure to demand an instruction on the state-law exception is no more and no less than a concession on their part that as a matter of state law the guns were not found “upon the person” of any occupant of the car as that phrase is interpreted by the New York courts, and therefore, again as a matter of state law, that the presumption of possession is applicable. The New York Court of Appeals reviewed the case in that posture, and we do the same. 7 Petitioners advance a second reason why there is no federal jurisdiction in this case. Respondents were convicted on the basis of a statutory presumption they argue is unconstitutional. Following the Court of Appeals’ affirmance of their conviction, they could have appealed that decision to this Court under 28 U. S. C. § 1257 (2) and thereby forced a binding federal disposition of the matter. Because respondents failed to do so, petitioners argue that respondents waived any right to federal review of the decision on habeas corpus. In Fay v. Noia, 312 U. S. 391, 435-438, we rejected a similar argument that habeas corpus review was unavailable in advance of a petition for certiorari. See also Stevens v. Marks, 383 U. S. 234, in which the Court entertained a challenge to a state statute in a federal habeas corpus proceeding even though the defendant had not pursued that challenge on appeal to this Court prior to filing his petition for habeas corpus. The analysis of the federal habeas statute that led us to our conclusion in Fay is equally applicable in the present situation. That statute gives 150 OCTOBER TERM, 1978 Opinion of the Court 442U.S. New York has no clear contemporaneous-objection policy that applies in this case.8 No New York court, either in this litigation or in any other case that we have found, has ever expressly refused on contemporaneous-objection grounds to consider a post-trial claim such as the one respondents made. Cf. Wainwright v. Sykes, supra, at 74. Indeed, the rule in New York appears to be that “insufficiency of the evidence” claims may be raised at any time until sentence has been federal courts jurisdiction to “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” if that custody allegedly violates “the Constitution or laws or treaties of the United States.” 28 U. S. C. § 2254 (a). The only statutory exception to this jurisdiction arises when the petitioner has failed to exhaust “the remedies available in the courts of the State.” § 2254 (b). As was said in Fay with regard to petitions for certiorari under 28 U. S. C. § 1257 (3), direct appeals to this Court under § 1257 (2) are not “ 'remedies available in the courts of the State.’ ” 372 U. S., at 436. Accordingly, there is no statutory requirement of an appeal to this Court as a predicate to habeas jurisdiction. 8 New York’s cautious contemporaneous-objection policy is embodied in N. Y. Crim. Proc. Law §470.05 (2) (McKinney 1971): “For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same?’ (emphasis added). That policy is carefully limited by several statutory qualifications in addition to the one italicized above. First, the form of the “protest” is not controlling so long as its substance is clear. Ibid. Second, such protests may be made “expressly or impliedly.” Ibid. Third, once a protest is made, it need not be repeated at each subsequent disposition of the matter. Ibid. And finally, the Appellate Division of the New York Supreme Court is authorized in its discretion to “consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant,” even if not previously objected to. §470.15 (1). See, e. g., People v. Fragale, 60 App. Div. 2d 972, 401 N. Y. S. 2d 629 (1978); People v. Travison, 59 App. Div. 2d 404, 408, 400 N. Y. S. 2d 188, 191 (1977) . ULSTER COUNTY COURT v. ALLEN 151 140 Opinion of the Court imposed.9 Moreover, even if New York’s contemporaneous-objection rule did generally bar the type of postverdict insufficiency claim that respondents made, there are at least two judicially created exceptions to that rule that might nonetheless apply in this case.10 9E. g., People n. Ramos, 33 App. Div. 2d 344, 308 N. Y. S. 2d 195 (1970); People v. Walker, 26 Mise. 2d 940, 206 N. Y. S. 2d 377 (1960). Cf. Fed. Rule Crim. Proc. 29 (c) (“It shall not be necessary to the making of [a motion for judgment of acquittal] that a similar motion has been made prior to the submission of the case to the jury”); Burks v. United States, 437 U. S. 1, 17-18 (under federal law a post-trial motion for a new trial based on insufficiency of the evidence is not a waiver of the right to acquittal at that point if the evidence is found to be insufficient). 10 First, the New York Court of Appeals has developed an exception to the State’s contemporaneous-objection policy that allows review of unob-jected-to errors that affect “a fundamental constitutional right.” People N. McLucas, 15 N. Y. 2d 167, 172, 204 N. E. 2d 846, 848 (1965). Accord, People v. Arthur, 22 N. Y. 2d 325, 239 N. E. 2d 537 (1968); People n. DeRenzzio, 19 N. Y. 2d 45, 224 N. E. 2d 97 (1966). Indeed, this Court recognized that exception in concluding that an ambiguously presented federal claim had been properly raised in New York trial and appellate courts and was therefore cognizable by this Court on appeal. Street v. New York, 394 U. S. 576, 583-584. Although this exception has been narrowed more recently, e. g., People n. Robinson, 36 N. Y. 2d 224, 326 N. E. 2d 784 (1975), it continues to have currency within the State where there has been a denial of a “fair trial.” E. g., La Rocca v. Lane, 37 N. Y. 2d 575, 584, 338 N. E. 2d 606, 613 (1975); People v. Bennett, 29 N. Y. 2d 462, 467, 280 N. E. 2d 637, 639 (1972); People v. White, 86 Mise. 2d 803, 809, 383 N. Y. S. 2d 800, 804 (1976). The relevance of this exception is apparent from the Second Circuit opinion in this case which held that respondents “were denied a fair trial when the jury was charged that they could rely on the presumption . . . .” 568 F. 2d, at 1011. Second, the New York courts will also entertain a federal constitutional claim on appeal even though it was not expressly raised at trial if a similar claim seeking similar relief was clearly raised. E. g., People v. De Bour, 40 N. Y. 2d 210, 214-215, 352 N. E. 2d 562, 565-566 (1976); People v. Robbins, 38 N. Y. 2d 913, 346 N. E. 2d 815 (1976); People v. Arthur, supra. Cf. United States v. Mauro, 436 U. S. 340, 364-365 (failure to invoke Interstate Agreement on Detainers time limit in a speedy trial motion is not a waiver of the former argument). In this case, respondents made two arguments based on the unavailability of the presumption and the conse- 152 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. The conclusion that the New York courts did not rely on a state procedural ground in rejecting respondents’ constitutional claim is supported, not only by the probable unavailability in New York law of any such ground, but also by three aspects of this record. First, the prosecution never argued to any state court that a procedural default had occurred. This omission surely suggests that the New York courts were not thinking in procedural terms when they decided the issue. Indeed, the parties did not even apprise the appellate courts of the timing of respondents’ objection to the presumption; a procedural default would not have been discovered, therefore, unless those courts combed the transcript themselves. If they did so without any prompting from the parties and based their decision on what they found, they surely would have said so. Second, the trial court ruled on the merits when it denied respondents’ motion to set aside the verdict. Tr. 775-776. Because it was not authorized to do so unless the issue was preserved for appeal, the trial court implicitly decided that quent total absence, in their view, of proof of the crime. The first, that the statutory “upon the person” exception to the presumption should apply in this case, was made in the middle of trial at the close of the prosecutor’s case and then repeated at the close of the defendants’ case. Tr. 554-590; App. 12a-17a. Indeed, respondents arguably made this claim even earlier, during the middle of the government’s case, when they unsuccessfully objected to the introduction of the handguns in evidence on the ground that there was “nothing [in the record up to that point] to connect this weapon with the . . . defendants.” Tr. 474-502. Although the constitutional counterpart to this argument was not made until just after the verdict was announced, the earlier objection to the State’s reliance on the presumption might suffice under these cases as an adequate contemporaneous objection. See N. Y. Crim. Proc. Law § 470.05 (2) (McKinney 1971); n. 8, supra. The logical linkage between the two objections is suggested by legislative history and case law in New York indicating that the “upon the person” exception was included in the presumption statute to avoid constitutional problems. See People v. Logan, 94 N. Y. S. 2d 681, 684 (Sup. Ct., 1949); Report of the New York State Joint Legislative Committee on Firearms and Ammunition, N. Y. Leg. Doc. No. 29, p. 21 (1962). ULSTER COUNTY COURT v. ALLEN 153 140 Opinion of the Court there was no procedural default.11 The most logical inference to be drawn from the Appellate Division’s unexplained affirmance is that that court accepted not only the judgment but also the reasoning of the trial court. Third, it is apparent on careful examination that the New York Court of Appeals did not ignore respondents’ constitutional claim in its opinion. Instead, it summarily rejected the claim on its merits. That court had been faced with the issue in several prior cases and had always held the presumption constitutional. Indeed, the State confined its brief on the subject in the Court of Appeals to a string citation of some of those cases. Respondent’s Brief in the Court of Appeals, p. 9. It is not surprising, therefore, that the Court of Appeals confined its discussion of the issue to a reprise of the explanation that its prior cases have traditionally given for the statute in holding it constitutional and a citation of two of those cases. 40 N. Y. 2d, at 509-511, 354 N. E. 2d, at 839-840, citing People v. McCaleb, 25 N. Y. 2d 394, 255 N. E. 2d 136 (1969); People v. Leyva, 38 N. Y. 2d 160, 341 N. E. 2d 546 (1975). Although it omits the word “constitutional,” the most logical interpretation of this discussion is that it was intended as a passing and summary disposition of an issue that had already been decided on numerous occasions. This interpretation is borne out by the fact that the dissenting members of the Court of Appeals unequivocally addressed the merits of the constitutional claim12 and by the fact that three Second Circuit Judges, whose experience with New York 11 Section 330.30 (1) of the N. Y. Crim. Proc. Law (McKinney 1971) authorizes a trial court to grant a motion to set aside the verdict “[a]t any time after rendition of a verdict of guilty and before sentence” on “[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.” 12 40 N. Y. 2d, at 514-515, 354 N. E. 2d, at 842-843 (Wachtler, J., concurring and dissenting); id., at 516, 354 N. E. 2d, at 843-844 (Fuchsberg, J., concurring and dissenting). 154 OCTOBER TERM, 1978 Opinion of the Court 442U.S. practice is entitled to respect, concluded that the State’s highest court had decided the issue on its merits. 568 F. 2d, at 1000. See Bishop n. Wood, 426 U. S. 341, 345-346; Huddleston v. Dwyer, 322 U. S. 232, 237. Our conclusion that it was proper for the federal courts to address respondents’ claim is confirmed by the policies informing the “adequate state ground” exception to habeas corpus jurisdiction. The purpose of that exception is to accord appropriate respect to the sovereignty of the States in our federal system. Wainwright v. Sykes, 433 U. S., at 88. But if neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim.13 II Although 28 U. S. C. § 2254 authorizes the federal courts to entertain respondents’ claim that they are being held in custody in violation of the Constitution, it is not a grant of power to decide constitutional questions not necessarily subsumed within that claim. Federal courts are courts of limited jurisdiction. They have the authority to adjudicate specific controversies between adverse litigants over which and over whom they have jurisdiction. In the exercise of that authority, they have a duty to decide constitutional questions when necessary to dispose of the litigation before them. But they have an equally strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration. E. g., New York Transit Authority v. Beazer, 440 U. S. 568, 582-583. A party has standing to challenge the constitutionality of 13 Moreover, looking beyond its position as an adversary in this litigation, it is arguable that the State of New York will benefit from an authoritative resolution of the conflict between its own courts and the federal courts sitting in New York concerning the constitutionality of one of its statutes. ULSTER COUNTY COURT v. ALLEN 155 140 Opinion of the Court a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations. Broadrick v. Oklahoma, 413 U. S. 601, 610 (and cases cited). A limited exception has been recognized for statutes that broadly prohibit speech protected by the First Amendment. Id., at bll-616. This exception has been justified by the overriding interest in removing illegal deterrents to the exercise of the right of free speech. E. g., Gooding v. Wilson, 405 U. S. 518, 520; Dombrowski v. Pfister, 380 U. S. 479, 486. That justification, of course, has no application to a statute that enhances the legal risks associated with riding in vehicles containing dangerous weapons. In this case, the Court of Appeals undertook the task of deciding the constitutionality of the New York statute “on its face.” Its conclusion that the statutory presumption was arbitrary rested entirely on its view of the fairness of applying the presumption in hypothetical situations—situations, indeed, in which it is improbable that a jury would return a conviction,14 or that a prosecution would ever be insti 14 Indeed, in this very case the permissive presumptions in § 265.15 (3) and its companion drug statute, N. Y. Penal Law §220.25 (1) (McKinney Supp. 1978), were insufficient to persuade the jury to convict the defendants of possession of the loaded machinegun and heroin in the trunk of the car notwithstanding the supporting testimony that at least two of them had been seen transferring something into the trunk that morning. See n. 3, supra. The hypothetical, even implausible, nature of the situations relied upon by the Court of Appeals is illustrated by the fact that there are no reported cases in which the presumption led to convictions in circumstances even remotely similar to the posited situations. In those occasional cases in which a jury has reached a guilty verdict on the basis of evidence insufficient to justify an inference of possession from presence, the New York appellate courts have not hesitated to reverse. E. g., People n. 156 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. tuted.15 We must accordingly inquire whether these respondents had standing to advance the arguments that the Court of Appeals considered decisive. An analysis of our prior cases indicates that the answer to this inquiry depends on the type of presumption that is involved in the case. Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime— that is, an “ultimate” or “elemental” fact—from the existence of one or more “evidentiary” or “basic” facts. E. g., Barnes v. United States, 412 IT. S. 837, 843-844; Tot v. United States, 319 U. S. 463, 467; Mobile, J. & K. C. R. Co. v. Turnipseed, 219 IT. S. 35, 42. The value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder’s freedom to assess the evidence independently. Nonetheless, in criminal cases, the ultimate test of any device’s constitutional validity in a given case remains constant: the device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate’facts beyond a reasonable doubt. See In re Winship, 397 U. S. 358, 364; Mullaney v. Wilbur, 421 IT. S., at 702-703, n. 31. Scott, 53 App. Div. 2d 703, 384 N. Y. S. 2d 878 (1976); People v. Garcia, 41 App. Div. 2d 560, 340 N. Y. S. 2d 35 (1973). In light of the improbable character of the situations hypothesized by the Court of Appeals, its facial analysis would still be unconvincing even were that type of analysis appropriate. This Court has never required that a presumption be accurate in every imaginable case. See Leary v. United States, 395 U. S., at 53. 15 See n. 4, supra, and accompanying text. Thus, the assumption that it would be unconstitutional to apply the statutory presumption to a hitchhiker in a car containing a concealed weapon does not necessarily advance the constitutional claim of the driver of a car in which a gun was found on the front seat, or of other defendants in entirely different situations. ULSTER COUNTY COURT v. ALLEN 157 140 Opinion of the Court The most common evidentiary device is the entirely permissive inference or presumption, which allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. See, e. g., Barnes v. United States, supra, at 840 n. 3. In that situation the basic fact may constitute prima facie evidence of the elemental fact. See, e. g., Turner v. United States, 396 U. S. 398, 402 n. 2. When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. E. g., Barnes v. United States, supra, at 845; Turner v. United States, supra, at 419-424. See also United States n. Gainey, 380 U. S. 63, 67-68, 69-70. Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the “beyond a reasonable doubt” standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination. A mandatory presumption is a far more troublesome evidentiary device. For it may affect not only the strength of the “no reasonable doubt” burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. E. g., Turner v. United States, supra, at 401-402, and n. 1; Leary n. United States, 395 U. S. 6, 30; United States n. Romano, 382 U. S. 136, 137, and n. 4, 138, 143; Tot N. United States, supra, at 469.16 In this situation, the Court 16 This class of more or less mandatory presumptions can be subdivided into two parts: presumptions that merely shift the burden of production to 158 OCTOBER TERM, 1978 Opinion of the Court 442U.S. has generally examined the presumption on its face to determine the extent to which the basic and elemental facts coincide. E. g., Turner v. United States, supra, at 408-418; Leary N. the defendant, following the satisfaction of which the ultimate burden of persuasion returns to the prosecution; and presumptions that entirely shift the burden of proof to the defendant. The mandatory presumptions examined by our cases have almost uniformly fit into the former subclass, in that they never totally removed the ultimate burden of proof beyond a reasonable doubt from the prosecution. E. g., Tot v. United States, 319 U. S., at 469. See Roviaro v. United States, 353 U. S. 53, 63, describing the operation of the presumption involved in Turner, Leary, and Romano. To the extent that a presumption imposes an extremely low burden of production—e. g., being satisfied by “any” evidence—it may well be that its impact is no greater than that of a permissive inference, and it may be proper to analyze it as such. See generally Mullaney v. Wilbur, 421 U. S. 684, 703 n. 31. In deciding what type of inference or presumption is involved in a case, the jury instructions will generally be controlling, although their interpretation may require recourse to the statute involved and the cases decided under it. Turner v. United States provides a useful illustration of the different types of presumptions. It analyzes the constitutionality of two different presumption statutes (one mandatory and one permissive) as they apply +o the basic fact of possession of both heroin and cocaine, and the presumed facts of importation and distribution of narcotic drugs. The jury was charged essentially in the terms of the two statutes. The importance of focusing attention on the precise presentation of the presumption to the jury and the scope of that presumption is illustrated by a comparison of United States v. Gainey, 380 U. S. 63, with United States v. Romano. Both cases involved statutory presumptions based on proof that the defendant was present at the site of an illegal still. In Gainey the Court sustained a conviction “for carrying on” the business of the distillery in violation of 26 U. S. C. §5601 (a)(4), whereas in Romano, the Court set aside a conviction for being in “possession, or custody, or . . . control” of such a distillery in violation of § 5601 (a) (1). The difference in outcome was attributable to two important differences between the cases. Because the statute involved in Gainey was a sweeping prohibition of almost any activity associated with the still, whereas the Romano statute involved only one narrow aspect of the total ULSTER COUNTY COURT v. ALLEN 159 140 Opinion of the Court United States, supra, at 45-52; United States v. Romano, supra, at 140-141; Tot v. United States, 319 U. 8., at 468. To the extent that the trier of fact is forced to abide by the presumption, and may not reject it based on an independent evaluation of the particular facts presented by the State, the analysis of the presumption’s constitutional validity is logically divorced from those facts and based on the presumption’s accuracy in the run of cases.17 It is for this reason that the undertaking, there was a much higher probability that mere presence could support an inference of guilt in the former case than in the latter. Of perhaps greater importance, however, was the difference between the trial judge’s instructions to the jury in the two cases. In Gainey, the judge had explained that the presumption was permissive; it did not require the jury to convict the defendant even if it was convinced that he was present at the site. On the contrary, the instructions made it clear that presence was only “ ‘a circumstance to be considered along with all the other circumstances in the case.’ ” As we emphasized, the “jury was thus specifically told that the statutory inference was not conclusive.” 380 U. S., at 69-70. In Romano, the trial judge told the jury that the defendant’s presence at the still “ 'shall be deemed sufficient evidence to authorize conviction.’ ” 382 U. S., at 138. Although there was other evidence of guilt, that instruction authorized conviction even if the jury disbelieved all of the testimony except the proof of presence at the site. This Court’s holding that the statutory presumption could not support the Romano conviction was thus dependent, in part, on the specific instructions given by the trial judge. Under those instructions it was necessary to decide whether, regardless of the specific circumstances of the particular case, the statutory presumption adequately supported the guilty verdict. 17 In addition to the discussion of Romano in n. 16, supra, this point is illustrated by Leary n. United States. In that case, Dr. Timothy Leary, a professor at Harvard University, was stopped by customs inspectors in Laredo, Tex., as he was returning from the Mexican side of the international border. Marihuana seeds and a silver snuffbox filled with semirefined marihuana and three partially smoked marihuana cigarettes were discovered in his car. He was convicted of having knowingly transported marihuana which he knew had been illegally imported into this country in violation of 21 U. S. C. § 176a (1964 ed.). That statute included a mandatory presumption: “possession shall be deemed sufficient evidence to authorize conviction [for importation] unless the defend- 160 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. Court has held it irrelevant in analyzing a mandatory presumption, but not in analyzing a purely permissive one, that there is ample evidence in the record other than the presumption to support a conviction. E. g., Turner v. United States, 396 U. S., at 407; Leary v. United States, 395 U. S., at 31-32; United States n. Romano, 382 U. S., at 138-139. Without determining whether the presumption in this case was mandatory,18 the Court of Appeals analyzed it on its face as if it were. In fact, it was not, as the New York Court of Appeals had earlier pointed out. 40 N. Y. 2d, at 510-511, 354 N. E. 2d, at 840. The trial judge’s instructions make it clear that the presumption was merely a part of the prosecution’s case,19 that ant explains his possession to the satisfaction of the jury.” Leary admitted possession of the marihuana and claimed that he had carried it from New York to Mexico and then back. Mr. Justice Harlan for the Court noted that under one theory of the case, the jury could have found direct proof of all of the necessary elements of the offense without recourse to the presumption. But he deemed that insufficient reason to affirm the conviction because under another theory the jury might have found knowledge of importation on the basis of either direct evidence or the presumption, and there was accordingly no certainty that the jury had not relied on the presumption. 395 U. S., at 31-32. The Court therefore found it necessary to test the presumption against the Due Process Clause. Its analysis was facial. Despite the fact that the defendant was well educated and had recently traveled to a country that is a major exporter of marihuana to this country , the Court found the presumption of knowledge of importation from possession irrational. It did so, not because Dr. Leary was unlikely to know the source of the marihuana, but instead because “a majority of possessors” were unlikely to have such knowledge. Id., at 53. Because the jury had been instructed to rely on the presumption even if it did not believe the Government’s direct evidence of knowledge of importation (unless, of course, the defendant met his burden of “satisfying” the jury to the contrary), the Court reversed the conviction. 18 Indeed, the court never even discussed the jury instructions. 19 “It is your duty to consider all the testimony in this case, to weigh it carefully and to test the credit to be given to a witness by his apparent intention to speak the truth and by the accuracy of his memory to recon- ULSTER COUNTY COURT v. ALLEN 161 140 Opinion of the Court it gave rise to a permissive inference available only in certain circumstances, rather than a mandatory conclusion of possession, and that it could be ignored by the jury even if there was no affirmative proof offered by defendants in rebuttal.20 The judge explained that possession could be actual or constructive, but that constructive possession could not exist without the intent and ability to exercise control or dominion over the weapons.21 He also carefully instructed the jury that cile, if possible, conflicting statements as to material facts and in such ways to try and get at the truth and to reach a verdict upon the evidence.” Tr. 739-740. “To establish the unlawful possession of the weapons, again the People relied upon the presumption and, in addition thereto, the testimony of Anderson and Lemmons who testified in their case in chief.” Id., at 744. “Accordingly, you would be warranted in returning a verdict of guilt against the defendants or defendant if you find the defendants or defendant was in possession of a machine gun and the other weapons and that the fact of possession was proven to you by the People beyond a reasonable doubt, and an element of such proof is the reasonable presumption of illegal possession of a machine gun or the presumption of illegal possession of firearms, as I have just before explained to you.” Id., at 746. 20 “Our Penal Law also provides that the presence in an automobile of any machine gun or of any handgun or firearm which is loaded is presumptive evidence of their unlawful possession. “In other words, these presumptions or this latter presumption upon proof of the presence of the machine gun and the hand weapons, you may infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found. The presumption or presumptions is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced.” Id., at 743. “The presumption or presumptions which I discussed with the jury relative to the drugs or weapons in this case need not be rebutted by affirmative proof or affirmative evidence but may be rebutted by any evidence or lack of evidence in the case.” Id., at 760. 21 “As so defined, possession means actual physical possession, just as having the drugs or weapons in one’s hand, in one’s home or other place under one’s exclusive control, or constructive possession which may exist 162 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. there is a mandatory presumption of innocence in favor of the defendants that controls unless it, as the exclusive trier of fact, is satisfied beyond a reasonable doubt that the defendants possessed the handguns in the manner described by the judge.22 In short, the instructions plainly directed the jury to consider all the circumstances tending to support or contradict the inference that all four occupants of the car had possession of the two loaded handguns and to decide the matter for itself without regard to how much evidence the defendants introduced.23 Our cases considering the validity of permissive statutory presumptions such as the one involved here have rested on without personal dominion over the drugs or weapons but with the intent and ability to retain such control or dominion.” Id., at 742. 22 “[Y]ou are the exclusive judges of all the questions of fact in this case. That means that you are the sole judges as to the weight to be given to the evidence and to the weight and probative value to be given to the testimony of each particular witness and to the credibility of any witness.” Id., at 730. “Under our law, every defendant in a criminal trial starts the trial with the presumption in his favor that he is innocent, and this presumption follows him throughout the entire trial and remains with him until such time as you, by your verdict, find him or her guilty beyond a reasonable doubt or innocent of the charge. If you find him or her not guilty, then, of course, this presumption ripens into an established fact. On the other hand, if you find him or her guilty, then this presumption has been overcome and is destroyed.” Id., at 734. “Now, in order to find any of the defendants guilty of the unlawful possession of the weapons, the machine gun, the .45 and the .38, you must be satisfied beyond a reasonable doubt that the defendants possessed the machine gun and the .45 and the .38, possessed it as I defined it to you before.” Id., at 745. 23 The verdict announced by the jury clearly indicates that it understood its duty to evaluate the presumption independently and to reject it if it was not supported in the record. Despite receiving almost identical instructions on the applicability of the presumption of possession to the contraband found in the front seat and in the trunk, the jury convicted all four defendants of possession of the former but acquitted all of them of possession of the latter. See n. 14, supra. ULSTER COUNTY COURT v. ALLEN 163 140 Opinion of the Court an evaluation of the presumption as applied to the record before the Court. None suggests that a court should pass on the constitutionality of this kind of statute “on its face.” It was error for the Court of Appeals to make such a determination in this case. Ill As applied to the facts of this case, the presumption of possession is entirely rational. Notwithstanding the Court of Appeals’ analysis, respondents were not “hitchhikers or other casual passengers,” and the guns were neither “a few inches in length” nor “out of [respondents’] sight.” See n. 4, supra, and accompanying text. The argument against possession by any of the respondents was predicated solely on the fact that the guns were in Jane Doe’s pocketbook. But several circumstances—which, not surprisingly, her counsel repeatedly emphasized in his questions and his argument, e. g., Tr. 282-283, 294-297, 306—made it highly improbable that she was the sole custodian of those weapons. Even if it was reasonable to conclude that she had placed the guns in her purse before the car was stopped by police, the facts strongly suggest that Jane Doe was not the only person able ’to exercise dominion over them. The two guns were too large to be concealed in her handbag.24 The bag was consequently open, and part of one of the guns was in plain view, within easy access of the driver of the car and even, perhaps, of the other two respondents who were riding in the rear seat.25 Moreover, it is highly improbable that the loaded guns belonged to Jane Doe or that she was solely responsible for their being in her purse. As a 16-year-old girl in the company of three adult men she was the least likely of the four 24 Jane Doe’s counsel referred to the .45-caliber automatic pistol as a “cannon.” Tr. 306. 25 The evidence would have allowed the jury to conclude either that the handbag was on the front floor or front seat. 164 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. to be carrying one, let alone two, heavy handguns. It is far more probable that she relied on the pocketknife found in her brassiere for any necessary self-protection. Under these circumstances, it was not unreasonable for her counsel to argue and for the jury to infer that when the car was halted for speeding, the other passengers in the car anticipated the risk of a search and attempted to conceal their weapons in a pocketbook in the front seat. The inference is surely more likely than the notion that these weapons were the sole property of the 16-year-old girl. Under these circumstances, the jury would have been entirely reasonable in rejecting the suggestion—which, incidentally, defense counsel did not even advance in their closing arguments to the jury26—that the handguns were in the sole possession of Jane Doe. Assuming that the jury did reject it, the case is tantamount to one in which the guns were lying on the floor or the seat of the car in the plain view of the three other occupants of the automobile. In such a case, it is surely rational to infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over 26 Indeed, counsel for two of the respondents virtually invited the jury to find to the contrary: “One more thing. You know, different people live in different cultures and different societies. You may think that the way [respondent] Hard-rick has his hair done up is unusual; it may seem strange to you. People live differently. ... For example, if you were living under their times and conditions and you traveled from a big city, Detroit, to a bigger city, New York City, it is not unusual for people to carry guns, small arms to protect themselves, is it? There are places in New York City policemen fear to go. But you have got to understand; you are sitting here as jurors. These are people, live flesh and blood, the same as you, different motives, different objectives.” Id., at 653-654 (emphasis added). See also id., at 634. It is also important in this regard that respondents passed up the opportunity to have the jury instructed not to apply the presumption if it determined that the handguns were “upon the person” of Jane Doe. ULSTER COUNTY COURT v. ALLEN 165 140 Opinion of the Court the weapons. The application of the statutory presumption in this case therefore comports with the standard laid down in Tot v. United States, 319 U. 8., at 467, and restated in Leary v. United States, 395 U. 8., at 36. For there is a “rational connection” between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is “more likely than not to flow from” the former.27 27 The New York Court of Appeals first upheld the constitutionality of the presumption involved in this case in People n. Russo, 303 N. Y. 673, 102 N. E. 2d 834 (1951). That decision relied upon the earlier case of People v. Terra, 303 N. Y. 332, 102 N. E. 2d 576 (1951), which upheld the constitutionality of another New York statute that allowed a jury to presume that the occupants of a room in which a firearm was located possessed the weapon. The analysis in Terra, the appeal in which this Court dismissed for want of a substantial federal question, 342 U. S. 938, is persuasive: “[T]here can be no doubt about the 'sinister significance’ of proof of a machine gun in a room occupied by an accused or about the reasonableness of the connection between its illegal possession and occupancy of the room where it is kept. Persons who occupy a room, who either reside in it or use it in the conduct and operation of a business or other venture— and that is what in its present context the statutory term 'occupying’ signifies . . .—normally know what is in it; and, certainly, when the object is as large and uncommon as a machine gun, it is neither unreasonable nor unfair to presume that the room’s occupants are aware of its presence. That being so, the legislature may not be considered arbitrary if it acts upon the presumption and erects it into evidence of a possession that is 'conscious’ and 'knowing.’ ” 303 N. Y., at 335-336, 102 N. E. 2d, at 578-579. See also Interim Report of Temporary State Commission to Evaluate the Drug Laws, N. Y. Leg. Doc. No. 10, p. 69 (1972), in which the drafters of the analogous automobile/narcotics presumption in N. Y. Penal Law § 220.25 (McKinney Supp. 1978), explained the basis for that presumption: “We believe, and find, that it is rational and logical to presume that all occupants of a vehicle are aware of, and culpably involved in, possession of dangerous drugs found abandoned or secreted in a vehicle when the quantity of the drug is such that it would be extremely unlikely for an occupant to be unaware of its presence. . . . “We do not believe that persons transporting dealership quantities of contraband are likely to go driving about with innocent friends or that 166 OCTOBER TERM, 1978 Opinion of the Court 442 U. 8. Respondents argue, however, that the validity of the New York presumption must be judged by a “reasonable doubt” test rather than the “more likely than not” standard employed in Leary.28 Under the more stringent test, it is argued that a statutory presumption must be rejected unless the evidence necessary to invoke the inference is sufficient for a rational jury to find the inferred fact beyond a reasonable doubt. See Barnes n. United States, 412 U. S., at 842-843. Respondents’ argument again overlooks the distinction between a permissive presumption on which the prosecution is entitled to rely as one not necessarily sufficient part of its proof and a mandatory presumption which the jury must accept even if it is the sole evidence of an element of the offense.29 they are likely to pick up strangers. We do not doubt that this can and does in fact occasionally happen, but because we find it more reasonable to believe that the bare presence in the vehicle is culpable, we think it reasonable to presume culpability in the direction which the proven facts already point. Since the presumption is an evidentiary one, it may be offset by any evidence, including the testimony of the defendant, which would negate the defendant’s culpable involvement.” Legislative judgments such as this one deserve respect in assessing the constitutionality of evidentiary presumptions. E. g., Leary n. United States, 395 U. 8., at 39; United States v. Gainey, 380 U. 8., at 67. 28 “The upshot of Tot, Gainey, and Romano is, we think, that a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” 395 U. S., at 36. 29 The dissenting argument rests on the assumption that “the jury [may have] rejected all of the prosecution’s evidence concerning the location and origin of the guns.” Post, at 175-176. Even if that assumption were plausible, the jury was plainly told that it was free to disregard the presumption. But the dissent’s assumption is not plausible; for if the jury rejected the testimony describing where the guns were found, it would necessarily also have rejected the only evidence in the record proving that the guns were found in the car. The conclusion that the jury attached significance to the particular location of the handguns follows inexorably from the acquittal on the charge of possession of the machinegun and heroin in the trunk. ULSTER COUNTY COURT v. ALLEN 167 140 Burger, C. J., concurring In the latter situation, since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt. But in the former situation, the prosecution may rely on all of the evidence in the record to meet the reasonable-doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable-doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted. As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test described in Leary. The permissive presumption, as used in this case, satisfied the Leary test. And, as already noted, the New York Court of Appeals has concluded that the record as a whole was sufficient to establish guilt beyond a reasonable doubt. The judgment is reversed. So ordered. Mr. Chief Justice Burger, concurring. I join fully in the Court’s opinion reversing the judgment under review. In the necessarily detailed step-by-step analysis of the legal issues, the central and controlling facts of a case often can become lost. The “underbrush” of finely tuned legal analysis of complex issues tends to bury the facts. On this record, the jury could readily have reached the same result without benefit of the challenged statutory presumption ; here it reached what was rather obviously a compromise verdict. Even without relying on evidence that two people had been seen placing something in the car trunk shortly before respondents occupied it, and that a machinegun and a package of heroin were soon after found in that trunk, the jury apparently decided that it was enough to hold the passengers to knowledge of the two handguns which were in 168 OCTOBER TERM, 1978 Powell, J., dissenting 442U.S. such plain view that the officer could see them from outside the car. Reasonable jurors could reasonably find that what the officer could see from outside, the passengers within the car could hardly miss seeing. Courts have long held that in the practical business of deciding cases the factfinders, not unlike negotiators, are permitted the luxury of verdicts reached by compromise. Mr. Justice Powell, with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall join, dissenting. I agree with the Court that there is no procedural bar to our considering the underlying constitutional question presented by this case. I am not in agreement, however, with the Court’s conclusion that the presumption as charged to the jury in this case meets the constitutional requirements of due process as set forth in our prior decisions. On the contrary, an individual’s mere presence in an automobile where there is a handgun does not even make it “more likely than not” that the individual possesses the weapon. I In the criminal law, presumptions are used to encourage the jury to find certain facts, with respect to which no direct evidence is presented, solely because other facts have been proved.1 See, e. g., Barnes v. United States, 412 U. S. 837, 840 n. 3 (1973); United States v. Romano, 382 U. S. 136, 138 (1965). The purpose of such presumptions is plain: Like certain other jury instructions, they provide guidance for jurors’ thinking in considering the evidence laid before them. 1 Such encouragement can be provided either by statutory presumptions, see, e. g., 18 U. S. C. § 1201 (b), or by presumptions created in the common law. See, e. g., Barnes v. United States, 412 U. S. 837 (1973). Unless otherwise specified, “presumption” will be used herein to refer to “permissible inferences,” as well as to “true” presumptions. See F. James, Civil Procedure §7.9 (1965). ULSTER COUNTY COURT v. ALLEN 169 140 Powell, J., dissenting Once in the juryroom, jurors necessarily draw inferences from the evidence—both direct and circumstantial. Through the use of presumptions, certain inferences are commended to the attention of jurors by legislatures or courts. Legitimate guidance of a jury’s deliberations is an indispensable part of our criminal justice system. Nonetheless, the use of presumptions in criminal cases poses at least two distinct perils for defendants’ constitutional rights. The Court accurately identifies the first of these as being the danger of interference with “the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Ante, at 156. If the jury is instructed that it must infer some ultimate fact (that is, some element of the offense) from proof of other facts unless the defendant disproves the ultimate fact by a preponderance of the evidence, then the presumption shifts the burden of proof to the defendant concerning the element thus inferred.2 But I do not agree with the Court’s conclusion that the only constitutional difficulty with presumptions lies in the danger of lessening the burden of proof the prosecution must bear. As the Court notes, the presumptions thus far reviewed by the Court have not shifted the burden of persuasion, see ante, at 157-159, n. 16; instead, they either have required only that the defendant produce some evidence to rebut the inference suggested by the prosecution’s evidence, see Tot n. United States, 319 IL S. 463 (1943), or merely have been suggestions to the 2 The Court suggests that presumptions that shift the burden of persuasion to the defendant in this way can be upheld provided that “the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.” Ante, at 167. As the present case involves no shifting of the burden of persuasion, the constitutional restrictions on such presumptions are not before us, and I express no views on them. It may well be that even those presumptions that do not shift the burden of persuasion cannot be used to prove an element of the offense, if the facts proved would not permit a reasonable mind to find the presumed fact beyond a reasonable doubt. My conclusion in Part II, infra, makes it unnecessary for me to address this concern here. 170 OCTOBER TERM, 1978 Powell, J., dissenting 442 U. S. jury that it would be sensible to draw certain conclusions on the basis of the evidence presented.3 See Barnes v. United States, supra, at 840 n. 3. Evolving from our decisions, therefore, is a second standard for judging the constitutionality of criminal presumptions which is based—not on the constitutional requirement that the State be put to its proof—but rather on the due process rule that when the jury is encouraged to make factual inferences, those inferences must reflect some valid general observation about the natural connection between events as they occur in our society. This due process rule was first articulated by the Court in Tot v. United States, supra, in which the Court reviewed the constitutionality of § 2 (f) of the Federal Firearms Act. That statute provided in part that “possession of a firearm or ammunition by any . . . person [who has been convicted of a crime of violence] shall be presumptive evidence that such firearm or ammunition was shipped or transported [in interstate or foreign commerce].” As the Court interpreted the presumption, it placed upon a defendant only the obligation of presenting some exculpatory evidence concerning the origins of a firearm or ammunition, once the Government proved that the defendant had possessed the weapon and had been convicted of a crime of violence. Noting that juries must be permitted to infer from one fact the existence of another essential to guilt, “if reason and experience support the inference,” 319 U. S., at 467, the Court concluded that under some circumstances juries may be guided in making these inferences by legislative or common-law presumptions, even though they 3 The Court suggests as the touchstone for its analysis a distinction be- tween “mandatory” and “permissive” presumptions. See ante, at 157. For general discussions of the various forms of presumptions, see Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L. J. 1325 (1979); F. James, Civil Procedure §7.9 (1965). I have found no recognition in the Court’s prior decisions that this distinction is important in analyzing presumptions used in criminal cases. Cf. ibid, (distinguishing true “presumptions” from “permissible inferences”). ULSTER COUNTY COURT v. ALLEN 171 140 Powell, J., dissenting may be based “upon a view of relation broader than that a jury might take in a specific case,” id., at 468. To provide due process, however, there must be at least a “rational connection between the fact proved and the ultimate fact presumed”—a connection grounded in “common experience.” Id., at 467-468. In Tot, the Court found that connection to be lacking.4 Subsequently, in Leary n. United States, 395 U. S. 6 (1969), the Court reaffirmed and refined the due process requirement of Tot that inferences specifically commended to the attention of jurors must reflect generally accepted connections between related events. At issue in Leary was the constitutionality of a federal statute making it a crime to receive, conceal, buy, or sell marihuana illegally brought into the United States, knowing it to have been illegally imported. The statute provided that mere possession of marihuana “shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.” After reviewing the Court’s decisions in Tot v. United States, supra, and other criminal presumption cases, Mr. Justice Harlan, writing for the Court, concluded “that a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” 395 U. S., at 36 (footnote omitted). The Court invalidated the statute, finding there to be insufficient basis in fact for the conclusion that those who possess marihuana are more likely than not to know that it was imported illegally.5 4 The analysis of Tot v. United States was used by the Court in United States v. Gainey, 380 U. S. 63 (1965), and United States n. Romano, 382 U. S. 136 (1965). 5 Because the statute in Leary v. United States was found to be unconstitutional under the “more likely than not” standard, the Court explicitly declined to consider whether criminal presumptions also must follow 172 OCTOBER TERM, 1978 Powell, J., dissenting 442 U. S. Most recently, in Barnes n. United States, we considered the constitutionality of a quite different sort of presumption—one that suggested to the jury that “‘[possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference . . . that the person in possession knew the property had been stolen? ” 412 U. S., at 840 n. 3. After reviewing the various formulations used by the Court to articulate the constitutionally required basis for a criminal presumption, we once again found it unnecessary to choose among them. As for the presumption suggested to the jury in Barnes, we found that it was well founded in history, common sense, and experience, and therefore upheld it as being “clearly sufficient to enable the jury to find beyond a reasonable doubt” that those in the unexplained possession of recently stolen property know it to have been stolen. Id., at 845. In sum, our decisions uniformly have recognized that due process requires more than merely that the prosecution be put to its proof.6 In addition, the Constitution restricts the court in its charge to the jury by requiring that, when particular factual inferences are recommended to the jury, those factual inferences be accurate reflections of what history, common sense, and experience tell us about the relations between events in our society. Generally, this due process rule has been articulated as requiring that the truth of the inferred fact be more likely than not whenever the premise for the inference is true. Thus, to be constitutional a presumption must be at least more likely than not true. “beyond a reasonable doubt” from their premises, if an essential element of the crime depends upon the presumption’s use. 395 U. S., at 36 n. 64. See n. 2, supra. The Court similarly avoided this question in Turner n. United States, 396 U. S. 398, 416 (1970). 6 The Court apparently disagrees, contending that “the factfinder’s responsibility ... to find the ultimate facts beyond a reasonable doubt” is the only constitutional restraint upon the use of criminal presumptions at trial. See ante, at 156. ULSTER COUNTY COURT v. ALLEN 173 140 Powell, J., dissenting II In the present case, the jury was told: “Our Penal Law also provides that the presence in an automobile of any machine gun or of any handgun or firearm which is loaded is presumptive evidence of their unlawful possession. In other words, [under] these presumptions or this latter presumption upon proof of the presence of the machine gun and the hand weapons, you may infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found. The presumption or presumptions is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced.” Undeniably, the presumption charged in this case encouraged the jury to draw a particular factual inference regardless of any other evidence presented: to infer that respondents possessed the weapons found in the automobile “upon proof of the presence of the machine gun and the hand weapon” and proof that respondents “occupied the automobile at the time such instruments were found.” I believe that the presumption thus charged was unconstitutional because it did not fairly reflect what common sense and experience tell us about passengers in automobiles and the possession of handguns. People present in automobiles where there are weapons simply are not “more likely than not” the possessors of those weapons. Under New York law, “to possess” is “to have physical possession or otherwise to exercise dominion or control over tangible property.” N. Y. Penal Law § 10.00 (8) (McKinney 1975). Plainly, the mere presence of an individual in an automobile—without more—does not indicate that he exercises “dominion or control over” everything within it. As the 174 OCTOBER TERM, 1978 Powell, J., dissenting 442 U. S. Court of Appeals noted, there are countless situations in which individuals are invited as guests into vehicles the contents of which they know nothing about, much less have control over. Similarly, those who invite others into their automobile do not generally search them to determine what they may have on their person; nor do they insist that any handguns be identified and placed within reach of the occupants of the automobile. Indeed, handguns are particularly susceptible to concealment and therefore are less likely than are other objects to be observed by those in an automobile. In another context, this Court has been particularly hesitant to infer possession from mere presence in a location, noting that “[p]resence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant’s function at the [illegal] still, its connection with possession is too tenuous to permit a reasonable inference of guilt—‘the inference of the one from proof of the other is arbitrary . . . .’ Tot v. United States, 319 U. S. 463, 467.” United States v. Romano, 382 U. S., at 141. We should be even more hesitant to uphold the inference of possession of a handgun from mere presence in an automobile, in light of common experience concerning automobiles and handguns. Because the specific factual inference recommended to the jury in this case is not one that is supported by the general experience of our society. I cannot say that the presumption charged is “more likely than not” to be true. Accordingly, respondents’ due process rights were violated by the presumption’s use. As I understand it, the Court today does not contend that in general those who are present in automobiles are more likely than not to possess any gun contained within their vehicles. It argues, however, that the nature of the presumption here involved requires that we look, not only to the immediate facts upon which the jury was encouraged to base its inference, but to the other facts “proved” by the prosecution ULSTER COUNTY COURT v. ALLEN 175 140 Powell, J., dissenting as well. The Court suggests that this is the proper approach when reviewing what it calls “permissive” presumptions because the jury was urged “to consider all the circumstances tending to support or contradict the inference.” Ante, at 162. It seems to me that the Court mischaracterizes the function of the presumption charged in this case. As it acknowledges was the case in Romano, supra, the “instruction authorized conviction even if the jury disbelieved all of the testimony except the proof of presence” in the automobile.7 Ante, at 159 n. 16. The Court nevertheless relies on all of the evidence introduced by the prosecution and argues that the “permissive” presumption could not have prejudiced defendants. The possibility that the jury disbelieved all of this evidence, and relied on the presumption, is simply ignored. I agree that the circumstances relied upon by the Court in determining the plausibility of the presumption charged in this case would have made it reasonable for the jury to “infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons.” But the jury was told that it could conclude that respondents possessed the weapons found therein from proof of the mere fact of respondents’ presence in the automobile. For all we know, the jury rejected all of the prosecution’s evidence 7 In commending the presumption to the jury, the court gave no instruction that would have required a finding of possession to be based on anything more than mere presence in the automobile. Thus, the jury was not instructed that it should infer that respondents possessed the handguns only if it found that the guns were too large to be concealed in Jane Doe’s handbag, ante, at 163; that the guns accordingly were in the plain view of respondents, ibid; that the weapons were within “easy access of the driver of the car and even, perhaps, of the other two respondents who were riding in the rear seat,” ibid.; that it was unlikely that Jane Doe was solely responsible for the placement of the weapons in her purse, ibid.; or that the case was “tantamount to one in which the guns were lying on the floor or the seat of the car in the plain view of the three other occupants of the automobile.” Ante, at 164. 176 OCTOBER TERM, 1978 Powell, J., dissenting 442U.S. concerning the location and origin of the guns, and based its conclusion that respondents possessed the weapons solely upon its belief that respondents had been present in the automobile.8 For purposes of reviewing the constitutionality of the presumption at issue here, we must assume that this was the case. See Bollenbach v. United States, 326 U. S. 607, 613 (1946); cf. Leary v. United States, 395 U. S., at 31. The Court’s novel approach in this case appears to contradict prior decisions of this Court reviewing such presumptions. Under the Court’s analysis, whenever it is determined that an inference is “permissive,” the only question is whether, in light of all of the evidence adduced at trial, the inference recommended to the jury is a reasonable one. The Court has never suggested that the inquiry into the rational basis of a permissible inference may be circumvented in this manner. Quite the contrary, the Court has required that the “evidence necessary to invoke the inference [be] sufficient for a rational juror to find the inferred fact. . . .” Barnes v. United States, 412 U. S., at 843 (emphasis supplied). See Turner v. United States, 396 U. S. 398, 407 (1970). Under the presumption charged in this case, the only evidence necessary to invoke the inference was the presence of the weapons in the automobile with respondents—an inference that is plainly irrational. 8 The Court is therefore mistaken in its conclusion that, because “respondents were not 'hitchhikers or other casual passengers,’ and the guns were neither 'a few inches in length’ nor 'out of [respondents’] sight,’ ” reference to these possibilities is inappropriate in considering the constitutionality of the presumption as charged in this case. Ante, at 163. To be sure, respondents’ challenge is to the presumption as charged to the jury in this case. But in assessing its application here, we are not free, as the Court apparently believes, to disregard the possibility that the jury may have disbelieved all other evidence supporting an inference of possession. The jury may have concluded that respondents—like hitchhikers—had only an incidental relationship to the auto in which they were traveling, or that, contrary to some of the testimony at trial, the weapons were indeed out of respondents’ sight. ULSTER COUNTY COURT v. ALLEN 177 140 Powell, J., dissenting In sum, it seems to me that the Court today ignores the teaching of our prior decisions. By speculating about what the jury may have done with the factual inference thrust upon it, the Court in effect assumes away the inference altogether, constructing a rule that permits the use of any inference—no matter how irrational in itself—provided that otherwise there is sufficient evidence in the record to support a finding of guilt. Applying this novel analysis to the present case, the Court upholds the use of a presumption that it makes no effort to defend in isolation. In substance, the Court— applying an unarticulated harmless-error standard—simply finds that the respondents were guilty as charged. They may well have been, but rather than acknowledging this rationale, the Court seems to have made new law with respect to presumptions that could seriously jeopardize a defendant’s right to a fair trial. Accordingly, I dissent. 178 OCTOBER TERM, 1978 Syllabus 442 U.S. UNITED STATES v. ADDONIZIO et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 78-156. Argued March 27, 1979—Decided June 4,1979 Held: A federal prisoner’s allegation that a postsentencing change in the policies of the United States Parole Commission has prolonged his actual imprisonment beyond the period intended by the sentencing judge will not support a collateral attack on the original sentence under 28 U. S. C. §2255. Pp. 184-190. (a) The claimed error that the judge was incorrect in his assumptions about the future course of parole proceedings does not meet any of the established standards of collateral attack, where there is no claim of a constitutional violation, the sentence imposed was within the statutory limits, and the proceeding was not infected with any error of fact or law of a “fundamental” character that renders the entire proceeding irregular and invalid. The change in Parole Commission policies involved here—considering the seriousness of the offense as a significant factor in determining whether a prisoner should be granted parole— affected the way in which the court’s judgment and sentence would be performed but did not affect the lawfulness of the judgment itself, then or now; and there is no claim that the action taken by the sentencing judge was unconstitutional or was based on misinformation of constitutional magnitude. Davis v. United States, 417 U. S. 333, and United States v. Tucker, 404 U. S. 443, distinguished. Pp. 184-187. (b) There is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on the frustration of the subjective intent of the sentencing judge. Under the present statutory scheme, the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term; and while the judge may have expectations as to when release is likely, the actual decision is not his to make, either at the time of sentencing or later if his expectations are not met. To require the Parole Commission to act in accordance with judicial expectations, and to use collateral attack as a mechanism for ensuring that these expectations are carried out, would substantially undermine the congressional decision to entrust release determinations tn the Commis-sion, not the courts, and nothing in § 2255 supports—let alone man-dates such a frustration of congressional intent. Thus, subsequent UNITED STATES v. ADDONIZIO 179 178 Opinion of the Court actions taken by the Parole Commission—whether or not such actions accord with a trial judge’s expectations at the time of sentencing—do not retroactively affect the validity of the final judgment itself, and do not provide a basis for collateral attack on the sentence pursuant to §2255. Pp. 187-190. 573 F. 2d 147, reversed. Stevens, J., delivered the opinion of the Court, in which all other Members joined, except Brennan, J., who took no part in the decision of the case, and Powell, J., who took no part in the consideration or decision of the case. Deputy Solicitor General Easterbrook argued the cause for the United States. With him on the briefs were Solicitor General McCree and Assistant Attorney General Heymann. Michael Edelson argued the cause and filed a brief for respondent Addonizio. Leon J. Greenspan argued the cause for respondents Whelan and Flaherty. With him on the brief was Joseph D. DeSalvo* Mr. Justice Stevens delivered the opinion of the Court. Three prisoners have alleged that a postsentencing change in the policies of the United States Parole Commission has prolonged their actual imprisonment beyond the period intended by the sentencing judge. The question presented is whether this type of allegation will support a collateral attack on the original sentence under 28 U. S. C. § 2255.1 We hold that it will not. *Kenneth N. Flaxman filed a brief for the Lewisburg Prison Project as amicus curiae urging affirmance. 1 Title 28 U. S. C. §2255 provides: “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 sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or 180 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. I With respect to the legal issue presented, the claims before us are identical. To bring this issue into sharp focus, we accept for purposes of decision Addonizio’s view of the facts and the relevant aspects of the Parole Commission’s practices. After his conviction in the United States District Court for the District of New Jersey, on September 22, 1970, Addonizio was sentenced to 10 years’ imprisonment and a fine of $25,000. Factors which led the-District Judge to impose that sentence included the serious character of Addonizio’s offenses,2 and the judge’s expectation that exemplary institu- is otherwise subject to collateral attack, may move the court which im-posed the sentence to vacate, set aside or correct the sentence. “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 2 At the time he imposed sentence, Judge Barlow stated: “Weighed against these virtues, [Mr. Addonizio’s record of public service] ... is his conviction by a jury in this court of crimes of monumental proportion, the enormity of which can scarcely be exaggerated and the commission of which create the gravest implications for our form of government. “Mr. Addonizio, and the other defendants here, have been convicted of one count of conspiring to extort and 63 substantive counts of extorting hundreds of thousands of dollars from persons doing business with the City of Newark. An intricate conspiracy of this magnitude, I suggest to you, Mr. Hellring [defense counsel], could have never succeeded without the then-Mayor Addonizio’s approval and participation. “These were no ordinary criminal acts. . . . These crimes for which Mr. Addonizio and the other defendants have been convicted represent a pattern of continuous, highly-organized, systematic criminal extortion over a period of many years, claiming many victims and touching many more lives. “Instances of corruption on the part of elected and appointed govern UNITED STATES v. ADDONIZIO 181 178 Opinion of the Court tional behavior would lead to Addonizio’s release when he became eligible for parole after serving one-third of his sentence.3 The judge did not contemplate that the Parole Com mental officials are certainly not novel to the law, but the corruption disclosed here, it seems to the Court, is compounded by the frightening alliance of criminal elements and public officials, and it is this very kind of totally destructive conspiracy that was conceived, organized and executed by these defendants. “. . . It is impossible to estimate the impact upon—and the cost of—these criminal acts to the decent citizens of Newark, and, indeed, to the citizens of the State of New Jersey, in terms of their frustration, despair and disillusionment. “Their crimes, in the judgment of this Court, tear at the very heart of our civilized form of government and of our society. The people will not tolerate such conduct at any level of government, and those who use their public office to betray the public trust in this manner can expect from the courts only the gravest consequences. “It is, accordingly, the sentence of this Court that the defendant Hugh J. Addonizio shall be committed to the custody of the Attorney General of the United States for a term of ten years, and that, additionally, the defendant Hugh J. Addonizio shall pay a fine of $25,000. That is all.” 573 F. 2d 147, 154. 3 In his opinion granting Addonizio relief under § 2255 in 1977, Judge Barlow stated: “At the time sentence was imposed, this Court expected that petitioner would receive a meaningful parole hearing—that is, a determination based on his institutional record and the likelihood of recidivism—upon the completion of one-third (%) of his sentence. The Court anticipated—assuming an appropriate institutional adjustment and good behavior while confined—that petitioner would be actually confined for a period of approximately three and one-half to four years of the ten-year sentence, in view of the fact that he was a first-offender and that there appeared to be little probability of recidivism, given the circumstances of the case and his personal and social history. This sentencing expectation was based on the Court’s understanding—which was consistent with generally-held notions—of the operation of the parole system in 1970.” App. to Pet. for Cert. 28a-29a (footnotes omitted). 182 OCTOBER TERM, 1978 Opinion of the Court 442U.S. mission might rely on the seriousness of the offense as a reason for refusing a parole which Addonizio would otherwise receive. In 1973, the Parole Commission markedly changed its policies.4 Under its new practices the gravity of the offense became a significant factor in determining whether a prisoner should be granted parole. Addonizio became eligible for parole on July 3, 1975. After hearings, the Parole Commission twice refused to release him, expressly basing its refusal on the serious character of his crimes.® 4 The Commission commenced using guidelines on a trial basis in 1972 and started to apply them throughout the Nation in November 1973. See 38 Fed. Reg. 31942 (1973). The Commission’s present guidelines are codified at 28 CFR §2.20 (1978). The use of guidelines is now required by statute. See 18 U. S. C. §§ 4203 (a)(1) and 4206 (a). 