T I IIIIIIII Ill lllll lllll lllll lllll lllll lllll 111111111111111111
* 9 8 9 1 9 9 4 9 2 *
PROPERTY OF THE
UNITED STATES
UNITED STATES REPORTS
VOLUME 443
CASES ADJUDGED
IN
THE SUPREME COURT
AT
OCTOBER TERM, 1978
JUNE 25 THROUGH AUGUST 30, 1979
TOGETIIER WtTII OP11'll0SS OF INDIVIDUAL JUSTICES IN CH.ui»ERS
END OF TERM
HENRY C. LIND
REPORTER OF DECISIONS
UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHING TON : 1981
For sale by the Superintendent ol Documents, U.S. Government Printinir Office
Wuhin(ton. 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. 1
BENJAMIN R. CIVILETTI, AT'rORNEY GENERAL.2 w ADE H. McCREE, JR., SOLICITOR GENERAL.
MICHAEL RODAK, Ja., CLERK.
HENRY C. LIND, REPORTER OF DECISIONS.
ALFRED WONG, MARSHAL.
ROGER F. JACOBS, LIBRARIAN.
1 Attorney General Bell resigned effective August 16, 1979.
2 The Honorable Benjamin R. Civiletti, of Maryland, Deputy Attorney
General, was nominated to be Attorney General by President Carter on
July 21, 1979. The nomination was confirmed by the Senate on August 1,
1979; he was commissioned on August 16, 1979, and took the oath of
office on the same date.
m
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, Unit;('d 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 CAS~ 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 derisions per curiam. Cases reported on page 901 et seq. are
those in which ordf'rs were entered. Opinions r<'ported on page 1301 et
seq. are those written in chambers by individual Justices.
Page
Adams v. Illinois...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905
AFI.r--CIO v. Kahn .. • .......................................... 915
Angela. Compania Naviera, S. A. v. Public Administrator of N. Y.. 928
Attorney General of Idaho v. Great Western United Corp........ 173
Attorney General of Ma.~sachusetts v. Baird..................... 622
Aust.in Independent School District v. United States............. 915
Baird; Bellotti v. . . .. . . . . .. .. . . .. . .. . .. . .. . . . . .. . .. . .. . .. . .. . . 622
Baird; Hunerwadel v.......................................... 622
Baker v. McCollan............................................ 137
Baldwin v. Mills.......... .. .. . .. . . . . . . . .. . .. . .. . .. . .. .. .. . . . . 914
Banta v. Firefighters Institute for Racial Equality........ . . . . . . . . 904
Barchi; Barry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Barr; Golden v............................................... 913
Barry v. Barchi............................................... 55
Bellotti v. Baird.............................................. 622
Blackburn; French v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Blakley v. Florida... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Board of Education of Jefferson County v. Haycraft.............. 915
Boles; Califano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
Booker; Special School District No. 1, Minneapolis v. . . . . . . . . . . . 915
Branti v. Finkel........................... . . . . . . . . . . . . . . . . . . . . 904
Bratton; Shiffrin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Brinkman; Dayton Board of Education v. . . . . . . . . . . . . . . . . . . . . . . 526
Brotherhood. For labor union, see name of trade.
Brown; Montgomery Publishing Co. v.......................... 914
Brown; Society of Professional Journalists v. . . . . . . . . . . . . . . . . . . . 913
Brown v. Texas............................................... 47
Browne; Califano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Califano v. Boles....................................... . . . . . . . 282
Califano v. Browne....................... . .................... 901
V
TABLE OF CASES REPORTED
Califano v. Mattern .......................................... .
Califano v. Stev<'ns ........................................... .
Califano v. Wt>stcott .......................................... .
California; Leonard M. v . .................................... .
California v. Minjares ........................................ .
California v. P. S. W ......................................... .
California; Robbins v ........................................ .
Chairman, Counril on Wage and Prirt> 8tahility; AFL-f'IO v .... .
Chairman, Racing and Wagering Board of ew York v. Barchi ... .
Chaney v. Wainwright ........................................ .
City. See name of city.
Page
912
901
76
914
916
902
903
915
55
904
Clark County Deputy Public Defenders v. Wolff. . . . . . . . . . . . . . . . . 1306
Columbus v. Leonard.......................................... 905
Columbus Board of Education t'. Penick ...................... 449,916
Commisi::ionrr, Dept. of Public Welfari> of Mass. v. Westcott. . . . . . . 76
Commonwealth. Sec name of Commonwealth.
Compagnie Genera le Transatlant ique; Edmonds v. . . . . . . . . . . . . . . . 256
Correctiong Commis.<,ioner. See name of commissioner.
County. See name of county.
County Court .Judge of 8eni>ca County; Gannett Co. v..... . . . . . . 36R
Daily Mail Publishing Co.; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Dawson v. Maryland.......................................... 904
Dayton Board of Education v. Brinkman....................... 526
DeFillippo; Mirhigan v........................................ 31
De Marco v. United States...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Department of Education of Pa.; Pequea Valley School District t i .. 901
Department of Education of Pa.; School District of Pittsburgh v. . . 901
DePasquale; Gannett Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
DeSantis v. New York........................................ 912
Director of penal or rorrectional institution. See name of director.
District Court. See U. S. District Court.
District Judge. See U. S. District Judge.
Dolman ti. United States....................................... 914
Duckworth; Moore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 713
Edmonds v. Compagnie Generale Transatlantique................. 256
Eleuti>rio v. Wainwright.......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915
Empresa Lineas Maritima.s Argentinas v. Samuels. . . . . . . . . . . . . . . . 915
Fabritz; Hopkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915
Federal Open Market Comm. of Fed. Reserve System v. Merrill... 340
Finkel; Bran ti v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Firefighters Institute for Ra.rial Equality; Banta v. . . . . . . . . . . . . . . . 904
Florida; Blakley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
French v. Blackburn........................................... 901
Gannett Co. v. DePasquale.................................... 368
TABLE OF CASES REPORTED
General Telephone Co. v. Public Utilities Comm'n of Cal. ........ .
Georgia; Whisenhunt v ....................................... .
Golden v. Barr ............................................... .
Great \Vestern United Corp.; Leroy v .......................... .
Grim v. United States ........................................ .
Gunter v. Kentucky .......................................... .
Guzman v. Louisiana ......................................... .
Harrington v. United States ................................... .
Haycraft; Board of Education of Jefferson County v .. .......... .
Honeyman; Montgomery Publishing Co. v . ..................... .
Honeyman; Society of Professional Journalists v .... ............ .
Hopkins v. Fabritz ........................................... .
Hunerwadel v. Baird ......................................... .
Hutchinson v. Proxmire' ....................................... .
Illinois; Adams v . ........................................... .
In re. See name of party.
International. For labor union, see name of trade.
Jackson v. Virginia ........................................... .
Jerome; Philadelphia Newspapers, Inc. v ....................... .
Jones v. Wolf. ............................................... .
Judge, U.S. Court of Appeals; Morland v ...................... .
Kahn; AFL-CIO v . ......................................... .
Kaiser Aluminum & Chemical Corp. v. Weber .................. . .
Kentucky; Gunter v ......................................... .
Labor Board; National Jewish Hospital & Research Center v ..... .
Labor l 1nion. See name of trade.
Lenhard v. Wolff ............................................. .
Leonard; Columbus v . ........................................ .
Leonard M. v. California ..................................... .
Leroy v. Great Western United Corp ........................... .
Local. For labor union, sec name of trade.
VII
Page
1301
903
913
173
912
905
912
914
915
914
914
915
622
111
905
307
913
5%
709
915
193
905
903
1306
905
914
173
Louisiana; Guzman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Louisiana; Willie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
M. v. California.............................................. 914
Mackey v. Montrym.......................................... 1
Maryland; Dawson v.......................................... 904
Mattern; Califano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
MrCollan; Baker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
McKenzie v. Montana ....................................... 903,912
Merrill; Federal Open Market Comm. of Fed. Reserve System v. . . 340
Michigan v. DeFillippo........................................ 31
Mills; Baldwin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Miner v. New York........................................... 912
Minjares; California v........................................ 916
VIII TABLE OF CASES REPORTED
Page
Minnich v. United States...................................... 914
Missouri; Phillips v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Mitchell; Rose v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545
Montana; McKenzie v ...................................... 903,912
Montgomery Publishing Co. v. Brown.......................... 914
Montgomery Publishing Co. v. Honeyman....................... 914
Montrym; Mackey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Moore v. Duckworth.......................................... 713
?-.lorland v. Sprecher... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 709
National Jewi,;h Hospital & Resffirch Center v. Labor Board...... 903
National Labor Relations Board. See Labor Board.
Nebraska State Dept. of Public Welfare; Woe v........ .... ..... 913
New York; DeSantis v........................................ 912
New York; Miner v........................................... 912
New York; Tamilio v... ...... .... .. ... ... ...... ... ... ......... 912
Norfolk; Womack v........................................... 902
Omaha Indian Tribe: RGP, Inc. v........ ....... . .............. 902
Pacific Far East Line, Inc. v. R. J. Reynolds Tobacco Co......... 916
Pacific Far East Line, Inc. v. Zirpoli............................. 916
Pacific Tel. & Tel. Co. v. Public l'tilities Comm'n of Cal. . . . . . . . . . 1301
Pt>nick; Columbus Board of Education v ..................... 449,916
Pequea Valley School District v. Department of Education of Pa. . . 901
Percy v. Terry................................................ 902
Philadelphia Newspapers, Inc. v. Jerome. . . . . . . . . . . . . . . . . . . . . . . . 913
Phillips v. Missouri........................................... 904
Pratt v. Westcott............................................. 76
Proxmire; Hutchinson v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
P. S. W.; California v......................................... 902
Public Administrator of N. Y.; Angela Compania Naviera, S. A. v.. 982
Public Ftilities Comm'n of Cal.; General Telephone Co. v... . . . . . 1301
Public Vtilitie;; Comm'n of Cal.; Pacific Tel. & Tel. Co. v..... .... 1301
Puget Sound Gillnetters Assn. v. United States.................. 658
Puget Sound GiHnetten; Assn. v. U. S. District Court............. 658
Puget Sound Gillnetters As..~n.; Washington v.................... 653
Reader's Digest Assn., Inc.; Walston v.......................... 157
Reaves, In re................................................. 903
Redington v. Touche Ross & Co................................ 904
Registrar of Motor Vehicles of Massachusetts v. Montrym......... 1
RGP, Inc. v. Omaha Indian Tribe.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
R. J. Reynolds Tobacco Co.; Pacific Far East Line, Inc. v. . . . . . . . 916
Robbins v. California.......................................... 903
Rome v. Unit~d States........................................ 914
Rose v. Mitchell.............................................. 545
Rubin; Union Light, Heat & Power Co. v....................... 913
TABLE OF CASES REPORTED IX
Page
Samuels; Empresa Lineas Maritimas Argentinas v................ 915
School District of Pittsburih v. Department of Education of Pa... . 901
Secretary, Dept. of Health and Social Services of Wis. v. Terry... . 902
Secretary of Health, Education, and Welfare v. Boles............. 282
Secretary of Health, Education, and Welfare v. Browne........... 901
Secretary of Health, Education, and Welfare v. Mattern........... 912
Secretary of Health, Education, and Welfare v. Stevens............ 901
Secretary of Health, Education, and Welfare v. Westcott.... . . . . . . 76
Securities Investor Protection Corp. v. Touche Ross & Co........ 904
Serbian E. Ort-ho. Diocese; Serbian E. Ort.ho. Diocese (corp.) v.... 904
Serbian E. Ort.ho. Diocese (corp.) v. Serbian E. Ortho. Diocese.... 904
Shiffrin v. Bratton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Simpson; Weeks v............................................ 911
Sink v. llnited States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Smith v. Daily Mail Publishing Co............................. 97
Society of Professional Journalists v. Brown.. . . . . . . . . . . . . . . . . . . 913
Society of Professional Journalists v. Honeyman. . . . . . . . . . . . . . . . . 914
Special School District No. 1, Minneapolis v. Booker.. . . . . . . . . . . . 915
Sprecher; Morland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 709
Standard Brands, Inc. v. Teamsters............................. 913
State. See name of State.
Steelworkers v. Weber.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Ste,·ens; Califano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Stevie; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911
Tamilio v. New York.......................................... 912
Teamsters; Standard Brands, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
Terry; Percy v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Texas; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Texas; Washington v... .................. .................... . 902
Tourhe Ross & Co.; Redington v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Toucl1e Ross & Co.; Securities Investor Protection Corp. v... . . . . 904
Union. For labor union, see name of trade.
Union Light, Heat & Power Co. v. Rubin........................ 913
United. For labor union, see name of trade.
United States; Austin Independent School District v............. 915
United States; De Marco v.. ......................... ...... ... 904
United States; Dolman v...................................... 914
United States; Grim v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
United States; Harrington v............................... .... 914
United States; Minnich v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
United States; Puget Sound Gillnetters Assn. v. . . . . . . . . . . . . . . . . . 658
United States; Rome v........................................ 914
United States: Sink v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
United States v. Stevie......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911
X TABLE OF CASES REPORTED
Page
United States; Washington v..... ... ...... . .. . ....... . .... . .. . 658
United States v. Weber. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
U. S. District Court; Puget Sound Gi!lnetters Assn. v............ 658
U.S. District Judge; Pacific F:ir East Line, Inc. v.. . . . .. . ........ 916
U.S. District Judge; Union Light, Heat & Power Co. v........... 913
Virginia; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
Vv.; California. v.. . .. ............... . ................ . ........ 902
Wainwright; Chaney v......................................... 904
Wainwright; Eleuterio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915
Warden. See name of warden.
Washington v. Puget Sound Gillnetters Assn........ .. ......... . . 658
Washington v. Texas.......................................... 902
Washington v. United States.................... . ...... . ....... 658
Washington v. Wash. Commercial Pas..<>enger Fishing Vessel Assn.. 658
Washington Commercial Passen11:er Fishing Ves...,;;el AS5n.; Wash. v.. 658
Weber; Kaiser Aluminum & Chemical Corp. v...... . ... . ........ 193
Weber; Steelworkers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Weber; United States v.................... . ................... 193
Weeks v. Simpson........ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911
Westcott; Califano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Westcott; Pratt v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Whisenhunt v. Georgia........................................ 903
Willie v. Louisiana.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Woe v. Nebraska State Dept. of Public Welfare.................. 913
Wolf; Jones v................................................ 595
Wolff; Lenhard v.................... . ................. . .... .. 1306
Wolston v. Reader's Digest Assn., Inc..... . . . ... .. .. . .. . .. ...... 157
Womack v. Norfolk.. ............. . ... . .... . ... . .... ....... . .. 902
Zirpoli; Pacific Far East Line, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
TABLE OF CASES CITED
Page
Abelman v. Booth, 21 How. 506 695
Adams v. Williams, 407 U. S.
143 36,37
Adderley v. Florida, 385 U. S.
39 314,333
Addington v. Texas, 441 U. S.
418 13,336
Aguilar v. Texas, 378 U.S. 108 23
Albemarle Paper Co. v. Moody,
442 u. s. 405 204
Albertson v. SACB, 382 U. S.
70 44
Alexander v. Gardner-Denver
Co., 415 U. S. 36 211
Alexander v. Holmes County
Bd. of Ed., 396 U.S. 19 497
Alexander v. Louisiana, 405 u. s. 625 551,554,590,593
Alma. Motor Co. v. Timken-
Detroit Axle Co., 329 U. S.
129 161
Almeida-Sanchez v. United
States, 413 U. S. 266 39, 43
American Communications
Assn. v. Douds, 339 U. S.
382 106
Antoine v. Washington, 420
U.S. 194 673,682,684
Ar_g_ersinger v. Hamlin, 407
U.S. 25 415
Arizona v. California., 373 U. S.
546 684-686
Arkansas v. Sanders, 442 U. S.
753 903
Arlington Heights v. Metropolitan
Housing Dev. Corp., 429
U. S. 252 464, 465, 470, 481, 508-
510, 513, 515, 518, 519
Armstrong v. Manzo, 380 U.S.
545 66
Arnett v. Kennedy, 416 U. S.
134 70
Arnold v. North Carolina, 376 u. s. 773 551,590
Page
Ashwander v. TVA, 297 U. S.
288 327
Associated General Contractors
of Mass. v. Altschuler, 490
F. 2d 9 198
Atlas, The, 93 U. S. 302 260, 272
Austin Independent School Dist.
v. United States, 429 U. S.
990 482,512
Baird v. Attorney General, 371
Mass. 741 630,631, 633,
644-647, 650, 653, 655
Baird v. Bellotti, 393 F. Supp.
847 626-628,640,649,651
Baird v. Bellotti, 428 F. Supp.
854 631,645
Ball v. Police Committee of
Atlanta, 136 Ga. App. 144 906
Ballard v. United States, 329 u. s. 187 556
Barker v. Wingo, 407 U. S.
514 153,383,415,418,427
Barry v. Barcbi, 443 U. S. 55 13,
15,29
Bates v. Little Rock, 361 U. S.
516 110
Batterton v. Francis, 432 U. S.
416 79,80,93
Beauchamp v. Cahill, 297 Ky.
505 388,431
Beck v. Ohio, 379 U. S. 89 36, 37
Beck v. Washington, 369 U. S.
541 404,443
Bell v. Burson, 402 U. S. 535 9,
10, 17, 2~23, 64, 65,
69-71
Bell v. Wolfish, 441 U. S. 520 144,
153
Bellotti v. Baird, 428 U. S.
132 624,626,628,639-
641, 643, 646, 652-654
Berenyi v. Immigration Director,
385 U. S. 630 592
XI
XII TABLE OF CASE:l CITED
Page
Berger v. United States, 295 u. s. 78 384
Bird v. State, 103 Tenn. 343 548
Bishop v. Wood, 426 U.S. 341 64,
162,181
Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U. S.
388 434,435,919,926
Blackburn v. Alabama, 361 u. s. 199 318
Black & Co. v. Nova-Tech,
Inc., 333 F. Supp. 468 188
Board of Ed. v. State, 45 Ohio
St. 555 455, 472
Board of Regents v. Roth, 408 u. s. 535 64, 70, 71
Boddie v. Connecticut, 401
U. S. 371 20, 21, 71,314
Boehning v. Indiana Employees
As.5n., 423 U. S. 6 910
Bolen v. State, 554 S. W. 2d
918 548
Bolling v. Sharpe, 347 U. S.
497 304,493
Borden Co. v. Sy!k, 289 F.
Supp. 847 362
Bouldin v. Alexander, 15 Wall.
131 607
Braden v. 30th Judicial Circuit
Court of Ky., 410 U. S. 484 184,
185
Branzburg v. Hayes, 408 U. S.
665 104,106,110,400,404,440
Breed v. Jones, 421 U. S. 519 634
Brennan v. Armstrong, 443 u. s. 672 520
Brennan v. Illinois Racing Bd.,
42 Ill. 2d 352 69
Brewer v. Williams, 430 U. S.
387 153,396
Bridges v. California, 314 U. S.
252 413,442
Brinegar v. United States, 338
U. S. 160 36, 37, 44, 315
Brinkman v. Gilligan, 583 F.
2d 243 493,521
Bronston v. United States, 409
U. S. 352 317,329
Brown v. Allen, 344 U. S. 443 318,
322,580
Page
Brown v. Board of Ed., 347
U. S. 483 386,455,456,459,
463, 469, 472, 480--482,
486,490, 492--494, 496-
498, 500, 504, 506, 529,
534-536, 538, 539, 542
Brown v. Board of Ed., 349
U. S. 294 458-460,
470, 482, 494, 496-499
Brown v. State, 222 Miss. 863 430
Brown v. Texas, 443 U. S. 47 902
Brunette Machine Works v.
Kockum Industries, 406 U. S.
706 184,185
Buckner v. Goodyear Tire &
Rubber Co., 339 F. Supp.
1108 198
Bucolo v. Adkins, 424 U. S.
641 712
Burger v. New York, 388 U. S.
41 39,43
Bush v. Kentucky, 107 U. S.
110 551,556,557,590
Butner v. United States, 440
U. S. 48 181
Byars v. United States, 273
U.S. 28 921
Cady v. Dombrowski, 413
U.S. 433 927
Califano v. Goldfarb, 430 U. S.
199 84,85,90,283,284
Califano v. Jablon, 430 U. S.
924 84,90
Califano v. Jobst, 434 U. S.
47 89,283,284,288.289, 297
Califano v. Silbowitz, 430 U. S.
924 90
Califano v. Webster, 430 U. S.
313 85,283,284
Califano v. Westcott, 443 U.S.
76 901
Califano v. Yamasaki, 442
U. S. 682 283,285,297
California Human Resources
Dept. v. Java, 402 U.S. 121 283
Caminetti v. United States, 242 u. s. 470 228
Capitol Traction Co. v. Hof,
174 u. s. 1 317
Carey v. Population Services
International, 431 U.S. 678 639
Carnes v. Smith, 236 Ga. 30 600,
601, 606, 608
TABLE OF CASES CITED Xlll
Page
Carpenters & Joiners v. United
States, 330 U. S. 395 317
Carroll v. United States, 267
U. S. 132 37
Carter v. Jury Comm'n, 396
U. S. 320 552,578,583,590,592
Carter v. Texas, 177 U. S. 442 551
Cassell v. Texas, 339 U.S. 282 551-
554, 559, 563, 575, 578,
579, 583, 584, 587, 590,
593
Castaneda v. Partida, 430 U.S.
482 551, 559, 565,
571-573, 582, 590-592
Cella v. Partenreederei MS
Ravenna, 529 F. 2d 15 259
Central Union Trust Co. v.
Garvan, 254 U. S. 554 21
Chaloner v. Washington Post
Co., 36 U. S. App. D. C.
231 161
Chambers v. Maroney, 399
U. S. 42 918
Chesa International, Inc. v.
Fashion Associates, Inc., 435
F. Supp. 234 362
Christensen v. United States,
104 U. S. App. D. C. 35 52
Chrysler Corp. v. Brown, 441 u. s. 281 351
City. See name of city.
Clemons v. Board of Ed., 228
F. 2d 853 472
Clyatt v. United States, 197
U.S. 207 333
Coates v. Cincinnati, 402 U. S.
611 45
Coffin v. Coffin, 4 Mass. 1 125, 126
Cole v. Arkansas, 333 U.S. 196 314
Coleman v. Alabama, 339 U. S.
1 576
Columbus Bd. of Ed. v. Penick,
443 U. 8. 449 529,
535-538,541-543
Commercial Printing Co. v.
Lee, 262 Ark. 87 429, 431, 432
Commissioner v. Bosch's Estate,
387 U.S. 456 161
Com.missioner of Internal Revenue.
See Commissioner.
Commonwealth. See also name
of Commonwealth.
Page
Commonwealth v. Blondin, 324
Mass. 564 432
Commonwealth v. Brown, 90
Va.. 671 324
Commonwealth v. Marshall, 356
Mass. 432 415
Connor v. Coleman, 425 U. S.
675; 440 U.S. 612 712
Consolidated Box Co. v. United
States, 18 Fed. Rules Serv.
2d 115 357
Contractors Assn. of Eastern
Pa. v. Secretary of Labor,
442 F. 2d 159 198
Cool v. United States, 409
U. S. 100 316,320
Cooper v. Aaron, 358 U. 8. 1 486,
494,695
Cooper v. California, 386 U. S.
58 43
Cooper Stevedoring Co. v. Fritz
Kopke, Inc., 417 U.S. 106 260-
262,273
Costello v. United States, 350
U. S. 359 577
County. See name of county.
Cowley v. Pulsifer, 137 Mass.
392 430
Cox v. Coleridge, 1 B. & C. 37 395
Cox v. State, 3 Md App. 136 429
Cox Broadcasting Corp. v.
Cohn, 420 U. S. 469 101-103,
105, 412, 413, 428, 429
Craig v. Boren, 429 U.S. 190 85
Craig v. Harney, 331 U.S. 367 412
Cunha v. Brewer, 511 F. 2d 894 316
Curley v. United States, 81
U.S. App. D. C. 389 317,
318,334
Curlis Publishing Co. v. Butts,
388 U. S. 130 134, 164, 166
Dandridge v. Williams, 397 u. s. 471 95,283
Daubney v. Cooper, 5 M. & R.
314 395,423
Davis v. Alaska, 415 U. S.
308 104,107-109
Davis v. Board of School
Comm'rs of Mobile County,
402 U. S. 33 498, 538
Davis v. Mississippi, 394 U. S.
721 45,50
XIV TABLE OF CASES CITED
Page
Davis v. United States, 160
U.S. 469 314
Davison v. Duncan, 7 El. &
Bl. 229 423
Dawson v. Contractors Transp.
Co., 151 U.S. App. D. C. 401 272
Dayton Bd. of Ed. v. Brinkman,
433 U. S. 406 453,
455, 458, 459, 470-474,
476, 477, 479, 482, 490,
491, 500, 502, 505, 515,
519-521, 524, 525, 528,
531, 532, 540, 543
Dayton Bd. of Ed. v. Brinkman,
443 U.S. 526 458,
469, 479, 491, 492, 502,
504, 506, 513
Deen v. Hickman, 358 U. S.
57 712
DeFunis v. Odegaard, 416 U.S.
312 690
Delaware v. Prouse, 440 U. S.
648 51,52,153
Denver & R. G. W. R. Co. v.
Railroad Trainmen, 387 U.S.
556 184,185,187
Department of Air Force v.
Rose, 425 U. S. 352 351,
357,359,366,367
Department of Game v. Puyallup
Tribe, 86 Wash. 2d 664 672,
683,694
Dilliard v. Virginia Industrial
Comm'n, 416 U. S. 783 161
Director, Workers' Compensation
Programs v. Rasmussen,
440 U. S. 29 259
Dixon v. Love, 431 U.S. 105 9-13,
17-20,22,24, 70, 71
Dodge v. Mitsui Shintaku
Ginko K. K. Tokyo, 528 F.
2d 669 259,271
Doe v. Bolton, 410 U.S. 179 639,
641
Doe v. McMillan, 412 U. S.
306 121, 124, 125, 127, 130,
133
Dombrowski v. Eastland, 387
U. S. 82 123,124
Donnelley Corp. v. FTC, 580
F. 2d 264 184
Dothard v. Rawlinson, 433 u. s. 321 213
Page
Douglass v. Buder, 412 U. S.
430 314,333
Draper v. United States, 358
U.S. 307 37
Dred Scott v. Sandford, 19
How. 393 386
Drape v. Missouri, 420 U. S.
162 318
Dunaway v. New York, 442
U. S. 200 44, 50, 53, 153
Duncan v. Louisiana, 391 U. S.
145 415
Du Pont de Nemours Powder
Co. v. Masland, 244 U. S.
100 356
Dutton v. State, 123 Md. 373 415
Eastland v. United States
Servicemen's Fund, 421 U. S.
491 123,124
Edelman v. Jordan, 415 U. S.
651 191
Edens, In re, 290 N. C. 299 430
E. I. du Pont de Nemours
Powder Co. v. Masland, 244
U.S. 100 356
Elkins v. United States, 364
U.S. 206 924
EPA v. Mink, 410 U.S. 73 351,
353, 354, 362, 364, 367
Erie R. Co. v. Tompkins, 304
U. S. 64 617
Estelle v. Gamble, 429 U. S.
97 146
Estelle v. Williams, 425 U. S.
501 321
Estes v. Texas, 381 U. S. 532 378,
380, 381, 383, 398, 399,
404, 413, 438, 439, 444,
446
Etna, The, 138 F. 2d 37 270
Eubanks v. Louisiana, 356 U. S.
584 551,573,590
Evans v. Bennett, 440 U. S.
987; 440 u. s. 1301 1307
Ewing v. Mytinger & Casselberry,
Inc., 339 U. S. 594 18, 21
E. W. Scripps Co. v. Fulton,
100 Ohio App. 157 430
Ex parte. See name of party.
Fahey v. Mallonee, 332 U. S.
245 21
Fare v. Michael C., 439 U. S.
1310 917
TABLE OF CASES CITED xv
Page
Fare v. Michael C., 442 U. S.
707 902
Faretta v. California, 442 U. S.
806 380,382,
417, 418, 422, 426, 427
Fay v. Noia, 372 U.S. 391 321,580
FAA Administrator v. Robert•
son, 422 U.S. 255 351
FEA v. Algonquin SNG, Inc.,
426 u. s. 548 69
Ferguson v. Skrupa, 372 U. S.
726 682
Finney v. Arkansas Bd. of Cor·
rection, 505 F. 2d 194 592
First National Bank of Boston
v. Bellotti, 435 U. S. 765 398
Fitzgerald v. United States
Lines Co., 374 U.S. 16 259,
276,277
Fitzsimmons v. Barton, 589 F.
2d 330 191
Flemming v. Nestor, 363 U. S.
603 283,284
Foster v. California, 394 U. S.
440 153
Francis v. Henderson, 425 U. S.
536 321,559
Frank v. Mangum, 237 U. S.
309 580
Franks v. Bowman Transportation
Co., 424 U. S. 747 225
Freedman v. Maryland, 380
U. S. 51 711
Freeman v. Stone, 444 F. 2d
113 321
Freeman v. Zahradnick, 429
U. S. 1111 312,334
Frisbie v. Collins, 342 U. S.
519 576
Frontiero v. Richardson, 411
U. S. 677 84, 85, 89
Fuentes v. Shevin, 407 U.S. 67 20
Fumco Construction Corp. v.
Waters, 438 U. S. 567 211,221
Fusari v. Steinberg, 419 U. S.
379 12
Gannett Pacific Corp. v. Richardson,
59 Haw. 224 429
Gault, In re, 387 U. S. 1 107,
633-o35
Geise v. United States, 262 F.
2d 151 388, 430
Page
Gelbard v. United States, 408
U. S. 41 577
Gerstein v. Pugh, 420 U. S.
103 23, 36, 37, 64,
142, 149, 153, 575, 576
Gertz v. Robert Welch, Inc.,
418 U. S. 323 134,
135, 164-168, 170
Gibson v. Berryhill, 411 U. S.
564 63,70,1304
Gilmore v. Utah, 429 U. S.
1012 1307, 1309,1310
Ginsberg v. New York, 390
U.S. 629 636,638,639
Glasser v. United States, 315
U.S. 60 317,319,329
Goldberg v. Kelly, 397 U. S.
254 64,72
Golden State Bottling Co. v.
NLRB, 414 U. S. 168 692,693
Gomez v. Perez, 409 U. S.
535 288,303,304
Gore Newspapers Co. v. Tyson,
313 So. 2d 777 429
Goss v. Board of Ed., 373 U.S.
683 486,494,495
Goss v. Lopez, 419 U. S. 565 21,
635
Graham v. Richardson, 403
U. S. 365 85,283
Gravel v. United States, 408
U. S. 606 124,125, 127, 130, 136
Graver Mfg. Co. v. Linde Air
Products Co., 336 U. S. 271 592
Green v. County School Bd.,
391 u. s. 430 459, 478,
486, 495-497, 505, 538
Greenholtz v. Nebraska Penal
Inmates, 442 U. S. 1 13,902
Gregg v. Georgia, 428 U. S.
153 912
Gregory v. Chicago, 394 U. S.
111 314
Grieco v. Meacham, 533 F. 2d
713 321,322
Griffin v. School Bd., 377 U. S.
218 486,494,495,695
Gril!;gs v. Duke Power Co., 401
U. S. 424 215,218, 220
Griswold v. Connecticut, 381
U.S. 479 44
Grosso v. United States, 390 u. s. 62 44
XVI TABLE OF CASE:! CITED
Page
Gustafson v. Florida, 414 U. S.
260 35
Hagans v. Lavine, 415 U. S.
528 191
Halcyon Lines v. Haenn Ship
Ceiling & Refitting Corp.,
342 U. S. 282 260, 261, 273
Harding v. United States, 337
F. 2d 254 319
Hatcher v. Commonwealth, 218
Va. 811 311
Hatter v. Evening Star Newspaper
Co., Civ. No. 8298-75
(D. C. Super. Ct.) 160
Haynes v. United States, 390 u. s. 85 44
Hazelwood School Dist. v.
United States, 433 U. S. 299 214
Henslee v. Union Planters
Bank, 335 U. S. 595 575
Hernandez v. Texas, 347 U. S.
475 565,572,592,593
Higgins v. Board of Ed. of
Grand Rapids, 508 F. 2d
779 502
Hill v. Texas, 316 U. S. 400 551,
557, 558, 564, 573, 582,
590, 593
Hogan v. State, 191 Ark. 437 388,
431
Holland v. United States, 348
U. S. 121 317,326
Holt v. United States, 218 u. s. 245 577
Holy Trinity Church v. United
States, 143 U. S. 457 201
Houchins v. KQED, Inc., 438
U. S. 665 104,391,392,397,398
Hovey v. Elliott, 167 U. S.
409 314
Hubel v. West Virginia Racing
Comm'n, 513 F. 2d 240 69, 71
Huffman v. Pursue, Ltd., 420
U. S. 592 907-909
Hurtado v. California, 110 u. s. 516 557,575
Hutchinson v. Proxmire, 443 u. s. 111 161
Hutto v. Finney, 437 U. S.
678 696
Ingraham v. Wright, 430 U. S.
651 634
Page
In re. See name of party.
Insulators & Asbestos Workers
v. Vogler, 407 F. 2d 1047 198,
212
Irwin v. Dowd, 366 U. S.
717 378,444
Isbrandtsen Co. v. Johnson,
343 U. S. 779 263
Italia Societa per Azionidi Navigazione
v. Oregon Stevedoring
Co., 376 U. S. 315 268
Ivan V. v. City of New York,
407 u. s. 203 316
Jackson v. Denno, 378 U. S.
368 375,378,433,434,436,446
Jackson v. Lykes Bros. S.S. Co.,
386 u. s. 731 264
Jackson v. Mobley, 157 Ala.