5 As Judge Aldisert noted in his opinion for the Third Circuit, the comments made by the Parole Commission on January 13, 1977, explaining its denial of parole are remarkably similar to the reasons given by the trial judge at the time sentence was imposed. The Commission stated: “Your offense behavior has been rated as very high severity. Your salient factor score is 11. You have been in custody a total of 57 months at time of hearing. Guidelines established by the Commission for adult cases which consider the above factors suggest a range of 26-36 months to be served before release for cases with good institutional adjustment. After careful consideration of all relevant factors and information presented, a decision above the guidelines appears warranted because your offense was part of an ongoing criminal conspiracy lasting from 1965 to 1968, which consisted of many separate offenses committed by you and approximately 14 other co-conspirators. As the highest elected official in the City of Newark, you were convicted of an extortion conspiracy in which, under color of your official authority, you and your co-conspirators conspired to delay, impede, obstruct, and otherwise thwart construction in the City of Newark in order to obtain a percentage of contracts for the privilege of working on city construction projects. “Because of the magnitude of this crime (money extorted totalling approximately $241,000) its economic effect on innocent citizens of Newark, and because the offense involved a serious breach of public trust over a substantial period of time, a decision above the guidelines is warranted. Parole at this time would depreciate the seriousness of the offense and promote disrespect for the law.” 573 F. 2d, at 153-154. UNITED STATES v. ADDONIZIO 183 178 Opinion of the Court Thereafter, Addonizio invoked the District Court’s jurisdiction under 28 U. S. C. § 2255 and moved for resentencing. Following the Third Circuit’s decision in United States n. Salerno, 538 F. 2d 1005, 1007 (1976), the District Court accepted jurisdiction, found that the Parole Commission had not given Addonizio the kind of “meaningful parole hearing” that the judge had anticipated when sentence was imposed, and reduced his sentence to the time already served. The judge stated that he had “anticipated—assuming an appropriate institutional adjustment and good behavior while confined—that [Addonizio] would be actually confined for a period of approximately three and one-half to four years of the ten-year sentence.” This “sentencing expectation” was frustrated by the Parole Commission’s subsequent adoption of new standards and procedures. The Court of Appeals affirmed. 573 F. 2d 147. Because of a conflict with the decision of the Ninth Circuit holding that § 2255 does not give district courts this type of resentencing authority,6 we granted the Government’s petition for certiorari in Addonizio’s case and in the consolidated case of two other prisoners in which similar relief was granted.7 439 U. S. 1045. e Bonanno v. United States, 571 F. 2d 588 (CA9 1978), cert, dismissed, 439 U. S. 1136. 7 United States v. Whelan & Flaherty. In that case, two federal prisoners filed motions under 28 U. S. C. §§ 2241 and 2255 challenging their confinement. The § 2241 motion was denied by the District Court; the Court of Appeals affirmed, 573 F. 2d 147, and the prisoners did not seek further review. In the § 2255 motion, which is at issue here, these respondents claimed that the Parole Commission’s action frustrated the intent of Judge Shaw, who had originally sentenced them and who had since died. The case was assigned to Judge Biunno, who took the position that “the real issue is whether the Parole Commission’s denial of parole was arbitrary and capricious,” 427 F. Supp. 379, 381, and concluded that it was not. The Court of Appeals vacated that decision and directed Judge Biunno to reconsider the case to determine whether Judge Shaw’s sentencing intent had 184 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. II We decide only the jurisdictional issue. We do not consider the Government’s alternative argument that the significance of the changes in the Parole Commission’s procedures has been exaggerated because it always attached some weight to the character of the offense in processing parole applications. Nor do we have any occasion to consider whether the new guidelines are consistent with the Parole Commission and Reorganization Act of 1976, 90 Stat. 219;8 or whether their enforcement may violate the Ex Post Facto Clause of the Constitution.9 Ill When Congress enacted § 2255 in 1948, it simplified the procedure for making a collateral attack on a final judgment entered in a federal criminal case, but it did not purport to modify the basic distinction between direct review and collateral review. It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.10 The reasons for narrowly limiting the grounds for collateral attack on final judgments are well known and basic to our adversary system of justice.11 The question in this case is been frustrated. Proceedings on remand have resulted in the release of both respondents. 8 See Geraghty n. United States Parole Comm’n, 579 F. 2d 238 (CA3 1978), cert, granted, 440 U. S. 945 (1979). 9 See Rodriguez v. United States Parole Comm’n, 594 F. 2d 170 (CA7 1979). 10 See Adams v. United States ex rel. McCann, 317 U. S. 269, 274 (“Of course the writ of habeas corpus should not do service for an appeal. . . . This rule must be strictly observed if orderly appellate procedure is to be maintained”); Sunal v. Large, 332 U. S. 174, 181-182; Hill v. United States, 368 U. S. 424. 11 Inroads on the concept of finality tend to undermine confidence in the integrity of our procedures. See, e. g., F. James, Civil Procedure 517-518 (1965). Moreover, increased volume of judicial work associated UNITED STATES v. ADDONIZIO 185 178 Opinion of the Court whether an error has occurred that is sufficiently fundamental to come within those narrow limits. Under § 2255, the sentencing court is authorized to discharge or resentence a defendant if it concludes that it “was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” This statute was intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement, by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court. United States v. Hayman, 342 U. S. 205, 210-217. While the remedy is in this sense comprehensive, it does not encompass all claimed errors in conviction and sentencing. Habeas corpus has long been available to attack convictions and sentences entered by a court without jurisdiction. See, e. g., Ex parte Watkins, 3 Pet. 193, 202-203 (Marshall, C. J.). In later years, the availability of the writ was expanded to encompass claims of constitutional error as well. See Waley v. Johnston, 316 U. S. 101, 104-105; Brown n. Allen, 344 U. S. 443. But unless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained far more limited. Stone v. Powell, 428 U. S. 465, 477 n. 10. The Court has held that an error of law does not provide a basis for collateral attack unless the claimed error constituted “a fundamental defect which inherently results in a complete miscarriage of justice.” Hill v. United States, 368 U. S. 424, 428. Similar limitations apply with respect to claimed errors of fact. The justification for raising such errors in a § 2255 with the processing of collateral attacks inevitably impairs and delays the orderly administration of justice. Because there is no limit on the time when a collateral attack may be made, evidentiary hearings are often inconclusive and retrials may be impossible if the attack is successful. See Stone v. Powell, 428 U. S. 465, 491 n. 31; Henderson v. Kibbe, 431 U. S. 145, 154 n. 13. 186 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. proceeding, as amicus here points out,12 is that traditionally they could have been raised by a petition for a writ of coram nobis, and thus fall within § 2255’s provision for vacating sentences that are “otherwise subject to collateral attack.” But coram nobis jurisdiction has never encompassed all errors of fact; instead, it was of a limited scope, existing “in those cases where the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid.” United States v. Mayer, 235 U. S. 55, 69. Thus, the writ of coram nobis was “available to bring before the court that pronounced the judgment errors in matters of fact which had not been put in issue or passed upon and were material to the validity and regularity of the legal proceeding itself; as where the defendant, being under age, appeared by attorney, or the plaintiff or defendant was a married woman at the time of commencing the suit, or died before verdict or interlocutory judgment.” Id., at 68. The claimed error here—that the judge was incorrect in his assumptions about the future course of parole proceedings—does not meet any of the established standards of collateral attack. There is no claim of a constitutional violation; the sentence imposed was within the statutory limits; and the proceeding was not infected with any error of fact or law of the “fundamental” character that renders the entire proceeding irregular and invalid. The absence of any error of this nature or magnitude distinguishes Addonizio’s claim from those in prior cases, upon which he relies, in which collateral attacks were permitted. Davis v. United States, 417 U. S. 333, for example, like this case, involved a claim that a judgment that was lawful when it was entered should be set aside because of a later development. The subsequent development in that case, however, was a change in the substantive law that established that the 12 See Brief for Lewisburg Prison Project as Amicus Curiae 10-12. UNITED STATES v. ADDONIZIO 187 178 Opinion of the Court conduct for which petitioner had been convicted and sentenced was lawful. To have refused to vacate his sentence would surely have been a “complete miscarriage of justice,” since the conviction and sentence were no longer lawful. The change in Parole Commission policies involved in this case is not of the same character: this change affected the way in which the court’s judgment and sentence would be performed but it did not affect the lawfulness of the judgment itself— then or now. Nor is United States v. Tucker, 404 U. S. 443, analogous to the present case. In that case, the Court ordered resentencing of a defendant whose original sentence had been imposed at least in part upon the basis of convictions secured without the assistance of counsel. But the error underlying the sentence in Tucker, as the Court emphasized, was “misinformation of constitutional magnitude.” Id., at 447. We have held that the constitutional right to the assistance of counsel is itself violated when uncounseled convictions serve as the basis for enhanced punishment. Burgett v. Texas, 389 U. S. 109, 115. Whether or not the Parole Commission action in this case was constitutional, a question not presented here, there is no claim that the action taken by the sentencing judge was unconstitutional, or was based on “misinformation of constitutional magnitude.” Our prior decisions, then, provide no support for Addonizio’s claim that he is entitled to relief under § 2255. According to all of the objective criteria—federal jurisdiction, the Constitution, and federal law—the sentence was and is a lawful one. And in our judgment, there is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on the frustration of the subjective intent of the sentencing judge. As a practical matter, the subjective intent of the sentencing judge would provide a questionable basis for testing the validity of his j udgment. The record made when Judge Barlow pronounced sentence against Addonizio, for example, is en 188 OCTOBER TERM, 1978 Opinion of the Court 442U.S. tirely consistent with the view that the judge then thought that this was an exceptional case in which the severity of Addonizio’s offense should and would be considered carefully by the Parole Commission when Addonizio became eligible for parole. If the record is ambiguous, and if a § 2255 motion is not filed until years later, it will often be difficult to reconstruct with any certainty the subjective intent of the judge at the time of sentencing. Regular attempts to do so may well increase the risk of inconsistent treatment of defendants; on the other hand, the implementation of the Parole Commission’s policies may reduce that risk. Nothing in the statutory scheme directs sentencing courts to engage in this task on collateral attack; quite to the contrary, the proposed system of sentencing review would be inconsistent with that established by Congress. The decision as to when a lawfully sentenced defendant shall actually be released has been committed by Congress, with certain limitations, to the discretion of the Parole Commission.13 Whether 13 A federal prisoner is entitled to release at the expiration of his maximum sentence less “good time” computed according to 18 U. S. C. § 4161. In addition, any prisoner sentenced to more than 5 years’ imprisonment is entitled to be released on parole after serving two-thirds of each consecutive term or 30 years, whichever is first, unless the Commission determines that the prisoner “has seriously or frequently violated institution rules” or that there is a reasonable probability that he would commit, further crimes. 18 U. S. C. §4206 (d). The Commission has substantial discretion to determine whether a prisoner should be released on parole, once he is eligible, prior to the point where release is mandated by statute. Title 18 U. S. C. § 4203 (1970 ed.), in effect when Addonizio was sentenced, provided: “If it appears to the Board . . . that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.” Under the statute now in effect, 18 U. S. C. § 4206, the Commission is to consider the risk of recidivism and whether “release would . . . depreciate the seriousness of [the] offense or promote disrespect for the law.” UNITED STATES v. ADDONIZIO 189 178 Opinion of the Court wisely or not, Congress has decided that the Commission is in the best position to determine when release is appropriate, and in doing so, to moderate the disparities in the sentencing practices of individual judges.14 The authority of sentencing judges to select precise release dates is, by contrast, narrowly limited: the judge may select an early parole eligibility date, but that guarantees only that the defendant will be considered at that time by the Parole Commission.15 And once a sentence has been imposed, the trial judge’s authority to modify it is also circumscribed. Federal Rule Crim. Proc. 35 now authorizes district courts to reduce a sentence within 120 days after it is imposed or after it has been affirmed on appeal.16 The time period, however, is jurisdictional and may not be extended.17 14 See generally S. Conf. Rep. No. 94-648, p. 19 (1976). 15 The trial court may set a defendant’s eligibility for parole at any point up to one-third of the maximum sentence imposed, see 18 U. S. C. §§4205 (a), (b); 18 U. S. C. §§4202, 4208 (1970 ed.). Whether the defendant will actually be paroled at that time is the decision of the Parole Commission. See United States n. Grayson, 438 U. S. 41,47 (“[T]he extent of a federal prisoner’s confinement is initially determined by the sentencing judge, who selects a term within an often broad, congressionally prescribed range; release on parole is then available on review by the United States Parole Commission, which, as a general rule, may conditionally release a prisoner any time after he serves one-third of the judicially-fixed term”). The trial judge is precluded from effectively usurping that function by splitting a lengthy sentence between a stated period of probation and imprisonment: probation may not be combined with a sentence entailing incarceration of more than six months. 18 U. S. C. §3651. 16 Prior to the adoption of Rule 35, the trial courts had no such authority. “The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it.” United States v. Murray, 275 U. S. 347, 358. This rule was applied even though the change related only to the second of a pair of consecutive sentences which itself was not being served at the time. Afironti v. United States, 350 U. S. 79. 17 See Fed. Rule Crim. Proc. 45 (b); United States v. Robinson, 361 U. S. 220. 190 OCTOBER TERM, 1978 Opinion of the Court 442U.S. The import of this statutory scheme is clear: the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term. The judge may well have expectations as to when release is likely. But the actual decision is not his to make, either at the time of sentencing or later if his expectations are not met. To require the Parole Commission to act in accordance with judicial expectations, and to use collateral attack as a mechanism for ensuring that these expectations are carried out, would substantially undermine the congressional decision to entrust release determinations to the Commission and not the courts. Nothing in § 2255 supports—let alone mandates—such a frustration of congressional intent. Accordingly, without reaching any question as to the validity of the Parole Commission’s actions, either in promulgating its new guidelines or in denying Addonizio’s applications for parole, we hold that subsequent actions taken by the Parole Commission—whether or not such actions accord with a trial judge’s expectations at the time of sentencing—do not retroactively affect the validity of the final judgment itself. The facts alleged by the prisoners in these cases do not provide a basis for a collateral attack on their respective sentences pursuant to § 2255. The judgments of the Court of Appeals are therefore reversed. It is so ordered. Mr. Justice Brennan took no part in the decision of this case. Mr. Justice Powell took no part in the consideration or decision of this case. MARCHIORO v. CHANEY 191 Syllabus MARCHIORO et al. v. CHANEY et al. APPEAL FROM THE SUPREME COURT OF WASHINGTON No. 78-647. Argued March 26, 1979—Decided June 4, 1979 Held: A Washington statute that requires each major political party to have a State Committee consisting of two persons from each county in the State does not, by so restricting the composition of the State Committee, violate the rights of members of a political party to freedom of association protected by the First and Fourteenth Amendments insofar as concerns the Committee’s activities involving purely internal party decisions. None of these activities—such as exercising the party’s policy-making functions when the party’s State Convention is in adjournment, directing the party’s administrative apparatus, raising and distributing funds to party candidates, conducting workshops to instruct candidates on effective campaign procedures and organization, and seeking to further party objectives of influencing policy and electing its adherents to office—is required by statute to be performed by the Committee; instead, all of the “internal party decisions” are made by the Committee because of delegations of authority from the party’s Convention itself. As far as the statutory scheme is concerned, there is no reason why the Convention—instead of attempting to increase the size of the State Committee by providing for the election of members in addition to those specified by the statute—could not create an entirely new separate committee or one, for example, composed of members of the State Committee and such additional membership as might be desired to perform the political functions now performed by the State Committee. Thus, there can be no complaint that the party’s right to govern itself has been substantially burdened by statute when the source of the complaint is the party’s own decision to confer critical authority on the State Committee. Pp. 195-199. 90 Wash. 2d 298, 582 P. 2d 487, affirmed. Stevens, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the case. Charles A. Goldmark argued the cause and filed briefs for appellants. 192 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. Daniel Brink argued the cause for appellees. With him on the brief was Winship A. Todd, Jr. Mr. Justice Stevens delivered the opinion of the Court. Since 1927, a Washington statute has required each major political party to have a State Committee consisting of two persons from each county in the State.1 The question pre 1 Washington Rev. Code § 29.42.020 (1976) provides: “State Committee. The state committee of each major political party shall consist of one committeeman and one committeewoman from each county elected by the county committee at its organization meeting. It shall have a chairman and vice chairman who must be of opposite sexes. This committee shall meet during January of each odd-numbered year for the purpose of organization at a time and place designated by a sufficient notice to all the newly elected state committeemen and committeewomen by the authorized officers of the retiring committee. For the purpose of this section a notice mailed at least one week prior to the date of the meeting shall constitute sufficient notice. At its organizational meeting it shall elect its chairman and vice chairman, and such officers as its bylaws may provide, and adopt bylaws, rules and regulations. It shall have power to: “(1) Call conventions at such time and place and under such circumstances and for such purposes as the call to convention shall designate. The manner, number and procedure for selection of state convention delegates shall be subject to the committee’s rules and regulations duly adopted; “(2) Provide for the election of delegates to national conventions; “(3) Fill vacancies on the ticket for any federal or state office to be voted on by the electors of more than one county; “(4) Provide for the nomination of presidential electors; and “(5) Perform all functions inherent in such an organization. “Notwithstanding any provision of this [1972 amendatory act], the committee shall not set rules which shall govern the conduct of the actual proceedings at a party state convention.” Between 1909 and 1927, the statute provided for one member to be elected from each county. A “major political party” is defined as “a political party of which at least one nominee for president, vice president, United States senator, or a statewide office received at least five percent of the total vote cast at the last preceding state general election in an even-numbered year .” Wash. Rev. Code § 29.01.090 (Supp. 1977). MARCHIORO v. CHANEY 193 191 Opinion of the Court sented by this appeal is whether the Washington Supreme Court correctly held that this statute does not violate the First Amendment of the United States Constitution.2 The powers of the Democratic State Committee are derived from two sources: the authorizing statute and the Charter of the Democratic Party of Washington. The statute gives the State Committee the power to call conventions, to provide for the election of delegates to national conventions and for the nomination of Presidential electors, and to fill vacancies on the party ticket. The principal activities performed by the State Committee are authorized by the Charter of the Democratic Party of Washington. The Charter provides that the State Committee shall act as the party’s governing body when the Convention is in adjournment.3 And it gives the State Committee authority to organize and administer the party’s administrative apparatus, to raise and distribute funds to candidates, to conduct workshops, to instruct candidates on effective campaign procedures and organization, and generally to further the party’s objectives of influencing policy and electing its adherents to public office.4 Under both party rules and state law, the State Convention rather than the State Committee is the governing body of the party. The Charter explicitly provides that the Convention is “the highest policy-making authority within the 2 The First Amendment provides in pertinent part: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States. Williams n. Rhodes, 393 U. S. 23, 30-31. 3 Charter, Art. IV (G) (1), App. 10. 4 Charter, Arts. IV (G)(1), (2), (5), App. 10-11; Charter, Art. VII (C)(1), App. 19. 194 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. State Democratic Party.” 5 And the State Supreme Court has unequivocally held that the “state convention of a major political party is the ultimate repository of statewide party authority. . . . [T]he state convention is implicitly empowered to establish the permanent state organization of the party, create committees, delegate authority, and promulgate, adopt, ratify, amend, repeal or enforce intraparty statewide rules and regulations.”6 In 1976, the State Democratic Convention adopted a Charter amendment directing that the State Committee include members other than those specified by state statute. The Charter amendment provided that in addition to the two delegates from each of the State’s 39 counties, there should be one representative elected from each of the State’s 49 legislative districts. Pursuant to this Charter amendment new legislative district representatives were elected to serve on the State Committee. At the January 1977 meeting of the State Committee, a motion to seat these newly elected representatives was ruled out of order, apparently in reliance on the statutory definition of the composition of the Committee.7 Thereafter, members and officers of the State Democratic Party, including four who had been elected as legislative district representatives, instituted this action for declaratory and injunctive relief in the King County Superior Court. Among their contentions was a claim that the statutory restriction on the composition of the Democratic State Committee violated their rights to freedom of association protected by the First and Fourteenth Amendments.8 “Charter, Art. V (F)(5), App. 15. 6 King County Republican Central Committee v. Republican State Committee, 79 Wash. 2d 202, 211-212, 484 P. 2d 387, 392 (1971). See also 90 Wash. 2d 298, 313, 582 P. 2d 487, 496 (1978) (case below). 7 An appeal from that ruling was defeated by a vote of 56 to 17. App 4^5. 8 Appellants also challenged the requirement of Wash. Rev. Code MARCHIORO v. CHANEY 195 191 Opinion of the Court The Superior Court granted appellants’ motion for a partial summary judgment. On appeal, a divided State Supreme Court reversed that part of the trial court’s judgment that invalidated the statutory definition of the central Committee.9 The state court reasoned that although “ ‘substantial burdens’ ” on the right to associate for political purposes are invalid unless “ ‘essential to serve a compelling state interest,’ ”10 these appellants failed to establish that this statute had imposed any such burden on their attempts to achieve the objectives of the Democratic Party. Since this initial burden had not been met, the court upheld the constitutionality of the challenged statute. We noted probable jurisdiction, 439 U. S. 1044, and now affirm the judgment of the Washington Supreme Court. The requirement that political parties form central or county committees composed of specified representatives from each district is common in the laws of the States.11 These §§29.42.020 and 29.42.030 (1976) that the two persons elected as county delegates be one man and one woman. Appellants argued that this requirement violates the Washington State Equal Rights Amendment, Wash. Const., Art. XXXI. The Washington Supreme Court rejected the claim, 90 Wash. 2d, at 308, 582 P. 2d, at 493. Appellants do not seek review here of the “one man and one woman” requirements of the statute. Nor do they raise any claim based on the Equal Protection Clause of the Fourteenth Amendment. See n. 12, infra. 9 90 Wash. 2d 298, 582 P. 2d 487 (1978). 10 Id., at 309, 582 P. 2d, at 493, quoting Storer v. Brown, 415 U. S. 724, 729. 11 In 23 States, political parties are required by state law to establish state central committees composed of an equal number of committee members from each unit of representation. See Cal. Elec. Code Ann. §§ 8660, 9160 (West Supp. 1979); Fla. Stat. § 103.111 (1977); Idaho Code § 34-504 (Supp. 1978); Ind. Code § 3-1-2-1 (1976); Iowa Code §43.111 (1979); Kan. Stat. Ann. § 25-3804 (Supp. 1978); Mass. Gen. Laws Ann., ch. 52, §1 (West 1975); Mich. Comp. Laws § 168.597 (1970); Miss. Code Ann. § 23-1-3 (Supp. 1978); Mo. Rev. Stat. § 115.621 (1978); Mont. Rev. Codes Ann. §23-3403 (Supp. 1977); Nev. Rev. Stat. §293.153 (1975); N. J. Stat. Ann. § 19:5-4 (West Supp. 1979); N. D. Cent. Code § 16-17- 196 OCTOBER TERM, 1978 Opinion of the Court 442U.S. laws are part of broader election regulations that recognize the critical role played by political parties in the process of selecting and electing candidates for state and national office. The State’s interest in ensuring that this process is conducted in a fair and orderly fashion is unquestionably legitimate; “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U. S. 724, 730. That interest is served by a state statute requiring that a representative central committee be established, and entrust- 11 (1971); Ohio Rev. Code Ann. §3517.03 (1972); S. C. Code §7-9-90 (1976); S. D. Comp. Laws Ann. § 12-5-16 (1975); Tenn. Code Ann. § 2-1304 (Supp. 1978); Tex. Elec. Code Ann., Art. 13.38 (Vernon Supp. 1978); Vt. Stat. Aim., Tit. 17, §730 (1968); Wash. Rev. Code §29.42.020 (1976); W. Va. Code §3-1-9 (1979); Wyo. Stat. §§22-4-105—22-4-110 (1977). Election laws in five States establish state party central committees in which the number of committee members from each unit of representation bears a rough relationship to party membership. See Ariz. Rev. Stat. Ann. § 16-233 (1975); Colo. Rev. Stat. § 1-14-108 (2) (Supp. 1976); La. Rev. Stat. Ann. § 18:285 (1) (West Supp. 1979); Ore. Rev. Stat. §248.075 (1977); Utah Code Ann. §20-4-2 (1976). Political parties are required to establish county central committees comprised of an equal number of committee members from each unit of representation by state law in 21 States. See Cal. Elec. Code Ann. §§ 8820-8825, 9320-9325 (West 1977) (limited to certain counties); Colo. Rev. Stat. § 1-14-108 (1) (1973); Fla. Stat. § 103.111 (1977); Idaho Code §34-502 (Supp. 1978); Ind. Code § 3-1-2-1 (1976); Kan. Stat. Ann. §25-3802 (1973); La. Rev. Stat. Ann. § 18:285 (9) (West Supp. 1979) ; Md. Ann. Code, Art. 33, §11—2 (Supp. 1978); Mass. Gen. Laws Ann , ch. 52, § 9 (West 1975); Mich. Comp. Laws § 168.599 (1970); Miss. Code Ann. § 23-1-3 (Supp. 1978); Mo. Rev. Stat. § 115.607 (1978); Mont. Rev. Codes Ann. §§23-3401, 23-3402 (Supp. 1977); N. J. Stat. Ann. § 19-5-3 (West Supp. 1979); Ohio Rev. Code Ann. § 3517.03 (1972); S. C. Code §7-9-60 (1976); S. D. Comp. Laws Ann. §§ 12-5-13, 12-5-14 (1975); Tex. Elec. Code Ann., Art. 13.18 (Vernon Supp. 1978); Wash. Rev. Code §29.42.030 (1976); W. Va. Code § 3-1-9 (1979); Wis. Stat. §8.17 (1975). See Note, Equal Representation of Party Members on Political Party Central Committees, 88 Yale L. J. 167, 168-169, and nn. 5-6 (1978). MARCHIORO v. CHANEY 197 191 Opinion of the Court ing that committee with authority to perform limited functions, such as filling vacancies on the party ticket, providing for the nomination of Presidential electors and delegates to national conventions, and calling statewide conventions. Such functions are directly related to the orderly participation of the political party in the electoral process. Appellants have raised no objection to the Committee’s performance of these tasks.12 Rather, it is the Committee’s other activities—those involving “purely internal party decisions,” Brief for Appellants 5 n. 11—that concern appellants and give rise to their constitutional attack on the statute. The Committee does play a significant role in internal 12 Since appellants do not claim that these statutory requirements im-pose any impermissible burdens, we have no occasion to consider whether whatever burdens they do impose are justified by the legitimate state interests served by these requirements. By appellants’ own admission, the Committee’s electoral functions are performed rarely; moreover, when they are performed, they conform with the one-person, one-vote principle. “Although the state committee on rare occasions performs certain ballot access functions, see RCW 29.18.150 and 29.42.020 (filling vacancies on certain party tickets and nominating presidential electors) and Wash. Const, art. II, § 15 (selecting nominees for certain interim legislative positions), when it does so it is constitutionally required to comply with the principle of one-person, one-vote. See, e. g., Seergy v. Kings County Republican County Comm., 459 F. 2d 308,313-14 (2d Cir. 1972); Fahey v. Darigan, 405 F. Supp. 1386,1392 (D. R. 1.1975). The state committee has recognized this and has stipulated to the entry of an injunction ordering that the state committee be: “enjoined from filling vacancies on the Democratic ticket for any federal or state office to be voted on by the electors of more than one county or selecting Democratic nominees for interim legislative appointments to represent multi-county districts by any method that contravenes the one-person, one-vote rule. “Cunningham v. Washington State Democratic Comm., Civ. No. C75-901 (WD Wash., permanent injunction entered Nov. 28, 1977). As a result of this injunction, RCW 29.42.020—which results in gross deviations from one-person, one-vote—has been superseded insofar as applied to the state committee when it performs electoral functions.” Brief for Appellants 5 n. 11. 198 OCTOBER TERM, 1978 Opinion of the Court 442U.S. party affairs: The appellants’ description of its activities makes this clear: “Between state conventions, the Democratic State Committee is the statewide party governing body. It meets at least four times each year, exercises the party’s policy-making functions, directs the party’s administrative apparatus, raises and distributes funds to Democratic candidates, conducts workshops to instruct candidates on effective campaign procedures and organization, and seeks generally to further the party’s objectives of influencing policy and electing its adherents to public office. Insofar as is relevant here, the state committee is purely an internal party governing body.” Id., at 4-5 (footnotes omitted). None of these activities, however, is required by statute to be performed by the Committee.13 With respect to each, the source of the Committee’s authority is the Charter adopted by the Democratic Party.14 In short, all of the “internal party decisions” which appellants claim should not be made by a statutorily composed Committee are made not because of anything in the statute, 13 In addition to its enumerated functions, the Committee is authorized by Wash. Rev. Code §29.42.020 (1976) to “[p]erform all functions inherent in such an organization.” See n. 1, supra. The Committee’s role in internal party affairs, however, is clearly not “inherent” in its performance of the limited electoral functions authorized by statute. 14 Indeed, it is the Charter provisions, rather than the state statute, which appellants themselves cite as authority for their description of the Committee activities at issue here. See Brief for Appellants 4 nn 5-10. Thus, it is Art. IV (G) (1) of the Charter which provides that the Committee is the statewide governing body, shall raise funds for candidates, and shall exercise the party’s policymaking functions. And it is subsection (2) of that same Article which authorizes the Committee to direct the party’s administrative apparatus, while subsection (5) requires it to meet at least four times per year. Finally, the source of the Committee’s authority to conduct workshops for candidates is found in Art. VII (C)(1) of the Charter. MARCHIORO v. CHANEY 199 191 Opinion of the Court but because of delegations of authority from the Convention itself. Nothing in the statute required the party to authorize such decisionmaking by the Committee; as far as the statutory scheme is concerned, there is no reason why the Convention could not have created an entirely new committee or one, for example, composed of members of the State Committee and such additional membership as might be desired to perform the political functions now performed by the State Committee. The fact that it did not choose such an alternative course is hardly the responsibility of the state legislature. The answer to appellants’ claims of a substantial burden on First Amendment rights, then, turns out to be a simple one. There can be no complaint that the party’s right to govern itself has been substantially burdened by statute when the source of the complaint is the party’s own decision to confer critical authority on the State Committee. The elected legislative representatives who claim that they have been unable to participate in the internal policymaking of the Committee should address their complaint to the party which has chosen to entrust those tasks to the Committee, rather than to the state legislature. Instead of persuading us that this is a case in which a state statute has imposed substantial burdens on the party’s right to govern its affairs, appellants’ own statement of the facts establishes that it is the party’s exercise of that very right that is the source of whatever burdens they suffer.15 The judgment of the Washington Supreme Court is affirmed. It is so ordered. Mr. Justice Powell took no part in the consideration or decision of this case. 15 Cousins v. Wigoda, 419 U. S. 477, upon which appellants place their primary reliance, does not support their claim here. In Cousins, unlike this case, there was a substantial burden on associational freedoms. This fact alone distinguishes the two cases, and renders Cousins inapposite. 200 OCTOBER TERM, 1978 Syllabus 442 U. S. DUNAWAY v. NEW YORK CERTIORARI TO THE APPELLATE DIVISION, SUPREME COURT OF NEW YORK, FOURTH JUDICIAL DEPARTMENT No. 78-5066. Argued March 21, 1979—Decided June 5, 1979 A Rochester, N. Y., police detective questioned a jail inmate, the supposed source of a lead implicating petitioner in an attempted robbery and •homicide, but learned nothing that supplied “enough information to get a warrant” for petitioner’s arrest. Nevertheless, the detective ordered other detectives to “pick up” petitioner and “bring him in.” Petitioner was then taken into custody, and although not told that he was under arrest, he would have been physically restrained if he had attempted to leave. He was driven to police headquarters and placed in an interrogation room, where he was questioned by officers after being given the warnings required by Miranda v. Arizona, 384 U. S. 436. He waived counsel and eventually made statements and drew sketches that incriminated him in the crime. At his state-court trial, his motions to suppress the statements and sketches were denied, and he was convicted. The New York appellate courts affirmed the conviction, but this Court vacated the judgment, and remanded for further consideration in light of the supervening decision in Brown v. Illinois, 422 U. S. 590, which held that there is no per se rule that Miranda warnings in and of themselves suffice to cure a Fourth Amendment violation involved in obtaining inculpatory statements during custodial interrogation following a formal arrest on less than probable cause, and that in order to use such statements, the prosecution must show not only that the statements meet the Fifth Amendment voluntariness standard, but also that the causal connection between the statements and the illegal arrest is broken sufficiently to purge the primary taint of the illegal arrest in light of the distinct policies and interests of the Fourth Amendment. On remand from the New York Court of Appeals, the trial court granted petitioner’s motion to suppress, but the Appellate Division of the New York Supreme Court reversed, holding that although the police lacked probable cause to arrest petitioner, law enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable period of time under carefully controlled conditions which are ample to protect the individual’s Fifth and Sixth Amendment rights, and that even if petitioner’s detention were illegal, the taint of such detention was sufficiently attenuated to allow the admission of his statements and sketches. DUNAWAY v. NEW YORK 201 200 Syllabus Held: 1. The Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause to arrest, they seized petitioner, and transported him to the police station for interrogation. Pp. 206-216. (a) Petitioner was “seized” in the Fourth Amendment sense when he was taken involuntarily to the police station, and the State concedes that the police lacked probable cause to arrest him before his incriminating statement during interrogation. P. 207. (b) Terry v. Ohio, 392 U. S. 1, which held that limited “stop and frisk” searches for weapons are so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment “seizures” reasonable can be replaced by a test balancing the limited violation of individual privacy against the opposing interests in crime prevention and detection and in the police officer’s safety, and the Terry case’s progeny, do not support the application of a balancing test so as to hold that “seizures” such as that in this case may be justified by mere “reasonable suspicion.” The narrow intrusions in Terry and its progeny were judged by a balancing test rather than the general rule requiring probable cause only because those intrusions fell so far short of the kind of intrusion associated with an arrest. For all but those narrowly defined intrusions, the requisite balancing has been performed in centuries of precedent and is embodied in the principle that seizures are reasonable only if supported by probable cause. Pp. 208-214. (c) The treatment of petitioner, whether or not technically characterized as an arrest, was in important respects indistinguishable from a traditional arrest and must be supported by probable cause. Detention for custodial interrogation—regardless of its label—intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. Cf. Davis v. Mississippi, 394 U. S. 721; Brown n. Illinois, supra. Pp. 214r-216. 2. The connection between the unconstitutional police conduct and the incriminating statements and sketches obtained during petitioner’s illegal detention was not sufficiently attenuated to permit the use at trial of the statements and sketches. Pp. 216-219. (a) Even though proper Miranda warnings may have been given and petitioner’s statements may have been “voluntary” for purposes of the Fifth Amendment, “[t]he exclusionary rule, . . . when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth.” Brown v. Illinois, supra, at 601. While a confession after proper Miranda warnings may be found “voluntary” for Fifth Amendment purposes, this type of “volun 202 OCTOBER TERM, 1978 Opinion of the Court 442U.S. tariness” is merely a threshold requirement for Fourth Amendment analysis. Pp. 216-217. (b) Under Fourth Amendment analysis, which focuses on “the causal connection between the illegality and the confession,” Brown v. Illinois, supra, at 603, factors to be considered in determining whether the confession is obtained by exploitation of an illegal arrest include: the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct. Here, petitioner was admittedly seized without probable cause in the hope that something might turn up, and confessed without any intervening event of significance. Cf. Brown v. Illinois, supra. Pp. 217-219. 61 App. Div. 2d 299,402 N. Y. S. 2d 490, reversed. Brennan, J., delivered the opinion of the Court, in which Stewart, White, Marshall, Blackmun, and Stevens, J J., joined. White, J., post, p. 219, and Stevens, J., post, p. 220, filed concurring opinions. Rehnquist, J., filed a dissenting opinion in which Burger, C. J., joined, post, p. 221. Powell, J., took no part in the consideration or decision of the case. Edward J. Nowak argued the cause for petitioner. With him on the brief was James M. Byrnes. Melvin Bressler argued the cause for respondent. With him on the brief was Lawrence T. Kurlander* Mr. Justice Brennan delivered the opinion of the Court. We decide in this case the question reserved 10 years ago in Morales v. New York, 396 U. S. 102 (1969), namely, “the question of the legality of custodial questioning on less than probable cause for a full-fledged arrest.” Id., at 106. I On March 26, 1971, the proprietor of a pizza parlor in Rochester, N. Y., was killed during an attempted robbery. On August 10, 1971, Detective Anthony Fantigrossi of the *Richard Emery and Joel M. Gora filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal. DUNAWAY v. NEW YORK 203 200 Opinion of the Court Rochester Police was told by another officer that an informant had supplied a possible lead implicating petitioner in the crime. Fantigrossi questioned the supposed source of the lead—a jail inmate awaiting trial for burglary—but learned nothing that supplied “enough information to get a warrant” for petitioner’s arrest. App. 60.1 Nevertheless, Fantigrossi ordered other detectives to “pick up” petitioner and “bring him in.” Id., at 54. Three detectives located petitioner at a neighbor’s house on the morning of August 11. Petitioner was taken into custody; although he was not told he was under arrest, he would have been physically restrained if he had attempted to leave. Opinion in People n. Dunaway (Monroe County Ct., Mar. 11, 1977), App. 116, 117. He was driven to police headquarters in a police car and placed in an interrogation room, where he was questioned by officers after being given the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966). Petitioner waived counsel and eventually made statements and drew sketches that incriminated him in the crime.2 At petitioner’s jury trial for attempted robbery and felony murder, his motions to suppress the statements and sketches were denied, and he was convicted. On appeal, both the *See opinion in People v. Dunaway (Monroe County Ct., Mar. 11, 1977), App. 116-117. An informant had reportedly told the other detective that one James Cole had said that he and someone named “Irving” had been involved in the crime. The informant did not know “Irving’s” last namp, but had identified a picture of petitioner Dunaway from a police file. After hearing this information, Fantigrossi interviewed Cole, who was in jail pending an indictment for burglary. Cole denied any involvement in the crime, but stated that he had been told about it two months earlier by another inmate, Hubert Adams. According to Cole, Adams had mentioned that his younger brother, Ba Ba Adams, had told him that he and a fellow named “Irving,” also known as “Axelrod,” had been involved in the crime. 2 See 61 App. Div. 2d 299, 301, 402 N. Y. S. 2d 490, 491 (1978). The first statement was made within an hour after Dunaway reached the police station; the following day he made a second, more complete statement. 204 OCTOBER TERM, 1978 Opinion of the Court 442U.S. Appellate Division of the Fourth Department and the New York Court of Appeals initially affirmed the conviction without opinion. 42 App. Div. 2d 689, 346 N. Y. S. 2d 779 (1973), aff’d, 35 N. Y. 2d 741, 320 N. E. 2d 646 (1974). However, this Court granted certiorari, vacated the judgment, and remanded the case for further consideration in light of the Court’s supervening decision in Brown n. Illinois, 422 U. S. 590 (1975). 422 U. S. 1053 (1975). The petitioner in Brown, like petitioner Dunaway, made inculpatory statements after receiving Miranda warnings during custodial interrogation following his seizure—in that case a formal arrest—on less than probable cause. Brown’s motion to suppress the statements was also denied and the statements were used to convict him. Although the Illinois Supreme Court recognized that Brown’s arrest was unlawful, it affirmed the admission of the statements on the ground that the giving of Miranda warnings served to break the causal connection between the illegal arrest and the giving of the statements. This Court reversed, holding that the Illinois courts erred in adopting a per se rule that Miranda warnings in and of themselves sufficed to cure the Fourth Amendment violation; rather the Court held that in order to use such statements, the prosecution must show not only that the statements meet the Fifth Amendment voluntariness standard, but also that the causal connection between the statements and the illegal arrest is broken sufficiently to purge the primary taint of the illegal arrest in light of the distinct policies and interests of the Fourth Amendment. In compliance with the remand, the New York Court of Appeals directed the Monroe County Court to make further factual findings as to whether there was a detention of petitioner, whether the police had probable cause, “and, in the event there was a detention and probable cause is not found for such detention, to determine the further question as to whether the making of the confessions was rendered infirm DUNAWAY v. NEW YORK 205 200 Opinion of the Court by the illegal arrest (see Brown v. Illinois, 422 U. S. 590, supra).” People v. Dunaway, 38 N. Y. 2d 812, 813-814, 345 N. E. 2d 583, 584 (1975). The County Court determined after a supplementary suppression hearing that Dunaway’s motion to suppress should have been granted. Although reaffirming that there had been “full compliance with the mandate of Miranda v. Arizona,” the County Court found that “this case does not involve a situation where the defendant voluntarily appeared at police headquarters in response to a request of the police . . . .” App. 117. The State’s attempt to justify petitioner’s involuntary investigatory detention on the authority of People v. Morales, 22 N. Y. 2d 55, 238 N. E. 2d 307 (1968)— which upheld a similar detention on the basis of information amounting to less than probable cause for arrest—was rejected on the grounds that the precedential value of Morales was questionable,3 and that the controlling authority was the “strong language” in Brown v. Illinois indicating “disdain for custodial questioning without probable cause to arrest.”4 The County Court further held that “the factual predicate in this case did not amount to probable cause sufficient to support the arrest of the defendant,” that “the Miranda warnings by themselves did not purge the taint of the defend 3 We granted certiorari in Morales and noted that “[t]he ruling below, that the State may detain for custodial questioning on less than probable cause for a traditional arrest, is manifestly important, goes beyond our subsequent decisions in Terry v. Ohio, 392 U. S. 1 (1968), and Sibron v. New York, 392 U. S. 40 (1968), and is claimed by petitioner to be at odds with Davis v. Mississippi, 394 U. S. 721 (1969).” Morales v. New York, 396 U. S. 102, 104-105 (1969). Nevertheless, inadequacies in the record led us to remand for further development and to reserve the issue we decide today for a record that “squarely and necessarily presents the issue and fully illuminates the factual context in which the question arises.” Id., at 105. On remand, the New York courts determined that Morales had gone to the police voluntarily. People v. Morales, 42 N. Y. 2d 129, 137-138, 366 N. E. 2d 248, 252-253 (1977). 4 App. 118; see Brown v. Illinois, 422 U. S., at 602, 605. 206 OCTOBER TERM, 1978 Opinion of the Court 442U.S. ant’s illegal seizure [,] Brown n. Illinois, supra, and [that] there was no claim or showing by the People of any attenuation of the defendant’s illegal detention,” App. 121. Accordingly petitioner’s motion to suppress was granted. Ibid. A divided Appellate Division reversed. Although agreeing that the police lacked probable cause to arrest petitioner, the majority relied on- the Court of Appeals’ reaffirmation, subsequent to the County Court’s decision, that “[l]aw enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable and brief period of time under carefully controlled conditions which are ample to protect the individual’s Fifth and Sixth Amendment rights.” 61 App. Div. 2d 299, 302, 402 N. Y. S. 2d 490, 492 (1978), quoting People v. Morales, 42 N. Y. 2d 129, 135, 366 N. E. 2d 248, 251 (1977). The Appellate Division also held that even if petitioner’s detention were illegal, the taint of his illegal detention was sufficiently attenuated to allow the admission of his statements and sketches. The Appellate Division emphasized that petitioner was never threatened or abused by the police and purported to distinguish Brown v. Illinois.5 The Court of Appeals dismissed petitioner’s application for leave to appeal. App. 134. We granted certiorari, 439 U. S. 979 (1978), to clarify the Fourth Amendment’s requirements as to the permissible grounds for custodial interrogation and to review the New York court’s application of Brown v. Illinois. We reverse. II We first consider whether the Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause to arrest, they took petitioner into custody, transported 5 61 App. Div. 2d, at 303-304, 402 N. Y. S. 2d, at 493. Two of the five members of the court dissented on this issue. Id., at 304, 402 N. Y. S. 2d, at 493 (Denman, J., concurring); id., at 305, 402 N. Y. S. 2d, at 494 (Cardamone, J., dissenting). DUNAWAY v. NEW YORK 207 200 Opinion of the Court him to the police station, and detained him there for interrogation. The Fourth Amendment, applicable to the States through the Fourteenth Amendment, Mapp v. Ohio, 367 U. S. 643 (1961), provides: “The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause . . . There can be little doubt that petitioner was “seized” in the Fourth Amendment sense when he was taken involuntarily to the police station.6 And respondent State concedes that the police lacked probable cause to arrest petitioner before his incriminating statement during interrogation.7 Nevertheless respondent contends that the seizure of petitioner did not amount to an arrest and was therefore permissible under the Fourth Amendment because the police had a “reasonable suspicion” that petitioner possessed “intimate knowledge about a serious and unsolved crime.” Brief for Respondent 10. We disagree. Before Terry v. Ohio, 392 U. S. 1 (1968), the Fourth 6 “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry n. Ohio, 392 U. S. 1, 16 (1968). Respondent contends that petitioner accompanied the police voluntarily and therefore was not “seized.” Brief for Respondent 7-9. The County Court found otherwise, App. 117, quoted supra, at 205; and the Appellate Division treated the case as an involuntary detention justified by reasonable suspicion. See 61 App. Div. 2d, at 302-303, 402 N. Y. S. 2d, at 492. See also ALI, Model Code of Pre-Arraignment Procedure § 2.01 (3) and commentary, p. 91 (Tent. Draft No. 1, 1966) (request to come to police station “may easily carry an implication of obligation, while the appearance itself, unless clearly stated to be voluntary, may be an awesome experience for the ordinary citizen”). 7 Both the County Court and the Appellate Division found that the police lacked probable cause, and respondent does not question those findings here. See 61 App. Div. 2d, at 302, 402 N. Y. S. 2d, at 492; App. 120, citing Spinelli v. United States, 393 U. S. 410 (1969); Aguilar v. Texas, 378 U. S. 108 (1964). 208 OCTOBER TERM, 1978 Opinion of the Court 442U.S. Amendment’s guarantee against unreasonable seizures of persons was analyzed in terms of arrest, probable cause for arrest, and warrants based on such probable cause. The basic principles were relatively simple and straightforward: The term “arrest” was synonymous with those seizures governed by the Fourth Amendment. While warrants were not required in all circumstances,8 the requirement of probable cause, as elaborated in numerous precedents,9 was treated as absolute.10 The “long-prevailing standards” of probable cause embodied “the best compromise that has been found for accommodating [the] often opposing interests” in “safeguard [ing] citizens from rash and unreasonable interferences with privacy” and in “seek[ing] to give fair leeway for enforcing the law in the community’s protection.” Brinegar v. United States, 338 U. S. 160, 176 (1949). The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest “reasonable” under the Fourth Amendment. The standard applied to all arrests, without the need to “balance” the interests and circumstances involved in particular situations. Cf. Camara n. Municipal Court, 387 U. S. 523 (1967). Terry for the first time recognized an exception to the requirement that Fourth Amendment seizures of persons must 8 See, e. g., Warden v. Hayden, 387 U. S. 294 (1967) (hot pursuit); United States v. Watson, 423 U. S. 411 (1976) (felony arrests in public places). 9 “Probable cause exists where The facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed [by the person to be arrested].” Brinegar v. United States, 338 U. S. 160, 175-176 (1949), quoting Carroll v. United States, 267 U. S. 132, 162 (1925). See generally 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 436-480 (1978). 10 See Gerstein v. Pugh, 420 U. S. 103, 111-112 (1975); Ker n. California, 374 U. S. 23 (1963). DUNAWAY v. NEW YORK 209 200 Opinion of the Court be based on probable cause. That case involved a brief, on-the-spot stop on the street and a frisk for weapons, a situation that did not fit comfortably within the traditional concept of an “arrest.” Nevertheless, the Court held that even this type of “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat” constituted a “serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment,” 392 U. S., at 20, 17, and therefore “must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” Id., at 20. However, since the intrusion involved in a “stop and frisk” was so much less severe than that involved in traditional “arrests,” the Court declined to stretch the concept of “arrest”—and the general rule requiring probable cause to make arrests “reasonable” under the Fourth Amendment—to cover such intrusions. Instead, the Court treated the stop-and-frisk intrusion as a sui generis “rubric of police conduct,” ibid. And to determine the justification necessary to make this specially limited intrusion “reasonable” under the Fourth Amendment, the Court balanced the limited violation of individual privacy involved against the opposing interests in crime prevention and detection and in the police officer’s safety. Id., at 22-27. As a consequence, the Court established “a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Id., at 27.11 Thus, Terry departed from traditional Fourth Amendment analysis in two respects. 11 The Court stressed the limits of its holding: the police officer’s belief that his safety or that of others is in danger must be objectively reasonable—based on reasonable inferences from known facts—so that it can be tested at the appropriate time by “the more detached, neutral scrutiny of a judge,” 392 U. S., at 21, 27; and the extent of the intrusion must be carefully tailored to the rationale justifying it. 210 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. First, it defined a special category of Fourth Amendment “seizures” so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment “seizures” reasonable could be replaced by a balancing test. Second, the application of this balancing test led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but only for the purpose of a pat-down for weapons. Because Terry involved an exception to the general rule requiring probable cause, this Court has been careful to maintain its narrow scope. Terry itself involved a limited, on-the-street frisk for weapons.12 Two subsequent cases which applied Terry also involved limited weapons frisks. See Adams n. Williams, 407 U. S. 143 (1972) (frisk for weapons on basis of reasonable suspicion); Pennsylvania n. Mimms, 434 U. S. 106 (1977) (order to get out of car is permissible “de minimis” intrusion after car is lawfully detained for traffic violations; frisk for weapons justified after “bulge” observed in jacket). United States v. Brignoni-Ponce, 422 U. S. 873 (1975), applied Terry in the special context of roving border patrols stopping automobiles to check for illegal immigrants. The investigative stops usually consumed 12 Terry specifically declined to address “the constitutional propriety of an investigative ‘seizure’ upon less than probable cause for purposes of ‘detention’ and/or interrogation.” Id., at 19 n. 16. Mr. Justice White, in a concurring opinion, made these observations on the matter of interrogation during an investigative stop: “There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” Id., at 34. DUNAWAY v. NEW YORK 211 200 Opinion of the Court less than a minute and involved “a brief question or two.” 422 U. S., at 880. The Court stated that “ [b] ecause of the limited nature of the intrusion, stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest.” Ibid.13 See also United States n. Martinez-Fuerte, 428 U. S. 543 (1976) (fixed checkpoint to stop and check vehicles for aliens); Delaware v. Prouse, 440 U. S. 648 (1979) (random checks for drivers’ licenses and proper vehicle registration not permitted on less than articulable reasonable suspicion). Respondent State now urges the Court to apply a balancing test, rather than the general rule, to custodial interrogations, and to hold that “seizures” such as that in this case may be justified by mere “reasonable suspicion.”14 Terry and its 13 “[B] ecause of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion.” 422 U. S., at 881. 14 The factors that respondent would consider relevant in its balancing test, and the scope of the rule the test would produce, are not completely clear. The Appellate Division quoted two apparently different tests from the Court of Appeals opinion in People n. Morales, 42 N. Y. 2d 129, 366 N. E. 2d 248 (1977): “ '[L]aw enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable and brief period of time under carefully controlled conditions which are ample to protect the individual’s Fifth and Sixth Amendment rights’ (42 NY2d, at p. 135). ‘“[A] policeman’s right to request information while discharging his law enforcement duties will hinge on the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter” ’ (42 NY2d, at p. 137, quoting from People v. De Bour, 40 NY2d 210, 219).” 61 App. Div. 2d, at 302, 402 N. Y. S. 2d, at 492. Then, in characterizing the case before it, the Appellate Division suggested yet a third “test”: “[T]his case involves a brief detention for interrogation based upon reasonable suspicion, where there was no formal accusation filed against defend- 212 OCTOBER TERM, 1978 Opinion of the Court 442U.S. progeny clearly do not support such a result. The narrow intrusions involved in those cases were judged by a balancing test rather than by the general principle that Fourth Amendment seizures must be supported by the “long-prevailing standards” of probable cause, Brinegar v. United States, 338 U. S., at 176, only because these intrusions fell far short of the kind of intrusion associated with an arrest. Indeed, Brignoni-Ponce expressly refused to extend Terry in the manner respondent now urges. The Court there stated: “The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.” 422 U. S., at 881-882 (emphasis added). Accord, United States v. Martinez-Fuerte, supra, at 567. In contrast to the brief and narrowly circumscribed intrusions involved in those cases, the detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor’s home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was “free to go”; indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment’s requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an “arrest” under state law. The mere facts that petitioner was not told he was under arrest, was not “booked,” and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, see Cupp v. Murphy, 412 U. S. 291 (1973), obviously do not make petitioner’s ant and where great public interest existed in solving a brutal crime which had remained unsolved for a period of almost five months.” Id., at 303, 402 N. Y. S. 2d, at 492. DUNAWAY v. NEW YORK 213 200 Opinion of the Court seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. Indeed, any “exception” that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are “reasonable” only if based on probable cause. The central importance of the probable-cause requirement to the protection of a citizen’s privacy afforded by the Fourth Amendment’s guarantees cannot be compromised in this fashion. “The requirement of probable cause has roots that are deep in our history.” Henry v. United States, 361 U. S. 98, 100 (1959). Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that “common rumor or report, suspicion, or even ‘strong reason to suspect’ was not adequate to support a warrant for arrest.” Id., at 101 (footnotes omitted). The familiar threshold standard of probable cause for Fourth Amendment seizures reflects the benefit of extensive experience accommodating the factors relevant to the “reasonableness” requirement of the Fourth Amendment, and provides the relative simplicity and clarity necessary to the implementation of a workable rule. See Brinegar v. United States, supra, at 175-176. In effect, respondent urges us to adopt a multifactor balancing test of “reasonable police conduct under the circumstances” to cover all seizures that do not amount to technical arrests.15 But the protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases, especially when that balancing may be done in the first instance by police officers engaged in the “often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U. S. 10, 14 (1948). A single, familiar standard is essential to 15 See n. 14, supra. 214 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.16 Indeed, our recognition of these dangers, and our consequent reluctance to depart from the proved protections afforded by the general rule, are reflected in the narrow limitations emphasized in the cases employing the balancing test. For all but those narrowly defined intrusions, the requisite “balancing” has been performed in centuries of precedent and is embodied in the principle that seizures are “reasonable” only if supported by probable cause. Moreover, two important decisions since Terry confirm the conclusion that the treatment of petitioner, whether or not it is technically characterized as an arrest, must be supported by probable cause. Davis v. Mississippi, 394 U. S. 721 (1969), decided the Term after Terry, considered whether fingerprints taken from a suspect detained without probable cause must be excluded from evidence. The State argued that the detention “was of a type which does not require probable cause,” 394 U. S., at 726, because it occurred during an investigative, rather than accusatory, stage, and because it was for the sole purpose of taking fingerprints. Rejecting the State’s first argument, the Court warned: “[T]o argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment. Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention. Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our 16 While the rule proposed by respondent is not entirely clear, the Appellate Division cited with approval a test that would require an officer to weigh before any custodial interrogation “the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter.” See n. 14, supra. DUNAWAY v. NEW YORK 215 200 Opinion of the Court citizenry, whether these intrusions be termed ‘arrests’ or ‘investigatory detentions.’ ” Id., at 726-727. The State’s second argument in Davis was more substantial, largely because of the distinctions between taking fingerprints and interrogation: “Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person’s prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the ‘third degree.’ Finally, because there is no danger of destruction of fingerprints, the limited detention need not come unexpectedly or at an inconvenient time.” Id., at 727. In Davis, however, the Court found it unnecessary to decide the validity of a “narrowly circumscribed procedure for obtaining” the fingerprints of suspects without probable cause— in part because, as the Court emphasized, “petitioner was not merely fingerprinted during the . . . detention but also subjected to interrogation.” Id., at 728 (emphasis added). The detention therefore violated the Fourth Amendment. Brown n. Illinois, 422 U. S. 590 (1975), similarly disapproved arrests made for “investigatory” purposes on less than probable cause. Although Brown’s arrest had more of the trappings of a technical formal arrest than petitioner’s, such differences in form must not be exalted over substance.17 17 The officers drew their guns, informed Brown that he was under arrest, and handcuffed him. But Brown, unlike petitioner, was not a teenager; and the police had a report that he possessed a pistol and had used it on occasion, 422 U. S., at 594. The police in this case would have resorted to similar measures if petitioner had resisted being taken into custody. App. 117. 216 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. Once in the police station, Brown was taken to an interrogation room, and his experience was indistinguishable from petitioner’s. Our condemnation of the police conduct in Brown fits equally the police conduct in this case: “The impropriety of the arrest was obvious; awareness of the fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their testimony, that the purpose of their action was ‘for investigation’ or for ‘questioning.’ . . . The arrest, both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up.” Id., at 605. See also id., at 602. These passages from Davis and Brown reflect the conclusion that detention for custodial interrogation—regardless of its label—intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. We accordingly hold that the Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause, they seized petitioner and transported him to the police station for interrogation. Ill There remains the question whether the connection between this unconstitutional police conduct and the incriminating statements and sketches obtained during petitioner’s illegal detention was nevertheless sufficiently attenuated to permit the use at trial of the statements and sketches. See Wong Sun v. United States, 371 U. S. 471 (1963); Nardone v. United States, 308 U. S. 338 (1939); Silverthorne Dumber Co. v. United States, 251 U. S. 385 (1920). The New York courts have consistently held, and petitioner does not contest, that proper Miranda warnings were given and that his statements were “voluntary” for purposes of the Fifth Amendment. But Brown n. Illinois, supra, settled that DUNAWAY v. NEW YORK 217 200 Opinion of the Court “[t]he exclusionary rule, . . . when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth,” 422 U. S., at 601, and held therefore that “Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation.” Ibid. “If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. . . . Arrests made without warrant or without probable cause, for questioning or ‘investigation/ would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple, expedient of giving Miranda warnings.” Id., at 602. Consequently, although a confession after proper Miranda warnings may be found “voluntary” for purposes of the Fifth Amendment,18 this type of “voluntariness” is merely a “threshold requirement” for Fourth Amendment analysis, 422 U. S., at 604. Indeed, if the Fifth Amendment has been violated, the Fourth Amendment issue would not have to be reached. Beyond this threshold requirement, Brown articulated a test designed to vindicate the “distinct policies and interests of the Fourth Amendment.” Id., at 602. Following Wong Sun, the Court eschewed any per se or “but for” rule, and identified the relevant inquiry as “whether Brown’s statements were obtained by exploitation of the illegality of his arrest,” 422 U. S., at 600; see Wong Sun v. United States, supra, at 488. Brown’s focus on “the causal connection between the illegality and the confession,” 422 U. S., at 603, reflected the two policies behind the use of the exclusionary rule to effec 18 But see Westover v. United States, 384 U. S. 436, 494-497 (1966) (decided with Miranda v. Arizona). 218 OCTOBER TERM, 1978 Opinion of the Court 442U.S. tuate the Fourth Amendment. When there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts. Brown identified several factors to be considered “in determining whether the confession is obtained by exploitation of an illegal arrest [: t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, . .. and, particularly, the purpose and flagrancy of the official misconduct.... And the burden of showing admissibility rests, of course, on the prosecution.” Id., at 603-604.19 Examining the case before it, the Court readily concluded that the State had failed to sustain its burden of showing the confession was admissible. In the “less than two hours” that elapsed between the arrest and the confession “there was no intervening event of significance whatsoever.” Ibid. Furthermore, the arrest without probable cause had a “quality of purposefulness” in that it was an “expedition for evidence” admittedly undertaken “in the hope that something might turn up.” Id., at 605. The situation in this case is virtually a replica of the situation in Brown. Petitioner was also admittedly seized without probable cause in the hope that something might turn up, and confessed without any intervening event of significance.20 Nevertheless, three members of the Appellate Division purported to distinguish Brown on the ground that the police did not threaten or abuse petitioner (presumably putting aside his illegal seizure and detention) and that the police 19 See generally, 3 LaFave, supra n. 9, at 630-638; Comment, 25 Emory L. J. 227, 239-244 (1976); Comment, 13 Houston L. Rev. 753, 763-770 (1976). 20 The cases are even parallel in that both Brown and petitioner made subsequent statements, see n. 2, supra; Brown v. Illinois, 422 U. S., at 595-596, which in each case were “clearly the result and the fruit of the first.” Id., at 605, and n. 12. DUNAWAY v. NEW YORK 219 200 White, J., concurring conduct was “highly protective of defendant’s Fifth and Sixth Amendment rights.” 61 App. Div. 2d, at 303, 402 N. Y. S. 2d, at 493. This betrays a lingering confusion between “voluntariness” for purposes of the Fifth Amendment and the “causal connection” test established in Brown. Satisfying the Fifth Amendment is only the “threshold” condition of the Fourth Amendment analysis required by Brown. No intervening events broke the connection between petitioner’s illegal detention and his confession. To admit petitioner’s confession in such a case would allow “law enforcement officers to violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the ‘procedural safeguards’ of the Fifth.”21 Reversed. Mr. Justice Powell took no part in the consideration or decision of this case. Mr. Justice White, concurring. The opinion of the Court might be read to indicate that Terry n. Ohio, 392 U. S. 1 (1968), is an almost unique exception to a hard-and-fast standard of probable cause. As our prior cases hold, however, the key principle of the Fourth Amendment is reasonableness—the balancing of competing interests. E. g., Delaware v. Prouse, 440 U. S. 648, 653-654 (1979); Michigan v. Tyler, 436 U. S. 499, 506 (1978); Marshall v. Barlow’s, Inc., 436 U. S. 307, 321-322 (1978); United States v. Martinez-Fuerte, 428 U. S. 543, 555 (1976); United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975); Terry v. Ohio, supra, at 20-21; Camara v. Municipal Court, 387 U. S. 523, 536-537 (1967). But if courts and law enforcement officials are to have workable rules, see Rakas v. Illinois, 439 U. S. 128, 168 (1978) (dissenting opinion), this balancing must in large part be done on a categorical basis—not in an ad hoc, case-by- 21 Comment, 25 Emory L. J. 227, 238 (1976). 220 OCTOBER TERM, 1978 Stevens, J., concurring 442 U. S. case fashion by individual police officers. Cf. Mincey v. Arizona, 437 U. S. 385, 394—395 (1978). On the other hand, the need for rules of general applicability precludes neither the recognition in particular cases of extraordinary private or public interests, cf. Zurcher v. Stanford Daily, 436 U. S. 547, 564-565 (1978), nor the generic recognition of certain exceptions to the normal rule of probable cause where more flexibility is essential. Cf., e. g., Terry v. Ohio, supra. It is enough, for me, that the police conduct here is similar enough to an arrest that the normal level of probable cause is necessary before the interests of privacy and personal security must give way. Mr. Justice Stevens, concurring. Although I join the Court’s opinion, I add this comment on the significance of two factors that may be considered when determining whether a confession has been obtained by exploitation of an illegal arrest. The temporal relationship between the arrest and the confession may be an ambiguous factor. If there are no relevant intervening circumstances, a prolonged detention may well be a more serious exploitation of an illegal arrest than a short one. Conversely, even an immediate confession may have been motivated by a prearrest event such as a visit with a minister. The flagrancy of the official misconduct is relevant, in my judgment, only insofar as it has a tendency to motivate the defendant. A midnight arrest with drawn guns will be equally frightening whether the police acted recklessly or in good faith. Conversely, a courteous command has the same effect on the arrestee whether the officer thinks he has probable cause or knows that he does not. In either event, if the Fourth Amendment is violated, the admissibility question will turn on the causal relationship between that violation and the defendant’s subsequent confession. I recognize that the deterrence rationale for the exclusion DUNAWAY v. NEW YORK 221 200 Rehnquist, J., dissenting ary rule is sometimes interpreted quite differently.1 Under that interpretation, exclusion is applied as a substitute for punishment of the offending officer; if he acted recklessly or flagrantly, punishment is appropriate, but if he acted in good faith, it is not.2 But when evidence is excluded at a criminal trial, it is the broad societal interest in effective law enforcement that suffers. The justification for the exclusion of evidence obtained by improper methods is to motivate the law enforcement profession as a whole—not the aberrant individual officer—to adopt and enforce regular procedures that will avoid the future invasion of the citizen’s constitutional rights. For that reason, exclusionary rules should embody objective criteria rather than subjective considerations. Mr. Justice Rehnquist, with whom The Chief Justice joins, dissenting. If the Court did no more in this case than it announced in the opening sentence of its opinion—“decide . . . the question reserved 10 years ago in Morales v. New York, 396 U. S. 102 (1969), namely, The question of the legality of custodial questioning on less than probable cause for a full-fledged arrest’ ”—I would have little difficulty joining its opinion. The decision of this question, however, does not, contrary to the implication in the Court’s opening sentence, decide this case. For the Court goes on to conclude that petitioner Dunaway was in fact “seized” within the meaning of the Fourth Amendment, and that the connection between Dunaway’s purported detention and the evidence obtained therefrom was not sufficiently attenuated as to dissipate the taint of the alleged unlawful police conduct. Ante, at 207, 216-219. I cannot agree with either conclusion, and accordingly, I dissent. 1 See, e. g., Mr. Justice Rehnquist, dissenting, post, at 226. 21 would agree that the officer’s subjective state of mind is relevant when he is being sued for damages, but this case involves the question whether the evidence he has obtained is admissible at trial. 222 OCTOBER TERM, 1978 Rehnquist, J., dissenting 442U.S. I There is obviously nothing in the Fourth Amendment that prohibits police from calling from their vehicle to a particular individual on the street and asking him to come over and talk with them; nor is there anything in the Fourth Amendment that prevents the police from knocking on the door of a person’s house and when the person answers the door, inquiring whether he is willing to answer questions that they wish to put to him. “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons.” Terry v. Ohio, 392 U. S. 1, 19 n. 16 (1968). Voluntary questioning not involving any “seizure” for Fourth Amendment purposes may take place under any number of varying circumstances. And the occasions will not be few when a particular individual agrees voluntarily to answer questions that the police wish to put to him either on the street, at the station, or in his house, and later regrets his willingness to answer those questions. However, such morning-after regrets do not render involuntary responses that were voluntary at the time they were made. In my view, this is a case where the defendant voluntarily accompanied the police to the station to answer their questions. In Terry v. Ohio, the Court set out the test for determining whether a person has been “seized” for Fourth Amendment purposes. “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Ibid. In this case three police officers were dispatched to petitioner’s house to question him about his participation in a robbery According to the testimony of the police officers, one officer approached a house where petitioner was thought to be located and knocked on the door. When a person answered the door, the officer identified himself and asked the individual his name. App. 97-98. After learning that the person who answered the door was DUNAWAY v. NEW YORK 223 200 Rehnquist, J., dissenting petitioner, the officer asked him if he would accompany the officers to police headquarters for questioning, and petitioner responded that he would. Id., at 89-90; see 61 App. Div. 2d 299, 301, 402 N. Y. S. 2d 490, 491 (1978). Petitioner was not told that he was under arrest or in custody and was not warned not to resist or flee. No weapons were displayed and petitioner was not handcuffed. Each officer testified that petitioner was not touched or held during the trip downtown; his freedom of action was not in any way restrained by the police. App. 78-79, 99. In short, the police behavior in this case was entirely free of “physical force or show of authority.” The Court, however, categorically states in text that “[t]here can be little doubt that petitioner was ‘seized’ in the Fourth Amendment sense when he was taken involuntarily to the police station.” Ante, at 207. In an accompanying footnote, the Court states: “Respondent contends that petitioner accompanied the police voluntarily and therefore was not ‘seized.’ . . . The County Court found otherwise . . . and the Appellate Division treated the case as an involuntary detention justified by reasonable suspicion.” Ante, at 207 n. 6. The Court goes on to cite a commentary from the Tentative Draft of the ALI Model Code of Pre-Arraignment Procedure to the effect that a “request to come to [the] police station ‘may easily carry an implication of obligation, while the appearance itself, unless clearly stated to be voluntary, may be an awesome experience for the ordinary citizen.’ ” Ibid. The Court’s heavy reliance on the conclusions of the Monroe County Court on this issue is misplaced, however. That court clearly did not apply the Terry standard in determining whether there had been a seizure. Instead, that court’s conclusions were based solely on the facts that petitioner was in the physical custody of detectives until he reached police headquarters and that “had he attempted to leave the company of the said detectives, they would have physically restrained him (per stipulation of People at conclusion of hearing).” App. 117. But the fact that the officers accompanied 224 OCTOBER TERM, 1978 Rehnquist, J., dissenting 442 U. S. petitioner from his house to the station in no way vitiates the State’s claim that petitioner acted voluntarily. Similarly, the unexpressed intentions of police officers as to hypothetical situations have little bearing on the question whether the police conduct, objectively viewed, restrained petitioner’s liberty by show of force or authority. The Appellate Division’s opinion also can be of no assistance to the Court. The Court’s opinion characterizes the Appellate Division’s treatment of the case “as an involuntary detention justified by reasonable suspicion.” Ante, at 207 n. 6. But the Appellate Division did not accept the County Court’s conclusion that petitioner did not voluntarily accompany the police to the station. To the contrary, in its recitation of the facts, the Appellate Division recites the officers’ testimony that petitioner voluntarily agreed to come downtown to talk with them. 61 App. Div. 2d, at 301, 302, 402 N. Y. S. 2d, at 491, 492. That the Appellate Division found that it was able to resolve the case on the basis of the Court of Appeals’ decision in People n. Morales, 42 N. Y. 2d 129, 366 N. E. 2d 248 (1977), does not mean that the Appellate Division decided that petitioner had been “seized” within the meaning of the Fourth Amendment. Finally, the Court quotes the Model Code for Pre-Arraignment Procedure to support its assertion. Ante, at 207 n. 6. I do not dispute the fact that a police request to come to the station may indeed be an “awesome experience.” But I do not think that that fact alone means that in every instance where a person assents to a police request to come to headquarters, there has been a “seizure” within the meaning of the Fourth Amendment. The question turns on whether the officer’s conduct is objectively coercive or physically threatening, not on the mere fact that a person might in some measure feel cowed by the fact that a request is made by a police officer. Cf. Oregon v. Mathiason, 429 U. S. 492, 495 (1977).1 1 Neither Davis v. Mississippi, 394 U. S. 721 (1969), nor Brown v. Illinois, 422 U. S. 590 (1975), which the Court treats as points of depar- DUNAWAY v. NEW YORK 225 200 Rehnquist, J., dissenting Therefore, although I agree that the police officers in this case did not have that degree of suspicion or probable cause that would have justified them in physically compelling petitioner to accompany them to the police station for questioning, I do not believe that the record demonstrates as a fact that this is what happened. No involuntary detention for questioning was shown to have taken place. The Fourth Amendment, accordingly, does not require suppression of petitioner’s statements. II Assuming, arguendo, that there was a “seizure” in this case, I still cannot agree with the Court that the Fourth Amendment requires suppression of petitioner’s statements and sketches. Relying on Brown n. Illinois, 422 U. S. 590 (1975), the Court concludes that this evidence must be suppressed primarily, it seems, because no intervening events broke the connection between petitioner’s detention and his confession. Ante, at 219. In my view, the connection between petitioner’s allegedly unlawful detention and the incriminating statements and sketches is sufficiently attenuated to permit their use at trial. See Wong Sun v. United States, 371 U. S. 471 (1963). ture for today’s opinion, supports the Court’s conclusion that petitioner was “seized” within the meaning of the Fourth Amendment. In Davis, the State made no claim that Davis had voluntarily accompanied the police officers to headquarters. 394 U. S., at 726. Similarly, in Brown there could be no reasonable disagreement that the defendant had been “seized” for Fourth Amendment purposes. In Brown, two detectives of the Chicago police force broke into Brown’s apartment and searched it. When Brown entered the apartment, he was told that he was under arrest, was held at gunpoint, and was searched. He then was handcuffed and escorted to the squad car that eventually took him to the police station. 422 U. S., at 593. No doubt this police activity was the cause of the Court’s observation that “[t]he illegality here, moreover, had a quality of purposefulness. . . . The manner in which Brown’s arrest was effected gives the appearance of having been calculated to cause surprise, fright, and confusion.” Id., at 605. No such circumstances occurred here. 226 OCTOBER TERM, 1978 Rehnquist, J., dissenting 442U.S. In Brown v. Illinois, supra, we identified several factors to be considered in determining whether inculpatory statements were sufficiently a product of free will to be admissible under the Fourth Amendment. The voluntariness of the statements is a threshold requirement. That Miranda warnings are given is “an important factor.” 422 U. S., at 603-604. Also relevant are “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, . . . and, particularly, the purpose and flagrancy of the official misconduct.” Ibid. But the Court did not assign equal weight to each of these factors. Given the deterrent purposes of the exclusionary rule, the “purpose and flagrancy” of the police conduct is, in my view, the most important factor. Where police have acted in good faith and not in a flagrant manner, I would require no more than that proper Miranda warnings be given and that the statement be voluntary within the meaning of the Fifth Amendment. Brown v. Illinois, supra, at 612 (Powell, J., concurring in part). “Absent aggravating circumstances, I would consider a statement given at th^ station house after one has been advised of Miranda rights to be sufficiently removed from the immediate circumstances of the illegal arrest to justify its admission at trial.” Ibid. The Court concedes that petitioner received proper Miranda warnings and that his statements were “voluntary” for purposes of the Fifth Amendment. Ante, at 216. And the police acted in good faith. App. 61; see United States v. Peltier, 422 U. S. 531, 536-537 (1975). At the time of petitioner’s detention, the New York Court of Appeals had held that custodial questioning on less than probable cause for an arrest was permissible under the Fourth Amendment. People v. Morales, 22 N. Y. 2d 55, 238 N. E. 2d 307 (1968).2 Petitioner 2 This Court granted certiorari in Morales, but, as the Court points out, ante, at 205 n. 3, we ultimately reserved decision on the question of the legality of involuntary investigatory detention on less than probable cause. Morales v. New York, 396 U. S. 102 (1969). DUNAWAY v. NEW YORK 227 200 Rehnquist, J., dissenting testified that the police never threatened or abused him. App. 35. Petitioner voluntarily gave his first statement to police about an hour after he reached the police station and then gave another statement to police the following day. Contrary to the Court’s suggestion, the police conduct in this case was in no manner as flagrant as that of the police in Brown v. Illinois, supra. See 422 IT. S., at 605; n. 1, supra. Thus, in my view, the record convincingly demonstrates that the statements and sketches given police by petitioner were of sufficient free will as to purge the primary taint of his alleged illegal detention. I would, therefore, affirm the judgment of the Appellate Division of the Supreme Court of New York. 228 OCTOBER TERM, 1978 Syllabus 442 U. S. DAVIS v. PASSMAN CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 78-5072. Argued February 27, 1979—Decided June 5, 1979 Petitioner brought suit in Federal District Court alleging that respondent, who was a United States Congressman at the time this case commenced, had discriminated against petitioner on the basis of her sex, in violation of the Fifth Amendment, by terminating her employment as a deputy administrative assistant. Petitioner sought damages in the form of backpay, and jurisdiction was founded on the provisions of 28 U. S. C. § 1331 (a) that confer original jurisdiction on federal district courts of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 and arises under the Federal Constitution. The District Court ruled that petitioner had no private right of action, and the Court of Appeals ultimately held that “no right of action may be implied from the Due Process Clause of the fifth amendment.” Held: A cause of action and damages remedy can be implied directly under the Constitution when the Due Process Clause of the Fifth Amendment is violated. Cf. Bivens n. Six Unknown Fed. Narcotics Agents, 403 U. S. 388; Butz n. Economou, 438 U. S. 478. Pp. 233-249. (a) The equal protection component of the Fifth Amendment’s Due Process Clause confers on petitioner a federal constitutional right to be free from gender discrimination that does not serve important governmental objectives or is not substantially related to the achievement of such objectives. Pp. 234-235. (b) The term “cause of action,” as used in this case, refers to whether a plaintiff is a member of a class of litigants that may, as a matter of law, appropriately invoke the power of the court. Since petitioner rests her claim directly on the Due Process Clause of the Fifth Amendment, claiming that her rights under that Amendment have been violated and that she has no effective means other than the judiciary to vindicate these rights, she is an appropriate party to invoke the District Court’s general federal-question jurisdiction to seek relief, and she therefore has a cause of action under the Fifth Amendment. The Court of Appeals erred in using the criteria of Cort n. Ash, 422 U. S. 66, to conclude that petitioner lacked such a cause of action, since the question of who may enforce a statutory right is fundamentally different from the question of who may enforce a right protected by the Constitution. Pp. 236-244. DAVIS v. PASSMAN 229 228 Opinion of the Court (c) Petitioner should be able to redress her injury in damages if she is able to prevail on the merits. A damages remedy is appropriate, since it is a “remedial mechanism normally available in the federal courts,” Bivens, supra, at 397, since it would be judicially manageable without difficult questions of valuation or causation, and since there are no available alternative forms of relief. Moreover, if respondent’s actions are not shielded by the Speech or Debate Clause, the principle that legislators ought generally to be bound by the law as are ordinary persons applies. And there is “no explicit congressional declaration that persons” in petitioner’s position injured by unconstitutional federal employment discrimination “may not recover money damages from” those responsible for the injury. Ibid. To afford petitioner a damages remedy does not mean that the federal courts will be deluged with claims, as the Court of Appeals feared. Moreover, current limitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles. Pp. 245-249. 571 F. 2d 793, reversed and remanded. Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Stevens, JJ., joined. Burger, C. J., filed a dissenting opinion, in which Powell and Rehnquist, JJ., joined, post, p. 249. Stewart, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 251. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 251. Sana F. Shtasel argued the cause pro hac vice for petitioner. With her on the briefs were Peter Barton Hutt and Jeffrey S. Berlin. A. Richard Gear argued the cause and filed a brief for respondent.* Mr. Justice Brennan delivered the opinion of the Court. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), held that a “cause of action for damages” arises under *Briefs of amici curiae urging reversal were filed by Burt Neuborne and Bruce J. Ennis for the American Civil Liberties Union; and by Albert J. Beveridge III, Harold Himmelman, and Roderic V. 0. Boggs for Morris Udall et al. 230 442 U. S. OCTOBER TERM, 1978 Opinion of the Court the Constitution when Fourth Amendment rights are violated. The issue presented for decision in this case is whether a cause of action and a damages remedy can also be implied directly under the Constitution when .the Due Process Clause of the Fifth Amendment is violated. The Court of Appeals for the Fifth Circuit, en banc, concluded that “no civil action for damages” can be thus implied. 571 F. 2d 793, 801 (1978). We granted certiorari, 439 U. S. 925 (1978), and we now reverse. I At the time this case commenced, respondent Otto E. Passman was a United States Congressman from the Fifth Congressional District of Louisiana.1 On February 1, 1974, Passman hired petitioner Shirley Davis as a deputy administrative assistant.2 Passman subsequently terminated her employment, effective July 31, 1974, writing Davis that, although she was “able, energetic and a very hard worker,” he had concluded “that it was essential that the understudy to my Administrative Assistant be a man.” 3 App. 6. 1 Passman was defeated in the 1076 primary election, and his tenure in office ended January 3, 1977. 2 In her complaint, Davis avers that her “salary was $18,000.00 per year with the expectation of a promotion to defendant’s administrative assistant at a salary of $32,000.00 per year upon the imminent retirement of defendant’s current administrative assistant.” App. 4. Davis was not hired through the competitive service. See 2 U. S. C. §92. 3 The full text of Passman’s letter is as follows: Dear Mrs. Davis: My Washington staff joins me in saying that we miss you very much. But, in all probability, inwardly they all agree that I was doing you an injustice by asking you to assume a responsibility that was so trying and so hard that it would have taken all of the pleasure out of your work. I must be completely fair with you, so please note the following: You are able, energetic and a very hard worker. Certainly you command the respect of those with whom you work; however, on account of the unusually heavy work load in my Washington Office, and the diversity DAVIS v. PASSMAN 231 228 Opinion of the Court Davis brought suit in the United States District Court for the Western District of Louisiana, alleging that Passman’s conduct discriminated against her “on the basis of sex in violation of the United States Constitution and the Fifth Amendment thereto.” Id., at 4. Davis sought damages in the form of backpay. Id., at 5.4 Jurisdiction for her suit was founded on 28 U. S. C. § 1331 (a), which provides in pertinent part that federal “district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 . . . and arises under the Constitution ... of the United States ....” of the job, I concluded that it was essential that the understudy to my Administrative Assistant be a man. I believe you will agree with this conclusion. It would be unfair to you for me to ask you to waste your talent and experience in my Monroe office because of the low salary that is available because of a junior position. Therefore, and so that your experience and talent may be used to advantage in some organization in need of an extremely capable secretary, I desire that you be continued on the payroll at your present salary through July 31, 1974. This arrangement gives you your full year’s vacation of one month, plus one additional month. May I further say that the work load in the Monroe office is very limited, and since you would come in as a junior member of the staff at such a low salary, it would actually be an offense to you. I know that secretaries with your ability are very much in demand in Monroe. If an additional letter of recommendation from me would be advantageous to you, do not hesitate to let me know. Again, assuring you that my Washington staff and your humble Congressman feel that the contribution you made to our Washington office has helped all of us. With best wishes, Sincerely, /s/ Otto E. Passman OTTO E. PASSMAN Member of Congress App. 6-7. 4 Davis also sought equitable relief in the form of reinstatement, as well as a promotion and salary increase. Id., at 4-5. Since Passman is no longer a Congressman, however, see n. 1, supra, these forms of relief are no longer available. 232 OCTOBER TERM, 1978 Opinion of the Court 442U.S. Passman moved to dismiss Davis’ action for failure to state a claim upon which relief can be granted, Fed. Rule Civ. Proc. 12 (b)(6), arguing, inter alia, that “the law affords no private right of action” for her claim.5 App. 8. The District Court accepted this argument, ruling that Davis had “no private right of action.” Id., at 9.6 A panel of the Court of Appeals for the Fifth Circuit reversed. 544 F. 2d 865 (1977). The panel concluded that a cause of action for damages arose directly under the Fifth Amendment; that, taking as true the allegations in Davis’ complaint, Passman’s conduct violated the Fifth Amendment; and that Passman’s conduct was not shielded by the Speech or Debate Clause of the Constitution, Art. I, § 6, cl. I.7 The Court of Appeals for the Fifth Circuit, sitting en banc, reversed the decision of the panel. The en banc court did not reach the merits, nor did it discuss the application of the Speech or Debate Clause. The court instead held that “no right of action may be implied from the Due Process Clause of the fifth amendment.” 571 F. 2d, at 801. The court reached this conclusion on the basis of the criteria that had been set out in Cort v. Ash, 422 U. S. 66 (1975), for determining whether a private cause of action should be implied from a federal statute.8 Noting that Congress had failed to create a 5 Passman also argued that his alleged conduct was “not violative of the Fifth Amendment to the Constitution,” and that relief was barred “by reason of the sovereign immunity doctrine and the official immunity doctrine.” App. 8. 6 The District Court also ruled that, although “the doctrines of sovereign and official immunity” did not justify dismissal of Davis’ complaint, “the discharge of plaintiff on alleged grounds of sex discrimination by defendant is not violative of the Fifth Amendment to the Constitution.” Id., at 9. 7 The panel also held that, although sovereign immunity did not bar a damages award against Passman individually, he was entitled at trial to a defense of qualified immunity. 8 The criteria set out in Cort v. Ash are: “First, is the plaintiff ‘one of the class for whose especial benefit the statute was enacted,’ Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33, 39 DAVIS v. PASSMAN 233 228 Opinion of the Court damages remedy for those in Davis’ position, the court also concluded that “the proposed damage remedy is not constitutionally compelled” so that it was not necessary to “countermand the clearly discernible will of Congress” and create such a remedy. 571 F. 2d, at 800. II In Bivens v. Six Unknown Fed. Narcotics Agents, federal agents had allegedly arrested and searched Bivens without (1916) (emphasis supplied)—that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e. g., National Railroad Passenger Corp. v. National Assn, of Railroad Passengers, 414 U. S. 453, 458, 460 (1974) {Amtrak). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e. g., Amtrak, supra; Securities Investor Protection Corp. v. Barbour, 421 U. S. 412, 423 (1975); Calhoon v. Harvey, 379 U. S. 134 (1964). And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U. S. 647, 652 (1963); cf. J. I. Case Co. n. Borak, 377 U. S. 426, 434 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388, 394^395 (1971); id., at 400 (Harlan, J., concurring in judgment).” 422 U. S., at 78. The Court of Appeals had some difficulty applying these criteria to determine whether a cause of action should be implied under the Constitution. It eventually concluded, however, (1) that although “the fifth amendment right to due process certainly confers a right upon Davis, the injury alleged here does not infringe this right as directly as” the violation of the Fourth Amendment rights alleged in Bivens, 571 F. 2d, at 797; (2) that “[congressional remedial legislation for employment discrimination has carefully avoided creating a cause of action for money damages for one in Davis’ position,” id., at 798; (3) that, unlike violations of the Fourth Amendment, “the breadth of the concept of due process indicates that the damage remedy sought will not be judicially manageable,” id., at 799; and (4) that implying a cause of action under the Due Process Clause would create “the danger of deluging federal courts with claims otherwise redressable in state courts or administrative proceedings . . . .” Id., at 800. 234 OCTOBER TERM, 1978 Opinion of the Court 442U.S. probable cause, thereby subjecting him to great humiliation, embarrassment, and mental suffering. Bivens held that the Fourth Amendment guarantee against “unreasonable searches and seizures” was a constitutional right which Bivens could enforce through a private cause of action, and that a damages remedy was an appropriate form of redress. Last Term, Butz v. Economou, 438 U. S. 478 (1978), reaffirmed this holding, stating that “the decision in Bivens established that a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal-question jurisdiction of the district courts to obtain an award of monetary damages against the responsible federal official.” Id., at 504. Today we hold that Bivens and Butz require reversal of the holding of the en banc Court of Appeals. Our inquiry proceeds in three stages. We hold first that, pretermitting the question whether respondent’s conduct is shielded by the Speech or Debate Clause, petitioner asserts a constitutionally protected right; second, that petitioner has stated a cause of action which asserts this right; and third, that relief in damages constitutes an appropriate form of remedy. A The Fifth Amendment provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law . . . .” In numerous decisions, this Court “has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws. E. g., Hampton v. Mow Sun Wong, 426 U. S. 88, 100 (1976); Buckley v. Valeo, 424 U. S. 1, 93 (1976); Weinberger v. Wiesenfeld, 420 U. S. 636, 638 n. 2 (1975); Bolling v. Sharpe, 347 U. S. 497, 500 (1954).” Vance v. Bradley, 440 U. S. 93, 95 n. 1 (1979). “To withstand scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause, ‘classifications by gender must serve important governmental objectives and must be DAVIS v. PASSMAN 235 228 Opinion of the Court substantially related to achievement of those objectives.’ Craig v. Boren, 429 U. S. 190, 197 (1976).”9 Calif ano v. Webster, 430 U. S. 313, 316-317 (1977). The equal protection component of the Due Process Clause thus confers on petitioner a federal constitutional right10 to be free from gender discrimination which cannot meet these requirements.11 9 Before it can be determined whether petitioner’s Fifth Amendment right has been violated, therefore, inquiry must be undertaken into what “important governmental objectives,” if any, are served by the genderbased employment of congressional staff. See n. 21, infra. We express no views as to the outcome of this inquiry. 10 This right is personal; it is petitioner, after all, who must suffer the effects of such discrimination. See Cannon v. University of Chicago, 441 U. S. 677, 690-693, n. 13 (1979); cf. Monongahela Navigation Co. v. United States, 148 U. S. 312, 326 (1893). 11 Respondent argues that the subject matter of petitioner’s suit is non-justiciable because judicial review of congressional employment decisions would necessarily involve a “lack of the respect due coordinate branches of government.” Baker v. Carr, 369 U. S. 186, 217 (1962). We disagree. While we. acknowledge the gravity of respondent’s concerns, we hold that judicial review of congressional employment decisions is constitutionally limited only by the reach of the Speech or Debate Clause of the Constitution, Art. I, § 6, cl. 1. The Clause provides that Senators and Representatives, “for any Speech or Debate in either House, . . . shall not be questioned in any other Place.” It protects Congressmen for conduct necessary to perform their duties “within the ‘sphere of legitimate legislative activity.’ ” Eastland v. United States Servicemen’s Fund, 421 U. S. 491, 501 (1975). The purpose of the Clause is “to protect the integrity of the legislative process by insuring the independence of individual legislators.” United States v. Brewster, 408 U. S. 501, 507 (1972). Thus “[i]n the American governmental structure the clause serves the . . . function of reinforcing the separation of powers so deliberately established by the Founders.” United States v. Johnson, 383 U. S. 169, 178 (1966). The Clause is therefore a paradigm example of “a textually demonstrable constitutional commitment of [an] issue to a coordinate political department.” Baker v. Carr, supra, at 217. Since the Speech or Debate Clause speaks so directly to the separation-of-powers concerns raised by respondent, we conclude that if respondent is not shielded by the Clause, the question whether his dismissal of petitioner violated her Fifth Amend- 236 OCTOBER TERM, 1978 Opinion of the Court 442U.S. We inquire next whether petitioner has a cause of action to assert this right. B It is clear that the District Court had jurisdiction under 28 U. S. C. § 1331 (a) to consider petitioner’s claim. Bell v. Hood, 327 U. S. 678 (1946). It is equally clear, and the en banc Court of Appeals so held, that the Fifth Amendment confers on petitioner a constitutional right to be free from illegal discrimination.12 Yet the Court of Appeals concluded ment rights would, as we stated in Powell n. McCormack, 395 U. S. 486, 548-549 (1969), “require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a ‘lack of respect due [a] coordinate branch of government,’ nor does it involve an ‘initial policy determination of a kind clearly for non-judicial discretion.’ Baker v. Carr, 369 U. S. 186, at 217.” The en banc Court of Appeals did not decide whether the conduct of respondent was shielded by the Speech or Debate Clause. In the absence of such a decision, we also intimate no view on this question. We note, however, that the Clause shields federal legislators with absolute immu-nity “not only from the consequences of litigation’s results but also from the burden of defending themselves.” Dombrowski v. Eastland, 387 U. S. 82, 85 (1967). Defenses based upon the Clause should thus ordinarily be given priority, since federal legislators should be exempted from litigation if their conduct is in fact protected by the Clause. We nevertheless decline to remand this case to the en banc Court of Appeals before we have decided whether petitioner’s complaint states a cause of action, and whether a damages remedy is an appropriate form of relief. These questions are otherwise properly before us and may be resolved without imposing on respondent additional litigative burdens. Refusal to decide them at this time may actually increase these burdens. 12 The restraints of the Fifth Amendment reach far enough to embrace the official actions of a Congressman in hiring' and dismissing his employees. That respondent’s conduct may have been illegal does not suffice to transform it into merely private action. “[P]ower, once granted, does not disappear like a magic gift when it is wrongfully used.” Bivens, 403 U. S., at 392. See Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278, 287-289 (1913). DAVIS v. PASSMAN 237 228 Opinion of the Court that petitioner could not enforce this right because she lacked a cause of action. The meaning of this missing “cause of action,” however, is far from apparent. Almost half a century ago, Mr. Justice Cardozo recognized that a “ ‘cause of action’ may mean one thing for one purpose and something different for another.” United States v. Memphis Cotton Oil Co., 288 U. S. 62, 67-68 (1933).13 The phrase apparently became a legal term of art when the New York Code of Procedure of 1848 abolished the distinction between actions at law and suits in equity and simply required a plaintiff to include in his complaint “[a] statement of the facts constituting the cause of action . . . .”14 1848 N. Y. Laws, ch. 379, § 120 (2). By the first third of the 20th century, however, the phrase had become so encrusted with doctrinal complexity that the authors of the Federal Rules of Civil Procedure eschewed it altogether, requiring only that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8 (a). See Original Ballet Russe, Ltd. n. Ballet Theatre, Inc., 133 F. 2d 187, 189 (CA2 1943). Nevertheless, courts and commentators have continued to use the phrase “cause of action” in the traditional sense established by the Codes to refer roughly to the alleged invasion of “recognized legal rights” upon which a litigant bases his claim for relief.15 13 See United States v. Dickinson, 331 U. S. 745, 748 (1947); Arnold, The Code “Cause of Action” Clarified by United States Supreme Court, 19 A. B. A. J. 215 (1933). 14 See Clark, The Code Cause of Action, 33 Yale L. J. 817, 820 (1924); Blume, The Scope of a Civil Action, 42 Mich. L. Rev. 257 (1943). 15 See, e. g., United States v. Employing Plasterers Assn., 347 U. S. 186 (1954); 2A J. Moore, Federal Practice 18.13, pp. 1704-1705 (2d ed. 1975) (“Perhaps it is not entirely accurate to say, as one court has said, that ‘it is only necessary to state a claim in the pleadings ... and not a cause of action.’ While the Rules have substituted ‘claim’ or ‘claim for relief’ in lieu of the older and troublesome term ‘cause of action,’ the pleading still must state a ‘cause of action’ in the sense that it must show ‘that the pleader is 238 OCTOBER TERM, 1978 Opinion of the Court 442U.S. Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 693 (1949). This is not the meaning of the “cause of action” which the Court of Appeals below refused to imply from the Fifth Amendment, however, for the court acknowledged that petitioner had alleged an invasion of her constitutional right to be free from illegal discrimination.16 Instead the Court of Appeals appropriated the meaning of the phrase “cause of action” used in the many cases in which this Court has parsed congressional enactments to determine whether the rights and obligations so created could be judicially enforced by a particular “class of litigants.” Cannon v. University of Chicago, 441 U. S. 677, 688 (1979). Securities Investor Protection Corp. v. Barbour, 421 U. S. 412 (1975), for example, held that although “Congress’ primary purpose in . . . creating the SIPC was . . . the protection of investors,” and although investors were thus “the intended beneficiaries of the [Securities Investor Protection] Act [of 1970],” 84 Stat. 1636, entitled to relief.’ It is not enough to indicate merely that the plaintiff has a grievance but sufficient detail must be given so that the defendant, and the court, can obtain a fair idea of what the plaintiff is complaining, and can see that there is some legal basis for recovery”) (footnotes omitted). There was, of course, great controversy concerning the exact meaning of the phrase “cause of action” in the Codes. See 2 J. Moore, Federal Practice If 2.06, p. 359 n. 26 (2d ed. 1978); J. Pomeroy, Code Remedies 459-466 (4th ed. 1904); Wheaton, The Code “Cause of Action”: Its Definition, 22 Cornell L. Q. 1 (1936); Clark, supra m 14, at 837. 16 The Court of Appeals apparently found that petitioner lacked a “cause of action” in the sense that a cause of action would have been supplied by 42 U. S. C. § 1983. Chapman v. Houston Welfare Rights Org., 441 U. S. 600 (1979), holds this Term that, although § 1983 serves “to ensure that an individual [has] a cause of action for violations of the Constitution,” the statute itself “does not provide any substantive rights at all.” Id., at 617, 618. Section 1983, of course, provides a cause of action only for deprivations of constitutional rights that occur “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory,” and thus has no application to this case. DAVIS v. PASSMAN 239 228 Opinion of the Court 15 U. S. C. § 78aaa et seq., investors nevertheless had no private cause of action judicially to compel SIPC “to commit its funds or otherwise to act for the protection” of investors. 421 U. S., at 418, 421. We held that under the Act only the Securities and Exchange Commission had a cause of action enabling it to invoke judicial authority to require SIPC to perform its statutory obligations. On the other hand, Texas & N. 0. R. Co. v. Railway & Steamship Clerks, 281 U. S. 548 (1930), held that § 2 of the Railway Labor Act of 1926, 44 Stat. 577, 45 U. S. C. § 152, which provides that railroad employees be able to designate representatives “without interference, influence, or coercion,” did not confer “merely an abstract right,” but was judicially enforceable through a private cause of action.17 281 U. S., at 558, 567-568. In cases such as these, the question is which class of litigants may enforce in court legislatively created rights or obligations. If a litigant is an appropriate party to invoke the power of the courts, it is said that he has a “cause of action” under the statute, and that this cause of action is a necessary element of his “claim.” So understood, the question whether a litigant has a “cause of action” is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive. The concept of a “cause of action” is employed specifically to determine who may judicially enforce the statutory rights or obligations.18 17 Texas & N. 0. R. Co. v. Railway & Steamship Clerks is now understood as having implied a “cause of action” although the opinion itself did not use the phrase. See Cannon n. University of Chicago, 441 U. S., at 690-693, n. 13. 18 Thus it may be said that jurisdiction is a question of whether a federal court has the power, under the Constitution or laws of the United States, to hear a case, see Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 384 (1884); Montana-Dakota Utilities Co. v. Northwestern Public Serv. Co., 341 U. S. 246, 249 (1951); standing is a question of whether a plaintiff is sufficiently adversary to a defendant to create an Art. Ill case or controversy, or 240 OCTOBER TERM, 1978 Opinion of the Court 442U.S. It is in this sense that the Court of Appeals concluded that petitioner lacked a cause of action. The Court of Appeals reached this conclusion through the application of the criteria set out in Cort v. Ash, 422 U. S. 66 (1975), for ascertaining whether a private cause of action may be implied from “a at least to overcome prudential limitations on federal-court jurisdiction, see Warth v. Seldin, 422 U. S. 490, 498 (1975); cause of action is a question of whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court; and relief is a question of the various remedies a federal court may make available. A plaintiff may have a cause of action even though he be entitled to no relief at all, as, for example, when a plaintiff sues for declaratory or injunctive relief although his case does not fulfill the “preconditions” for such equitable remedies. See Trainor v. Hernandez, 431 U. S. 434, 440-443 (1977). The Court of Appeals appeared to confuse the question of whether petitioner had standing with the question of whether she had asserted a proper Cause of action. See National Railroad Passenger Corp. n. National Assn, of Railroad Passengers, 414 U. S. 453, 465 n. 13 (1974). Although the court acknowledged the existence of petitioner’s constitutional right, 571 F. 2d, at 797-798, it concluded that she had no cause of action in part because “the injury alleged here does not infringe this right as directly as the injury inflicted in the unreasonable search of Webster Bivens offended the fourth amendment.” Id., at 797. The nature of petitioner’s injury, however, is relevant to the determination of whether she has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of diffi-cult constitutional questions.” Baker v. Carr, 369 U. S., at 204. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 72 (1978). And under the criteria we have set out, petitioner clearly has standing to bring this suit. If the allegations of her complaint are taken to be true, she has shown that she “personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 99 (1979). Whether petitioner has asserted a cause of action, however, depends not on the quality or extent of her injury, but on whether the class of litigants of which petitioner is a member may use the courts to enforce the right at issue. The focus must therefore be on the nature of the right petitioner asserts. DAVIS v. PASSMAN 241 228 Opinion of the Court statute not expressly providing one.” Id., at 78.19 The Court of Appeals used these criteria to determine that those in petitioner’s position should not be able to enforce the Fifth Amendment’s Due Process Clause, and that petitioner therefore had no cause of action under the Amendment. This was error, for the question of who may enforce a statutory right is fundamentally different from the question of who may enforce a right that is protected by the Constitution. Statutory rights and obligations are established by Congress, and it is entirely appropriate for Congress, in creating these rights and obligations, to determine in addition who may enforce them and in what manner. For example, statutory rights and obligations are often embedded in complex regulatory schemes, so that if they are not enforced through private causes of action, they may nevertheless be enforced through alternative mechanisms, such as criminal prosecutions, see Cort v. Ash, supra, or other public causes of actions. See Securities Investor Protection Corp. v. Barbour, supra; National Railroad Passenger Corp. v. National Assn, of Railroad Passengers, 414 U. S. 453, 457 (1974). In each case, however, the question is the nature of the legislative intent informing a specific statute, and Cort set out the criteria through which this intent could be discerned. The Constitution, on the other hand, does not “partake of the prolixity of a legal code.” McCulloch v. Maryland, 4 Wheat. 316, 407 (1819). It speaks instead with a majestic simplicity. One of “its important objects,” ibid., is the designation of rights. And in “its great outlines,” ibid., the judiciary is clearly discernible as the primary means through which these rights may be enforced. As James Madison stated when he presented the Bill of Rights to the Congress: “If [these rights] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they 19 See n. 8, supra. 242 OCTOBER TERM, 1978 Opinion of the Court 442U.S. will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.” 1 Annals of Cong. 439 (1789). At least in the absence of “a textually demonstrable constitutional commitment of [an] issue to a coordinate political department,” Baker n. Carr, 369 U. S. 186, 217 (1962), we presume that justiciable constitutional rights are to be enforced through the courts. And, unless such rights are to become merely precatory, the class of those litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights. “The very essence of civil liberty,” wrote Mr. Chief Justice Marshall in Marbury n. Madison, 1 Cranch 137, 163 (1803), “certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Traditionally, therefore, “it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the State to do.” Bell v. Hood, 327 U. S., at 684. See Bivens, 403 U. S., at 400 (Harlan, J., concurring in judgment). Indeed, this Court has already settled that a cause of action may be implied directly under the equal protection component of the Due Process Clause of the Fifth Amendment in favor of those who seek to enforce this constitutional right.20 The plaintiffs in Bolling v. Sharpe, 347 U. S. 497 20 Jacobs v. United States, 290 U. S. 13 (1933), held that a plaintiff who alleged that his property had been taken by the United States for public DAVIS v. PASSMAN 243 228 Opinion of the Court (1954), for example, claimed that they had been refused admission into certain public schools in the District of Columbia solely on account of their race. They rested their suit directly on the Fifth Amendment and on the general federal-question jurisdiction of the district courts, 28 U. S. C. § 1331. The District Court dismissed their complaint for failure “to state a claim upon which relief can be granted.” Fed. Rule Civ. Proc. 12(b)(6). This Court reversed. Plaintiffs were clearly the appropriate parties to bring such a suit, and this Court held that equitable relief should be made available. 349 U. S. 294(1955). Like the plaintiffs in Bolling v. Sharpe, supra, petitioner rests her claim directly on the Due Process Clause of the Fifth Amendment. She claims that her rights under the Amendment have been violated, and that she has no effective means other than the judiciary to vindicate these rights.21 use without just compensation could bring suit directly under the Fifth Amendment. 21 Clause 9 of Rule XLIII of the House of Representatives prohibits sex discrimination as part of the Code of Official Conduct of the House: “A Member, officer, or employee of the House of Representatives shall not discharge or refuse to hire any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Clause 9 was adopted on January 14, 1975, see 121 Cong. Rec. 22, approximately six months after petitioner’s discharge. In 1977, the House Commission on Administrative Review (“Obey Commission”) termed “the anti-discrimination provisions of Rule XLIII... all but unenforceable.” House Commission on Administrative Review, Recommendations and Rationales Concerning Administrative Units and Work Management, 95th Cong., 1st Sess., 53 (Comm. Print 1977). The Commission recommended the establishment of a Fair Employment Practices Panel to provide nonbinding conciliation in cases of alleged violations of Clause 9. See H. Res. 766, 95th Cong., 1st Sess., § 504 (1977); Commission on Administrative Review, supra, at 52-53. This proposal was prevented from reaching the House floor, however, when the House defeated the Rule which 244 OCTOBER TERM, 1978 Opinion of the Court 442U.S. We conclude, therefore, that she is an appropriate party to invoke the general federal-question jurisdiction of the District Court to seek relief. She has a cause of action under the Fifth Amendment.22 Although petitioner has a cause of action, her complaint might nevertheless be dismissed under Rule 12 (b)(6) unless it can be determined that judicial relief is available. We therefore proceed to consider whether a damages remedy is an appropriate form of relief. would have governed consideration of the Obey Commission’s resolution. See 123 Cong. Rec. 33435-33444 (Oct. 12, 1977). On September 25, 1978, H. Res. 1380 was introduced calling for the implementation of Clause 9 through the creation of “a House Fair Employment Relations Board, a House Fair Employment Relations Office, and procedures for hearing and settling complaints alleging violations of Clause 9 of Rule XLIII . . . .” H. Res. 1380, 95th Cong., 2d Sess., §2 (1978). H. Res. 1380 was referred to the House Committees on Administration and Rules, where it apparently languished. See 124 Cong. Rec. 31334 (Sept. 25, 1978). The House failed to consider it before adjournment. There presently exists a voluntary House Fair Employment Practices Agreement. Members of the House who have signed the Agreement elect a House Fair Employment Practices Committee, which has authority to investigate cases of alleged discrimination among participating Members. The Committee has no enforcement powers. 22 Five Courts of Appeals have implied causes of action directly under the Fifth Amendment. See Apton v. Wilson, 165 U. S. App. D. C. 22, 506 F. 2d 83 (1974); Sullivan v. Murphy, 156 U. S. App. D. C. 28, 478 F. 2d 938 (1973); United States ex rel. Moore n. Koelzer, 457 F. 2d 892 (CA3 1972); Loe v. Armistead, 582 F. 2d 1291 (CA4 1978), cert, pending sub nom. Moffit v. Loe, No. 78-1260; States Marine Lines, Inc. v. Shultz, 498 F. 2d 1146 (CA4 1974); Green v. Carlson, 581 F. 2d 669 (CA7 1978), cert, pending, No. 78-1261; Jacobson v. Tahoe Regional Planning Agency, 566 F. 2d 1353 (CA9 1977), reversed in part and affirmed in part on other grounds sub nom. Lake Country Estates, Inc. n. Tahoe Regional Planning Agency, 440 U. S. 391 (1979); Bennett v. Campbell, 564 F. 2d 329 (CA9 1977). DAVIS v. PASSMAN 245 228 Opinion of the Court c We approach this inquiry on the basis of established law. “[I]t is . . . well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.” Bell v. Hood, 327 U. S., at 684. Bivens, 403 U. S., at 396, holds that in appropriate circumstances a federal district court may provide relief in damages for the violation of constitutional rights if there are “no special factors counselling hesitation in the absence of affirmative action by Congress.” See Butz n. Econ-omou, 438 U. S., at 504. First, a damages remedy is surely appropriate in this case. “Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” Bivens, supra, at 395. Relief in damages would be judicially manageable, for the case presents a focused remedial issue without difficult questions of valuation or causation. See 403 U. S., at 409 (Harlan, J., concurring in judgment). Litigation under Title VII of the Civil Rights Act of 1964 has given federal courts great experience evaluating claims for backpay due to illegal sex discrimination. See 42 U. S. C. § 2000e-5 (g). Moreover, since respondent is no longer a Congressman, see n. 1, supra, equitable relief in the form of reinstatement would be unavailing. And there are available no other alternative forms of judicial relief. For Davis, as for Bivens, “it is damages or nothing.” 23 Bivens, supra, at 410 (Harlan, J., concurring in judgment). 23 Respondent does not dispute petitioner’s claim that she “has no cause of action under Louisiana law.” Brief for Petitioner 19. See 3 CCH Employment Practices I23,548 (Aug. 1978). And it is far from clear that a state court would have authority to effect a damages remedy against a United States Congressman for illegal actions in the course of his official conduct, even if a plaintiff’s claim were grounded in the United States Constitution. See Tarble’s Case, 13 Wall. 397 (1872). Deference to 246 OCTOBER TERM, 1978 Opinion of the Court 442U.S. Second, although a suit against a Congressman for putatively unconstitutional actions taken in the course of his official conduct does raise special concerns counseling hesitation, we hold that these concerns are coextensive with the protections afforded by the Speech or Debate Clause.24 See n. 11, supra. If respondent’s actions are not shielded by the Clause, we apply the principle that “legislators ought. . . generally to be bound by [the law] as are ordinary persons.” Gravel n. United States, 408 U. S. 606, 615 (1972). Cf. Doe v. McMillan, 412 U. S. 306, 320 (1973). As Butz v. Economou stated only last Term: “Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law: “ ‘No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.’ United States v. Lee, 106 U. S. [196,] 220 [ (1882) ].” 438 U. S., at 506.25 Third, there is in this case “no explicit congressional declara state-court adjudication in a case such as this would in any event not serve the purposes of federalism, since it involves the application of the Fifth Amendment to a federal officer in the course of his federal duties. It is therefore particularly appropriate that a federal court be the forum in which a damages remedy be awarded. 24 The reasoning and holding of Bivens is pertinent to the determination whether a federal court may provide a damages remedy. The question of the appropriateness of equitable relief in the form of reinstatement is not in this case, and we consequently intimate no view on that question. 25 The decision of the panel of the Court of Appeals for the Fifth Circuit found that respondent was not foreclosed “from asserting the same qualified immunity available to other government officials. See generally Wood v. Strickland, 420 U. S. 308 .. . (1975); Scheuer v. Rhodes, 416 U. S. 232 .. . (1974).” 544 F. 2d 865, 881 (1977). The en banc Court of Appeals did not reach this issue, and accordingly we express no view concerning its disposition by the panel. DAVIS v. PASSMAN 247 228 Opinion of the Court tion that persons” in petitioner’s position injured by unconstitutional federal employment discrimination “may not recover money damages from” those responsible for the injury. Bivens, supra, at 397. (Emphasis supplied.) The Court of Appeals apparently interpreted § 717 of Title VII of the Civil Rights Act of 1964, 86 Stat. Ill, 42 U. S. C. § 2000e-16, as an explicit congressional prohibition against judicial remedies for those in petitioner’s position. When § 717 was added to Title VII to protect federal employees from discrimination, it failed to extend this protection to congressional employees such as petitioner who are not in the competitive service.26 See 42 U. S. C. § 2000e-16 (a). There is no evidence, however, that Congress meant § 717 to foreclose alternative remedies available to those not covered by the statute. Such silence is far from “the clearly discernible will of Congress” perceived by the Court of Appeals. 571 F. 2d, at 800. Indeed, the Court of Appeals’ conclusion that § 717 permits judicial relief to be made available only to those who are protected by the statute is patently inconsistent with Hampton v. Mow Sun Wong, 426 U. S. 88 (1976), which held that equitable relief was available in a challenge to the constitutionality of Civil Service Commission regulations excluding aliens from federal employment. That § 717 does not prohibit discrimination on the basis of alienage27 did not prevent Hampton from authorizing relief. In a similar manner, we do not now interpret § 717 to foreclose the judicial remedies of those expressly unprotected by the statute. On the contrary, § 717 leaves undisturbed whatever remedies petitioner might otherwise possess. 26 Since petitioner was not in the competitive service, see n. 2, supra, the remedial provisions of § 717 of Title VII are not available to her. In Brown n. GSA, 425 U. S. 820 (1976), we held that the remedies provided by § 717 are exclusive when those federal employees covered by the statute seek to redress the violation of rights guaranteed by the statute. 27 Section 717 prohibits discrimination on the basis of “race, color, religion, sex, or national origin.” 42 U. S. C. § 2000e-16 (a). 248 OCTOBER TERM, 1978 Opinion of the Court 442U.S. Finally, the Court of Appeals appeared concerned that, if a damages remedy were made available to petitioner, the danger existed “of deluging federal courts with claims . . . .” 571 F. 2d, at 800. We do not perceive the potential for such a deluge. By virtue of 42 U. S. C. § 1983, a damages remedy is already available to redress injuries such as petitioner’s when they occur under color of state law. Moreover, a plaintiff seeking a damages remedy under the Constitution must first demonstrate that his constitutional rights have been violated. We do not hold that every tort by a federal official may be redressed in damages. See Wheeldin v. Wheeler, 373 U. S. 647 (1963). And, of course, were Congress to create equally effective alternative remedies, the need for damages relief might be obviated. See Bivens, 403 U. S., at 397. But perhaps the most fundamental answer to the concerns expressed by the Court of Appeals is that provided by Mr. Justice Harlan concurring in Bivens: “Judicial resources, I am well aware, are increasingly scarce these days. Nonetheless, when we automatically close the courthouse door solely on this basis, we implicitly express a value judgment on the comparative importance of classes of legally protected interests. And current limitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles.” Id., at 411. We conclude, therefore, that in this case, as in Bivens, if petitioner is able to prevail on the merits, she should be able to redress her injury in damages, a “remedial mechanism normally available in the federal courts.” Id., at 397. Ill We hold today that the Court of Appeals for the Fifth Circuit, en banc, must be reversed because petitioner has a DAVIS v. PASSMAN 249 228 Burger, C. J., dissenting cause of action under the Fifth Amendment, and because her injury may be redressed by a damages remedy. The Court of Appeals did not consider, however, whether respondent’s conduct was shielded by the Speech or Debate Clause of the Constitution. Accordingly, we do not reach this question. And, of course, we express no opinion as to the merits of petitioner’s complaint. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. Mr. Chief Justice Burger, with whom Mr. Justice Powell and Mr. Justice Rehnquist join, dissenting. I dissent because, for me, the case presents very grave questions of separation of powers, rather than Speech or Debate Clause issues, although the two have certain common roots. Congress could, of course, make Bwens-type remedies available to its staff employees—and to other congressional employees—but it has not done so. On the contrary, Congress has historically treated its employees differently from the arrangements for other Government employees. Historically, staffs of Members have been considered so intimately a part of the policymaking and political process that they are not subject to being selected, compensated, or tenured as others who serve the Government. The vulnerability of employment on congressional staffs derives not only from the hazards of elections but also from the imperative need for loyalty, confidentiality, and political compatibility—not simply to a political party, an institution, or an administration, but to the individual Member. A Member of Congress has a right to expect that every person on his or her staff will give total loyalty to the political positions of the Member, total confidentiality, and total support. This may, on occasion, lead a Member to employ a 250 OCTOBER TERM, 1978 Burger, C. J., dissenting 442 U. S. particular person on a racial, ethnic, religious, or gender basis thought to be acceptable to the constituency represented, even though in other branches of Government—or in the private sector—such selection factors might be prohibited. This might lead a Member to decide that a particular staff position should be filled by a Catholic or a Presbyterian or a Mormon, a Mexican-American or an Oriental-American—or a woman rather than a man. Presidents consciously select— and dispense with—their appointees on this basis and have done so since the beginning of the Republic. The very commission of a Presidential appointee defines the tenure as “during the pleasure of the President.” Although Congress altered the ancient “spoils system” as to the Executive Branch and prescribed standards for some limited segments of the Judicial Branch, it has allowed its own Members, Presidents, and Judges to select their personal staffs without limit or restraint—in practical effect their tenure is “during the pleasure” of the Member. At this level of Government—staff assistants of Members— long-accepted concepts of separation of powers dictate, for me, that until Congress legislates otherwise as to employment standards for its own staffs, judicial power in this area is circumscribed. The Court today encroaches on that barrier. Cf. Sinking-Fund Cases, 99 U. S. 700, 718 (1879). In relation to his or her constituents, and in the performance of constitutionally defined functions, each Member of the House or Senate occupies a position in the Legislative Branch comparable to that of the President in the Executive Branch; and for the limited purposes of selecting personal staffs, their authority should be uninhibited except as Congress itself, or the Constitution, expressly provides otherwise. The intimation that if Passman were still a Member of the House, a federal court could command him, on pain of contempt, to re-employ Davis represents an astonishing break with concepts of separate, coequal branches; I would categor DAVIS v. PASSMAN 251 228 Powell, J., dissenting ically reject the notion that courts have any such power in relation to the Congress. Mr. Justice Stewart, with whom Mr. Justice Rehnquist joins, dissenting. Few questions concerning a plaintiff’s complaint are more basic than whether it states a cause of action. The present case, however, involves a preliminary question that may be completely dispositive, for, as the Court recognizes, “the [Speech or Debate] Clause shields federal legislators with absolute immunity ‘not only from the consequences of litigation’s results but also from the burden of defending themselves.’ Dombrowski v. Eastland, 387 U. S. 82, 85 (1967).” Ante, at 236 n. 11. See also Eastland v. United States Servicemen's Fund, 421 U. S. 491, 503. If, therefore, the respondent’s alleged conduct was within the immunity of the Speech or Debate Clause, that is the end of this case, regardless of the abstract existence of a cause of action or a damages remedy. Accordingly, it seems clear to me that the first question to be addressed in this litigation is the Speech or Debate Clause claim—a claim that is far from frivolous. I would vacate the judgment and remand the case to the Court of Appeals with directions to decide the Speech or Debate Clause issue.