408 429
Jackson v. Virginia, 443 U. S.
307 586,714,715,914
Jacobellis v. Ohio, 378 U. S.
184 320
Jefferson v. Commonwealth,
214 Va. 609 309
Jimenez v. Weinberger, 417 u. s. 628 89,283,284,
288, 294, 297, 302-306
Johansen v. United States, 343
U.S. 427 202
John Lilburne, Trial of, 4 How.
St. Tr. 1270 387,420
Johnson v. Johnson Publishing
Co., 271 A. 2d 696 161
Johnson v. Louisiana, 406 U. S.
356 316,317,319
Johnson v. Simpson, 433 S. W.
2d 644 430
Johnson v. United States, 333 u. s. 10 36
Jones v. Meehan, 175 U.S. 1 676
Jones v. Opelika, 316 U.S. 584 107
Jones v. Wolf, 443 U. S. 595 914
Juanita, The, 93 U.S. 337 260,272
Judice v. Vail, 430 U.S. 327 908
Katz v. United States, 389
U.S. 347 44
Kaufman v. United States, 394
U. S. 217 919,920
Kedroff v. Saint Nicholas Cathedral,
344 U. S. 94 617--619
TABLE OF CASES CITED XVII
Page
Keene Publishing Corp. v.
Keene District Court, 117
N. H. 959 430
Kennedy v. Becker, 241 U. S.
551 678
Kent v. United States, 383 u. s. 541 107, 635
Ker v. California, 374 U. S.
23 36
Ker v. Illinois, 119 U. S. 436 576
Keyes v. School Dist. No. 1,
Denver, Colo., 413 U. S.
189 456-458, 464,
465, 467, 468, 470, 471,
476, 477, 481, 482, 486,
488, 490, 498-501, 505,
507, 508, 520, 522-525,
535, 537, 538, 541, 542
Kilbourn v. Thompson, 103
U. S. 168 124, 126
King v. Creevey, 1 M. & S. 273 129
King v. Fisher, 2 Camp. 563 389
King v. Lord Abingdon, 1 Esp.
225 129
King v. Order of Travelers, 333
U. S. 153 161
King v. Parke, (1903) 2 K. B.
432 390
King v. Smith, 392 U. S. 309 79,
191
King v. Wright, 8 D. & E. 293 423
Klopfer v. North Carolina, 386
U.S. 213 424
Kreshik v. Saint Nicholas Cathedral,
363 U. S. 190 617
Laborers' International Union,
Local No. 1057 v. NLRB, 186
U.S. App. D. C. 13 267
Landmark Communications, Inc.
v. Virginia, 435 U.S. 829 101,
Lanzetta v.
U.S. 451
102,105,106,413
New Jersey, 306
La Vallee v. Delle Rose,
U.S. 690
Lawn v. United States,
U.S. 339
51
410
336,574
355
577 s. Lego v. Twomey, 404 U.
477 316 u. s. Leland v. Oregon, 343
790
Levine v. United States,
U.S. 610
315
362
412
Page
Levy v. Louisiana, 391 U. S.
68 304
Lewis v. Peyton, 352 F. 2d
791 428,430
Lilburne, Trial of, 4 How. St.
Tr. 1270 387,420
Lincoln v. Denver Post, 31
Colo. App. 283 429
Liverpool, N. Y. & P. S. S. Co.
v. Emigration Comm'rs, 113
U. S. 33 328
Lone Wolf v. Hitchcock, 187
U.S. 553 675
Long v. Ansell, 293 U.S. 76 127
Longshoremen v. Juneau Spruce
Corp., 342 U. S. 237 202
Los Angeles County v. Davis,
440 U. S. 625 211
Lucas v. Hope, 515 F. 2d 234 598
Machin v. Zuckert, 114 U. S.
App. D. C. 335 355
Mackey v. Montrym, 443 U. S.
1 73
Maher v. Roe, 432 U.S. 464 95
Ma.hon v. Justice, 127 U. S.
700 576
Mapp v. Ohio, 367 U.S. 643 917,
922-925,927,928
Marant v. Farrell Lines, Inc.,
550 F. 2d 142 259
Marshall v. United States, 360
U. S. 310 378
Martineau v. Helgemoe, 117
N. H. 841 415
Maryland & Virginia. Churches
v. Sharpsburg Church, 396
U. S. 367 602,603,612,617
Mathews v. De Castro, 429 U.S.
181 283,284,288-290,293,297
Mathews v. Eldridge, 424 U.S.
319 10, 11, 13, 14, 17, 21, 22,
24, 25, 71, 72, 283, 285
Mathews v. Lucas, 427 U. S.
495 283-285,304,306
Max Morris, The, 137 U. S. 1 258
May v. Anderson, 345 U. S.
528 634
Mayer v. Development Corp.
of America, 396 F. Supp.
917 188
McDaniel v. Barresi, 402 U.S.
39 460,461,498
XVIll TABLE OF CASES CITED
Page
McDonald v. Sante Fe Trail
Transp. Co., 427 U.S. 273 201,
208,220,221
McGrath v. Kristensen, 340 u. s. 162 294
McGuire v. United States, 273 u. s. 95 925
McKeiver v. Pennsylvania, 403
U. S. 528 440,635
McNally v. Hill, 293 U. S.
131 586
Memphis Light, Gas & Water
Div. v. Craft, 436 U. S. 1 20,
22,28,29
Menominee Engineering Corp.
v. United States, 20 Fed.
Rules Serv. 2d 894 357
Menominee Tribe v. United
States, 391 U. S. 404 690
Meyer v. Nebraska, 262 U. S.
390 639
Milliken v. Bradley, 418 U. S.
717 471,482,488,490,696
Miranda v. Arizona, 384 U. S.
436 153,576
Missouri v. Holland, 252 U. S.
416 692
Mitchell v. Trawler Racer,
Inc., 362 U. S. 539 261
Mitchell v. W. T. Grant Co.,
416 u. s. 600 64
Mitchum v. Foster, 407 U. S.
225 336
Monell v. New York City
Dept. of Social Services, 436
U. S. 658 911,925,926
Monroe v. Board of Comm'rs,
391 U. S. 450 496
Monroe v. Pape, 365 U. S.
167 907,910i~ll,925,926
Moore v. Charlotte-Mecklenburg
Bd. of Ed., 402 U. S.
47 498
Moore v. East Cleveland, 431 u. s. 494 634, 639
Moore v. Simms, 442 U. S.
415 908
Moore v. State, 151 Ga. 648 431
Moore v. State, 260 Ind. 154 713
Morton v. Mancari, 417 U. S.
535 673
Page
Motor Vehicle Bd. of Cal. v.
Orrin W. Fox Co., 439 U. S.
96 70
Mt. Healthy City Bd. of Ed. v.
Doyle, 429 U. S. 274 465
Mullane v. Central Hanover
Trust Co., 339 U. S. 306 20, 28
Mullaney v. Wilbur, 421 U. S.
684 313,316,323
Murphy v. Florida., 421 U. S.
794 404,411,443,444
Napa Valley Co. v. Railroad
Comm'n, 251 U. S. 366 1304
NLRB v. Baptist Hospital,
Inc., 442 U. S. 773 903
NLRB v. Robbins Tire & Rubber
Co., 437 U. S. 214 351,354
NLRB v. Sears, Roebuck &
Co., 421 U. S. 132 351,
353-355,361,363
National League of Cities v.
Usery, 426 U. S. 833 585
National Socialist Party v.
Skokie, 432 U.S. 43 709, 711, 712
National Woodwork Mfrs. Assn.
v. NLRB, 386 U. S. 612 201
Neal v. Delaware, 103 U. S.
370 551,556
Neal v . State, 86 Okla. Cr. 283 430
Near v. Minnesota ex rel.
Olson, 283 U. S. 697 101,
102,106,343
Nebraska Press Assn. v. Stuart,
423 U. S. 1319 709-712
Nebraska Press Assn. v. Stuart,
423 U. S. 1327 710, 712
Nebraska Press Assn. v. Stuart,
427 U.S. 535 101, 102, 104, 106,
377, 379, 391, 393, 399,
400, 404, 405, 410, 411,
413, 441-444, 446, 447
Neil v. Biggers, 409 U. S. 188 144,
153
Neirbo Co. v. Bethlehem Corp.,
308 U. S. 165 180, 184
New York ex rel. Kennedy v.
Becker, 241 U. S. 556 678
New York Times Co. v. Sullivan,
376 U.S. 254 113, 133, 160,
161, 163, 164, 167, 168
New York Times Co. v. United
States, 403 U. S. 713 101,
102,711
TABLE OF CASES CITED XIX
Page
Nixon v. Warner Communications,
Inc., 435 U. S. 589 404,
411
Norris v. Alabama, 294 U. S.
587 572, 573
North American Storage Co.
v. Chicago, 211 U. S. 306 18,
21,25
North Carolina Bd. of Ed. v.
Swann, 402 U. S. 43 498, 695
Northeast Marine Terminal Co.
v. Caputo, 432 U. S. 249 259,
262,270,271
North Georgia Finishing, Inc.
v. Di-Chem, Inc., 419 U. S.
601
Norton v. Mathews, 427 U. S.
72
524 283,284
Offutt v. United States, 348 u. s. 11 412
Oklahoma Publishing Co. v.
District Court, 430 U. S.
308 103,393
Olberding v. Illinois Central R.
Co., 346 U. S. 338 180, 181, 184
Oliver, In re, 333 U. S. 257 380,
381, 412, 414, 418, 432
Oliver v. Michigan State Bd. of
Ed., 508 F. 2d 178 510,
513, 515, 519, 536
Olmstead v. United States, 277
U.S. 438 44
Organization for a Better
Austin v. Keefe, 402 U. S.
415 101,102
Orlando v. Fay, 350 F. 2d
967 388,430,431
Orr v. Orr, 440 U.S. 268 85, 89
Palko v. Connecticut, 302 U.S.
319
Papachristou v. Jacksonville,
147
405 U. S. 156 324
Parham v. J. R., 442 U.S. 584 639,
902
Parson v. Kaiser Aluminum &
Chemical Corp., 575 F. 2d
1374 210
Pasadena Bd. of Ed. v.
Spangler, 427 U.S. 424 482
Patterson v. New York, 432 u. s. 197 145,313,316
Patton v. Mississippi, 332 U.S.
463 590
Page
Patton v. United States, 281
U. S. 276 383,416,417
Pell v. Procunier, 417 U. S.
817 391,392,404,411
Pennekamp v. Florida, 328
U.S. 331 413
Pennsylvania v. Mimms, 434 u. s. 106 50
People v. Defore, 242 N. Y.
13 921,922
People v. Huntley, 15 N. Y. 2d
72 375
People v. Jones, 47 N. Y. 2d
1335 410
Perez v. Ledesma, 401 U.S. 82 585
Perry v. Sindermann, 408 U. S.
593 64,70
Personnel Administrator of
Mass. v. Feeney, 442 U. S.
256 294,465,481,509-513
Pettus v. Peyton, 207 Va. 906 312
Philbrook v. Glodgett, 421 U.S.
707 79
Phillips v. Commissioner, 283 u. s. 589 21
Phillips v. Evening Star Newspaper
Co., Civ. No. 9999-75
(D. C. Super. Ct.) 161
Pierce v. Society of Sisters, 268 u. s. 510 637, 639
Pierre v. Louisiana, 306 U. S.
354 551,554,582,590
Pierson v. Ray, 386 U. S. 547 38,
42
Pinto v. Pierce, 389 U. S. 31 437
Piper v. Chris-Craft Industries,
Inc., 430 U. S. 1 192
Planned Parenthood of Central
Mo. v. Danforth, 428 U. S.
52 624,633,639-
641, 643-645, 652-657
Plessy v. Ferguson, 163 U. S.
537 386
Poe v. Ullmann, 367 U.S. 497 147
Pope & Talbot, Inc. v. Hawn,
346 u. s. 406 258,259,261,271
Poulos v. New Hampshire, 345 u. s. 395 645
Freiser v. Rodriguez, 411 U. S.
475 586
Presbyterian Church v. Eastern
Heights Church, 224 Ga.
61 599-601,606
xx TABLE OF CASES CITED
Page
Presbyterian Church v. Hull
Church, 393 U. S. 440 599,
602-604, 612, 617, 618,
620, 621
Presnell v. Georgia, 439 U. S.
14 314
Prettner v. Aston, 339 F. Supp.
273 188
Prince v. Massachusetts, 321
U.S. 158 636,638,639
Procunier v. Martinez, 416
U. S. 396 398
Procunier v. Navarette, 434 u. s. 555 138, 139
Propper v. Clark, 337 U. S.
472 181
Puma v. Marriott, 294 F. Supp.
1116 188
Puyallap Tribe v. Washington
Game Dept., 391 U. S. 392 681,
682, 693, 702, 703, 705
Puyallup Tribe v. Washington
Game Dept., 433 u. S. 165 664,
676, 677, 681, 683, 685,
687, 689, 694, 695, 702,
703, 705
Radzanower v. Touche Ross &
Co., 426 U. S. 148 183
Raney v. Board of F,d., 391
U.S. 443 496
Reece v. Georgia, 350 U. S.
85 551,554,556,573,672
Reed v. The Yaka, 373 U. S.
410 264
Reeves v. State, 264 Ala. 476 431
Renegotiation Bd. v. Bannercraft
Clothing Co., 415 U. S.
1 351,357
Renegotiation Bd. v. Onimm:m
Aircraft Corp., 421 U. S.
168 351,354
Richardson v. Bekher, 404
U.S. 78 283,284
Richardson v. D.wis, 409 U. S.
1069 305
Richardson v. Griffin, 409 U.S.
1069 90,305
Richardson v. Perales, 402
U. S. 389 283,285
Richardson v. Wright, 405 U. S.
208 283,285
Rideau v. Louisiana., 373 U. S.
723 379,444
Page
Ritter v. Zuspan, 451 F. Supp.
926 183,188
Rizzo v. Goode, 423 U. S. 362 148
Robinson v. California, 370 u. s. 660 324
Rochin v. California, 342 U. S.
165 147,148,153
Roe v. Wade, 410 U.S. 113 147,
639, 641, 642, 651, 652
Rogers v. Alabama, 192 U. S.
226 551
Rogers v. Missouri Pacific R.
Co., 352 U. S. 500 926
Rosado v. Wyman, 397 U. S.
397 80
Rosenblatt v. Baer, 383 U.S. 75 134
Rosenbloom v. Metromedia,
Inc., 403 U. S. 29 134, 167
Rudolph, Ex parte, 276 Ala.
392 431
Rueben H. Donnelley Corp. v.
FTC, 580 F. 2d 264 184
Ryan Stevedoring Corp. v.
Pan-Atlantic S.S. Corp., 330 u. s. 124 262, 263, 277
St. Amant v. Thompson, 390
U. S. 727 134, 163
Samuels v. Empresa Lineas
Ma.ritimas Argentinas, 573
F. 2d 884 259
Sanders v. United States, 373
U.S. 1 584
Sandstrom v. Montana, 442
U. S. 510 472, 903
Saunders v. Reynolds, 214 Va.
697 311
Saxbe v. Washington Post Co.,
417 u. s. 843 391-393,
397,398,404
Schechtman v. Foster, 172 F.
2d 339 580
Schilb v. Kuebel, 404 U. S.
357 144,149
Schneckloth v. Bustamonte, 412
U.S.218 562,580,583,585,586
School Dist. of Omaha v.
United States, 433 U.S. 667 520
Schooner Catharine v. Dickinson,
17 How. 170 272
Scott v. Scott, (1913] A. C.
417 424
Scovill Mfg. Co. v. Sunbeam
Corp., 61 F. R. D. 598 362
TABLE OF CASES CITED XXI
Page
Screws v. United States, 325 u. s. 91 457
Scripps Co. v. Fulton, 100 Ohio
App. 157 430
Seas Shipping Co. v. Sieracki,
328 U. S. 85 261,262,277
Serbian Orthodox Diocese v.
Milivojevich, 426 U.S. 696 602-
605, 609, 612, 616-620
Seufert Bros. Co. v. United
States, 249 U. S. 194 671,
676,681,702
Shea v. Vialpando, 416 U. S.
251 79
Shellman v. United States
Lines, Inc., 528 F. 2d 675 259
Sheppard v. Maxwell, 384 U.S.
333 378,379,399,411-
413, 439, 441, 444, 446
Shiflett v. Commonwealth, 123
Va. 609 309
Sibron v. New York, 392 U.S.
40 39,43,45
Siler v. Louisville & Nashville
R. Co., 213 U. S. 175 122,161
Simmons v. United States, 390
U. S. 377 152, 153
Singer v. United States, 380 u. s. 24 382,383, 416-418, 426
Smallwood V. Lavalle, 377 F.
Supp. 1148 388
Smith v. Organization of Foster
Families, 431 U. S. 816 71,639
Smith v. State, 317 A. 2d 20 430
Smith v. Texas, 311 U.S. 128 551,
556, 564
Sohappy v. Smith, 302 F.
Supp. 899 684
Southeastern Promotions, Ltd.
v. Conrad, 420 U. S. 546 102
Southern Illinois Builders Assn.
v. Ogilvie, 471 F. 2d 680 198
Southern Pacific Terminal Co.
V. ICC, 219 u. S. 498 377
Speigner v. Jago, 603 F. 2d
1208 316
Speiser v. Randall, 357 U. S.
513 331,471
Spinelli v. United States, 393
U.S. 410 153
Spruytte v. Koehler, 590 F. 2d
335 316
Page
Stamicarbon, N. V. v. American
Cyanamid Co., 506 F. 2d 532 430
Stanley v. Illinois, 405 U. S.
645 20,27,30,639
Stanton v. Stanton, 421 U. S.
7 89
Stapleton v. Commonwealth,
123 Va. 825 309
State. See also name of State.
State v. Allen, 73 N. J. 132 430
State v. Beaudoin, 386 A. 2d
731 429
State v. Callahan, 100 Minn.
63 388,431
State v. Collins, 65 Tenn. 151 548
State v. Croak, 167 La. 92 388,431
State v. Holm, 67 Wyo. 360 430
State v. Keeler, 52 Mont. 205 429,
430
State v. Satiacum, 50 Wa.sh. 2d
513 684
State v. Schmit, 273 Minn. 78 429,
431
State v. White, 97 Ariz. 196 430
State ex rel. Gore Newspapers
Co. v. Tyson, 313 So. 2d 777 429
State ex rel. Varney v. Ellis,
149 W. Va. 522 430
Steffel v. Thompson, 415 U. S.
452 336
Stone v. Powell, 428 U. S.
465 321-323,
332, 337, 551, 559-564,
587, 919, 920, 923-925
Strauder v. West Virginia, 100 u. s. 303 552--555, 558,578,582
Stroble v. California, 343 U. S.
181 404,443,444,576
Swann v. Charlotte-Mecklenburg
Bd. of Ed., 402 U. S.
1 455, 458-460, 465,
468, 479, 482, 486-488,
497-499, 522, 524, 536-
538, 541, 542, 544, 696
Swift & Co. v. Wickham, 382 u. s. 111 190, 191
Tacoma v. Taxpayers, 357
U. s. 320 693, 695
Taylor v. Kentucky, 436 U. S.
478 320
Taylor v. Louisiana, 419 U. S.
522 89
XXII TABLE OF CASE1:1 CITED
Page
Teamsters v. United States, 431
U.S. 324 205, 213-215
Terry v. Ohio, 392 U. S. 1 44-46,
50,51,53,153,576
Texas & Pacific R. Co. v.
Abilene Cotton Oil Co., 204 u. s. 426 202
Thompson v. Louisville, 362 u. s. 199 312-316, 320, 321, 333
Time, Inc. v. Firestone, 424
U. S. 448 134, 135, 164-168
Times-Picayune Publishing
Corp. v. Schulingkamp, 419
U. S. 1301 411
Tinker v. Des Moines School
Dist., 393 U. S. 503 637
Tollett v. Henderson, 411 U. S.
258 559,576
Torres v. Puerto Rico, 442 u. s. 465 39, 43
Touche Ross & Co. v. Redington,
442 U. S. 560 192, 903
Townsend v. Sain, 372 U. S.
293 318,592
Train v. Colorado Public Interest
Research Group, 426
U.S. 1 201
Trainor v. Hernandez, 431 u. s. 434 908
Trial of John Lilburne, 4
How. St. Tr. 1270 387,420
Trimble v. Gordon, 430 U. S.
762 110,288,303,304
Tulee v. Washington, 315 U. S.
681 669,671,673,676,681,682
Turner v. Fouche, 396 U. S.
346 578,590,593
Turner v. Pennsylvania, 338
U. S. 62 153
U-Anchor Advertising, Inc. v.
Burt, 553 S. W. 2d 760 181
Ulster County Court v. Allen,
442 u. s. 140 156,472,903
United States v. Allegheny-
Ludlum Industries, Inc., 517
F. 2d 826 210
United States v. Amato, 495
F. 2d 545 319
United States v. American
Trucking Assns., 310 U. S.
534 201
United States v. Antelope, 430 u. s. 641 673
Page
United States v. Article of
Drug, 43 F. R. D. 1 362
United States v. Bell, 464 F. 2d
667 439
United States v. Blue, 384 U.S.
251 576,577
United States v. Brewster, 408
U. S. 501 121,
124, 126, 127, 131, 132
United States v. Brignoni-
Ponce, 422 U. S. 873 50-52
United States v. Callandra, 414 u. s. 338 575, 577, 924
United States v. Carden, 529
F. 2d 443 35
United States v. Cianfrani, 573
F. 2d 835 382,
429, 430, 434, 440, 445
United States v. Clark, 475 F.
2d 240 430,434
United States v. Diebold, Inc.,
369 u. s. 654 162
United States v. Doe, 455 F.
2d 753 127
United States v. Elevator Constructors,
538 F. 2d 1012
United States v. Fearn, 589 F.
198
2d 1316 329
United States v. Feinberg, 140
F. 2d 592 318
United States v. Hall, 472 F. 2d
261 692
United States v. Johnson, 383 u. s. 169 121, 124, 131
United States v. Jorgenson, 451
F. 2d 516 319
United States v. Kilgen, 445
F. 2d 287
United States v. Mackey, 387
35
F. Supp. 1121 156
United States v. Marion, 404
U. S. 307 144
51
United States v. Martinez-
Fuerte, 428 U. S. 543
United States v. Montgomery
County Bd. of Ed., 395 U.S.
225 497
United States v. Nixon, 418 u. s. 683 362
United States v. Peltier, 422
U. S. 531 925
TJnited States v. Powers, 305 u. s. 527 684
TABLE OF CASES CITED XXIII
Page
United States v. Proctor &
Gamble Co., 356 U. S. 677 356
United States v. Public Utilities
Comm'n, 345 U. S. 295 202,
228,230
United States v. Raines, 362 u. s. 17 69
United States v. Reliable
Transfer Co., 421 U. S. 397 259,
271,272,276,278
United States v. Robinson, 414 u. s. 218 35
United States v. Rutherford,
442 u. s. 554 221
United States v. Scotland Neck
Bd. of Ed., 407 U. S. 484 459,
505,506,538
United States v. Standard Oil
Co., 23 F. R. D. 1 362
United States v. Tarr, 589 F.
2d 55 329
United States v. Taylor, 464
F. 2d 240 318
United States v. Thirty-seven
Photographs, 402 U. S. 363 711
United States v. United States
Gypsum Co., 333 U. S. 364 465
United States v. Utah Construction
Co., 384 U.S. 394 1304
United States v. Wade, 388 u. s. 218 153
United States v. Whetzel, 191
U. S. App. D. C. 184 329
United States v. Winans, 198 u. s. 371 669,671,673,676,
678, 679, 681, 682, 686,
693, 698, 700--702, 705
U. S. Dept. of Agriculture v.
Moreno, 413 U. S. 528 90
United States ex rel. Orlando
v. Fay, 350 F. 2d 967 388,
430,431
United States ex rel. Smallwood
v. La Valle, 377 F. Supp. 1148 388
University of California Regents
v. Bakke, 438 U.S. 265 206,
216,386
V. v. City of New York, 407
U.S. 203 316
Vachon v. New Hampshire,
414 U. S. 478 314, 332, 333
Vance v. Bradley, 440 U. S.
93 67,68,304
Page
Varney v. Ellis, 149 W. Va.
522 430
Vendo Co. v. Lektro-Vend
Corp., 433 U. S. 623 692
Virginia, Ex parte, 100 U. S.
339 457,578
Virginia v. Rives, 100 U. S.
313 556,562,584
Wainwright v. Sykes, 433 U. S.
72 321,584
Ward v. Race Horse, 163 U. S.
504 682
Washington v. Davis, 426 U. S.
229 464,465,470,481,
501, 508, 509, 511, 513,
515, 518-520, 538, 590
Washington v. Washington
Commercial Passenger Fishing
Vessel Assn., 443 U. S.
658 914
Washington v. Yakima Indian
Nation, 439 U. S. 463 676
Washington Game Dept. v.
Puyallup Tribe, 414 U. S.
44 681-684,702,703,705,708
Washington & Georgetown R.
Co. v. Hickey, 166 U.S. 521 260
Washington Times Co. v. Bonner,
66 App. D. C. 280 161
Wason v. Walter, 4 L. R. 73 423
Watkins, Ex parte, 3 Pet. 193 580
Watson v. Jones, 13 Wall. 679 599,
602, 603, 610, 612, 615-
619
Weber v. Aetna Casualty &
Surety Co., 406 U. S. 164 288,
297,302,304,305
Weeks v. United States, 232 u. s. 383 916,917, 920-923, 928
Weinberger v. Salfi, 422 U. S.
749 283-285,290-293
Weinberger v. Wiesenfeld, 420
U. S. 636 84-86, 90,283,284,
286-288, 294, 297, 301
Weinstein v. Bradford, 423 u. s. 147 377
Welsh v. United States, 398 u. s. 333 89, 94
West v. American Tel. & Tel.
Co., 311 U. S. 223 161
Whalen v. Roe, 429 U. S. 589 655
Williams v. Peyton, 414 F. 2d
776 322
XXIV TABLE OF CASES CITED
Paire
Williamson v. Lee Optical Co.,
348 U. S. 483 89
Wilson v. Omaha Indian Tribe,
442 u. s. 653 902
Winship, In re, 397 U. S. 358 309,
312-323, 324, 326, 327,
330-335, 339, 586, 634,
714
Winters v. New York, 333
U.S. 507 645
Winters v. United States, 207
U. S. 564 684, 686
Wisconsin v. Yoder, 406 U. S.
205 638,639
Wolf v. Colorado, 838 U. 8.
25 921-923,926,928
W olston v. Reader's Digest
Assn., 443 U. S. 157 123, 135
Wood v. Georgia, 370 U. S.
375 413
Wood v. Strickland, 420 U. S.
308 139
Paire
Woodby v. INS, 385 U.S. 276 315,
319,334
Wright v. Council of City of
Emporia, 4<Yl U. S. 451 459,
490,505,506,538
Wright v. Rockefeller, 376 u. s. 52 506
Xerox Corp. v. IBM Corp., 64
F. R. D. 367 362
Yick Wo v. Hopkins, 118 U.S.
356 457
Younger v. Harris, 401 U. S.
37 585,907,908
Youngstown Sheet & Tube Co.
v. Sawyer, 343 U. S. 579 226
Zacchini v. Scripps-Howard
Broadcasting Co., 433 U. S.
562 1304
Zapico v. Bucyrus-Erie Co.,
579 F. 2d 714 259, 269
Zemel v. Rusk, 381 U. S. 1 4-04
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1978
MACKEY, REGISTRAR OF MOTOR VEHICLES OF
MASSACHUSETTS v. MONTRYM
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS
No. 77-69. Argued November 29, 1978-Decided June 25, 1979
A Massachusetts statute mandates suspension of a driver's license for
refusing to take a breath-analysis test upon arrest for operating a motor
vehicle while under the influence of intoxicating liquor. The Registrar
of Motor Vehicles must order a 90-day suspension upon receipt of the
police report of the licensee's refusal to take such test; the licensee, after
surrendering his license, is entitled to an immediate hearing before the
Registrar. Appellee, whose license was suspended under the statute,
brought a class action in Federal District Court alleging that the
Massachusetts statute was unconstitutional on its face and as applied in
that it authorized the suspension of ,his license without affording him a
presuspension hearing. The District Court held that appellee was
entitled as a matter of due process to some sort of presuspension bearing,
declared the statute unconstitutional on its face as violative of the
Due Process Clause of the Fourteenth Amendment, and granted
injunctive relief.
Held: The Massachusetts statute is not void on its face as violative of the
Due Process Clause. Cf. Di:ron v. Love, 431 U. S. 105. Pp. 10-19.
(a) Suspension of a driver's license for statutorily defined cause implicates
a property interest protected by the Due Process Clause. Resolution
of the question of what process is due to protect against an erroneous
deprivation of a protectible property interest requires consideration
1
2 OCTOBER TERM, 1978
Syllabus 443 U.S.
of (i) the nature and weight of the private interest affected by the
official action challenged; (ii) the risk of an erroneous deprivation of
such interest as a consrquence of the summary procedures used; and
(iii) the governmental function involved and state interests served by
such procedures, as well as the administrative and fiscal burdens, if any,
that would result from the substitute procedures sought. Mathews v.
Eldridge, 424 U. 8. 319. Pp. 10--11.
(b) Here, neither the nature of the private int~rest involved-the
licensre's interest in the continued possession and use of his license
pending the outcome of the hearing due him-nor its weight compels a
conclusion that the summary suspension procedures are unconstitutional,
particularly in view of the postsuspension hearing immediarely available
and of the fact that the suspension is for a maximum of only 90
days. Pp. 11-12.
(c) Nor is the risk of error inherent in the presuspension procedure
so substantial in itself as to require a departure from the "ordinary
principle" that "something less than an evidentiary hearing is sufficient
prior to adverse administrative action." Dixon v. Love, supra, at 113.
The risk of erroneous observation or deliberate misrepresentation by the
reporting police officer of the facts forming the basis for the suspension
is insubstantial. When there are disputed facts, the risk of error inherent
in the statute's initial reliance on the reporting officer's representations
is not so substantial in itself as to require the Commonwealth to
stay its hand pending the outcome of any evidentiary hearing necessary
to resolve questions of credibility or conflicts in the evidence. Pp.
13--17.
(d) Finally, the compelling interest in highway safety justifies Ma.ssaohusetts
in making a summary suspension effective pending the outcome
of the available prompt postsuspension hearing. Such interest is substantially
served by the summary suspension because (i) it acts as a
deterrent to drunk driving; (ii) provides an inducement to take the
breath-analysis test, permitting the Commonwealth to obtain a reliable
form of evidence for use in subsequent criminal proceedings; and
(iii) summarily removes from the road licensees arrested for drunk
driving who refuse to take the test. Conversely, a presuspcnsion hearing
would substantially undermine the Commonwealth's interest in public
safety by giving drivers an incentive to refuse the breath-analysis test and
demand suoh a hearing as a dilatory tactic, which in turn would cause
a sharp increase in the number of hearings sought and thus impose a
substantial fiscal and administrative burden on the Commonwealth.
Nor is it any answer to the Commonwealth's interest in public safety
I
MACKEY v. MONTRYM 3
Opinion of the Court
promoted by the summary sanction that such interest could be served as
well in other ways. A state has the right to offer incentives for taking
the breath-analysis test and, in exercising its police powers, is not required
by the Due Process Clause to adopt an "all or nothing" approach to the
acute safety hazard posed by drunk drivers. Pp. 17-19.
429 F. Supp. 393, reversed and remanded.
BURGER, C. J., delivered the opinion of the Court, in which WHITE,
BLACKMUN, POWELL, and REHNQUJST, JJ., joined. STEWART, J., filed a
dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ.,
joined, post, p. 19.
Mitchell J. Sikora, Jr., Assistant Attorney General of Massachusetts,
argued the cause for appellant. With him on
the briefs were Francis X. Bellotti, Attorney General, and
S. Stephen Rosenfeld and Steven A. Rusconi, Assistant Attorneys
General.
Robert W. Hagopian argued the cause and filed a brief for
appellee.
MR. CHIEF JUSTICE BuRGER delivered the opinion of the
Court.
The question presented by this appeal is whether a Massachusetts
statute that mandates suspension of a driver's license
because of his refusal to take a breath-analysis test upon arrest
for driving while under the influence of intoxicating liquor is
void un its face as violative of the Due Process Clause of the
Fourteenth Amendment.
Commonly known as the implied consent law, the Massachusetts
statute provides:
"Whoever operates a motor vehicle upon any [public]
way ... shall be deemed to have consented to submit to
a chemicai test or analysis of his breath in the event that
he is arrested for operating a motor vehicle while under
the influence of intoxicating liquor. . . . If the person
arrested refuses to submit, to such test or analysis, after
4 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
having been informed that his license . . . to operate
motor vehirles ... in the commonwealth shall be suspended
for a period of ninety days for such refusal, no
such test or analysis shall be made, but the police officer
before whom such refusal was made shall immediately
prepare a written report of such refusal [, which] . . .
shall be endorsed by a third person who shall have witnessed
such refusal(,] ... shall be sworn to under the
penalties of perjury by the police officer before whom
such refusal was madef ,] ... shall set forth the grounds
for the officer's belief that the person arrested had been
driving a motor vehicle ... while under the influence of
intoxicating liquor, and shall state that such person had
refused to submit to such chemical test or analysis when
requt>sted by such police officer to do so. Each such
report shall be endorsed by the police chief . . . and shall
be sent forthwith to the registrar. Fpon receipt of such
report, the registrar shall suspend any license or permit to
opt=>rate motor vt=>hirles issued to such person ... for a
period of ninety days." Mass. Gen. Laws Ann., ch. 90,
§ 24 (l)(f) (West Supp. 1979).
I
While driving a vehicle in Acton, Mass., appellee Donald
Montrym was involved in a collision about 8: 15 p. m. on
May 15, 1976. Upon arrival at the scene of the accident an
Acton police officer observed, as he wrote in his official report,
that Montrym was "idassy t>yed.'' unstt=>ady on his feet, slurring
his speech, and emitting a stron~ alcoholic odor from his
person. The officer arrested Montrym at 8: 30 p. m. for operating
his vehicle while under the influence of intoxicating
liquor, driving to endanger, and failing to produce his motor
vehicle registration upon request. Montrym was then taken
to the Acton police station.
MACKEY v. MONTRYM 5
1 Opinion of the Court
There, Montrym was asked to take a breath-analysis examination
at 8:45 p. m. He refused to do so.1 Twenty minutes
after refusing to take the test and shortly after consulting his
lawyer, Montrym apparently sought to retract his prior refusal
by asking the police to administer a breath-analysis test.
The police declined to comply with Montrym's belated request.
The statute leaves an officer no discretion once a
breath-analysis test has been refused: "If the person arrested
refuses to submit to such test or analysis, ... the police officer
before whom such refusal was made shall immediately prepare
a written report of such refusal." § 24 ( 1) ( f) ( emphasis
added). The arresting officer completed a report of the
events, including the refusal to take the test.
As mandated by the statute, the officer's report recited
(a) the fact of Montrym's arrest for driving while under the
influence of intoxicating liquor, (b) the grounds supporting
that arrest, and ( c) the fact of his refusal to take the breathanalysis
examination. As required by the statute, the officer's
report was sworn to under penalties of perjury, and endorsed
by the arresting officer and another officer present when Montrym
ref used to take the test; it was counterendorsed by the
chief of police. The report was then sent to the Massachusetts
Registrar of Motor Vehicles pursuant to the statute.
On June 2, 1976, a state court dismissed the complaint
brought against Montrym for driving v.fole under the influence
of intoxicating liquor.2 Dismissal apparently was predicated
on the refusal of the police to administer a breath-analysis
test at Montrym's request after he sought to retract his initial
1 Montrym does not deny having refused the test; he claims that he was
not advised of the ma.ndatory 90-day suspension penalty prior to his
refusal, as required by the statute; however, the officer's report of refusal
asserts that Montrym was given the required prior warning.
2 Montrym was also acquitted on the driving-to-endanger charge but was
found guilty on the registration charge and fined $15.
6 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
refusal to take the test. The dismissal order of the state court
cryptically recites:
"Dismissed. Breathalyzer refused
within ½ hr of arrest at station.
memorandum."
when requested
See affidavit &
According to Montrym's affidavit incorporated by reference in
the state court's dismissal order, he was visited by an attorney
at 9:05 o'clock on the night of his arrest; and, after consulting
with counsel, he requested a breath-analysis test. The police,
however, refused the requests made by Montrym and his
counsel between 9:07 and 10:07 p. m.
Montrym's attorney immediately advised the Registrar by
letter of the dismissal of this charge and asked that the Registrar
stay any suspension of Montrym's driver's license. Enclosed
with the letter was a copy of Montrym's affidavit attesting
to the officer's refusal to administer a breath-analysis
test at his request. However, Montrym's attorney did not
enclose a certified copy of the state court's order dismissing
the charge.
The Registrar, who has no discretionary authority to stay a
suspension mandated by the statute,3 formally suspended
Montrym's license for 90 days on June 7, 1976. The suspension
notic_e stated that it was effective upon its issuance and
directed Montrym to return his license at once. It advised
Montrym of his right to appeal the suspension.•
5 It provides in relevant part:
"Upon receipt of such report [ of refusal] , the registrar shall suspend any
license ... issued to such person ... for a period of ninety days." Mass.
Gen. Laws Ann., ch. 90, § 24 (1) (f) (West Supp. 1979) (emphasis added).
M~chusetts Gen. Laws Ann., ch. 90, § 28 (West 1969), provides that
any person aggrieved by a ruling of the Registrar may appeal such ruling
to the Board of Appeal, which may, after a hearing, order such ruling to
be affirmed, modified, or annulled. However, no such appeal shall operate
to stay any ruling of the Registrar. In turn, the Board's decision is subject
to judicial review. Mass. Gen. Laws Ann., ch. 30A, § 14 (West 1979).
MACKEY v. MONTRYM 7
1 Opinion of the Court
When Montrym received the suspension notice, his attorney
requested an appeal on the question of whether Montrym
had in fact refused a breath-analysis test within the meaning
of the statute. Montrym surrendered his license by mail on
June 8, 1976.
Under the Massachusetts statute, Montrym could have obtained
an immediate hearing before the Registrar at any
time after he had surrendered his license; that hearing would
have resolved all questions as to whether grounds existed for
the suspension.5 For reasons not explained, but presumably
5 Massachusetts Gen. Laws Ann., ch. 90, § 24 (1) (g) (West 1969),
provides:
"Any person whose license, permit or right to operate has been suspended
under paragraph (f) shall be entitled to a hearing before the registrar
which shall be limited to the following issues: (1) did the police officer
have reasonable grounds to believe that such person ha.d been operating
a motor vehicle while under the influence of intoxicating liquor upon any
[public] way ... , (2) was such person placed under arrest, and (3) did
such person refuse to submit to such test or analysis. If, after such
hearing, the registrar finds on any one of the said issues in the negative,
the registrar shall reinstate such license, permit or right to operate."
As stipulated by the parties, the § 24 (1) (g) hearing is available the
moment the driver surrenders his license. At the hearing, the suspended
driver may be represented by counsel. Upon request, a hearing officer
will examine the report of refusal and return the driver's license immediately
if the report does not comply with the requirements of§ 24 (1) (f) .
If the report complies with those requirements, the burden is on the driver
to show either that he was not arrested, that there was no probable cause
for arrest, or that he did not refuse to take the breath-analysis test. The
hearing may be adjourned at the request of the driver or sua S'J)onte by
the hearing officer in order to permit the attendance of witnesses or
for the gathering of relevant evidence. Witnesses at the hearing are
subject to cross-examination by the driver or his attorney, and he may
appeal a.n adverse decision of the Registrar to the Board of Appeal
pursuant to § 28.
The Registrar has represented to the Court that a driver can obtain a
decision from the hearing officer within one or two days following the
driver's receipt of the suspension notice. Montrym asserts that greater
delay will occur if the driver raises factual issues requiring the taking of
8 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
on advice of counsel, Montrym failed to exercise his right to
a hearing before the Registrar; instead, he took an appeal to
the Board of Appeal. On June 24, 1976, the Board of Appeal
advised Montrym by letter that a hearing of his appeal would
be held on July 6, 1976.
Four days later, Montrym's counsel made demand upon the
Registrar by letter for the return of his driver's license. The
letter reiterated Montrym's acquittal of the driving-under-theinfl.
uence charge, asserted that the state court's finding that
the officer had refused to administer a breath-analysis test was
binding on the Registrar, and declared that suspension of
Montrym's license without first holding a hearing violated his
right to due process. The letter did not contain a copy of
the state court's dismissal order, but did threaten the Registrar
with suit if the license were not returned immediately. Had
Montrym's counsel enclosed a copy of the order dismissing the
drunken-driving charge, the entire matter might well have
been disposed of at that stage without more.
Thereafter, forgoing his administrative appeal scheduled
for hearing on July 6, Montrym brought this action asking
the convening of a three-judge United States District Court.
The complaint alleges that § 24 (I) (f) is unconstitutional on
its face and as applied in that it authorized the suspension of
Montrym's driver's license without affording him an opportunity
for a presuspension hearing. Montrym sought a
temporary restraining order enjoining the suspension of his
license, compensatory and punitive damages, and declaratory
and injunctive relief on behalf of all persons whose licenses
had been suspended pursuant to the statute without a prior
hearing.
On July 9, 1976, a single District Judge issued the temporary
restraining order sought by Montrym and directed
evidence. But, even under his more pessimistic view, which takes into
account the possibility of intervening weekends, the driver will obtain
a decision from the hearing officer within 7 to 10 days.
MACKEY v. MONTRYM 9
1 Opinion of the Court
the Registrar to return Montrym's license pending further
order of the court. Subsequently, a three-judge District Court
was convened pursuant to 28 U.S. C. §§ 2281 (1970 ed.), 2284,
and Montrym moved for partial summary judgment on
stipulated facts.
With one judge dissenting, the three-judge District Court
granted Montrym's motion. Relying principally on this
Court's decision in Bell v. Burson, 402 U.S. 535 (1971), the
District Court concluded that Montrym was entitled as a matter
of due process to some sort of a presuspension hearing
before the Registrar to contest the allegation of his refusal to
take the test. In a partial summary judgment order issued
on April 4, and a final judgment order issued on April 12, the
District Court certified the suit under Fed. Rule Civ. Proc.
23 (b) (2) as a class action on behalf of all persons ,vhose licenses
to operate a motor vehicle had been suspended pursuant
to Mass. Gen. Laws Ann., ch. 90, § 24 (l)(f) (West Supp.
1979). The court then declared the statute unconstitutional
on its face as violative of the Due Process Clause, permanently
enjoined the Registrar from further enforcing the
statute, and directed him to return the driver's licenses of
the plaintiff class members. M ontrym v. Panora, 429 F.
Supp. 393 (Mass. 1977).
After taking timely appeals from the District Court's judgment
orders, the Registrar moved the District Court for a
stay and modification of its judgment, which motions were
denied. After release of our opinion in Dixon v. Love, 431
U.S. 105 (1977), upholding the constitutionality of an Illinois
statute authorizing the summary suspension of a driver's license
prior to any evidentiary hearing, the Registrar moved
for reconsideration of his motions for a stay and modification
of judgment.
In a second opinion issued October 6, 1977, the District
Court reasoned that Love was distinguishable on several
grounds and denied the Registrar's motion to reconsider; the
10 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
dissenting judge thought Love controlled. M ontrym v.
Panora, 438 F. Supp. 1157 (Mass. 1977).
We noted probable jurisdiction following the submission of
supplemental briefs by the parties. Sub nom. Panora v.
Montrym, 435 U. S. 967 (1978). We reverse.6
II
The Registra.r concedes here that suspension of a driver's
license for statutorily defined cause implicates a protectible
property interest; 7 accordingly, the only question presented
by this appeal is what process is due to protect against an
erroneous deprivation of that interest. Resolution of this
inquiry requires consideration of a number of factors:
"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." Mathews v.
Eldridge, 424 U.S. 319,335 (1976).
6 Because the District Court held the statute unconstitutional on its face
and granted classwide relief, it never reached the "as applied" challenge
raised in Montrym's complaint; nor do we. The validity of that challenge,
and the resolution of any contested factual issues relevant to it, must be
determined by the District Court on remand in light of our opinion.
Also, the question of whether the Commonwealth is constitutionally required
to give notice of the § 24 (1) (g) hearing procedure independent
of the notice given by the statute itself was neither framed by the pleadings
nor decided by the District Court; it is not properly before us notwithstanding
the observations of the dissenting opinion on this issue. See
post, at 27-28, and n. 4.
7 That the Due Process Clause applies to a state's suspension or revocation
of a driver's license is clear from our decisions in Dixon v. Love, 431
U.S. 105, 112 (1977), and Bell v. Burson, 402 U.S. 535, 539 (1971).
MACKEY v. MONTRYM 11
1 Opinion of the Court
Applying this balancing test, the District Court concluded
due process required an opportunity for hearing before suspension
of a license. 429 F. Supp., at 398-400. Later, the
court further held that our decision in Dixon v. Love, supra,
did not control. Love was thought distinguishable because the
potential for irreparable personal and economic hardship was
regarded as greater under the Massachusetts statutory scheme
than the Illinois scheme; the risk of error was deemed more
substantial as well; and requiring a hearing before suspending
a driver's license for refusing to take a breath-analysis test was
believed not to offend the state interest in safe highways.
438 F. Supp., at 1159-1161.
We conclude that Love cannot be materially distinguished
from the case before us. Both cases involve the constitutionality
of a statutory scheme for administrative suspension of a
driver's license for statutorily defined cause without a presuspension
hearing. In each, the sole question presented is
the appropriate timing of the legal process due a licensee.
And, in both cases, that question must be determined by reference
to the factors set forth in Eldridge.
A
The first step in the balancing process mandated by Eldridge
is identification of the nature and weight of the private interest
affected by the official action challenged. Here, as in Love,
the private interest affected is the granted license to operate
a motor vehicle. More particularly, the driver's interest is
in continued possession and use of his license pending the outcome
of the hearing due him. As we recognized in Love, that
interest is a substantial one, for the Commonwealth will not
be able to make a driver whole for any personal inconvenience
and economic hardship suffered by reason of any delay in redressing
an erroneous suspension through postsuspension review
procedures. 431 U. S., at 113.
But, however substantial Montrym's property interest may
12 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
be, it is surely no more substantial than the interest involved
in Love. The private interest involved here actually is less
substantial, for the Massachusetts statute authorizes suspension
for a maximum of only 90 days, while the Illinois scheme
permitted suspension for as long as a year and even allowed
for the possibility of indefinite revocation of a license.
To be sure, as the District Court observed, the Illinois
statute in Love contained provisions for hardship relief
unavailable under the Massachusetts statute. Though we
adverted to the existence of such provisions in Love, they
were in no sense the "controlling" factor in our decision that
the District Court believed them to be. 438 F. Supp., at 1159.
Hardship relief was available under the Illinois scheme only
after a driver had been suspended and had demonstrated his
eligibility for such relief. See Dixon v. Love, 431 U. S., at 114
n. 10. The bearing such provisions had in Love stemmed
from the delay involved in providing a postsuspension hearing.
Here, unlike the situation in Love, a postsuspension
hearing is available immediately upon a driver's suspension
and may be initiated by him simply by walking into one of the
Registrar's local offices and requesting a hearing. The Love
statute, in contrast, did not mandate that a date be set for a
postsuspension hearing until 20 days after a written request
for such a hearing was received from the affected driver. Id.,
at 109-110.
The duration of any potentially wrongful deprivation of a
property interest is an important factor in assessing the impact
of official action on the private interest involved. Fusari v.
Steinberg, 419 U. S. 379, 389 (1975). The District Court's
failure to consider the relative length of the suspension periods
involved in Love and the case at bar, as well as the relative
timeliness of the postsuspension review available to a
suspended driver, was erroneous. Neither the nature nor
the weight of the private interest involved in this case compels
a result contrary to that reached in Love.
MACKEY v. MONTRYM 13
1 Opinion of the Court
B
Because a primary function of legal process is to minimize
the risk of erroneous decisions, Greenholtz v. Nebraska Penal
Inmates, 442 U. S. 1, 12---13 (1979); Addington v. Texas, 441
U.S. 418,423 (1979), the second stage of the Eldridge inquiry
requires consideration of the likelihood of an erroneous deprivation
of the private interest involved as a consequence of
the procedures used. And, although this aspect of the Eldridge
test further requires an assessment of the relative reliability
of the procedures used and the substitute procedures
sought, the Due Process Clause has never been construed to
require that the procedures used to guard against an erroneous
deprivation of a protectible "property" or "liberty" interest be
so comprehensive as to preclude any possibility of error. The
Due Process Clause simply does not mandate that all governmental
decisionmaking comply with standards that assure perfect,
error-free determinations. Greenholtz v. Nebraska Penal
Inmates, supra, at 7. Thus, even though our legal tradition
regards the adversary process as the best means of ascertaining
truth and minimizing the risk of error, the "ordinary principle"
established by our prior decisions is that "something
less than an evidentiary hearing is sufficient prior to adverse
administrative action." Dixon v. Love, supra, at 113. And,
when prompt postdeprivation review is available for correction
of administrative error, we have generally required no
more than that the predeprivation procedures used be designed
to provide a reasonably reliable basis for concluding
that the facts justifying the official action are as a responsible
governmental official warrants them to be. See, e. g., Barry v.
Barchi, post, at 64---65; Mat hews v. Eldridge, 424 U. S., at 334.
As was the case in Love, the predicates for a driver's suspension
under the Massachusetts scheme are objective facts
either within the personal knowledge of an impartial government
official or readily ascertainable by him. Cause arises
for license suspension if the driver has been arrested for
14 OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
driving while under the influence of an intoxicant, probable
cause exists for arrest, and the driver refuses to take a
breath-analysis test. The facts of the arrest and the driver's
refusal will inevitably be within the personal knowledge of
the reporting officer; indeed, Massachusetts requires that the
driver's refusal be witnessed by two officers. At the very
least, the arresting officer ordinarily will have provided the
driver with an informal opportunity to tell his side of the story
and, as here, will have had the opportunity to observe the
driver's condition and behavior before effecting any arrest.
The District Court, in holding that the Due Process Clause
mandates that an opportunity for a further hearing before the
Registrar precede a driver's suspension, overstated the risk
of error inherent in the statute's initial reliance on the corroborated
affidavit of a law enforcement officer. The officer
whose report of refusal triggers a driver's suspension is a
trained observer and investigator. He is, by reason of his
training and experience, well suited for the role the statute
accords him in the presuspension process. And, as he is
personally subject to civil liability for an unlawful arrest and
to criminal penalties for willful misrepresentation of the facts,
he has every incentive to ascertain accurately and truthfully
report the facts. The specific dictates of due process must
be shaped by "the risk of error inherent in the truthfinding
process as applied to the generality of cases" rather than the
"rare exceptions." Mathews v. Eldridge, supra, at 344. And,
the risk of erroneous observation or deliberate misrepresentation
of the facts by the reporting officer in the ordinary case
seems insubstantial.
Moreover, as this case illustrates, there will rarely be any
genuine dispute as to the historical facts providing cause for a
suspension. It is significant that Montrym does not dispute
that he was arrested, or that probable cause existed for his
arrest, or that he initially refused to take the breath-analysis
test at the arresting officer's request. The allegedly "factual"
MACKEY v. MONTRYM 15
1 Opinion of the Court
dispute that he claims a constitutional right to raise and have
determined by the Registrar prior to his suspension really presen
ts questions of law; namely, whether the state court's
subsequent finding that the police later refused to administer
a breath-analysis test at Montrym's request is binding on the
Registrar as a matter of collateral estoppel; and, if so, whether
that finding undermines the validity of Montrym's suspension,
which may well be justified under the statute solely on the
basis of Montrym's initial refusal to take the breath-analysis
test and notwithstanding the officer's subsequent refusal to
honor Montrym's belated request for the test.8 The Commonwealth
must have the authority, if it is to protect people
from drunken drivers, to require that the breath-analysis test
record the alcoholic content of the bloodstream at the earliest
possible moment.
Finally, even when disputes as to the historical facts do
arise, we are not persuaded that the risk of error inherent in the
statute's initial reliance on the representations of the reporting
officer is so substantial in itself as to require that the
Commonwealth stay its hand pending the outcome of any
evidentiary hearing necessary to resolve questions of credibility
or conflicts in the evidence. Cf. Barry v. Barchi, post,
at 64--65. All that Montrym seeks was available to him immediately
upon his suspension, and we believe that the "same
day" hearing before the Registrar available under § 24 ( 1) (g)
provides an appropriately timely opportunity for the licensee
to tell his side of the story to the Registrar, to obtain correction
of clerical errors, and to seek prompt resolution of any
factual disputes he raises as to the accuracy of the officer's
report of refusal.
8 An evidentiary hearing into the historical facts would be ill suited
for resolution of such questions of law. Indeed, it is not clear whether
the Registrar even has the plenary authority to resolve such questions.
Ultimately, any legal questions must be resolved finally by the Massachusetts
courts on judicial review of the decision of the Board of Appeal after
any appeal taken from the ruling of the Registrar. See n. 4, supra.
16 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
Nor would the avowedly "nonevidentiary" presuspension
hearing contemplated by the District Court substantially enhance
the reliability of the presuspension process. Clerical
errors and deficiencies in the officer's report of refusal, of
course, could be called to the Registrar's attention if the driver
were provided with an opportunity to respond to the report
in writing prior to suspension. But if such errors and deficiencies
are genuinely material they already will have been noted
by the Registrar in the ordinary course of his review of the
report. Just as the Registrar has no power to stay a suspension
upon receipt of a report of refusal that complies on its
face with statutory requirements, he has no power to suspend
a license if the report is materially defective. Necessarily,
then, the Registrar must submit the officer's report to his independent
scrutiny. This independent review of the report of
refusal by a detached public officer should suffice in the ordinary
case to minimize the only type of error that could be
corrected by something less than an evidentiary hearing.
The only other purpose that might be served by an opportunity
to respond to the report of refusal prior to a driver's
suspension would be alerting the Registrar to the existence
of factual disputes between the driver and the reporting
officer. This would be an exercise in futility, for the Registrar
has no discretion to stay a suspension pending the outcome
of an evidentiary hearing. And, it simply begs the question
of a driver's right to a presuspension evident-iary hearing
to suggest, as did the District Court, that the Registrar
be given such discretion. The Massachusetts Legislature has
already made the discretionary determination that the District
Court apparently would have the Registrar make on a caseby-
case basis. It has determined that the Registrar, who is
further removed in time and place from the operative facts
than the reporting officer, should treat a report of refusal that
complies on its face with the statutory requirements as presumptively
accurate notwithstanding any factual disputes
raised by a driver. Simply put, it has determined that the
MACKEY v. MONTRYM 17
1 Opinion of the Court
Registrar is not in a position to make an informed probablecause
determination or exercise of discretion prior to an evidentiary
hearing. We cannot say the legislature's judgment
in this matter is irrational.
In summary, we conclude here, as in Love, that the risk of
error inherent in the presuspension procedures chosen by the
legislature is not so substantial in itself as to require us to
depart from the "ordinary principle" that "something less
than an evidentiary hearing is sufficient prior to adverse administrative
action." 431 U. S., at 113. We fail to see how
reliability would be materially enhanced by mandating the
presuspension "hearing" deemed necessary by the District
Court.
C
The third leg of the Eldridge balancing test requires us to
identify the governmental function involved; also, to weigh
in the balance the state interests served by the summary
procedures used, as well as the administrative and fiscal burdens,
if any, that would result from the substitute procedures
sought.
Here, as in Love, the statute involved was enacted in aid of
the Commonwealth's police function for the purpose of protecting
the safety of its people. As we observed in Love, the
paramount interest the Commonwealth has in preserving the
safety of its public highways, standing alone, fully distinguishes
this case from Bell v. Burson, 402 U. S., at 539,
on which Montrym and the District Court place principal
reliance. See 431 U. S., at 114-115. We have traditionally
accorded the states great leeway in adopting summary
procedures to protect public health and safety. States
surely have at least as much interest in removing drunken
drivers from their highways as in summarily seizing mislabeled
drugs or destroying spoiled foodstuffs.9 E. g., Ewing v.
9 Drunken drivers accounted for 283 of the 884 traffic fatalities in Massachusetts
during 1975 alone and must have been responsible for countless
18 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
Mytinger & Casselberry, Inc., 339 U. S. 594 (1950); North
American Storage Co. v. Chicago, 211 U. S. 306 (1908).
The Commonwealth's interest in public safety is substantially
served in several ways by the summary suspension of
those who refuse to take a breath-analysis test upon arrest.
First, the very existence of the summary sanction of the statute
serves as a deterrent to drunken driving. Second, it provides
strong inducement to take the breath-analysis test and thus
effectuates the Commonwealth's interest in obtaining reliable
and relevant evidence for use in subsequent criminal proceedings.
Third, in promptly removing such drivers from the
road, the summary sanction of the statute contributes to the
safety of public highways.
The summary and automatic character of the suspension
sanction available under the statute is critical to attainment
of these objectives. A presuspension hearing would substantially
undermine the state interest in public safety by
giving drivers significant incentive to refuse the breath-analysis
test and demand a presuspension hearing as a dilatory tactic.
Moreover, the incentive to delay arising from the availability
of a presuspension hearing would generate a sharp increase in
the number of hearings sought and therefore impose a substantial
fiscal and administrative burden on the Commonwealth.
Dixon v. Love, 431 U. S., at 114.
Nor is it any answer to the Commonwealth's interest in
public safety that its interest could be served as well in other
ways. The fact that the Commonwealth, for po1icy reasons
of its own, elects not to summarily suspend those drivers who
other injuries to persons and property. App. 31. More people were
killed in alcohol-related traffic accidents in a year in this one State than
were killed in the tragic DG-10 crash at O'Hare Airport in May 1979.
Traffic deaths commonly exceed 50,000 annuaUy in the United States, and
approximately one-half of these fatalities are alcohol related. See U. S.
Dept. of Transportation, 1977 Highway Safety Act Report App. A-9
(Table A-1); U. S. Dept. of Health, Education, and Welfare, Third
Special Report on Alcohol and Health 61 (1978).
MACKEY v. MONTRYM 19
1 STEWART, J., dissenting
do take the breath-analysis test does not, as the District Court
erroneously suggested, in any way undermine the Commonwealth's
strong interest in summarily removing from the road
those who refuse to take the test. A state plainly has the
right to offer incentives for taking a test that provides the
most reliable form of evidence of intoxication for use in subsequent
proceedings. Indeed, in many cases, the test results
could lead to prompt release of the driver with no charge being
made on the "drunken driving" issue. And, in exercising its
police powers, the Commonwealth is not required by the Due
Process Clause to adopt an "all or nothing" approach to the
acute safety hazards posed by drunken drivers.
We conclude, as we did in Love, that the compelling interest
in highway safety justifies the Commonwealth in making a
summary suspension effective pending the outcome of the
prompt postsuspension hearing available.
Accordingly, the judgment of the District Court is reversed,
and the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
MR. JUSTICE STEWART, with whom MR. JusTICE BRENNAN,
MR. JusTICE MARSB:ALL, and MR. JuSTICE STEVENS join,
dissenting.
The question in this case, simply put, is whether a person
who is subject to losing his driver's license for three months
as a penalty for allegedly refusing a demand to take a breathanalysis
test is constitutionally entitled to some sort of hearing
before his license is taken away. In Massachusetts, such
suspensions are effected by the Registrar of Motor Vehicles
solely upon the strength of a policeman's affidavit recounting
his version of an encounter between the police and the motorist.
Mass. Gen. Laws Ann., ch. 90, § 24 (1) (f) (West Supp.
1979). The driver is afforded no opportunity, before this
deprivation occurs, to present his side of the story in a forum
20 OCTOBER TERM, 1978
STEWART, J., dissenting 443U.S.
other than a police station. He is given no notice of any
entitlement he might have to a "same day" hearing before the
Registrar. The suspension penalty itself is concededly imposed
not as an emergency measure to remove unsafe drivers
from the roads, but as a sanction to induce drivers to submit
to breath-analysis tests. In short, the critical fact that triggers
the suspension is noncooperation with the police, not drunken
driving. In my view, the most elemental principles of due
process forbid a State from extracting this penalty without
first affording the driver an opportunity to be heard.
A
Our decisions in Bell v. Burson, 402 U.S. 535, and Dixon v.
Love, 431 U. S. 105, made clear that a person's interest in his
driver's license is "property" that a State may not take away
,vithout satisfying the requirements of the due process guarantee
of the Fourteenth Amendment. And the constitutional
guarantee of procedural due process has always been understood
to embody a presumptive requirement of notice and a
meaningful opportunity to be heard before the Stat€ acts
finally to deprive a person of his property. Mullane v. Central
Hanover Trust Co., 339 U.S. 306, 313; Fuentesv. Shevin, 407
U. S. 67, 82; Boddie v. Connecticut, 401 U. S. 371, 378; Bell v.
Burson, supra, at 542; Memphis Light, Gas & Water Div. v.
Craft, 436 U. S. 1, 16, 19.
This settled principle serves to ensure that the person
threatened with loss has an opportunity to present his side of
the story to a neutral decisionmaker "at a time when the deprivation
can still be prevented." Fuentes v. Shevin, supra,
at 81-82. It protects not simply against the risk of an
erroneous decision. It also protects a "vulnerable citizenry
from the overbearing concern for efficiency ... that may characterize
praiseworthy government officials no less . . . than
mediocre ones." Stanley v. Illinois, 405 U. S. 645, 656. Cf.
Memphis Light, Gas & Water Div. v. Craft, supra, at 21 n.
28. The very act of dealing with what purports to be
MACKEY v. MONTRYM 21
1 STEWART, J., dissenting
an "individual case" without first affording the person involved
the protection of a hearing off ends the concept of
basic fairness that underlies the constitutional due process
guarantee.
When a deprivation is irreversible-as is the case with a
license suspension that can at best be shortened but cannot be
undone-the requirement of some kind of hearing before a
final deprivation takes effect is all the more important. Thus,
in Bell v. Burson, the Court deemed it fundamental that "except
in emergency situations" the State must afford a prior
hearing before a driver's license termination becomes effective.
402 U. S., at 542.1 In Bell, the State did provide a presuspension
administrative hearing, but the Court held that the
State could not, while purporting to condition a suspension
in part on fault, exclude the element of fault from consideration
in that hearing. The dimensions of a prior hearing may,
of course, vary depending upon the nature of the case, the
interests affected, and the prompt availability of adequate
postdeprivation procedures. Boddie v. Connecticut, supra;
Mathews v. Eldridge, 424 U. S. 319, 334-335. But when
adjudicative facts are involved, when no valid governmental
interest would demonstrably be disserved by delay, and when
full retroactive relief cannot be provided, an after-the-fact
1 Emergency situations have generally been defined as those in which
swift action is necessary to protect public health, safety, revenue or the
integrity of public institutions. See, e. g., Central Union Trw;t Co. v.
Garvan, 254 U. S. 554 (emergency action during wartime); Ewing v.
Mytinger & Casselberry, Inc., 339 U.S. 594 (seizure of misbranded drugs);
North American Storage Co. v. Chicago, 211 U. S. 306 (seizure of allegedly
diseased poultry); Phillips v. Commissioner, 283 U. S. 589 (effective tax
collection); F~hey v. Mallonee, 332 U. S. 245 (emergency bank management);
cf. Goss v. Lopez, 419 U. S. 565, 582 (to protect a public institution
from a continuing danger). See generally J. Freedman, Crisis and
Legitimacy: The Administrative Process and American Government
(1978); L. Tribe, American Constitutional Law § 10-14 (1978).
22 OCTOBER TERM, 1978
STEW ART, J ., dissenting 443 U.S.
evidentiary hearing on a critical issue is not constitutiona1ly
sufficient. Compare Mathews v. Eldridge, supra, with Bell v.
Burson, supra.
The case of Dixon v. Love, 431 U.S. 105, is not, as the Court
seems to suggest, to the contrary. At issue in Love was a
statute :;:>ermitting the summary revocation of the license of a
repeat traffic offender on the strength of a cumulative record
of traffic convictions and suspensions. The Court in Love
stressed that the appellee had not contested the factual basis
for his license revocation and had not contested the procedures
followed in securing his previous convictions. Instead,
the Love appellee had merely asserted a right to appear in person
in advance to ask for leniency. Id., at 114. Under these
circumstances, the Court held that summary suspension was
permissible, for the "appellee had the opportunity for a full
judicial hearing in connection with each of the traffic convictions
on which the ... decision was based." Id., at 113 (emphasis
added). Love, then, involved an instance in which a
revocation followed virtually automatically from the fact of
duly obtained convictions for a stated number of traffic offenses.
It established no broad exception to the normal presumption
in favor of a prior hearing. See Memphis Light,
Gas & Water Div. v. Craft, supra, at 19 n. 24.
B
The Court likens this driver's license suspension to the
revocation at issue in Love, but in my view that analogy simply
cannot be drawn. The Massachusetts breath-analysis suspension
statute, in clear contrast to the Love statute, affords
the driver no prior hearing of any kind to contest the critical
factual allegations upon which the suspension is based. Those
allegations can hardly be equated with routinely kept records
of serious traffic offense convictions.
A breath-analysis suspension is premised upon three factors:
MACKEY v. MONTRYM 23
1 STEWART, J., dissenting
reasonable grounds for an arrest for driving while intoxicated;
a proper request by the officer that the driver submit to a
breath-analysis test; and a refusal to do so by the driver. Mass.
Gen. Laws Ann., ch. 90, § 24 (1) (f) (West Supp. 1979). The
appellee in this case was indeed arre.sted, after a collision in
which his car was struck in the rear by a motorcycle, for driving
while intoxicated. Moreover, he admitted that he initially
refused to take a breath-analysis test. But he consistently contended
that he was not informed of the sanction, as is required
by § 24 ( 1) ( f), and he vigorously disputed the accuracy of the
police affidavit that said he was so informed. His further
claim-that he requested a test as soon as he learned by inadvertence
of the sanction, and that the police then refused to
administer the test-was apparently accepted by the Massachusetts
judge who subsequently dismissed the drunken-driving
charge against him. Thus, there was clearly a significant
factual dispute in this case.
That dispute, as in Bell v. Burson, concerned a critical element
of the statutory basis for a suspension-in this instance
whether there was indeed a refusal to take a breath-analysis test
after a proper demand. The Court suggests nonetheless that
the "fact" of an informed refusal, as well as the other statutory
factual bases for a suspension, is somehow so routine,
objective, and reliable as to be equivalent to routinely maintained
official records of criminal convictions. I find this
equation highly dubious. Initial deprivations of liberty based
upon ex parte probable-cause determinations by the police
are, of course, not unusual, Gerstein v. Pugh, 420 U. S. 103;
ex parte probable-cause determinations by neutral magistrates
relying upon properly corroborated police affidavits to determine
whether arrest or search warrants should issue are likewise
commonly made. E. g., Aguilar v. Texas, 378 U. S. 108.