* Mr. Justice Powell, with whom The Chief Justice and Mr. Justice Rehnquist join, dissenting. Although I join the opinion of The Chief Justice, I write separately to emphasize that no prior decision of this Court justifies today’s intrusion upon the legitimate powers of Members of Congress. *This issue was fully briefed and argued before the en banc Court of Appeals. The court’s opinion gives no indication of why the court did not decide it. 252 OCTOBER TERM, 1978 Powell, J., dissenting 442 U. S. The Court’s analysis starts with the general proposition that “the judiciary is clearly discernible as the primary means through which [constitutional] rights may be enforced,” ante, at 241. It leaps from this generalization, unexceptionable itself, to the conclusion that individuals who have suffered an injury to a constitutionally protected interest, and who lack an “effective” alternative, “must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights.” Ante, at 242 (emphasis supplied). Apart from the dubious logic of this reasoning, I know of no precedent of this Court that supports such an absolute statement of the federal judiciary’s obligation to entertain private suits that Congress has not authorized. On the contrary, I have thought it clear that federal courts must exercise a principled discretion when called upon to infer a private cause of action directly from the language of the Constitution. In the present case, for reasons well summarized by The Chief Justice, principles of comity and separation of powers should require a federal court to stay its hand. To be sure, it has been clear—at least since Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)—that in appropriate circumstances private causes of action may be inferred from provisions of the Constitution.1 But the exercise of this responsibility involves discretion, and a weighing of relevant concerns. As Mr. Justice Harlan observed in addressing this very point, a court should “take into account [a range of policy considerations] at least as broad as the range of those a legislature would consider with respect to an express statutory authorization of a traditional remedy.” Id., at 407. 1A court necessarily has wider latitude in interpreting the Constitution than it does in construing a statute, McCulloch n. Maryland, 4 Wheat. 316,407 (1819). Moreover, the federal courts have a far greater responsibility under the Constitution for the protection of those rights derived directly from it, than for the definition and enforcement of rights created solely by Congress. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S., at 407 (Harlan, J., concurring in judgment). DAVIS v. PASSMAN 253 228 Powell, J., dissenting Among those policies that a court certainly should consider in deciding whether to imply a constitutional right of action is that of comity toward an equal and coordinate branch of government.2 As Mr. Chief Justice Waite observed over a century ago: “One branch of government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.” Sinking-Fund Cases, 99 U. S. 700, 718 (1879). Even where the authority of one branch over a matter is not exclusive, so that a federal court properly may accept jurisdiction over the dispute, we have recognized that the principle of separation of powers continues to have force as a matter of policy. For example, in United States v. Nixon, 418 U. S. 683 (1974), we held on the one hand that the question whether the President had a claim of privilege as to conversations with his advisers was an issue to be resolved by the judiciary, and on the other hand that separation-of-powers considerations required the recognition of a qualified privilege. 2 It is settled that where discretion exists, a variety of factors rooted in the Constitution may lead a federal court to refuse to entertain an otherwise properly presented constitutional claim. See, e. g., Trainor v. Hernandez, 431 U. S. 434 (1977); Juidice v. Vail, 430 U. S. 327 (1977); Huffman v. Pursue, Ltd., 420 U. S. 592 (1975); Younger v. Harris, 401 U. S. 37 (1971); Alabama Public Service Comm’n n. Southern R. Co., 341 U. S. 341 (1951); Douglas v. City of Jeannette, 319 U. S. 157 (1943); Burford n. Sun Oil Co., 319 U. S. 315 (1943); Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941); Hawks v. Hamdi, 288 U. S. 52 (1933). Traditionally, the issue has arisen in the context of a federal court’s exercise of its equity powers with respect to the States. Concerns of comity similar to those that govern our dealings with the States also come into play when we are asked to interfere with the functioning of Congress. The Court suggests that because the Speech or Debate Clause of the Constitution embodies a separation-of-powers principle, the Constitution affords no further protection to the prerogatives of Members of Congress. Ante, at. 246. This assertion not only marks a striking departure from precedent, but also constitutes a non sequitur. Our constitutional structure of government rests on a variety of checks and balances; the existence of one such check does not negate all others. 254 OCTOBER TERM, 1978 Powell, J., dissenting 442U.S. Whether or not the employment decisions of a Member of Congress fall within the scope of the Speech or Debate Clause of the Constitution, a question the Court does not reach today,3 it is clear that these decisions are bound up with the conduct of his duties. As The Chief Justice observes, ante, at 249, a Congressman necessarily relies heavily on his personal staff in discharging the duties of his office. Because of the nature of his office, he must rely to an extraordinary extent on the loyalty and compatibility of everyone who works for him. Cf. Elrod v. Burns, 427 U. S. 347, 377-388 (1976) (Powell, J., dissenting). A Congressman simply cannot perform his constitutional duties effectively, or serve his constituents properly, unless he is supported by a staff in which he has total confidence. The foregoing would seem self-evident even if Congress had not indicated an intention to reserve to its Members the right to select, employ, promote, and discharge staff personnel without judicial interference. But Congress unmistakably has made clear its view on this subject. It took pains to exempt itself from the coverage of Title VII. Unless the Court is abandoning or modifying sub silentio our holding in Brown v. GSA, 425 U. S. 820 (1976)', that Title VII, as amended, “provides the exclusive judicial remedy for claims of discrimination in federal employment,” id., at 835, the exemption from this statute for congressional employees should bar all judicial relief. In sum, the decision of the Court today is not an exercise of principled discretion. It avoids our obligation to take into 3 It is quite doubtful whether the Court should not consider respondent’s Speech or Debate Clause claim as a threshold issue. The purpose of that Clause, when it applies, includes the protection of Members of Congress from the harassment of litigation. Since the Court chooses not to consider this claim, and addresses only the cause-of-action issue, I limit my dissent accordingly. In doing so, I imply no view as to the merits of the Speech or Debate Clause issue or to the propriety of not addressing the claim before all other issues. DAVIS v. PASSMAN 255 228 Powell, J., dissenting account the range of policy and constitutional considerations that we would expect a legislature to ponder in determining whether a particular remedy should be enacted. It fails to weigh the legitimate interests of Members of Congress. Indeed, the decision simply ignores the constitutional doctrine of separation of powers. In my view, the serious intrusion upon the authority of Members of Congress to choose and control their own personal staffs cannot be justified.4 I would affirm the judgment of the Court of Appeals. 4 The justification the Court relies upon is the duty of federal courts to vindicate constitutional rights—a duty no one disputes. But it never has been thought that this duty required a blind exercise of judicial power without regard to other interests or constitutional principles. Indeed, it would not be surprising for Congress to consider today’s action unwarranted and to exercise its authority to reassert the proper balance between the legislative and judicial branches. If the reaction took the form of limiting the jurisdiction of federal courts, the effect conceivably could be to frustrate the vindication of rights properly protected by the Court. 256 OCTOBER TERM, 1978 Syllabus 442 U. S. PERSONNEL ADMINISTRATOR OF MASSACHUSETTS et al. v. FEENEY APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS No. 78-233. Argued February 26, 1979—Decided June 5, 1979 During her 12-year tenure as a state employee, appellee, who is not a veteran, had passed a number of open competitive civil service examinations for better jobs, but because of Massachusetts’ veterans’ preference statute, she was ranked in each instance below male veterans who had achieved lower test scores than appellee. Under the statute, all veterans who qualify for state civil service positions must be considered for appointment ahead of any qualifying nonveterans. The statutory preference, which is available to “any person, male or female, including a nurse,” who was honorably discharged from the United States Armed Forces after at least 90 days of active service, at least one day of which was during “wartime,” operates overwhelmingly to the advantage of males. Appellee brought an action in Federal District Court, alleging that the absolute-preference formula established in the Massachusetts statute inevitably operates to exclude women from consideration for the best state civil service jobs and thus discriminates against women in violation of the Equal Protection Clause of the Fourteenth Amend-ment. A three-judge court declared the statute unconstitutional and enjoined its operation, finding that while the goals of the preference were legitimate and the statute had not been enacted for the purpose of discriminating against women, the exclusionary impact upon women was so severe as to require the State to further its goals through a more limited form of preference. On an earlier appeal, this Court vacated the judgment and remanded the case for further consideration in light of the intervening decision in Washington v. Davis, 426 U. S. 229, which held that a neutral law does not violate the Equal Protection Clause solely because it results in a racially disproportionate impact and that, instead, the disproportionate impact must be traced to a purpose to discriminate on the basis of race. Upon remand, the District Court reaffirmed its original judgment, concluding that a veterans’ hiring preference is inherently nonneutral because it favors a class from which women have traditionally been excluded, and that the consequences of the Massachusetts absolute-preference formula for the PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 257 256 Syllabus employment opportunities of women were too inevitable to have been “unintended.” Held: Massachusetts, in granting an absolute lifetime preference to veterans, has not discriminated against women in violation of the Equal Protection Clause of the Fourteenth Amendment. Pp. 271-281. (a) Classifications based upon gender must bear a close and substantial relationship to important governmental objectives. Although public employment is not a constitutional right and the States have wide discretion in framing employee qualifications, any state law overtly or covertly designed to prefer males over females in public employment would require an exceedingly persuasive justification to withstand a constitutional challenge under the Equal Protection Clause. Pp. 271-273. (b) When a statute gender-neutral on its face is challenged on the ground that its effects upon women are disproportionably adverse, a twofold inquiry is appropriate. The first question is whether the statutory classification is indeed neutral in the sense that it is not gender-based. If the classification itself, covert or overt, is not based upon gender, the second question is whether the adverse effect reflects invidious gender-based discrimination. Pp. 273-274. (c) Here, the appellee’s concession and the District Court’s finding that the Massachusetts statute is not a pretext for gender discrimination are clearly correct. Apart from the facts that the definition of “veterans” in the statute has always been neutral as to gender and that Massachusetts has consistently defined veteran status in a way that has been inclusive of women who have served in the military, this is not a law that can plausibly, or even rationally, be explained only as a genderbased classification. Significant numbers of non veterans are men, and all nonveterans male as well as female—are placed at a disadvantage. The distinction made by the Massachusetts statute is, as it seems to be, quite simply between veterans and nonveterans, not between men and women. Pp. 274r-275. (d) Appellee’s contention that this veterans’ preference is “inherently nonneutral” or “gender-biased” in the sense that it favors a status reserved under federal military policy primarily to men is wholly at odds with the District Court’s central finding that Massachusetts has not offered a preference to veterans for the purpose of discriminating against women; nor can it be reconciled with the assumption made by both the appellee and the District Court that a more limited hiring preference for veterans could be sustained, since the degree of the preference makes no constitutional difference. Pp. 276-278. (e) While it would be disingenuous to say that the adverse consequences of this legislation for women were unintended, in the sense 258 OCTOBER TERM, 1978 Syllabus 442 U.S. that they were not volitional or in the sense that they were not foreseeable, nevertheless “discriminatory purpose” implies more than intent as volition or intent as awareness of consequences; it implies that the decisionmaker selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group. When the totality of legislative actions establishing and extending the Massachusetts veterans’ preference are considered, the law remains what it purports to be: a preference for veterans of either sex over nonveterans of either sex, not for men over women. Pp. 278-280. (f) Although absolute and permanent preferences have always been subject to the objection that they give the veteran more than a square deal, the Fourteenth Amendment “cannot be made a refuge from ill-advised . . . laws.” District of Columbia v. Brooke, 214 U. S. 138, 150. The substantial edge granted to veterans by the Massachusetts statute may reflect unwise policy, but appellee has simply failed to demonstrate that the law in any way reflects a purpose to discriminate on the basis of sex. Pp. 280-281. 451 F. Supp. 143, reversed and remanded. Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, Blackmun, Rehnquist, and Stevens, J J., joined. Stevens, J., filed a concurring opinion, in which White, J., joined, post, p. 281. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 281. Thomas R. Kiley, Assistant Attorney General of Massachusetts, argued the cause for appellants. With him on the brief were Francis X. Bellotti, Attorney General, and Edward F. Vena, Assistant Attorney General. Richard P. Ward argued the cause for appellee. With him on the brief were Stephen B. Perlman, Eleanor D. Acheson, John H. Mason, and John Reinstein* *Briefs of amici curiae urging reversal were filed by Solicitor General McCree, Deputy Solicitor General Easterbrook, and William C. Bryson for the United States; and by John J. Curtin, Jr., for the American Legion. Samuel J. Rabinove and Phyllis N. Segal filed a brief for the National Organization for Women et al. as amici curiae urging affirmance. Briefs of amici curiae were filed by Deanne Siemer for the United States PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 259 256 Opinion of the Court Mr. Justice Stewart delivered the opinion of the Court. This case presents a challenge to the constitutionality of the Massachusetts veterans’ preference statute, Mass. Gen. Laws Ann., ch. 31, § 23, on the ground that it discriminates against women in violation of the Equal Protection Clause of the Fourteenth Amendment. Under ch. 31, § 23,1 all veterans who qualify for state civil service positions must be considered for appointment ahead of any qualifying nonveterans. The preference operates overwhelmingly to the advantage of males. The appellee Helen B. Feeney is not a veteran. She brought this action pursuant to 42 U. S. C. § 1983, alleging that the absolute-preference formula established in ch. 31, § 23, inevitably operates to exclude women from consideration for the best Massachusetts civil service jobs and thus unconstitutionally denies them the equal protection of the laws.2 The three-judge District Court agreed, one judge dissenting. Anthony v. Massachusetts, 415 F. Supp. 485 (Mass. 1976).3 Office of Personnel Management et al.; and by Paul D. Kamenar for the Washington Legal Foundation. 1For the text of ch. 31, §23, see n. 10, infra. The general Massachusetts Civil Service law, Mass. Gen. Laws Ann., ch. 31, was recodified on January 1, 1979, 1978 Mass. Acts, ch. 393, and the veterans’ preference is now found at Mass. Gen. Laws Ann., ch. 31, §26 (West 1979). Citations in this opinion, unless otherwise indicated, are to the ch. 31 codification in effect when this litigation was commenced. 2 No statutory claim was brought under Title VII of the Civil Rights Act of 1964, 42 IT S. C. § 2000e et seq. Section 712 of the Act, 42 IT. S. C. § 2000e-ll, provides that “[n]othing contained in this subchapter shall be construed to repeal or modify any Federal, State, territorial or local law creating special rights or preference for veterans.” The parties have evidently assumed that this provision precludes a Title VII challenge. 3 The appellee’s case had been consolidated with a similar action brought by Carol A. Anthony, a lawyer whose efforts to obtain a civil service Counsel I position had been frustrated by ch. 31, § 23. In 1975, Massachusetts exempted all attorney positions from the preference, 1975 Mass. Acts, ch. 134, and Anthony’s claims were accordingly found moot by the District Court. Anthony v. Massachusetts, 415 F. Supp., at 495. 260 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. The District Court found that the absolute preference afforded by Massachusetts to veterans has a devastating impact upon the employment opportunities of women. Although it found that the goals of the preference were worthy and legitimate and that the legislation had not been enacted for the purpose of discriminating against women, the court reasoned that its exclusionary impact upon women was nonetheless so severe as to require the State to further its goals through a more limited form of preference. Finding that a more modest preference formula would readily accommodate the State’s interest in aiding veterans, the court declared ch. 31, § 23, unconstitutional and enjoined its operation.4 Upon an appeal taken by the Attorney General of Massachusetts,5 this Court vacated the judgment and remanded the case for further consideration in light of our intervening decision in Washington v. Davis, 426 U. S. 229. Massachusetts v. Feeney, 434 U. S. 884. The Davis case held that a neutral law does not violate the Equal Protection Clause solely because it results in a racially disproportionate impact; instead the disproportionate impact must be traced to a purpose to discriminate on the basis of race. 426 U. S., at 238-244. Upon remand, the District Court, one judge concurring and one judge again dissenting, concluded that a veterans’ hiring preference is inherently nonneutral because it favors a class from which women have traditionally been excluded, and that 4 The District Court entered a stay pending appeal, but the stay was rendered moot by the passage of an interim statute suspending ch. 31, § 23, pending final judgment and replacing it with an interim provision granting a modified point preference to veterans. 1976 Mass. Acts, ch. 200, now codified at Mass. Gen. Laws Ann., ch. 31, §26 (West 1979). 5 The Attorney General appealed the judgment over the objection of other state officers named as defendants. In response to our certification of the question whether Massachusetts law permits this, see Massachusetts v. Feeney, 429 U. S. 66, the Supreme Judicial Court answered in the affirmative. Feeney n. Commonwealth, 373 Mass. 359, 366 N. E. 2d 1262 (1977). PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 261 256 Opinion of the Court the consequences of the Massachusetts absolute-preference formula for the employment opportunities of women were too inevitable to have been “unintended.” Accordingly, the court reaffirmed its original judgment. Feeney v. Massachusetts, 451 F. Supp. 143. The Attorney General again appealed to this Court pursuant to 28 U. S. C. § 1253, and probable jurisdiction of the appeal was noted. 439 U. S. 891. I A The Federal Government and virtually all of the States grant some sort of hiring preference to veterans.6 The Massachusetts preference, which is loosely termed an “absolute lifetime” preference, is among the most generous.7 It 6 The first comprehensive federal veterans’ statute was enacted in 1944. Veterans’ Preference Act of 1944, 58 Stat. 387. The Federal Government has, however, engaged in preferential hiring of veterans, through official policies and various special laws, since the Civil War. See, e. g., Res. of Mar. 3, 1865, No. 27, 13 Stat. 571 (hiring preference for disabled veterans). See generally House Committee on Veterans’ Affairs, The Provision of Federal Benefits for Veterans, An Historical Analysis of Major Veterans’ Legislation, 1862-1954, 84th Cong., 1st Sess., 258-265 (Comm. Print 1955). For surveys of state veterans’ preference laws, many of which also date back to the late 19th century,! see State Veterans’ Laws, Digests of State Laws Regarding Rights, Benefits, and Privileges of Vet-erns and Their Dependents, House Committee on Veterans’ Affairs, 91st Cong., 1st Sess. (1969); Fleming & Shanor, Veterans Preferences in Public Employment: Unconstitutional Gender Discrimination?, 26 Emory L. J. 13 (1977). 7 The forms of veterans’ hiring preferences vary widely. The Federal Government and approximately 41 States grant veterans a point advantage on civil service examinations, usually 10 points for a disabled veteran and 5 for one who is not disabled. See Fleming & Shanor, supra n. 6, at 17, and n. 12 (citing statutes). A few offer only tie-breaking preferences. Id., at n. 14 (citing statutes). A very few States, like Massachusetts, extend absolute hiring or positional preferences to qualified veterans. Id., at n. 13. See, e. g., N. J. Stat. Ann. § 11: 27-4 (West 1976) ; S. D. Comp. Laws Ann. §3-3-1 (1974); Utah Code Ann. §34-30-11 (1953); Wash. Rev. Code §§41.04.010, 73.16.010 (1976). 262 OCTOBER TERM, 1978 Opinion of the Court 442U.S. applies to all positions in the State’s classified civil service, which constitute approximately 60% of the public jobs in the State. It is available to “any person, male or female, including a nurse,” who was honorably discharged from the United States Armed Forces after at least 90 days of active service, at least one day of which was during “wartime.” 8 Persons who are deemed veterans and who are otherwise qualified for a particular civil service job may exercise the preference at any time and as many times as they wish.9 8 Massachusetts Gen. Laws Ann., ch. 4, §7, Forty-third (West 1976), which supplies the general definition of the term “veteran,” reads in pertinent part: “ ‘Veteran’ shall mean any person, male or female, including a nurse, (a) whose last discharge or release from his wartime service, as defined herein, was under honorable conditions and who (6) served in the army, navy, marine corps, coast guard, or air force of the United States for not less than ninety days active service, at least one day of which was for wartime service . . . .” Persons awarded the Purple Heart, ch. 4, § 7, Forty-third, or one of a number of specified campaign badges or the Congressional Medal of Honor are also deemed veterans. Mass. Gen. Laws Ann., ch. 31, §26 (West 1979). “Wartime service” is defined as service performed by a “Spanish War veteran,” a “World War I veteran,” a “World War II veteran,” a “Korean veteran,” a “Vietnam veteran,” or a member of the “WAAC.” Mass. Gen. Laws Ann., ch. 4, §7, Forty-third (West 1976). Each of these terms is further defined to specify a period of service. The statutory definitions, taken together, cover the entire period from September 16, 1940, to May 7, 1975. See ibid. “WAAC” is defined as follows: “any woman who was discharged and so served in any corps or unit of the United States established for the purpose of enabling women to serve with, or as auxiliary to, the armed forces of the United States and - such woman shall be deemed to be a veteran.” Ibid. 9 The Massachusetts preference law formerly imposed a residency requirement, see 1954 Mass. Acts, ch. 627, § 3 (eligibility conditioned upon Massachusetts domicile prior to induction or five years’ residency in State). The distinction was invalidated as violative of the Equal Protection Clause in Stevens v. Campbell, 332 F. Supp. 102, 105 (Mass 1971). Cf. August v. Bronstein, 369 F. Supp. 190 (SDNY 1974) (up- PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 263 256 Opinion of the Court Civil service positions in Massachusetts fall into two general categories, labor and official. For jobs in the official service, with which the proofs in this action were concerned, the preference mechanics are uncomplicated. All applicants for employment must take competitive examinations. Grades are based on a formula that gives weight both to objective test results and to training and experience. Candidates who pass are then ranked in the order of their respective scores on an “eligible list.” Chapter 31, § 23, requires, however, that disabled veterans, veterans, and surviving spouses and surviving parents of veterans be ranked—in the order of their respective scores—above all other candidates.10 Rank on the eligible list and availability for employment are the sole factors that determine which candidates are considered for appointment to an official civil service position. When a public agency has a vacancy, it requisitions a list of “certified eligibles” from the state personnel division. Under formulas prescribed by civil service rules, a small number of candidates from the top of an appropriate list, three if there is only one vacancy, are certified. The appointing agency holding, inter alia, nondurational residency requirement in New York veterans’ preference statute), summarily aff’d, 417 U. S. 901. 10 Chapter 31, §23, provides in full: “The names of persons who pass examinations for appointment to any position classified under the civil service shall be placed upon the eligible lists in the following order:— “(1) Disabled veterans ... in the order of their respective standing; (2) veterans in the order of their respective standing; (3) persons described in section twenty-three B [the widow or widowed mother of a veteran killed in action or who died from a service-connected disability incurred in wartime service and who has not remarried] in the order of their respective standing; (4) other applicants in the order of their respective standing. Upon receipt of a requisition, names shall be certified from such lists according to the method of certification prescribed by the civil service rules. A disabled veteran shall be retained in employment in preference to all other persons, including veterans.” A 1977 amendment extended the dependents’ preference to “surviving spouses,” and “surviving parents.” 1977 Mass. Acts, ch. 815. 264 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. is then required to choose from among these candidates.11 Although the veterans’ preference thus does not guarantee that a veteran will be appointed, it is obvious that the preference gives to veterans who achieve passing scores a well-nigh absolute advantage. B The appellee has lived in Dracut, Mass., most of her life. She entered the work force in 1948, and for the next 14 years worked at a variety of jobs in the private sector. She first entered the state civil service system in 1963, having competed successfully for a position as Senior Clerk Stenographer in the Massachusetts Civil Defense Agency. There she worked for four years. In 1967, she was promoted to the position of Federal Funds and Personnel Coordinator in the same agency. The agency, and with it her job, was eliminated in 1975. During her 12-year tenure as a public employee, Ms. Feeney took and passed a number of open competitive civil service examinations. On several she did quite well, receiving in 1971 the second highest score on an examination for a job with the Board of Dental Examiners, and in 1973 the third highest on a test for an Administrative Assistant position with a mental health center. Her high scores, however, did not win her a place on the certified eligible list. Because of the veterans’ preference, she was ranked sixth behind five male veterans on the Dental Examiner list. She was not certified, and a lower scoring veteran was eventually appointed. On the 1973 examination, she was placed in a position on the list behind 12 male veterans, 11 of whom had lower scores. Following the other examinations that she took, her name was similarly ranked below those of veterans who had achieved passing grades. 11A 1978 amendment requires the appointing authority to file a written statement of reasons if the person whose name was not highest is selected. 1978 Mass. Acts, ch. 393, § 11, currently codified at Mass. Gen. Laws Ann., ch. 31, §27 (West 1979). PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 265 256 Opinion of the Court Ms. Feeney’s interest in securing a better job in state government did not wane. Having been consistently eclipsed by veterans, however, she eventually concluded that further competition for civil service positions of interest to veterans would be futile. In 1975, shortly after her civil defense job was abolished, she commenced this litigation. C The veterans’ hiring preference in Massachusetts, as in other jurisdictions, has traditionally been justified as a measure designed to reward veterans for the sacrifice of military service, to ease the transition from military to civilian life, to encourage patriotic service, and to attract loyal and well-disciplined people to civil service occupations.12 See, e. g., Hutcheson v. Director of Civil Service, 361 Mass. 480, 281 N. E. 2d 53 (1972). The Massachusetts law dates back to 1884, when the State, as part of its first civil service legislation, gave a statutory preference to civil service applicants who were Civil War veterans if their qualifications were equal to those of non veterans. 1884 Mass. Acts, ch. 320, § 14 (sixth). This tie-breaking provision blossomed into a truly absolute preference in 1895, when the State enacted its first general veterans’ preference law and exempted veterans from all merit selection requirements. 1895 Mass. Acts, ch. 501, § 2. In response to a challenge brought by a male nonveteran, this statute was declared violative of state constitutional provisions guaranteeing that government should be 12 Veterans’ preference laws have been challenged so often that the rationale in their support has become essentially standardized. See, e. g., Koelfgen v. Jackson, 355 F. Supp. 243 (Minn. 1972), summarily aff’d, 410 U. S. 976; August v. Bronstein, supra; Rios v. Dillman, 499 F. 2d 329 (CA5 1974); cf. Mitchell v. Cohen, 333 U. S. 411, 419 n. 12. See generally Blumberg, De Facto and De Jure Sex Discrimination Under the Equal Protection Clause: A Reconsideration of the Veterans’ Preference in Public Employment, 26 Buffalo L. Rev. 3 (1977). For a collection of early cases, see Annot., Veterans’ Preference Laws, 161 A. L. R. 494 (1946). 266 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. for the “common good” and prohibiting hereditary titles. Brown v. Russell, 166 Mass. 14, 43 N. E. 1005 (1896). The current veterans’ preference law has its origins in an 1896 statute, enacted to meet the state constitutional standards enunciated in Brown v. Russell. That statute limited the absolute preference to veterans who were otherwise qualified.13 A closely divided Supreme Judicial Court, in an advisory opinion issued the same year, concluded that the preference embodied in such a statute would be valid. Opinion of the Justices, 166 Mass. 589, 44 N. E. 625 (1896). In 1919, when the preference was extended to cover the veterans of World War I, the formula was further limited to provide for a priority in eligibility, in contrast to an absolute preference in hiring.14 See Corliss v. Civil Service Comm’rs, 242 Mass. 61, 136 N. E. 356 (1922). In Mayor of Lynn v. Commissioner of Civil Service, 269 Mass. 410, 414, 169 N. E. 502, 503-504 (1929), the Supreme Judicial Court, adhering to the views expressed in its 1896 advisory opinion, sustained this statute against a state constitutional challenge. Since 1919, the preference has been repeatedly amended to cover persons who served in subsequent wars, declared or 13 1896 Mass. Acts, ch. 517, § 2. The statute provided that veterans who passed examinations should “be preferred in appointment to all persons not veterans . . . .” A proviso stated: “But nothing herein contained shall be construed to prevent the certification and employment of women.” 14 1919 Mass. Acts, ch. 150, § 2. The amended statute provided that “the names of veterans who pass examinations . . . shall be placed upon the . . . eligible lists in the order of their respective standing, above the names of all other applicants,” and further provided that “upon receipt of a requisition not especially calling for women, names shall be certified from such lists . . . .” The exemption for “women’s requisitions” was retained in substantially this form in subsequent revisions, see, e. g., 1954 Mass. Acts, ch. 627, §5. It was eliminated in 1971, 1971 Mass. Acts, ch. 219, when the State made all single-sex examinations subject to the prior approval of the Massachusetts Commission Against Discrimination, 1971 Mass. Acts, ch. 221. PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 267 256 Opinion of the Court undeclared. See 1943 Mass. Acts, ch. 194; 1949 Mass. Acts, ch. 642, § 2 (World War II); 1954 Mass. Acts, ch. 627 (Korea); 1968 Mass. Acts, ch. 531, §1 (Vietnam).15 The current preference formula in ch. 31, § 23, is substantially the same as that settled upon in 1919. This absolute preference— even as modified in 1919—has never been universally popular. Over the years it has been subjected to repeated legal challenges, see Hutcheson v. Director of Civil Service, supra (collecting cases), to criticism by civil service reform groups, see, e. g., Report of the Massachusetts Committee on Public Service on Initiative Bill Relative to Veterans’ Preference, S. No. 279 (1926); Report of Massachusetts Special Commission on Civil Service and Public Personnel Administration 37-43 (June 15, 1967), and, in 1926, to a referendum in which it was reaffirmed by a majority of 51.9%. See id., at 38. The present case is apparently the first to challenge the Massachusetts veterans’ preference on the simple ground that it discriminates on the basis of sex.16 D The first Massachusetts veterans’ preference statute defined the term “veterans” in gender-neutral language. See 15 A provision requiring public agencies to hire disabled veterans certified as eligible was added in 1922. 1922 Mass. Acts, ch. 463. It was invalidated as applied in Hutcheson n. Director of Civil Service, 361 Mass. 480, 281 N. E. 2d 53 (1972) (suit by veteran arguing that absolute preference for disabled veterans was arbitrary on facts). It has since been eliminated and replaced with a provision giving disabled veterans an absolute preference in retention. See Mass. Gen. Laws Ann., ch. 31, § 26 (West 1979). See n. 10, supra. 16 For cases presenting similar challenges to the veterans’ preference laws of other States, see Ballou v. State Department of Civil Service, 75 N. J. 365, 382 A. 2d 1118 (1978) (sustaining New Jersey absolute preference); Feinerman v. Jones, 356 F. Supp. 252 (MD Pa. 1973) (sustaining Pennsylvania point preference); Branch v. Du Bois, 418 F. Supp. 1128 (ND Ill. 1976) (sustaining Illinois modified point preference); Wisconsin Nat. Organization for Women v. Wisconsin, 417 F. Supp. 978 (WD Wis. 1976) (sustaining Wisconsin point preference). 268 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. 1896 Mass. Acts, ch. 517 § 1 (“a person” who served in the United States Army or Navy), and subsequent amendments have followed this pattern, see, e. g., 1919 Mass. Acts, ch. 150, § 1 (“any person who has served . . .”); 1954 Mass Acts, ch. 627, § 1 (“any person, male or female, including a nurse”). Women who have served in official United States military units during wartime, then, have always been entitled to the benefit of the preference. In addition, Massachusetts, through a 1943 amendment to the definition of “wartime service,” extended the preference to women who served in unofficial auxiliary women’s units. 1943 Mass. Acts, ch. 194.17 When the first general veterans’ preference statute was adopted in 1896, there were no women veterans.18 The statute, however, covered only Civil War veterans. Most of them were beyond middle age, and relatively few were actively competing for public employment.19 Thus, the impact of 17 The provision, passed shortly after the creation of the Women’s Army Auxiliary Corps (WAAC), see n. 21, infra, is currently found at Mass. Gen. Laws Ann., ch. 4, § 7, cl. 43 (West 1976), see n. 8, supra. “Wartime service” is defined as service performed by a member of the “WAAC.” A “WAAC” is “any woman who was discharged and so served in any corps or unit of the United States established for the purpose of enabling women to serve with, or as auxiliary to, the armed forces of the United States and such woman shall be deemed to be a veteran.” Ibid. 18 Small numbers of women served in combat roles in every war before the 20th century in which the United States was involved, but usually unofficially or disguised as men. See M. Binkin & S. Bach, Women and the Military 5 (1977) (hereinafter Binkin and Bach). Among the better known are Molly Pitcher (Revolutionary War), Deborah Sampson (Revolutionary War), and Lucy Brewer (War of 1812). Passing as one “George Baker,” Brewer served for three years as a gunner on the U. S. S. Constitution (“Old Ironsides”) and distinguished herself in several major naval battles in the War of 1812. See J. Laffin, Women in Battle 116-122 (1967). 19 By 1887, the average age of Civil War veterans in Massachusetts was already over 50. Massachusetts Civil Service Commissioners, Third Annual Report 22 (1887). The tie-breaking preference which had been established under the 1884 statute had apparently been difficult to enforce, since many appointing officers “prefer younger men.” Ibid. The 1896 PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 269 256 Opinion of the Court the preference upon the employment opportunities of nonveterans as a group and women in particular was slight.20 Notwithstanding the apparent attempts by Massachusetts to include as many military women as possible within the scope of the preference, the statute today benefits an overwhelmingly male class. This is attributable in some measure to the variety of federal statutes, regulations, and policies that have restricted the number of women who could enlist in the United States Armed Forces,21 and largely to the simple statute which established the first valid absolute preference, see supra, at 266, again covered only Civil War veterans. 1896 Mass. Acts, ch. 517, § 1. 20 In 1896, for example, 2,804 persons applied for civil service positions: 2,031 were men, of whom only 32 were veterans; 773 were women. Of the 647 persons appointed, 525 were men, of whom only 9 were veterans; 122 were women. Massachusetts Civil Service Commissioners, Thirteenth Annual Report 5, 6 (1896). The average age of the applicants was 38. Ibid. 21 The Army Nurse Corps, created by Congress in 1901, was the first official military unit for women, but its members were not granted full military rank until 1944. See Binkin and Bach 4-21; M. Treadwell, The Women’s Army Corps 6 (Dept, of Army 1954) (hereinafter Treadwell). During World War I, a variety of proposals were made to enlist women for work as doctors, telephone operators, and clerks, but all were rejected by the War Department. See ibid. The Navy, however, interpreted its own authority broadly to include a power to enlist women as Yeoman F’s and Marine F’s. About 13,000 women served in this rank, working primarily at clerical jobs. These women were the first in the United States to be admitted to full military rank and status. See id., at 10. Official military corps for women were established in response to the massive personnel needs of World War II. See generally Binkin and Bach; Treadwell. The Women’s Army Auxiliary Corps (WAAC)— the unofficial predecessor of the Women’s Army Corps (WAC)—was created on May 14, 1942, followed two months later by the WAVES (Women Accepted for Voluntary Emergency Service). See Binkin and Bach 7. Not long after, the United States Marine Corps Women’s Reserve and the Coast Guard Women’s Reserve (SPAR) were established. See ibid. Some 350,000 women served in the four services; some 800 women also served as Women’s Airforce Service Pilots (WASPS). Ibid. Most worked in health care, administration, and communications; they were also em- 270 OCTOBER TERM, 1978 Opinion of the Court 442U.S. fact that women have never been subjected to a military draft. See generally Binkin and Bach ^21. When this litigation was commenced, then, over 98% of the veterans in Massachusetts were male; only 1.8% were female. And over one-quarter of the Massachusetts population were veterans. During the decade between 1963 and 1973 when the appellee was actively participating in the State’s merit selection system, 47,005 new permanent appointments were made in the classified official service. Forty-three percent of those hired were women, and 57% were men. Of the women appointed, 1.8% were veterans, while 54% of the men had veteran status. A large unspecified percentage of the female appointees were serving in lower paying positions for which males traditionally had not applied.22 ployed as airplane mechanics, parachute riggers, gunnery instructors, air traffic controllers, and the like. The authorizations for the women’s units during World War II were temporary. The Women’s Armed Services Integration Act of 1948, 62 Stat. 356, established the women’s services on a permanent basis. Under the Act, women were given regular military status. However, quotas were placed on the numbers who could enlist, 62 Stat. 357, 360-361 (no more than 2% of total enlisted strength), eligibility requirements were more stringent than those for men, and career opportunities were limited. Binkin and Bach 11-12. During the 1950’s and 1960’s, enlisted women constituted little more than 1% of the total force. In 1967, the 2% quota was lifted, § 1 (9)(E), 81 Stat. 375, 10 U. S. C. §3209 (b), and in the 1970’s many restrictive policies concerning women’s participation in the military have been eliminated or modified. See generally Binkin and Bach. In 1972, women still constituted less than 2% of the enlisted strength. Id., at 14. By 1975, when this litigation was commenced, the percentage had risen to 4.6%. Ibid. 22 The former exemption for “women’s requisitions,” see nn. 13, 14, supra, may have operated in the 20th century to protect these types of jobs from the impact of the preference. However, the statutory history indicates that this was not its purpose. The provision dates back to the 1896 veterans’ preference law and was retained in the law substantially unchanged until it was eliminated in 1971. See n. 14, supra. Since veterans in 1896 were a small but an exclusively male class, such a pro PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 271 256 Opinion of the Court On each of 50 sample eligible lists that are part of the record in this case, one or more women who would have been certified as eligible for appointment on the basis of test results were displaced by veterans whose test scores were lower. At the outset of this litigation appellants conceded that for “many of the permanent positions for which males and females have competed” the veterans’ preference has “resulted in a substantially greater proportion of female eligibles than male eligibles” not being certified for consideration. The impact of the veterans’ preference law upon the public employment opportunities of women has thus been severe. This impact lies at the heart of the appellee’s federal constitutional claim. II The sole question for decision on this appeal is whether Massachusetts, in granting an absolute lifetime preference to veterans, has discriminated against women in violation of the Equal Protection Clause of the Fourteenth Amendment. A The equal protection guarantee of the Fourteenth Amendment does not take from the States all power of classification. Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314. Most laws classify, and many affect certain groups vision was apparently included to ensure that the statute would not be construed to outlaw a pre-existing practice of single-sex hiring explicitly authorized under the 1884 Civil Service statute. See Rule XIX .3, Massachusetts Civil Service Law and Rules and Regulations of the Commis-sioners (1884) (“In case the request for any . . . certification, or any law or regulation, shall call for persons of one sex, those of that sex shall be certified; otherwise sex shall be disregarded in certification”)- The veterans’ preference statute at no point endorsed this practice. Historical materials indicate, however, that the early preference law may have operated to encourage the employment of women in positions from which they previously had been excluded. See Thirteenth Annual Report, supra n. 20, at 5, 6; Third Annual Report, supra n. 19, at 23. 272 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. unevenly, even though the law itself treats them no differently from all other members of the class described by the law. When the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern. New York City Transit Authority v. Beazer, 440 U. S. 568; Jefferson v. Hackney, 406 U. S. 535, 548. Cf. James v. Valtierra, 402 U. S. 137. The calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility. Dandridge n. Williams, 397 U. S. 471; San Antonio School Dist. v. Rodriguez, 411 U. S. 1. In assessing an equal protection challenge, a court is called upon only to measure the basic validity of the legislative classification. Barrett n. Indiana, 229 U. S. 26, 29-30; Railway Express Agency n. New York, 336 U. S. 106. When some other independent right is not at stake, see, e. g., Shapiro v. Thompson, 394 U. S. 618, and when there is no “reason to infer antipathy,” Vance n. Bradley, 440 U. S. 93, 97, it is presumed that “even improvident decisions will eventually be rectified by the democratic process ....” Ibid. Certain classifications, however, in themselves supply a reason to infer antipathy. Race is the paradigm. A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification. Brown v. Board of Education, 347 U. S. 483; McLaughlin v. Florida, 379 U. S. 184. This rule applies as well to a classification that is ostensibly neutral but is an obvious pretext for racial discrimination. Yick Wo v. Hopkins, 118 U. S. 356; Guinn v. United States, 238 U. S. 347; cf. Lane v. Wilson, 307 U. S. 268; G (/million v. Lightfoot, 364 U. S. 339. But, as was made clear in Washington v. Davis, 426 U. S. 229, and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, even if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose. PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 273 256 Opinion of the Court Classifications based upon gender, not unlike those based upon race, have traditionally been the touchstone for pervasive and often subtle discrimination. Caban v. Mohammed, 441 U. S. 380, 398 (Stewart, J., dissenting). This Court’s recent cases teach that such classifications must bear a close and substantial relationship to important governmental objectives, Craig n. Boren, 429 U. S. 190, 197, and are in many settings unconstitutional. Reed v. Reed, 404 U. S. 71;, Fron-tiero v. Richardson, 411 U. S. 677; Weinberger v. Wiesenfeld, 420 U. S. 636; Craig v. Boren, supra; Calif ano v. Goldfarb, 430 U. S. 199; Orr v. Orr, 440 U. S. 268; Caban v. Mohammed, supra. Although public employment is not a constitutional right, Massachusetts Bd. of Retirement v. Murgia, supra, and the States have wide discretion in framing employee qualifications, see, e. g., New York City Transit Authority n. Beazer, supra, these precedents dictate that any state law overtly or covertly designed to prefer males over females in public employment would require an exceedingly persuasive justification to withstand a constitutional challenge under the Equal Protection Clause of the Fourteenth Amendment. B The cases of Washington v. Davis, supra, and Arlington Heights n. Metropolitan Housing Dev. Corp., supra, recognize that when a neutral law has a disparate impact upon a group that has historically been the victim of discrimination, an unconstitutional purpose may still be at work. But those cases signaled no departure from the settled rule that the Fourteenth Amendment guarantees equal laws, not equal results. Davis upheld a job-related employment test that white people passed in proportionately greater numbers than Negroes, for there had been no showing that racial discrimination entered into the establishment or formulation of the test. Arlington Heights upheld a zoning board decision that tended to perpetuate racially segregated housing patterns, 274 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. since, apart from its effect, the board’s decision was shown to be nothing more than an application of a constitutionally neutral zoning policy. Those principles apply with equal force to a case involving alleged gender discrimination. When a statute gender-neutral on its face is challenged on the ground that its effects upon women are disproportionably adverse, a twofold inquiry is thus appropriate. The first question is whether the statutory classification is indeed neutral in the sense that it is not gender based. If the classification itself, covert or overt, is not based upon gender, the second question is whether the adverse effect reflects invidious gender-based discrimination. See Arlington Heights v. Metropolitan Housing Dev. Corp., supra. In this second inquiry, impact provides an “important starting point,” 429 U. S., at 266, but purposeful discrimination is “the condition that offends the Constitution.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 16. It is against this background of precedent that we consider the merits of the case before us. Ill A The question whether ch. 31, § 23, establishes a classification that is overtly or covertly based upon gender must first be considered. The appellee has conceded that ch. 31, § 23, is neutral on its face. She has also acknowledged that state hiring preferences for veterans are not per se invalid, for she has limited her challenge to the absolute lifetime preference that Massachusetts provides to veterans. The District Court made two central findings that are relevant here: first, that ch. 31, § 23, serves legitimate and worthy purposes; second, that the absolute preference was not established for the purpose of discriminating against women. The appellee has thus acknowledged and the District Court has thus found PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 275 256 Opinion of the Court that the distinction between veterans and nonveterans drawn by ch. 31, § 23, is not a pretext for gender discrimination. The appellee’s concession and the District Court’s finding are clearly correct. If the impact of this statute could not be plausibly explained on a neutral ground, impact itself would signal that the real classification made by the law was in fact not neutral. See Washington v. Davis, 426 U. S., at 242; Arlington Heights v. Metropolitan Housing Dev. Corp., supra, at 266. But there can be but one answer to the question whether this veteran preference excludes significant numbers of women from preferred state jobs because they are women or because they are nonveterans. Apart from the facts that the definition of “veterans” in the statute has always been neutral as to gender and that Massachusetts has consistently defined veteran status in a way that has been inclusive of women who have served in the military, this is not a law that can plausibly be explained only as a gender-based classification. Indeed, it is not a law that can rationally be explained on that ground. Veteran status is not uniquely male. Although few women benefit from the preference, the nonveteran class is not substantially all female. To the contrary, significant numbers of nonveterans are men, and all nonveterans—male as well as female—are placed at a disadvantage. Too many men are affected by ch. 31, § 23, to permit the inference that the statute is but a pretext for preferring men over women. Moreover, as the District Court implicitly found, the purposes of the statute provide the surest explanation for its impact. Just as there are cases in which impact alone can unmask an invidious classification, cf. Yick Wo v. Hopkins, 118 U. S. 356, there are others, in which—notwithstanding impact—the legitimate noninvidious purposes of a law cannot be missed. This is one. The distinction made by ch. 31, § 23, is, as it seems to be, quite simply between veterans and non veterans, not between men and women. 276 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. B The dispositive question, then, is whether the appellee has shown that a gender-based discriminatory purpose has, at least in some measure, shaped the Massachusetts veterans’ preference legislation. As did the District Court, she points to two basic factors which in her view distinguish ch. 31, § 23, from the neutral rules at issue in the Washington v. Davis and Arlington Heights cases. The first is the nature of the preference, which is said to be demonstrably gender-biased in the sense that it favors a status reserved under federal military policy primarily to men. The second concerns the impact of the absolute lifetime preference upon the employment opportunities of women, an impact claimed to be too inevitable to have been unintended. The appellee contends that these factors, coupled with the fact that the preference itself has little if any relevance to actual job performance, more than suffice to prove the discriminatory intent required to establish a constitutional violation. 1 The contention that this veterans’ preference is “inherently nonneutral” or “gender-biased” presumes that the State, by favoring veterans, intentionally incorporated into its public employment policies the panoply of sex-based and assertedly discriminatory federal laws that have prevented all but a handful of women from becoming veterans. There are two serious difficulties with this argument. First, it is wholly at odds with the District Court’s central finding that Massachusetts has not offered a preference to veterans for the purpose of discriminating against women. Second, it cannot be reconciled with the assumption made by both the appellee and the District Court that a more limited hiring preference for veterans could be sustained. Taken together, these difficulties are fatal. To the extent that the status of veteran is one that few PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 277 256 Opinion of the Court women have been enabled to achieve, every hiring preference for veterans, however modest or extreme, is inherently gender-biased. If Massachusetts by offering such a preference can be said intentionally to have incorporated into its state employment policies the historical gender-based federal military personnel practices, the degree of the preference would or should make no constitutional difference. Invidious discrimination does not become less so because the discrimination accomplished is of a lesser magnitude.23 Discriminatory intent is simply not amenable to calibration. It either is a factor that has influenced the legislative choice or it is not. The District Court’s conclusion that the absolute veterans’ preference was not originally enacted or subsequently reaffirmed for the purpose of giving an advantage to males as such necessarily compels the conclusion that the State intended nothing more than to prefer “veterans.” Given this finding, simple logic suggests that an intent to exclude women from significant public jobs was not at work in this law. To reason that it was, by describing the preference as “inherently nonneutral” or “gender-biased,” is merely to restate the fact of impact, not to answer the question of intent. To be sure, this case is unusual in that it involves a law that by design is not neutral. The law overtly prefers veterans as such. As opposed to the written test at issue in Davis, it does not purport to define a job-related characteristic. To the contrary, it confers upon a specifically described group—perceived to be particularly deserving—a competitive headstart. But the District Court found, and the appellee has not disputed, that this legislative choice was legitimate. The basic distinction between veterans and nonveterans, having been found not gender-based, and the goals of the 23 This is not to say that the degree of impact is irrelevant to the question of intent. But it is to say that a more modest preference, while it might well lessen impact and, as the State argues, might lessen the effectiveness of the statute in helping veterans, would not be any more or less “neutral” in the constitutional sense. 278 OCTOBER TERM, 1978 Opinion of the Court 442U.S. preference having been found worthy, ch. 31 must be analyzed as is any other neutral law that casts a greater burden upon women as a group than upon men as a group. The enlistment policies of the Armed Services may well have discriminated on the basis of sex. See Frontiero v. Richardson, 411 U. S. 677; cf. Schlesinger v. Ballard, 419 U. S. 498. But the history of discrimination against women in the military is not on trial in this case. 2 The appellee’s ultimate argument rests upon the presumption, common to the criminal and civil law, that a person intends the natural and foreseeable consequences of his voluntary actions. Her position was well stated in the concurring opinion in the District Court: “Conceding . . . that the goal here was to benefit the veteran, there is no reason to absolve the legislature from awareness that the means chosen to achieve this goal would freeze women out of all those state jobs actively sought by men. To be sure, the legislature did not wish to harm women. But the cutting-off of women’s opportunities was an inevitable concomitant of the chosen scheme—as inevitable as the proposition that if tails is up, heads must be down. Where a law’s consequences are that inevitable, can they meaningfully be described as unintended?” 451 F. Supp., at 151. This rhetorical question implies that a negative answer is obvious, but it is not. The decision to grant a preference to veterans was of course “intentional.” So, necessarily, did an adverse impact upon nonveterans follow from that decision. And it cannot seriously be argued that the Legislature of Massachusetts could have been unaware that most veterans are men. It would thus be disingenuous to say that the adverse consequences of this legislation for women were unintended, in the sense that they were not volitional or in the sense that they were not foreseeable. PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 279 256 Opinion of the Court “Discriminatory purpose,” however, implies more than intent as volition or intent as awareness of consequences. See United Jewish Organizations v. Carey, 430 U. S. 144, 179 (concurring opinion).24 It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.25 Yet nothing in the record demonstrates that this preference for veterans was originally devised or subsequently re-enacted because it would accomplish the collateral goal of keeping women in a stereotypic and predefined place in the Massachusetts Civil Service. To the contrary, the statutory history shows that the benefit of the preference was consistently offered to “any person” who was a veteran. That benefit has been extended to women under a very broad statutory definition of the term veteran.26 The preference formula itself, which is the focal 24 Proof of discriminatory intent must necessarily usually rely on objective factors, several of which were outlined in Arlington Heights n. Metropolitan Housing Dev. Corp., 429 IT. S. 252, 266. The inquiry is practical. What a legislature or any official entity is “up to” may be plain from the results its actions achieve, or the results they avoid. Often it is made clear from what has been called, in a different context, “the give and take of the situation.” Cramer n. United States, 325 U. S. 1, 32-33 (Jackson, J.). 25 This is not to say that the inevitability or foreseeability of consequences of a neutral rule has no bearing upon the existence of discriminatory intent. Certainly, when the adverse consequences of a law upon an identifiable group are as inevitable as the gender-based consequences of ch. 31, § 23, a strong inference that the adverse effects were desired can reasonably be drawn. But in this inquiry—made as it is under the Constitution—an inference is a working tool, not a synonym for proof. When, as here, the impact is essentially an unavoidable consequence of a legislative policy that has in itself always been deemed to be legitimate, and when, as here, the statutory history and all of the available evidence affirmatively demonstrate the opposite, the inference simply fails to ripen into proof. 26 See nn. 8, 17, supra. 280 OCTOBER TERM, 1978 Opinion of the Court 442U.S. point of this challenge, was first adopted—so it appears from this record—out of a perceived need to help a small group of older Civil War veterans. It has since been reaffirmed and extended only to cover new veterans.27 When the totality of legislative actions establishing and extending the Massachusetts veterans’ preference are considered, see Washington v. Davis, 426 U. S., at 242, the law remains what it purports to be: a preference for veterans of either sex over non veterans of either sex, not for men over women. IV Veterans’ hiring preferences represent an awkward—and, many argue, unfair—exception to the widely shared view that merit and merit alone should prevail in the employment policies of government. After a war, such laws have been enacted virtually without opposition. During peacetime, they inevitably have come to be viewed in many quarters as undemocratic and unwise.28 Absolute and permanent preferences, as the troubled history of this law demonstrates, have always been subject to the objection that they give the vet- 27 The appellee has suggested that the former statutory exception for “women’s requisitions,” see nn. 13, 14, supra, supplies evidence that Massachusetts, when it established and subsequently reaffirmed the absolute-preference legislation, assumed that women would not or should not compete with men. She has further suggested that the former provision extending the preference to certain female dependents of veterans, see n. 10, supra, demonstrates that ch. 31, § 23, is laced with “old notions” about the proper roles and needs of the sexes. See Califano v. Goldfarb, 430 U. S. 199; Weinberger n. Wiesenfeld, 420 U. S. 636. But the first suggestion is totally belied by the statutory history, see supra, at 267-271, and nn. 19, 20, and the second fails to account for the consistent statutory recognition of the contribution of women to this Nation’s military efforts. 28 See generally Hearings on Veterans’ Preference Oversight before the Subcommittee on Civil Service of the House Post Office and Civil Service Committee, 95th Cong., 1st Sess. (1977); Report of Comptroller General, Conflicting Congressional Policies: Veterans’ Preference and Apportionment vs. Equal Employment Opportunity (Sept. 29, 1977). PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 281 256 Marshall, J., dissenting eran more than a square deal. But the Fourteenth Amendment “cannot be made a refuge from ill-advised . . . laws.” District of Columbia v. Brooke, 214 U. S. 138, 150. The substantial edge granted to veterans by ch. 31, § 23, may reflect unwise policy. The appellee, however, has simply failed to demonstrate that the law in any way reflects a purpose to discriminate on the basis of sex. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Stevens, with whom Mr. Justice White joins, concurring. While I concur in the Court’s opinion, I confess that I am not at all sure that there is any difference between the two questions posed ante, at 274. If a classification is not overtly based on gender, I am inclined to believe the question whether it is covertly gender based is the same as the question whether its adverse effects reflect invidious gender-based discrimination. However the question is phrased, for me the answer is largely provided by the fact that the number of males disadvantaged by Massachusetts’ veterans’ preference (1,867,000) is sufficiently large—and sufficiently close to the number of disadvantaged females (2,954,000)—to refute the claim that the rule was intended to benefit males as a class over females as a class. Mr. Justice Marshall, with whom Mr. Justice Brennan joins, dissenting. Although acknowledging that in some circumstances, discriminatory intent may be inferred from the inevitable or foreseeable impact of a statute, ante, at 279 n. 25, the Court concludes that no such intent has been established here. I cannot agree. In my judgment, Massachusetts’ choice of an absolute veterans’ preference system evinces purposeful 282 OCTOBER TERM, 1978 Marshall, J., dissenting 442U.S. gender-based discrimination. And because the statutory scheme bears no substantial relationship to a legitimate governmental objective, it cannot withstand scrutiny under the Equal Protection Clause. I The District Court found that the “prime objective” of the Massachusetts veterans’ preference statute, Mass. Gen. Laws Ann., ch. 31, § 23, was to benefit individuals with prior military service. Anthony v. Commonweath, 415 F. Supp. 485, 497 (Mass. 1976). See Feeney v. Massachusetts, 451 F. Supp. 143, 145 (Mass. 1978). Under the Court’s analysis, this factual determination “necessarily compels the conclusion that the State intended nothing more than to prefer ‘veterans.’ Given this finding, simple logic suggests than an intent to exclude women from significant public jobs was not at work in this law.” Ante, at 277. I find the Court’s logic neither simple nor compelling. That a legislature seeks to advantage one group does not, as a matter of logic or of common sense, exclude the possibility that it also intends to disadvantage another. Individuals in general and lawmakers in particular frequently act for a variety of reasons. As this Court recognized in Arlington Heights N. Metropolitan Housing Dev. Corp., 429 U. S. 252, 265 (1977), “[r]arely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern.” Absent an omniscience not commonly attributed to the judiciary, it will often be impossible to ascertain the sole or even dominant purpose of a given statute. See McGinnis v. Royster, 410 U. S. 263, 276-277 (1973); Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L. J. 1205, 1214 (1970). Thus, the critical constitutional inquiry is not whether an illicit consideration was the primary or but-for cause of a decision, but rather whether it had an appreciable role in shaping a given legislative enactment. Where there is PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 283 256 Marshall, J., dissenting “proof that a discriminatory purpose has been a motivating factor in the decision, . . . judicial deference is no longer justified.” Arlington Heights v. Metropolitan Housing Dev. Corp., supra, at 265-266 (emphasis added). Moreover, since reliable evidence of subjective intentions is seldom obtainable, resort to inference based on objective factors is generally unavoidable. See Beer v. United States, 425 U. S. 130, 148-149, n. 4 (1976) (Marshall, J., dissenting) ; cf. Palmer v. Thompson, 403 U. S. 217, 224-225 (1971); United States v. O’Brien, 391 U. S. 367, 383-384 (1968). To discern the purposes underlying facially neutral policies, this Court has therefore considered the degree, inevitability, and foreseeability of any disproportionate impact as well as the alternatives reasonably available. See Monroe v. Board of Commissioners, 391 U. S. 450, 459 (1968); Goss v. Board of Education, 373 U. S. 683, 688-689 (1963); Gomil-lion v. Lightfoot, 364 U. S. 339 (1960); Griffin v. Illinois, 351 U. S. 12, 17 n. 11 (1956). Cf. Albemarle Paper Co. n. Moody, 422 U. S. 405,425 (1975). In the instant case, the impact of the Massachusetts statute on women is undisputed. Any veteran with a passing grade on the civil service exam must be placed ahead of a nonveteran, regardless of their respective scores. The District Court found that, as a practical matter, this preference supplants test results as the determinant of upper level civil service appointments. 415 F. Supp., at 488-489. Because less than 2% of the women in Massachusetts are veterans, the absolute-preference formula has rendered desirable state civil service employment an almost exclusively male prerogative. 