But these practices, to the extent that they permit ex parte
deprivations of liberty or property, are clearly necessitated by
the exigencies of law enforcement. They supply no support
24 OCTOBER TERM, 1978
STEWART, J., dissenting 443U.S.
for the proposition that a police affidavit can provide a constitutionally
sufficient basis for the deprivation of property in
a civil proceeding, when there is ample time to give the owner
an opportunity to be heard in an impartial forum before an
impartial decisionmaker.
Moreover, there is a vast difference between the record of
duly adjudicated convictions at issue in Love and the historical
facts of the encounter between the police and a motorist
that form the basis for the driver's license suspension
in the present case. To be sure, these relatively uncomplicated
facts are unquestionably within "the persona.I knowledge
of the reporting officer." Ante, at 14. But they are also
within the knowledge of the driver. This Court has yet to
hold that the police version of a disputed encounter between
the police and a private citizen is inevitably accurate and
reliable.2
I am not persuaded that the relative infrequency with which
a driver may be able successfully to show that he did not
refuse to take a breath-analysis test should excuse the State
from the constitutional need to afford a prior hearing to any
person who wishes to make such a challenge. The question
whether or not there was such a refusal is one classically subject
to adjudicative factfinding, and one that plainly involves
issues of credibility and veracity. Mathews v. Eldridge,
424 U. S., at 343-344. The driver's "opportunity to tell his
side of the story" to "the arresting officer," ante, at 14, surely
2 Contrary to the Court's suggestion, the case of Mathews v. Eldridge,
424 U. S. 319, provides no precedential support for the ex parte suspension
procedure followed by Massachusetts. The disability-benefit termination
procedures upheld in Mathews did not involve an "ex parte" deprivation
of property. To the contrary, the Court in Mathews stressed that the
recipient had been afforded an opportunity to make extensive written submissions
to the decisionmaker before any initial termination decision was
made. Id., at 344, 345. Given the amenability of the critical issue
to written presentation and the clear availability of a prompt posttermination
evidentiary hearing, this prior opportunity to be heardalbeit
in writing-was deemed constitutionally sufficient.
MACKEY v. MONTRYM 25
1 STEWART, J., dissenting
cannot seriously be deemed a "meaningful opportunity to be
heard" in the due process sense. There is simply no escaping
the fact that the first hearing Massachusetts supplies on a
breath-analysis suspension comes after the license of the driver
has been taken away. And it is clear that the suspension
itself effects a final deprivation of property that no subsequent
proceeding can restore. Cf. Mathews v. Eldridge,
supra, at 340.3
The State has urged, and the Court seems to agree, ante,
at 17-19, that summary procedures are nevertheless required to
further the State's interest in protecting the public from
unsafe drivers. It cannot be doubted that the interest in
"removing drunken drivers from the road" is significant. But
the precedents supporting ex parte action have not turned
simply on the significance of the governmental interest asserted.
To the contrary, they have relied upon the extent to
which that interest will be frustrated by the delay necessitated
by a prior hearing. E. g., North American Storage Co.
v. Chica.go, 211 L'". S. 306 (allegedly spoiled food), and cases
3 The Court stresses that a presuspension evidentiary hearing would be
futile since the Registrar has no discretion to stay a suspension pending
that hearing. The Court also emphasizes that the decision not to give
the Registrar such discretion reflects a "rational" legislative choice. Ante,
at 16-17. I fail to see how these observations answer the procedural due
process claim in this case. The choice that the Massachusetts Legislature
has made is merely a part of its decision to dispense with a presuspension
hearing that is here under constitutional challenge. To be sure, that
choice might well be "rational" in the equal protection sense. But the
"rationality" of a legislative decision to dispense with the procedural safeguards
that constitutionally must precede state deprivation of a person's
interest has never been deemed controlling. The Court may, of course, be
suggesting that the legislature has established a presumption that a driver
who refuses a breath-analysis test is per se an unsafe driver. But the State
has not made this argument, and indeed it would be a strange one in the
context of this statute. For the state law expressly provides that an
alleged refusal to take a breath-analysis test is not admissible as evidence
in a prosecution for driving while intoxicated. Mass. Gen. Laws Ann., ch.
90, § 24 (1) (e) (West Supp. 1979).
26 OCTOBER TERM, 1978
STEWART, J., dissenting 443 U.S.
cited in n. 1, supra. The breath-analysis test is plainly not
designed to remove an irresponsible driver from the road as
swiftly as possible. For if a motorist submits to the test and
fails it, he keeps his driver's license-a result whol1y at odds
with any notion that summary suspension upon refusal to
take the test serves an emergency protective purpose. A suspension
for refusal to take the test is obviously premised not
on intoxication, but on noncooperation with the police.
The State's basic justification for its summary suspension
scheme, as the Court recognizes, ante, at 18, lies in the unremarkable
idea that a prior hearing might give drivers a significant
incentive to refuse to take the test. Related to this
argument is the suggestion that the availability of a prior
hearing might encourage a driver to demand such a hearing
as a "dilatory" tactic, and thus might increase administrative
costs by generating a "sharp increase in the number of hearings."
Ibid. In sum, the State defends the ex parte suspension
as essential to enlist the cooperation of drivers and
also as a cost-saving device. I cannot accept either argument.
The 3-month driver's license suspension alone is obviously
sufficient to promote the widespread use of the breath-analysis
test, if drivers are informed not only of this sanction
for a refusal but also realize that cooperation may conclude
the entire case in their favor. Moreover, as is generally
the case when a person's ability to protect his interests
will ultimately depend upon a swearing contest with a law
enforcement officer, the deck is already stacked. heavily against
the motorist under this statute. This point will not be lost
upon the motorist. The State's position boils down to the
thesis that the failure to afford an opportunity for a prior
hearing can itself be part of the stacked deck. But there is
no room for this type of argument in our constitutional system.
A State is simply not free to manipulate Fourteenth
Amendment procedural rights to coerce a person into compliance
with its substantive rules, however important it may
MACKEY v. MONTRYM 27
1 STEWART, J., dissenting
consider those rules to be. The argument that a prior hearing
might encourage "dilatory" tactics on the part of the motorist,
true as it might be to human nature, is likewise wholly inconsistent
with the simple Fourteenth Amendment guarantee
that every "person" is entitled to be heard, before he may be
deprived of his property by the State. Finally, the all too
familiar cost-saving arguments raised by the State have regularly
been made here and have as regularly been rejected as
a justification for dispensing with the guarantees of the Fourteenth
Amendment. For if costs were the criterion, the basic
procedural protections of the Fourteenth Amendment coul<l
be read out of the Constitution. Happily, the Constitution
recognizes higher values than "speed and efficiency." Stanley
v. Illinois, 405 U. S., at 656.
C
The Court's holding that the Massachusetts breath-analysis
suspension scheme satisfies the Constitution seems to be premised
in large part on the assumption that a prompt postsuspension
hearing is available. But even assuming tha.t such
an after-the-fact procedure would be constitutionally sufficient
in this situation, the so-called "prompt postsuspension"
remedy afforded by Massachusetts is, so far as I can tell,
largely fictional. First, the State does not notify the driver
of the availability of any such remedy.' And without notice,
the remedy, even if it exists, is hardly a meaningful safeguard.
Only last Term we reaffirmed that "reasonable" notice of a
4 To be sure, the statute states that a driver is entitled to a limited hearing
before the Registrar, see Mass. Gen. Laws Ann., ch. 90, § 24 ( 1) (g)
(West 1969), and the parties have stipulated that under Massachusetts
practice the driver may schedule this hearing by "walking in" to a
Registry Office. The only postdeprivation remedy mentioned in the suspension
notice sent to the driver, however, is a right to take "an appeal"
within 10 days to the Board of Appeal on Motor Vehicle Liability. The
unexplained reason for the appellee's failure to exercise his right t-0 the
putative "walk-in" hearing, ante, at 7-8, thus may lie in the failure of the
State to notify him of any such right.
28 OCTOBER TERM, 1978
STEWART, J., dissenting 443 U.S.
procedural right is itself integral to due process. Memphis
Light, Gas & Water Div. v. Craft, 436 U. S., at 13-15. This
inherent principle has long been established, see Mullane v.
Central Hanover Trust Co., 339 U. S., at 314, and Massachusetts
clearly has not honored it.
Quite apart from the failure of Massachusetts to inform
the driver of any entitlement to a "walk-in" hearing, that
remedy ~annot--as the Court recognizes-provide immediate
relief to the driver who contests the police report of his refusal
to take a test. To resolve such a factual dispute, a "meaningful
hearing" before an impartial decisionmaker would require
the presence of the officer who filed the report, the
attesting officer, and any witnesses the driver might wish to
call. But the State has provided no mechanism for scheduling
any such immediate postsuspension evidentiary hearing.5
The fact is that the "walk-in" procedure provides little more
than a right to request the scheduling of a later hearing. In
the meantime, the license suspension continues, for the Registrar
is without statutory power to stay a suspension founded
upon a technically correct affidavit pending the outcome of
an evidentiary hearing.
Finally, the Registrar-according to the Court's own description
of the Massachusetts scheme-quite possibly does
not have authority to resolve even the most basic questions
that might be raised about the validity of a breath-analysis
suspension. Ante, at 15 n. 8. And, if the Registrar has no
final authority to resolve the "legal" question the Court perceives
in this case,6 it can hardly be concluded that there
5 An obvious mechanism is suggested by the procedures generally followed
for routine traffic offenses. The driver is immediately notified by
summons of his right to request a judicial hearing. If a request is made,
a date is set, the driver and the police are notified, and the question of
liability is then resolved in a single proceeding.
6 The legal question identified by the Court is whether a delayed offer to
cooperate on the driver's part should excuse the suspension penalty. In
this case, that question presumably would not arise if the delay had in fact
MACKEY v. MONTRYM 29
1 STEWART, J., dissenting
exists the prompt postsuspension relief that is said to excuse
the State from any need to provide a prior hearing. For, if
a prompt postsuspension hearing is even to be eligible for
consideration as minimally adequate to satisfy the demands
of procedural due process, it must provide for an impartial
decisionmaker with authority to resolve the basic dispute and
to provide prompt relief. See Memphis Light, Gas & Water
Div. v. Craft, supra, at 18.7
been attributable to the failure on the part of the pohce to comply with
the statutory requirement that the driver be informed of the sanction.
If, as the appellee has claimed, this is what happened, the question would
be whether a refusal after an improper demand is legally ?ufficient to
justify a suspension.
7 Indeed, under the Court's description of the postsuspension relief
available under the statute, it appears that the appellee was by no
means "assured a prompt proce{'ding and a prompt disposition of the outstanding
issues between [him] and the State." Barry v. Barchi, post, at
66 (emphasis added). This precise constitutional infirmity has led the
Court in Barry v. Barchi to sustain the Fourteenth Amendment claim
of a horse trainer whose trainer's racing license was summarily suspended
upon a probable-cause showing that his horse was drugged before a race.
Here, as in Barchi, the appellee was not notified of any right to prompt
post.suspension relief. Here, as in Barchi, the hearing available upon
"appeal" from the administrative summary suspension, see Mass. Gen.
Laws Ann., ch. 90, § 28 (West 1969), appears to be the only meaningful
postsuspension evidentiary hearing afforded. As in Barchi, the
statute involved here doe,s not specify when this review must begin, does
not Pequire that the suspension be stayed during review, and does not require
the Board of Appeal to reach a prompt decision. Further, in view
of the RC'gistrar's apparent lack of authority to make any definitive determination
of the issues in any ,evidentiary hearing that the driver might
schedule by "walking in," there seems to be no "assurance" under this
statute that the driver will receive prompt postsuspension relief from a
"trial level" hearing examiner. In sum, under the principle established in
Barchi, the District Court upon remand for consideration of this appellee's
"as applied" challenge to his suspension, ante, at 10 n. 6, will be
required to sustain that challenge, unless the courts find that the appellee
was in fact given advance notice of his right to an immediate postsuspension
hearing and was "assured" under the statute of an immediate and
definitive resolution of the contested issues in his case.
30 OCTOBER TERM, 1978
STEWART, J., dissenting 443 U.S.
D
The Court has never subscribed to the general view "that
a wrong may be done if it can be undone," Stanley v. Illinois,
405 U. S., at 647. We should, in my opinion, be even less
enchanted by the proposition that due process is satisfied by
delay when the wrong cannot be undone at all, but at most
can be limited in duration. Even a day's loss of a driver's
license can inflict grave injury upon a person who depends
upon an automobile for continued employment in his job.
I do not mean to minimize the importance of breath-analysis
testing as part of a state effort to identify, prosecute, and
rehabilitate the alcohol-ridden motorist. I cannot, however,
agree that the summary suspension of a driver's license authorized
by this Massachusetts law is a constitutionally permissible
method to further those objectives. For, on the sole
basis of a policeman's affidavit, the license is summarily suspended,
and it is suspended not for drunken driving but only
for failure to cooperate with the police. The State-in my
view-has totally failed to demonstrate that this summary
suspension falls within any recognized exception to the established
protections of the Fourteenth Amendment. Accordingly,
I respectfully dissent.
MICHIGAN v. DEFILLIPPO
Syllabus
MICHIGAN v. DEFILLIPPO
CERTIORARI TO THE COURT OF APPEALS OF MICHIGAN
No. 77-1680. Argued February 21, 1979-Decided June 25, 1979
31
At 10 o'clock at night, Detroit police officers found respondent in an alley
with a woman who was in the process of lowering her slacks. When
asked for identification, respondent gave inconsistent and evasive responses.
He was then arrested for violation of a Detroit ordinance,
which provides t,hat a police officer may stop and question an individual
if he has reasonable cause to believe that the individual's "behavior ...
warrants further investigation" for criminal activity, and further provides
that it is unlawful for any person so stopped to refuse to identify
himself and produce evidence of his identity. In a search which followed,
the officers discovered drugs on respondent's person, and he was
charged with a drug offense but not with violation of the ordinance.
The trial court denied his motion to suppress the evidence obtained in
the search. The Michigan Court of Appeals reversed, holding that the
Detroit ordinance was unconstitutionally vague, that both the arrest and
search were invalid because respondent had been arrested pursuant to
that ordinance, and that the evidence obtained in the search should
have been suppressed on federal constitutional grounds even though it
was obtained as a result of an arrest pursuant to a presumptively valid
ordinance.
Held: Respondent's arrest, made in good-faith reliance on the Detroit
ordinance, which at the time had not been declared unconstitutional,
was valid regardless of the subsequent judicial determination of its
unconstitutionality, and therefore the drugs obtained in the search should
not have been suppressed. Pp. 35-40.
(a) Under the Fourth and Fourteenth Amendments, an arresting officer
may, without a warrant, search a person validly arrested. The fact of a
lawful arrest, standing alone, authorizes a search. Pp. 35-36.
(b) The Constitution permits an officer to arrest a suspect without a
warrant if there is probable cause to believe that the suspoot has committed
or is committing an offense. Here, the arresting officer ha.cl
abundant probable cause to believe that respondent's conduct violated
the ordinance: respondent's presence with a woman in the circumstances
described clearly was "behavior warrant[ing] further investigation"
32 OCTOBER TERM, 1978
Syllabus 443 U.S.
under the ordinance, and respondent's responses to the request for identification
constituted a refusal to identify himself as the ordinance required.
Pp. 36--37.
(c) Under these circumstances, the arresting officer did not lack
probable cause simply because he should have known the ordinance was
invalid and would be judicially declared unconstitutional. A prudent
officer, in the course of determining whether respondent had committed
an offense under such circumstances, should not have been required
to anticipate that a court would later hold the ordinance unconstitutional.
Pp. 37-38.
(d) Since the arrest under the presumptively valid ordinance was
valid, the search which followed was valid because it was incidental
to that arrest. Torres v. P~rto Rico, 442 U. S. 465; Almeida-&nchez
v. United States, 413 U.S. 266; Sibron v. New York, 392 U.S. 40; and
Berger v. New York, 388 U.S. 41, distinguished. Pp. 39-40.
80 Mich. App. 197, 262 N. W. 2d 921, reversed and remanded.
BURGER, C. J., delivered the opinion of the Court, in which STEWART,
WHITE, BLACKMUN, PowELL, and REHNQUIST, JJ., joined. BLACKMUN,
J., filed a concurring opinion, post, p. 40. BRENNAN, J., filed a dissenting
opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 41.
Timothy A. Baughman argued the cause for petitioner.
With him on the briefs was William L. Cahalan.
James C. Howarth, by appointment of the Court, 439 U.S.
976, argued the cause and filed a brief for respondent.*
*Briefs of amici curiae urging reversal were filed by Frank Carrington,
Wayne W. Schmidt, Glen R. Murphy, Thomas Hendrickson, JameJJ P.
Costello, and Richard F. Mayer for Americans for Effective Law Enforcement,
Inc., et al.; and by Evelle J. Younger, Attorney General, Jack R.
Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant
Attorney General, and Harley D. Mayfield and Karl Phal,er, Deputy
Attorneys General, for the State of California.
Briefs of amici curiae urging affirmance were filed by Edward M. Wise
for the American Civil Liberties Union Fund of Michigan; and by John
J. Cleary for California Attorneys for Criminal Justice et al.
Laurance S. Smith filed a brief for the National Legal Aid and Defender
Association as amicus curiae.
MICHIGAN v. DEFILLIPPO
31 Opinion of the Court
MR. CHIEF JusTICE BURGER delivered the opinion of the
Court.
The question presented by this case is whether an arrest
made in good-faith reliance on an ordinance, which at the
time had not been declared unconstitutional, is valid
regardless of a subsequent judicial determination of its
unconstitutionality.
I
At approximately 10 p. m. on September 14, 1976, Detroit
police officers on duty in a patrol car received a radio
call to investigate two persons reportedly appearing to be
intoxicated in an alley. When they arrived at the alley, they
found respondent and a young woman. The woman was in
the process of lowering her slacks. One of the officers asked
what they were doing, and the woman replied that she was
about to relieve herself. The officer then asked respondent
for identification; respondent asserted that he was Sergeant
Mash, of the Detroit Police Department; he also purported
to give his badge number, but the officer was unable to hear
it. When respondent again was asked for identification, he
changed his answer and said either that he worked for or
that he knew Sergeant Mash. Respondent did not appear to
be intoxicated.
Section 39-1-52.3 of the Code of the City of Detroit provides
that a police officer may stop and question an individual
if he has reasonable cause to believe that the individual's
behavior warrants further investigation for criminal activity.
In 1976 the Detroit Common Council amended§ 39-1-52.3 to
provide that it should be unlawful for any person stopped
pursuant thereto to refuse to identify himself and produce
evidence o·f his identity.1
1 As amended, Code of the City of Detroit § 39-1-52.3 provided:
"When a police officer has reasonable cause to believe that the behavior
of an individual warrants further investigation for criminal activity, the
34 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
When he failed to identify himself, respondent was taken
into custody for violation of § 39-1-52.3; 2 he was searched
by one of the officers who found a package of marihuana in
one of respondent's shirt pockets, and a tinfoil packet secreted
inside a cigarette package in the other. The tinfoil packet
subsequently was opened at the station; an analysis established
that it contained phencyclidine, another controlled
substance.
Respondent was charged with possession of the controlled
substance phencyclidine. At the preliminary examination,
he moved to suppress the evidence obtained in the search following
the arrest; the trial court denied the motion. The
Michigan Court of Appeals allowed an interlocutory appeal
and reversed. It held that the Detroit ordinance, § 39-1-52.3,
was unconstitutionally vague and concluded that since respondent
had been arrested pursuant to that ordinance, both
the arrest and the search were invalid.
The court expressly rejected the contention that an arrest
made in good-faith reliance on a presumptively valid ordinance
is valid regardless of whether the ordinance subsequently is
declared unconstitutional. Accordingly, the Michigan Court
of Appeals remanded with instructions to suppress the eviofficer
may stop and question such person. It shall be unlawful for any
person stopped pursuant to this section to refuse to identify himself, and
to produce verifiable documents or other evidence of such identification.
In the event that such person is unable to provide reasonable evidence of
his true identity, the police officer may transport -him to the nearest precinct
in order to ascertain his identity."
While holding the ordinance unconstitutional, the Michigan Court of
Appeals construed the ordinance to make refusal to identify oneself a
crime meriting arrest. 80 Mich. App. 197, 201 n. 1, 262 N. W. 2d 921,
923 n. 1 (1977).
The preamble to the amendment indicates that it was enacted in response
to an emergency caused by a marked increase in crime, particularly
street crime by gangs of juveniles.
2 The woman was arrested on a charge of disorderly conduct; she is not
involved in this case.
MICHIGAN v. DEFILLIPPO 35
31 Opinion of the Court
dence and quash the information. 80 Mich. App. 197, 262
N. W. 2d 921 (1977).
The Michigan Supreme Court denied leave to appeal. We
granted certiorari, 439 U.S. 816 (1978), to review the Michigan
court's holding that evidence should be suppressed on
federal constitutional grounds, although it was obtained as a
result of an arrest pursuant to a presumptively valid ordinance.
That holding was contrary to the holdings of the
United States Court of Appeals for the Fifth Circuit that such
arrests are valid. See United States v. Carden, 529 F. 2d 443
(1976); United States v. Kilgen, 445 F. 2d 287 (1971).
II
Respondent was not charged with or tried for violation of
the Detroit ordinance. The State contends that because of
the violation of the ordinance, i. e., refusal to identify himself,
which respondent committed in the presence of the officers,
respondent was subject to a valid arrest. The search that
followed being incidental to that arrest, the State argues that
it was equally valid and the drugs found should not have been
suppressed. Respondent contends that since the ordinance
which he was arrested for violating has been found unconstitutionally
vague on its face, the arrest and search were invalid
as violative of his rights under the Fourth and Fourteenth
Amendments. Accordingly, he contends the drugs
found in the search were correctly suppressed.
Under the Fourth and Fourteenth Amendments, an arresting
officer may, without a warrant, search a person validly
arrested. United States v. Robinson, 414 U. S. 218 (1973);
Gustafson v. Florida, 414 U. S. 260 (1973). The constitutionality
of a search incident to an arrest does not depend on
whether there is any indication that the person arrested possesses
weapons or evidence. The fact of a lawful arrest, standing
alone, authorizes a search. United States v. Robinson,
supra, at 235. Here the officer effected the arrest of respond36
OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
ent for his refusal to identify himself; contraband drugs were
found as a result of the search of respondent's person incidental
to that arrest. If the arrest was valid when made, the
search was valid and the illegal drugs are admissible in
evidence.
Whether an officer is authorized to make an arrest ordinarily
depends, in the first instance, on state law. Ker v. California,
374 U. S. 23, 37 (1963); Johnson v. United St.ates, 333 U. S.
10, 15, and n. 5 (1948). Respondent does not contend, however,
that the arrest was not authorized by Michigan law.
See Mich. Comp. Laws § 764.15 (1970). His sole contention
is that since the arrest was for allegedly violating a Detroit
ordinance later held unconstitutional, the search was likewise
invalid.
III
It is not disputed that the Constitution permits an officer
to arrest a suspect without a warrant if there is probable cause
to believe that the suspect has committed or is committing an
offense. Adams v. Williams, 407 U. S. 143, 148-149 (1972);
Beck v. Ohio, 379 U. S. 89, 91 (1964). The validity of the
arrest does not depend on whether the suspect actually committed
a crime; the mere fact that the suspect is later acquitted
of the offense for which he is arrested is irrelevant to
the validity of the arrest. We have made clear that the kinds
and degree of proof and the procedural requirements necessary
for a conviction are not prerequisites to a valid arrest.
See Gerstein v. Pugh, 420 U.S. 103, 119-123 (1975); Brinegar
v. United States, 338 U.S. 160, 174-176 (1949).
When the officer arrested respondent, he had abundant
probable cause to believe that respondent's conduct violated
the terms of the ordinance. The ordinance provides that a
person commits an offense if (a) an officer has reasonable
cause to believe that given behavior warrants further investigation,
(b) the officer stops him, and ( c) the suspect refuses
to identify himself. The offense is then complete.
MICHIGAN v. DEFILLIPPO 37
31 Opinion of the Court
Respondent's presence with a woman, in the circumstances
described, in an alley at 10 p. m. was clearly, in the words
of the ordinance, "behavior ... warrant[ing] further investigation."
Respondent's inconsistent and evasive responses to
the officer's request that he identify himself, stating first that
he was Sergeant Mash of the Detroit Police Department and
then that he worked for or knew Sergeant Mash, constituted a
refusal by respondent to identify himself as the ordinance
required. Assuming, arguendo, that a person may not
constitutionally be required to answer questions put by an
officer in some circumstances, the false identification violated
the plain language of the Detroit ordinance.
The remaining question, then, is whether, in these circumstances,
it can be said that the officer lacked probable cause
to believe that the conduct he observed and the words spoken
constituted a violation of law simply because he should have
known the ordinance was invalid and would be judicially declared
unconstitutional. The answer is clearly negative.
This Court repeatedly has explained that "probable cause"
to justify an arrest means facts and circumstances within the
officer's knowledge that are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing,
or is about to commit an offense. See Gerstein v.
Pugh, supra, at 111; Adams v. Williams, supra, at 148; Beck v.
Ohio, supra, at 91; Draper v. United States, 358 U.S. 307, 313
(1959); Brinegar v. United States, supra, at 175-176; Carroll
v. United St.ates, 267 U. S. 132, 162 (1925).
On this record there was abundant probable cause to satisfy
the constitutional prerequisite for an arrest. At that time, of
course, there was no controlling precedent that this ordinance
was or was not constitutional, and hence the conduct observed
violated a presumptively valid ordinance. A prudent
officer, in the course of determining whether respondent had
committed an offense under all the circumstances shown
38 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
by this record, should not have been required to anticipate
that a court would later hold the ordinance unconstitutional.
Police are charged to enforce laws until and unless they are
declared unconstitutional. The enactment of a law forecloses
speculation by enforcement officers concerning its constitutionality-
with the possible exception of a law so grossly and
flagrantly unconstitutional that any person of reasonable
prudence would be bound to see its flaws. Society would be
ill-served if its police officers took it upon themselves to determine
which laws are and which are not constitutionally entitled
to enforcement.
In Pierson v. Ray, 386 U. S. 547 (1967), persons who
had been arrested for violating a statute later declared unconstitutional
by this Court sought damages for false arrest under
state law and for violation of the Fourteenth Amendment
under 42 U. S. C. § 1983. Mr. Chief Justice Warren speaking
for the Court, in holding that police action based on a presumptively
valid law was subject to a valid defense of good
faith, observed: "A policeman's lot is not so unhappy that
he must choose between being charged with dereliction of duty
if he does not arrest when he has probable cause, and being
mulcted in damages if he does." 386 U. S., at 555. The
Court held that "the defense of good faith and probable cause,
which the Court of Appeals found available to the officers in
the common-law action for false arrest and imprisonment, is
also available to them in the action under§ 1983." Id., at 557.
Here, the police were not required to risk "being charged ,vith
dereliction of duty if [they did] not arrest when [they had]
probable cause" on the basis of the conduct observed. 3
3 The purpose of the exclusiona.ry rule is to deter unlawful police
action. No conceivable purpose of deterrence would be served by suppressing
evidence which, at the time it was found on the person of the
respondent, was the product of a lawful arrest and a lawful search. To
deter police from enforcing a presumptively valid statute was never
remotely in the contemplation of even the most zealous advocate of the
exclusionary rule.
MICHIGAN v. DEFILLIPPO 39
31 Opinion of the Court
IV
We have held that the exclusionary rule required suppression
of evidence obtained in searches carried out pursuant to
statutes, not previously declared unconstitutional, which purported
to authorize the searches in question without probable
cause and without a valid warrant. See, e. g., Torres v.
Puerto Rico, 442 U.S. 465 (1979); Almeida-Sanchez v. United
States, 413 U. S. 266 (1973); Sibron v. New York, 392 U.S.
40 (1968); Berger v. New York, 388 U. S. 41 (1967). Our
holding today is not inconsistent with these decisions; the
statutes involved in those cases bore a different relationship
to the challenged searches than did the Detroit ordinance to
respondent's arrest and search.
Those decisions involved statutes which, by their own
terms, authorized searches under circumstances which did not
satisfy the traditional warrant and probable-cause requirements
of the Fourth Amendment. For example, in Almeida-
Sanchez v. United States, supra, we held invalid a search pursuant
to a federal statute which authorized the Border Patrol
to search any vehicle within a "reasonable distance" of the
border, without a warrant or probable cause. The Attorney
General, by regulation, fixed 100 miles as a "reasonable distance''
from the border. 413 U. S., at 268. We held a search
so distant from the point of entry was unreasonable under
the Constitution. In Berger v. New York we struck down
a statute authorizing searches under warrants which did
not "particularly describ[e] the place to be searched, and the
persons or things to be seized," as required by the Fourth
and Fourteenth Amendments. 388 U. S., at 55-56.
In contrast, the ordinance here declared it a misdemeanor
for one stopped for "investigation" to "refuse to identify himself";
it did not directly authorize the arrest or search.4 Once
4 In terms of the ordinance, § 39-1-52.3 authorizes officers to detain an
individual who is "unable to provide reasonable evidence of his true
identity." However, the State disclaims reliance on this provision to
40 OCTOBER TERM, 1978
BLACKMUN, J., concurring 443 U.S.
respondent refused to identify himself as the presumptively
valid ordinance required, the officer had probable cause to
believe respondent was committing an offense in his presence,
and Michigan's general arrest statute, Mich. Comp. Laws
§ 764.15 ( 1970), authorized the arrest of respondent, independent
of the ordinance. The search which followed was valid
because it was incidental to that arrest. The ordinance is
relevant to the validity of the arrest and search only as it pertains
to the "facts and circumstances" we hold constituted
probable cause for arrest.
The subsequently determined invalidity of the Detroit ordinance
on vagueness grounds does not undermine the validity
of the arrest made for violation of that ordinance, and the evidence
discovered in the search of respondent should not have
been suppressed. Accordingly, the case is remanded for further
proceedings not inconsistent with this opinion.
Reversed and remanded.
MR. JusTICE BLACKMUN, concurring.
I join the Court's opinion, but add a few words about the
concern so evident in MR. JUSTICE BRENNAN'S dissenting opinion
that today's decision will allow States and municipalities
to circumvent the probable-cause requirement of the Fourth
Amendment. There is some danger, I acknowledge, that the
police will use a stop-and-identify ordinance to arrest persons
for improper identification; that they will then conduct a
search pursuant to the arrest; that if they discover contraband
or other evidence of crime, the arrestee will be charged with
some other offense; and that if they do not discover contraband
or other evidence of crime, the arrestee will be released.
In this manner, if the arrest for violation of the stopauthorize
the arrest of a person who, like respondent, "refuse[s] to identify
himself." Tr. of Oral Arg. 5.
MICHIGAN v. DEFILLIPPO 41
31 BRENNAN, J., dissenting
and-identify ordinance is not open to challenge, the ordinance
itself could perpetually evade constitutional review.
There is no evidence in this case, however, that the Detroit
ordinance is being used in such a pretextual manner. See
Tr. of Oral Arg. 8. If a defendant in a proper case showed
that the police habitually arrest, but do not prosecute, under
a stop-and-identify ordinance, then I think this would suffice
to rebut any claim that the police were acting in reasonable,
good-faith reliance on the constitutionality of the ordinance.
The arrestee could then challenge the validity of the ordinance,
and, if the court concluded it was unconstitutional,
could have the evidence obtained in the search incident to the
arrest suppressed.
MR. JusTICE BRENNAN, with whom MR. JusTICE MARSHALL
and MR. JUSTICE STEVENS join, dissenting.
I disagree with the Court's conclusion that the Detroit police
had constitutional authority to arrest and search respondent
because respondent refused to identify himself in violation of
the Detroit ordinance. In my view, the police conduct,
whether or not authorized by state law, exceeded the bounds
set by the Constitution and viola.ted respondent's Fourth
Amendment rights.
At the time of respondent's arrest, Detroit City Code § 39-
1-52.3 (1976) read as follows:
"When a police officer has reasonable cause to believe
that the behavior of an individual warrants further investigation
for criminal activity, the officer may stop and
question such person. It shall be unlawful for any person
stopped pursuant to this section to refuse to identify
himself, and to produce verifiable documents or other
evidence of such identification. In the event that such
person is unable to provide reasonable evidence of his
true identity, the police officer may transport him to the
nearest precinct in order to ascertain his identity."
42 OCTOBER TERM, 1978
BRENNAN, J., dissenting 443 U.S.
Detroit police, acting purely on suspicion, stopped respondent
Gary DeFillippo on the authority of this ordinance and demanded
that he identify himself and furnish proof of his
identity. When respondent rebuffed their inquiries the police
arrested him for violation of the ordinance. Thereafter, police
searched respondent and discovered drugs.
Respondent challenges the constitutionality of the ordinance
and his arrest and search pursuant to it. The Court assumes
the unconstitutionality of the ordinance but upholds respondent's
arrest nonetheless. The Court reasons that the
police had probable cause to believe that respondent's actions
violated the ordinance, that the police could not have been
expected to know that the ordinance was unconstitutional, and
that the police actions were therefore reasonable.
The Court errs, in my view, in focusing on the good faith
of the arresting officers and on whether they were entitled to
rely upon the validity of the Detroit ordinance. For the dispute
in this case is not between the arresting officers and respondent.
Cf. Pierson v. Ray, 386 U. S. 547 (1967) .1 The
dispute is between respondent and the State of Michigan.