451 F. Supp., at 151 (Campbell, J., concurring). As the District Court recognized, this consequence follows foreseeably, indeed inexorably, from the long history of policies severely limiting women’s participation in the military.1 1 See Anthony n. Massachusetts, 415 F. Supp. 485, 490, 495-499 (Mass. 1976); Feeney n. Massachusetts, 451 F. Supp. 143, 145, 148 (Mass. 284 OCTOBER TERM, 1978 Marshall, J., dissenting 442 U. S. Although neutral in form, the statute is anything but neutral in application. It inescapably reserves a major sector of public employment to “an already established class which, as a matter of historical fact, is 98% male.” Ibid. Where the foreseeable impact of a facially neutral policy is so disproportionate, the burden should rest on the State to establish that sex-based considerations played no part in the choice of the particular legislative scheme. Cf. Castaneda v. Partida, 430 U. S. 482 (1977) • Washington v. Davis, 426 U. S. 229, 241 (1976); Alexander v. Louisiana, 405 U. S; 625, 632 (1972); see generally Brest, Palmer v. Thompson'. An Approach to the Problem of Unconstitutional Legislative Motive, 1971 Sup. Ct. Rev. 95, 123. Clearly, that burden was not sustained here. The legislative history of the statute reflects the Commonwealth’s patent appreciation of the impact the preference system would have on women, and an equally evident desire to mitigate that impact only with respect to certain traditionally female occupations. Until 1971, the statute and implementing civil serv- 1978). In addition to the 2% quota on women’s participation in the Armed Forces, see ante, at 270 n. 21, enlistment and appointment requirements have been more stringent for females than males with respect to age, mental and physical aptitude, parental consent, and educational attainment. M. Binkin & S. Bach, Women and the Military (1977) (hereinafter Binkin and Bach); Note, The Equal Rights Amendment and the Military, 82 Yale L. J. 1533, 1539 (1973). Until the 1970’s, the Armed Forces precluded enlistment and appointment of women, but not men, who were married or had dependent children. See 415 F. Supp., at 490; App. 85; Exs. 98, 99, 103, 104. Sex-based restrictions on advancement and training opportunities also diminished the incentives for qualified women to enlist. See Binkin and Bach 10-17; Beans, Sex Discrimination in the Military, 67 Mil. L. Rev. 19, 59-83 (1975). Cf. Schlesinger v. Ballard, 419 U. S. 498, 508 (1975). Thus, unlike the employment examination in Washington v. Davis, 426 U. S. 229 (1976), which the Court found to be demonstrably job related, the Massachusetts preference statute incorporates the results of sex-based military policies irrelevant to women’s current fitness for civilian public employment. See 415 F. Supp., at 498-499. PERSONNEL ADMINISTRATOR OF MASS. v.. FEENEY 285 256 Marshall, J., dissenting ice regulations exempted from operation of the preference any job requisitions “especially calling for women.” 1954 Mass. Acts, ch. 627, §5. See also 1896 Mass. Acts, ch. 517, §6; 1919 Mass. Acts, ch. 150, §2; 1945 Mass. Acts, ch. 725, §2 (e); 1965 Mass. Acts, ch. 53; ante, at 266 nn. 13, 14. In practice, this exemption, coupled with the absolute preference for veterans, has created a gender-based civil service hierarchy, with women occupying low-grade clerical and secretarial jobs and men holding more responsible and remunerative positions. See 415 F. Supp., at 488 ; 451 F. Supp., at 148 n. 9. Thus, for over 70 years, the Commonwealth has maintained, as an integral part of its veterans’ preference system, an exemption relegating female civil service applicants to occupations traditionally filled by women. Such a statutory scheme both reflects and perpetuates precisely the kind of archaic assumptions about women’s roles which we have previously held invalid. See Orr v. Orr, 440 U. S. 268 (1979); Calif ano v. Goldfarb, 430 IT. S. 199, 210-211 (1977); Stanton v. Stanton, 421 U. S. 7,14 (1975); Weinberger v. Wiesenfeld, 420 U. S. 636,645 (1975). Particularly when viewed against the range of less discriminatory alternatives available to assist veterans,2 Massachusetts’ choice of a formula that so severely restricts public employment opportunities for women cannot reasonably be thought gender-neutral. Cf. Albemarle Paper Co. v. Moody, supra, at 425. The Court’s conclusion to the contrary—that “nothing in the record” evinces a “collateral goal of keeping women in a stereotypic and predefined place in the 2 Only four States afford a preference comparable in scope to that of Massachusetts. See Fleming & Shanor, Veterans’ Preferences and Public Employment: Unconstitutional Gender Discrimination?, 26 Emory L. J. 13, 17 n. 13 (1977) (citing statutes). Other States and the Federal Government grant point or tie-breaking preferences that do not foreclose opportunities for women. See id., at 13, and nn. 12, 14; ante, at261 n. 7; Hearings on Veterans’ Preference Oversight before the Subcommittee on Civil Service of the House Committee on Post Office and Civil Service, 95th Cong., 1st Sess., 4 (1977) (statement of Alan Campbell, Chairman, United States Civil Service Commission). 286 OCTOBER TERM, 1978 Marshall, J., dissenting 442U.S. Massachusetts Civil Service,” ante, at 279—displays a singularly myopic view of the facts established below.3 II To survive challenge under the Equal Protection Clause, statutes reflecting gender-based discrimination must be substantially related to the achievement of important governmental objectives. See Califano v. Webster, 430 U. S. 313, 316-317 (1977); Craig v. Boren, 429 U. S. 190, 197 (1976); Reed n. Reed, 404 U. S. 71, 76 (1971). Appellants here advance three interests in support of the absolute-preference system: (1) assisting veterans in their readjustment to civilian life; (2) encouraging military enlistment; and (3) rewarding those who have served their country. Brief for Appellants 24. Although each of those goals is unquestionably legitimate, the “mere recitation of a benign, compensatory purpose” cannot of itself insulate legislative classifications from constitutional scrutiny. Weinberger v. Wiesenjeld, supra, at 648. And in this case, the Commonwealth has failed to establish a sufficient relationship between its objectives and the means chosen to effectuate them. With respect to the first interest, facilitating veterans’ transition to civilian status, the statute is plainly overinclusive. Cf. Trimble v. Gordon, 430 U. S. 762, 770-772 (1977); Jimenez v. Weinberger, 417 U. S. 628, 637 (1974). By conferring a permanent preference, the legislation allows veterans to invoke their advantage repeatedly, without regard to their date of discharge. As the record demonstrates, a substantial 3 Although it is relevant that the preference statute also disadvantages a substantial group of men, see ante, at 281 (Stevens, J., concurring), it is equally pertinent that 47% of Massachusetts men over 18 are veterans, as compared to 0.8% of Massachusetts women. App. 83. Given this disparity, and the indicia of intent noted supra, at 284-285, the absolute number of men denied preference cannot be dispositive, especially since they have not faced the barriers to achieving veteran status confronted by women. See n. 1, supra. PERSONNEL ADMINISTRATOR OF MASS. v. FEENEY 287 256 Marshall, J., dissenting majority of those currently enjoying the benefits of the system are not recently discharged veterans in need of readjustment assistance.4 Nor is the Commonwealth’s second asserted interest, encouraging military service, a plausible justification for this legislative scheme. In its original and subsequent re-enactments, the statute extended benefits retroactively to veterans who had served during a prior specified period. See ante, at 265-267. If the Commonwealth’s “actual purpose” is to induce enlistment, this legislative design is hardly well suited to that end. See Califano v. Webster, supra, at 317; Weinberger v. Wiesenfeld, supra, at 648. For I am unwilling to assume what appellants made no effort to prove, that the possibility of obtaining an ex post facto civil service preference significantly influenced the enlistment decisions of Massachusetts residents. Moreover, even if such influence could be presumed, the statute is still grossly overinclusive in that it bestows benefits on men drafted as well as those who volunteered. Finally, the Commonwealth’s third interest, rewarding veterans, does not “adequately justify the salient features” of this preference system. Craig v. Boren, supra, at 202-203. See Orr n. Orr, supra, at 281. Where a particular statutory scheme visits substantial hardship on a class long subject to discrimination, the legislation cannot be sustained unless “ ‘carefully tuned to alternative considerations.’ ” Trimble v. Gordon, supra, at 772. See Caban v. Mohammed, 441 U. S. 380, 392-393, n. 13 (1979); Mathews v. Lucas, 427 U. S. 495 (1976). Here, there are a wide variety of less discriminatory means by which Massachusetts could effect its compensatory purposes. For example, a point preference system, such as that maintained by many States and the Federal Government, 4 The eligibility lists for the positions Ms. Feeney sought included 95 veterans for whom discharge information was available. Of those 95 males, 64 (67%) were discharged prior to 1960. App. 106, 150-151, 169-170. 288 OCTOBER TERM, 1978 Marshall, J., dissenting 442U.S. see n. 2, supra, or an absolute preference for a limited duration, would reward veterans without excluding all qualified women from upper level civil service positions. Apart from public employment, the Commonwealth, can, and does, afford assistance to veterans in various ways, including tax abatements, educational subsidies, and special programs for needy veterans. See Mass. Gen. Laws Ann., ch. 59, § 5, Fifth (West Supp. 1979); Mass. Gen. Laws Ann., ch. 69, §§ 7, 7B (West Supp. 1979); and Mass. Gen. Laws Ann., chs. 115, 115A (West 1969 and Supp. 1978). Unlike these and similar benefits, the costs of which are distributed across the taxpaying public generally, the Massachusetts statute exacts a substantial price from a discrete group of individuals who have long been subject to employment discrimination,5 and who, “because of circumstances totally beyond their control, have [had] little if any chance of becoming members of the preferred class.” 415 F. Supp., at 499. See n. 1, supra. In its present unqualified form, the veterans’ preference statute precludes all but a small fraction of Massachusetts women from obtaining any civil service position also of interest to men. See 451 F. Supp., at 151 (Campbell, J., concurring). Given the range of alternatives available, this degree of preference is not constitutionally permissible. I would affirm the judgment of the court below. 5 See Frontiero v. Richardson, 411 U. S. 677, 689 n. 23 (1973); Kahn v. Shevin, 4T6 U. S. 351, 353-354 (1974); United States Bureau of the Census, Current Population Reports, No. 107, Money Income and Poverty Status of Families and Persons in the United States: 1976 (Advance Report) (Table 7) (Sept. 1977). BABBITT v. FARM WORKERS 289 Syllabus BABBITT, GOVERNOR OF ARIZONA, et al. v. UNITED FARM WORKERS NATIONAL UNION et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. 78-225. Argued February 21, 1979—Decided June 5, 1979 Appellees (a farmworkers’ union, a union agent, farmworkers, and a union supporter) brought suit in Federal District Court in Arizona seeking a declaration of the unconstitutionality of various provisions of Arizona’s farm labor statute, as well as of the entire statute, and an injunction against its enforcement. A three-judge court ruled unconstitutional on various grounds the provisions (1) specifying procedures for the election of employee bargaining representatives; (2) limiting union publicity directed at consumers of agricultural products; (3) imposing a criminal penalty for violations of the statute; (4) excusing an agricultural employer from furnishing a union any materials, information, time, or facilities to enable it to communicate with the employer’s employees (access provision); and (5) governing arbitration of labor disputes, construed by the court as mandating compulsory arbitration. Deeming these provisions inseparable from the remainder of the statute, the court went on to declare the whole statute unconstitutional and enjoined its enforcement. Held: 1. The challenges to the provisions regulating election procedures, consumer publicity, and criminal sanctions present a case or controversy, but the challenges to the access and arbitration provisions are not justiciable. Pp. 297-305. (a) The fact that appellees have not invoked the election procedures provision in the past or expressed any intention to do so in the future, does not defeat the justiciability of their challenge in view of the nature of their claim that delays attending the statutory election scheme and the technical limitations on who may vote in unit elections severely curtail their freedom of association. To await appellees’ participation in an election would not assist the resolution of the threshold question whether the election procedures are subject to scrutiny under the First Amendment at all, and as this question is dispositive of appellees’ challenge there is no warrant for postponing consideration of the election procedures claim. Pp. 299-301. 290 OCTOBER TERM, 1978 Syllabus 442 U.S. (b) With respect to appellees’ claim that the consumer publicity provision (which on its face proscribes, as an unfair labor practice, dishonest, untruthful, and deceptive publicity) unconstitutionally penalizes inaccuracies inadvertently uttered, appellees have reason to fear prosecution for violation of the provision, where the State has not disavowed any intention of invoking the criminal penalty provision (which applies in terms to “[a]ny person . . . who violates any provision” of the statute) against unions that commit unfair labor practices. Accordingly, the positions of the parties are sufficiently adverse with respect to the consumer publicity provision to present a case or controversy. For the same reasons, a case or controversy is also presented by appellees’ claim that such provision unduly restricts protected speech by limiting publicity to that directed at agricultural products of an employer with whom a union has a primary dispute. Pp. 301-303. (c) Where it is clear that appellees desire to engage in prohibited consumer publicity campaigns, their claim that the criminal penalty provision is unconstitutionally vague was properly entertained by the District Court and may be raised in this appeal. If the provision were truly vague, appellees should not be expected to pursue their collective activities at their peril. P. 303. (d) Appellees’ challenge to the access provision is not justiciable, where not only is it conjectural to anticipate that access will be denied but, more importantly, appellees’ claim that such provision violates the First and Fourteenth Amendments because it deprives the state agency responsible for enforcing the statute of any discretion to compel agricultural employers to furnish the enumerated items, depends upon the attributes of the situs involved. An opinion on the constitutionality of the provision at this time would be patently advisory, and adjudication of the challenge must wait until appellees can assert an interest in seeking access to particular facilities as well as a palpable basis for believing that access will be refused. Pp. 303-304. (e) Similarly, any ruling on the allegedly compulsory arbitration provision would be wholly advisory, where the record discloses that there is no real and concrete dispute as to the application of the provision, appellees themselves acknowledging that employers may elect responses to an arguably unlawful strike other than seeking an injunction and agreeing to arbitrate, and appellees never having contested the constitutionality of the provision. Pp. 304-305. 2. The District Court properly considered the constitutionality of the election procedures provision even though a prior construction of the provision by the Arizona state courts was lacking, but the court should BABBITT v. FARM WORKERS 291 289 Syllabus have abstained from adjudicating the challenges to the consumer publicity and criminal penalty provisions until material unresolved questions of state law were determined by the Arizona courts. Pp. 305-312. (a) A state-court construction of the election procedures provision would not obviate the need for decision of the constitutional issue or materially alter the question to be decided, as the resolution of the question whether such procedures are affected with a First Amendment interest at all is dispositive of appellees’ challenge. P. 306. (b) The criminal penalty provision might be construed broadly as applying to all provisions of the statute affirmatively proscribing or commanding courses of conduct, or narrowly as applying only to certain provisions susceptible of being “violated,” but in either case the provision is reasonably susceptible of constructions that might undercut or modify appellees’ vagueness attack or otherwise significantly alter the constitutional questions requiring resolution. Pp. 307-308. (c) In view of the fact that the consumer publicity provision is patently ambiguous and subject to varying interpretations which would substantially affect the constitutional question presented, the District Court erred in entertaining all aspects of appellees’ challenge to such provision without the benefit of a construction thereof by the Arizona courts. Pp. 308-312. 3. The District Court erred in invalidating the election procedures provision. Arizona was not constitutionally obliged to provide procedures pursuant to which agricultural employees, through a chosen representative, might compel their employers to negotiate, and that it has undertaken to do so in an assertedly niggardly fashion, presents as a general matter no First Amendment problems. Moreover, the statute does not preclude voluntary recognition of a union by an agricultural employer. Pp. 312-314. 449 F. Supp. 449, reversed and remanded. White, J., delivered the opinion for the Court, in which Burger, C. J., and Stewart, Blackmun, Powell, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined, post, p. 314. Rex E. Lee, Special Assistant Attorney General of Arizona, argued the cause for appellants. With him on the briefs were Robert Corbin, Attorney General, John A. LaSota, Jr., former Attorney General, Charles E. Jones, Jon L. Kyi, and John B. Weldon, Jr. 292 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. Jerome Cohen argued the cause for appellees. With him on the brief was James Rutkowski* Mr. Justice White delivered the opinion of the Court. In this case we review the decision of a three-judge District Court setting aside as unconstitutional Arizona’s farm labor statute. The District Court perceived particular constitutional problems with five provisions of the Act; deeming these provisions inseparable from the remainder of the Act, the court declared the entire Act unconstitutional and enjoined its enforcement. We conclude that the challenges to two of the provisions specifically invalidated did not present a case or controversy within the jurisdiction of a federal court and hence should not have been adjudicated. Although the attacks on two other provisions were justiciable, we conclude that the District Court should have abstained from deciding the federal issues posed until material, unresolved questions of state law were determined by the Arizona courts. Finally, we believe that the District Court properly reached the merits of the fifth provision but erred in invalidating it. Acordingly, we reverse the judgment of the District Court. I In 1972, the Arizona Legislature enacted a comprehensive scheme for the regulation of agricultural employment relations. Arizona Agricultural Employment Relations Act, Ariz. Rev. Stat. Ann. §§23-1381 to 23-1395 (Supp. 1978). The ★Joseph Herman filed a brief for the Agricultural Producers Labor Committee et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed by Mark D. Rosenbaum, Fred Okrand, and Dennis M. Perluss for the American Civil Liberties Union Foundation of Southern California et al.; and by J. Albert Woll and Laurence Gold for the American Federation of Labor and Congress of Industrial Organizations. Marvin J. Brenner and Ellen Lake filed a brief for the Agricultural Labor Relations Board as amicus curiae. BABBITT v. FARM WORKERS 293 289 Opinion of the Court statute designates procedures governing the election of employee bargaining representatives, establishes various rights of agricultural employers and employees, proscribes a range of employer and union practices, and establishes a civil and criminal enforcement scheme to ensure compliance with the substantive provisions of the Act. Appellees—the United Farm Workers National Union (UFW), an agent of the UFW, named farmworkers, and a supporter of the UFW—commenced suit in federal court to secure a declaration of the unconstitutionality of various sections of the Act, as well as of the entire Act, and an injunction against its enforcement.1 A three-judge District Court was convened to entertain the action. On the basis of past instances of enforcement of the Act and in light of the provision for imposition of criminal penalties for “violation of] any provision” of the Act, Ariz. Rev. Stat. Ann. § 23-1392 (Supp. 1978), the court determined that appellees’ challenges were presently justiciable.2 Reaching the merits of some of the 1 The complaint asserted that the Act as a whole was invalid because it was pre-empted by the federal labor statutes, imposed an impermissible burden on commerce, denied appellees equal protection, and amounted to a bill of attainder. In addition, various constitutional challenges were made to one or more parts of 15 provisions of the Act. 2 The District Court did not analyze section by section why a case or controversy existed with respect to each of the challenged sections. Rather, from instances of private and official enforcement detailed in a stipulation filed by the parties, the court concluded that the case was not “hypothetical, abstract, or generalized.” 449 F. Supp. 449, 452 (Ariz. 1978). It did, however, focus specifically on § 23-1392. That provision makes it a crime to violate any other provision of the Act; and although the District Court deemed this section severable from the rest of the Act, it relied heavily on its conclusion that it had jurisdiction to adjudicate the validity of this section to justify its considering the constitutionality of other sections of the Act. See 449 F. Supp., at 454. In proceeding to do so, it ruled that evidence would be considered only in connection with § 23-1389 dealing with the election of bargaining representatives and with respect to § 23-1385 (C) limiting union access to employer properties, although evidence was introduced at trial relative to other provisions. 294 OCTOBER TERM, 1978 Opinion of the Court 442U.S. claims, the court ruled unconstitutional five distinct provisions of the Act.3 Specifically, the court disapproved the section specifying election procedures, § 23-1389,4 on the ground that, by failing to account for seasonal employment peaks, it precluded the consummation of elections before most workers dispersed and hence frustrated the associational rights of agricultural employees. The court was also of the view that the Act restricted unduly the class of employees technically eligible to vote for bargaining representatives and hence burdened the workers’ freedom of association in this second respect.5 3 The court did not explain the basis for selecting from all of the challenges presented the five provisions on which it passed judgment. 4 Section 23-1389 declares that representatives selected by a secret ballot for the purpose of collective bargaining by the majority of agricultural employees in an appropriate bargaining unit shall be the exclusive representatives of all agricultural employees in such unit for the purpose of collective bargaining. And it requires the Agricultural Employment Relations Board to ascertain the unit appropriate for purposes of collective bargaining. The section further provides that the Board shall investigate any petition alleging facts specified in § 23-1389 indicating that a question of representation exists and schedule an appropriate hearing when the Board has reasonable cause to believe that a question of representation does exist. If the hearing establishes that such a question exists, the Board is directed to order an election by secret ballot and to certify the results thereof. Section 23-1389 details the manner in which an election is to be conducted. The section further provides for procedures by which an employer might challenge a petition for an election. Additionally, § 23-1389 stipulates that no election shall be directed or conducted in any unit within which a valid election has been held in the preceding 12 months. Section 23-1389 also sets down certain eligibility requirements regarding participation in elections conducted thereunder. And it imposes obligations on employers to furnish information to the Board, to be made available to interested unions and employees, concerning bargaining-unit employees qualified to vote. Finally, the section specifies procedures whereby agricultural employees may seek to rescind the representation authority of a union currently representing those employees. 5 The election provision contemplates voting by “agricultural employees,” BABBITT v. FARM WORKERS 295 289 Opinion of the Court The court, moreover, ruled violative of the First and Fourteenth Amendments the provision limiting union publicity directed at consumers of agricultural products, § 23-1385 (B)(8),6 because as it construed the section, it proscribed innocent as well as deliberately false representations. The same section was declared infirm for the additional reason that it prohibited any consumer publicity, whether true or false, implicating a product trade name that “may include” agricultural products of an employer other than the employer with whom the protesting labor organization is engaged in a primary dispute. The court also struck down the statute’s criminal penalty provision, § 23-1392,7 on vagueness grounds, and held unconstitutional the provision excusing the employer from furnishing to a labor organization any materials, information, time, or facilities to enable the union to communicate with the §23-1389 (A), which is defined in §23-1382 (1) so as to exclude workers having only a brief history of employment with an agricultural employer. 6 Section 23-1385 (B) (8) makes it an unfair labor practice for a labor organization or its agents: “To induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by the use of dishonest, untruthful and deceptive publicity. Permissible inducement or encouragement within the meaning of this section means truthful, honest and nondeceptive publicity which identifies the agricultural product produced by an agricultural employer with whom the labor organization has a primary dispute. Permissible inducement or encouragement does not include publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name.” 7 Section 23-1392 provides: “Any person who knowingly resists, prevents, impedes or interferes with any member of the board or any of its agents or agencies in the performance of duties pursuant to this article, or who violates any provision of this article is guilty of a class 1 misdemeanor. The provisions of this section shall not apply to any activities carried on outside the state of Arizona.” 296 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. employer’s employees. § 23-1385 (C).8 The court thought that the latter provision permitted employers to prevent access by unions to migratory farmworkers residing on their property, in violation of the guarantees of free speech and association. Finally, the court disapproved a provision construed as mandating compulsory arbitration, § 23-1393 (B),9 on the ground that it denied employees due process and the right to a jury trial, which the District Court found guaranteed by the Seventh Amendment. The remainder of the Act fell “by 8Section 23-1385 (C) provides in part: “No employer shall be required to furnish or make available to a labor organization, and no labor organization shall be required to furnish or make available to an employer, materials, information, time, or facilities to enable such employer or labor organization, as the case may be, to communicate with employees of the employer, members of the labor organization, its supporters, or adherents.” 9 Section 23-1393 (B) provides: “In the case of a strike or boycott, or threat of a strike or boycott, against an agricultural employer, the court may grant, and upon proper application shall grant as provided in this section, a ten-day restraining order enjoining such a strike or boycott, provided that if an agricultural employer invokes the court’s jurisdiction to issue the ten-day restraining order to enjoin a strike as provided by this subsection, said employer must as a condition thereto agree to submit the dispute to binding arbitration as the means of settling the unresolved issues. In the event the parties cannot agree on an arbitrator within two days after the court awards a restraining order, the court shall appoint one to decide the unresolved issues. Any agricultural employer shall be entitled to injunctive relief accorded by Rule 65 of the Arizona Rules of Civil Procedure upon the filing of a verified petition showing that his agricultural employees are unlawfully on strike or are unlawfully conducting a boycott, or are unlawfully threatening to strike or boycott, and that the resulting cessation of work or conduct of a boycott will result in the prevention of production or the loss, spoilage, deterioration, or reduction in grade, quality or marketability of an agricultural commodity or commodities for human consumption in commercial quantities. For the purpose of this subsection, an agricultural commodity or commodities for human consumption with a market value of five thousand dollars or more shall constitute commercial quantities.” BABBITT v. FARM WORKERS 297 289 Opinion of the Court reason of its inseparability and inoperability apart from the provisions found to be invalid.” 449 F. Supp. 449, 467 (Ariz. 1978). Appellants sought review by this Court of the judgment below. Because of substantial doubts regarding the justiciability of appellees’ claims, we postponed consideration of our jurisdiction to review the merits. 439 U. S. 891 (1978). We now hold that, of the five provisions specifically invalidated by the District Court,10 only the sections pertaining to election of bargaining representatives, consumer publicity, and imposition of criminal penalties are susceptible of judicial resolution at this time. We further conclude that the District Court should have abstained from adjudicating appellees’ challenge to the consumer publicity and criminal penalty provisions, although we think the constitutionality of the election procedures was properly considered even lacking a prior construction by the Arizona courts. We are unable to sustain the District Court’s declaration, however, that the election procedures are facially unconstitutional. II We address first the threshold question whether appellees have alleged a case or controversy within the meaning of Art. Ill of the Constitution or only abstract questions not currently justiciable by a federal court. The difference between an abstract question and a “case or controversy” is one of degree, of course, and is not discernible by any precise test. 10 Appellees challenged numerous provisions before the District Court not expressly considered by that court. After disapproving the five provisions that we address on this appeal, the court concluded that “there is obviously no need to rule on plaintiffs’ other contentions including the claimed equal protection violation.” 449 F. Supp., at 466. The court then enjoined enforcement of the Act in its entirety, finding the provisions not explicitly invalidated to be inseparable from those actually adjudicated. Id., at 467. We find insufficient reason to consider in this Court in the first instance appellees’ challenges to the provisions on which the District Court did not specifically pass judgment. 298 OCTOBER TERM, 1978 Opinion of the Court 442U.S. See Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941). The basic inquiry is whether the “conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” Railway Mail Assn. v. Corsi, 326 U. S. 88, 93 (1945); see Evers v. Dwyer, 358 U. S. 202, 203 (1958); Maryland Casualty Co. v. Pacific Coal & Oil Co., supra. A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement. O’Shea v. Littleton, 414 U. S. 488, 494 (1974). But “[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough.” Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923); see Regional Rail Reorganization Act Cases, 419 U. S. 102, 143 (1974); Pierce v. Society of Sisters, 268 U. S. 510, 526 (1925). When contesting the constitutionality of a criminal statute, “it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U. S. 452, 459 (1974); see Epperson v. Arkansas, 393 U. S. 97 (1968); Evers v. Dwyer, supra, at 204. When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Doe v. Bolton, 410 U. S. 179, 188 (1973). But “persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.” Younger y. Harris, 401 U. S. 37, 42 (1971); Golden v. Zwickler, 394 U. S. 103 (1969). When plaintiffs “do not claim that they have ever BABBITT v. FARM WORKERS 299 289 Opinion of the Court been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,” they do not allege a dispute susceptible to resolution by a federal court. Younger v. Harris, supra, at 42. Examining the claims adjudicated by the three-judge court against the foregoing principles, it is our view that the challenges to the provisions regulating election procedures, consumer publicity, and criminal sanctions—but only those challenges—present a case or controversy.11 As already noted, appellees’ principal complaint about the statutory election procedures is that they entail inescapable delays and so preclude conducting an election promptly enough to permit participation by many farmworkers engaged in the production of crops having short seasons. Appellees also assail the assert-edly austere limitations on who is eligible to participate in elections under the Act. Appellees admittedly have not invoked the Act’s election procedures in the past nor have they expressed any intention of doing so in the future. But, as we see it, appellees’ reluctance in this respect does not defeat the justiciability of their challenge in view of the nature of their claim. Appellees insist that agricultural workers are constitutionally entitled to select representatives to bargain with their employers over employment conditions. As appellees read the statute, only representatives duly elected under its provisions may compel an employer to bargain with them. But 11 Although appellants have contested the justiciability of appellees’ several challenges to the Act’s provisions, they have not contended that the standing of any particular appellee is more dubious than the standing of any other. We conclude that at least the UFW has a “sufficient 'personal stake’ in a determination of the constitutional validity of [the three aforementioned provisions] to present ‘a real and substantial controversy admitting of specific relief through a decree of a conclusive character.’ ” Buckley v. Valeo, 424 U. S. 1, 12 (1976) (footnote omitted), quoting Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 241 (1937). See NAACP v. Alabama, 357 U. S. 449, 458 (1958). Accordingly, we do not assess the standing of the remaining appellees. See Buckley v. Valeo, supra, at 12. 300 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. appellees maintain, and have adduced evidence tending to prove, that the statutory election procedures frustrate rather than facilitate democratic selection of bargaining representatives. And the UFW has declined to pursue those procedures, not for lack of interest in representing Arizona farmworkers in negotiations with employers, but due to the procedures’ asserted futility. Indeed, the UFW has in the past sought to represent Arizona farmworkers and has asserted in its complaint a desire to organize such workers and to represent them in collective bargaining. Moreover, the UFW has participated in nearly 400 elections in California under procedures thought to be amenable to prompt and fair elections. The lack of a comparable opportunity in Arizona is said to impose a continuing burden on appellees’ associational rights. Even though a challenged statute is sure to work the injury alleged, however, adjudication might be postponed until “a better factual record might be available.” Regional Rail Reorganization Act Cases, supra, at 143. Thus, appellants urge that we should decline to entertain appellees’ challenge until they undertake to invoke the Act’s election procedures. In that way, the Court might acquire information regarding how the challenged procedures actually operate, in lieu of the predictive evidence that appellees introduced at trial.12 We 12 Though waiting until appellees invoke unsuccessfully the statutory election procedures would remove any doubt about the existence of concrete injury resulting from application of the election provision, little could be done to remedy the injury incurred in the particular election. Challengers to election procedures often have been left without a remedy in regard to the most immediate election because the election is too far underway or actually consummated prior to judgment. See, e. g., Dunn v. Blumstein, 405 U. S. 330, 333 n. 2 (1972); Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Williams v. Rhodes, 393 U. S. 23, 34-35 (1968). Justiciability in such cases depends not so much on the fact of past injury but on the prospect of its occurrence in an impending or future election. See, e. g., Storer v. Brown, 415 U. S. 724, 737 n. 8 (1974); Rosario v. Rockefeller, 410 U. S. 752, 756 n. 5 (1973); Dunn n. Blumstein, supra, at 333 n. 2. There is value in adjudicating election challenges notwithstanding BABBITT v. FARM WORKERS 301 289 Opinion of the Court are persuaded, however, that awaiting appellees’ participation in an election would not assist our resolution of the threshold question whether the election procedures are subject to scrutiny under the First Amendment at all. As we regard that question dispositive to appellees’ challenge—as elaborated below—we think there is no warrant for postponing adjudication of the election claim. Appellees’ twofold attack on the Act’s limitation on consumer publicity is also justiciable now. Section 23-1385 (B) (8) makes it an unfair labor practice “[t]o induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by the use of dishonest, untruthful and deceptive publicity.” And violations of that section may be criminally punishable. § 23-1392. Appellees maintain that the consumer publicity provision unconstitutionally penalizes inaccuracies inadvertently uttered in the course of consumer appeals. The record shows that the UFW has actively engaged in consumer publicity campaigns in the past in Arizona, and appellees have alleged in their complaint an intention to continue to engage in boycott activities in that State. Although appellees do not plan to propagate untruths, they contend— as we have observed—that “erroneous statement is inevitable in free debate.” New York Times Co. v. Sullivan, 376 U. S. 254, 271 (1964). They submit that to avoid criminal prosecution they must curtail their consumer appeals, and thus forgo full exercise of what they insist are their First Amendment rights. It is urged, accordingly, that their challenge to the limitation on consumer publicity plainly poses an actual case or controversy. the lapse of a particular election because “[t]he construction of the statute, an understanding of its operation, and possible constitutional limits on its application, will have the effect of simplifying future challenges, thus increasing the likelihood that timely filed cases can be adjudicated before an election is held.” Storer v. Brown, supra, at 737 n. 8 (emphasis added). 302 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. Appellants maintain that the criminal penalty provision has not yet been applied and may never be applied to commissions of unfair labor practices, including forbidden consumer publicity. But, as we have noted, when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative a plaintiff need not “first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute.” Steffel v. Thompson, 415 U. S., at 459. The consumer publicity provision on its face proscribes dishonest, untruthful, and deceptive publicity, and the criminal penalty provision applies in terms to “[a]ny person . . . who violates any provision” of the Act. Moreover, the State has not disavowed any intention of invoking the criminal penalty provision against unions that commit unfair labor practices. Appellees are thus not without some reason in fearing prosecution for violation of the ban on specified forms of consumer publicity.13 In our view, the positions of the parties are sufficiently adverse with respect to the consumer publicity provision proscribing misrepresentations to present a case or controversy within the jurisdiction of the District Court. Section 23-1385 (B)(8) also is said to limit consumer appeals to those directed at products with whom the labor organization involved has a primary dispute; as appellees construe it, it proscribes “publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name” Appellees challenge that limitation as unduly restricting protected speech. Ap 13 Even independently of criminal sanctions, § 23-1385 (B) (8) affirmatively prohibits the variety of consumer publicity specified therein. We think that the prospect of issuance of an administrative cease-and-desist order, § 23-1390 (C), or a court-ordered injunction, §§ 23-1390 (E), (J), (K), against such prohibited conduct provides substantial additional support for the conclusion that appellees’ challenge to the publicity provision is justiciable. BABBITT v. FARM WORKERS 303 289 Opinion of the Court pellees have in the past engaged in appeals now arguably prohibited by the statute and allege an intention to continue to do the same. For the reasons that appellees’ challenge to the first aspect of the consumer publicity provision is justiciable, we think their claim directed against the second aspect may now be entertained as well. We further conclude that the attack on the criminal penalty provision, itself, is also subject to adjudication at this time. Section 23-1392 authorizes imposition of criminal sanctions against “[a]ny person . . . who violates any provision” of the Act. Appellees contend that the penalty provision is unconstitutionally vague in that it does not give notice of what conduct is made criminal. Appellees aver that they have previously engaged, and will in the future engage, in organizing, boycotting, picketing, striking, and collective-bargaining activities regulated by various provisions of the Act.14 They assert that they cannot be sure whether criminal sanctions may be visited upon them for pursuing any such conduct, much of which is allegedly constitutionally protected. As we have noted, it is clear that appellees desire to engage at least in consumer publicity campaigns prohibited by the Act; accordingly, we think their challenge to the precision of the criminal penalty provision, itself, was properly entertained by the District Court and may be raised here on appeal. If the provision were truly vague, appellees should not be expected to pursue their collective activities at their peril. Appellees’ challenge to the access provision, however, is not justiciable. The provision, § 23-1385 (C), stipulates that “[n]o employer shall be required to furnish or make available to a labor organization . . . information, time, or facilities to enable such .. . labor organization ... to communicate with 14 E. g., § 23-1385 (C) (access to employer’s property); § 23-1385 (B) (7) (boycotts); § 23-1385 (B)(12) (picketing and boycotts); §23-1385 (B)(13) (striking by minorities); §§23-1384, 23-1385 (D) (collective bargaining). 304 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. employees of the employer, members of the labor organization, its supporters, or adherents.” Appellees insist, and the District Court held, that this provision deprives the Arizona Employment Relations Board—charged with responsibility for enforcing the Act—of any discretion to compel agricultural employers to furnish materials, information, time, or facilities to labor organizations desirous of communicating with workers located on the employers’ property and that the section for this reason violates the First and Fourteenth Amendments to the Constitution. It may be accepted that the UFW will inevitably seek access to employers’ property in order to organize or simply to communicate with farmworkers. But it is conjectural to anticipate that access will be denied. More importantly, appellees’ claim depends inextricably upon the attributes of the situs involved. They liken farm labor camps to the company town involved in Marsh n. Alabama, 326 U. S. 501 (1946), in which the First Amendment was held to operate. Yet it is impossible to know whether access will be denied to places fitting appellees’ constitutional claim. We can only hypothesize that such an event will come to pass, and it is only on this basis that the constitutional claim could be adjudicated at this time. An opinion now would be patently advisory; the adjudication of appellees’ challenge to the access provision must therefore await at least such time as appellees can assert an interest in seeking access to particular facilities as well as a palpable basis for believing that access will be refused. Finally, the constitutionality of the allegedly compulsory arbitration provision was also improperly considered by the District Court. That provision specifies that an employer may seek and obtain an injunction “upon the filing of a verified petition showing that his agricultural employees are unlawfully on strike or are unlawfully conducting a boycott, or are unlawfully threatening to strike or boycott, and that the BABBITT v. FARM WORKERS 305 289 Opinion of the Court resulting cessation of work or conduct of a boycott will result in the prevention of production or the loss, spoilage, deterioration, or reduction in grade, quality or marketability of an agricultural commodity or commodities for human consumption in commercial quantities.” § 23-1393 (B). If an employer invokes a court’s jurisdiction to issue a temporary restraining order to enjoin a strike, the employer “must as a condition thereto agree to submit the dispute to binding arbitration as the means of settling the unresolved issues.” And if the parties cannot agree on an arbitrator, the court must appoint one. On the record before us, there is an insufficiently real and concrete dispute with respect to application of this provision. Appellees themselves acknowledge that, assuming an arguably unlawful strike will occur, employers may elect to pursue a range of responses other than seeking an injunction and agreeing to arbitrate. Moreover, appellees have never contested the constitutionality of the arbitration clause. They declare that “(t]he three judge court below on its own motion found the binding arbitration provision of § 1393 (B) violative of substantive due process and the Seventh Amendment.” Brief for Appellees 71 n. 153. Appellees, instead, raised other challenges to the statute’s civil enforcement scheme, which we do not consider on this appeal. See n. 10, supra. It is clear, then, that any ruling on the compulsory arbitration provision would be wholly advisory. Ill Appellants contend that, even assuming any of appellees’ claims are justiciable, the District Court should have abstained from adjudicating those claims until the Arizona courts might authoritatively construe the provisions at issue. We disagree that appellees’ challenge to the statutory election procedures should first be submitted to the Arizona courts, but we think that the District Court should have abstained from considering the constitutionality of the criminal 306 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. penalty provision and the consumer publicity provision pending review by the state courts. As we have observed, “‘[a]bstention . . . sanctions . . . escape [from immediate decision] only in narrowly limited “special circumstances.” ’ ” Kusper v. Pontikes, 414 U. S. 51, 54 (1973), quoting Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 509 (1972). “The paradigm of the ‘special circumstances’ that make abstention appropriate is a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question.” Kusper v. Pontikes, supra, at 54; see Zwickler v. Koota, 389 U. S. 241, 249 (1967); Harrison v. NAACP, 360 U. S. 167, 176-177 (1959); Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941). Of course, the abstention doctrine “contemplates that deference to state court adjudication only be made where the issue of state law is uncertain.” Harman v. Forssenius, 380 U. S. 528, 534 (1965). But when the state statute at issue is “fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question,” id., at 535, abstention may be required “in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication,” id., at 534. We think that a state-court construction of the provision governing election procedures would not obviate the need for decision of the constitutional issue or materially alter the question to be decided. As we shall discuss, our resolution of the question whether the statutory election procedures are affected with a First Amendment interest at all is dispositive of appellees’ challenge. And insofar as it bears on that matter, the statute is pointedly clear. Accordingly, we perceive no basis for declining to decide appellees’ challenge to the election procedures, notwithstanding the absence of a prior statecourt adjudication. BABBITT v. FARM WORKERS 307 289 Opinion of the Court We conclude, however, that the District Court should have postponed resolution of appellees’ challenge to the criminal penalty provision. That section provides in pertinent part that “[a]ny person . . . who violates any provision of [the Act] is guilty of a . . . misdemeanor.” § 23-1392. Appellees maintain that the penalty provision leaves substantial doubt regarding what activities will elicit criminal sanctions. The District Court so concluded, observing that “[considering the enormous variety of activities covered by the Act, [the penalty section] is clearly a statutory provision so vague that men of common intelligence can only guess at its meaning.” 449 F. Supp., at 453. The court elaborated: “There is no way for anyone to guess whether criminal provisions will apply to any particular conduct, in advance, and it is clear that the statute is unconstitutionally vague and does not adequately define prohibited conduct and is, therefore, in violation of the due process clause of the Fourteenth Amendment.” Ibid. Appellants, themselves, do not argue that the criminal penalty provision is unambiguous. Indeed, they insist that until the provision is enforced “it is impossible to know what will be considered a 'violatio[n]’ of the Act.” Brief for Appellants 37. Appellants submit that various unfair labor practices, for example, have not been treated as yet as criminal violations. It is possible, however, that the penalty provision might be construed broadly as applying to all sections of the Act that affirmatively proscribe or command courses of conduct. In terms it reaches “[a]ny person . . . who violates any provision of” the Act. Alternatively, the Arizona courts might conclude that only limited portions of the Act are susceptible of being “violated” and thus narrowly define the reach of the penalty section. In either case, it is evident that the statute is reasonably susceptible of constructions that might undercut or modify appellees’ vagueness attack. It may be that, if construed broadly, the penalty provision 308 OCTOBER TERM, 1978 Opinion of the Court 442U.S. would operate in conjunction with substantive provisions of the Act to restrict unduly the pursuit of First Amendment activities. But it is at least evident that an authoritative construction of the penalty provision may significantly alter the constitutional questions requiring resolution.15 We have noted, of course, that when “extensive adjudications, under the impact of a variety of factual situations, [would be required in order to bring a challenged statute] within the bounds of permissible constitutional certainty,” abstention may be inappropriate. Baggett v. Bullitt, 377 U. S. 360, 378 (1964). But here the Arizona courts may determine in a single proceeding what substantive provisions the penalty provision modifies. In this case, the “uncertain issue of state law [turns] upon a choice between one or several alternative meanings of [the] state statute.” Ibid. Accordingly, we think the Arizona courts should be “afforded a reasonable opportunity to pass upon” the section under review. Harrison v. NAACP, supra, at 176. The District Court should have abstained with respect to appellees’ challenges to the consumer publicity provision as well. Appellees have argued that Arizona’s proscription of misrepresentations by labor organizations in the course of appeals to consumers intolerably inhibits the exercise of their 15 The dissent suggests that § 23-1392 is unambiguous and needs no construction and that abstention is therefore improper. But the District Court invalidated § 23-1392 on vagueness grounds, and the State’s position with respect to the issue is such that we are reluctant to conclude that appellees’ challenge to § 23-1392 on vagueness grounds is without substance and hence that it contains no ambiguity warranting abstention. If there were to be no abstention regarding § 23-1392 on the basis that it clearly criminalizes any departure from the command of any provision of the Act, adequate consideration of whether the section is unconstitutionally overbroad would require inquiry into whether some conduct prohibited by the Act is constitutionally shielded from criminal punishment. But that would entail dealing with the validity of provisions about which there may be no case or controversy or with respect to which abstention is the proper course. BABBITT v. FARM WORKERS 309 289 Opinion of the Court First Amendment right freely to discuss issues concerning the employment of farm laborers and the production of crops. Appellants submit, however, that the statutory ban on untruthful consumer publicity might fairly be construed by an Arizona court as proscribing only misrepresentations made with knowledge of their falsity or in reckless disregard of truth or falsity. As that is the qualification that appellees insist the prohibition of misstatements must include, a construction to that effect would substantially affect the constitutional question presented. It is reasonably arguable that the consumer publicity provision is susceptible of the construction appellants suggest. Section 23-1385 (B)(8) makes it unlawful “[t]o induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by use of dishonest, untruthful and deceptive publicity.” (Emphasis added.) On its face, the statute does not forbid the propagation of untruths without more. Rather, to be condemnable, consumer publicity must be “dishonest” and “deceptive” as well as untruthful. And the Arizona courts may well conclude that a “dishonest” and “untruthful” statement is one made with knowledge of falsity or in reckless disregard of falsity.16 16 Although construing the section in this manner would apparently satisfy appellees, we should not be understood as declaring that the section and its criminal sanction would be unconstitutional if they proscribed damaging falsehoods perpetrated unknowingly or without recklessness. We have not adjudicated the role of the First Amendment in suits by private parties against nonmedia defendants, nor have we considered the constitutional implications of causes of action for injurious falsehoods outside the area of defamation and the ground covered by Time, Inc. v. Hill, 385 U. S. 374 (1967). Linn v. Plant Guard Workers, 383 U. S. 53 (1966), holding that application of state defamation remedies for speech uttered in a labor dispute is dependent upon a showing of knowledge or recklessness, was grounded in federal labor policy, though the case had constitutional overtones. Furthermore, we express no view on whether the section would be 310 OCTOBER TERM, 1978 Opinion of the Court 442U.S. To be sure, the consumer publicity provision further provides that “[p]ermissible inducement or encouragement . . . means truthful, honest and nondeceptive publicity. . . ” (Emphasis added.) That phrase may be read to indicate that representations not having all three attributes are prohibited under the Act. But it could be held that the phrase denotes only that “truthful, honest and nondeceptive publicity” is permissible, not that any other publicity is prohibited. When read in conjunction with the prohibitory clause preceding it, the latter phrase thus introduces an ambiguity suitable for state-court resolution. In sum, we think adjudication of appellees’ attack on the statutory limitation on untruthful consumer appeals should await an authoritative interpretation of that limitation by the Arizona courts. We further conclude that the District Court should have abstained from adjudicating appellees’ additional contention that the consumer publicity provision unconstitutionally precludes publicity not directed at the products of employers with whom the protesting labor organization has a primary dispute. We think it is by no means clear that the statute in fact prohibits publicity solely because it is directed at the products of particular employers. As already discussed, § 23-1385 (B)(8) declares it an unfair labor practice to induce or encourage the ultimate consumer of agricultural products to refrain from purchasing products “by the use of dishonest, untruthful and deceptive publicity.” The provision then stipulates: “Permissible inducement or encouragement within the meaning of this section means truthful, honest and nondeceptive publicity which identifies the agricultural prod vulnerable to constitutional attack if it declared false consumer publicity, whether innocent or culpable, to be an unfair labor practice and had as its only sanction a prospective cease-and-desist order or court injunction directing that the defendant cease publishing material already determined to be false. BABBITT v. FARM WORKERS 311 289 Opinion of the Court uct produced by an agricultural employer with whom the labor organization has a primary dispute. Permissible inducement or encouragement does not include publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name.” The section nowhere proscribes publicity directed at products of employers with whom a labor organization is not engaged in a primary dispute. It indicates only that publicity ranging beyond a primary disagreement is not, accorded affirmative statutory protection The Arizona courts might reasonably determine that the language in issue does no more than that and might thus ameliorate appellees’ concerns.17 Moreover, § 23-1385 (B) (8) might be construed, in light of §23-1385 (C), to prohibit only threatening speech. The latter provision states in pertinent part that “[t]he expressing of any views, argument, opinion or the making of any statement ... or the dissemination of such views whether in written, printed, graphic, visual or auditory form, if such expression contains no threat of reprisal or force or promise of benefit, shall not constitute or be evidence of an unfair 17 Were the section construed to prohibit all appeals directed against the products of agricultural employers whose employees the labor organization did not actually represent, its constitutionality would be substantially in doubt. Even picketing may not be so narrowly circumscribed. AFL v. Swing, 312 U. S. 321 (1941). Additional difficulties would arise were the section interpreted to intercept publicity by means other than picketing. Although we have previously concluded that picketing aimed at discouraging trade across the board with a truly neutral employer may be barred compatibly with the Constitution, Carpenters n. Ritter’s Cafe, 315 U. S. 722 (1942); cf. NLRB v. Fruit Packers, 377 U. S. 58 (1964), we have noted that, for First Amendment purposes, picketing is qualitatively “different from other modes of communication.” Hughes n. Superior Court, 339 U. S. 460, 465 (1950); see Buckley n. Valeo, 424 U. S., at 17; Teamsters v. Vogt, Inc., 354 U. S. 284 (1957). 312 OCTOBER TERM, 1978 Opinion of the Court 442U.S. labor practice . . ..” On its face, § 23-1385 (C) would appear to qualify § 23-1385 (B)(8), as the latter identifies “an unfair labor practice for a labor organization or its agents.” Were the consumer publicity provision interpreted to intercept only those expressions embodying a threat of force, the issue of its constitutional validity would assume a character wholly different from the question posed by appellees’ construction. Thus, we conclude that the District Court erred in entertaining all aspects of appellees’ challenge to the consumer publicity section without the benefit of a construction thereof by the Arizona courts. We are sensitive to appellees’ reluctance to repair to the Arizona courts after extensive litigation in the federal arena. We nevertheless hold that in this case the District Court should not have adjudicated substantial constitutional claims with respect to statutory provisions that are patently ambiguous on their face.18 IV The merits of appellees’ challenge to the statutory election procedures remain to be considered. Appellees contend, and the District Court concluded, that the delays assertedly attending the statutory election scheme and the technical limitations on who may vote in unit elections severely curtail appellees’ freedom of association. This freedom, it is said, entails the liberty not only to join or sustain a labor union and collectively to express a position to an agricultural employer, but also to create or elect an organization entitled to invoke the statutory provision requiring an employer to bargain collectively with the certified representative of his em 18 It has been suggested that the impact of abstention on appellees’ pursuit of constitutionally protected activities should be reduced by directing the District Court to protect appellees against enforcement of the state statute pending a definitive resolution of issues of state law by the Arizona courts. See Harrison n. NAACP, 360 U. S. 167, 178-179 (1959). But this is a matter that is best addressed by the District Court in the first instance. BABBITT v. FARM WORKERS 313 289 Opinion of the Court ployees. As we see it, however, these general complaints that the statutory election procedures are ineffective are matters for the Arizona Legislature and not the federal courts. Accepting that the Constitution guarantees workers the right individually or collectively to voice their views to their employers, see Givhan n. Western Lyne Consolidated School Dist., 439 U. S. 410 (1979); cf. Madison School Dist. v. Wisconsin Employment Relations Comm’n, 429 U. S. 167, 173-175 (1976), the Constitution does not afford such employees the right to compel employers to engage in a dialogue or even to listen. Accordingly, Arizona was not constitutionally obliged to provide a procedure pursuant to which agricultural employees, through a chosen representative, might compel their employers to negotiate. That it has undertaken to do so in an assertedly niggardly fashion, then, presents as a general matter no First Amendment problems.19 Moreover, the Act does not preclude voluntary recognition of a labor organization by an agricultural employer. Thus, in the event that an employer desires to bargain with a representative chosen by his employees independently of the statutory election procedures, such bargaining may readily occur. The statutory procedures need be pursued only if farmworkers desire to designate exclusive bargaining representatives and to compel their employer to bargain—rights that are conferred by statute rather than the Federal Constitution. Accordingly, at this time, we are unable to discern any First Amendment difficulty with the Arizona statutory 19 We do not consider whether the election procedures deny any of the appellees equal protection of the law. Although appellees have challenged other provisions of the Act on equal protection grounds, they have not directed such an argument in this Court against the section governing election procedures. We understand appellees’ equal protection challenge to embrace the sections pertaining to access to an employer’s property and consumer publicity. But we have determined that appellees’ assault on the first provision is premature and that appellees’ attack on the second should be held in abeyance pending resort to the Arizona courts. 314 OCTOBER TERM, 1978 Opinion of Brennan, J. 442U.S. election scheme, whether or not the procedures are as fair or efficacious as appellees would like. Reversed and remanded. Mr. Justice Brennan with whom Mr. Justice Marshall joins, concurring in part and dissenting in part. I join the opinion of the Court, with the exception that I respectfully dissent from the Court’s holding that the District Court should have abstained and postponed resolution of appellees’ constitutional challenge to § 23-1392, Ariz. Rev. Stat. Ann. (Supp. 1978), until this statutory provision had been construed by the Arizona courts. It must be stressed that “[a]bstention from the exercise of federal jurisdiction is the exception, not the rule. ‘The doctrine of abstention ... is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. . . .’ County of Allegheny v. Frank Mashuda Co., 360 U. S. 185, 188-189 (1959).” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 813 (1976). If a state statute is susceptible of a construction that would avoid or significantly alter a constitutional issue, however, abstention is appropriate to avoid needless friction “between federal pronouncements and state policies.” Reetz v. Bozanich, 397 U. S. 82, 87 (1970). But, as the Court today correctly points out, the state statute at issue must be “ ‘fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question,’ [Harman v. Forssenius, 380 U. S. 528,] 535 [1965].” Ante, at 306. (Emphasis supplied.) This is not the case with § 23-1392.1 Section 23-1392 provides in part: “Any person who . . . violates any provision of this 1 Because of the ambiguous relationship between § 23-1385 (C) and §23-1385 (B)(8), I concur in the Court’s holding that the District Court should have abstained with respect to § 23-1385 (B) (8). BABBITT v. FARM WORKERS 315 289 Opinion of Brennan, J. article is guilty of a . . . misdemeanor. The provisions of this section shall not apply to any activities carried on outside the state of Arizona.” The District Court concluded concerning this provision that “[i]t would appear on [its] face . . . that it cuts across and covers the entire [Arizona Agricultural Employment Relations] Act, not just a limited area where a criminal penalty might be acceptable. It says in plain English that it applies to ‘any person’ and further [that] any person ‘who violates any provision of this article is guilty of a misdemeanor ....’” 449 F. Supp. 449, 453 (Ariz. 1978). The District Court found the provision unconstitutionally overbroad.2 Ibid. The District Court is clearly correct that the language of § 23-1392 is “plain and unambiguous.” 3 Davis v. Mann, 377 U. S. 678, 690 (1964). The statute is not “obviously susceptible of a limiting construction” that would avoid the federal constitutional question reached by the District Court. Zwick-ler v. Koota, 389 U. S. 241, 251 n. 14 (1967). Of course, as every attorney knows, any statutory provision can be made 2 The District Court also found § 23-1392 to be “unconstitutionally vague.” 449 F. Supp., at 453. The Court stated: “Considering the enormous variety of activities covered by the Act, and the fact that . . . many of these involve First and Fourteenth Amendment constitutional rights, it is clearly a statutory provision so vague that men of common intelligence can only guess at its meaning. “There is no way for anyone to guess whether criminal provisions will apply to any particular conduct, in advance, and it is clear that the statute is unconstitutionally vague and does not adequately define prohibited conduct and is, therefore, in violation of the due process clause of the Fourteenth Amendment.” Ibid. 3 The fact that § 23-1392 is, for purposes of the abstention doctrine, “plain and unambiguous,” does not necessarily mean that it cannot be unconstitutionally vague for purposes of the Due Process Clause of the Fourteenth Amendment. The section may plainly and unambiguously create criminal sanctions for violations of sections of the Act which, considered as criminal prohibitions, would be unconstitutionally vague. 316 OCTOBER TERM, 1978 Opinion of Brennan, J. 442 U. S. ambiguous through a sufficiently assiduous application of legal discrimination. The Court resorts to such lawyerly legerdemain when it concludes that abstention is appropriate because Arizona courts might perhaps find “that only limited portions of the [Agricultural Employment Relations] Act are susceptible of being ‘violated’ and thus narrowly define the reach of the penalty section.” Ante, at 307. But the potential ambiguity which the Court thus reads into § 23-1392 does not derive from the plain words of the statute. It is simply the Court’s own invention, not an uncertainty that is “fairly” in the statute.4 Abstention is particularly inappropriate with respect to § 23-1392 because the provision impacts so directly on precious First Amendment rights. The statute creates sanctions for violations of the provisions of the Agricultural Employment Relations Act that regulate the speech of employees and employers.5 This potential impairment of First Amendment 4 Even if the statute were ambiguous in the manner suggested by the Court, abstention would still be inappropriate. It is extraordinarily unlikely that, in a statute as complex and far ranging as this Act, a single adjudication could definitively specify the exact reach of § 23-1392. In such circumstances, we have held that a federal court should not abstain from exercising its jurisdiction. As we stated in Procunier n. Martinez, 416 U. S. 396, 401 n. 5 (1974): “Where . . . , as in this case, the statute or regulation is challenged as vague because individuals to whom it plainly applies simply cannot understand what is required of them and do not wish to forswear all activity arguably within the scope of the vague terms, abstention is not required. [Baggett v. Bullitt, 377 U. S. 360,] 378 [1964]. In such a case no single adjudication by a state court could eliminate the constitutional difficulty. Rather it would require ‘extensive adjudications, under the impact of a variety of factual situations,’ to bring the challenged statute or regulation ‘within the bounds of permissible constitutional certainty.’ Ibid” 5 Section 1385 (B)(8), for example, makes it an unfair labor practice “[t]o induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by the use of dishonest, untruthful and deceptive publicity. Per BABBITT v. FARM WORKERS 317 289 Opinion of Brennan, J. interests strongly counsels against abstention. “The abstention doctrine is not an automatic rule applied whenever a federal court is faced with a doubtful issue of state law; it rather involves a discretionary exercise of a court’s equity powers. Ascertainment of whether there exist the ‘special circumstances,’ Propper v. Clark, 337 U. S. 472, prerequisite to its application must be made on a case-by-case basis. Railroad Comm’n v. Pullman Co., 312 U. S. 496, 500; NAACP v. Bennett, 360 U. S. 471.” Baggett v. Bullitt, 377 U. S. 360, 375 (1964). Relevant to the exercise of this equitable discretion, are “the constitutional deprivation alleged and the probable consequences of abstaining.” Harman v. Forssenius, 380 U. S. 528, 537 (1965). “This Court often has remarked that the equitable practice of abstention is limited by considerations of 1 “the delay and expense to which application of the abstention doctrine inevitably gives rise.” ’ Lake Carriers’ Assn. v. MacMullan, 406 U. S., at 509, quoting England N. Medical Examiners, 375 U. S. 411, 418 (1964).” Bellotti v. Baird, 428 U. S. 132, 150 (1976). Therefore, when “constitutionally protected rights of speech and association,” Baggett v. Bullitt, supra, at 378, are at stake, abstention becomes especially inappropriate. This is because “ [i]n such [a] case to force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect.” Zwickler v. Koota, supra, at 252. Even assuming that appellees have the financial resources to pursue this case through the Arizona courts, appellees may missible inducement or encouragement within the meaning of this section means truthful, honest and nondeceptive publicity which identifies the agricultural product produced 'by an agricultural employer with whom the labor organization has a primary dispute. Permissible inducement or encouragement does not include publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name.” Section 23-1392 makes violation of § 23-1385 (B) (8) a crime. 318 OCTOBER TERM, 1978 Opinion of Brennan, J. 442 U. S. well avoid speech that is perhaps constitutionally protected throughout the long course of that litigation, because such speech might fall within the cold shadow of criminal liability.6 The potential for this self-censorship is abhorrent to the First Amendment. It should be permitted by a court in equity only for the most important of reasons. It cannot be tolerated on the basis of the slender ambiguity which the Court has managed to create in this statute. Abstention on this issue is therefore manifestly unjustified.7 6 Appellees may be deterred from constitutionally protected speech even if the regulations which the Agricultural Employment Relations Act otherwise imposes on their speech are permissible under the First Amendment. This is because criminal sanctions discourage speech much more powerfully than do administrative regulations. Such sanctions would thus be more apt to cause employers and employees to “steer far wider of the unlawful zone,” Speiser v. Randall, 357 U. S. 513, 526 (1958), and more likely to contract the “breathing space” necessary for the survival of “First Amendment freedoms.” NAACP v. Button, 371 U. S. 415, 433 (1963). For this reason, it does not follow that because the First Amendment permits certain speech to be regulated, it must also permit such speech to be punished. See Gertz v. Robert Welch, Inc., 418 U. S. 323, 348-350 (1974). 7 Because of the First Amendment interests involved, my view is that the District Court on remand should issue an injunction “to protect appellees against enforcement of the state statute pending a definitive resolution of issues of state law by the Arizona courts. See Harrison v. NAACP, 360 U. S. 167, 178-179 (1959).” Ante, at 312 n. 18. LO-JI SALES, INC. v. NEW YORK 319 Syllabus LO-JI SALES, INC. v. NEW YORK CERTIORARI TO THE APPELLATE TERM, SUPREME COURT OF NEW YORK, NINTH AND TENTH JUDICIAL DISTRICTS No. 78-511. Argued April 16, 1979—Decided June 11, 1979 A New York State Police investigator, after purchasing two films from petitioner’s “adult” bookstore and after viewing them and concluding that they violated state obscenity laws, took the films to a Town Justice, who also viewed the films. Based on the investigator’s affidavit, the justice issued a warrant authorizing the search of the store and the seizure of other copies of the two films. The investigator’s affidavit also asserted that “similar” films and printed matter portraying similar activities could be found on the premises and requested that the justice accompany the investigator in executing the warrant so that the justice might determine independently if any other items at the store were possessed in violation of law and subject to seizure. The justice included in the warrant a recital that authorized the seizure of “[t]he following items which the Court independently [on examination] has determined to be possessed in violation” of law. However, at the time the justice signed the warrant no items were listed or described following this statement. The justice also signed a warrant for the arrest of the store clerk for having sold the two films to the investigator. Thereafter, the justice, the investigator, and nine other law enforcement officials entered the bookstore, arrested the clerk (the only employee present), and advised him of the search warrant; they conducted a search that lasted nearly six hours, covering various areas of the store, and examined and seized numerous films, projectors, and magazines. The seized items were inventoried at a State Police barracks and each item was then listed by the police on the search warrant. Petitioner was charged with obscenity in the second degree. The trial court denied petitioner’s pretrial motion to suppress the evidence as having been searched for and seized in violation of the First, Fourth, and Fourteenth Amendments; petitioner then entered a guilty plea. As permitted by New York law, petitioner appealed the denial of the motion to suppress, and the convictions were affirmed. Held: 1. The Fourth Amendment does not permit the action taken here, where, except for the specification of copies of the two films previously 320 OCTOBER TERM, 1978 Syllabus 442 U. S. purchased by the investigator, the warrant did not purport to particularly describe the things to be seized but, instead, left it entirely to the discretion of the officials conducting the search to decide what items were likely obscene and to accomplish their seizure. The Fourth Amendment does not countenance open-ended warrants to be completed while a search is being conducted and items seized or after the seizure has been carried out. Pp. 325-326. 2. The Town Justice’s presence and participation in the search did not ensure that no items would be seized absent probable cause to believe that they were obscene; nor did his presence provide an imme-diate adversary hearing on the issue. The justice conducted a generalized search and was not acting as a neutral and detached judicial officer. This procedure is not authorized by Heller n. New York, 413 U. S. 483. Here, the Town Justice undertook to telescope the processes of the application for a warrant, the issuance of the warrant, and its execution. Pp. 326-328. 3. The actions involved here cannot be justified on the theory that because the items at issue were displayed in areas of the store open to the general public, petitioner had no legitimate expectation of privacy against governmental intrusion and warrantless search. Merely because a retail store invites the public to enter, it does not consent to wholesale searches and seizures that do not conform to Fourth Amendment, guarantees. The actions involved cannot be sustained on the ground that petitioner’s clerk consented to the sweeping search. After the clerk was under arrest and aware of the presumed authority of the search warrant, his conduct complying with official requests cannot, on this record, be considered voluntary. Pp. 328-329. Reversed and remanded. Burger, C. J., delivered the opinion for a unanimous Court. Bernard A. Berkman argued the cause and filed briefs for petitioner. Richard L. Parker argued the cause for respondent. With him on the brief was David 8. Ritter* ^Michael A. Bamberger filed a brief for the American Booksellers Association, Inc., et al. as amici curiae urging reversal. Charles H. Keating, Jr., pro se, Richard M. Bertsch, and James J. LO-JI SALES, INC. v. NEW YORK 321 319 Opinion of the Court Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari on claims that the seizure of magazines, films, and other objects from petitioner’s bookstore violated guarantees of the First, Fourth, and Fourteenth Amendments. 439 U. S. 978 (1978). I On June 20, 1976, an investigator for the New York State Police purchased two reels of film from petitioner’s so-called “adult” bookstore. Upon viewing them, he concluded the films violated New York’s obscenity laws. On June 25, he took them to a Town Justice for a determination whether there was reasonable cause to believe the films violated the state obscenity laws so as to justify a warrant to search the seller’s store. The Town Justice viewed both films in their entirety, and he apparently concluded they were obscene. Based upon an affidavit of the investigator subscribed before the Town Justice after this viewing, a warrant issued authorizing the search of petitioner’s store and the seizure of other copies of the two films exhibited to the Town Justice. The investigator’s affidavit also contained an assertion that “similar” films and printed matter portraying similar activities could be found on the premises, and a statement of the affiant’s belief that the items were possessed in violation of the obscenity laws. The warrant application requested that the Town Justice accompany the investigator to petitioner’s store for the execution of the search warrant. The stated purpose was to allow the Town Justice to determine independently if any other items at the store were possessed in violation of law and subject to seizure. The Town Justice agreed. Accordingly, the warrant also contained a recital that authorized the seizure of “[t]he following items that the Court Clancy filed a brief for Charles H. Keating, Jr., as amicus curiae urging affirmance. 322 OCTOBER TERM, 1978 Opinion of the Court 442U.S. independently [on examination] has determined to be possessed in violation of Article 235 of the Penal Law . . . .” 1 However, at the time the Town Justice signed the warrant there were no items listed or described following this statement. As noted earlier, the only “things to be seized” that were described in the warrant were copies of the two films the state investigator had purchased. Before going to the store, the Town Justice also signed a warrant for the arrest of the clerk who operated the store for having sold the two films to the investigator. The Town Justice and the investigator enlisted three other State Police investigators, three uniformed State Police officers, and three members of the local prosecutor’s office—a total of 11—and the search party converged on the bookstore. The store clerk was immediately placed under arrest and advised of the search warrant. He was the only employee present; he was free to continue working in the store to the extent the search permitted, and the store remained open to the public while the party conducted its search mission which was to last nearly six hours. The search began in an area of the store which contained booths in which silent films were shown by coin-operated projectors. The clerk adjusted the machines so that the films could be viewed by the Town Justice without coins; it is disputed whether he volunteered or did so under compulsion of the arrest or the warrant. See infra, at 329. The Town Justice viewed 23 films for two to three minutes each and, satisfied there was probable cause to believe they were obscene, then ordered the films and the projectors seized. The Town Justice next focused on another area containing four coin-operated projectors showing both soundless and sound films. After viewing each film for two to five minutes, 1 New York Penal Law § 235.00 (McKinney Supp. 1978-1979) is the definitional section of the State’s obscenity law. Petitioner was later charged with obscenity in the second degree, § 235.05. See n. 3, infra. LO-JI SALES, INC. v. NEW YORK 323 319 Opinion of the Court again without paying, he ordered them seized along with their projectors. The search party then moved to an area in which books and magazines were on display. The magazines were encased in clear plastic or cellophane wrappers which the Town Justice had two police officers remove prior to his examination of the books. Choosing only magazines that did not contain significant amounts of written material, he spent not less than 10 seconds nor more than a minute looking through each one. When he was satisfied that probable cause existed, he immediately ordered the copy which he had reviewed, along with other copies of the same or “similar” magazines, seized. An investigator wrote down the titles of the items seized. All told, 397 magazines were taken. The final area searched was one in which petitioner displayed films and other items for sale behind a glass enclosed case. When it was announced that each box of film would be opened, the clerk advised that a picture on the outside of the box was representative of what the film showed. Therefore, if satisfied from the picture that there was probable cause to believe the film in the box was obscene, the Town Justice ordered the seizure of all copies of that film. As with the magazines, an investigator wrote down the titles of the films seized, a total of 431 reels.2 Miscellaneous other items, including business records, were also seized, but no issue concerning them is raised here. Throughout the day, two or three marked police cars were parked in front of the store and persons who entered the store were asked to show identification and their names were taken by the police. Not surprisingly, no sales were made during the period the search party was at the store, and no customers or potential customers remained in the store for any appreciable time after becoming aware of the police presence. 2 The State’s brief asserts approximately 474 films were taken, but from the inventory filed in the case it appears the number was 431. 324 OCTOBER TERM, 1978 Opinion of the Court 442U.S. After the search and seizure was completed, the seized items were taken to a State Police barracks where they were inventoried. Each item was then listed on the search warrant, and late the same night the completed warrant was given to the Town Justice. The warrant, which had consisted of 2 pages when he signed it before the search, by late in the day contained 16 pages. It is clear, therefore, that the particular description of “things to be seized” was entered in the document after the seizure and impoundment of the books and other articles. The items seized formed the basis for a three-count information charging petitioner with obscenity in the second degree under New York law.3 The counts were based upon the three main groups of items seized: the magazines, Count I; the films for sale to the public, Count II; and the films and coin-operated projectors, Count III. Before trial, petitioner moved to suppress all the evidence upon which the three counts were based because it had been searched for and seized in violation of the First, Fourth, and Fourteenth Amendments. The motion was denied. Petitioner then entered a guilty plea to all three counts and was fined $1,000 on each. Accordingly, the obscenity of the magazines and films having been the subject of a judicial confession, there is no issue of obscenity in the case.4 Only the validity of the warrant and the search and seizure of the property are before us. 3 New York Penal Law § 235.05 (McKinney Supp. 1978-1979) defines obscenity in the second degree as follows: “A person is guilty of obscenity in the second degree when, knowing its content and character, he: “1. Promotes, or possesses with intent to promote, any obscene material . . . .” Section 235.00 of the Penal Law states: “4. 'Promote’ means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.” 4 The clerk arrested at petitioner’s store entered a guilty plea to a LO-JI SALES, INC. v. NEW YORK 325 319 Opinion of the Court New York permits appeal of a denial of a motion to suppress even after a plea of guilty to the charge. N. Y. Crim. Proc. Law § 710.70 (2) (McKinney 1971). Pursuant to this procedure, petitioner appealed and the intermediate appellate court for that judicial district affirmed the convictions. A timely application for leave to appeal to the New York Court of Appeals was denied. II This search warrant and what followed the entry on petitioner’s premises are reminiscent of the general warrant or writ of assistance of the 18th century against which the Fourth Amendment was intended to protect. See Marshall v. Barlow’s, Inc., 436 U. S. 307, 311 (1978); Stanford v. Texas, 379 U. S. 476, 481 (1965); Marcus v. Search Warrant, 367 U. S. 717, 724 (1961). Except for the specification of copies of the two films previously purchased, the warrant did not purport to “particularly describ [e] . . . the . . . things to be seized.” U. S. Const., Arndt. 4. Based on the conclusory statement of the police investigator that other similarly obscene materials would be found at the store, the warrant left it entirely to the discretion of the officials conducting the search to decide what items were likely obscene and to accomplish their seizure. The Fourth Amendment does not permit such action. Roaden v. Kentucky, 413 U. S. 496, 502 (1973); Stanford v. Texas, supra, at 485; Marcus v. Search Warrant, supra, at 732. Nor does the Fourth Amendment countenance open-ended warrants, to be completed while a search is being conducted and items seized or after the seizure has been carried out. This search began when the local justice and his party entered the premises. But at that time there was not sufficient probable cause to pursue a search beyond looking for additional copies of the two specified films, assuming the validity of searching even for those. And the record is clear charge of disorderly conduct for selling the two films to the State Police investigator. He did not appeal. 326 OCTOBER TERM, 1978 Opinion of the Court 442U.S. that the search began and progressed pursuant to the sweeping open-ended authorization in the warrant. It was not limited at the outset as a search for other copies of the two “sample” films; it expanded into a more extensive search because other items were found that the local justice deemed illegal. Therefore, we have no occasion to decide whether in this context the “plain view” doctrine might be applicable. See Coolidge v. New Hampshire, 403 U. S. 443, 465 (1971).5 Nor can it reasonably be argued that the search was incident to arrest of the store clerk. Chimel v. California, 395 U. S. 752 (1969). Ill We have repeatedly said that a warrant authorized by a neutral and detached judicial officer is “a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime.’ Johnson v. United States, 333 U. S. 10, 14 (1948).” United States v. Chadwick, 433 U. S. 1, 9 (1977). See also Coolidge n. New Hampshire, supra, at 450. The State contend^ that the presence and participation of the Town Justice in the search ensured that no items would be seized absent probable cause to believe they were obscene, and that his presence enabled petitioner to enjoy an immediate adversary hearing on the issue. The Town Justice did not manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure. Coolidge v. New Hampshire, supra, at 449. We need not question the 5 Of course, contraband may be seized without a warrant under the “plain view” doctrine. See, e. g., Ker v. California, 374 U. S. 23, 42-43 (1963). But we have recognized special constraints upon searches for and seizures of material arguably protected by the First Amendment, e. g., Heller v. New York, 413 U. S. 483 (1973); Marcus v. Search Warrant, 367 U. S. 717, 731-732 (1961); materials normally may not be seized on the basis of alleged obscenity without a warrant. LO-JI SALES, INC. v. NEW YORK 327 319 Opinion of the Court subjective belief of the Town Justice in the propriety of his actions, but the objective facts of record manifest an erosion of whatever neutral and detached posture existed at the outset. He allowed himself to become a member, if not the leader, of the search party which was essentially a police operation. Once in the store, he conducted a generalized search under authority of an invalid warrant; he was not acting as a judicial officer but as an adjunct law enforcement officer. When he ordered an item seized because he believed it was obscene, he instructed the police officers to seize all “similar” items as well, leaving determination of what was “similar” to the officer’s discretion. Indeed, he yielded to the State Police even the completion of the general provision of the warrant. Though it would not have validated the warrant in any event, the Town Justice admitted at the hearing to suppress evidence that he could not verify that the inventory prepared by the police and presented to him late that evening accurately reflected what he had ordered seized. We also cannot accept the State’s contention that it acted in compliance with Heller v. New York, 413 U. S. 483 (1973). There, based on police reports of probable violation of state law, a judge viewed a film in a theater as an ordinary paying patron; on the basis of his observation of the entire performance, he then issued a warrant for the seizure of the particular viewed film as evidence. There was no claim that seizure of the single copy impeded the exhibitor’s continued business pending decision on the issue of obscenity. Heller’s claim was that not even one of his films could be lawfully seized without a prior adversary hearing. We rejected that claim and held that seizure on the warrant so issued by a neutral judicial officer on probable cause after viewing one film was constitutionally permissible so long as, on request, a prompt adversary hearing was available on the issue of obscenity. “With such safeguards, we do not perceive that an adversary hearing prior to a seizure [of a single sample film] by lawful 328 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. warrant would materially increase First Amendment protection.” Id., at 493. We also took pains to point out: “Courts will scrutinize any large-scale seizure of books, films, or other materials presumptively protected under the First Amendment to be certain that the requirements of A Quantity of Books [v. Kansas, 378 U. S. 205 (1964),] and Marcus [v. Search Warrant, 367 U. S. 717 (1961),] are fully met. . . . “But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film.” Id., at 491-492. In contrast, the local justice here undertook to telescope the processes of the application for a warrant, the issuance of the warrant, and its execution. It is difficult to discern when he was acting as a “neutral and detached” judicial officer and when he was one with the police and prosecutors in the executive seizure, and indeed even whether he thought he was conducting, ex parte, the “prompt” postseizure hearings on obscenity called for by Heller, supra, at 492. Heller does not permit the kind of activities revealed by this record.6 IV Perhaps anticipating our disposition of the case, the State GWe do not suggest, of course, that a “neutral and detached magistrate,” Shadwick n. Tampa, 407 U. S. 345, 350 (1972), loses his character as such merely because he leaves his regular office in order to make himself readily available to law enforcement officers who may wish to seek the issuance of warants by him. For example, in Heller, the judge signed the search warrant for the seizure of the film in the theater itself. But as we have just pointed out, Heller cannot control this case where the local Town Justice undertook not merely to issue a warrant, but to participate with the police and prosecutors in its execution. LO-JI SALES, INC. v. NEW YORK 329 319 Opinion of the Court raises a different theory from the one advanced in its opposition to the petition for certiorari and on which it had relied in the state courts. The suggestion is that by virtue of its display of the items at issue to the general public in areas of its store open to them, petitioner had no legitimate expectation of privacy against governmental intrusion, see Rakas v. Illinois, 439 IL S. 128 (1978), and that accordingly no warrant was needed. But there is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to Fourth Amendment guarantees. See Lewis v. United States, 385 U. S. 206, 211 (1966). The Town Justice viewed the films, not as a customer, but without the payment a member of the public would be required to make. Similarly, in examining the books and in the manner of viewing the containers in which the films were packaged for sale, he was not seeing them as a customer would ordinarily see them. Any suggestion that petitioner through its clerk consented to the sweeping search also comes too late. After Lo-Ji’s agent was placed under arrest and was aware of the presumed authority of the search warrant, his conduct complying with official requests cannot, on this record, be considered free and voluntary. Any “consent” given in the face of “colorably lawful coercion” cannot validate the illegal acts shown here. Bumper n. North Carolina, 391 U. S. 543, 549-550 (1968). Our society is better able to tolerate the admittedly pornographic business of petitioner than a return to the general warrant era; violations of law must be dealt with within the framework of constitutional guarantees. The judgment of the Appellate Term of the Supreme Court of the State of New York for the Ninth and Tenth Judicial Districts is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. 330 OCTOBER TERM, 1978 Syllabus 442 U. S. REITER v. SONOTONE CORP, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 78-690. Argued April 25, 1979—Decided June 11, 1979 Petitioner brought a class action on behalf of herself and all persons in the United States who purchased hearing aids manufactured by respondents, alleging that, because of antitrust violations committed by respondents, she and the class she seeks to represent have been forced to pay illegally fixed higher prices for the hearing aids and related services they purchased from respondents’ retail dealers. Treble damages were sought under §4 of the Clayton Act, which provides that “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws” may bring suit and recover treble damages. Respondents moved to dismiss the damages claim on the ground that petitioner had not been injured in her “business or property” within the meaning of § 4. The District Court held that under § 4 a retail purchaser is injured in “property” if it can be shown that antitrust violations caused an increase in the price paid for the article purchased; however, it certified the question to the Court of Appeals. The Court of Appeals reversed, holding that retail purchasers of consumer goods and services who allege no injury of a commercial or business nature are not injured in their “business or property” within the meaning of § 4, and that the phrase “business or property” was intended to limit standing to those engaged in commercial ventures. Held: Consumers who pay a higher price for goods purchased for personal use as a result of antitrust violations sustain an injury in their “property” within the meaning of § 4. Pp. 337-345. (a) Statutory construction must begin with the language employed by Congress. The word “property” has a naturally broad and inclusive meaning comprehending, in common usage, anything of material value owned or possessed. Congress’ use of the disjunctive “or” in the phrase “business or property” indicates “business” was not intended to modify “property,” nor was “property” intended to modify “business.” Giving the word “property” the independent significance to which it is entitled in this context does not destroy the restrictive significance of the phrase “business or property” as a whole. Pp. 337-339. (b) Monetary injury, standing alone, may be injury in one’s “property” within the meaning of § 4. Chattanooga Foundry & Pipe Works REITER v. SONOTONE CORP. 331 330 Syllabus v. Atlanta, 203 U. S. 390. Thus, the fact that petitioner was deprived of only money is no reason to conclude that she did not sustain a “property” injury. Pp. 339-340. (c) Nor does petitioner’s status as a “consumer” who purchased goods at retail for personal use change the nature of the injury she suffered or the intrinsic meaning of “property” in § 4. Pp. 340-342. (d) The legislative history reflects that the treble-damages remedy was designed to protect consumers, and that no one questioned the right of consumers to sue under § 4. Thus, to the extent that § 4’s legislative history is relevant, it also supports the conclusion that a consumer deprived of money by reason of anticompetitive conduct is injured in “property” within the meaning of § 4. Pp. 342-344. (e) The fact that allowing class actions such as this may add a significant burden to the federal courts’ already overcrowded dockets is an important but not a controlling consideration, since Congress created the § 4 treble-damages remedy precisely for the purpose of encouraging private challenges to antitrust violations. P. 344. (f) Respondents’ arguments that the cost of defending consumer class actions will have a potentially ruinous effect on small businesses in particular and will ultimately be paid by consumers, are policy considerations more properly addressed to Congress than to this Court; in any event they cannot govern the reading of the plain language of § 4. Pp. 344-345. 579 F. 2d 1077, reversed and remanded. Burger, C. J., delivered the opinion of the Court, in which all other Members joined, except Brennan, J., who took no part in the decision of the case. Rehnquist, J., filed a concurring opinion, post, p. 345. John E. Thomas argued the cause and filed a brief for petitioner. Julian R. Wilheim and Elliot S. Kaplan argued the cause for respondents. With them on the brief were Fred L. Woodworth, Joseph C. Basta, and Deborah J. Palmer. Assistant Attorney General Shenefield argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General McCree, Deputy Solicitor General Easterbrook, Stephen M. Shapiro, Barry Grossman, and Bruce E. Fein. Warren Spannaus, Attorney Gen 332 OCTOBER TERM, 1978 Counsel 442 U.S. eral of Minnesota, argued the cause for the States of Alabama et al. as amici curiae urging reversal. With him on the brief were Richard B. Allyn, Solicitor General of Minnesota, Alan H. Maclin, Stephen P. Kilgruff, and Thomas Kenyon, Special Assistant Attorneys General; and John Ashcroft, Attorney General of Missouri, Walter 0. Theiss, Assistant Attorney General, and Roger Bern; joined by other officials for their respective States as follows: Charles A. Graddick, Attorney General, for Alabama; Avrum M. Gross, Attorney General, and Mark E. Ashburn, Assistant Attorney General, for Alaska; Robert K. Corbin, Attorney General, and Kenneth R. Reed for Arizona; Steve Clark, Attorney General, and Royce O. Griffin, Jr., Deputy Attorney General, for Arkansas; George Deukmejian, Attorney General, Warren J. Abbott, Assistant Attorney General, and Linda L. Tedeschi, Deputy Attorney General, for California; J. D. MacFarlane, Attorney General, B. Lawrence Theis, First Assistant Attorney General, and William E. Walters, Assistant Attorney General, for Colorado; Carl R. A jello, Attorney General, Gerard J. Dowling and Larry H. Evans, Assistant Attorneys General, for Connecticut; Richard S. Gebelein, Attorney General, and William E. Kirk III, Assistant Attorney General, for Delaware; Jim Smith, Attorney General, Charles R. Ranson, Special Assistant Attorney General, and Douglas C. Kearney, Assistant Attorney General, for Florida; Wayne Minami, Attorney General, and Thomas T. Wood, Deputy Attorney General, for Hawaii; David H. Leroy, Attorney General, and Mike Brassey, Deputy Attorney General, for Idaho; William J. Scott, Attorney General, for Illinois; Theodore L. Sendak, Attorney General, for Indiana; Thomas J. Miller, Attorney General, and Gary H. Swanson, Assistant Attorney General, for Iowa; Robert T. Stephan, Attorney General, and Wayne E. Hundley, Deputy Attorney General, for Kansas; Robert F. Stephens, Attorney General, and James M. Ringo, Assistant REITER v. SONOTONE CORP. 333 330 Counsel Attorney General, for Kentucky; William J. Guste, Jr., Attorney General, and John R. Flowers, Jr., Assistant Attorney General, for Louisiana; Richard S. Cohen, Attorney General, and Cheryl Harrington, Assistant Attorney General, for Maine; Stephen H. Sachs, Attorney General, and Charles O. Monk II, Assistant Attorney General, for Maryland; Francis X. Bellotti, Attorney General, Paula W. Gold, Assistant Attorney General, and Steven J. Greenfogel for Massachusetts; Frank J. Kelley, Attorney General, and Edwin M. Bladen, Assistant Attorney General, for Michigan; A. F. Summer, Attorney General, and Marshall G. Bennett, Assistant Attorney General, for Mississippi; Mike T. Greely, Attorney General, and Jerome J. Cate, Assistant Attorney General, for Montana; Paul L. Douglas, Attorney General, and Robert F. Bartie and Paul E. Hofmeister, Assistant Attorneys General, for Nebraska; Richard H. Bryan, Attorney General, for Nevada; Thomas D. Rath, Attorney General, for New Hampshire; John J. Degnan, Attorney General, and Alfred J. Luciani for New Jersey; Jeff Bingham, Attorney General, and James J. Wechsler, Assistant Attorney General, for New Mexico; Robert Abrams, Attorney General, and John M. Desiderio, Assistant Attorney General, for New York; Rufus L. Edmisten, Attorney General, Howard A. Kramer, Deputy Attorney General, and David S. Crump, Special Deputy Attorney General, for North Carolina; Allen I. Olson, Attorney General, and Dale V. Sandstrom and Terry L. Adkins, Assistant Attorneys General, for North Dakota; William J. Brown, Attorney General, and Eugene F. McShane and Richard M. Firestone, Assistant Attorneys General, for Ohio; Jan Eric Cartwright, Attorney General, and Manville J. Buford, Assistant Attorney General, for Oklahoma; James A. Redden, Attorney General, and James Kirkham Johns for Oregon; Edward G. Biester, Jr., Attorney General, and Norman J. Watkins and John L. Shearburn, Deputy Attorneys General, 334 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. for Pennsylvania; Dennis J. Roberts II, Attorney General, and Patrick J. Quinlan, Special Assistant Attorney General, for Rhode Island; Daniel R. McLeod, Attorney General, for South Carolina; Mark V. Meierhenry, Attorney General, and James E. McMahon, Assistant Attorney General, for South Dakota; William M. Leech, Jr., Attorney General, and William J. Haynes, Jr., Deputy Attorney General, for Tennessee; Mark White, Attorney General, for Texas; Robert B. Hansen, Attorney General, and Andrew W. Buffmire, Assistant Attorney General, for Utah; M. Jerome Diamond, Attorney General, and Jay I. Ashman, Assistant Attorney General, for Vermont; Marshall Coleman, Attorney General, and Joseph W. Kaestner, Assistant Attorney General, for Virginia; Slade Gorton, Attorney General, Thomas L. Boeder, Senior Assistant Attorney General, and Earle J. Hereford, Jr., Assistant Attorney General, for Washington; Chauncey H. Browning, Jr., Attorney General, and Charles G. Brown, Deputy Attorney General, for West Virginia; Bronson C. La Follette, Attorney General, and Michael L. Zaleski, Assistant Attorney General, for Wisconsin; and John D. Troughton, Attorney General, Peter J. Mulvaney, Deputy Attorney General, and James W. Gusea, Assistant Attorney General, for Wyoming.* Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to decide whether consumers who pay a higher price for goods purchased for personal use as a result of antitrust violations sustain an injury in their “business or property” within the meaning of § 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 15. *David Berger, H. Laddie Montague, Jr., Merrill G. Davidoff, Stanley J. Friedman, Frederick P. Furth, Thomas R. Fahrner, Aaron M. Fine, and Josef D. Cooper filed a brief for the plaintiffs in Kennedy Smith v. Toyota Motor Sales U. S. A. et al. as amici curiae urging reversal. REITER v. SONOTONE CORP. 335 330 Opinion of the Court I Petitioner brought a class action on behalf of herself and all persons in the United States who purchased hearing aids manufactured by five corporations, respondents here. Her complaint alleges that respondents have committed a variety of antitrust violations, including vertical and horizontal price fixing.1 Because of these violations, the complaint alleges, petitioner and the class of persons she seeks to represent have been forced to pay illegally fixed higher prices for the hearing aids and related services they purchased from respondents’ retail dealers. Treble damages and injunctive relief are sought under § § 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U. S. C. §§ 15 and 26. Respondents moved for dismissal of the complaint or summary judgment in the District Court. Among other things, respondents argued that Reiter, as a retail purchaser of hearing aids for personal use, lacked standing to sue for treble damages under § 4 of the Clayton Act because she had not been injured in her “business or property” within the meaning of the Act. The District Court held that under § 4 a retail purchaser is injured in “property” if the purchaser can show that antitrust violations caused an increase in the price paid for the article purchased. The District Court relied on Chattanooga Foundry de Pipe Works v. Atlanta, 203 U. S. 390, 396 (1906), and the legislative history of the Clayton Act set forth in Brunswick Corp. n. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 1 Specifically, Reiter alleges that respondents violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1 and 2, and § 3 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 14. She claims respondents restricted the territories, customers, and brands of hearing aids offered by their retail dealers, used the customer lists of their retail dealers for their own purposes, prohibited unauthorized retailers from dealing in or repairing their hearing aids, and conspired among themselves and with their retail dealers to fix the retail prices of the hearing aids. 336 OCTOBER TERM, 1978 Opinion of the Court 442U.S. 486 n. 10 (1977), indicating that Congress intended to give a § 4 remedy to consumers. 435 F. Supp. 933, 935-938 (Minn. 1977). The District Court determined, however, that the respondents had raised a “controlling question of law as to which there is substantial ground for difference of opinion,” id., at 938, and accordingly certified the question for interlocutory review under 28 U. S. C. § 1292 (b). It then stayed further proceedings in the case and declined to express any opinion on the merits of the other issues raised by respondents’ motions or on the certifiability of the class. The Court of Appeals reversed, holding that retail purchasers of consumer goods and services who allege no injury of a commercial or business nature are not injured in their “business or property” within the meaning of § 4. 579 F. 2d 1077 (CA8 1978). Noting the absence of any holdings on this precise issue by this Court or other courts of appeals, the court reasoned that the phrase “business or property” was intended to limit standing to those engaged in commercial ventures. It relied on the legislative history and this Court’s statement in Hawaii v. Standard Oil Co., 405 U. S. 251, 264 (1972), that “business or property” referred to “commercial interests or enterprises.” A contrary holding, the Court of Appeals observed, would add a substantial volume of litigation to the already strained dockets of the federal courts and could be used to exact unfair settlements from retail businesses. Small and medium-sized retailers would be especially hard hit by “gigantic consumer class actions,” and granting standing to retail consumers might actually have an anticompetitive impact as a consequence. Accordingly, the Court of Appeals thought “it sensible as a matter of policy and compelled as a matter of law that consumers alleging no injury of a commercial or competitive nature are not injured in their property under section 4 of the Clayton Act.” 579 F. 2d, at 1087. REITER v. SONOTONE CORP. 337 330 Opinion of the Court We granted certiorari, 439 U. S. 1065 (1979).2 We reverse.3 II As is true in every case involving the construction of a statute, our starting point must be the language employed by Congress. Section 4 of the Clayton Act, 38 Stat. 731, provides: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States . . . without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 15 U. S. C. § 15 (emphasis added). On its face, § 4 contains little in the way of restrictive language. In Pfizer Inc. v. Government of India, 434 U. S. 308 (1978), we remarked: “ ‘The Act is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden prac 2 Differing views on this issue have been expressed by various courts. See, e. g., Reiter v. Sonotone Corp., 579 F. 2d 1077 (CA8 1978) (case below); Bravman n. Bassett Furniture Industries, 552 F. 2d 90, 98-99, and n. 23 (CA3), cert, denied, 434 U. S. 823 (1977); Cleary v. Chalk, 159 U. S. App. D. C. 415, 419 n. 17, 488 F. 2d 1315, 1319 n. 17 (1973), cert, denied, 416 U. S. 938 (1974); Theophil v. Sheller-Globe Corp., 446 F. Supp. 131 (EDNY 1978); Gutierrez n. E. & J. Gallo Winery Co., 425 F. Supp. 1221 (ND Cal. 1977), appeal docketed, No. 77-1725 (CA9). 3 The Court of Appeals expressly noted that Reiter’s claim for injunctive relief under § 16 of the Clayton Act was not before it on interlocutory appeal. 579 F. 2d, at 1087 n. 19. The court therefore expressed no view as to Reiter’s standing to raise this claim. It also expressly refused to decide whether Reiter’s claim for treble damages under § 4 was barred by the direct-purchaser rule of Illinois Brick Co. v. Illinois, 431 U. S. 720 (1977). 579 F. 2d, at 1079 n. 3. Accordingly, these issues are not before us. 338 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. tices by whomever they may be perpetrated.’ Mandeville Island Farms, Inc. n. American Crystal Sugar Co., 334 U. S. 219, 236; of. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 138-139. And the legislative history of the Sherman Act demonstrates that Congress used the phrase ‘any person’ intending it to have its naturally broad and inclusive meaning. There was no mention in the floor debates of any more restrictive definition.” Id., at 312. Similarly here, the word “property” has a naturally broad and inclusive meaning. In its dictionary definitions and in common usage “property” comprehends anything of material value owned or possessed. See, e. g., Webster’s Third New International Dictionary 1818 (1961). Money, of course, is a form of property. Respondents protest that, if the reference to “property” in § 4 means “money,” the term “business” then becomes superfluous, for every injury in one’s business necessarily involves a pecuniary injury. They argue that if Congress wished to permit one who lost only money to bring suit under § 4, it would not have used the restrictive phrase “business or property”; rather, it would have employed more generic language akin to that of § 16, for example, which provides for injunctive relief against any “threatened loss or damage.” 15 U. S. C. § 26. Congress plainly intended to exclude some category of injury in choosing the phrase “business or property” for § 4. Only a “commercial interest” gloss, they argue, both gives the phrase the restrictive significance intended for it and at the same time gives independent significance to the word “business” and the word “property.” The argument of respondents is straightforward: the phrase “business or property” means “business activity or property related to one’s business.” Brief for Respondents 11 n. 7. That strained construction would have us ignore the disjunctive “or” and rob the term “property” of its independent REITER v. SONOTONE CORP. 339 330 Opinion of the Court and ordinary significance; moreover, it would convert the noun “business” into an adjective. In construing a statute we are obliged to give effect, if possible, to every word Congress used. United States v. Menasche, 348 IT. S. 528, 538-539 (1955). Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise; here it does not. See FCC v. Pacifica Foundation, 438 U. S. 726, 739-740 (1978). Congress’ use of the word “or” makes plain that “business” was not intended to modify “property,” nor was “property” intended to modify “business.” When a commercial enterprise suffers a loss of money it suffers an injury in both its “business” and its “property.” But neither term is rendered redundant by recognizing that a consumer not engaged in a “business” enterprise, but rather acquiring goods or services for personal use, is injured in “property” when the price of those goods or services is artificially inflated by reason of the anticompetitive conduct complained of. The phrase “business or property” also retains restrictive significance. It would, for example, exclude personal injuries suffered. E. g., Hamman v. United States, 267 F. Supp. 420, 432 (Mont. 1967). Congress must have intended to exclude some class of injuries by the phrase “business or property.” But it taxes the ordinary meaning of common terms to argue, as respondents do, that a consumer’s monetary injury arising directly out of a retail purchase is not comprehended by the natural and usual meaning of the phrase “business or property.” We simply give the word “property” the independent significance to which it is entitled in this context. A consumer whose money has been diminished by reason of an antitrust violation has been injured “in his . . . property” within the meaning of § 4. Indeed, this Court indicated as much in Chattanooga Foundry de Pipe Works v. Atlanta, 203 U. S. 390 (1960). There the city alleged that the anticompetitive conduct of the de 340 OCTOBER TERM, 1978 Opinion of the Court 442U.S. fendants had caused the city to pay more for water pipes purchased for use in the city’s water system. The defendants answered that the pecuniary injury resulting from the alleged overcharges did not injure the city in its “business or property” within the meaning of § 4. This Court, without relying on the fact that the city was engaged in a business enterprise, stated: “The city was . . . injured in its property, at least, if not in its business of furnishing water, by being led to pay more than the worth of the pipe. A person whose property is diminished by a payment of money wrongfully induced is injured in his property.” 203 U. S., at 396. The holding of Chattanooga Foundry could well have been grounded on the undisputed fact that the city was engaged in the commercial enterprise of supplying water for a charge and, therefore, engaged in a business. It was not uncommon for both municipalities and private companies to own and operate competing waterworks at the turn of the century. In operating a municipal public utility, the city was in a real sense engaged in the “business of furnishing water” when it purchased the pipe to carry water from the city’s reservoirs to its customers. Ibid. Yet, the Court’s holding in Chattanooga Foundry was deliberately grounded on the premise that the city had been injured in its “property”—independent of any injury it had sustained in its “business of furnishing water”—because the defendants’ antitrust violation caused it to pay a higher price for the pipe than it otherwise would have paid. Ibid. Chattanooga Foundry therefore establishes that monetary injury, standing alone, may be injury in one’s “property” within the meaning of § 4. Thus, the fact that petitioner Reiter was deprived of only money, albeit a modest amount, is no reason to conclude that she did not sustain a “property” injury. Nor does her status as a “consumer” change the nature of REITER v. SONOTONE CORP. 341 330 . Opinion of the Court the injury she suffered or the intrinsic meaning of “property” in § 4. That consumers of retail goods and services have standing to sue under § 4 is implicit in our decision in Goldfarb n. Virginia State Bar, 421 U. S. 773, 780, 782 (1975). There we held that a bar association was subject to a treble-damages suit brought under § 4 by persons who sought legal services in connection with the purchase of a residence. Furthermore, we have often referred to “consumers” as parties entitled to seek damages under § 4 without intimating that consumers of goods and services purchased for personal rather than commercial use were in any way foreclosed by the statutory language from asserting an injury in their “property.” E. g., Pfizer Inc. v. Government of India, 434 U. S., at 313— 315; Brunswick Corp. n. Pueblo Bowl-O-Mat, Inc., 429 U. S., at 486 n. 10; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481, 494 (1968); Mandeville Island Farms v. American Crystal Sugar Co., 334 U. S. 219, 236 (1948). Hawaii v. Standard Oil Co., 405 U. S. 251 (1972), is not to the contrary. There we held that injury to a state’s total economy, for which the state sought redress in its parens patriae capacity, was not cognizable under § 4. It is true we noted that the words “business or property” refer to “commercial interests or enterprises,” and reasoned that Hawaii could not recover on its claim for damage done to its “general economy” because such injury did not harm Hawaii’s “commercial interests.” 405 U. S., at 264. However, the language of an opinion is not always to be parsed as though we were dealing with language of a statute. Use of the phrase “commercial interests or enterprises,” read in context, in no sense suggests that only injuries to a business entity are within the ambit of § 4. Respondents ignore the Court’s careful use of the disjunctive and the naturally broad meaning of the term “interests” in Hawaii v. Standard Oil Co., supra. The phrase “commercial interests” was used there as a generic reference to the interests of the 342 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. State of Hawaii as a party to a commercial transaction. This is apparent from Hawaii’s explicit reaffirmance of the rule of Chattanooga Foundry and statement that, where injury to a state “occurs in its capacity as a consumer in the marketplace” through a “payment of money wrongfully induced,” treble damages are recoverable by a state under the Clayton Act. Hawaii v. Standard Oil Co., supra, at 263 n. 14. A central premise of our holding in Hawaii was concern over duplicative recoveries. We noted that a “large and ultimately indeterminable part of the injury to the ‘general economy’ ” for which the State sued was “no more than a reflection of injuries to the ‘business or property’ of consumers” for which, on a proper showing, they could recover in their own right. 405 U. S., at 263-264. Consumers in the United States purchase at retail more than $1.2 trillion in goods and services annually. 1978 Economic Report of the President 257 (Table B-l). It is in the sound commercial interests of the retail purchasers of goods and services to obtain the lowest price possible within the framework of our competitive private enterprise system. The essence of the antitrust laws is to ensure fair price competition in an open market. Here, where petitioner alleges a wrongful deprivation of her money because the price of the hearing aid she bought was artificially inflated by reason of respondents’ anticompetitive conduct, she has alleged an injury in her “property” under § 4. Nothing in the legislative history of § 4 conflicts with our holding today. Many courts and commentators have observed that the respective legislative histories of § 4 of the Clayton Act and § 7 of the Sherman Act, its predecessor, shed no light on Congress’ original understanding of the terms “business or property.”4 Nowhere in the legislative record 4 See, e. g., Hawaii v. Standard Oil Co., 405 U. S. 251, 261 (1972) ; Weinberg n. Federated Department Stores, Inc., 426 F. Supp. 880, 882-883 (ND Cal. 1977), appeal docketed, No. 77-1547 (CA9); M. Forkosch, REITER v. SONOTONE CORP. 343 330 Opinion of the Court is specific reference made to the intended scope of those terms. Respondents engage in speculation in arguing that the substitution of the terms “business or property” for the broader language originally proposed by Senator Sherman5 was clearly intended to exclude pecuniary injuries suffered by those who purchase goods and services at retail for personal use. None of the subsequent floor debates reflect any such intent. On the contrary, they suggest that Congress designed the Sherman Act as a “consumer welfare prescription.” R. Bork, The Antitrust Paradox 66 (1978). Certainly the leading proponents of the legislation perceived the treble-damages remedy of what is now § 4 as a means of protecting consumers from overcharges resulting from price fixing. E. g., 21 Cong. Rec. 2457, 2460, 2558 (1890). Because Congress in 1890 rejected a proposal to allow a group of consumers to bring a collective action as a class, some legislators questioned whether individual consumers would be willing to bring actions for relatively small amounts. See, e. g., id., at 1767-1768, 2569, 2612, 3147-3148, 3150. At no time, however, was the right of a consumer to bring an action for damages questioned.6 In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra, after examining the legislative history of § 4, we described the Sherman Act as “conceived of primarily as a remedy for ‘[t]he people of the United States as individuals,’ especially consumers,” and the treble-damages provision of the Clayton Act as “conceived primarily as ‘open[ing] the door of justice Antitrust and the Consumer 2-3 (1956); Comment, Closing the Door on Consumer Antitrust Standing, 54 N. Y. U. L. Rev. 237, 242-243, 249-252 (1979). See also 1 P. Areeda & D. Turner, Antitrust Law J106, pp. 14r-16 (1978). 5 As originally introduced, the bill that ultimately became the Sherman Act authorized “any person or corporation injured or damnified by [an unlawful] arrangement, contract, agreement, trust, or combination” to sue for damages thereby sustained. S. 1, 51st Cong., 1st Sess., §2 (1889). 6 Of course, the treble-damages remedy of § 4 took on new practical significance for consumers with the advent of Fed. Rule Civ. Proc. 23. 344 OCTOBER TERM, 1978 Opinion of the Court 442U.S. to every man . . . and giv[ing] the injured party ample damages for the wrong suffered.’ ” 429 U. S., at 486 n. 10. Thus, to the extent that the legislative history is relevant, it supports our holding that a consumer deprived of money by reason of allegedly anticompetitive conduct is injured in “property” within the meaning of § 4.7 Respondents also argue that allowing class actions to be brought by retail consumers like the petitioner here will add a significant burden to the already crowded dockets of the federal courts. That may well be true but cannot be a controlling consideration here. We must take the statute as we find it. Congress created the treble-damages remedy of § 4 precisely for the purpose of encouraging private challenges to antitrust violations. These private suits provide a significant supplement to the limited resources available to the Department of Justice for enforcing the antitrust laws and deterring violations. Indeed, nearly 20 times as many private antitrust actions are currently pending in the federal courts as actions filed by the Department of Justice. Administrative Office of the United States Courts Ann. Rep. 101, Table 28 (1978). To be sure, these private suits impose a heavy litigation burden on the federal courts; it is the clear responsibility of Congress to provide the judicial resources necessary to execute its mandates. Finally, respondents argue that the cost of defending consumer class actions will have a potentially ruinous effect on small businesses in particular and will ultimately be paid by 7 Although in no sense a controlling consideration, we note that our holding is consistent with the assumption on which Congress enacted the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 90 Stat. 1394, 15 U. S. C. § 15c et seq. The 'text and legislative history of this statute make clear that in 1976 Congress believed that consumers have a cause of action under § 4, which the statute authorizes the states to assert in a parens patriae capacity. See, e. g., 15 U. S. C. §§ 15c (a)(1), 15c (a)(1) (B)(ii), 15c (b)(2); H. R. Rep. No. 94-499, pp. 6, 9 (1975). See also Illinois Brick Co. v. Illinois, 431 U. S., at 734 n. 14. REITER v. SONOTONE CORP. 345 330 Rehnquist, J., concurring consumers in any event. These are not unimportant considerations, but they are policy considerations more properly addressed to Congress than to this Court. However accurate respondents’ arguments may prove to be—and they are not without substance—they cannot govern our reading of the plain language in § 4. District courts must be especially alert to identify frivolous claims brought to extort nuisance settlements; they have broad power and discretion vested in them by Fed. Rule Civ. Proc. 23 with respect to matters involving the certification and management of potentially cumbersome or frivolous class actions. See generally Durham & Dibble, Certification: A Practical Device for Early Screening of Spurious Antitrust Litigation, 1978 B. Y. U. L. Rev. 299. Recognition of the plain meaning of the statutory language “business or property” need not result in administrative chaos, class-action harassment, or “windfall” settlements if the district courts exercise sound discretion and use the tools available. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. Reversed and remanded. Mr. Justice Brennan took no part in the decision of this case. Mr. Justice Rehnquist, concurring. I join the Court’s opinion and write separately only to point out that the concern expressed by the Court of Appeals that an interpretation of “business or property” in the manner in which the Court interprets it today would “add a substantial volume of litigation to the already strained dockets of the federal courts and could be used to exact unfair settlements from retail businesses,” ante, at 336, is by no means an unfounded one. And pronouncements from this Court exhorting district courts to be “especially alert to identify frivolous 346 OCTOBER TERM, 1979 Rehnquist, J., concurring 442U.S. claims brought to extort nuisance settlements” will not be a complete solution for those courts which are actually on the firing line in this type of litigation. Ante, at 345. But I fully agree that we must take the statute as Congress wrote it, and I also fully agree with the Court’s construction of the phrase “business or property.” I think that the Court’s observation, ante, at 343 n. 6, that “the treble-damages remedy of § 4 took on new practical significance for consumers with the advent of Fed. Rule Civ. Proc. 23” is a miracle of understatement; and in the absence of any jurisdictional limit, there is considerable doubt in my mind whether this type of action is indeed ultimately of primary benefit to consumers themselves, who may recover virtually no monetary damages, as opposed to the attorneys for the class, who stand to obtain handsome rewards for their services. Be that as it may, the problem, if there is one, is for Congress and not for the courts. ANDRUS v. SIERRA CLUB 347 Syllabus ANDRUS, SECRETARY OF THE INTERIOR, et al. v. SIERRA CLUB et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 78-625. Argued April 18, 1979—Decided June 11, 1979 Section 102 (2) (C) of the National Environmental Policy Act of 1969 (NEPA) requires environmental impact statements (EIS’s) to be included in recommendations or reports of federal agencies on “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” Contending that § 102 (2) (C) requires federal agencies to prepare EIS’s to accompany appropriation requests, respondents, three organizations with interests in the preservation of the environment, brought suit in Federal District Court against petitioners, the Secretary of the Interior and the Director of the Office of Management and Budget (0MB). Respondents alleged that proposed curtailments in the budget of the National Wildlife Refuge Sys-1 tern would significantly affect the quality of the human environment, and hence should have been accompanied by an EIS prepared both by the Department of the Interior’s Fish and Wildlife Service, which admin-isters the Refuge System, and by 0MB. The District Court granted summary judgment for respondents and ordered petitioners to prepare EIS’s on annual proposals for financing the Refuge System. The District Court’s holding was modified by the Court of Appeals, which concluded that while § 102 (2) (C) has no application to a routine appropriation request for continuance of an ongoing program, an EIS is required when an appropriation request accompanies a proposal for taking new action that significantly changes the status quo, or when the request ushers in a considered programmatic course following a programmatic review.” Held: Section 102 (2) (C) does not require federal agencies to prepare EIS’s to accompany appropriation requests. Pp. 355-365. (a) Appropriation requests, even those which are the result of an agency s painstaking review” of an ongoing program, are not “proposals for legislation” within the meaning of §102(2)(C). NEPA makes no distinction between “proposals for legislation” that are the result of “painstaking review,” and those that are merely “routine”; and the interpretation of NEPA by the Council on Environmental Quality (CEQ) under its current mandatory regulations which specify that “legislation” does not include appropriation requests, is entitled to 348 OCTOBER TERM, 1978 Opinion of the Court 442U.S. substantial deference even though the regulations reverse CEQ’s interpretation under earlier advisory guidelines that were in effect at the time of the Court of Appeals’ decision. Moreover, CEQ’s current interpretation is consistent with the traditional distinction which Congress has drawn between “legislation” and “appropriation,” the rules of both Houses prohibiting “legislation” from being added to an appropriation bill. Pp. 356-361. (b) Nor do appropriation requests constitute “proposals for . . . major Federal actions” for purposes of §102(2)(C). Appropriation requests do not “propose” federal actions at all, but instead fund actions already proposed. Thus, § 102 (2) (C) is best interpreted as applying to those recommendations or reports that actually propose programmatic actions, rather than to those which merely suggest how such actions may be funded. Even if changes in agency programs occur because of budgetary decisions, an EIS at the appropriation stage would only be repetitive of the EIS that must accompany any proposed changes in the agency’s programs that would significantly affect the quality of the human environment. Pp. 361-364. 189 U. S. App. D. C. 117, 581 F. 2d 895, reversed. Brennan, J., delivered the opinion for a unanimous Court. Assistant Attorney General Harmon argued the cause for petitioners. On the briefs were Acting Solicitor General Wallace, Acting Assistant Attorney General Sagalkin, Deputy Solicitor General Barnett, Peter R. Steenland, Jr., Raymond N. Zagone, and Dirk D. Snel. James Hillson Cohen argued the cause and filed briefs for respondents.* Mr. Justice Brennan delivered the opinion of the Court. The question for decision is whether § 102 (2) (C) of the National Environmental Policy Act of 1969 (NEPA), 83 Stat. ^Ronald A. Zumbrun, Robert K. Best, and Raymond M. Momboisse filed a brief for the Pacific Legal Foundation as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed by Roberts B. Owen and Charles H. Montang e for the National Wildlife Federation et al.; and by Mitchell Rogovin and David R. Boyd for the Wilderness Society. ANDRUS v. SIERRA CLUB 349 347 Opinion of the Court 853, 42 U. S. C. §4332 (2)(C), requires federal agencies to prepare environmental impact statements (EIS’s) to accompany appropriation requests. We hold that it does not. I NEPA sets forth its purposes in bold strokes: “The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation . . . ” 83 Stat. 852, 42 U. S. C. § 4321.1 Congress recognized, however, that these desired goals could 1 Section 101 (b) articulates these purposes with even greater particularity: “In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may— “(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; “(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings; “(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; “(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice; “(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and “(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.” 83 Stat. 852, 42 U. S. C. §4331 (b). 350 OCTOBER TERM, 1978 Opinion of the Court 442U.S. be incorporated into the everyday functioning of the Federal Government only with great difficulty. See S. Rep. No. 91-296, p. 19 (1969). NEPA therefore contains “action-forcing procedures which will help to insure that the policies [of the Act] are implemented.” Ibid. See Kleppe v. Sierra Club, 427 U. S. 390, 409 (1976). Section 102 (2)(C) of the Act sets out one of these procedures: “The Congress authorizes and directs that, to the fullest extent possible . . . (2) all agencies of the Federal Government shall— “(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— “(i) the environmental impact of the proposed action, “(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, “(iii) alternatives to the proposed action, “(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and “(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” 83 Stat. 853, 42 U. S. C. § 4332 (2)(C) (emphasis supplied). The thrust of § 102 (2) (C) is thus that environmental concerns be integrated into the very process of agency decisionmaking. The “detailed statement” it requires is the outward sign that environmental values and consequences have been considered during the planning stage of agency actions.2 If 2 Of course, an EIS need not be promulgated unless an agency’s planning ripens into a “recommendation or report on proposals for legislation [or] other major Federal actions significantly affecting the quality of the human ANDRUS v. SIERRA CLUB 351 347 Opinion of the Court environmental concerns are not interwoven into the fabric of agency planning, the “action-forcing” characteristics of § 102 (2)(C) would be lost. “In the past, environmental factors have frequently been ignored and omitted from consideration in the early stages of planning .... As a result, unless the results of planning are radically revised at the policy level— and this often means the Congress—environmental enhancement opportunities may be foregone and unnecessary degradation incurred.” S. Rep. No. 91-296, supra, at 20. For this reason the regulations of the Council on Environmental Quality (CEQ) require federal agencies to “integrate the NEP A process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values . . . .” 43 Fed. Reg. 55992 (1978) (to be codified at 40 CFR § 1501.2).3 environment.” 42 U. S. C. § 4332 (2) (C). See Kleppe n. Sierra Club, 427 U. S. 390 (1976). Moreover, although NEPA requires compliance “to the fullest extent possible,” we have held that the duty to prepare an EIS must yield before “a clear and unavoidable conflict in statutory authority.” Flint Ridge Development Co. n. Scenic Rivers Assn., 426 U. S. 776, 788 (1976). 3 CEQ regulations state that “[t]he primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in [NEPA] are infused into the ongoing programs and actions of the Federal Government... An environmental impact statement is more than a disclosure document. It shall be used by Federal officials in conjunction with other relevant material to plan actions and make decisions.” 43 Fed. Reg. 55994 (1978) (to be codified at 40 CFR § 1502.1). In Exec. Order No. 11991, President Carter required the CEQ to issue regulations that included procedures “for the early preparation of environmental impact statements.” 3 CFR 124 (1978). As a consequence, CEQ regulations provide: “An agency shall commence preparation of an environmental impact statement as close as possible to the time the agency is developing or is presented with a proposal ... so that preparation can be completed in time for the final statement to be included in any recommendation or report on the proposal. The statement shall be prepared early enough so that it 352 OCTOBER TERM, 1978 Opinion of the Court 442U.S. In 1974, respondents, three organizations with interests in the preservation of the environment,4 brought suit in the Federal District Court for the District of Columbia alleging that § 102 (2) (C) requires federal agencies to prepare EIS’s5 to accompany their appropriation requests. Respondents named as defendants the Secretary of the Interior and the Director of the Office of Mangement and Budget (0MB), and alleged that proposed curtailments in the budget of the National Wildlife Refuge System (NWRS), 80 Stat. 927, 16 U. S. C. § 668dd, would “cut back significantly the operations, maintenance, and staffing of units within the System.” 6 Complaint IT 17. The System is administered by the Fish and Wildlife Service of the Department of the Interior, and consists of more than 350 refuges encompassing more than 30 million acres in 49 States. The primary purpose of the NWRS is to provide a national program “for the restoration, preservation, development and management of wildlife and wildlands habitat; for the protection and preservation of endangered or threatened species and their habitat; and for the management of wildlife and wildlands to obtain the maximum benefits from these resources.” 