1 The Court's reliance upon Pierson v. Ray, 386 U.S., at 555, exposes the
fallacy of its constitutional analysis. The Court assumes that respondent
had a constitutional right to refuse to answer the questions put to him by
the police, see ante, at 37, but nonetheless, relying upon Pierson v. Ray,
upholds respondent's arrest and search for exercising this constitutional
right. But Pierson involved an action for damages against individual
police officers and held only that it would be unfair to penalize those
officers for actions undertaken in a good-faith, though mistaken, interpretation
of the Constitution. Since the officer who arrested respondent in
this case is not being mulcted for damages or penalized in any way for his
actions, Pierson does not support the Court's position. Rather, since
respondent is the one who is being penalized for the exercise of what he
reasonably believed to be his constitutional rights, Pierson counsels for
invalidation of respondent's arrest and not for its validation. For if it is
unfair to penalize a police officer for actions undertaken pursuant to a
good-faith, though mistaken, interpretation of the Constitution, then surely
it is unfair to penalize respondent for actions undertaken pursuant to a
good-faith and correct interpretation of the Constitution.
MICHIGAN v. DEFILLIPPO 43
31 BRENNAN, J., dissenting
The ultimate issue is whether the State gathered evidence
against respondent through unconstitutional means. Since
the State is responsible for the a.ctions of its legislative bodies
as well as for the actions of its police, the State can hardly
defend against this charge of unconstitutional conduct by
arguing that the constitutional defect was the product of legislative
action and that the police were merely executing the
laws in good faith. See Torres v. Puerto Rico, 442 U. S. 465
(1979); Almeida-Sanchez v. United States, 413 U. S. 266
(1973); Berger v. New York, 388 U. S. 41 (1967). States
"may not ... authorize police conduct which trenches upon
Fourth Amendment rights, regardless of the labels which it
attaches to such conduct. The question in this Court upon
review of a state-approved search or seizure 'is not whether
the search [or seizure] was authorized by state law. The
question is rather whether the search [ or seizure] was reasonable
under the Fourth Amendment.' " Sibron v. New York,
392 U.S. 40, 61 (1968), quoting in part from Cooper v. California,
386 U. S. 58, 61 ( 1967).
If the Court's inquiry were so directed and had not asked
whether the arresting officers faithfully applied state law,
invalidation of respondent's arrest and search would have
been inescapable. For the Court's assumption that the Detroit
ordinance is unconstitutional is well founded; the ordinance
is indeed unconstitutional and patently so. And if the
reasons for that constitutional infirmity had only been explored,
rather than simply assumed, it would have been obvious
that the application of the ordinance to respondent by
Detroit police in this case trenched upon respondent's Fourth
Amendment rights and resulted in an unreasonable search
and seizure.
The touchstone of the Fourth Amendment's protection of
privacy interests and prohibition against unreasonable police
searches and seizures is the requirement that such police intrusions
be based upon probable cause-" 'the best compromise
that has been found for accommodating [the] often
44 OCTOBER TERM, 1978
BRENNAN, J., dissenting 443 U.S.
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.'" Dunaway v. New York, 442 U. S. 200, 208
(1979), quoting from Brinegar v. United States, 338 U.S. 160,
176 (1949).
Because of this requirement and the constitutional policies
underlying it, the authority of police to accost citizens on the
basis of suspicion is "narrowly drawn," Terry v. Ohio, 392
U. S. 1, 27 (1968), and carefully circumscribed. See Dunaway
v. New York, supra. Police may not conduct searches
when acting on less than probable cause. Even weapons
frisks in these circumstances are permissible only if the police
have reason to believe that they are dealing with an armed
and dangerous individual. See Terry v. Ohio, supra, at 24.
Furthermore, while a person may be briefly detained against
his will on the basis of reasonable suspicion "while pertinent
questions are directed to him . . . the person stopped is
not obliged to answer, answers may not be compelled, and
refusal to answer furnishes no basis for an arrest .... " Terry
v. Ohio, supra, at 34 (WHITE, J., concurring). In the context
of criminal investigation, the privacy interest in remaining
silent simply cannot be overcome at the whim of any suspicious
police officer.2 "[W]hile the police have the right to
request citizens to answer voluntarily questions concerning
unsolved crimes they have no right to compel them to an-
2 In addition to the Fourth Amendment, see Katz v. United States, 389
U.S. 347 (1967), the right to remain silent when detained by police on the
basis of suspicion may find its source in the Fifth Amendment's privilege
against self-incrimination, see Haynes v. United States, 390 U.S. 85 (1968);
Grosso v. United State,:J, 390 U. S. 62 (1968); Albertson v. SACB, 382
U.S. 70 (1965), or, more generally, in "the right to be let alone-the most
comprehensive of rights and the right most valued by civilized men."
Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).
See also Griswold v. Connecticut, 381 U. S. 479, 494 (1965)
( Goldberg, J ., concurring).
MICHIGAN v. DEFILLIPPO 45
31 BRENNAN, J., dissenting
swer." Davis v. Mississippi, 394 U. S. 721, 727 n. 6 (1969).
In sum then, individuals accosted by police on the basis
merely of reasonable suspicion have a right not to be searched,
a right to remain silent, and, as a corollary, a right not to be
searched if they choose to remain silent.
It is plain that the Detroit ordinance and the police conduct
that it purports to authorize abridge these rights and
their concomitant limitations upon police authority. The
ordinance authorizes police, acting on the basis of suspicion,
to demand answers from suspects and authorizes arrest, search,
and conviction for those who refuse to comply. The ordinance
therefore commands that which the Constitution denies
the State power to command and makes "a crime out of what
under the Constitution cannot be a crime." Coates v. Cincinnati,
402 U. S. 611, 616 (1971). Furthermore, the ordinance,
by means of a transparent expedient-making the constitutionally
protected refusal to answer itself a substantive
offense-sanctions circumvention by the police of the Court's
holding that refusal to answer police inquiries during a Terry
stop furnishes no basis for a full-scale search and seizure.
Clearly, this is a sheer piece of legislative legerdemain not to
be countenanced. See Davis v. Mississippi, supra, at 726-727;
Sibron v. New York, supra.
The Court does not dispute this analysis. Rather, it assumes
that respondent had a constitutional right to refuse to
cooperate with the police inquiries, that the ordinance is
unconstitutional, and that henceforward the ordinance shall be
regarded as null and void. Yet, the Court holds that arrests
and searches pursuant t-0 the ordinance prior to its invalidation
by the Michigan Court of Appeals are constitutionally
valid. Given the Court's assumptions concerning the invalidity
of the ordinance, its conclusion must rest on the tacit
assumption that the defects requiring invalidation of the
ordinance and of convictions entered pursuant to it do not also
require the invalidation of arrests pursuant to the ordinance.
But only a brief reflection upon the pervasiveness of the ordi46
OCTOBER TERM, 1978
BRENNAN, J., dissenting 443 u. s.
nance's constitutional infirmities demonstrates the fallacy of
that assumption.
A major constitutional defect of the ordinance is that it
forces individuals accosted by police solely on the basis of
suspicion to choose between forgoing their right to remain
silent and forgoing their right not to be searched if they
choose to remain silent. Clearly, a constitutional prohibition
merely against prosecutions under the ordinance and not
against arrests under the ordinance as well would not solve
this dilemma. For the fact would remain that individuals
who chose to remain silent would be forced to relinquish their
right not to be searched ( and indeed would risk conviction on
the basis of any evidence seized from them), while those who
chose not to be searched would be forced to forgo their constitutional
right to remain silent. This Robson's choice can
be avoided only by invalidating such police intrusions whether
or not authorized by ordinance and holding fast to the rule of
Terry and its progeny: that police acting on less than probable
cause may not search, compel answers, or search those
who refuse to answer their questions. 3
The conduct of Detroit police in this case plainly violated
Fourth Amendment limitations. The police commanded respondent
to relinquish his constitutional right to remain silent
and then arrested and searched him when he ref used to do so.
The Detroit ordinance does not validate that constitutionally
impermissible conduct. Accordingly, I would affirm the judgment
of the Michigan Court of Appeals invalidating respondent's
arrest and suppressing its fruits.
3 There is also the risk that if stop-and-identify ordinances cannot be
challenged in collateral procredings they may never be presented for judicial
review. Jurisdictions so minded may avoid prosecuting under them
and use them merely as investigative tools to gather evidence of other
crimes through pretextual arrests and searches. The possibility of such
evasion is yet another reason that demonstrates the constitutional error of
the Court's approval of respondent's arrest.
BROWN v. TEXAS
Syllabus
BROWN v. TEXAS
APPEAL FROM THE COUNTY COURT AT LAW NO. 2, EL PASO
COUNTY, TEXAS
No. 77-6673. Argued February 21, 1979-Decided June 25, 1979
47
Two police officers, while cruising near noon in a patrol car, observed
appellant and another man walking away from one another in an
alley in an area with a ,high incidence of drug traffic. They stopped
and asked appellant to identify himself and explain what he was doing.
One officer testified that he stopped appellant because the situation
"looked suspicious and we had never seen that subject in that area
before." The officers did not claim to suspect appellant of any specific
misconduct, nor did they have any reason to believe that he was armed.
When appellant refused to identify himself, he was arrested for violation
of a Texas statute which makes it a criminal act for a person to
refuse to give his name and address to an officer "who has lawfully
stopped him and requested the information." Appellant's motion t-0
set aside an information charging him with violation of the statute on
the ground that the statute violated the First, Fourth, Fifth, and Fourteenth
Amendments was denied, and he was convicted and fined.
Held: The application of the Texas statute to detain appellant and require
him to identify himself violated the Fourth Amendment because the
officers lacked any reasonable suspicion to believe that appellant was
engaged or had engaged in criminal conduct. Detaining appellant
to require him to identify himself constituted a seizure of his person
subject to the requirement of the Fourth Amendment that the seizure
be "reasonable." Cf. Terry v. Ohio, 392 U. S. 1; United States v.
Brignoni-Ponce, 422 U. S. 873. The Fourth Amendment requires that
such a seizure be based on specific, objective facts indicating that society's
legitimate interests require such action, or that the seizure be
carried out pursuant to a plan embodying explicit, neutral limitations on
the conduct of individual officers. Delaware v. Prow;e, 440 U. S. 648.
Here, the State does not contend that appellant was stopped pursuant
to a practice embodying neutral criteria, and the officers' actions were
not justified on the ground that they had a reasonable suspicion, based
on objective facts, that he was involved in criminal activity. Absent
any basis for suspecting appellant of misconduct, the balance between
the public interest in crime prevention and appellant's right to personal
48 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
security and privacy tilts in favor of freedom from police interference.
Pp. 50--53.
Reversed.
BURGER, C. J., delivered the opinion for a unanimous Court.
Raymond C. Caballero argued the cause and filed a brief
for appellant.
Renea Hicks, Assistant Attorney General of Texas, argued
the cause for appellee pro hac vice. With him on the brief
were Mark White, Attorney General, John W. Fainter, Jr.,
First Assistant Attorney General, and Ted L. Hartley, Executive
Assistant Attorney General.*
MR. CHIEF JuSTICE BURGER delivered the opinion of the
Court.
This appeal presents the question whether appellant was
validly convicted for refusing to comply with a policeman's
demand that he identify himself pursuant to a provision of
the Texas Penal Code which makes it a crime to refuse such
identification on request.
I
At 12:45 in the afternoon of December 9, 1977, Officers
Venegas and Sotelo of the El Paso Police Department were
cruising in a patrol car. They observed appellant and another
man walking in opposite directions away from one another in
an alley. Although the two men were a few feet apart when
they first were seen, Officer Venegas later testified that both
officers believed the two had been together or were about to
meet until the patrol car appeared.
The car entered the alley, and Officer Venegas got out and
asked appellant to identify himself and explain what he was
*Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant
Attorney General, Drmiel J. Kremer, As~istant Attorney General, and
Karl Phaler, Deputy Attorney General, filed a brief for the State of
California as amicus curiae.
BROWN v. TEXAS 49
47 Opinion of the Court
doing there. The other man was not questioned or detained.
The officer testified that he stopped appellant because the
situation "looked suspicious and we had never seen that subject
in that area before." The area of EI Paso where appellant
was stopped has a high incidence of drug traffic. However,
the officers did not claim to suspect appellant of any
specific misconduct, nor did they have any reason to believe
that he was armed.
Appellant refused to identify himself and angrily asserted
that the officers had no right to stop him. Officer Venegas
replied that he was in a "high drug problem area"; Officer
Sotelo then "frisked" appellant, but found nothing.
When appellant continued to refuse to identify himself, he
was arrested for violation of Tex. Penal Code Ann., Tit. 8,
§ 38.02 (a) (1974), which makes it a criminal act for a person
to refuse to give his name and address to an officer "who has
lawfully stopped him and requested the information." 1 Following
the arrest the officers searched appellant; nothing
untoward was found.
While being taken to the El Paso County Jail appellant
identified himself. Nonetheless, he was held in custody and
charged with violating § 38.02 (a). When he was booked he
was routinely searched a third time. Appellant was convicted
in the El Paso Municipal Court and fined $20 plus court costs
for violation of § 38.02. He then exercised his right under
Texas law to a trial de novo in the El Paso County Court.
There, he moved to set aside the information on the ground
that § 38.02 (a) of the Texas Penal Code violated the First,
Fourth, and Fifth Amendments and was unconstitutionally
vague in violation of the Fourteenth Amendment. The
1 The entire section reads as follows:
"§ 38.02. Failure to Identify as Witness
"(a) A person commits an offense if he intentionally refuses to report or
gives a false report of his name a.nd residence address to a peace officer
who has lawfully stopped him and requested the information."
50 OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
motion was denied. Appellant waived a jury, and the court
convicted him and imposed a fine of $45 plus court costs.
Under Texas law an appeal from an inferior court to a
county court is subject to further review only if a fine exceeding
$100 is imposed. Tex. Code Crim. Proc. Ann., Art.
4.03 (Vernon 1977). Accordingly, the County Court's rejection
of appellant's constitutional claims was a decision "by
the highest court of a State in which a decision could be had."
28 U. S. C. § 1257 (2). On appeal here we noted probable
jurisdiction. 439 U. S. 909 (1978). We reverse.
II
When the officers detained appellant for the purpose of
requiring him to identify himself, they performed a seizure of
his person subject to the requirements of the Fourth Amendment.
In convicting appellant, the County Court necessarily
found as a matter of fact that the officers "lawfully stopped"
appellant. See Tex. Penal Code Ann., Tit. 8, § 38.02 (1974).
The Fourth Amendment, of course, "applies to all seizures of
the person, including seizures that involve only a brief detention
short of traditional arrest. Davis v. Mississippi, 394
U. S. 721 (1969); Terry v. Ohio, 392 U. S. 1, 16- 19 (1968).
'[W]henever a police officer accosts an individual and restrains
his freedom to walk away, he has "seized" that person,' id., at
16, and the Fourth Amendment requires that the seizure be
'reasonable.' " United States v. Brignoni-Ponce, 422 U. S.
873, 878 (1975).
The reasonableness of seizures that are less intrusive than
a traditional arrest, see Dunaway v. New York, 442 U.S. 200,
209-210 (1979); Terry v. Ohio, 392 U.S. 1, 20 (1968), depends
"on a balance between the public interest and the individual's
right to personal security free from arbitrary interference by
law officers." Pennsylvanw v. Mimms, 434 U. S. 106, 109
(1977); United States v. Brignoni-Ponce, supra, at 878. Consideration
of the constitutionality of such seizures involves a
BROWN v. TEXAS 51
47 Opinion of the Court
weighing of the gravity of the public concerns served by the
seizure, the degree to which the seizure advances the public
interest, and the severity of the interference with individual
liberty. See, e. g., 422 U. S., at 878-883.
A central concern in balancing these competing considerations
in a variety of settings has been to assure that an
individual's reasonable expectation of privacy is not subject
to arbitrary invasions solely at the unfettered discretion of
officers in the field. See Delaware v. Prouse, 440 U. S. 648,
654-655 (1979); United States v. Brignoni-Ponce, supra, at
882. To this end, the Fourth Amendment requires that a seizure
must be based on specific, objective facts indicating that
society's legitimate interests require the seizure of the particular
individual, or that the seizure must be carried out pursuant
to a plan embodying explicit, neutral limitations on the conduct
of individual officers. Delaware v. Prouse, supra, at 663. See
United States v. Martinez-Fuerte, 428 U. S. 543, 558-562
(1976).
The State does not contend that appellant was stopped pursuant
to a practice embodying neutral criteria, but rather
maintains that the officers were justified in stopping appellant
because they had a "reasonable, articulable suspicion that a
crime had just been, was being, or was about to be committed."
We have recognized that in some circumstances an
officer may detain a suspect briefly for questioning although
he does not have "probable cause" to believe that the suspect
is involved in criminal activity, as is required for a traditional
arrest. United States v. Brignoni-Ponce, supra, at 880-881.
See Terry v. Ohio, supra, at 25-26. However, we have
required the officers to have a reasonable suspicion, based
on objective facts, that the individual is involved in criminal
activity. Delaware v. Prouse, supra, a.t 663; United States v.
Brignoni-Ponce, supra, at 882-883; see also Lanzetta v. New
Jersey, 306 U. S. 451 (1939) ,
The flaw in the State's case is that none of the circum52
OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
stances preceding the officers' detention of appellant justified
a reasonable suspicion that he was involved in criminal conduct.
Officer Venegas testified at appellant's trial that the
situation in the alley "looked suspicious," but he was unable
to point to any facts supporting that conclusion.2 There is no
indication in the record that it was unusual for people to be
in the alley. The fact that appellant was in a neighborhood
frequented by drug users, standing alone, is not a basis for
concluding that appellant himself was engaged in criminal
conduct. In short, the appellant's activity was no different
from the activity of other pedestrians in that neighborhood.
When pressed, Officer Venegas acknowledged that the only
reason he stopped appellant was to ascertain his identity.
The record suggests an understandable desire to assert a police
presence; however, that purpose does not negate Fourth
Amendment guarantees.
In the absence of any basis for suspecting appellant of misconduct,
the balance between the public interest and appellant's
right to personal security and privacy tilts in favor of
freedom from police interference. The Texas statute under
which appellant was stopped and required to identify himself
is designed to advance a weighty social objective in large
metropolitan centers: prevention of crime. But even assuming
that purpose is served to some degree by stopping and
demanding identification from an individual without any
specific basis for believing he is involved in criminal activity,
the guarantees of the Fourth Amendment do not allow it.
When such a stop is not based on objective criteria, the risk
of arbitrary and abusive police practices exceeds tolerable
limits. See Delaware v. Prouse, supra, at 661.
2 This situation is to be distinguished from the observations of a trained,
experienced police officer who is able to perceive and articulate meaning
in given conduct which would be wholly innocent to the untrained observer.
See United States v. Brignoni-Ponce, 422 U. S. 873, 884-885
(1975); Christensen v. United States, 104 U. S. App. D. C. 35, 36,
259 F. 2d 192, 193 (1958).
BROWN v. TEXAS 53
47 Appendix to opinion of the Court
The application of Tex. Penal Code Ann., Tit. 8, § 38.02
( 1974), to detain appellant and require him to identify himself
violated the Fourth Amendment because the officers
lacked any reasonable suspicion to believe appellant was
engaged or had engaged in criminal conduct.3 Accordingly,
appellant may not be punished for refusing to identify himself,
and the conviction is
Reversed.
APPENDIX TO OPINION OF THE COURT
"THE COURT: ... What do you think about if you stop
a person lawfully, and then if he doesn't want to talk to you,
you put him in jail for committing a crime.
"MR. PATTON [Prosecutor]: Well first of all, I would
question the Defendant's statement in his motion that the
First Amendment gives an individual the right to silence.
"THE COURT: ... I'm asking you why should the State
put you in jail because you don't want to say anything.
"MR. PATTON: Well, I think there's certain interests that
have to be viewed.
"THE COURT: Okay, I'd like you to tell me what those
are.
"MR. PATTON: Well, the Governmental interest to maintain
the safety and security of the society and the citizens to
live in the society, and there are certainly strong Governmental
interests in that direction and because of that, these interests
outweigh the interests of an individual for a certain
amount of intrusion upon his personal liberty. I think these
Governmental interests outweigh the individual's interests in
3 We need not decide whether an individual may be punished for refusing
to identify himself in the context of a lawful investigatory stop which
satisfies Fourth Amendment requirements. See Dunaway v. New York,
442 U. S. 200, 210 n. 12 (1979); Terry v. Ohio, 392 U. S. 1, 34 (1968)
(WHITE, J ., concurring). The County Court Judge who convicted appellant
was troubled by this question, as shown by the colloquy set out in
the Appendix to this opinion.
54 OCTOBER TERM, 1978
Appendix to opinion of the Court 443 U. S.
this respect, as far as simply asking an individual for his name
and address under the proper circumstances.
"THE COVRT: But why should it be a crime to not
answer?
"MR. PATTON: Again, I can only contend that if an
answer is not given , it tends to disrupt.
"THE COURT: What does it disrupt?
"MR. PATTON: I think it tends to disrupt the goal of this
society to maintain security over its citizens to make sure they
are secure in their gains and their homes.
"THE COVRT: How does that secure anybody by forcing
them, under penalty of being prosecuted, to giving their name
and address, even though they are lawfully stopped?
"MR. PATTON: Well I , you know, under the circumstances
in which some individuals would be lawfully stopped, it's presumed
that perhaps this individual is up to something, and
the officer is doing his duty simply to find out the individual's
name and address, and to determine what exactly is going on.
"THE COURT: I'm not questioning, I'm not asking
whether the officer shouldn't ask questions. I'm sure they
should ask everything they possibly could find out. What
I'm asking is what's the State's interest in putting a man in
jail because he doesn't want to answer something. I realize
lots of times an officer will give a defendant a Miranda warning
which means a defendant doesn't have to make a statement.
Lots of defendants go ahead and confess, which is fine
if they want to do that. But if they don't confess, you can't
put them in jail, can you, for refusing to confess to a crime?"
App. 15-17 ( emphasis added).
BARRY v. BARCH!
Syllabus
BARRY, CHAIRMAN, RACING AND WAGERING
BOARD OF NEW YORK, ET AL. v. BARCH!
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
No. 77-803. Argued November 7, 1978-Decided June 25, 1979
55
The New York State Racing and Wagering Board (Board), which is
empowered to license horse trainers participating in harness horse-race
meets in New York, has issued regulations specifying the standards of
conduct that a trainer must satisfy to retain his license. The trainer's
responsibility rules provide that when a postrace test of a horse reveals
the presence of drugs, it is to be presumed-subject to rebuttal-that
the drug was either administered by the trainer or resulted from his
negligence in failing adequately to protect against such occurrence.
Under a New York statute (§8022), a suspended licensee is entitled to
a postsuspension hearing, but the statute specifies no time in which
the hearing must be held, affords the Board as long as 30 days after
the hearing in which to issue a final order, and ordains that "[p]ending
such hearing and final determination thereon, the action of the [Board]
in ... suspending a license ... shall remain in full force and effect."
Pursuant to the trainer's responsibility rules and the evidentiary presumption
created therein, the Board summarily suspended appellee's
trainer's license for 15 days on the basis of a postrace test that revealed
a drug in the system of a horse trained by him. Without resorting to
the § 8022 procedures, appellee filed suit in Federal District Court,
challenging the constitutionality of § 8022 and the evidentiary presumption
under the Board's rules. The court upheld the presumption,
but concluded that § 8022 was unconstitutional under the Due
Process Clause of the Fourteenth Amendment, since it permitted the
State to sanction a trainer without either a presuspension or a prompt
postsuspension hearing, and that § 8022 also violated the Equal Protection
Clause of the Fourteenth Amendment, since it prohibited a
stay of a license suspension pending administrative review, whereas
under the laws applicable to thoroughbred racing, suspensions could be
stayed pending appeal.
Held:
1. Section 8022 does not violate the Due Process Clause by authorizing
summary suspensions without a presuspension hearing. Although
56 OCTOBER TERM, 1978
Syllabus 443 u. s.
appellee has a property interest in his license under state law sufficient
to invoke due process protections, and although the magnitude of a
trainer's interest in avoiding suspension is substantial, the State also
has an important interest in assuring the integrity of raring carried
on undn its auspices. In these circumstances, the State is entitled to
impose an interim suspension, pending a prompt judicial or administra•
tive hearing that will definitely determine the issues, whenever it has
satisfactorily establishPd probable cause to believe that a horse has
been drugged and that a trainer has been at least negligent in connection
with the drugging. Herc, the State adducC>d the assertion of its testing
official as proof that appellee's horse had been drugged, and, at the
interim suspension stage, an expert's affirmanc!' would appear suffi.
ciently reliable to satisfy constitutional requirements. As for appellee's
culpability, in light of the Board's trainer's responsibility rules, the
inference, predicate-cl on the fact of drugging, that appellce was at least
negligent will be accepted as defensible, and thf> State will not be put
to further presuspension proof that appellee had not complied with the
applicable I11les. Pp. 63-66.
2. However, appellef> was not assur<'d a sufficiently timely post•
suspension hearing and § 8022 was unconstitutionally applied in this
respect. The statutory provision for an administrative hearing, neither
on its face nor as applied, assured a prompt proceeding and prompt
disposition of the outstanding issues between appellee and the State, it
being as likely as not t,hat appellee and others sub.iect to relatively brief
suspensions would have no opportunity to put the State to its proof
until they have suffered the full penalty imposed. Once suspension has
been imposrd, the trainer's interest in a speedy resolution of the controversy
brcomes paramount, and there is little or no state interest in
an appreciable delay in going forward with a full hearing. P. 66.
3. The State's prohibition of administrative stays pending a hearing
in the harness racing context without a like prohibition in thoroughbred
racing does not deny harness racing trainers equal protection of the
laws. The lf'gislative history of § 8022 makes clear that it and other provisions
applicable to harness racing resulted from a legislative conclusion
that harness racing should be subject to strict regulation, and appellee
has not demonstrated that the acute problems attending harness racing
also plague thoroughbred racing and that both types of racing should be
treated identically. Also, the procedural mechanism select<'d to mitigate
the threats to the public interest arising in the harness racing context
is rationally related to the achievement of that goal. Pp. 67-68.
436 F. Supp. 775, affirmed in part, reversed in part, and remanded.
BARRY v. BARCH! 57
55 Opinion of the Court
WHITE, J., delivered the opinion of the Court, in which BURGER, C. J.,
and BLACKMUN, PowELL, and REHNQUIST, JJ., joined. BRENNAN, J.,
filed an opinion concurring in part, in which STEWART, MARSHALL, and
STEVENS, JJ., joined, post, p. 68.
Robert S. Hammer, Assistant Attorney General of New
York, argued the cause for appellants. With him on the brief
were Louis J. Lefkowitz, Attorney General, and Samuel A.
Hirshowitz, First Assistant Attorney General.
Joseph A. Faraldo argued the cause and filed a brief for
appellee.*
MR. JUSTICE WHITE delivered the opinion of the Court.
The New York State Racing and Wagering Board (Board)
is empowered to license horse trainers and others participating
in harness horse-race meets in New York.1 The Board
also issues regulations setting forth the standards of conduct
that a horse trainer must satisfy to retain his license.2 Among
*Briefs of amici curiae urging affirmance were filed by Dominic H.
Frinzi and Joseph F. Asher for Harness Horsemen International, Inc.; by
Philip P. Ardery for the Horsemen's Benevolent and Protective Association;
and by Roger D. Smith for the Jockeys' Guild, Inc.
0. Garlysle McCandless, Miles M. Tepper, Ira A. Finkelstein, and Ruth
D. MacNaughton filed a brief for the New York Racing Association, Inc.,
as amicus curiae.
1 New York Unconsol. Laws § 8010 (I) (McKinney 1979) authorizes
the "state harness racing commission," whose powers are now exercised by
the New York State Racing and Wagering Board, see §§ 7951-a, 8162
(McKinney 1979), to "license drivers and such other persons participating
in harness horse race meets, as the commission may by rule prescribe ...."
See also 9 N. Y. C.R. R. § 4101.24 (1975).
2 The Board has issued, in particular, a series of rules specifying a
trainer's responsibility for the condition of horses under the trainer's care,
9 N. Y. C.R. R. §§ 4116.11, 4120.5, 4120.6 (1974):
"4116.11. Trainer's responsibility. A trainer is responsible for the condition,
fitness, equipment, and soundness of each horse at the time it is
declared to race and thereafter when it starts in a race."
"4120.5. Presumptions. Whenever [certain tests required to be made
on horses that place first, second, or third in a race] disclose the presence
58 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
other things, the rules i~ued by the Board forbid the drugging
of horses within 48 hours of a race and make trainers responsible
for the condition and soundness of their horses before,
during, and after a race. 3 A trainer is forbidden to permit a
horse in his custody to start a race "if he knows, or if by the
exercise of reasonable care he might have known or have cause
to believe" that a horse trained by him has been dru~ged.4
in any horse of any drug, stimulant, depressant or sedative, in any amount
whatsoever, it shall be presumed:
"(a) that the same was administered by a person or persons having the
control and /or care and/or custody of !'uch horse with the intent thereby
to affect the speed or condition of such horse and the result of the race
in which it participated;
"(b) that it was administered within the period prohibited [by
§ 4120.4 (d), seen. 3, infra]; and
" ( c) that a sufficient quantity was administered to affect the speed or
condition of such animal.
"4120.6. Trainer's responsibility. A trainer shall be responsible at all
times for the condition of all horses trained by him. No trainer shall
~tart a horse or permit a horn> in his cu~tody to be started if he knows, or
if by the exercise of rea1-onable care he might have known or have cause
to believe, that the horse has received any drug, stimulant, sedative,
depressant, medicine, or other substance that could result in a positive
test. Every trainer must guard or causr to be guarded each horse
trained by him in Ruch manner and for such period of time prior to racing
the horse so as to prevent any person not employed by or connected with
the owner or trainer from administering any drug, stimulant, sedative,
depressant, or othl'r substancr re sulting in a positive test."
3 Title 9 N. Y. C.R. R. § 4120.4 (1974) provides in part:
"No person ~hall, or attempt to, or shall conspire with another or others
to:
"(a) Stimulate or depress a horse through the administration of any
drug, medication, stimulant, depres..--ant , hypnotic or narcotic.
" ( d) Administer any drug, medicant, stimulant, depressant, narcotic or
hypnotic to a horse within 48 hour~ of its race."
Sl'<' also§ 4116.11, quoted inn. 2, supra.
9 N. Y. C. R.R. § 4120.6 (1974), quoted inn. 2, supra.
BARRY v. BARCH! 59
55 Opinion of the Court
Every trainer is required to "guard or cause to be guarded
each horse trained by him in such manner ... as to prevent
any person not employed by or connected with the owner or
trainer from administering any drug .... " 5 And when a
postrace test, which must be administered to horses finishing
first, second, or third, reveals the presence of drugs, it is to
be presumed-subject to rebuttal-that the drug "was either
administered by the trainer or resulted from his negligence in
failing to adequately protect against such occurrence." 6
On June 22, 1976, Be Alert, a harness race horse trained
by appellee, John Barchi, finished second in a race at Monticello
Raceway. Two days later, Barchi was advised by the
Board steward that a postrace urinalysis had revealed a
drug in Be Alert's system. Barchi proclaimed his innocence,
and two lie-detector tests supported his lack of
knowledge of the drugging. On July 8, relying on the
trainer's responsibility rules and the evidentiary presumption
arising thereunder, the steward suspended Barchi for 15 days,
commencing July 10.7 Under§ 8022 of the New York Uncon-
5 lbid.
6 Barchi v. Saraf an, No. 76 Civ. 3070 (SDNY, Dec. 23, 1976), reprinted
in App. to Juris. Statement 24a; see Barchi v. &rafa:n, 436 F. Supp. 775,
784 (SDNY 1977); App. 25a (affidavit of John Barchi). The Assistant
Attorney General of New York interpreted t.he presumption in this wa.y
both before the three-judge court and in oral argument before this Court:
"QUESTION: What this is is a presumption to get the matter started
and that can be rebutted by other evidence.
"MR. HAMMER: Absolutely, Your Honor. This is a permissive presumption.
It is a rule of evidence, nothing more." Tr. of Oral Arg. 7.
See id., at 5; Tr. 33-34 (trainer not held absolutely responsible for
drugging of horse "if it is shown that the tra.iner was not culpable, that
he, himself, could not administer the drug and he was not found to be
negligent in supervising the people under him").
7 Title 9 N. Y. C. R. R. § 4105.8 (f) (1974) authorizes presiding judges
" [ w] here a violation of any rule is suspected to conduct an inquiry
promptly and to take such action as may be appropriate . . . ." New
60 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
solidated Laws,8 a suspended licensee is entitled to a postsuspension
hearing, but the section ordains that "[p] ending
such hearing and final determination thereon, the action of
York Unconsol. Laws § 8010 (2) (McKinney 1979) states the grounds for
revocation or suspension:
" . .. The commission may suspend or revoke a license issued pursuant to
this section if it shall determine that (a) the applicant or licensee (1) has
been convicted of a crime involving moral turpitude; (2) has engaged in
bookmaking or other form of illegal gambling; (3) has been found guilty
of any fraud in connection with racing or breeding; (4) has been guilty
of any violation or attempt to violate any law, rule or regulation of any
racing jurisdiction for which suspension from racing might be imposed in
such jurisdiction; (5) or ... has violated any rule, regulation or order
of the commission, or [that (b)] the experience, character or general fitness
of any applicant or licensee is such [that] the participation of such person
in harness racing or related activities would he inconsistent with the
public interest, com·enience or necessity or with the best interests of
racing generally."
s New York Unconsol. Laws § 8022 (McKinney 1979) provides in full:
"If the state harness racing commission shall refuse to grant a license
applied for under this act, or shall revoke or suspend such a license
granted by it, or shall impose a monetary fine upon a participant in
harness racing the applicant or licensee or party fined may demand,
within ten days after notice of the said act of the commission, a hearing
before the commission and the commission shall give prompt notice
of a time and place for such hearing at which the rommission will hear
such applicant or licensee or part.y fined in reference thereto. Pending
such hearing and final determination thereon, the action of the commission
in refusing to grant or in revoking or suspending a license or in
imposing a monetary fine shall remain in full force and effect. The
commission may continue such hearing from time to time for the convenience
of any of the parties. Any of the parties affected by such
hearing may be represenkd by counsel, and the commission may be represented
by the attorney-general, a deputy attorney-general or its counsel.
In the conduct of such hearing the commission shall not be bound
by technical rules of evidence, but all evidence offered before the commission
shall be reduced to writing, and such evidence together with
the exhibits, if any, and the findings of the commission, shall be permanently
preserved and shall constitute the record of the Pomrnis~ion
in such case. In connection with such hearing, each member of the
BARRY v. BARCHI 61
55 Opinion of the Court
the [Board] in ... suspending a license ... shall remain in
full force and effect." The section specifies no time in which
the hearing must be held, and it affords the Board as long as
30 days after the conclusion of the hearing in which to issue
a final order adjudicating a case. Without resorting to the
§ 8022 procedures, Barchi filed this suit in the United States
District Court.
Barchi alleged that his trainer's license was protected by
the Due Process Clause of the Fourteenth Amendment of the
United States Constitution and that § 8022 was unconstitutional
because it permitted his license to be suspended without
a prior hearing to determine his culpability and because a
summary suspension could not be stayed pending the administrative
review provided by the statute. Barchi also challenged
the rule permitting the Board to presume rebuttably
from the drugging of a horse that its trainer was responsible.
His claim was that "there is no rational connection between
the fact proved, that the horse was illegally drugged, and the
ultimate fact presumed that the trainer is guilty of the act or
carelessly guarded against the act occurring," App. 15a ( complaint),
it being impossible, Barchi alleged, for the trainer to
guard the horse against all those who by stealth might gain
commission shall have the power to administer oaths and examine witnesses,
and may issue subpoenas to compel attendance of witnesses, nnd
the production of all material and relevant reports, books, papers, documents,
correspondence and other evidence. The commission may, if
occasion shall require, by order, refer to one or more of its members or
officers, the duty of taking testimony in such matter, and to report
thereon to the commission, but no determination shall be made therein
except by the commission. Within thirty days after the conclusion of
such hearing, the commission shall make a final order in writing, setting
forth the reasons for the action taken by it and a copy thereof
shall be served on surh applicant or licensee or party fined, as the case
may be. The action of the commission in refusing to grant a license or
in revoking or suspending a license or in imposing a monetary fine shall
be reviewable in the supreme court in the manner provided by the provisions
of article seventy-eight of the civil practice Jaw and rules."
62 OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
access to it. Barchi's third claim was that, in prohibiting a
stay of his suspension pending administrative review, § 8022
denied him equal protection of the laws, since in the context of
thoroughbred racing, in contrast to harness racing, suspensions
can be stayed pending appeal.0
The District Court upheld the evidentiary presumption on
its face, concluding: "[T]he duty of a trainer to oversee his
horses is sufficiently connected to the occurrence of tampering
to support the presumption established by the trainer's 'insurer'
rules. The state's definition of trainer responsibility
is reasonably related to the interests involved and, given the
rebuttable nature of the 4120.5 presumption, the high standard
of accountability is not unconstitutional" Barchi v.
Saraf an, 436 F. Supp. 775, 784 (SDNY 1977). The District
Court went on to hold, however, that§ 8022 of the New York
law was unconstitutional under the Due Process Clause since
it permitted the State "to irreparably sanction a harness race
horse trainer without a pre-suspension or a prompt post-sus-
9 The provision applicable to thoroughbred racing, N. Y. Unconsol. Laws
§ 7915 (3) (McKinney 1979), provides:
"No license shall be revoked unless such revocation is at a meeting
of the state racing commission on notice to the licensee, who shall
be entitled to a hearing in respect of such revocation. In the conduct
of such hearing the commission shall not be bound by technical rules
of evidence but all evidence offered before the commission shall be reduced
to writing, and such evidence together with the exhibits, if any,
and the findings of the commission, shall be permanently preserved and
shall constitute the record of the commission in such case. The action
of the co=ission in refusing, suspending or in revoking a license shall
be reviewable in the supreme court in the manner provided by the provisions
of article seventy-eight of the civil practice law and rules. Such
hearing may be held by the chairman thereof or by any commissinnP.r designated
by him in writing, and the chairman or said rommiRsionP.r may
issue subpoenas for witnesses and administer oaths to witnesses. The
chairman or commissioner holding such hearing shall, at the conclusion
thereof, make his findings with respect thereto and said findings, if concurred
in by two members of the co=ission, shall become the findings and
determination of the commission."
BARRY v. BARCH! 63
55 Opinion of the Court
pension hearing in violation of plaintiff's right to due process."
App. to Juris. Statement 2a (order of judgment).10 The court
further concluded that the difference between the procedures
applicable to harness racing and those applicable to thoroughbred
racing was so unwarranted as to violate the Equal Protection
Clause of the Fourteenth Amendment.
We noted probable jurisdiction of the appeal. 435 U.S. 921
(1978). In this Court, the appellants adhere to their fundamental
position that, as a constitutional matter, Barchi was
entitled to no more process than was available to him under
§ 8022 either before or after the suspension was imposed
and became effective. Barchi, on the other hand, continues
to insist that his suspension could in no event become effective
without a prior hearing to establish that his horse had been
drugged and that he was culpable.
We agree with appellants that § 8022 does not affront the
Due Process Clause by authorizing summary suspensions
without a presuspension hearing, and we reject Barchi's contrary
contention. In disagreement with appellants, however,
10 The District Court declined to abstain to permit the state courts to
construe § 8022 prior to adjudication of Barchi's constitutional claims on
their merits. Appellants had maintained that the provision might be construed
to give the Board discretion to stay suspensions pending the outcome
of the postsuspension hearing provided by § 8022. The District
Court thought the language of the statute unequivocally foreclosed that
construction. We cannot say that the District Court erred in this respect.
Section 8022 provides that, pending a full hearing and final determination
thereon, "the action of the [Board] in ... suspending a license ... shaU
remain in full force and effect." (Emphasis added.) The provision gives
no assurance of a presuspension or prompt postsuspension hearing and
determination. And it makes clear that the Board need not reach a
determination until "thirty days after the conclusion of [the] hearing."
We reject appellants' further contention that Barchi should not have
commenced suit prior to exhausting the procedure contemplated under
§ 8022. Under existing authority, exhaustion of administrative remedies
is not required when "the question of the adequacy of the administrative
remedy ... [is] for all practical purposes identical with the merits of [the
plaintiff's] lawsuit." Gibson v. Berryhill, 411 U. S. 564, 575 (1973).
64 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
we conclude that Barchi was not assured a sufficiently timely
postsuspension hearinjl; and that § 8022 was unconstitutionally
applied in this respect.
It is conceded that, under New York law, Barchi's license
could have been suspended only upon a satisfactory showing
that his horse had been drugged and that he was at least
negligent in failing to prevent the drugging. As a threshold
matter, therefore, it is clear that Barchi had a property interest
in his license sufficient to invoke the protection of the
Due Process C'lause. 11 ,ve do not agree with Barchi's basic
contention, however, that an cvidentiary hearing was required
prior to the effectuation of his suspension. Unquestionably,
the magnitude of a trainer's interest in avoiding suspension
is substantial; but the State also has an important interest
in assuring the integrity of the racing carried on under its
auspices. In these circumstances, it seems to us that the
State is entitled to impose an interim suspension, pending a
prompt judicial or administrative hearing that would definitely
determine the issues, whenever it has satisfactorily
established probable cause to believe that a horse has been
drugged and that a trainer has been at least negligent in connection
with the drugging. Cf. Gerstein v. Pugh, 420 U. S.
103, 111-112 (1975); Mitchell v. W. T. Grant Co., 416 -U. S.
11 "C"nder New York law, a license may not be revoked or suspended at
the discretion of the raring authorities. Cf. Bishop v. lV ood, 426 U. S.
341 (1976). Rather, suspension may ensue only upon proof of certain
contingencies. See N. Y. l'nconsol. Laws§ 8010 (McKinney 1979), quoted
in n. 7, supra. Notably, when a. horse is found to have been drugged,
the license of the horse's trainer may be suspended or revoked if he did
the drugiziug, if he knew or should have known that the horse had been
drugged, or if he negligently failed to prevent it. Accordingly, state law has
engendered a clear expectation of continued enjoyment of a license absent
proof of culpable conduct by the trainer Barchi, therefore, has asserted
a legitimate "claim of entitlement . ... that he may invoke at a hearing."
Perry v. Sindermann, 408 r. R. 593, 601 (1972); see Board of Regents
v. Roth, 408 U.S. 564 (1972); Bell v. Burson, 402 U.S. 535, 539 (1971);
Goldberg v. Kelly, 397 "G. S. 254 (1970).
BARRY v. BARCHI 65
55 Opinion of the Court
600, 609 (1974); Bell v. Burson, 402 U. S. 535, 542 (1971).
In such circumstances, the State's interest in preserving the
integrity of the sport and in protecting the public from harm
becomes most acute. At the same time, there is substantial
assurance that the trainer's interest is not being baselessly
compromised.
Under this standard, Barchi received all the process that
was due him prior to the suspension of his license. As proof
that Barchi's horse had been drugged, the State adduced the
assertion of its testing official, who had purported to examine
Barchi's horse pursuant to prescribed testing procedures. To
establish probable cause, the State need not postpone a suspension
pending an adversary hearing to resolve questions of
credibility and conflicts in the evidence. At the interim suspension
stage, an expert's affirmance, although untested and
not beyond error, would appear sufficiently reliable to satisfy
constitutional requirements.
As for Barchi's culpability, the New York trainer's responsibility
rules, approved by the District Court, established a
rebuttable presumption or inference, predicated on the fact of
drugging, that Barchi was at least negligent. In light of the
duties placed upon the trainer by the trainer's responsibility
rules, we accept this inference of culpability as defensible and
would not put the State to further presuspension proof that
Barchi had not complied with the applicable rules. Furthermore,
although Barchi wa.s not given a formal hearing prior
to the suspension of his license, he was immediately notified
of the alleged drugging, 16 days elapsed prior to the imposition
of the suspension, and he was given more than one opportunity
to present his side of the story to the State's investigators.
In fact, he stated his position in the course of taking
two lie-detector examinations. He points to nothing in the
record demonstrating convincingly that he was not negligent,
and the State's investigators apparently failed to unearth an
explanation for the drugging that would completely exonerate
66 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
him. Even if the State's presuspension procedures, then,
were not adequate finally to resolve the issues fairly and accurately,
they sufficed for the purposes of probable cause and
interim suspension.
That the State's presuspension procedures were satisfactory,
however, still leaves unresolved how and when the adequacy
of the grounds for suspension is ultimately to be determined.
As the District Court found, the consequences to a trainer of
even a temporary suspension can be severe; and we have held
that the opportunity to be heard must be "at a meaningful
time and in a meaningful manner." Armstrong v. Manzo,
380 U. S. 545, 552 ( 1965). Here, the provision for an administrative
hearing, neither on its face nor as applied in this
case, assured a prompt proceeding and prompt disposition of
the outstanding issues between Barchi and the State. Indeed,
insofar as the statutory requirements are concerned, it is as
likely as not that Barchi and others subject to relatively brief
suspensions would have no opportunity to put the State to
its proof until they have suffered the full penalty imposed.
Yet, it is possible that Barchi's horse may not have been
drugged and Barchi may not have been at fault at all. Once
suspension has been imposed, the trainer's interest in a speedy
resolution of the controversy becomes paramount, it seems to
us. We also discern little or no state interest, and the State
has suggested none, in an appreciable delay in going forward
with a full hearing. On the contrary, it would seem as much
in the State's interest as Barchi's to have an early and reliable
determination with respect to the integrity of those participating
in state-supervised horse racing.
In these circumstances, it was necessary that Barchi be
assured a prompt postsuspension hearing, one that would
proceed and be concluded without appreciable delay. Because
the statute as applied in this case was deficient in this
respect, Barchi's suspension was constitutionally infirm under
the Due Process Clause of the Fourteenth Amendment.
BARRY v. BARCID 67
55 Opinion of the Court
The question remains whether the State's prohibition of
administrative stays pending a hearing in the harness racing
context without a like prohibition in thoroughbred racing
denies harness racing trainers equal protection of the laws.
The District Court acknowledged that the inquiry in this
respect is "whether or not the classification is without a reasonable
basis." 436 F. Supp., at 783. Put another way, a
statutory classification such as this should not be overturned
"unless the varying treatment of different groups or persons
is so unrelated to the achievement of any combination of
legitimate purposes that we can only conclude that the legislature's
actions were irrational." Vance v. Bradley, 440 U.S.
93, 97 (1979). In holding that § 8022 violated the Equal
Protection Clause, the District Court misapplied this standard.
The legislative history of § 8022 makes clear that the
section and other provisions applicable to harness racing resulted
from a legislative conclusion that harness racing should
be subject to strict regulation,12 and neither Barchi nor the
District Court has demonstrated that the acute problems attending
harness racing also plague the thoroughbred racing
industry. Barchi has not shown that the two industries
should be identically regulated in all respects; he has not convinced
us that "the legislative facts on which the classification
is apparently based could not reasonably be conceived to be
12 In response to the slaying of a union official who represented employees
at a harness track and the resulting disclosure of "a pattern of
activities . . . clearly inimical to the public interest," Governor Dewey
appointed a commission to inquire into the general regulation of harness
tracks. N. Y. Legis. Doc. No. 86, 177th Sess., 3 (1954). The investigation
disclosed that harness racing had become "a lush and attractive field
for every kind of abuse." Id., at 4; see Report of the New York State
Commission, in Public Papers of Governor Thomas E. Dewey 505 (1954).
The Commission· recommended major changes in the harness racing laws,
including enactment of the provisions of § 8022 ruled unconstitutional by
the District Court. See 1954 N. Y. Laws, ch. 510, § 8; Report of the
New York State Commission, supra, at 512.
68 OCTOBER TERM, 1978
BRENNAN, J., concurring in part 443 u. s.
true by the governmental decisionmaker." Vance v. Bradley,
supra, at 111. It was not the State's burden to disprove by
resort to "current empirical proof," 440 U.S., at ll0, Barchi's
bare assertions that thoroughbred and harness racing should
be treated identically.
It also seems clear to us that the procedural mechanism
selected to mitigate the threats to the public interest arising
in the harness racing context is rationally related to the
achievement of that goal. The State could reasonably conclude
that swift suspension of harness racing trainers was
necessary to protect the public from fraud and to foster public
confidence in the harness racing sport. Accordingly, we think
the District Court erred in disapproving the difference in the
procedural courses applicable to harness racing and thoroughbred
racing.
We thus affirm the judgment of the District Court insofar
a.s it ruled Barchi's suspension unconstitutional for lack of
assurance of a prompt postsuspension hearing. We reverse
its judgment, however, to the extent. that it. declared § 8022
unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment. The judgment of the District Court
is accordingly affirmed in part and reversed in part, and the
case is remanded for further proceedings consistent with
this opinion.13
It is so ordered.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART,
MR. JusTrCE MARSHALL, and MR. JUSTICE STEVENS join, concurring
in part.
I agree that the District Court properly declined either to
abstain in this case or to require exhaustion of state remedies
13 We express no view on whether the procedures under § 80'22, as that
section may have been modified by subsequent legislation, satisfy the
strictures of the Due Process Clause. After the District Court rendered
its decision, the Appellate Division of the New York Supreme Court
BARRY v. BARCHI 69
55 BRENNAN, J., concurring in part
that were themselves being challenged as unconstitutional.1
I also agree that appellee's trainer's license clothes him with
a constitutionally protected interest of which he cannot be
deprived without procedural due process. What was said of
automobile drivers' licenses in Bell v. Burson, 402 U. S. 535,
nullified a Board order summarily suspending a veterinarian's license to
practice medicine at racetracks on the ground that the Board had not
made "any finding that the public health, safety, or welfare imperatively
required such emergency action as a suspension prior to a hearing."
Gerard v. Barry, 59 App. Div. 2d 901, 399 N. Y. S. 2d 876 (1977). The
court relied on § 401 (3) of the State Administrative Procedure Act, N. Y.
State Admin. Proc. Act§ 401 (3) (McKinney Supp. 1977), which provides:
"If the agency finds that public health, safety, or welfare imperatively
requires emergency action, and incorporates a finding to that effect in its
order, summary suspension of a license may be ordered, effective on the
date specified in such order or upon service of a certified copy of such
order on the licensee, whichever shall be later, pending proceedings for
revocation or other action. These proceedings shall be promptly instituted
and determined."
Section 401 (3) did not take effect until September 1, 1976, two months
after Barchi was suspended. The section has no bearing on the constitutionality
of procedures under § 8022 as applied to persons like Barchi
who were suspended prior to its effective date. See N. Y. State Admin.
Proc. Act§ 103 (3) (McKinney Supp. 1977).
1 I also agree that the Court need not address the District Court's
holding that the rebuttable presumption of trainer responsibility is constitutional;
appellee did not cross appeal, and he is not to be heard upon
the challenge to that holding made in his brief, since agreement with
that challenge would result in greater relief than was awarded him by the
District Court. See FEA v. Algonquin SNG, Inc., 426 U. S. 548, 560 n.
11 (1976); United States v. Raines, 362 U.S. 17, 27 n. 7 (1960).
Lower court decisions conflict on the question whether an irrebuttable
presumption of trainer responsibility is constitutional. Compare Brennan
v. Illinois Racing Board, 42 Ill. 2d 352, 247 N. E. 2d 881 (1969) (irrebuttable
presumption unconstitutional), with Hubel v. West Virginia Racing
Comm'n, 513 F. 2d 240 (CA4 1975) (irrebutta.ble presumption constitutional).
See generally Note, Brennan v. Illinois Racing Board: The
Validity of Statutes Making a Horse Trainer the Absolute Insurer for the
Condition of His Horse, 74 Dick. L. Rev. 303 (1970).
70 OCTOBER TERM, 1978
BRENNAN, J., concurring in part 443U. S.
539 (1971), is even more true of occupational licenses such as
Barchi's:
"Once licenses are issued, ... their continued possession
may become essential in the pursuit of a livelihood.
Suspension of issued licenses ... involves ·state action
that adjudicates important interests of the licensees. In
such cases the licenses are not to be taken away without
that procedural due process required by the Fourteenth
Amendment."
See Dizon v. Love, 431 U. S. 105, 112 ( 1977); Gibson v. Berryhill,
411 U.S. 564 (1973); cf. New Motor Vehicle Bd. of Cal.
v. Orrin W. Fox Co., 439 U.S. 96 (1978). Board of Regents
v. Roth, 408 U.S. 564 (1972), stated, in identifying protected
interests, that Bell v. Burson was an example of situations in
which "[t]he Court has ... made clear that the property
interests protected by procedural due process extend well beyond
actual ownership of real estate, chattels, or money." 2
Appellants seek to avoid these cases by characterizing
appellee's license as a "privilege" and arguing that one who
has accepted the benefits of a license is precluded from challenging
the conditions attached to it, including the procedures
for suspension and revocation. See Arnett v. Kennedy, 416
U. S. 134 ( 1974) (plurality opinion). The Court properly
rejects this contention-indeed, does not even mention it.
Board of Regents v. Roth, supra, at 571, emphasized that "the
2 408 U. S., at 571-572. Roth explained that "[t]o have a [protectai]
property interest in a benefit, a pcl'l'on clearly must have morr than an
abstract need or desire for it. He must have more than a unilateral expectation
of it. Ile must, instead, have a legitimate claim of entitlement to
it." Id., at 577. No extended inquiry into· the formal and informal "rules
or understandings that secure rertain benefits and that support claims of
entitlement to those benefits," ibid., is neeessary here. Cf. Perry v. Sindermann,
408 lJ. S. 593, 599-603 (1972). AppC'llee's daim to an entitlement
in his duly issued trainer's licen~e is confinned by the state statutes authorizing
the issuance of licenses. See N. Y. Unconsol. Laws § 8010 (McKinney
1979).
BARRY v. BARCHI 71
55 BRENNAN, J., concurring in part
Court has fully and finally rejected the wooden distinction
between 'rights' and 'privileges' that once seemed to govern
the applicability of procedural due process rights." Having
once determined that the interest at stake is protected by the
Due Process Clause, a court has occasion only to inquire what
process is due. See Dixon v. Love, supra, at 112; Mathews v.
Eldridge, 424 U.S. 319, 332-333 (1976).
Turning then to the question whether the procedures available
to Barchi satisfied the mandates of due process, appellants
argue that the State's interests in protecting horses
and in protecting the repute of racing and the State's income
derived from racing justify summary suspensions of trainers'
licenses when traces of drugs are allegedly found in their
horses' urine.' Prior decisions establish that "[b] efore a person
is deprived of a protected interest, he must be afforded
opportunity for some kind of a hearing, 'except for extraordinary
situations where some valid governmental interest is
at stake that justifies postponing the hearing until after the
event,'" Board of Regents v. Roth, supra, at 570 n. 7, quoting
Boddie v. Connecticut, 401 U. S. 371, 379 (1971); see
Smith v. Organization of Foster Families, 431 U. S. 816, 848
(1977); Bell v. Burson, supra, at 542. Even where a State's
8 Cf. Hubel v. West Virginia Racing Comm'n, supra, which described
West Virginia's interests as foliows:
"The state has at least two substantial interests to be served. It has
a humanitarian interest in protecting the health of the horse, and it has
a broader and more weighty interest in protecting the purity of the sport,
both from the standpoint of protecting its own substantial revenues
derived from taxes on legalized pari-mutuel betting and protecting patrons
of the sport from being defrauded. . . . If a horse is fleeter or slower than
his normal speed because of having been drugged, the integrity of the
race is irretrievably lost. Of course, if stimulated, his artificial position a.t
the finish may be corrected and he may be deprived of any purse that he
apparently won. But the interests of bettors cannot be protected. Winning
tickets must be paid promptly at the end of the race before the disqualification
of the horse, except for the most obvious reasons, can be
accomplished." 513 F. 2d, at 243-244.
72 OCTOBER TERM, 1978
BRENNAN, J., concurring in part 443 U.S.
interests justify action, after only summary informal proceedings,
that temporarily infringes on protected interests
pending a later full hearing, that full hearing must be available
promptly after the temporary deprivation occurs. See
North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S.
601 (1975); Goldberg v. Kelly, 397 U.S. 254, 266-267 (1970).
In any event,
" [ t] his Court consistently has held that some form of
hearing is required before an individual is finally deprived
of a property interest. [Citations omitted.] The 'right
to be heard before being condemned to suffer grievous
loss of any kind, even though it may not involve the
stigma and hardships of a criminal conviction, is a principle
basic to our society.' Joint Anti-Fascist Comm. v.
McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J.,
concurring). The fundamental requirement of due process
is the opportunity to be heard 'at a meaningful time
and in a meaningful manner.' Armstrong v. Manzo, 380
U. S. 545, 552 (1965). See Grannis v. Ordean, 234 U.S.
385, 394 (1914)." Mathews v. Eldridge, supra, at 333.
The District Court held in this case that " [ o J n balance ...
the absence of either a pre-suspension hearing or a prompt postsuspension
hearing denie[d BarchiJ the meaningful review
due process requires." Barchi v. Sarafan, 436 F. Supp. 775,
782 (SDNY 1977). I agree with the District Court and with
the Court that the absence of an opportunity for a prompt
postsuspension hearing denied Barchi due process. Given
the "in the alternative" phrasing of the District Court's judgment
and the absence of a cross-appeal by Barchi,4 however, I
would not reach the question whether due process required a
presuspension hearing in this case. Even assuming that the
presuspension procedures afforded Barchi satisfied due proc-
4 See n. 1, supra.
BARRY v. BARCHI 73
55 BRENNAN, J., concurring in part
ess in light of the Stat€'s allegedly substantial interests,5 the
State has failed to identify any substantial interest in postponing
Barchi's opportunity for a full hearing once Barchi's
license was suspended. Yet the District Court found that no
opportunity for an immediate postsuspension full hearing was
available. Furthermore, the District Court found that, in
harness racing, even a temporary suspension can irreparably
damage a trainer's livelihood. Not only does a trainer lose
the income from races during the suspension, but also, even
more harmful, he is likely to lose the clients he has collected
over the span of his career.6 Where, as here, even a short
5 My reservation of the presuspension hearing issue does not imply
agreement with the Court on this matter. The record in this case, in my
view, raises serious doubts that the alleged state interests in this context
are sufficient to justify postponing a trainer's hearing until after his suspension.
See Mackey v. Montrym, ante, at 25-26 (STEWART, J., dissenting).
The asserted importance of New York's intere~ts in summary action is
plainly depreciated by the State Board's claimed practice of staying suspensions
when appropriate. See Tr. of Oral Arg. 10-12; Tr. 27-30; affidavit
of John M. Dailey, Aug. 26, 1976, App. 34a. Moreover, in this case
16 days elapsed between the positive urine test and the suspension order.
These practices are hardly consistent with appellants' claim that summary
suspensions are necessary to serve important state interests whenever
a drug test is positive.
0 "Race horse trainers may be entrusted with the care of a number of
trotters at any given time. A trainer's income is derived in large measure
from the proceeds of horse races ( as opposed to a salary), and, since,
harness 'meetings' are sporadic, trainers cannot recapture the racing
opportunities lost by missed meetings. Once a trainer is suspended, even
for a brief period, an owner will immediately seek the services of another
trainer so that the horse is not barred from racing. This change is often
permanent in order to avoid further disruption in the care of the 11nim11l.
Significantly, plaintiff has proffered the affidavit of a third-party trainer/
driver who experienced just such a loss during a suspension for a similar
drug infraction. He had also suffered irreparable damage for a subsequent
ex parte suspension that was later reversed. Racing opportunities
lost because of a suspension cannot be recovered by a later reversal in
[a] review hearing for obvious reasons. Furthermore, defendants do not
74 OCTOBER TERM, 1978
BRENNAN, J., concurring in part 443 U.S.
temporary suspension threatens to inflict substantial and irreparable
harm, an "initial" deprivation quickly becomes
"final," and the procedures afforded either before or immediately
after suspension are de facto the final procedures. A
final full hearing and determination after Barchi had been
barred from racing his horses and had lost his clients to other
trainers was aptly described by the District Court as an "exercise
in futility," 436 F. Supp., at 782, and would certainly
not qualify as a "meaningful opportunity to be heard at a
meaningful time." To be meaningful, an opportunity for a
full hearing and determination must be afforded at least at
a time when the potentially irreparable and substantial harm
caused by a suspension can still be avoided~i. e., either before
or immediately after suspension.
I therefore join those parts of the Court's opinion holding
that the District Court properly refused to abstain or to require
exhaustion and that the procedures available to Barchi failed
to satisfy the requirements of due process because they did
not assure a suspended trainer an opportunity for an immediate
postsuspension full hearing and determination. In
light of this holding, of Barchi's failure to cross appeal from
the judgment of the District Court, and of possibly significant
changes in the procedures applicable to all future suspensions,7
I would not reach the additional questions whether Barchi
was constitutionally entitled to a pre-suspension hearing and
whether the difference between the procedures in harness
racing and those in flat racing violates the Equal Protection
Clause.
dispute the fact that a loss of horses in a trainer's stable occasioned during
his suspension can often be an irremediable injury, even though such suspension
is erroneous and without justification." Barchi v. Saraf an, 436 F.
Supp. 775, 778 (SDNY 1977).
See affidavit of John Barchi, July 12, 1976, App. 23a; affidavit of
Lucien Fontaine, Aug. 17, 1976, App. 39a.
7 See ante, at 68-69, n. 13.
BARRY v. BARCH! 75
55 BRENNAN, J., con curring in part
Accordingly, I would affirm the judgment of the District
Court insofar as it nullifies Barchi's suspension because the
procedures applicable to his case at the time of his suspension
did not satisfy due process. Like the Court, I express no
view as to the constitutionality of procedures under § 8022 as
it may have been modified by subsequent legislation; I would
therefore vacate that portion of the District Court's judgment
that declares § 8022 unconstitutional and enjoins its
enforcement.
76 OCTOBER TERM, 1978
Syllabus 443 U.S.
CALIFANO, SECRETARY OF HEALTH, EDUCATION,
AND WELFARE V. WESTCOTT ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSE'ITS
No. 78-437. Argued April 16, 1979-Decidt>d June 25, 1979*
Section 407 of the Social Security Act, which governs the Aid to Families
with Dependent Children, Unemployed Father (AFDC-UF) program,
provides benefits to families whose dependent children have been deprived
of parental support because of thr unemployment of the father,
but does not provide such benefits when the mother becomes unemployed.
This class action was instituted in Federal District Court
against the Secretary of the Department of Health, Education, and
Welfare (Secretary) and the Commissioner of the l\fassachusetts Department
of Public ·welfare (Commissioner) by appcllecs, two couples
(each having an infant son) who satisfy all the requirements for
AFDC-UF benefits except for the requirement that the parent who is
"unemployrd" within the meaning of the Act and applicable regulations
be t,he father. Appellces alleged that § 407 and its implementing regulations
discriminate on the basis of gender in violation of the Fifth and
Fourteenth Amrndments, and sought declaratory and injunctive relief.
The District Court dedared § 407 unconstitutional insofar as it establishrs
a classification which discriminates solrly on the basis of sex, and
detrrmined that extension of the AFDC-UF program to all families with
needy children where either parent is unemployed, rather than nullification
of the program, was the proper remedial course. Subsequently,
the District Court declined to modify its order so as to pPrmit. the
Commissioner to pay benc•fits only to those families where needy children
have been deprived of parental support by the unemployment of the
family's "principal wage-earner." The Secretary challenges only the
holding on the constitutionality of § 407, whereas the CommissionP.r
challenges only the relief.
Held:
1. The gender classificat.ion of § 407 is not substantially related to the
attainment of any important and valid statutory goals; it is, rather,
*Together with No. 78-689, Pratt, Commissioner, Department of Public
Welfare of Massachusetts v. Westcott et al., also on appeal from the same
court.
76
CALIFANO v. WESTCOTT 77
Syllabus
part of the "baggage of sexual stereotypes," Orr v. Orr, 440 U. S. 268,
283, that presumes the father has the "primary responsibility to provide
a home and its essentials," Stanton v. Stanton, 421 U. S. 7, 10,
while the mother is the "center of home and family life." Taylor v.
Louisiana, 419 U. S. 522, 534 n. 15. Legislation that rests on suc,h
presumptions, without more, cannot survive scrntiny under the Due
Process Clause of the Fifth Amendment. Pp. 83-89.
(a) The constitutionality of § 407 cannot be sustained on the
theory that although it incorporates a gender distinction, it does not
discriminate against women as a class because it affects family units
rather than individuals. Pp. 83-85.
(b) Nor can § 407's gender distinction survive constitutional scrutiny
as being substantially related to achievement of an important governmental
objective. It does not serve the statutory goal of providing
aid for needy children, nor is it substantially related to achieving the
alleged objective of the AFDC-UF program of reducing the incentive
for fathers to desert in order to make their families eligible for assistance.
Pp, 85--89.
2. The District Court's remedial order was proper. Pp. 89--93.
(a) Since no party has argued that nullification of the AFDC-UF
program is the proper remedial course, this Court would be inclined
to consider that issue only if the power to order extension of the program
were clearly beyond the constitutional competence of a federal
district court. However, this Court's previous decisions, which routinely
have affirmed district court judgments ordering extension of federal welfare
programs, suggest strongly that no such remedial incapacity exists.
Pp. 89--91.
(b) The District Court, in ordering that benefits be paid to families
in which either the mother or the father is unemployed within the
meaning of the Act, rather than accepting the "principal wage-earner"
model suggested by the Commissioner, adopted the simplest and most
equitable extension possible. Pp. 91-93.
460 F. Supp. 737, affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN,
WHITE, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed an opinion
concurring in part and dissenting in part, in which BURGER, C. J., and
STEWART and REHNQUIST, JJ., joined, post, p. 93.
William H. Alsup argued the cause for appellant in No. 78-
437. On the brief were Solicitor General McCree and Sara
78 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
Sun Beale. Paul W. Johnson, Assistant Attorney General of
Massachusetts, argued the cause for appellant in No. 78-689.
With him on the briefs were Francis X. Bellotti, Attorney
General, and S. Stephen Rosenfeld, Assistant Attorney
General.
Henry A. Freedman argued the cause for appellees in both
cases. With him on the brief for appellees Westcott et al.
were Kenneth P. Neiman and Michael B. Trister. Solicitor
General M cCree filed a brief for the federal appellee in No.
78-689.t
MR. JusTICE BLACKMUN delivered the opinion of the Court.
Section 407 of the Social Security Act, 75 Stat. 75, as
amended, 42 U. S. C. § 607, part of the Aid to Families with
Dependent Children program, provides benefits to families
whose dependent children have been deprived of parental
support because of the unemployment of the father, but does
not provide such benefits when the mother becomes unemployed.
The United States District Court for the District of
Massachusetts held that this distinction violates the Due
Process Clause of the Fifth Amendment, and ordered that
benefits be paid to families deprived of support because of the
unemployment of the mother to the same extent they are paid
to families deprived of support because of the unemployment
of the father. 460 F. Supp. 737 (1978). In these appeals,
the Secretary of the Department of Health, Education, and
Welfare (HEW), in No. 78-437, challenges the holding on the
constitutionality of § 407, but does not question the relief
ordered by the District Court; the Commissioner of the MassatRuth
Bader Ginsburg, Diana A. Steele, Phylli,s N. Segal,, and Nancy
Duff Campell filed a brief for the American Civil Liberties Union et al. as
amici curiae urging affirmance in both cases.
Stephan Landsman, Anthony Touschner, Charles E. Guerrier, and
Barbara Kaye Besser filed a brief for Cathy Stevens et al. as amici curiae
urging affirmance in No. 78-437.