50 CFR § 25.11 (b) can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made. ... For instance: “(a) For projects directly undertaken by Federal agencies the environmental impact statement shall be prepared at the feasibility analysis (go-no go) stage and may be supplemented at a later stage if necessary. . . .” 43 Fed. Reg. 55995 (1978) (to be codified at 40 CFR § 1502.5). 4 Respondents are the Sierra Club, the National Parks and Conservation Association, and the Natural Resources Defense Council, Inc. 5 CEQ regulations define an “environmental impact statement” to mean “a detailed written statement as required by Sec. 102 (2)(C) of [NEPA].” 43 Fed. Reg. 56004 (1978) (to be codified at 40 CFR § 1508.11). 6 See United States Fish and Wildlife Service, Final Environmental Statement: Operation of the National Wildlife Refuge System 1-8 to 1-9 (Nov. 1976). ANDRUS v. SIERRA CLUB 353 347 Opinion of the Court (1978) .7 Respondents alleged that the proposed budget curtailments would significantly affect the quality of the human environment,8 and hence should have been accompanied by an EIS prepared both by the Fish and Wildlife Service and by OMB.9 The District Court agreed with respondents’ contentions. Relying on provisions of the then applicable CEQ guidelines,10 7 The System is administered according to the provisions of several statutes. The most significant of these are the Fish and Wildlife Coordination Act of 1934, 48 Stat. 401, as amended, 72 Stat. 563, 16 U. S. C. § 661 et seq.; the Fish and Wildlife Act of 1956, 70 Stat. 1119, 16 U. S. C. § 742a et seq.; the Migratory Bird Conservation Act, ch. 257, 45 Stat. 1222, as amended, 16 U. S. C. §715 et seq.; and the Endangered Species Act of 1973, 87 Stat. 884, 16 U. S. C. § 1531 et seq. 8 Respondents brought suit on behalf of themselves, claiming that they had organizational interests in monitoring and publicizing the management of the NWRS, and on behalf of their members, alleging that the latter used the NWRS for recreational and other purposes and would be affected by the proposed budget curtailments. 9 Respondents alleged that OMB had “significantly reduced the Interior Department’s request for appropriations for the operation of the National Wildlife Refuge System during fiscal year 1974 and during other years without preparing or considering the environmental-impact statement required by NEPA.” Complaint 125. Respondents also contended that § 102 (2) (B) of NEPA required OMB to develop procedures to assure consideration of environmental factors in the budget process. Section 102 (2) (B) requires all federal agencies to “identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations.” 83 Stat. 853, 42 U. S. C. §4332 (2)(B). 10 At that time, CEQ was authorized by Exec. Order No. 11514, § 3 (h), to issue nonbinding “guidelines to Federal agencies for the preparation of detailed statements on proposals for legislation and other Federal actions affecting the environment.” 3 CFR 904 (1966-1970 Comp.). These guidelines stated that the “major Federal actions” to which § 102 (2) (C) applied included “[r] ecommendations or favorable reports relating to leg- 354 OCTOBER TERM, 1978 Opinion of the Court 442U.S. and on the Department of the Interior’s Manual,11 the District Court held that “appropriation requests are ‘proposals for legislation’ within the meaning of NEPA,” and also that “annual proposals for financing the Refuge System are major Federal actions which clearly have a significant effect on the environment.” Sierra Club v. Morton, 395 F. Supp. 1187, 1188, 1189 (1975). The District Court granted respondents’ motion for summary judgment, and provided declaratory and injunctive relief. It stated that the Department of the Interior and OMB were required “to prepare, consider, and disseminate environmental impact statements on annual proposals for financing the National Wildlife Refuge System.” 12 App. to Pet. for Cert. 61a. The Court of Appeals for the District of Columbia Circuit modified the holding of the District Court. The Court of Appeals was apprehensive because “[a] rule requiring preparation of an EIS on the annual budget request for virtually every ongoing program would trivialize NEPA.” 189 U. S. App. D. C. 117, 125, 581 F. 2d 895, 903 (1978). Therefore, the Court of Appeals concluded that § 102 (2)(C) required islation including requests for appropriations.” 40 CFR § 1500.5 (a) (1) (1974). See § 1500.3. 11 At that time the Department of the Interior’s Manual, following CEQ’s proposed guidelines, provided: “The following criteria are to be used in deciding whether a proposed action requires the preparation of an environmental statement: "A. Types of Federal actions to be considered include, but are not limited to: "(1) Recommendations or favorable reports to the Congress relating to legislation, including appropriations.” Department of the Interior Manual, §516.5, 36 Fed. Reg. 19344 (1971). 12 Without additional discussion, the District Court also stated that the Director of OMB was required “to develop formal methods and procedures which will, with respect to [OMB]’s own administrative actions and proposals, identify those agency actions requiring environmental statements to be prepared, considered, and disseminated.” App. to Pet. for Cert. 62a. See n. 9, supra. ANDRUS v. SIERRA CLUB 355 347 Opinion of the Court the preparation of an EIS only when an appropriation request accompanies “a ‘proposal’ for taking new action which significantly changes the status quo,” or when “the request for budget approval and appropriations is one that ushers in a considered programmatic course following a programmatic review.” 189 U. S. App. D. C., at 125, 581 F. 2d, at 903. Section 102 (2) (C) would thus have no application to “a routine request for budget approval and appropriations for continuance and management of an ongoing program.” 189 U. S. App. D. C., at 125, 581 F. 2d, at 903. The Court of Appeals held, however, that there was no need for injunctive relief because the Fish and Wildlife Service had completed during the pendency of the appeal a “Programmatic EIS” that adequately evaluated the environmental consequences for the NWRS of various budgetary alternatives.13 Id., at 126, 581 F. 2d, at 904. See United States Fish and Wildlife Service, Final Environmental Statement: Operation of the National Wildlife Refuge System (Nov. 1976) ?4 We granted certiorari, 439 U. S. 1065 (1979), and we now reverse. II NEPA requires EIS’s to be included in recommendations or reports on both “proposals for legislation . . . significantly affecting the quality of the human environment” and “proposals for . . . major Federal actions significantly affecting the quality of the human environment.” 42 U. S. C. § 4332 (2)(C). See CEQ regulations, 43 Fed. Reg. 56001 (1978) (to be codified at 40 CFR § 1506.8 (a)). Petitioners argue, however, that the requirements of § 102 (2) (C) have no application to the budget process. The contrary holding of the 13 Respondents do not now challenge this holding. 14 The Court of Appeals also affirmed what it took to be the District Court’s declaratory relief requiring 0MB 'To adopt procedures and appropriate regulations to comply with the obligations NEPA imposes on the budget process . . . .” 189 U. S. App. D. C., at 127, 581 F. 2d, at 905. See n. 12, supra. 356 OCTOBER TERM, 1978 Opinion of the Court 442U.S. Court of Appeals rests on two alternative interpretations of § 102 (2)(C). The first is that appropriation requests which are the result of “an agency’s painstaking review of an ongoing program,” 189 U. S. App. D. C., at 125, 581 F. 2d, at 903, are “proposals for legislation” within the meaning of § 102 (2) (C). The second is that appropriation requests which are the reflection of “new” agency initiatives constituting “major Federal actions” under NEPA, are themselves “proposals for . . . major Federal actions” for purposes of § 102 (2)(C). We hold that neither interpretation is correct. A We note initially that NEPA makes no distinction between “proposals for legislation” that are the result of “painstaking review,” and those that are merely “routine.” When Congress has thus spoken “in the plainest of words,” TVA v. Hill, 437 U. S. 153, 194 (1978), we will ordinarily decline to fracture the clear language of a statute, even for the purpose of fashioning from the resulting fragments a rule that “accords with 'common sense and the public weal.’ ” Id., at 195. Therefore, either all appropriation requests constitute “proposals for legislation,” or none does. There is no direct evidence in the legislative history of NEPA that enlightens whether Congress intended the phrase “proposals for legislation” to include requests for appropriations. At the time of the Court of Appeals’ decision, however, CEQ guidelines provided that § 102 (2) (C) applied to “[r] ecommendations or favorable reports relating to legislation including requests for appropriations.” 40 CFR § 1500.5 (a)(1) (1977).15 At that time CEQ’s guidelines were advi 15 CEQ had taken this position from the first draft of its guidelines. CEQ was required by President Nixon to issue guidelines on March 5, 1970. See Exec. Order No. 11514, 3 CFR 902 (1966-1967 Comp.). On April 30, 1970, CEQ promulgated interim guidelines which provided that “major Federal actions” included “[r]ecommendations or reports relating to legislation and appropriations.” Council on Environmental ANDRUS v. SIERRA CLUB 357 347 Opinion of the Court sory in nature, and were for the purpose of assisting federal agencies in complying with NEPA. § 1500.1 (a). In 1977, however, President Carter, in order to create a single set of uniform, mandatory regulations, ordered CEQ, “after consultation with affected agencies,” to “[i]ssue regulations to Federal agencies for the implementation of the procedural provisions” of NEPA. Exec. Order No. 11991, 3 CFR 124 (1978). The President ordered the heads of federal agencies to “comply with the regulations issued by the Council .. . .” Ibid. CEQ has since issued these regulations, 43 Fed. Reg. 55978-56007 (1978),16 and they reverse CEQ’s prior interpretation of § 102 (2)(C). The regulations provide specifically that “ ‘[legislation’ includes a bill or legislative proposal to Congress . . . but does not include requests for appropriations.” 43 Fed. Reg. 56004 (1978) (to be codified at 40 CFR § 1508.17). (Emphasis supplied.) CEQ explained this reversal by noting that, on the basis of “traditional concepts relating to appropriations and the budget cycle, considerations of timing and confidentiality, and other factors,... the Council in its experience found that preparation of EISs is ill-suited to the budget preparation process.” 17 43 Fed. Reg., at 55989. Quality, First Annual Report: Environmental Quality 288 (1970). On April 23, 1971, the guidelines were revised to state that “major Federal actions” included “[recommendations or favorable reports relating to legislation including that for appropriations.” 36 Fed. Reg. 7724 (1971). On August 1, 1973, the guidelines were once again revised, this time to the form noted by the Court of Appeals. 38 Fed. Reg. 20551 (1973). Relying on the CEQ guidelines, two prior decisions by Courts of Appeals have both interpreted “proposals for legislation” to include appropriation requests. See Environmental Defense Fund v. TV A, 468 F. 2d 1164, 1181 (CA6 1972); Scientists’ Institute for Public Information, Inc. v. Atomic Energy Comm’n, 156 U. S. App. D. C. 395, 404, 481 F. 2d 1079, 1088 (1973). 16 These regulations become effective July 30, 1979. 43 Fed. Reg. 55978 (1978). 17 The CEQ also noted that “[n]othing in the Council’s determination, however, relieves agencies of responsibility to prepare statements when 358 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. CEQ’s interpretation of NEP A is entitled to substantial deference. See Warm Springs Dam Task Force v. Gribble, 417 U. S. 1301, 1309-1310 (1974) (Douglas, J., in chambers). The Council was created by NEPA, and charged in that statute with the responsibility “to review and appraise the various programs and activities of the Federal Government in the light of the policy set forth in . . . this Act . . . , and to make recommendations to the President with respect thereto.” 83 Stat. 855, 42 U. S. C. § 4344 (3). It is true that in the past we have been somewhat less inclined to defer to “administrative guidelines” when they have “conflicted with earlier pronouncements of the agency.” General Electric Co. v. Gilbert, 429 U. S. 125,143 (1976). But CEQ’s reversal of interpretation occurred during the detailed and comprehensive process, ordered by the President, of transforming advisory guidelines into mandatory regulations applicable to all federal agencies. See American Trucking Assns. v. Atchison, T. & S. F. R. Co., 387 U. S. 397, 416 (1967). A mandatory requirement that every federal agency submit EIS’s with its appropriation requests raises wholly different and more serious issues “of fair and prudent administration,” ibid., than does nonbinding advice. This is particularly true in light of the Court of Appeals’ correct observation that “ [a] rule requiring preparation of an EIS on the annual budget request for virtually every ongoing program would trivialize NEPA.” 189 U. S. App. D. C., at 125, 581 F. 2d, at 903. The Court of Appeals accurately noted that such an interpretation of NEPA would be a “reductio ad absurdum .... It would be absurd to require an EIS on every decision on the management of federal land, such as fluctuation in the number of forest fire spotters.” Id., at 124, 581 F. 2d, at 902. Even respondents do not now contend that NEPA should be construed so otherwise required on the underlying program or other actions.” Id., at 55989. ANDRUS v. SIERRA CLUB 359 347 Opinion of the Court that all appropriation requests constitute “proposals for legislation.” Brief for Respondents 13 n. 6, 55-61. CEQ’s interpretation of the phrase “proposals for legislation” is consistent with the traditional distinction which Congress has drawn between “legislation” and “appropriation.” 18 The rules of both Houses “prohibit ‘legislation’ 18 The Congressional Budget Act of 1974 directs the Comptroller General of the United States, “in cooperation with the Secretary of the Treasury, the Director of the Office of Management and Budget, and the Director of the Congressional Budget Office, [to] develop, establish, maintain, and publish standard terminology, definitions, classifications, and codes for Federal fiscal, budgetary, and program-related data and information.” 88 Stat. 327, 31 U. S. C. § 1152 (a) (1). Pursuant to this statutory authority, the Comptroller General has published definitions distinguishing “authorizing legislation” from “appropriation.” Authorizing legislation is defined in the following manner: “Basic substantive legislation enacted by Congress which sets up or continues the legal operation of a Federal program or agency either indefinitely or for a specific period of time or sanctions a particular type of obligation or expenditure within a program. Such legislation is normally a prerequisite for subsequent appropriations or other kinds of budget authority to be contained in appropriations acts. It may limit the amount of budget authority to be provided subsequently or may authorize the appropriation of ‘such sums as may be necessary.’ ” Comptroller General of the United States, Terms Used in the Budgetary Process 4 (1977). Appropriation, on the other hand, is defined as: “An authorization by an act of the Congress that permits Federal agencies to incur obligations and to make payments out of the Treasury for specified purposes. An appropriation usually follows enactment of authorizing legislation. . . . Appropriations do not represent cash actually set aside in the Treasury for purposes specified in the appropriation act; they represent limitations of amounts which agencies may obligate during the timp period specified in the respective appropriations acts.” Id., at 3. Congressional enactments employ this distinction between appropriation and legislation. For example, the Budget and Accounting Act requires the President to include in the proposed budget he submits to Congress “with respect to each proposal in the Budget for new or additional legislation which would create or expand any function, activity, or authority, in 360 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. from being added to an appropriation bill.” L. Fisher, Budget Concepts and Terminology: The Appropriations Phase, in 1 Studies in Taxation, Public Finance and Related Subjects—A Compendium 437 (Fund for Public Policy Research 1977). See Standing Rules of the United States Senate, Rule 16 (4) (“No amendment which proposes general legislation shall be received to any general appropriation bill . . .”); Rules of the House of Representatives, 96th Cong., 1st Sess., addition to those functions, activities, and authorities then existing or as then being administered and operated, a tabulation showing— “(A) the amount proposed in the Budget for appropriation and for expenditure in the ensuing fiscal year on account of such proposal; and “(B) the estimated appropriation required on account of such proposal in each of the four fiscal years, immediately following that ensuing fiscal year, during which such proposal is to be in effect . . . .” As added, 84 Stat. 1169, 31 U. S. C. § 11 (a)(12) (emphasis supplied). See also 18 U. S. C. § 1913; 22 U. S. C. § 2394 (c). The Executive Branch also recognizes the distinction between appropriation and legislation. For example, 0MB distinguishes its function “[t]o supervise and control the administration of the budget” from its task of assisting “the President by clearing and coordinating departmental advice on proposed legislation.” Requiring Confirmation of Future Appointments of the Director and Deputy Director of the Office of Management and Budget, H. R. Rep. No. 93-697, p. 18 (1973). See Neustadt, Presidency and Legislation: The Growth of Central Clearance, 48 Am. Pol. Sci. Rev. 641 (1954). 0MB Circular No. A-19 (1972) establishes 0MB’s procedures for “legislative coordination and clearance,” whereas 0MB Circular No. A-ll (1978) sets out OMB’s guidelines for the “Preparation and Submission of Budget Estimates.” 0MB Circular No. A-19, §6 (a), requires each federal agency to “prepare and submit to 0MB annually its proposed legislative program for the next session of Congress. These programs must be submitted at the same time as the initial submissions of an agency’s annual budget request as required by 0MB Circular A-ll.” 0MB Circular A-ll, § 13.2, on the other hand, provides: “If, in addition to the regular appropriation requests, it appears probable that proposals for new legislation may require a further budget request or result in a change in revenues or outlays, a tentative forecast of the supplemental estimate will be set forth separately. . . . Such proposed supple-mentals must be consistent with items appearing in the agency’s legislative program as required by 0MB Circular No. A-19 . . . ” ANDRUS v. SIERRA CLUB 361 347 Opinion of the Court Rule XXI (2) (1979);19 7 C. Cannon, Precedents of the House of Representatives §§ 1172,1410,1443, 1445,1448, 1459, 1463, 1470, 1472 (1936). The distinction is maintained “to assure that program and financial matters are considered independently of one another. This division of labor is intended to enable the Appropriations Committees to concentrate on financial issues and to prevent them from trespassing on substantive legislation.” House Budget Committee, Congressional Control of Expenditures 19 (Comm. Print 1977). House and Senate rules thus require a “previous choice of policy . . . before any item of appropriations might be included in a general appropriations bill.” United States ex rel. Chapman v. FPC, 345 U. S. 153, 164 n. 5 (1953). Since appropriations therefore “have the limited and specific purpose of providing funds for authorized programs,” TVA v. Hill, 437 U. S., at 190, and since the “action-forcing” provisions of NEPA are directed precisely at the processes of “planning and . . . decisionmaking,” 42 U. S. C. §4332 (2)(A), which are associated with underlying legislation, we conclude that the distinction made by CEQ’s regulations is correct and that “proposals for legislation” do not include appropriation requests. B The Court of Appeals’ alternative interpretation of NEPA is that appropriation requests constitute “proposals for . . . major Federal actions.” 20 But this interpretation distorts the 19 L. Deschler, Procedure in the U. S. House of Representatives § 26-1.2 (1977) states that “ [language in an appropriation bill changing existing law is legislation and not in order.” Conversely, “[r]estrictions against the inclusion of appropriations in legislative bills are provided for by House rule . . . .” Id., §25-3.1. 20CEQ regulations define “major Federal action” in the following manner: “ 'Major Federal action’ includes actions with effects that may be major and which are potentially subject to Federal control and responsibility. Major reinforces but does not have a meaning independent of significantly .... Actions include the circumstance where the responsible offi- 362 OCTOBER TERM, 1978 Opinion of the Court 442U.S. language of the Act, since appropriation requests do not “propose” federal actions at all; they instead fund actions already proposed. Section 102 (2) (C) is thus best interpreted as applying to those recommendations or reports that actually propose programmatic actions, rather than to those which merely suggest how such actions may be funded. Any other result would create unnecessary redundancy. For example, if the mere funding of otherwise unaltered agency programs were construed to constitute major federal actions significantly affecting the quality of the human environment, the resulting EIS’s would merely recapitulate the EIS’s that should have accompanied the initial proposals of the programs. And if an agency program were to be expanded or revised in a manner that constituted major federal action cials fail to act and that failure to act is reviewable by courts or administrative tribunals under the Administrative Procedure Act or other applicable law as agency action. “(a) Actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals .... “(b) Federal actions tend to fall within one of the following categories: “(1) Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 U. S. C. 551 et seq.; treaties and international conventions or agreements; formal documents establishing an agency’s policies which will result in or substantially alter agency programs. “(2) Adoption of formal plans, such as official documents prepared or approved by federal agencies which guide or prescribe alternative uses of federal resources, upon which future agency actions will be based. “(3) Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive. “(4) Approval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities.” 43 Fed. Reg. 56004-56005 (1978) (to be codified at 40 CFR § 1508.18). ANDRUS v. SIERRA CLUB 363 347 Opinion of the Court significantly affecting the quality of the human environment,21 an EIS would have been required to accompany the underlying programmatic decision.22 An additional EIS at the appropriation stage would add nothing. Even if changes in agency programs occur because of budgetary decisions, an EIS at the appropriation stage would only be repetitive. For example, respondents allege in their complaint that OMB required the Fish and Wildlife Service to decrease its appropriation request for the NWRS, and that this decrease would alter the operation of the NWRS in a manner that would significantly affect the quality of the human environment. See n. 9, supra. But since the Fish and Wildlife Service could respond to OMB’s budgetary curtailments in a variety of ways, see United States Fish and Wildlife Service, Final Environmental Statement: Operation of the National Wildlife Refuge System (Nov. 1976), it is impossible to predict whether or how any particular budget cut will in fact significantly affect the quality of the human environment. OMB’s determination to cut the Service’s budget is not a programmatic proposal, and therefore requiring OMB to include an EIS in its budgetary cuts would be premature. See Aberdeen & Rockfish, R. Co. v. SCRAP, 422 U. S. 289, 320 (1975). And since an EIS must be prepared if any of the revisions the Fish and Wildlife Service proposes in its ongoing programs in response to OMB’s budget cuts would significantly affect the quality of the human environment, requiring the Fish and Wildlife Service to include an EIS with its revised appropriation request would merely be redundant. 21“[M]ajor Federal actions” include the “expansion or revision of ongoing programs.” S. Rep. No. 91-296, p. 20 (1969). 22 For example, if an agency were to seek an appropriation to initiate a major new program that would significantly affect the quality of the human environment, or if it were to decline to ask for funding so as to terminate a program with a similar effect, the agency would have been required to include EIS’s in the recommendations or reports on the proposed underlying programmatic decisions. 364 OCTOBER TERM, 1978 Opinion of the Court 442U.S. Moroever, this redundancy would have the deleterious effect of circumventing and eliminating the careful distinction Congress has maintained between appropriation and legislation. It would flood House and Senate Appropriations Committees with EIS’s focused on the policy issues raised by underlying authorization legislation,23 thereby dismantling the “division of labor” so deliberately created by congressional rules. C We conclude therefore, for the reasons given above, that appropriation requests constitute neither “proposals for legis- 23 The Court of Appeals held that EIS’s need be included in appropriation requests for “major Federal actions” only if major changes that would significantly affect the quality of the human environment are proposed in the underlying programs for which funding is sought. See 189 U. S. App. D. C., at 125, 581 F. 2d, at 903. But an appropriation request applies not only to major changes in a federal program, but also to the entire program it is designed to fund. Without appropriations, the underlying program would cease to exist. Therefore, if the existence vel non of that program is a major federal action significantly affecting the quality of the human environment, the Court of Appeals’ alternative interpretation of NFPA would require an EIS to be included in the concomitant appropriation request. It is important to note that CEQ regulations provide that the adjective “major” in the phrase “major Federal actions” “reinforces but does not have a meaning independent of [the adverb] significantly” in the phrase “significantly affecting the quality of the human environment.” 43 Fed. Reg. 56004 (1978) (to be codified at 40 CFR § 1508.18). See n. 20, supra. As a consequence, the Court of Appeals’ holding that certain appropriation requests are “proposals for . . . major Federal actions” is operationally identical to its holding that certain appropriation requests constitute “proposals for legislation.” Both holdings would require EIS’s to accompany funding requests for every federal program that significantly affects the quality of the human environment. Thus, not only do both holdings run the same dangers of “trivializing” NEPA, but also the same “traditional concepts relating to appropriations and the budget cycle, considerations of timing and confidentiality,” 43 Fed. Reg. 55989 (1978), which led CEQ to distinguish “appropriations” from “legislation,” would require appropriations to be distinguished from “proposals for' . . . major Federal actions.” ANDRUS v. SIERRA CLUB 365 347 Opinion of the Court lation” nor “proposals for . . . major Federal actions,” and that therefore the procedural requirements of § 102 (2) (C) have no application to such requests.24 The judgment of the Court of Appeals is reversed. So ordered. 24 Because we conclude that § 102 (2) (C) has no application to appropriation requests, it is clear that the Court of Appeals was incorrect in requiring 0MB "to adopt procedures and appropriate regulations to comply with the obligations NEPA imposes on the budget process . . . .” 189 U. S. App. D. C., at 127, 581 F. 2d, at 905. See n. 14, supra. 366 OCTOBER TERM, 1978 Syllabus 442 U. S. GREAT AMERICAN FEDERAL SAVINGS & LOAN ASSOCIATION et al. v. NOVOTNY CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 78-753. Argued April 18, 1979—Decided June 11, 1979 After respondent, a former officer, director, and loan officer of petitioner Great American Federal Savings and Loan Association (Association) received a right-to-sue letter upon filing a complaint with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964, he brought this suit against the Association and its directors in Federal District Court, alleging that the Association had intentionally embarked upon a course of conduct the effect of which was to deny to female employees equal employment opportunity; that when respondent expressed support for the female employees at a meeting of the board of directors, his connection with the Association abruptly ended; and that his support for the female employees was the cause of the termination of his employment. Respondent claimed damages under 42 U. S. C. § 1985 (3) (1976 ed., Supp. II), contending that he had been injured as the result of a conspiracy to deprive him of equal protection of, and equal privileges and immunities under, the laws. Section 1985 (3) provides, inter alia, that a person so injured may have an action for damages against any one or more of the conspirators. The District Court granted petitioners’ motion to dismiss, holding that § 1985 (3) could not be invoked because the directors of a single corporation cannot, as a matter of law and fact, engage in a conspiracy. The Court of Appeals reversed, holding that conspiracies motivated by an invidious animus against women fall within § 1985 (3), and that respondent, a male allegedly injured as a result of such a conspiracy, has standing to bring suit under that provision. The court further ruled that Title VII can be the source of a right asserted in a § 1985 (3) action, and that intracorporate conspiracies come within the intendment of the section. Held: Section 1985 (3) may not be invoked to redress violations of Title VII. It creates no substantive rights itself but is a purely remedial statute, providing a civil cause of action when some otherwise defined federal right—to equal protection of the laws or equal privileges and immunities under the laws—is breached by a conspiracy in the manner defined by the section. Thus, the question in this case is whether rights created by Title VII—respondent alleged that he was injured GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 367 366 Syllabus by a conspiracy to violate § 704 (a) of Title VII, which makes it an unlawful employment practice for an employer to discriminate against an employee because he has opposed any employment practice made unlawful by Title VII or because he has participated in an investigation or proceeding under Title VII—may be asserted within the remedial framework of § 1985 (3). If a violation of Title VII could be asserted through § 1985 (3), a complainant could avoid most if not all of the detailed and specific provisions of Title VII, which provides a comprehensive plan of administrative and judicial process designed to provide an opportunity for nonjudicial and nonadversary resolution of claims. Perhaps most importantly, the complainant could completely bypass the administrative process, which plays such a crucial role in the scheme established by Congress in Title VII. Unimpaired effectiveness can be given to the plan of Title VII only by holding that deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985 (3). Cf. Brown n. GSA, 425 U. S. 820. Pp. 370-378. 584 F. 2d 1235, vacated and remanded. Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, Rehnquist, and Stevens, JJ., joined. Powell, J., post, p. 378, and Stevens, J., post, p. 381, filed concurring opinions. White, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 385. Eugene K. Connors argued the cause for petitioners. With him on the briefs was Walter G. Bleil. Stanley M. Stein argued the cause and filed a brief for respondent. Deputy Solicitor General Wallace argued the cause for the United States et al. as amici curiae urging affirmance. On the brief were Solicitor General McCree, Assistant Attorney General Days, Louis F. Claiborne, Walter W. Barnett, Mildred M. Matesich, Lutz Alexander Prager, and Paul E. Mirengofi* *Avrum M. Goldberg, William R. Weissman, Robert E. Williams, and Douglas S. McDowell filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal. Isabelle Katz Pinzler filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance, 368 OCTOBER TERM, 1978 Opinion of the Court 442U.S. Mr. Justice Stewart delivered the opinion of the Court. More than a century after their passage, the Civil Rights Acts of the Reconstruction Era continue to present difficult problems of statutory construction. Cf. Chapman v. Houston Welfare Rights Org., 441 U. S. 600. In the case now before us, we consider the scope of 42 U. S. C. § 1985 (3) (1976 ed., Supp. II), the surviving version of § 2 of the Civil Rights Act of 1871? The respondent, John R. Novotny, began his career with the Great American Federal Savings and Loan Association (hereinafter Association) in Allegheny County, Pa., in 1950. By 1975, he was secretary of the Association, a member of its board of directors, and a loan officer. According to the allegations of the complaint in this case the Association “intentionally and deliberately embarked upon and pursued a course of conduct the effect of which was to deny to female employees 1 Title 42 U. S. C. §1985 (3) (1976 ed., Supp. II), Rev. Stat. §1980, provides: “If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws; or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.” GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 369 366 Opinion of the Court equal employment opportunity . . . When Novotny expressed support for the female employees at a meeting of the board of directors, his connection with the Association abruptly ended. He was not re-elected as secretary; he was not reelected to the board; and he was fired. His support for the Association’s female employees, he alleges, was the cause of the termination of his employment. Novotny filed a complaint with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964.2 After receiving a right-to-sue letter,3 he brought this lawsuit against the Association and its directors in the District Court for the Western District of Pennsylvania. He claimed damages under 42 U. S. C. § 1985 (3) (1976 ed., Supp. II), contending that he had been injured as the result of a conspiracy to deprive him of equal protection of and equal privileges and immunities under the laws.4 The District Court granted the defendants’ motion to dismiss. It held that § 1985 (3) could not be invoked because the directors of a single corporation could not, as a matter of law and fact, engage in a conspiracy. 430 F. Supp. 227, 230.5 Novotny appealed. After oral argument before a three-judge panel, the case was reargued before the en banc Court of Appeals for the Third Circuit, which unanimously reversed 2 42 U. S. C. §2000eet seq. 3 42 U. S. C. §2000e-5 (f)(1). 4 His complaint also alleged, as a second cause of action, that his discharge was in retaliation for his efforts on behalf of equal employment opportunity, and thus violated § 704 (a) of Title VII of the Civil Rights Act of 1964, 78 Stat. 257, as amended, 86 Stat. 109. Section 704 (a), as set forth in 42 U. S. C. § 2000e-3 (a), reads in relevant part: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees .. . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 5 As to the Title VII claim, the District Court held that Novotny was not a proper plaintiff under § 704 (a). 370 OCTOBER TERM, 1978 Opinion of the Court 442U.S. the District Court’s judgment. 584 F. 2d 1235. The Court of Appeals ruled that Novotny had stated a cause of action under § 1985 (3). It held that conspiracies motivated by an invidious animus against women fall within § 1985 (3), and that Novotny, a male allegedly injured as a result of such a conspiracy, had standing to bring suit under that statutory provision. It ruled that Title VII could be the source of a right asserted in an action under § 1985 (3), and that intracorporate conspiracies come within the intendment of the section. Finally, the court concluded that its construction of § 1985 (3) did not present any serious constitutional problem.6 We granted certiorari, 439 U. S. 1066, to consider the applicability of § 1985 (3) to the facts alleged in Novotny’s complaint. II The legislative history of § 2 of the Civil Rights Act of 1871, of which § 1985 (3) was originally a part, has been reviewed many times in this Court.7 The section as first en- 6 The Court of Appeals ruled that Novotny had also stated a valid cause of action under Title VII. It held that § 704 (a) applies to retaliation for both formal and informal actions taken to advance the purposes of the Act. That holding is not now before this Court. We note the relative narrowness of the specific issue before the Court. It is unnecessary for us to consider whether a plaintiff would have a cause of action under § 1985 (3) where the defendant was not subject to suit under Title VII or a comparable statute. Cf. United States v. Johnson, 390 U. S. 563. Nor do we think it necessary to consider whether § 1985 (3) creates a remedy for statutory rights other than those fundamental rights derived from the Constitution. Cf. Griffin v. Breckenridge, 403 U. S. 88. 7 A partial list of the opinions in this Court that have discussed the Act’s legislative history includes Chapman v. Houston Welfare Rights Org., 441 U. S. 600, 608-612 (opinion of the Court); id., at 650-658 (White, J., concurring in judgment); id., at 627-640 (Powell, J., concurring) ; Monell v. New York City Dept, of Social Services, 436 U. 8. 658, 665-689; District of Columbia v. Carter, 409 U. S. 418, 423, 425-429; Griffin v. Breckenridge, supra, at 99-101; Adickes y. S. H. Kress Co., 398 GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 371 366 Opinion of the Court acted authorized both criminal and civil actions against those who have conspired to deprive others of federally guaranteed rights. Before the 19th century ended, however, the Court found the criminal provisions of the statute unconstitutional because they exceeded the scope of congressional power, United States n. Harris, 106 U. S. 629; Baldwin n. Franks, 120 U. S. 678, and the provisions thus invalidated were later formally repealed by Congress. The civil action provided by the Act remained, but for many years was rarely, if ever, invoked. The provisions of what is now § 1985 (3) were not fully considered by this Court until 1951, in the case of Collins v. Hardyman, 341 U. S. 651.8 There the Court concluded that the section protected citizens only from injuries caused by conspiracies “under color of state law.” 9 Twenty years later, in Griffin v. Breckenridge, 403 U. S. 88, the Court unanimously concluded that the Collins Court had accorded to the provisions of § 1985 (3) too narrow a scope.10 The fears concerning congressional power that had motivated the Court in U. S. 144, 162-166 (opinion of the Court); id., at 215-231 (Brennan, J., concurring in part and dissenting in part); Monroe n. Pape, 365 U. S. 167, 172-185 (opinion of the Court); id., at 194-198 (Harlan, J., concurring in judgment); id., at 225-236 (Frankfurter, J., dissenting). 8 At least two earlier cases in this Court involved causes of action based upon what is now § 1985 (3). In Hague v. CIO, 307 U. S. 496, the plaintiff had stated claims based on the predecessors of both § 1985 (3) and 42 U. S. C. § 1983. The opinions of Mr. Justice Roberts and Mr. Justice Stone both discussed the § 1983 cause of action, but neither discussed the conspiracy claim. In Snowden n. Hughes, 321 U. S. 1, the plaintiff had also stated claims under the predecessors of both sections. The Court held that no constitutional violation had been shown, and did not consider whether the statutes could have been utilized if such a showing had been made. 9 Mr. Justice Burton dissented, joined by Mr. Justice Black and Mr. Justice Douglas. 341 U. S., at 663. 10 Mr. Justice Harlan concurred, with one reservation. He found it unnecessary to rely, as the Court did in part, on the defendants’ alleged interference with the right of interstate travel. 403 U. S., at 107. 372 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. the Collins case had been dissolved by intervening cases. See Griffin v. Breckenridge, supra, at 96-97, 104-106. Therefore, the Court found that § 1985 (3) did provide a cause of action for damages caused by purely private conspiracies. The Court’s opinion in Griffin discerned the following criteria for measuring whether a complaint states a cause of action under § 1985 (3): “To come within the legislation a complaint must allege that the defendants did (1) ‘conspire or go in disguise on the highway or on the premises of another’ (2) ‘for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.’ It must then assert that one or more of the conspirators (3) did, or caused to be done, ‘any act in furtherance of the object of [the] conspiracy,’ whereby another was (4a) ‘injured in his person or property’ or (4b) ‘deprived of having and exercising any right or privilege of a citizen of the United States.’ ” 403 U. S., at 102-103. Section 1985 (3) provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates. The primary question in the present case, therefore, is whether a person injured by a conspiracy to violate § 704 (a) of Title VII of the Civil Rights Act of 1964 is deprived of “the equal protection of the laws, or of equal privileges and immunities under the laws” within the meaning of § 1985 (3).11 Under Title VII, cases of alleged employment discrimination are subject to a detailed administrative and judicial process designed to provide an opportunity for non judicial and 11 For the purposes of this question, we assume but certainly do not decide that the directors of a single corporation can form a conspiracy within the meaning of § 1985 (3). GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 373 366 Opinion of the Court nonadversary resolution of claims. As the Court explained in Alexander v. Gardner-Denver Co., 415 U. S. 36, 44: “Congress enacted Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin .... Cooperation and voluntary compliance were selected as the preferred means for achieving this goal. To this end, Congress created the Equal Employment Opportunity Commission and established a procedure whereby existing state and local employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit.” As part of its comprehensive plan, Congress provided that a complainant in a State or locality with a fair employment commission must first go to that commission with his claim. Alternatively, an employee who believes himself aggrieved must first file a charge with the federal Equal Employment Opportunity Commission.12 The time limitations for administrative and judicial filing are controlled by express provisions of the statute.13 At several different points, the statutory 12 Title 42 U. S. C. § 2000e-5 (b) provides for filing charges with the federal Commission. When a State or locality has a “State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto,” filing a complaint with that authority is a predicate for assertion of the federal rights involved. 42 U. S. C. §2000e-5 (c). If a member of the EEOC files a charge alleging violations in such a State or locality, the federal Commission must notify the state or local authority of the charge before taking any action. 42 U. S. C. § 2000e-5 (d). Cf. Love v. Pullman Co., 404 U. S. 522. 13 The statute requires that a complaint be filed with the federal agency within 180 days “after the alleged unlawful employment practice 374 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. plan prevents immediate filing of judicial proceedings in order to encourage voluntary conciliation.14 The EEOC has the power to investigate and to prosecute a civil action in a complainant’s case.15 The Act provides for injunctive relief, specifically including backpay relief.16 The majority of the occurred . . . .” If the complainant has filed a charge with a state or local agency, the time is extended to 300 days from the event, or 30 days from the end of state or local proceedings, whichever is sooner. 42 U. 8. C. § 2000e-5 (e). After a “right to sue” letter issues from the EEOC, the complainant is given another 90 days to bring a civil action in a federal district court. 42 U. 8. C. § 2000e-5 (f) (1). Cf. United Air Lines, Inc. v. Evans, 431 U. 8. 553. 14 Within 10 days of the Commission’s receipt of a complaint, it must notify the employer of the charge, including the date, place, and circumstances of the alleged violation. 42 U. 8. C. §§ 2000e-5 (b), (e). Only if the Commission has been unable to secure an acceptable conciliation agreement from the employer within 30 days of the filing of the charge may it bring a civil action against the employer. 42 U. 8. C. § 2000e-5(f)(1). The complainant must await notice from the Commission of his right to bring a suit. This notice is provided if (1) the Commission dismisses his charge, (2) neither the Commission nor the Attorney General has filed a civil action in his case within 180 days of the filing of the charge, or (3) the Commission has not entered into a conciliation agreement to which he is a party. 42 U. 8. C. §2000e-5 (f)(1). Cf. Occidental Life Ins. Co. v. EEOC, 432 U. 8. 355. 1542 U. 8. C. §§2000e-5 (a), (b), (f)(1). See Occidental Life Ins. Co. v. EEOC, supra. 16 Section 706 (g) of the Act, as amended, as set forth in 42 U. S. C. §2000e-5 (g), provides: “If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 375 366 Opinion of the Court federal courts have held that the Act does not allow a court to award general or punitive damages.17 The Act expressly allows the prevailing party to recover his attorney’s fees, and, in some cases, provides that a district court may appoint counsel for a plaintiff.18 Because the Act expressly authorizes only equitable remedies, the courts have consistently held that neither party has a right to a jury trial.19 If a violation of Title VII could be asserted through § 1985 (3), a complainant could avoid most if not all of these de person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3 (a) of this title.” See Albemarle Paper Co. N. Moody, 422 U. S. 405. 17 See EEOC v. Detroit Edison Co., 515 F. 2d 301, 308-310 (CA6 1975); Richerson v. Jones, 551 F. 2d 918, 926-928 (CA3 1977); cases collected in id., at 926 n. 13. 18 Title 42 U. S. C. § 2000e-5 (k) provides: “In any action or proceeding under this subchapter the court in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.” See Christiansburg Garment Co. n. EEOC, 434 U. S. 412. Title 42 U. S. C. §2000e-5 (f)(1) provides that “[u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security.” 19 See Slack n. Havens, 522 F. 2d 1091, 1094 (CA9 1975); EEOC v. Detroit Edison Co., supra, at 308; Johnson v. Georgia Highway Express, 417 F. 2d 1122, 1125 (CA5 1969); Smith N.Hampton Training School for Nurses, 360 F. 2d 577, 581 (CA4 1966) (en banc). See also Albemarle Paper Co. n. Moody, supra, at 441-445 (Rehnquist, J., concurring). 376 OCTOBER TERM, 1978 Opinion of the Court 442U.S. tailed and specific provisions of the law. Section 1985 (3) expressly authorizes compensatory damages; punitive damages might well follow. The plaintiff or defendant might demand a jury trial. The short and precise time limitations of Title VII would be grossly altered.20 Perhaps most importantly, the complainant could completely bypass the administrative process, which plays such a crucial role in the scheme established by Congress in Title VII. The problem in this case is closely akin to that in Brown v. GSA, 425 U. S. 820. There, we held that § 717 of Title VII provides the exclusive remedy for employment discrimination claims of those federal employees that it covers. Our conclusion was based on the proposition that “[t]he balance, completeness, and structural integrity of §717 are inconsistent with the petitioner’s contention that the judicial remedy afforded by § 717 (c) was designed merely to supplement other putative judicial relief.” 425 U. S., at 832. Here, the case is even more compelling. In Brown, the Court concluded that § 717 displaced other causes of action arguably available to .assert substantive rights similar to those granted by § 717. Section 1985 (3), by contrast, creates no rights. It is a purely remedial statute, providing a civil cause of action when some otherwise defined federal right—to equal protection of the laws or equal privileges and immunities under the laws—is breached by a conspiracy in the manner defined by the section. Thus, we are not faced in this case with a question of implied repeal. The right Novotny claims under § 704 (a) did not even arguably exist before the passage of Title 20 The Court of Appeals for the Third Circuit recently applied a 6-year Pennsylvania statute of limitations to employment discrimination claims brought under 42 U. S. C. § 1981. Davis v. United States Steel Supply, 581 F. 2d 335, 337 (1978). See also Johnson v. Railway Express Agency, 421 U. S. 454, 462-466. GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 377 366 Opinion of the Court VII. The only question here, therefore, is whether the rights created by Title VII may be asserted within the remedial framework of § 1985 (3). This case thus differs markedly from the cases recently decided by this Court that have related the substantive provisions of last century’s Civil Rights Acts to contemporary legislation conferring similar substantive rights. In those cases we have held that substantive rights conferred in the 19th century were not withdrawn, sub silentio, by the subsequent passage of the modern statutes. Thus, in Jones v. Alfred H. Mayer Co., 392 U. S. 409, 413-417, we considered the effect of the fair housing provisions of the Civil Rights Act of 1968 on the property rights guaranteed by the Civil Rights Act of 1866, now codified at 42 U. S. C. § 1982. And in Johnson v. Railway Express Agency, 421 U. S. 454, 457-461, we held that the passage of Title VII did not work an implied repeal of the substantive rights to contract conferred by the same 19th-century statute and now codified at 42 U. S. C. § 1981. See also Sullivan v. Little Hunting Park, 396 U. S. 229, 237-238; Runyon v. McCrary, 427 U. S. 160, 174-175.21 Somewhat similarly, in Alexander v. Gardner-Denver Co., 415 U. S. 36, the Court upheld an employee’s invocation of two alternative remedies for alleged employment discrimina 21 Another difference between those cases and this one is to be found in the legislative history of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1968. As the Court noted in Johnson n. Railway Express Agency, supra, and Jones n. Alfred H. Mayer Co., 392 U. 8. 409, the Civil Rights Acts of 1866 and 1871 were explicitly discussed during the course of the legislative debates on both the Civil Rights Act of 1968 and the 1972 amendments to the 1964 Act, and the view was consistently expressed that the earlier statutes would not be implicitly repealed. See Johnson n. Railway Express Agency, supra, at 457-459; Jones n. Alfred H. Mayer Co., supra, at 413-417. Specific references were made to §§ 1981 and 1983, but, significantly, no notice appears to have been taken of § 1985. See case below, 584 F. 2d 1235, 1252 n. 86. 378 OCTOBER TERM, 1978 Powell, J., concurring 442U.S. tion: arbitration under a collective-bargaining agreement, and litigation under Title VII. As the Court pointed out: “In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums.” Id., at 49-50. This case, by contrast, does not involve two “independent” rights, and for the same basic reasons that underlay the Court’s decision in Brown v. GSA, supra, reinforced by the other considerations discussed in this opinion, we conclude that § 1985 (3) may not be invoked to redress violations of Title VII. It is true that a § 1985 (3) remedy would not be coextensive with Title VII, since a plaintiff in an action under § 1985 (3) must prove both a conspiracy and a group animus that Title VII does not require. While this incomplete con-gruity would limit the damage that would be done to Title VII, it would not eliminate it. Unimpaired effectiveness can be given to the plan put together by Congress in Title VII only by holding that deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985 (3). Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Powell, concurring. I agree with the opinion of the Court as far as it goes, and I join it. I also agree with the views expressed by Mr. Justice Stevens’ concurring opinion. I write separately because GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 379 366 Powell, J., concurring it seems to me that the Court’s decision affords unnecessarily limited guidance to courts in the federal system. The Court’s specific holding is that 42 U. S. C. § 1985 (3) (1976 ed., Supp. II) may not be invoked to redress violations of Title VII. The broader issue argued to us in this case was whether this Civil War Era remedial statute, providing no substantive rights itself, was intended to provide a remedy generally for the violation of subsequently created statutory rights. For essentially the reasons suggested by Mr. Justice Stevens, I would hold that § 1985 (3) should not be so construed, and that its reach is limited to conspiracies to violate those fundamental rights derived from the Constitution. The Court’s unanimous decision in Griffin v. Breckenridge, 403 U. S. 88 (1971), is to this effect. The alleged conspiracy there was an attempt by white citizens, resorting to force and violence, to deprive Negro citizens of the right to use interstate highways. In sustaining a cause of action under § 1985 (3), the Court found that the alleged conspiracy—if implemented—would violate the constitutional “right of interstate travel” as well as the right of Negro citizens to be free from “invidiously discriminatory” action. The Court declared: “That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others. For, though the supporters of the legislation insisted on coverage of private conspiracies, they were equally emphatic that they did not believe, in the words of Representative Cook, ‘that Congress has a right to punish an assault and battery when committed by two or more persons within a State.’ [Cong. Globe, 42d Cong., 1st Sess., 485 (1871).] The constitutional shoals that would lie in the path of interpreting § 1985 (3) as a general federal tort law can be avoided by giving full effect to the congressional purpose—by requiring, as an element of the cause of action, the kind of invidiously 380 OCTOBER TERM, 1978 Powell, J., concurring 442U.S. discriminatory motivation stressed by the sponsors of the limiting amendment. See the remarks of Representatives Willard and Shellabarger, quoted supra, at 100. The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.” 403 U. S., at 101-102. In reaching its conclusion, the Court identified “two constitutional sources” (id., at 107) relied upon to support a cause of action under § 1985 (3): “We can only conclude that Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men. “Our cases have firmly established that the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference. [Citations omitted.] The ‘right to pass freely from State to State’ has been explicitly recognized as ‘among the rights and privileges of National citizenship.’ Twining v. New Jersey, 211 U. S. 78, 97. That right, like other rights of national citizenship, is within the power of Congress to protect by appropriate legislation.” Id., at 105-106. By contrast, this Court has never held that the right to any particular private employment is a “right of national citizenship,” or derives from any other right created by the Constitution. Indeed, even Congress, in the exercise of its GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 381 366 Stevens, J., concurring powers under the Commerce Clause of the Constitution, has accorded less than full protection to private employees. It excluded several classes of employers from the coverage of Title VII, for example, employers of fewer than 15 employees. See 42 U. S. C. § 2000e (b). Nor does the Constitution create any right to be free of gender-based discrimination perpetuated solely through private action. The rationale of Griffin accords with the purpose, history, and common understanding of this Civil War Era statute. Rather than leave federal courts in any doubt as to the scope of actions under § 1985 (3), I would explicitly reaffirm the constitutional basis of Griffin* Mr. Justice Stevens, concurring. While I join the Court’s opinion, including its reliance on Brown v. USA, 425 U. S. 820, and while I agree with much of Mr. Justice Powell’s concurrence, I add a few words of my own to explain why I would reach the same conclusion even if the Court had agreed with my dissenting views in Brown. Sections 1983 and 1985 (3) of Title 42 of the United States Code (1976 ed., and Supp. II) are the surviving direct descendants of §§ 1 and 2 of the Civil Rights Act of 1871. 17 Stat. 13. Neither of these sections created any substantive rights. Earlier this Term we squarely held that § 1983 *The doubts which will remain after the Court’s decision are far from insubstantial. At least one federal court, for example, has held that although Title VII rights may not be asserted through § 1985 (3), claims based on §3 of the Equal Pay Act of 1963, 77 Stat. 56, 29 U. S. C. §206 (d), may be raised in a § 1985 (3) suit. Hodgin n. Jefferson, 447 F. Supp. 804, 808 (Md. 1978). See also Murphy v. Operating Engineers, Local 18, 99 LRRM 2074, 2124-2126 (ND Ohio 1978) (conspiracy to violate Labor-Management Reporting and Disclosure Act cognizable under § 1985 (3)); Local No. 1, AC A v. International Brotherhood of Teamsters, 419 F. Supp. 263, 276 (ED Pa. 1976) (same). I would take advantage of the present opportunity to make clear that this Civil War Era statute was intended to provide a remedy only for conspiracies to violate fundamental rights derived from the Constitution. 382 OCTOBER TERM, 1978 Stevens, J., concurring 442U.S. merely provides a remedy for certain violations of certain federal rights,1 and today the Court unequivocally holds that § 1985 (3) “provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates.” Ante, at 372.2 Somewhat different language was used by Congress in describing the substantive rights encompassed within the two provisions: § 1 of the 1871 Act, the predecessor to § 1983, referred to “rights, privileges, or immunities secured by the Constitution of the United States,” whereas' § 2, the predecessor to § 1985 (3), referred to “equal protection of the laws” and “equal privileges and immunities under the laws.” 3 The 1 “Standing alone, § 1983 clearly provides no protection for civil rights since, as we have just concluded, § 1983 does not provide any substantive rights at all.” Chapman v. Houston Welfare Rights Org., 441 U. S. 600, 618. In that opinion we quoted Senator Edmunds’ comment in the 1871 debate: “All civil suits, as every lawyer understands, which this act authorizes, are not based upon it; they are based upon the right of the citizen. The act only gives a remedy.” Cong. Globe, 42d Cong., 1st Sess., 568 (1871). 2 And ante, at 376, the Court states: “Section 1985 (3), by contrast, creates no rights. It is a purely remedial statute, providing a civil cause of action when some otherwise defined federal right—to equal protection of the laws or equal privileges and immunities under the laws—is breached by a conspiracy in the manner defined by the section.” 3 In its present form, 42 U. S. C. § 1983 refers to deprivations of “rights, privileges, or immunities secured by the Constitution and laws.” The “and laws” language was not included in the original statute enacted in 1871, however; it was added in 1874 when Congress enacted the Revised Statutes of the United States. Rev. Stat. § 1979. No similar change was ever made in § 2 of the 1871 Act, the predecessor to § 1985 (3). As originally introduced, that section did provide for criminal and civil actions for deprivations of “rights, privileges, or immunities . . . under the Constitution and laws of the United States.” Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871) (emphasis added). “The enormous sweep of the GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 383 366 Stevens, J., concurring import of the language, however, as well as the relevant legislative history, suggests that the Congress which enacted both provisions was concerned with providing federal remedies for deprivations of rights protected by the Constitution and, in particular, the newly ratified Fourteenth Amendment. If a violation was effected “under color of any law, statute, ordinance, regulation, custom, or usage of any State,” § 1983 afforded redress; if a violation was caused by private persons who “conspire or go in disguise on the highway,” § 1985 (3) afforded redress. Thus, the former authorized a remedy for state action depriving an individual of his constitutional rights, the latter for private action. Some privileges and immunities of citizenship, such as the right to engage in interstate travel and the right to be free of the badges of slavery, are protected by the Constitution against interference by private action, as well as impairment by state action. Private conspiracies to deprive individuals of these rights are, as this Court held in Griffin v. Breckenridge, 403 U. S. 88, actionable under § 1985 (3) without regard to any state involvement.4 original language led to pressures for amendment,” Griffin v. Breckenridge, 403 U. S. 88, 100, and the present language was substituted. The criminal provisions of § 2 were later declared unconstitutional, United States v. Harris, 106 U. S. 629, and repealed by Congress. 35 Stat. 1088, 1154. This criminal provision should be distinguished from 18 U. S. C. § 241, relied upon by Mr. Justice White, see post, at 389 n. 5. Section 241 has, since its enactment in 1870, referred explicitly to “the Constitution or laws of the United States.” See 16 Stat. 141 (emphasis added). 4 In Griffin, supra, at 105, the Court quoted the statement from the Civil Rights Cases, 109 U. S. 3, 20, that the Thirteenth Amendment “is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.” The opinion added: “We can only conclude that Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially 384 OCTOBER TERM, 1978 Stevens, J., concurring 442U.S. Other privileges and immunities of citizenship such as the right to due process of law and the right to the equal protection of the laws are protected by the Constitution only against state action. Shelley V; Kraemer, 334 U. S. 1, 13. If a state agency arbitrarily refuses to serve a class of persons—Chinese-Americans, for example, see Yick Wo v. Hopkins, 118 U. S. 356—it violates the Fourteenth Amendment. Or if private persons take conspiratorial action that prevents or hinders the constituted authorities of any State from giving or securing equal treatment, the private persons would cause those authorities to violate the Fourteenth Amendment; the private persons would then have violated § 1985 (3).8 If, however, private persons engage in purely private acts of discrimination—for example, if they discriminate against women or against lawyers with a criminal practice, see Dombrowski y. Dowling, 459 F. 2d 190, 194-196—they do not violate the Equal Protection Clause of the Fourteenth Amendment.6 The rights secured by the Equal Protection and Due Process Clauses of the Fourteenth Amendment are rights to protection against unequal or unfair treatment by the State, not by private parties. Thus, while § 1985 (3) does not require that a defendant act under color of state law, there still discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men.” 403 U. S., at 105. With respect to the right of interstate travel, the opinion added: “Our cases have firmly established that the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertible against private as well as governmental interference.” Ibid. 51 have paraphrased the statutory language “preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws” because that language sheds important light on the meaning of the entire section. 6 As the Court stated in Shelley n. Kraemer, 334 U. S. 1, 13, the Fourteenth Amendment “erects no shield against merely private conduct, however discriminatory or wrongful.” GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 385 366 White, J., dissenting can be no claim for relief based on a violation of the Fourteenth Amendment if there has been no involvement by the State. The requirement of state action, in this context, is no more than a requirement that there be a constitutional violation. Here, there is no claim of such a violation. Private discrimination on the basis of sex is not prohibited by the Constitution. The right to be free of sex discrimination by other private parties is a statutory right that was created almost a century after § 1985 (3) was enacted. Because I do not believe that statute was intended to provide a remedy for the violation of statutory rights—let alone rights created by statutes that had not yet been enacted—I agree with the Court’s conclusion that it does not provide respondent with redress for injuries caused by private conspiracies to discriminate on the basis of sex.7 With this additional explanation of my views, I join the Court’s opinion. Mr. Justice White, with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting. The Court today releases employers acting with invidious discriminatory animus in concert with others from liability under 42 U. S. C. § 1985 (3) (1976 ed., Supp. II) for the in 7 Unlike the problem presented by Runyon v. McCrary, U. S. 160, where I concluded that it was my duty to follow decisions of this Court which in my judgment had erroneously construed the actual intent of Congress, this is a case in which I am free to respect my understanding of congressional intent. To do so does not require me to advocate overruling any prior decisions of this Court in favor of a position which would appear to be “a significant step backwards . . . clearly contrary to my understanding of the mores of today.” Id., at 191-192 (Stevens, J., concurring). And with respect to the issue which is presented in this case, there is no doubt in my mind that the construction of the statute adopted by the Court of Appeals “would have amazed the legislators who voted for it.” Id., at 89. 386 OCTOBER TERM, 1978 White, J., dissenting 442U.S. juries they inflict. Because for both respondent in this case and as a general matter § 1985 (3) is an entirely consistent supplement to Title VII, I dissent. I Respondent sought compensatory damages under § 1985 (3)1 on the ground that he had been injured by acts done in furtherance of a conspiracy for the purpose of depriving others of “equal privileges and immunities” guaranteed in § 703 (a) of Title VII,2 which prohibits discrimination on the basis of, inter alia, sex. Additionally, and separately, respondent sought relief under Title VII itself on the ground that he had been deprived of his right under § 704 (a) of Title VII3 not to be discriminated against because he assisted 1 Title 42 U. S. C. § 1985 (3) (1976 ed., Supp. II) provides in relevant part that when persons who “conspire . . . for the purpose of depriving . . . any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, ... the party so injured or deprived may have an action for the recovery of damages occasioned by such injury . . . , against any one or more of the conspirators.” 2 42 U. S. C. § 2000e-2 (a). This statute provides: “It shall be an unlawful employment practice for an employer— “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or “(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 3 42 U. S. C. § 2000e-3 (a). This statute provides: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor orga GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 387 366 White, J., dissenting others in asserting their Title VII rights. Petitioners have not sought review of the Court of Appeals’ holding that respondent had stated a cause of action under § 704 (a), and, accordingly, the Court does not address that issue. However, the majority holds that the claim under § 1985 (3) must be dismissed because “deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985 (3),” ante, at 378. Unfortunately, the majority does not explain whether the “right created by Title VII” to which it refers is the right guaranteed to women employees under § 703 (a) or the right guaranteed to respondent under § 704 (a). Although in stating its view of the issue before the Court, the majority intimates that it is relying on the fact that respondent has a claim directly under § 704 (a),4 the reasoning of the majority opinion in no way indicates why the existence of a § 704 (a) claim should prevent respondent from seeking to vindicate under § 1985 (3) the entirely separate right provided by § 703 (a). Clearly, respondent’s right under § 704 (a)—to be free from retaliation for efforts to aid others asserting Title VII rights— is distinct from the Title VII right implicated in his claim under § 1985 (3), which is the right of women employees not to be discriminated against on the basis of their sex. More nization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 4 See ante, at 372 (“The primary question in the present case, therefore, is whether a person injured by a conspiracy to violate § 704 (a) of Title VII of the Civil Rights Act of 1964 is deprived of 'the equal protection of the laws, or of equal privileges and immunities under the laws’ within the meaning of § 1985 (3)”). See also ante, at 377 (“The only question here, therefore, is whether [the right Novotny claims under §704 (a)] may be asserted within the remedial framework of § 1985 (3) ”). (Emphasis deleted.) 