CALIFANO v. WESTCOTT 79
76 Opinion of the Court
chusetts Department of Public Welfare (DPW), in No. 78--
689, acquiesces in the decision on the merits, but contests the
relief.
I
The Aid to Families with Dependent Children (AFDC)
program, 49 Stat. 626, as amended, 42 U. S. C. § 601 et seq.,
provides financial assistance to families with needy dependent
children. The program is administered by participating
States, in conformity with federal standards, and is financed
by the Federal Government and the States on a matchingfunds
basis. King v. Smith, 392 e. S. 309, 316-317 (1968) ;
Shea v. Vialpando, 416 U. S. 251, 253 (1974).
As originally enacted in 1935, the AFDC program provided
benefits to families whose dependent children were needy
because of the death, absence, or incapacity of a parent.
Batterton v. Francis, 432 U. S. 416, 418 (1977). This provision,
which forms the core of the AFDC program today, is
gender neutral: benefits are available to any family so long as
one parent of either sex is dead, absent from the home, or
incapacitated, and the family otherwise meets the financial
requirements of eligibility. 42 U.S. C. § 606.
In 1961, and again in 1962, Congress temporarily extended
the AFDC program to provide assistance to families whose
dependent children were deprived of support because of a
parent's unemployment. Batterton v. Francis, 432 U. S., at
419; Philbrook v. Glodgett, 421 U. S. 707, 709-710 ( 1975).
Again, this provision was gender neutral. A "dependent
child," for purposes of determining eligibility for AFDC benefits,
was defined to include "a needy child ... who has been
deprived of parental support or care by reason of the unemployment
... of a parent." 75 Stat. 75 (emphasis added).
In 1968, as part of a general revision of the Social Security
Act, Congress made this extension permanent. In so doing,
however, it added a gender qualification to the statute. The
80 OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
definition of "dependent child" in § 407 was amended to include
a "needy child ... who has been deprived of parental
support or care by reason of the unemployment ... of his
father." 42 U.S. C. § 607 (a) (emphasis added). This portion
of the AFDC program is known as Aid to Families with
Dependent Children, Unemployed Father (AFDC-UF). Although
all 50 States have chosen to participate in the basic
AFDC program, only 26 States (plus Guam and the District
of Columbia) take part in the AFDC-UF program. One of
these is the Commonwealth of Massachusetts.
Appellees are t,vo couples who, it is stipulated, satisfy all
the requirements for AFDC-UF benefits 1 except for the requirement
that the unemployed parent be the father. Cindy
and William Westcott are married and ha.ve an infant son.
They applied to the Massachusetts DPW for public assistance,
but were informed that they did not qua.lify because William,
·who was unable to find work, had not previously been employed
for a sufficient period to qualify as an "unemployed"
father under the Act and applicable regulations. Cindy, until
her recent unemployment, was the family breadwinner, and
would have satisfied the "unemployment" criteria had she
been male.
Susan and John Weshvood are also married and have an
1 To be eligible for benefits under the AFDC-UF program, a family
must meet both financial and categorical requirements. The financial requirements
are determined by the participating States, and vary widely
from one State to another. Rosado v. Wyman, 397 U. S. 397, 408--409
( 1970) . The categorical requirements, however, are largely determined
by the Federal Government. The Act itself specifies that. the father must
have had 6 or more quarters of work in any 13-quartcr period ending
within one year prior to the application for aid, and must be currently
employed for less than 100 hours per month. 42 U. S. C. § 607 (b) ( 1)
(C). In addition, § 407 of the Art gives the Secretary of HEW authority
to promulgate regulations further defining thP "unemployment" that will
render a family eligible for AFDC-UF benefits. Batterton v. Francis,
432 u. S. 416,425 (1977). The regulations, like the statute, speak in terms
of the unemployment of the "father." 45 CFR § 233.100 (a)(l) (1978).
CALIFANO v. WESTCOTT 81
76 Opinion of the Court
infant son. They applied for Medicaid benefits as a family
eligible for, but not receiving, AFDC~FF benefi.ts. 2 They, too,
wne turned down on the ground that John's prior work history
\vas insufficiC'nt. Susan, lik<> C'indy Westcott, had been
th<> family breadwinnf'r bpfor«:> losing h«:>r job, and would have
qualifi«:>d the family for benf'fits had she been male.
Appellees instituted this class action in th<> Fnited States
District Court for thP District of Massachusetts, naming as
defendants the Secretary of HEW and the Commissioner of
the DPW. Appellees alleged that § 407 and its implementing
rf'gulations discriminate on the basis of gender in violation
of the Fifth and Fourteenth Amendments. They sought
declaratory and injunctive relief.
The District Court certified th<> case as a class action.3 and
granted appellees' motion for summary judgment. 460 F.
Rupp. 737 0978). The court found that the gender qualification
of § 407 was not substantially related to the achievement
of any important govC'rnmf'ntal interests. 460 F. Supp., at
748-751. It was, rather, the product of an "archaic and overbroad
generalization"-that "mothers in two parent fami lies
2 In States that pnrtiripnte in both thr AFDC program and the Medicaid
proj!;rnm, 42 r. S. C. § 1396 et seq., individuals who qualify for
AFDC benefits arr also entitled to rerein• Medicaid benefits. § 1396a
(a) (10).
3 The clas.~ wns dcfined as
"those MaSl5arhu~etts families with two parents in thP home and with minor
dE'pendent children, born or unborn, who would otherwisE' be eligible for
AFDC under Mal'.•achusetts' AFDC program, and hence Medicaid as
WE'il, but for the ~PX disl'rimination in the federal statute [ 42 U. S. C.
§ 607] and l\fas$.1chusett~ regulations [6 CHSR III, Subch. A, Pt. 301,
§ 301.03; Pt. 303, Rubpt. A, §§ 303.01 & 303.04] which provide for the
i:i;rantinl!; of federally fundrd AFDC and Medicaid to families deprived of
support because of the unemployment of t heir father, but not to families
deprived of support becau<e of the mother's unemployment." App. to
Juris. Statement in No. 78-437, pp. 39A-40A.
The Recretary does not contrst the class certification. Juris. Statement
in No. 7&--437, p. 5 n. 4.
82 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
are not breadwinners, so that loss of their earnings would not
substantially affect the families' well being." Id., at 751.
The court accordingly declared § 407 unconstitutional "insofar
as it establishes a classification which discriminates ... solely
on the basis of sex." 460 F. Supp., at 754.
The District Court then turned to the question of relief.
The court sa,x.• two remedial alternatives: a simple injunction
against further operation of the AFDC- UF program, or extension
of the program to all families with needy children where
either parent is unemployed. Id., at 753. The court decided
that extension, rather than nullification, was the proper remedial
course; it noted the strength of Congress' commitment to
the "specific goal of assisting needy children,'' and emphasized
that if provision of benefits "were halted because of the constitutional
defect, many persons would lose their very means
of subsistence." Id., at 753-754. The court therefore, by
order dated April 20, 1978, enjoined the Commissioner from
refusing to grant benefits to families made needy by the unemployment
of the mother "in the same amounts and under
the ~ame standards" as he grants benefits to families made
needy by the unemployment of the father. App. to Juris.
Statement in No. 78-437, pp. 41A 42A. The court likewise
enjoined the Secretary from refusing to provide federal matching
funds for payment of such benefits. Id., at 40A-41A.
Although the Commissioner originally had agreed that this
was the appropriate remedy, Juris. Statement in No. 78-689,
p. 6, he later sought modification of the District Court's order,
so as to effect a more limited extension of the AFDG-UF program.
The Commissioner requested that he be permitted to
pay benefits "only to thm,e families where needy children have
been deprived of parental support or care by the unemployment
of the family's principal wage-earner." App. to Juris.
Statement in No. 78-689, p. 3a (emphasis added).4 This
4 The Commissionrr proposed to define "principal wage-earner" as the
parent whose earned income or unemployment compensation was greater
CALIFANO v. WESTCOTT 83
76 Opinion of the Court
modification, he argued, v.ould accomplish a gender-neutral
extension of the program at a much lower cost. Id., at 4a.
On August 9, 1978, the District Court denied the Commissioner's
motion, believing that "any reformulation of the statutory
scheme ... which goes beyond the remedy already ordered in
this case is properly left to Congressional action." Id., at 13a.
The Secretary, pursuant to 28 U. S. C § 1252, appealed
directly to this Court from the District Court's April 20 decision
holding § 407 unconstitutional. App. to Juris. Statement
in No. 78--437, p. 43A. The Commissioner took a separate
appeal, also pursuant to § 1252, from the District Court's
August 9 refusal to modify its remedial order. App. to Juris.
Statement in No. 78-689, p. 15a. We noted probable jurisdiction
and consolidated the cases for argument. 439 U. S.
1044 ( 1978).
II
THE SECRETARY'S APPEAL
The Secretary advances two arguments in support of the
constitutionality of § 407. First, he contends that although
§ 407 incorporates a gender distinction, it does not discriminate
against women as a class. Second, he urges that the
distinction is substantially related to the achievement of an
important governmental objective: the need to deter real or
pretended desertion by the father in order to make his family
eligible for AFDC benefits.
A
The Secretary readily concedes that § 407 entails a gender
distinction. Brief for Appellant in No. 78-437, p. 36. He
submits, however, that the Act does not award AFDC benefits
to a father where it denies them to a mother. Rather,
the grant or denial of aid based on the father's unemployment
during the six months preceding the month of application. App. to Juris.
Statement in No. 78-689, pp. 7a-8a.
84 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
necessarily affects, to an equal degree, one man, one woman,
and one or more children. As the Secretary puts it, even if
the statute is "gender-based," it is not "gender-biased." Ibid.
We are not persuaded by this analysis. For mothers who
are the primary providers for their families, and who are
unemployed, § 407 is obviously gender biased, for it deprives
them and their families of benefits solely on the basis of their
sex. The Secretary's argument, at bottom, turns on the fact
that the impact of the gender qualification is felt by family
units rather than individuals. But this Court has not
hesitated to strike down gender classifications that result in
benefits being granted or denied to family units on the basis
of the sex of the qualifying parent. See Frontiero v. Richardson,
411 U. S. 677 (1973) (military quarters allowances
and medical and dental benefits); Weinberger v. Wiesenfeld,
420 U. S. 636 (1975) (survivor's benefits); Califano v. Goldfarb,
430 U. S. 199 (1977) (survivor's benefits); Califano
v. Jablon, 430 U. S. 924 ( 1977), summarily aff'g 399 F. Supp.
118 (Md. 1975) (spousal benefits). Here, as in those cases,
the statute "discriminates against one particular category of
family-that in which the female spouse is a wage earner."
Goldfarb, 430 U. S., at 209 (plurality opinion).
The Secretary appears to acknowledge the force of these
precedents, but suggests that each involved benefits that
either were a form of compensation earned by a woman as a
member of the labor force, or were directly related to such
compensation. In the present case, in contrast, the benefits
are part of a noncontributory welfare program. Thus, the
Secretary argues, the gender qualification of§ 407 is distinguishable
from those contained in the earlier cases, for it does not
denigrate "the efforts of women who do work and whose earnings
contribute significantly to their families' support."
Wiesenfeld, 420 U. S., at 645.
The distinction between employment-related benefits and
other forms of government largesse may be relevant to equal
CALIFANO v. WESTCOTT 85
76 Opinion of the Court
protection analysis, for example in determining whether the
differential treatment of survivor's benefits denigrates the
efforts of the deceased spouse. Wiesenfeld, 420 U. S., at 645-
647; Goldfarb, 430 U. S., at 206-207 (plurality opinion).
This does not mean, however, that the Constitution is indifferent
to a statute that conditions the availability of noncontributory
welfare benefits on the basis of gender. The Secretary's
argument to the contrary in effect invites a return to the
discredited view that welfare benefits are a "privilege" not
subject to the guarantee of equal protection. See Graham v.
Richardson, 403 U. S. 365, 374 (1971). Putting labels aside,
the exclusion here is if anything more pernicious than those in
Frontiero, Wiesenfeld, and Goldfarb. AFDC-UF benefits are
not "fringe benefits," nor are they a type of social assistance
paid without regard to need. Rather, they are subsistence
payments made available as a last resort to families that would
otherwise lack basic necessities. The deprivation imposed by
§ 407, moreover, is not a mere procedural barrier, like the
proof-of-dependency requirement in Frontiero and Goldfarb,
but is an absolute bar to qualification for aid. We therefore
reject the contention that the classification imposed by § 407
does not discriminate on the basis of gender.
B
The Secretary next argues that the gender distinction imposed
by § 407 survives constitutional scrutiny because it is
substantially related to achievement of an important governmental
objective. Orr v. Orr, 440 U. S. 268, 279 (1979);
Califano v. Webster, 430 U. S. 313, 316-317 (1977); Craig v.
Boren, 429 U. S. 190, 197 (1976). The Secretary identifies
two important objectives served by § 407.
First and most obviously, the statute was intended to provide
aid for children deprived of basic sustenance because of
a parent's unemployment. H. R. Rep. No. 28, 87th Cong.,
1st Sess., 2 ( 1961). As then HEW Secretary Ribicoff put it in
86 OCTOBER TERM, 1978
Opinion of the Court 443 F.S.
testimony before the House Ways and Means Committee,
"there is no justification whatsoever for denying to the child
of the unemployed parent the food that you give to the child
of the parent who deserts or is absent or dead." Hearings on
H. R. 3864 and 3865 before the House Committee on Ways
and Means, &7th Cong. , 1st Sess., 102 (1961). The appellant
Secretary does not contend, however, that the gender qualification
of § 407 serves to aC'hieve this goal. Tr. of Oral Arg.
6, 7-8. ~or could he, since families where the mother is the
principal wage earner and is unemployed are often in as much
need of AFDC-UF benefits and Medicaid as families where
the father is unemployed.
Second , the statute was designed to remedy a structural
fault in the original AFDC' program. Fnder that program, a
family was eligible for benefits if deprived of parental support
because of the "continued absence from the home ... of a
parent." 42 r. S. C'. §606(a). In times of economic adversity,
this provision was thought to create an incentive for
the father to desert, or to pretend to desert. in order to make
the family f' ligible for assistance. Section 407, by providing
AFDC benefits to families rendered needy by parental unemployment,
was intended to reduce this incentive and thereby
promotE.> the goal of family stability. The Secretary submits
that reducing the incentive for the fathf'!' to desert was an
important objective of the AFDC-PF program, and he argues
that thE.> gPnder qualification is substant.ially related to its
achievement.
We perceive, however, at least two flaws in this argument.
Although it is relatively clear that Congress was concerned
about the problem of parental desertion, see A. Rep. No. 744,
90th Cong., 1st Sess., 160 ( 1967); H. R. Rep. No. 28, 87th
Con~ .. 1st Sess .. 2 (1961). there is no evidence that the gender
distinction was desig-ned to address this problem. See Weinberger
v. Wi.esenfeld, 420 r. S., at 648. Both the original
AFDC program, and the temporary versions of the AFDC-UF
CALIFANO v. WESTCOTT 87
76 Opinion of the Court
program enacted in 1961 and 1962, were gender neutral. The
gender qualification added to the permanent version of
AFDC-UF in 1968 escaped virtually unnoticed in the hearings
and floor debates.5 The only explanation for this addition
is contained in the following passage, which appears in
nearly identical form in both the House and Senate Reports:
"This program was originally conceived by Congress as
one to provide aid for the children of unemployed
fathers. However, some States make families in which
the father is working but the mother is unemployed eligible
for assistance. The bill would not allow such situations.
Under the bill, the program could apply only to
the children of unemployed fathers." S. Rep. No. 744, at
160.
See also H. R. Rep. No. 554, 90th Cong., 1st Sess., 108 (1967).
This suggests that the gender qualification was part of the
general objective of the 1968 amendments to tighten standards
for eligibility and reduce program costs.6 Congress was
concerned that certain States were making AFDC-UF assistance
available to families where the mother ·was out of work,
but the father remained fully employed and able to support
5 During the Senate floor debate on the Conference Report., Senator
Muskie briefly noted and opposed the gender limitation of § 407. 113
Cong. Rec. 36914 (1967).
6 The overriding purpose of the 1968 AFDC amendments was "[t]o
give greater emphasis to getting appropriate members of families drawing
aid to families with dependent children (AFDC) payments into employment
and thus no longer dependent on the welfare rolls." H. R. Rep.
No. 544, 90th Cong., 1st Sess., 3 (1967). The principal changes in the
AFDG-UF program designed to accomplish this end included provisions
"to authorize a Federal definition of unemployment by the Secretary (but
within certain limits set forth in the legislation), to tie the program more
closely to the work and training program authorized by the bill, and to
protect only the children of unrmploycd fathers who have had a recent
attachment to the work force." Id., at 108.
88 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
the family. Apparently, Congress was not similarly concerned
about States making benefits available where the
father was out of work, but the mother remained fully employed.
From all that appears, Congress, with an image of
the "traditional family" in mind, simply assumed that the
father would be the family breadwinner, and that the mother's
employment role, if any, would be secondary. In short, the
available evidence indicatBs that the gender distinction was
inserted to reduce costs and eliminate what was perceived to
be a type of superfluous eligibility for AFDC-UF benefits.
There is little to suggest that the gender qualification had
anything to do with reducing the father's incentive to desert.7
Even if the actual purpose of the gender qualification was
to deal with the problem of paternal desertion, it does not
appear that the classification is substantially relatBd to the
achievement of that goal. The Secretary argues there is
"[s] olid statistical evidence" that fathers are more susceptible
to pressure to desert than mothers, and thus that Congress
was justified in excluding families headed by unemployed
mothers from the AFDC-UF program. Brief for Appellant
in No. 78--437, p. 33. We may assume, for purposes of discussion,
that Congress could legitimatBly view paternal desertion
as a problem separatB and distinct from maternal desertion.
Even so, the gender qualification of § 407 is not substantially
related to the stated purpose. There is no evidence, in the
legislative history or elsewhere, that a father has less incentive
to desert in a family where the mother is the breadwinner
and becomes unemployed, than in a family where the father
is the breadwinner and becomes unemployed. In either case,
the family's need will be equally great, and the father will be
equally subject to pressure to leave the home to make the
7 This conclusion is reinforced by the fact that both the House and
Senate Reports included material dealing specifically with the problem of
parental desertion, yet none of this material mentioned the gender qualification
of § 407. H. R. Rep. No. 544, 90th Cong., 1st Bess., 102-103
(1967); S. Rep. No. 744, 90th Cong., 1st Sess., 160---163 (1967).
CALIFANO v. WESTCOTI 89
76 Opinion of the Court
family eligible for benefits. The Secretary urges that Congress
could take "one firm step" toward the goal of eliminating
the incentive to desert, quoting Califano v. Jobst, 434 U. S.
47, 57-58 (1977). But Congress may not legislate "one step
at a time" when that step is drawn along the line of gender,
and the consequence is to exclude one group of families
altogether from badly needed subsistence benefits. Cf. Williamson
v. Lee Optical Co., 348 U. S. 483, 489 ( 1955).
We conclude that the gender classification of § 407 is not
substantially related to the attainment of any important and
valid statutory goals. It is, rather, part of the "baggage of
sexual stereotypes," Orr v. Orr, 440 U. S., at 283, that presumes
the father has the "primary responsibility to provide
a home and its essentials," Stanton v. Stanton, 421 U. S. 7, 10
(1975), while the mother is the" 'center of home and family
life.'" Taylor v. Louisiana, 419 U. S. 522, 534 n. 15 (1975).
Legislation that rests on such presumptions, without more,
cannot survive scrutiny under the Due Process Clause of the
Fifth Amendment.
III
THE COMMISSIONER'S APPEAL
A
"Where a statute is defective because of underinclusion,"
Mr. Justice Harlan noted, "there exist two remedial alternatives:
a court may either declare [the statute] a nullity and
order that its benefits not extend to the class that the legislature
intended to benefit, or it may extend the coverage of
the statute to include those who are aggrieved by the exclusion."
Welsh v. United States, 398 U. S. 333, 361 (1970)
( concurring in result). In previous cases involving equal
protection challenges to underinclusive federal benefits statutes,
this Court has suggested that extension, rather than
nullification, is the proper course. See, e.g., Jimenez v. Weinberger,
417 U. S. 628, 637-638 (1974); Frontiero v. Richardson,
411 U. S., at 691 and n. 25 (plurality opinion). Indeed,
90 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
this Court regularly has affirmed District Court judgments
ordering that welfare benefits be paid to members of an unconstitutionally
excluded class. E. g., Califano v. Goldfarb,
430 U. S. 199 (1977), aff'g 396 F. Supp. 308, 309 (EDNY
1975); Califano v. Silbowitz, 430 U.S. 924 (1977), summarily
aff'g 397 F. Supp. 862, 871 (SD Fla. 1975); Jablon v. Califano,
430 U. S. 924 (1977), summarily aff'g 399 F. Supp. 118, 132--
133 (Md. 1975); Weinberger v. Wiesenfeld, 420 U. S. 636
(1975), aff'g 367 F. Supp. 981, 991 (NJ 1973); United States
Dept. of Agriculture v. Moreno, 413 U. S. 528 (1973), aff'g
345 F. Supp. 310, 315-316 (DC 1972) ; Richardson v. Griffin,
409 U. S. 1069 (1972), summarily aff'g 346 F. Supp. 1226,
1237 (Md.).
The District Court ordered extension rather than invalidation
by way of remedy here, and equitable considerations
surely support its choice. Approximately 300,000 needy children
currently receive AFDC-VF benefits, see 42 Soc. Sec.
Bull. 78 (Jan. 1979), and an injunction suspending the program's
operation would impose hardship on beneficiaries
whom Congress plainly meant to protect. The presence in
the Social Security Act of a strong severability clause, 42
U. S. C. § 1303,8 likewise counsels against nullification, for it
evidences a congressional intent to minimize the burdens imposed
by a declaration of unconstitutionality upon innocent
recipients of government largesse.
There is no need, however, to elaborate here the conditions
under which invalidation rather than extension of an underinclusive
federal benefits statute should be ordered, for no
party has presented that issue for review. All parties before
the District Court agreed that extension was the appropriate
remedy. Juris. Statement in No. 78-689, p. 6; Motion to
Affirm 5; Juris. Statement in No. 78-437, p. 6 n. 5. Appellees
8 "If any provision of this chapter, or the application thereof to any
person or circumstance, is held invalid, the remainder of the chapter, and
the application of such provision to other persons or circumstances shflll
not be affected thereby." 42 U. S. C. § 1303.
CALIF ANO v. WESTCOTT 91
76 Opinion of the Court
support that remedy here, and the Secretary, while arguing
in favor of § 407's constitutionality, urges that, if the statute
is invalidated, the District Court's remedy should be affirmed.
Brief for Federal Appellee in No. 78-689, pp. 5-10. The
Commissioner likewise argues that extension, rather than
nullification, is proper, Tr. of Oral Arg. 18; indeed, the Commissioner
did not appeal from the District Court's April 20
extension order, but only from its August 9 refusal to limit
extension along "principal wage-earner" lines. App. to Juris.
Statement in No. 78-689, p. 15a. Since no party has presented
the issue of extension versus nullification for review, we would
be inclined to consider it only if the power to order extension
were clearly beyond the constitutional competence of a federal
district court. This Court's previous decisions, however,
which routinely have affirmed District Court judgments ordering
extension of federal welfare programs, suggest strongly
that no such remedial incapacity exists.
B
The narrower question presented by the Commissioner's
appeal concerns not the merits of extension versus nullification,
but rather the form that extension should take. The
District. Court ordered that benefits be paid to families in
which either the mother or the father is unemployed within
the meaning of the Act. The Commissioner agrees that either
the mother's or the father's unemployment should be able to
qualify a needy family for benefits, but proposes to award
them only if the parent in question can show that he or she
is both unemployed and the family's "principal wage-earner."
Citing the legislative history of the AFDG---UF program, the
Commissioner argues that his proposed remedy comports with
Congress' intent to aid families made needy by their breadwinner's
unemployment. This argument, as the preceding portions
of this opinion show, is not without force. We may
assume arguendo that, if Congress knew in 1968 what it knows
now, it might well have adopted the "principal wage-earner"
92 OCTOBER TERM, 1978
Opinion of the Court 443 u. 8.
model suggested by the Commissioner. But this does not
mean that the AFDC-UF program should be restructured
along these lines by a federal court.
First, the Commissioner's proposed remedy would have the
effect of terminating benefits to many families currently receiving
them. Under the Act and implementing regulations,
benefits are paid to needy families of all unemployed fathers,
whether or not the father is actually the "principal wageearner."
See 42 U.S. C. § 607 (a); 45 CFR § 233.100 (a) (I)
(1978). No one contends that the Act and regulations, insofar
as they provide benefits to families of all unemployed
fathers, are invalid. Absent some such showing of invalidity,
we would hesitate to terminate needy families' entitlement to
statutory benefits merely because the unemployed father
cannot prove "breadwinner" status.
Second, the Commissioner's proposed remedy would involve
a restructuring of the Act that a court should not undertake
lightly. Whenever a court extends. a benefits program to
redress unconstitutional underinclusiveness, it risks infringing
legislative prerogatives. The extension ordered by the District
Court possesses at least the virtue of simplicity: by
ordering that "father" be replaced by its gender-neutral equivalent,
the court avoided disruption of the AFDC-UF program,
for benefits simply will be paid to families with an unemployed
parent on the same terms that benefits have long been
paid to families with an unemployed father. The "principal
wage-earner" solution, by contrast, would introduce a term
novel in the AFDC scheme," and would pose definitional and
policy questions best suited to legislative or administrative
elaboration. The Commissioner, with his "principal wageearner"
gloss on parental unemployment, in essence asks this
Court to redefine "unemployment" within the meaning of the
9 The Act, for example, provides benefits to two-parent families made
needy by the incapacity of either parent, regardless of which parent may
have been the "principal wage-earner." 42 U. S. C. § 606 (a).
CALIFANO v. WESTCOTT 93
76 Opinion of POWELL, .J.
Act. Yet "Congress in § 407 (a) expressly delegated to the
Secretary the power to prescribe standards for determining
what constitutes 'unemployment' for purposes of AFDG-UF
eligibility. In a situation of this kind, Congress entrusts to
the Secretary, rather than to the courts, the primary responsibility
for interpreting the statutory term." Batterton v.
Francis, 432 U. S., at 425 (emphasis in original).
The remedy the Commissioner proposes, of course, undeniably
would be cheaper than the remedy the District Court
decreed, in part because it would terminate some current recipients'
eligibility. Although cost may prove a dispositive
factor in other contexts, we do not regard it as controlling
here. The Fnited States, which will bear the main burden
of added coverage through federal matching grants, urges that
the District Court's remedy be affirmed. The AFDG-UF program,
furthermore, is optional with the States, id., at 431, and
any State is free to drop out of it if dissatisfied with the added
expense. This Court, in any event, is ill-equipped both to
estimate the relative costs of various types of coverage, and
to gauge the effect that different levels of expenditures would
have upon the alleviation of human suffering. Under these
circumstances, any fine-tuning of AFDC coverage along "principal
wage-earner" lines is properly left to the democratic
branches of the Government. In sum, we believe the District
Court, in an effort to render the AFDC-UF program gender
neutral, adopted the simplest and most equitable extension
possible.
The judgment of the District Court accordingly is affirmed.
It is so ordered.
MR. JrsTICE PowELL, with whom THE CHIEF JusTICE,
MR. JusTICE STEWART, and MR. JusTICE REHNQUIST join,
concurring in part and dissenting in part.
I agree with the Court that § 407 violates the equal protection
component of the Fifth Amendment. In my view, how94
OCTOBER TERM, 1978
Opinion of PoWELL, J. 443 U.S.
ever, the court below erred when it ordered the extension of
benefits to all families in which a mother has become unemployed.
This exttinsion reinstates a system of distributing
benefits that Congress rejected when it a.mended § 407 in 1968.
Rather than frustrate the clear intent of Congress, the court
simply should have enjoined any further payment of benefits
under the provision found to be unconstitutional.
As Mr. Justice Harlan observed:
"Where a statute is defective because of underinclusion
there exist two remedial alternatives: a court may either
declare it a nullity and order that its benefits not extend
to t,he class that the legislature intended t-0 benefit, or it
may extend the coverage of the statute to include those
who are aggrieved by exclusion." Welsh v. United States,
398 U. S. 333, 361 (1970) (concurring in result).
In choosing between these alternatives, a court should attempt
to accommodate as fully as possible the policies and judgments
expressed in the statutory scheme as a whole. See id., at
365-366, and n. 18. It should not use its remedial powers to
circumvent the intent of the legislature.
The Court correctly observes that "the gender qualification
[ of § 407] was part of the general objective of the 1968
amendments to tighten standards for eligibility and reduce
program costs.'' Ante. at 87. It is clear that Congress intended
to proscribe the payment of benefits to families where
only one parent was unemployed and where the principal
wage earner continued to work.
"From all that appears, Congress, with an image of the
'traditional family' in mind, simply assumed that the
father would be the family breadwinner, and that the
mother's employment role, if any, would be secondary."
Ante, at 88.
Yet the result of the Court's decision affirming the District
CALIF ANO v. WESTCO'IT 95
76 Opinion of PowELL, J.
Court's relief is to compel exactly the extension of benefits
Congress wished to prevent.1
Rather than thus r ewriting § 407, we should leave this task
to Congress. Now that we have held that this statute constitutes
impermissible gender-based discrimination, it is the
duty and function of the Legislative Branch to review its
AFDC-UF program in light of our decision and make such
changes therein as it deems appropriate. Leaving the resolution
to Congress is especially desirable in cases such as this
one, where the allocation and distribution of welfare funds
are peculiarly within the province of the Legislative Branch.
See Califano v. Jobst , 434 U.S. 47 (1977); Maher v. Roe, 432
U. S. 464, 479 (1977); Dandridge v. Williams, 397 U. S. 471
(1970).
We cannot predict what Congress will think to be in the best
interest of its total welfare program. The extension of AFDC
benefits to families suffering only from unemployment ,vas a
relatively recent development in the history of the program,
a development that Congress made permanent only on the
understanding that payments could be limited to cases where
the principal wage earner was out of work. We cannot assume
that Congress in 1968 would have approved this exten-
1 The relief that perhaps would best approximate what Congress appears
to have intended would limit payment of benefits to those families in which
t he principal wage earner, regardless of gender, has become unemployed.
But this approach presents several difficulties, as the Court deroonstrat~s.
Ante, at 91-93. Under these circumstances, the modification of the order
sought by appellant in No. 78--689 properly was rejected.
The Court suggests that payments to families where a breadwinner remains
employed are not inconsistent with the Act, because in cases where
a parent becomes incapacitated, benefits are paid regardless of the other
parent's employment status or history. 42 U. S. C. § 606 (a); see ante,
at 92 n. 9. This overlooks the special circumstances involved when a
parent suffers from an incapacity. In such cases, the family usually must
bear not only the costs of income lost through the one parent's unemployment,
but also medical and other expenses resulting from the disability
that often are quite substantial.
96 OCTOBER TERM, 1978
Opinion of PowELL, J. 443 U.S.
sion if it had known that ultimately payments would be made
whenever either parent became unemployed. Nor can we
assume that Congress now would adopt such a system in light
of the Court's ruling that § 407 is invalid.
The Court emphasizes the hardships that may be caused by
enjoining the program until Congress can act. There is the
possibility, not mentioned by the Court, that other hardships
might be occasioned in the allocating of limited funds as a
result of court-ordered extension of these particular benefits.
In any event, Congress has the option to mitigate hardships
by providing promptly for retroactive payments. An injunction
prohibiting further payments at least will conserve the
funds appropriated until Congress determines which group, if
any, it does want to assist. The relief ordered by the Court
today, in contrast, ensures the irretrievable payment of funds
to a class of recipients Congress did not wish to benefit.2
Because it is clear that Congress intended to prevent the
result mandated today, and that the re-examination of § 407
required under our decision properly should be made by
Congress, I dissent.
2 The fact that none of the parties here has sought this step, a point
which the Court emphasizes, is irrelevant. This issue should turn on
the intent of Congress, not the interests of the parties. A court no less
is "infringing legislative prerogatives," ante, at 92, when it acts at the
behest of the particular litigants before it, than when it chooses a remedy
on its own initiative.
SMITH v. DAILY MAIL PUBLISHING CO. 97
Syllabus
SMITH, JC'DGE, ET AL. v. DAILY MAIL PUBLISHING
CO. ET AL.
CERTIORARI TO THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
No. 78-482. Argued ·March 20, 1979-Decided June 26, 1979
R<'spondrnt nrwspaperR published articlrs containing the name of a juvenile
who had been arrested for alleg;edly killing another youth. Respondents
Iearnrd of the evrnt and thr name of thr alleged assailant by
monitoring the polirr band radio frequenry and by asking various eyewitnesses.
Rt>spondents were indicted for violating a West Virginia
statute whie-h makes it a crime for a newspaper to publish, without the
written approval of thl' juvenile court, the mime of any youth chargrd
as a juvenile offender. The \\"<'St Virginia Suprrme Court of Appeals
11:ranted a writ of prohibition against petitioners, the prosecuting attorney
and thr Circuit Judges of Kanawha County, W. Va., holding
that the statute on which the indictment was based violat-ed N1e First
and Fourtcrnth Amrndments.
Hrld: The State cannot, consistent with the First and Fourteenth Amendments,
punish the truthful publication of an allegrcl juvenile delinquent's
name lawfully obtamed by a newspaper. The asserted state interest in
protecting the anonymity of the juvenile offender to further his rehabilitation
cannot justify thl' statute's imposition of criminal sanctions for
publication of a juvenile's name lawfully obtained. Pp. 101-106.
(a) Whethrr the statute is Yiewed as a prior restraint by authorizing
the juwnile judge to permit publication or as a penal sanction for
publishing lawfully obtained, truthful information is not dispositive
because even the latter action rrquires the highest form of state interest
to sustain its validity. When a state attempts to punish publication
aftl'r the event it must demonstrate that its punitive action was necessary
to further the state interests asserted. Landmark Communications,
Inc. v. Virginia, 435 U.S. 829. Pp. 101-104.
(b) Respondents' First Amendment rights prevail over the State's
mtercst in proteetrng juveniles. Cf. Davis v. Alaska, 415 U. S. 308.
Even assumini that th<' statute served a state interest of the highest
order, thl' statute does not a!'complish its stated purpose since it does
not restrict the electronic media or any form of publication, except
"newspapers." Pp. 104-105.
- W. Va.-, 248 S. E. 2d 269, affirmed.
98 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
BuRGER, C. J., delivered the opinion of the Court, in which BRENNAN,
STEWART, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined.
REHNQUIST, J., filed an opinion concurring in the judgment, post, p. 106.
POWELL, J., took no part in the consideration or decision of the case.
Cletus B. Hanley, Special Assistant Attorney General of
West Viriginia, argued the cause for petitioners. With him
on the brief were Chauncey H. Browning, Attorney General,
and Betty L. Caplan, Special Assistant Attorney General.
Floyd Abrams argued the cause for respondents. With him
on the brief were Dean Ringel, F. Paul Chambers, Michael A.
Albert, and Rudolph L. Di Trapano .*
MR. CHIEF JuSTICE BuRGER delivered the opinion of the
Court.
We granted certiorari to consider whether a West Virginia
statute violates the First and Fourteenth Amendments of the
United States Constitution by making it a crime for a newspaper
to publish, without the written approval of the juvenile
court, the name of any youth charged as a juvenile offender.
(1)
The challenged West Virginia statute provides:
and:
"[N] or shall the name of any child, in connection with
any proceedings under this chapter, be published in any
newspaper without a written order of the court . . .. "
W. Va. Code § 49-7-3 (1976);
"A person who violates ... a provision of this chapter for
which punishment has not been specifically provided,
*Paul Raymond Stone filed a brief for the Juvenile Defender Attorney
Program et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirrnance were filed by Bruce J. Ennis
for the American Civil Liberties Union; by Arthur B. Hanson and
Frank M. Northam for the American Newspaper Publishers Association; by
97
SMITH v. DAILY MAIL PUBLISHING CO. 99
Opinion of the Court
shall be guilty of a misdemeanor,. and upon conviction
shall be fined not less than ten nor more than one hundred
dollars, or confined in jail not less than five days nor
more than six months, or both such fine and imprisonment."
§ 49-7-20.
On February 9, 1978, a 15-year-old student was shot and
killed at Hayes Junior High School in St. Albans, W. Va., a
small community located about 13 miles outside of Charleston,
W. Va. The alleged assailant, a 14-year-old classmate, was
identified by seven different eyewitnesses and was arrested
by police soon after the incident.
The Charleston Daily Mail and the Charleston Gazette,
respondents here, learned of the shooting by monitoring routinely
the police band radio frequen~y; they immediately
dispatched reporters and photographers to the junior high
school. The reporters for both papers obtained the name
of the alleged assailant simply by asking various witnesses, the
police, and an assistant prosecuting attorney who were at the
school.
The staffs of both newspapers prepared articles for publication
about the incident. The Daily Mail's first article appeared
in its February 9 afternoon edition. The article did
not mention the alleged attacker's name. The editorial decision
to omit the name was made because of the statutory
prohibition against publication without prior court approval.
The Gazette made a contrary editorial decision and
published the juvenile's name and picture in an article about
the shooting that appeared in the February 10 morning edition
of the paper. In addition, the name of the alleged juvenile
attacker was broadcast over at least three different radio stations
on February 9 and 10. Since the information had be-
Richard M. Schmidt, Jr., and Ian D. Volner for the American Society of
Newspaper Editors et al. ; and by Don H. Reuben, Lawrence Gunnels,
and James A. Klenk for the Chicago Tribune Co.
100 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
come public knowledge, the Daily Mail decided to include
the juvenile's name in an article in its afternoon paper on
February 10.
On March 1, an indictment against the respondents was
returned by a grand jury. The indictment alleged that each
knowingly published the name of a youth involved in a juvenile
proceeding in violation of W. Va. Code § 49-7-3 (1976).
Respondents then filed an original-jurisdiction petition with
the West Virginia Supreme Court of Appeals, seeking a writ
of prohibition against the prosecuting attorney and the Circuit
Court Judges of Kanawha County, petitioners here. Respondents
alleged that the indictment was based on a statute that
violated the First and Fourteenth Amendments of the United
States Constitution and several provisions of the State's Constitution
and requested an order prohibiting the county officials
from taking any action on the indictment.
The West Virginia Supreme Court of Appeals issued the
writ of prohibition. - W. Va.-, 248 S. E. 2d 269 (1978).
Relying on holdings of this Court, it held that the statute
abridged the freedom of the press. The court reasoned
that the statute operated as a prior restraint on speech and
that the State's interest in protecting the identity of the juvenile
offender did not overcome the heavy presumption against
the constitutionality of such prior restraints.
We granted certiorari. 439 U. S. 963 (1978).
(2)
Respondents urge this Court to hold that because § 49-7-3
requires court approval prior to publication of the juvenile's
name it operates as a "prior restraint" on speech.1 See Ne-
1 Respondents do not argue that the statute is a prior restraint because
it imposes a criminal sanction for certain types of publication. At page
11 of their brief they state: "The statute in question is, to be sure, not a
prior restraint because it subjects newspapers to criminal punishments
for what they print" after the evient.
So far as the Daily Mail was concerned, the statute operated as a deterSMITH
v. DAILY MAIL PUBLISHING CO. 101
97 Opinion of the Court
braska Press Assn. v. Stuart, 427 U. S. 539 ( 1976) ; New Yark
Times Co. v. United States, 403 U. S. 713 (1971); Organization
for a Better Austin v. Keefe, 402 U.S. 415 (1971); Near
v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). Respondents
concede that this statute is not in the classic mold of prior
restraint, there being no prior injunction against publication.
Nonetheless, they contend that the prior-approval requirement
acts in "operation and effect" like a licensing scheme and
thus is another form of prior restraint. See Near v. Minnesota
ex rel. Olson, supra, at 708. As such, respondents argue,
the statute bears "a 'heavy presumption' against its constitutional
validity." Orga.nization for a Better Austin v. Keefe,
supra, at 419. They claim that the State's interest in the
anonymity of a juvenile offender is not sufficient to overcome
that presumption.
Petitioners do not dispute that the statute amounts to a prior
restraint on speech. Rather, they take the view that even if
it is a prior restraint the statute is constitutional because of the
significance of the State's interest in protecting the identity of
juveniles.
(3)
The resolution of this case does not turn on whether the statutory
grant of authority to the juvenile judge to permit publication
of the juvenile's name is, in and of itself, a prior restraint.
First Amendment protection reaches beyond prior
restraints, Landmark Communications, Inc. v. Virginia, 435
U. S. 829 (1978); Cox Broadcasting Corp. v. Cohn, 420 U. S.
469 ( 1975), and respondents acknowledge that the statutory
provision for court approval of disclosure actually may have a
less oppressive effect on freedom of the press than a total ban
on the publication of the child's name.
Whether we view the statute as a prior restraint or as a
penal sanction for publishing lawfully obtained, truthful inrent
for 24 hours and became the basis for a prosecution after the delayed
publication.
102 OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
formation is not dispositive because even the latter action requires
the highest form of state interest to sustain its validity.
Prior restraints have been accorded the most exacting scrutiny
in previous cases. See Nebraska Press Assn. v. Stuart,
supra, at 561; Organization for a Better Austin v. Keefe,
supra, at 419; Near v. Minnesota ex rel. Olson, supra, at 716.
See also Southeastern Promotions, Ltd. v. Conrad, 420 U. S.
546 ( 1975). However, even when a state attempts to punish
publication after the event it must nevertheless demonstrate
that its punitive action was necessary to further the state
interests asserted. Landmark Communications, Inc. v. Virginia,
supra, at 843. Since we conclude that this statute cannot
satisfy the constitutional standards defined in Landmark
Communications, Inc., we need not decide whether, as argued
by respondents, it operated as a prior restraint.
Our recent decisions demonstrate that state action to punish
the publication of truthful information seldom can satisfy
constitutional standards. In Landmark Communications we
declared unconstitutional a Virginia statute making it a crime
to publish information regarding confidential proceedings before
a state judicial review commission that heard complaints
about alleged disabilities and misconduct of state-court judges.
In declaring that statute unconstitutional, we concluded:
"[T]he publication Virginia seeks to punish under its
statute lies near the core of the First Amendment, and
the Commonwealth's interests advanced by the imposition
of criminal sanctions are insufficient to justify the
actual and potential encroachments on freedom of speech
and of the press which follow therefrom." 435 U. S., at
838.
In Cox Broadcasting Corp. v. Cohn, supra, we held that
damages could not be recovered against a newspaper for
publishing the name of a rape victim. The suit had been
based on a state statute that made it a crime to publish
the name of the victim; the purpose of the statute was
SMITH v. DAILY MAIL PUBLISHING CO. 103
97 Opinion of the Court
to protect the privacy right of the individual and the family.
The name of the victim had become known to the public
through official court records dealing with the trial of the
rapist. In declaring the statute unconstitutional, the Court,
speaking through MR. JUSTICE WHITE, reasoned:
"By placing the information in the public domain on
official court records, the State must be presumed to have
concluded that the public interest was thereby being
served. . . . States may not impose sanctions on the
publication of truthful information contained in official
court records open to public inspection." 420 U. S., at
495.
One case that involved a classic prior restraint is particularly
relevant to our inquiry. In Oklahoma Publishing Co.
v. Distnct Court, 430 U. S. 308 (1977), we struck down a
state-court injunction prohibiting the news media from publishing
the name or photograph of an 11-year-old boy who was
being tried before a juvenile court. The juvenile court judge
had permitted reporters and other members of the public to
attend a hearing in the case, notwithstanding a state statute
closing such trials to the public. The court then attempted
to halt publication of the information obtained from that
hearing. We held that once the truthful information was
"publicly revealed" or "in the public domain" the court could
not constitutionally restrain its dissemination.
None of these opinions directly controls this case; however,
all suggest strongly that if a newspaper lawfully obtains
truthful information about a matter of public significance
then state officials may not constitutionally punish publication
of the information, absent a need to further a state
interest of the highest order. These cases involved situations
where the government itself provided or made possible press
access to the information. That factor is not controlling.
Here respondents relied upon routine newspaper reporting
techniques to ascertain the identity of the alleged assailant.
104 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
A free press cannot be made to rely solely upon the sufferance
of government to supply it with information. See Houchins
v. KQED, Inc., 438 "C". S. 1, 11 (1978) (plurality opinion);
Branzburg v. Hayes, 408 U. S. 665, 681 (1972). If the information
is lawfully obtained, as it was here, the state may
not punish its publication except when necessary to further
an interest more substantial than is present here.
(4)
The sole interest advanced by the State to justify its criminal
statute is to protect the anonymity of the juvenile offender.
It is asserted that confidentiality will further his rehabilitation
because publication of the name may encourage further
antisocial conduct and also may cause the juvenile to lose
future employment or suffer other consequences for this single
offense. In Davi,s v. Alaska, 415 U. S. 308 (1974), similar
arguments were advanced by the State to justify not permitting
a criminal defendant to impeach a prosecution witness
on the basis of his juvenile record. We said there that
" [ w] e do not and need not challenge the State's interest as a
matter of its own policy in the administration of criminal justice
to seek to preserve the anonymity of a juvenile offender."
Id., at 319. However, we concluded that the State's policy
must be subordinated to the defendant's Sixth Amendment
right of confrontation. Ibid. The important rights created
by the First Amendment must be considered along with the
rights of defendants guaranteed by the Sixth Amendment.
See Nebraska Press Assn. v. Stuart, 427 U.S., at 561. Therefore,
the reasoning of Davis that the constitutional right must
prevail over the state's interest in protecting juveniles applies
with equal force here.
The magnitude of the State's interest in this statute is not
sufficient to justify application of a criminal penalty to respondents.
Moreover, the statute's approach does not satisfy
constitutional requirements. The statute does not restrict
SMITH v. DAILY MAIL PUBLISHING CO. 105
97 Opinion of the Court
the electronic media or any form of publication, except "newspapers,"
from printing the names of youths charged in a
juvenile proceeding. In this very case, three radio stations
announced the alleged assailant's name before the Daily Mail
decided to publish it. Thus, even assuming the statute served
a state interest of the highest order, it does not accomplish its
stated purpose.
In addition, there is no evidence to demonstrate that the
imposition of criminal penalties is necessary to protect the
confidentiality of juvenile proceedings. As the Brief for
Respondents points out at 29 n. **, all 50 states have statutes
that provide in some way for confidentiality, but only 5, including
West Virginia,2 impose criminal penalties on nonparties
for publication of the identity of the juvenile. Although
every state has asserted a similar interest, all but a handful
have found other ways of accomplishing the objective. See
Landmark Communications, Inc. v. Virginia, 435 U. S., at
843. 3
(5)
Our holding in this case is narrow. There is no issue
before us of unlawful press access to confidential judicial proceedings,
see Cox Broadcasting Corp. v. Cohn, 420 U. S., at
496 n. 26; there is no issue here of privacy or prejudicial
pretrial publicity. At issue is simply the power of a state
2 Colo. Rev. Stat. § 19-1-107 (6) (1973); Ga. Code § 24A-3503 (g) (1)
(1978); N. H. Rev. Stat. Ann. § 169:27-28 (1977); S. C. Code § 14-21-30
(1976).
3 The approach advoca.ted by the National Council of Juvenile Court
Judges is based on cooperation between juvenile court personnel and newspaper
editors. It is suggested that if thf' courts make clear their purpose
and methods then the press will exercise discretion and generally decline
to publish the juvt'nile's namP without some prior consultation ,,ith the
juvenile court judge. See Conway, Publicizing the Juvenile Court: A
Public Responsibility, 16 Juv. Ct. ,Judges .J. 21, 21-22 (1965); Riederer,
Secrecy or Privacy? Communication Problems in the Juvenile Court Field,
17 J. Mo. Bar 66, 69-70 (1961).
106 OCTOBER TERM, 1978
REHNQUIST, J., concurring in judgment 443 U. 8.
to punish the truthful publication of an alleged juvenile delinquent's
name lawfully obtained by a newspa,per... The asserted
state interest cannot justify the statute's imposition of
criminal sanctions on this type of publication. Accordingly,
the judgment of the West Virginia Supreme Court of Appeals is
Affirmed.
MR. JusTICE PowELL took no part in the consideration or
decision of this case.
MR. JUSTICE REHNQUIST, concurring in the judgment.
Historically, we have viewed freedom of speech and of the
press as indispensable to a free society and its government.
But recognition of this proposition has not meant that the
public interest in free speech and press always has prevailed
over competing interests of the public. "Freedom of speech
thus does not comprehend the right to speak on any subject
at any time," American Communi.cations Assn. v. Douds, 339
U. S. 382, 304 (1950), and "the press is not free to publish
with impunity everything and anything it desires to publish."
Branzburg v. Hayes, 408 U.S. 665,683 (1972); see z,:ear v.
Minnesota ex rel. Olson, 283 U. S. 697, 708, 716 (1931).
While we have shown a special solicitude for freedom of
speech and of the press, we have eschewed absolutes in favor
of a more delicate calculus that carefully weighs the conflicting
interests to determine which demands the greater protection
under the particular circumstances presented. E. g.,
Landmark Communications, Inc. v. Virginia, 435 V. S. 829,
838, 843 (1978); Nebraska Press Assn. v. Stuart, 427 U. S.
539, 562 (1976); American Communications Assn. v. Douds,
supra, at 400.
4 In light of our disposition of t.he First and Fourteenth Amendment
issue, we need not reach respondents' claim that the statute Yiolates equal
protection by being applicable only to newspapers but not other forms of
journalistic expression.
SMITH v. DAILY MAIL PUBLISHING CO. 107
97 REHNQUIST, J., concurring in judgment
The Court does not depart from these principles toda.y. See
ante, at 103-104. Instead, it concludes that the asserted state
interest is not sufficient to justify punishment of publication
of truthful, lawfully obtained information about a matter of
public significance. Ante, at 104. So valued is the liberty of
speech and of the press that there is a tendency in cases such
as this to accept virtually any contention supported by a claim
of interference with speech or the press. See Jones v. Opelika,
316 U. S. 584, 595 (1942). I would resist that temptation.
In my view , a State's interest in preserving the anonymity of
its juvenile offenders- an interest that I consider to be, in the
words of the Court, of the "highest order"-far outweighs any
minimal interference with freedom of the press that a ban on
publication of the youths' names enta.ils.
It is a hallmark of our juvenile justice system in the United
States that virtually from its inception at the end of the last
century its proceedings have been conducted outside of the
public's full gaze and the youths brought before our juvenile
courts have been shielded from publicity. See H. Lou, Juvenile
Courts in the 'United States 131-133 ( 1927); Geis, Publicity
and Juvenile Court Proceedings, 30 Rocky Mt. L. Rev.
101, 102, 116 ( 1958). This insistence on confidentiality is
born of a tender concern for the welfare of the child, to hide
his youthful errors and " 'bury them in the graveyard of the
forgotten past.'" In re Gault, 387 U. S. 1, 24--25 (1967).
The prohibition of publication of a juvenile's name is designed
to protect the young person from the stigma of his misconduct
and is rooted in the principle that a court concerned with
juvenile affairs serves as a rehabilitative and protective agency
of the State. National Advisory Committee on Criminal Justice
Standards and Goals, Juvenile Justice and Delinquency
Prevention, Standard 5.13, pp. 224--225 (1976); see Davis v.
Alaska, 415 U. S. 308, 319 (1974); Kent v. United States, 383
U.S. 541, 554- 555 (1966). Publication of the names of juvenile
offenders may seriously impair the rehabilitative goals of
108 OCTOBER TERM, 1978
REHNQUIST, J., concurring in judgment 443 U.S.
the juvenile justice system and handicap the youths' prospects
for adjustment in society and acceptance by the public. E. Eldefonso,
Law Enforcement and the Youthful Offender 166 (3d
ed. 1978). This exposure brings undue embarrassment to the
families of youthful offenders and may cause the juvenile to
lose employment opportunities or provide the hardcore delinquent
the kind of attention he seeks, thereby encouraging him
to commit further antisocial acts. Davis v. Ala,ska, supra, at
319. Such publicity also renders nugatory States' expungement
laws, for a potential employer or any other person can
retrieve the information the States seek to "bury" simply by
visiting the morgue of the local newspaper. The resultant
widespread dissemination of a juvenile offender's name, therefore,
may defeat the beneficent and rehabilitative purposes
of a State's juvenile court system.1
By contrast, a prohibition aga.inst publication of the names
of youthful offenders represents only a minimal interference
with freedom of the press. West Virginia's statute, like similar
laws in other States, prohibits publication only of the name
of the young person. See W. Va. Code§ 49-7-3 (1976). The
press is free to describe the details of the offense and inform the
community of the proceedings against the juvenile. It is
difficult to understand how publication of the youth's name
is in any way necessary to performance of the press' "watch-
1 That publicity may have a harmful impact on the rehabilitation of a
juvenile offender is not mere hypothesis. Recently, two clinical psychologists
conducted an investigation into the effects of publicity on a juvenile.
They concluded that publicity "placed additional stress on [the juvenile]
during a difficult period of adjustment in the community, and it interfered
with his adjustment at various points when he was otherwise proceeding
adequately." Howard, Grisso, & Neems, Publicity and Juvenile Court
Proceedings, 11 Clearinghouse Rev. 203, 210 (1977). Publication of the
youth's name and picture also led to confrontations between the juvenile
and his peers while he was in detention. Ibid. While this study obviously
is not controlling, it does indicate that the concerns that prompted enactment
of state laws prohibiting publication of the names of juvenile
offenders are not without empirical support.
SMITH v. DAILY MAIL PUBLISHING CO. 109
97 REHNQUIST, J., concurring in judgment
dog" role. In those rare instances where the press believes
it is necessary to publish the juvenile's name, the West Virginia
law, like the statutes of other States, permits the juvenile
court judge to allow publication. The juvenile court
judge, unlike the press, is capable of determining whether
publishing the name of the particular young person will have
a deleterious effect on his chances for rehabilitation and
adjustment to society's norms.2
Without providing for punishment of such unauthorized
publications it will be virtually impossible for a State to
ensure the anonymity of its juvenile offenders. Even if the
juvenile court's proceedings and records are closed to the
public, the press still will be able to obtain the child's name
in the same manner as it was acquired in this case. Ante, at
99; Tr. of Oral Arg. 34. Thus, the Court's reference to effective
alternatives for accomplishing the State's goals is a mere
chimera. The fact that other States do not punish publication
of the names of juvenile offenders, while relevant,
2 The Court relies on Davis v. Alaska, 415 U.S. 308 (1974). Ante, at
104. But Davis, which presented a clash between the interests of the State
in affording anonymity to juvenile offenders and the defendant's Sixth
Amendment right of confrontatjon, does not control the disposition of this
case. In Davis, where the defendant's liberty was at stake, the Court
stated that "[s]erious damage to the strength of the State's case would
have been a real possibility had petitioner been allowed to pursue this line
of inquiry [related to the juvenile offender's record]." 415 U. S., at 319.
The State also could have protected the youth from exposure by not using
him to make out its case. Id., at 320. By contrast, in this case the State
took every step that was in its power to protect the juvenile's name, and
the minimal interference with the freedom of the press caused by the ban
on publication of the youth's name can hardly be compared with the possible
deprivation of liberty involved in Davis. Because in each case
we must carefully balance the interest of the State in pursuing its policy
against the magnitude of the encroachment on the liberty of speech and
of the press that the policy represents, it will not do simply to say, as the
Court does, that the "important rights created by the First Amendment
must be considered along with the rights of defendants guaranteed by the
Sixth Amendment." Ante, at 104.
110 OCTOBER TERM, 1978
REHNQUIST, J., concurring in judgment 443 u. s.
certainly is not determinative of the requirements of the
Constitution.
Although I disagree with the Court that a state statute
punishing publication of the identity of a juvenile offender
can never serve an interest of the "highest order" and thus
pass muster under the First Amendment, I agree with the
Court. that West Virginia's statute "does not accomplish its
stated purpose." Ante, at 105. The West Virginia statute prohibits
only newspapers from printing the names of youths
charged in juvenile proceedings. Electronic media and other
forms of publication can announce the young person's name
with impunity. In fact, in this case three radio stations
broadcast the alleged assailant's name before it was published
by the Charleston Daily Mail. Ante, at 99. This statute thus
largely fails to achieve its purpose.3 It is difficult to take very
seriously West Virginia's asserted need to preserve the anonymity
of its youthful offenders when it permits other, equally,
if not more, effective means of mass communication to distribute
this information without fear of punishment. See
Branzburg v. Hayes, 408 U. S., at 700; Bates v. Little Rock,
361 U. S. 516, 525 (1960). I , therefore, join in the Court's
judgment striking down the West Virginia law. But for the
reasons previously stated, I think that a generally effective
ban on publication that applied to all forms of mass communication,
electronic and print media alike, would be
constitutional.
3 I believe that an obvious failure of a state statute to achieve its purpose
is rntitled to considerable weight in the balancing process that is
employed in deciding issues arising under the First and Fourteenth Arnenriment
protections accorded freedom of expre..."Sion. But for the reasons
stated in my dissent in Trimble v. Gordon, 430 U. S. 762, 777 (1977), I
think a similar inquiry into whether a statute "accomplishes its purpose"
is illusory when the statute is challenged on the basis of the Equal
Protection Clause of the Fourteenth Amendment.
HUTCHINSON v. PROXMIRE 111
Syllabus
HUTCHINSON v. PROXMIRE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
No. 78--680. Argued April 17, 1979-Decided June 26, 1979
Respondent United States Senator publicizes examples of wasteful governmental
spending by awarding his "Golden Fleece of the Month Award."
One such award was given to federal agencies that had funded petitioner
scientist's study of emotional behavior in which he sought an objective
measure of aggression, concentrating upon the behavior patterns of certain
animals. The award was announced in a speech prepared with the
help of respondent legislative assistant, the teJi.1; of which was incorporated
in a widely distributed press release. Subsequently, the award
was also referred to in newsletters sent out by the Senator, in a television
interview program on which he appeared, and in telephone calls made
by the legislative assistant to the sponsoring federal agencies. Petitioner
sued respondents in Federal District Court for defamation, alleging, inter
alia, that in making the award and publicizing it nationwide, respondents
had damaged him in his professional and academic standing. The District
Court granted summary judgment for respondents, ,holding that
the Speech or Debate Clause afforded absolute immunity for investigating
the funding of petitioner's research, for the speech in the Senate, and for
the press release, since it fell within the "informing function" of Congress.
The court further held that petitioner was a "public figure" for
purposes of determining respondents' liability; that respondents were
protected by the First Amendment thereby requiring petitioner to prove
"actual malice"; and that based on the depositions, affidavits, and
pleadings there was no genuine issue of material fact on the issue of
actual malice, neither respondents' failure to investigate nor unfair editing
and summarizing being sufficient to establish "actual malice."
Finally, the court held that even if petitioner were found to be a "private
person," relevant state law required a summary judgment for respondentll.
The Court of Appeals affirmed, holding that the Speech or
Debate Clause protected the statements made in the pres.s release and
newsletters and that, although the followup telephone calls and the
statements made on television were not protected by that Clause, they
were protected by the First Amendment, since petitioner was a "public
figure," and that on the record there was no showing of "actu::11 mali~e."
112 OCTOBER TERM, 1978
Syllabus 443 U.S.
Held:
1. While this Court's practice is to avoid reaching constitutional questions
if a dispositive nonconstitutional ground is available, special considerations
in this case mandate that the constitutional questions first be
resolved. If respondents have immunity under the Speech or Debate
Clause, no other questions need be considered. And where it appears
that the Court of Appeals would not affirm the District Court's statelaw
holding so that the appeal could not be decided without reaching the
First Amendment issue, that issue will also be reached here. Pp. 122-123.
2. The Speech or Debate Clause does not protect transmittal of information
by individual Members of Congress by press releases and newsletters.
Pp. 123-133.
(a) There is nothing in the history of the Clause or its language
suggesting any intent to create an absolute privilege from liability or
suit for defamatory statements made outside the legislative Chambers;
precedents support the conclusion that a Member may be held liable
for republishing defamatory statements originally made in the Chamber.
Pp. 127-130.
(b) Neither the newsletters nor the press release here was "essential
to the deliberation of the Senate" and neither was part of the deliberative
process. Gravel v. United States, 408 U.S. 606; Doe v. McMillan,
412 U. S. 306. P. 130.
(c) The newsletters and press release were not privileged as part
of the "informing function" of Members of Congress to tell the public
about their activities. Individual Members' transmittal of information
about t-heir activities by press releases and newsletters is not part of the
legislative function or the deliberations that make up the legislative
process; in contrast to voting and preparing committee reports, which
are part of Congress' function to inform itself, newsletters and press
releases are primarily means of informing those outside the legislative
forum and represent the views and will of a single Member. Doe v.
McMiUan, supra, distinguished. Pp. 132-133.
3. Petitioner is not a "public figure" so as to make the "actual malice"
standard of proof of New York Times Co. v. Sullivan, 376 U.S. 254, applicable.
Neither the fact that local newspapers reported the federal
grants to petitioner for his research nor the fact that he ha<l access to
the news media as shown by reports of his response to the announcement
of the Golden Fleece Award, demonstrates t,hat he was a public
figure prior to the controversy engendered by that award. His access,
such as it was, came after the alleged libel and was limited to rP.sponding
to the announcement of the award. Those charged with alleged defamation
cannot, by their own conduct, create their own defense by ma.king
HUTCHINSON v. PROXMIRE 113
111 Opinion of the Court
the claimant a public figure. Nor is the concern about public expenditures
sufficient to make petitioner a public figure, petitioner at no time
having assumed any role of public prominence in the broad question
of such concern. Pp. 133-136.
579 F. 2d 1027, reversed and remanded.
BURGER, C. J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, PowELL, REHNQUIST, and STEVENS, JJ., joined,
and in all but n. 10 of which STEWART, J., joined. STEWART, J., filed a
statement concurring in part and dissenting in part, post, p. 136. BRENNAN,
J., filed a dissenting opinion, post, p. 136.
Michael E. Cavanaugh argued the cause and filed briefs for
petitioner.
Alan Raywid argued the cause and filed a brief for
respondents.*
MR. CHIEF JUSTICE BURGER delivered the opinion of the
Court.
We granted certiorari, 439 U.S. 1066 (1979), to resolve three
issues: (1) Whether a Member of Congress is protected by the
Speech or Debate Clause of the Constitution, Art. I, § 6,
against suits for allegedly defamatory statements made by the
Member in press releases and newsletters; (2) whether petitioner
Hutchinson is either a "public figure" or a "public official,"
thereby making applicable the "actual malice" standard
of New York Times Co. v. Sullivan, 376 U.S. 254 (1964);
and (3) whether respondents were entitled to summary
judgment.
*Bruce J. Montgomery and John D. Lane filed a brief for the American
Psychological Association et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Richard M.
Schmidt, Ji-., for the American Society of Newspaper Editors et al.; and
by Chester H. Smith for Warren G. Magnuson et al.
Stanley M. Brand filed a brief for Thomas P. O'Neill, Jr., Speaker of the
United States House of Representatives, et al. as amici curiae.
114 OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
Ronald Hutchinson, a research behavioral scientist, sued
respondents, William Proxmire, a United States Senator, and
his legislative assistant, Morton Schwartz, for defamation arising
out of Proxmire's giving what he called his 11Golden
Fleece" award. The "award" went to federal agencies that
had sponsored Hutchinson's research. Hutchinson alleged
that in making the award and publicizing it nationwide, respondents
had libeled him, damaging him in his professional
and academic standing, and had interfered with his contractual
relations. The District Court granted summary judgment
for respondents and the Court of Appeals affirmed.
We reverse and remand to the Court of Appeals for further
proceedings consistent with this opinion.
I
Respondent Proxmire is a United States Senator from Wisconsin.
In March 1975, he initiated the "Golden Fleece of
the Month Award" to publicize what he perceived to be the
most egregious examples of wasteful governmental spending.
The second such award, in April 1975, went to the National
Science Foundation, the National Aeronautics and Space Administration,
and the Office of Na val Research, for spending
almost half a million dollars during the preceding seven years
to fund Hutchinson's research.1
At the time of the award, Hutchinson was director of research
at the Kalamazoo State Mental Hospital. Before that
he had held a similar position at the Ft. Custer State Home.
Both the hospital and the home are operated by the Michigan
State Department of Mental Health; he was therefore a state
employee in both positions. During most of the period in
question he was also an adjunct professor at Western Michigan
University. When the research department at Kalama-
1 There is disagreement over the actual total. The speech said the total
was "over $500,000." In preparation for trial, both sides have offered
higher estimates of the total amount.
HuTCHINSON v. PROXMIRE 115
111 Opinion of the Court
zoo State Mental Hospital was closed in June 1975, Hutchinson
became research director of the Foundation for Behavioral
Research, a nonprofit organization. The research funding
wa.s transferred from the hospital to the foundation.
The bulk of Hutchinson's research wa.s devoted to the study
of emotional behavior. In particular, he sought an objective
measure of aggression, concentrating upon the behavior patterns
of certain animals, such as the clenching of jaws when
they were exposed to various aggravating stressful stimuli.2
The National Aeronautics and Space Agency and the Navy
were interested in the potential of this research for resolving
problems associated with confining humans in close quarters
for extended periods of time in space and undersea exploration.
The Golden Fleece Award to the agencies that had sponsored
Hutchinson's research was based upon research done for
Proxmire by Schwartz. While seeking evidence of wasteful
governmental spending, Schwartz read copies of reports that
Hutchinson had prepared under grants from NASA. Those
reports revealed that Hutchinson had received gra.nts from the
Office of Naval Research, the National Science Foundation,
and the Michigan State Department of Mental Health.
Schwartz also learned that other federal agencies had funded
Hutchinson's research. After contacting a number of federal
and state agencies, Schwartz helped to prepare a speech for
Proxmire to present in the Senate on April 18, 1975; the text
was then incorporated into an advance press release, with only
2 Reports of Hutchinson's research were published in scientific journals.
The research is not unlike the studies of primates reported in less technical
periodicals such as the National Geographic. E. g., Fossey, More Years
with Mountain Gorillas, 140 National Geographic 574 (1971); Galdikas-
Brindamour, Orangutans, Indonesia's "People of the Forest," 148 National
Geographic 444 (1975); Goodall, Life and Death at Gombe, 155
National Geographic 592 (1979); Goodall, My Life Among Wild Chimpanzees,
124 National Geographic 272 (1963); Strum, Life With the
"Pumphouse Gang": New Irn:ights into Baboon Behavior, 147 National
Geographic 672 (1975).
116 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
the addition of introductory and concluding sentences. Copies
were sent to a mailing list of 275 members of the news media
throughout the rnited Stat-Rs and abroad.
Schwartz telephoned Hutchinson before releasing the
speech to tell him of the award; Hutchinson protested that
the release contained an inaccurate and incomplete summary
of his research. Schwartz replied that he thought the summary
was fair.
In the speech, Proxmire described the federal grants for
Hutchinson's research, concluding with the following comment:
3
"The funding of this nonsense makes me almost angry
enough to scream and kick or even clench my jaw. It
seems to me it is outrageous.
"Dr. Hutchinson's studies