388 OCTOBER TERM, 1978 White, J., dissenting 442U.S. over, that respondent in this case is in a position to assert claims under both § 1985 (3) and § 704 (a) is due solely to the peculiar facts of this case, rather than to any necessary relationship between the two provisions. First, it is of course possible that a person could be injured in the course of a conspiracy to deny § 703 (a) rights—as respondent claims under his § 1985 (3) cause of action—by some means other than retaliatory discrimination prohibited under §704 (a). Second, § 704 (a) itself protects only employees and applicants for employment; others, such as customers or suppliers, retaliated against in the course of a conspiracy to violate § 703 (a) are not expressly protected under any provision of Title VII. Indeed, if respondent in this case had been only a director, rather than both a director and an employee, of the Great American Federal Savings and Loan Association, he apparently would not be able to assert a claim under § 704 (a). Because the existence of a § 704 (a) claim is due entirely to the peculiar facts of this case, I interpret the majority’s broad holding that “deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985 (3)” to preclude respondent from suing under § 1985 (3) not because he coincidentally has a § 704 (a) claim, but because the purpose of the conspiracy allegedly resulting in injury to him was to deny § 703 (a) rights. II The pervasive and essential flaw in the majority’s approach to reconciliation of § 1985 (3) and Title VII proceeds from its characterization of the former statute as solely a “remedial” provision. It is true that the words “equal privileges and immunities under the laws” in § 1985 (3) refer to substantive rights created or guaranteed by other federal law, be it the Constitution or federal statutes other than § 1985 (3);5 and 5 The majority opinion does not reach the issue whether § 1985 (3) encompasses federal statutory rights other than those proceeding in “fundamental” fashion from the Constitution itself. I am not certain in what GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 389 366 White, J., dissenting in this case it is a conspiracy to deny a substantive right created in § 703 (a) of Title VII6 that is part of the basis for respondent’s suit under § 1985 (3).7 However, § 1985 (3), manner the Court conceives of sex discrimination by private parties to proceed from explicit constitutional guarantees. In any event, I need not pursue this issue because I think it clear that § 1985 (3) encompasses all rights guaranteed in federal statutes as well as rights guaranteed directly by the Constitution. As originally introduced, § 2 of the Civil Rights Act of 1871, 17 Stat. 13, encompassed “rights, privileges, or immunities . . . under the Constitution and laws of the United States.” Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871). The substitution of the terms “the equal protection of the laws” and “equal privileges and immunities under the laws,” see n. 1, supra, did not limit the scope of the rights protected but added a requirement of certain “class-based, invidiously discriminatory animus behind the conspirators’ action,” Griffin v. Breckenridge, 403 U. S. 88, 102 (1971). We have repeatedly held that 18 U. S. C. §241 (derived from § 6 of the Civil Rights Act of 1870, 16 Stat. 141), which is the “closest remaining criminal analogue to § 1985 (3),” Griffin v. Breckenridge, supra, at 98, encompasses all federal statutory rights. See United States v. Waddell, 112 U. S. 76 (1884); In re Quarles, 158 U. S. 532 (1895); United States v. Mosley, 238 U. S. 383, 387-388 (1915); United States v. Price, 383 U. S. 787, 800 (1966); United States v. Johnson, 390 U. S. 563, 565-566 (1968). Similarly, we have stated that 42 U. S. C. § 1983, derived from § 1 of the 1871 Civil Rights Act, encompasses federal statutory as well as constitutional rights. Edelman n. Jordan, 415 U. S. 651, 675 (1974); Rosado v. Wyman, 397 U. S. 397 (1970). See generally Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 646 (1979) (White, J., concurring in judgment). 6 Although Griffin v. Breckenridge, supra, at 102 n. 9, did not reach the issue whether discrimination on a basis other than race may be vindicated under § 1985 (3), the Court correctly assumes that the answer to this question is “Yes.” The statute broadly refers to all privileges and immunities, without any limitation as to the class of persons to whom these rights may be granted. It is clear that sex discrimination may be sufficiently invidious to come within the prohibition of § 1985 (3), see infra, at 392. See generally Calif ano v. Goldfarb, 430 U. S. 199 (1977); Reed v. Reed, 404 U. S. 71 (1971); Mathews v. Lucas, 427 U. S. 495, 506 (1976). 7 This is analogous to United States v. Johnson, supra, where the basis for a prosecution under 18 U. S. C. § 241 was a conspiracy to deny the substantive right to equality in public accommodations guaranteed under Title II of the Civil Rights Act of 1964, 42 U. S. C. § 2000a. 390 OCTOBER TERM, 1978 White, J., dissenting 442U.S. unlike a remedial statute such as 42 U. S. C. § 1983,8 does not merely provide a cause of action for persons deprived of rights elsewhere guaranteed. Because § 1985 (3) provides a remedy for any person injured as a result of deprivation of a substantive federal right, it must be seen as itself creating rights in persons other than those to whom the underlying federal right extends. In this case, for instance, respondent is seeking to redress an injury inflicted upon him, which injury is distinct and separate from the injury inflicted upon the female employees whose § 703 (a) rights were allegedly denied. The damages available to a person such as respondent suing under § 1985 (3) are not dependent upon the amount of injury caused persons deprived of “equal privileges and immunities under the laws,” but upon the gravity of the separate injury inflicted upon the person suing. Cf. Sullivan v. Little Hunting Park, 396 U. S. 229, 254-255 (1969) (Harlan, J., dissenting). In this circumstance—where the § 1985 (3) plaintiff is seeking redress for injury caused as a result of the denial of other persons’ Title VII rights—it makes no sense to hold that the remedies provided in Title VII are exclusive, for such a § 1985 (3) plaintiff has no Title VII remedy.9 It thus can hardly be asserted that allowing this § 1985 (3) plaintiff to seek redress of his injury would allow such individual to “completely bypass” the administrative and other “detailed and specific” enforcement mechanisms provided in Title VII, ante, at 375-376. In enacting § 1985 (3), Congress specifically contemplated that persons injured by private conspiracies to deny the fed- 8 See Chapman n. Houston Welfare Rights Organization, 441 U. S., at 602; id., at 623 (Powell, J., concurring); id., at 646 (White, J., concurring in judgment); id., at 672 (Stewart, J., dissenting). 9 Section 706 (b) of Title VII, 42 U. S. C. § 2000e-5 (b), contemplates suit only “on or behalf of . . . person [s] . . . aggrieved” under § 703 or §704. GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 391 366 White, J., dissenting eral rights of others could redress their injuries, quite apart from any redress by those who are the object of the conspiracy. Griffin v. Breckenridge, 403 U. S. 88, 103 (1971). Nothing in the Court’s opinion suggests any warrant for refusal to recognize this cause of action simply because Title VII rights are involved. Ill I am also convinced that persons whose own Title VII rights have allegedly been violated retain the separate right to seek redress under § 1985 (3). In seeking to accommodate the civil rights statutes enacted in the decade after the Civil War and the civil rights statutes of the recent era, the Court has recognized that the later statutes cannot be said to have impliedly repealed the earlier unless there is an irreconcilable conflict between them. Runyon v. McCrary, 427 U. S. 160, 173 n. 10 (1976). See Johnson v. Railway Express Agency, 421 U. S. 454, 457-461 (1975); Sullivan v. Little Hunting Park, supra, at 237-238. Cf. United States v. Johnson, 390 U. S. 563 (1968). Of course, the mere fact of overlap in modes of redressing discrimination does not constitute such irreconcilable conflict. See, e. g., Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974); Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968), and cases cited above. Indeed, we have embraced the notion of an implied repeal only when “ [i] t would require the suspension of disbelief to ascribe to Congress the design” to allow vindication under a Reconstruction statute of a right also subject to redress under one of the modern Civil Rights Acts. Brown v. GSA, 425 U. S. 820, 833 (1976). It is clear that such overlap as may exist between Title VII and § 1985 (3) occurs only because the latter is directed at a discrete and particularly disfavored form of discrimination, and examination of § 1985 (3) shows that it constitutes a compatible and important supplement to the more general prohibition and remedy provided in Title VII. Thus, while it may be that in many cases persons seeking redress under 392 OCTOBER TERM, 1978 White, J., dissenting 442 U. S. § 1985 (3) also have a claim directly under Title VII,10 this is not sufficient reason to deprive those persons of the right to sue for the compensatory and punitive damages to which they are entitled under the post-Civil War statute.11 As previously indicated, the majority’s willingness to infer a silent repeal of § 1985 (3) is based on its view that the provision only gives a remedy to redress deprivations prohibited by other federal law. But this narrow view of § 1985 (3) is incorrect even as to § 1985 (3) plaintiffs themselves denied Title VII rights. Because only conspiracies to deprive persons of federal rights are subject to redress under § 1985 (3), that statute, like 18 U. S. C. § 241,12 is itself a prohibition separate and apart from the prohibitions stated in the underlying provisions of federal law. Moreover, only those deprivations imbued with “invidiously discriminatory motivation” amounting to “class-based . . . animus,” Griffin v. Breckenridge, supra, at 102, are encompassed by § 1985 (3). Viewed in this manner, the right guaranteed by § 1985 (3) is the right not to be subjected to an invidious conspiracy to deny other federal rights. This discrete category of deprivations to which § 1985 (3) is directed stands in sharp contrast to the broad prohibition on discrimination provided in § 703 (a) of Title VII, see n. 2, supra; Griggs v. Duke Power Co., 401 U. S. 424 (1971). If, as the majority suggests, it would not recognize an implied repeal of an earlier statute granting a separate but overlapping right, then it should not do so in this case; for respondent has alleged a violation of § 703 (a) in a manner independently prohibited by § 1985 (3), and under the 10 It is, of course, theoretically possible that an individual could be injured by a conspiracy to violate his Title VII rights even though that conspiracy was never brought to fruition and thus there was no violation of Title VII itself. 11 Title VII authorizes only equitable relief, including backpay for a period not to exceed two years. See § 706 (g), 42 U. S. C. § 2000e-5 (g). 12 See nn. 5, 7, supra. GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 393 366 White, J., dissenting majority’s approach should be allowed to redress both deprivations. Even to the extent that § 1985 (3) is properly characterized as a “remedial” statute, there is no reason for holding it inapplicable to redress deprivations of Title VII rights. The majority’s apparent assumption that this Court has greater freedom in inferring repeal of remedial statutes than it does of statutes guaranteeing substantive rights has no support in our previous cases. The one instance in which we held Title Vil’s remedies to be exclusive, Brown v. GSA, supra, was required because of the unmistakable legislative intent that alternative modes of redress were not to be available for a grievance relating to discrimination in federal employment.13 Nor has the majority’s right/remedy distinction been enunciated in any of our cases recognizing that Congress did not intend Title VII to pre-empt all “alternative means to redress individual grievances,” Runyon v. McCrary, supra, at 174 n. 11, quoting 118 Cong. Rec. 3371 (1972) (Sen. Wil 13 The Court asserts, ante, at 378, that its holding is required for “the same basic reasons that underlay the Court’s decision in Brown n. GSA,” as reinforced by the consideration that § 1985 (3) is assertedly purely remedial. But the majority opinion utterly fails to explain in what way the basis for the decision in Brown—clear congressional intent—is applicable in this case. Brown concerned the peculiar legislative context in which the extension of Title VII to federal employment was enacted, stressing that Congress was under the impression that there was at that time (1972) no other effective judicial remedy for federal discriminatory action. By contrast, this case concerns private discrimination which, of course, has been encompassed by Title VII since the original enactment of the Civil Rights Act in 1964. Brown expressly reaffirmed the conclusion of our previous cases that with respect to private employment, “the explicit legislative history of the 1964 Act . . . ‘manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes,’ ” Brown v. GSA, 425 IT. S., at 833, quoting Johnson v. Railway Express Agency, 421 U. S. 454, 459 (1975); Alexander v. Gardner-Denver Co., 415 U. S. 36, 48 (1974). 394 OCTOBER TERM, 1978 White, J., dissenting 442U.S. liams) 3* With respect to remedies as well as with respect to substantive rights, an implied repeal of post-Civil War civil rights legislation occurs only when the legislative scheme of the new statute is incompatible with the old. In this case, Title VII and the remedial aspect of § 1985 (3) are entirely consistent, the latter clearly supplementing the former. Title VII operates both to create new federal rights and to provide a general remedy for the denial thereof, while § 1985 (3) operates to provide a separate remedy when the manner of denial is especially invidious and threatening.15 The Reconstruction Congress that enacted § 1985 (3) believed that an especial danger was posed by persons acting with invidious animus and acting in concert—thereby compounding their power and resources16—to deny federal rights. Because such private conspiratorial action, the paradigm of which was the activity of the Ku Klux Klan, constituted a serious threat to civil rights and civil order,17 it was deemed necessary to “giv[e] a civil action to anybody who shall be injured by [such] conspiracy.”18 Thus, though it may be that those 14 See cases cited in n. 13, supra; Runyon n. McCrary, 427 U. S., at 174-175. 15 Because § 1985 (3) refers to all federal rights, it is irrelevant that the particular right sought to be vindicated thereunder was not in existence at the time the cause of action was enacted. Cf. Hagans n. Lavine, 415 U. S. 528 (1974); Rosado v. Wyman, 397 U. S. 397 (1970) (cause of action under § 1983 to vindicate right under subsequently enacted statute); United States v. Johnson, 390 U. S. 563 (1968) (prosecution under 18 U. S. C. § 241 for violation of subsequently enacted statute); see also United States n. Waddell, 112 U. S. 76 (1884). 16 Cf. Callanan n. United States, 364 U. S. 587, 593-594 (1961); Krule-witch y. United States, 336 U. S. 440, 448-449 (1949) (Jackson, J., concurring); Pinkerton y. United States, 328 U. S. 640, 654 (1946). 17 See Monell v. New York City Dept, of Social Services, 436 U. S. 658, 665, and n. 11 (1978); Griffin v. Breckenridge, 403 U. S., at 99-102. 18 Cong. Globe, 42d Cong., 1st Sess., 568 (1871) (Sen. Edmunds). The passage from which this remark is excerpted is also instructive: “The second section, it will be observed, only provides for the punish- GREAT AMERICAN FED. S. & L. ASSN. v. NOVOTNY 395 366 White, J., dissenting who conspire with invidious motivation to violate § 703 (a) may in many cases also be reached under Title VII itself, there is no basis for inferring a silent repeal19 of the legislative judgment that the distinct nature of the deprivation to which § 1985 (3) is directed warrants separate and more complete relief, and, accordingly, the Court has an obligation to honor the terms of that statute.20 ment of a conspiracy. It does not provide for the punishment of any act done in pursuance of the conspiracy, but only a conspiracy to deprive citizens of the United States, in the various ways named, of the rights which the Constitution and the laws of the United States made pursuant to it give to them; that is to say, conspiracies to overthrow the Government, conspiracies to impede the course of justice, conspiracies to deprive people of the equal protection of the laws, whatever those laws may be. It does not provide, as I say, for any punishment for any act which these conspirators shall do in furtherance of the conspiracy. It punishes the conspiracy alone, leaving the States, if they see fit, to punish the acts and crimes which may be committed in pursuance of the conspiracy. I confess that I thought myself it was desirable, to make the bill complete, to make it completely logical and completely effective, that a section should have been added providing not only for punishing the conspiracy, but providing also in the same way for punishing any act done in pursuance of the conspiracy. This section gives a civil action to anybody who shall be injured by the conspiracy, but does not punish an act done as a crime.” Ibid. 19 The majority recognizes that Congress has explicitly noted that Title VII does not pre-empt redress of grievances under 42 U. S. C. § 1981 and 42 U. S. C. § 1983, ante, at 377 n. 21. See H. R. Rep. No. 92-238, p. 19 (June 2, 1971); S. Rep. No. 92-415, p. 24 (Oct. 28, 1971). This Court did not resurrect § 1985 (3), Griffin n. Breckenridge, supra (June 7, 1971), from its interment under Collins n. Hardyman, 341 U. S. 651 (1951), until one week after the House Report was filed; neither Report mentions § 1985 (3), nor does the Senate Report mention Griffin. 20 Petitioners argue that neither the Thirteenth Amendment, the Fourteenth Amendment, nor the Commerce Clause grants Congress authority to reach private conspiracies to deny Title VII rights such as are involved in this case. But petitioners do not dispute that the Commerce Clause is the source of authority for the enactment of Title VII, and Congress needs no additional grant of authority to prohibit, and provide a remedy for, invidious conspiracies to deny such rights. 396 OCTOBER TERM, 1978 White, J., dissenting 442U.S. Because respondent exhausted his administrative remedies under Title VII, see ante, at 369, there is no need in this case to reach the question whether persons whose Title VII rights have been violated may bring suit directly in federal court alleging an invidious conspiracy to deny those Title VII rights. I note, however, that the majority’s desire not to undercut the administrative enforcement scheme, including the encouragement of voluntary conciliation, provided by Title VII would be completely fulfilled by insisting that § 1985 (3) plaintiffs exhaust whatever Title VII remedies they may have. The concerns expressed in the majority opinion do not provide a basis for precluding redress altogether under § 1985 (3). SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS 397 Syllabus SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 78-711. Argued April 23, 1979—Decided June 11, 1979 Respondent, who suffers from a serious hearing disability and who seeks to be trained as a registered nurse, was denied admission to the nursing program of petitioner Southeastern Community College, a state institution that receives federal funds. An audiologist’s report indicated that even with a hearing aid respondent cannot understand speech directed to her except through lipreading, and petitioner rejected respondent’s application for admission because it believed her hearing disability made it impossible for her to participate safely in the normal clinical training program or to care safely for patients. Respondent then filed suit against petitioner in Federal District Court, alleging, inter alia, a violation of § 504 of the Rehabilitation Act of 1973, which prohibits discrimination against an “otherwise qualified handicapped individual” in federally funded programs “solely by reason of his handicap.” The District Court entered judgment in favor of petitioner, confirming the audiologist’s findings and concluding that respondent’s handicap prevented her from safely performing in both her training program and her proposed profession. On this basis, the court held that respondent was not an “otherwise qualified handicapped individual” protected by § 504 and that the decision to exclude her was not discriminatory within the meaning of § 504. Although not disputing the District Court’s factfindings, the Court of Appeals reversed, holding that in light of intervening regulations of the Department of Health, Education, and Welfare (HEW), §504 required petitioner to reconsider respondent’s application for admission without regard to her hearing ability, and that in determining whether respondent was “otherwise qualified,” petitioner must confine its inquiry to her “academic and technical qualifications.” The Court of Appeals also suggested that § 504 required “affirmative conduct” by petitioner to modify its program to accommodate the disabilities of applicants. Held: There was no violation of § 504 when petitioner concluded that respondent did not qualify for admission to its program. Nothing in the language or history of § 504 limits the freedom of an educational institution to require reasonable physical qualifications for admission to 398 OCTOBER TERM, 1978 Syllabus 442 U. S. a clinical training program. Nor has there been any showing in this case that any action short of a substantial change in petitioner’s program would render unreasonable the qualifications it imposed. Pp. 405-414. (a) The terms of § 504 indicate that mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context, but do not mean that a person need not meet legitimate physical requirements in order to be “otherwise qualified.” An otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap. HEW’s regulations reinforce, rather than contradict, this conclusion. Pp. 405-407. (b) Section 504 does not compel petitioner to undertake affirmative action that would dispense with the need for effective oral communication, such as by giving respondent individual supervision whenever she attends patients directly or by dispensing with certain required courses for respondent and training her to perform some but not all of the tasks a registered nurse is licensed to perform. On the record, it appears unlikely that respondent could benefit from any affirmative action that HEW regulations reasonably could be interpreted as requiring with regard to “modifications” of postsecondary educational programs to accommodate handicapped persons and the provision of “auxiliary aids” such as sign-language interpreters. Moreover, an interpretation of the regulations that required the extensive modifications necessary to include respondent in the nursing program would raise grave doubts about their validity. Neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative-action obligation on all recipients of federal funds, and thus even if HEW has attempted to create such an obligation itself, it lacks the authority to do so. Pp. 407-412. (c) The line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons will not always be clear, and situations may arise where a refusal to modify an existing program to accommodate the needs of a disabled person amounts to discrimination against the handicapped. In this case, however, petitioner’s unwillingness to make major adjustments in its nursing program does not constitute such discrimination. Uncontroverted testimony established that the purpose of petitioner’s program was to train persons who could serve the nursing profession in all customary ways, and this type of purpose, far from reflecting any animus against handicapped individuals, is shared by many if not most of the institutions that train persons to render professional service. Section 504 imposes no requirement upon an educational institution to lower or to effect substantial SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS 399 397 Syllabus modifications of standards to accommodate a handicapped person. Pp. 412-413. 574 F. 2d 11'58, reversed and remanded. Powell, J., delivered the opinion for a unanimous Court. Eugene Gressman argued the cause for petitioner. With him on the briefs was Edward L. Williamson. Marc P. Charmatz argued the cause for respondent. With him on the brief were Seymour DuBow, Philip A. Diehl, and Warren L. Pate* *A brief of amici curiae urging reversal was filed by the Attorneys General for their respective States as follows: Francis X. Bellotti for Massachusetts, J. Marshall Coleman for Virginia, Robert K. Corbin for Arizona, Carl R. Ajello for Connecticut, Richard S. Gebelein for Delaware, Jim Smith for Florida, Arthur K. Bolton for Georgia, Wayne Minami for Hawaii, David H. Leroy for Idaho, Theodore L. Sendak for Indiana, Tom Miller for Iowa, Robert T. Stephan for Kansas, William J. Guste, Jr., for Louisiana, Stephen H. Sachs for Maryland, A. F. Summer for Mississippi, John D. Asher oft for Missouri, Michael T. Greely for Montana, Paul L. Douglas for Nebraska, Thomas D. Rath for New Hampshire, John J. Degnan for New Jersey, Robert Abrams for New York, Rufus L. Edmisten for North Carolina, Allen I. Olson for North Dakota, William J. Brown for Ohio, Jan Eric Cartwright for Oklahoma, James A. Redden for Oregon, Daniel R. McLeod for South Carolina, William M. Leech, Jr., for Tennessee, Mark White for Texas, Slade Gorton for Washington, Chauncey H. Browning, Jr., for West Virginia, and Bronson C. LaFollette for Wisconsin. Briefs of amici curiae urging reversal were filed by Joseph A. Keyes, Jr., for the Association of American Medical Colleges; by Daniel I. Sherry for the Board of Trustees of Prince George’s Community College; by Susan A. Cahoon, William A. Wright, and Douglas S. McDowell for the Equal Employment Advisory Council; and by Richard A. Fulton and David M. Dorsen for the National Institute for Independent Colleges and Universities et al. Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Assistant Attorney General Days, Brian K. Landsberg, Jessica Dunsay Silver, and Vincent F. O’Rourke, Jr., for the United States; by George Deukmejian, Attorney General, and Katherine E. Stone and G. R. Overton, Deputy Attorneys General, for the State of California; by Frank 400 OCTOBER TERM, 1978 Opinion of the Court 442U.S. Mr. Justice Powell delivered the opinion of the Court. This case presents a matter of first impression for this Court: Whether § 504 of the Rehabilitation Act of 1973, which prohibits discrimination against an “otherwise qualified handicapped individual” in federally funded programs “solely by reason of his handicap,” forbids professional schools from imposing physical qualifications for admission to their clinical training programs. I Respondent, who suffers from a serious hearing disability, seeks to be trained as a registered nurse. During the 1973-1974 academic year she was enrolled in the College Parallel program of Southeastern Community College, a state institution that receives federal funds. Respondent hoped to progress to Southeastern’s Associate Degree Nursing program, completion of which would make her eligible for state certification as a registered nurse. In the course of her application to the nursing program, she was interviewed by a member of the nursing faculty. It became apparent that respondent had difficulty understanding questions asked, and on inquiry she acknowledged a history of hearing problems and dependence on a hearing aid. She was advised to consult an audiologist. J. Laski and Michael Churchill for the American Coalition of Citizens with Disabilities et al.; by Stanley Fleishman for the California Association for the Physically Handicapped et al.; by Ann Fagan Ginger for the Center for Independent Living et al.; by Douglas L. Parker for the Institute for Public Representation et al.; and by John E. Kirklin for the New York City Council of Organizations Serving the Deaf et al. Briefs of amici curiae were filed by Edward G. Biester, Jr., Attorney General, and Robert E. Rains, Allen C. Warshaw, and J. Justin Blewitt, Jr., Deputy Attorneys General, for Pennsylvania; by John D. Lane for the American Association for the Advancement of Science et al.; by Fred Okrand and Sam Rosenwein for the American Civil Liberties Union et al.; by Sheldon Elliot Steinbach for the American Council on Education; and by Elizabeth C. Bunting for the Board of Governors of the University of North Carolina. SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS 401 397 Opinion of the Court On the basis of an examination at Duke University Medical Center, respondent was diagnosed as having a “bilateral, sensori-neural hearing loss.” App. 127a. A change in her hearing aid was recommended, as a result of which it was expected that she would be able to detect sounds “almost as well as a person would who has normal hearing.” Id., at 127ar-128a. But this improvement would not mean that she could discriminate among sounds sufficiently to understand normal spoken speech. Her lipreading skills would remain necessary for effective communication: “While wearing the hearing aid, she is well aware of gross sounds occurring in the listening environment. However, she can only be responsible for speech spoken to her, when the talker gets her attention and allows her to look directly at the talker.” Id., at 128a. Southeastern next consulted Mary McRee, Executive Director of the North Carolina Board of Nursing. On the basis of the audiologist’s report, McRee recommended that respondent not be admitted to the nursing program. In McRee’s view, respondent’s hearing disability made it unsafe for her to practice as a nurse.1 In addition, it would be impossible for respondent to participate safely in the normal clinical training program, and those modifications that would be necessary to enable safe participation would prevent her from 1 McRee also wrote that respondent’s hearing disability could preclude her practicing safely in “any setting” allowed by “a license as Licensed] P[ractical] N[urse].” App. 132a. Respondent contends that inasmuch as she already was licensed as a practical nurse, McRee’s opinion was inherently incredible. But the record indicates that respondent had “not worked as a licensed practical nurse except to do a little bit of private duty,” id., at 32a, and had not done that for several years before applying to Southeastern. Accordingly, it is at least possible to infer that respondent in fact could not work safely as a practical nurse in spite of her license to do so. In any event, we note the finding of the District Court that “a Licensed Practical Nurse, unlike a Licensed Registered Nurse, operates under constant supervision and is not allowed to perform medical tasks which require a great degree of technical sophistication.” 424 F. Supp. 1341, 1342-1343 (EDNC 1976). 402 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. realizing the benefits of the program: “To adjust patient learning experiences in keeping with [respondent’s] hearing limitations could, in fact, be the same as denying her full learning to meet the objectives of your nursing programs.” Id., at 132a-133a. After respondent was notified that she was not qualified for nursing study because of her hearing disability, she requested reconsideration of the decision. The entire nursing staff of Southeastern was assembled, and McRee again was consulted. McRee repeated her conclusion that on the basis of the available evidence, respondent “has hearing limitations which could interfere with her safely caring for patients.” 7c?., at 139a. Upon further deliberation, the staff voted to deny respondent admission. Respondent then filed suit in the United States District Court for the Eastern District of North Carolina, alleging both a violation of § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U. S. C. § 794 (1976 ed., Supp. Ill),2 2 The statute, as set forth in 29 U. S. C. §794 (1976 ed., Supp. Ill), provides in full: “No otherwise qualified handicapped individual in the United States, as defined in section 706 (7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head oj each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.” The italicized portion of the section was added by § 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, 92 Stat. 2982. Respondent asserts no claim under this portion of the statute. SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS 403 397 Opinion of the Court and a denial of equal protection and due process. After a bench trial, the District Court entered judgment in favor of Southeastern. 424 F. Supp. 1341 (1976). It confirmed the findings of the audiologist that even with a hearing aid respondent cannot understand speech directed to her except through lipreading, and further found: “[I]n many situations such as an operation room intensive care unit, or post-natal care unit, all doctors and nurses wear surgical masks which would make lipreading impossible. Additionally, in many situations a Registered Nurse would be required to instantly follow the physician’s instructions concerning procurement of various types of instruments and drugs where the physician would be unable to get the nurse’s attention by other than vocal means.” Id., at 1343. Accordingly, the court concluded: “[Respondent’s] handicap actually prevents her from safely performing in both her training program and her proposed profession. The trial testimony indicated numerous situations where [respondent’s] particular disability would render her unable to function properly. Of particular concern to the court in this case is the potential of danger to future patients in such situations.” Id., at 1345. Based on these findings, the District Court concluded that respondent was not an “otherwise qualified handicapped individual” protected against discrimination by § 504. In its view, “[o]therwise qualified, can only be read to mean otherwise able to function sufficiently in the position sought in spite of the handicap, if proper training and facilities are suitable and available.” 424 F. Supp., at 1345. Because respondent’s disability would prevent her from functioning “sufficiently” in Southeastern’s nursing program, the court 404 OCTOBER TERM, 1078 Opinion of the Court 442U.S. held that the decision to exclude her was not discriminatory within the meaning of § 504.3 On appeal, the Court of Appeals for the Fourth Circuit reversed. 574 F. 2d 1158 (1978). It did not dispute the District Court’s findings of fact, but held that the court had misconstrued § 504. In light of administrative regulations that had been promulgated while the appeal was pending, see 42 Fed. Reg. 22676 (1977),4 the appellate court believed that § 504 required Southeastern to “reconsider plaintiff’s application for admission to the nursing program without regard to her hearing ability.” 574 F. 2d, at 1160. It concluded that the District Court had erred in taking respondent’s handicap into account in determining whether she was “otherwise qualified” for the program, rather than confining its inquiry to her “academic and technical qualifications.” Id., at 1161. The Court of Appeals also suggested that § 504 required “affirmative conduct” on the part of Southeastern to modify its program to accommodate the disabilities of applicants, “even when such modifications become expensive.” 574 F. 2d, at 1162. Because of the importance of this issue to the many institutions covered by § 504, we granted certiorari. 439 U. S. 1065 (1979). We now reverse.5 3 The District Court also dismissed respondent’s constitutional claims. The Court of Appeals affirmed that portion of the order, and respondent has not sought review of this ruling. 4 Relying on the plain language of the Act, the Department of Health, Education, and Welfare (HEW) at first did not promulgate any regulations to implement § 504. In a subsequent suit against HEW, however, the United States District Court for the District of Columbia held that Congress had intended regulations to be issued and ordered HEW to do so. Cherry v. Mathews, 419 F. Supp. 922 (1976). The ensuing regulations currently are embodied in 45 CFR pt. 84 (1978). 5 In addition to challenging the construction of § 504 by the Court of Appeals, Southeastern also contends that respondent cannot seek judicial relief for violations of that statute in view of the absence of any express private right of action. Respondent asserts that whether or not §504 SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS 405 397 Opinion of the Court II As previously noted, this is the first case in which this Court has been called upon to interpret § 504. It is elementary that “[t]he starting point in every case involving construction of a statute is the language itself.” Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring) ; see Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U. S. 322, 330 (1978); Santa Fe Industries, Inc. n. Green, 430 U. S. 462, 472 (1977). Section 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate. Instead, it requires only that an “otherwise qualified handicapped individual” not be excluded from participation in a federally funded program “solely by reason of his handicap,” indicating only that mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context.6 provides a private action, she may maintain her suit under 42 U. S. C. § 1983. In light of our disposition of this case on the merits, it is unnecessary to address these issues and we express no views on them. See Norton n. Mathews, 427 U. S. 524, 529-531 (1976) ; Moor v. County of Alameda, 411 U. S. 693, 715 (1973); United States n. Augenblick, 393 U. S. 348, 351-352 (1969). 6 The Act defines “handcapped individual” as follows: “The term ‘handicapped individual’ means any individual who (A) has a physical or mental disability which for such individual constitutes or results in a substantial handicap to employment and (B) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services provided pursuant to subchapters I and III of this chapter. For the purposes of subchapters IV and V of this chapter, such term means any person who (A) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (B) has a record of such an impairment, or (C) is regarded as having such an impairment.” § 7 (6) of the Rehabilitation Act of 1973, 87 Stat. 361, as amended, 88 Stat. 1619, 89 Stat. 2-5, 29 U. S. C. § 706 (6). This definition comports with our understanding of § 504. A person who 406 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. The court below, however, believed that the “otherwise qualified” persons protected by § 504 include those who would be able to meet the requirements of a particular program in every respect except as to limitations imposed by their handicap. See 574 F. 2d, at 1160. Taken literally, this holding would prevent an institution from taking into account any limitation resulting from the handicap, however disabling. It assumes, in effect, that a person need not meet legitimate physical requirements in order to be “otherwise qualified.” We think the understanding of the District Court is closer to the plain meaning of the statutory language. An otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap. The regulations promulgated by the Department of HEW to interpret § 504 reinforce, rather than contradict, this conclusion. According to these regulations, a “[q]ualified handicapped person” is, “[w]ith respect to postsecondary and vocational education services, a handicapped person who meets the academic and technical standards requisite to admission or participation in the [school’s] education program or activity . . . .” 45 CFR § 84.3 (k)(3) (1978). An explanatory note states: “The term ‘technical standards’ refers to all nonacademic admissions criteria that are essential to participation in the program in question.” 45 CFR pt. 84, App. A, p. 405 (1978) (emphasis supplied). has a record of, or is regarded as having, an impairment may at present have no actual incapacity at all. Such a person would be exactly the kind of individual who could be “otherwise qualified” to participate in covered programs. And a person who suffers from a limiting physical or mental impairment still may possess other abilities that permit him to meet the requirements of various programs. Thus, it is clear that Congress included among the class of “handicapped” persons covered by § 504 a range of individuals who could be “otherwise qualified.” See S. Rep. No. 93-1297, pp. 38-39 (1974). SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS 407 397 Opinion of the Court A further note emphasizes that legitimate physical qualifications may be essential to participation in particular programs.7 We think it clear, therefore, that HEW interprets the “other” qualifications which a handicapped person may be required to meet as including necessary physical qualifications. Ill The remaining question is whether the physical qualifications Southeastern demanded of respondent might not be necessary for participation in its nursing program. It is not open to dispute that, as Southeastern’s Associate Degree Nursing program currently is constituted, the ability to understand speech without reliance on lipreading is necessary for patient safety during the clinical phase of the program. As the District Court found, this ability also is indispensable for many of the functions that a registered nurse performs. Respondent contends nevertheless that § 504, properly interpreted, compels Southeastern to undertake affirmative action that would dispense with the need for effective oral communication. First, it is suggested that respondent can be given individual supervision by faculty members whenever she attends patients directly. Moreover, certain required courses might be dispensed with altogether for respondent. It is not 7 The note states: “Paragraph (k) of § 84.3 defines the term ‘qualified handicapped person.’ Throughout the regulation, this term is used instead of the statutory term ‘otherwise qualified handicapped person.’ The Department believes that the omission of the word ‘otherwise’ is necessary in order to comport with the intent of the statute because, read literally, ‘otherwise’ qualified handicapped persons include persons who are qualified except for their handicap, rather than in spite of their handicap. Under such a literal reading, a blind person possessing all the qualifications for driving a bus except sight could be said to be ‘otherwise qualified’ for the job of driving. Clearly, such a result was not intended by Congress. In all other respects, the terms ‘qualified’ and ‘otherwise qualified’ are intended to be interchangeable.” 45 CFR pt. 84, App. A, p. 405 (1978). 408 OCTOBER TERM, 1978 Opinion of the Court 442U.S. necessary, she argues, that Southeastern train her to undertake all the tasks a registered nurse is licensed to perform. Rather, it is sufficient to make § 504 applicable if respondent might be able to perform satisfactorily some of the duties of a registered nurse or to hold some of the positions available to a registered nurse.8 Respondent finds support for this argument in portions of the HEW regulations discussed above. In particular, a provision applicable to postsecondary educational programs requires covered institutions to make “modifications” in their programs to accommodate handicapped persons, and to provide “auxiliary aids” such as sign-language interpreters.9 Respondent 8 The court below adopted a portion of this argument: “[Respondent’s] ability to read lips aids her in overcoming her hearing disability; however, it was argued that in certain situations such as in an operating room environment where surgical masks are used, this ability would be unavailing to her. “Be that as it may, in the medical community, there does appear to be a number of settings in which the plaintiff could perform satisfactorily as an RN, such as in industry or perhaps a physician’s office. Certainly [respondent] could be viewed as possessing extraordinary insight into the medical and emotional needs of those with hearing disabilities. “If [respondent] meets all the other criteria for admission in the pursuit of her RN career, under the relevant North Carolina statutes, N. C. Gen. Stat. §§ 90-158, et seq., it should not be foreclosed to her simply because she may not be able to function effectively in all the roles which registered nurses may choose for their careers.” 574 F. 2d 1158, 1161 n. 6 (1978). 9 This regulation provides: “(a) Academic requirements. A recipient [of federal funds] to which this subpart applies shall make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of handicap, against a qualified handicapped applicant or student. Academic requirements that the recipient can demonstrate are essential to the program of instruction being pursued by such student or to any directly related licensing requirement will not be regarded as discriminatory within the meaning of this section. Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS 409 397 Opinion of the Court argues that this regulation imposes an obligation to ensure full participation in covered programs by handicapped individuals and, in particular, requires Southeastern to make the kind of adjustments that would be necessary to permit her safe participation in the nursing program. We note first that on the present record it appears unlikely respondent could benefit from any affirmative action that the regulation reasonably could be interpreted as requiring. Section 84.44 (d)(2), for example, explicitly excludes “devices or services of a personal nature” from the kinds of auxiliary aids a school must provide a handicapped individual. Yet the only evidence in the record indicates that nothing less than close, individual attention by a nursing instructor would be sufficient to ensure patient safety if respondent took part in the clinical phase of the nursing program. See 424 F. Supp., at 1346. Furthermore, it also is reasonably clear that § 84.44 (a) does not encompass the kind of curricular changes that would be necessary to accommodate respondent in the nursing program. In light of respondent’s inability to function in clinical courses without close supervision, Southeastern, with prudence, could courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted. “(d) Auxiliary aids. (1) A recipient to which this subpart applies shall take such steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under the education program or activity operated by the recipient because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills. “(2) Auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions. Recipients need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature.” 45 CFR § 84.44 (1978). 410 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. allow her to take only academic classes. Whatever benefits respondent might realize from such a course of study, she would not receive even a rough equivalent of the training a nursing program normally gives. Such a fundamental alteration in the nature of a program is far more than the “modification” the regulation requires. Moreover, an interpretation of the regulations that required the extensive modifications necessary to include respondent in the nursing program would raise grave doubts about their validity. If these regulations were to require substantial adjustments in existing programs beyond those necessary to eliminate discrimination against otherwise qualified individuals, they would do more than clarify the meaning of § 504. Instead, they would constitute an unauthorized extension of the obligations imposed by that statute. The language and structure of the Rehabilitation Act of 1973 reflect a recognition by Congress of the distinction between the evenhanded treatment of qualified handicapped persons and affirmative efforts to overcome the disabilities caused by handicaps. Section 501 (b), governing the employment of handicapped individuals by the Federal Government, requires each federal agency to submit “an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals . . . .” These plans “shall include a description of the extent to which and methods whereby the special needs of handicapped employees are being met.” Similarly, § 503 (a), governing hiring by federal contractors, requires employers to “take affirmative action to employ and advance in employment qualified handicapped individuals . . . .” The President is required to promulgate regulations to enforce this section. Under § 501 (c) of the Act, by contrast, state agencies such as Southeastern are only “encourage [d] ... to adopt and implement such policies and procedures.” Section 504 does not refer at all to affirmative action, and except as it applies to SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS 411 397 Opinion of the Court federal employers it does not provide for implementation by administrative action. A comparison of these provisions demonstrates that Congress understood accommodation of the needs of handicapped individuals may require affirmative action and knew how to provide for it in those instances where it wished to do so.10 Although an agency’s interpretation of the statute under which it operates is entitled to some deference, “this deference is constrained by our obligation to honor the clear meaning of a statute, as revealed by its language, purpose, and history.” Teamsters v. Daniel, 439 U. S. 551, 566 n. 20 (1979). Here, neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative-action obligation on all recipients of federal funds.11 Accordingly, we hold that even if 10 Section 115(a) of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 added to the 1973 Act a section authorizing grants to state units for the purpose of providing “such information and technical assistance (including support personnel such as interpreters for the deaf) as may be necessary to assist those entities in complying with this Act, particularly the requirements of section 504.” 92 Stat. 2971, 29 U. S. C. §775 (a) (1976 ed., Supp. III). This provision recognizes that on occasion the elimination of discrimination might involve some costs; it does not imply that the refusal to undertake substantial changes in a program by itself constitutes discrimination. Whatever effect the availability of these funds might have on ascertaining the existence of discrimination in some future case, no such funds were available to Southeastern at the time respondent sought admission to its nursing program. 11 The Government, in a brief amicus curiae in support of respondent, cites a Report of the Senate Committee on Labor and Public Welfare on the 1974 amendments to the 1973 Act and several statements by individual Members of Congress during debate on the 1978 amendments, some of which indicate a belief that § 504 requires affirmative action. See Brief for United States as Amicus Curiae 44-50. But these isolated statements by individual Members of Congress or its committees, all made after the enactment of the statute under consideration, cannot substitute for a clear expression of legislative intent at the time of enactment. Quern v. Mandley, 436 U. S. 725, 736 n. 10 (1978); Los Angeles Dept, of 412 OCTOBER TERM, 1978 Opinion of the Court 442U.S. HEW has attempted to create such an obligation itself, it lacks the authority to do so. IV We do not suggest that the line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons always will be clear. It is possible to envision situations where an insistence on continuing past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of the opportunity to participate in a covered program. Technological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise to qualify them for some useful employment. Such advances also may enable attainment of these goals without imposing undue financial and administrative burdens upon a State. Thus, situations may arise where a Water & Power v. Manhart, 435 U. S. 702, 714 (1978). Nor do these comments, none of which represents the will of Congress as a whole, constitute subsequent “legislation” such as this Court might weigh in construing the meaning of an earlier enactment. Cf. Red Lion Broadcasting Co. n. FCC, 395 U. S. 367, 380-381 (1969). The Government also argues that various amendments to the 1973 Act contained in the Rehabilitation Act Amendments of 1978 further reflect Congress’ approval of the affirmative-action obligation created by HEW’s regulations. But the amendment most directly on point undercuts this position. In amending § 504, Congress both extended that section’s prohibition of discrimination to “any program or activity conducted by any Executive agency or by the United States Postal Service” and authorized administrative regulations to implement only this amendment. See n. 2, supra. The fact that no other regulations were mentioned supports an inference that no others were approved. Finally, we note that the assertion by HEW of the authority to promulgate any regulations under §504 has been neither consistent nor longstanding. For the first three years after the section was enacted, HEW maintained the position that Congress had not intended any regulations to be issued. It altered its stand only after having been enjoined to do so. See n. 4, supra. This fact substantially diminishes the deference to be given to HEW’s present interpretation of the statute. See General Electric Co. n. Gilbert, 429 U. S. 125, 143 (1976). SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS 413 397 Opinion of the Court refusal to modify an existing program might become unreasonable and discriminatory. Identification of those instances where a refusal to accommodate the needs of a disabled person amounts to discrimination against the handicapped continues to be an important responsibility of HEW. In this case, however, it is clear that Southeastern’s unwillingness to make major adjustments in its nursing program does not constitute such discrimination. The uncontroverted testimony of several members of Southeastern’s staff and faculty established that the purpose of its program was to train persons who could serve the nursing profession in all customary ways. See, e. g., App. 35a, 52a, 53a, 71a, 74a. This type of purpose, far from reflecting any animus against handicapped individuals, is shared by many if not most of the institutions that train persons to render professional service. It is undisputed that respondent could not participate in Southeastern’s nursing program unless the standards were substantially lowered. Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person.12 12 Respondent contends that it is unclear whether North Carolina law requires a registered nurse to be capable of performing all functions open to that profession in order to obtain a license to practice, although McRee, the Executive Director of the State Board of Nursing, had informed Southeastern that the law did so require. See App. 138a-139a. Respondent further argues that even if she is not capable of meeting North Carolina’s present licensing requirements, she still might succeed in obtaining a license in another jurisdiction. Respondent’s argument misses the point. Southeastern’s program, structured to train persons who will be able to perform all normal roles of a registered nurse, represents a legitimate academic policy, and is accepted by the State. In effect, it seeks to ensure that no graduate will pose a danger to the public in any professional role in which he or she might be cast. Even if the licensing requirements of North Carolina or some other State are less demanding, nothing in the Act requires an educational institution to lower its standards. 414 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. One may admire respondent’s desire and determination to overcome her handicap, and there well may be various other types of service for which she can qualify. In this case, however, we hold that there was no violation of § 504 when Southeastern concluded that respondent did not qualify for admission to its program. Nothing in the language or history of § 504 reflects an intention to limit the freedom of an educational institution to require reasonable physical qualifications for admission to a clinical training program. Nor has there been any showing in this case that any action short of a substantial change in Southeastern’s program would render unreasonable the qualifications it imposed. V Accordingly, we reverse the judgment of the court below, and remand for proceedings consistent with this opinion. So ordered. MOORE v. SIMS 415 Syllabus MOORE ET AL. V. SIMS ET trx. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS No. 78-6. Argued February 26, 1979—Decided June 11,1979 When school authorities reported suspected abuse of one of adult appellees’ children to the Texas Department of Human Resources (Department), the Department took temporary custody of all three of appellees’ minor children and instituted suit in the Harris County, Tex., Juvenile Court for their emergency protection under Title 2 of the Texas Family Code. The Juvenile Court entered an emergency ex parte order giving temporary custody to the Department. Appellees then filed a motion to modify the ex parte order, but when they were unable to obtain an immediate hearing, they filed a habeas corpus petition in Harris County rather than renewing the motion or appealing the ex parte order. The Harris County court ultimately entered an order transferring venue to the Montgomery County Juvenile Court, and at the Harris County judge’s direction the Department filed another suit, which was also transferred to Montgomery County, while temporary custody of the children was continued in the Department. Rather than attempting to expedite a hearing in the Montgomery County court, appellees filed an action in Federal District Court, broadly challenging the constitutionality of the interrelated parts of Title 2’s statutory scheme defining the contours of the parent-child relationship and the permissible areas and modes of state intervention. The District Court denied appellees a temporary restraining order, but later held that the state court’s temporary orders had expired and that the children had to be returned to their parents. The Department then filed a new suit in the Montgomery County court, which issued a show-cause order and writ of attachment ordering that the child suspected of being abused be delivered to the temporary custody of his grandparents. Appellees countered by filing in the Federal District Court a second application for a temporary restraining order addressed to the Montgomery County Juvenile Court and this was granted. A three-judge District Court thereafter preliminarily enjoined the Department and other defendants from filing or prosecuting any state suit under the challenged state statutes until a final determination by the three-judge court. Subsequently, this determination was made, the court concluding that abstention under the doctrine of Younger v. Harris, 401' U. S. 37, was unwarranted because the litigation was “multi 416 OCTOBER TERM, 1978 Syllabus 442 U. S. faceted,” involved custody of children, and was the product of procedural confusion in the state courts, and thereafter addressing the merits of the constitutional challenges. Held: In light of the pending state proceedings, the Federal District Court should not have exercised its jurisdiction but should have abstained under the doctrine of Younger v. Harris, supra, which, in counseling federal-court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff. Pp. 423-435. (a) The basic concern—the threat to our federal system posed by displacement of state courts by those of the National Government—is applicable not only to state criminal proceedings but also to civil proceedings in which important state interests are involved. Huffman n. Pursue, Ltd., 420 U. S. 592. As was the case in Huffman, the State here was a party to the state proceedings, and the temporary removal of a child in the child-abuse context is, like the public nuisance statute involved in Huffman, “in aid of and closely related to criminal statutes.” Id., at 604. P. 423. (b) While the District Court’s reference to the litigation as being “multifaceted” as a reason for refusing abstention is unclear, it appears that this reference meant, either that the appellees’ constitutional challenge could not have been raised in the pending state proceedings, or that, in view of the breadth of such challenge, abstention was inappropriate. However, with respect to the pertinent inquiry whether the state proceedings afford an adequate opportunity to raise the constitutional claims, Texas law appears to raise no procedural barriers. And the breadth of a challenge to a complex state statutory scheme has traditionally militated in favor of abstention, not against it. Pp. 424r-428. (c) There are three distinct considerations that counsel abstention when broad-based challenges are made to state statutes. First is the concern of Railroad Comm’n v. Pullman Co., 312 U. S. 496, that a federal court will be forced to interpret state law without the benefit of state-court consideration and therefore under circumstances where a constitutional determination is predicated on a reading of the statute that is not binding on state courts and may be discredited at any time, such dangers increasing with the breadth of the challenge. Second is the need for a concrete case or controversy, a concern also enhanced by the scope of the challenge and one that is demonstrated by the instant case. The third concern is the threat to our federal system of government posed by the needless obstruction to the domestic policy of the states MOORE v. SIMS 417 415 Syllabus by forestalling state action in construing and applying its own statutes.” Alabama State Federation of Labor v. McAdory, 325 IT. S. 450, 471. Almost every constitutional challenge—and particularly one as far ranging as that involved here—offers the opportunity for narrowing constructions that might obviate the constitutional problem and intelligently mediate federal constitutional concerns and state interests. Pp. 428-430. (d) With respect to appellees’ argument that delay in affording them a hearing in state court made Younger abstention inappropriate, the federal injunction did in fact address the state proceeding and it was unnecessary to obtain release of the children, as they had already been placed in appellees’ custody pursuant to federal-court order. Gerstein v. Pugh, 420 U. S. 103, distinguished. Furthermore, such argument cannot be distinguished from conventional claims of bad faith and other sources of irreparable harm; in this case the state authorities’ conduct evinced no bad faith, and, while there was confusion, confusion is not bad faith. Pp. 430-432. (e) In the absence of bad faith, there remain only limited grounds for not applying Younger. Here, no claim could be properly made that the state proceedings were motivated by a desire to harass or that the challenged statute is “ ‘flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph,’ ” Huffman, supra, at 611. Nor were there present in this case other “extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment,” Younger, supra, at 53. Unless it were held that every attachment issued to protect a child creates great, immediate, and irreparable harm warranting federal-court intervention, it cannot be properly concluded that with the state proceedings here in the posture they were at the time of the federal action, federal intervention was warranted. Pp. 432-435. 438 F. Supp. 1179, reversed and remanded. Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Powell, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan, Stewart, and Marshall, JJ., joined, post, p. 435. David H. Young, Assistant Attorney General of Texas, argued the cause for appellants. With him on the brief were John L. Hill, Attorney General, David M. Kendall, First As 418 OCTOBER TERM, 1978 Opinion of the Court 442 U. S. sistant Attorney General, and Steve Bickerstaff, Kathryn A. Reed, and Ann Clarke Snell, Assistant Attorneys General. Windell E. Cooper Porter argued the cause for appellees. With her on the brief were Robert L. Byrd and Martin J. Grimm* Mr. Justice Rehnquist delivered the opinion of the Court. Title 2 of the Texas Family Code was enacted in 1973 and first went into effect on January 1, 1974. It was amended substantially in the following year. The Title defines the contours of the parent-child relationship and the permissible areas and modes of state intervention. This suit presents the first broad constitutional challenge to interrelated parts of that statutory scheme. It raises novel constitutional questions of the correlative rights and duties of parents, children, and the State in suits affecting the parent-child relationship. This litigation, involving suspected instances of child abuse, was initiated by state authorities in the Texas state courts in 1976. The state proceedings, however, were enjoined by the three-judge District Court below, which went on to find various parts of Title 2 unconstitutional on their face or as applied. We noted probable jurisdiction. 439 U. S. 925 (1978). This appeal first raises the question whether in light of the pending state proceedings, the Federal District Court should have exercised its jurisdiction. We conclude that it should not have done so and accordingly reverse and remand with instructions that the complaint be dismissed. I The appellees in this case, husband and wife and their three minor children, seek a declaration that parts of Title 2 of the *Briefs of amici curiae urging affirmance were filed by Catherine P. Mitchell and Martin A. Schwartz for Community Action for Legal Services, Inc., et al.; by Gary R. Thomas, Robert B. O’Keefe, and Steven D. Ross for East Texas Legal Services, Inc.; and by Stefan Rosenzweig and Jeanette Ganousis for Wanda Dixie et al. MOORE v. SIMS 419 415 Opinion of the Court Texas Family Code unconstitutionally infringe family integrity.1 The state-court litigation was precipitated by school authorities who reported to the Texas Department of Human Resources (formerly the State Department of Public Welfare) on March 25, 1976, that a child, Paul Sims, suffered from physical injuries apparently inflicted or aggravated by his father on a visit to the Osborne Elementary School in Houston, Tex. To protect the Sims children and to investigate the extent of any injuries, the Texas Department of Human Resources (hereinafter Department) on the same day took temporary custody of all three Sims children, who were in the school, and had them examined by a physician. The doctor found that the children were battered, and Paul was hospitalized for 11 days. On the day that it took custody of the children, the Department decided to institute a suit for emergency protection of the children under § 17.02 of the Texas Family Code.2 The suit was filed in the Harris County Juvenile Court on 1 Although it is not clear that the children were nominal parties in all of the proceedings in the state courts, for ease of reference all of those actions will be referred to as actions by the appellees. 2 Chapter 17 of Title 2 of the Texas Family Code provides for suits for protection of children in emergencies. Section 17.01 states: “An authorized representative of the State Department of Public Welfare, a law-enforcement officer, or a juvenile probation officer may take possession of a child to protect him from an immediate danger to his health or physical safety and deliver him to any court having jurisdiction of suits under this subtitle, whether or not the court has continuing jurisdiction under Section 11.05 of this code. The child shall be delivered immediately to the court.” Tex. Fam. Code Ann., Tit. 2, § 17.01 (Supp. 1978-1979). These emergency seizures are to be followed by hearings provided for in § 17.02 (1975): “Unless the child is taken into possession pursuant to a temporary order entered by a court under Section 11.11 of this code, the officer or representative shall file a petition in the court immediately on delivery of the child to the court, and a hearing shall be held to provide for the temporary care or protection of the child.” 420 OCTOBER TERM, 1978 Opinion of the Court 442U.S. March 26, 1976, the day after the children were removed from the school. Pursuant to § 17.04 of the Texas Code, the Juvenile Court Judge entered an emergency ex parte order which gave temporary custody of the children to the Department.3 Five days later, the appellees appeared in court and moved to modify the ex parte order, the proper procedure for terminating the Department’s temporary custody.4 A hearing on such a motion is required under Texas law, but the Juvenile Court Judge was temporarily unavailable and the court clerk returned the motion to appellees’ attorney. Rather than renew the motion or appeal the emergency order, appellees filed a petition for a writ of habeas corpus in the same Harris County court.5 A hearing on that petition was held on April 5, 3 Tex. Fam. Code Ann., Tit. 2, § 1704 (1975): “On a showing that the child is apparently without support and is dependent on society for protection, or that the child is in immediate danger of physical or emotional injury, the court may make any appropriate order for the care and protection of the child and may appoint a temporary managing conservator for the child.” § 17.05 (Supp. 1978-1979): “(a) An order issued under Section 17.04 of this code expires at the end of the 10-day period following the date of the order, on the restoration of the child to the possession of its parent, guardian, or conservator, or on the issuance of ex parte temporary orders in a suit affecting the parent-child relationship under this subtitle, whichever occurs first. “(b) If the child is not restored to the possession of its parent, guardian, or conservator, the court shall: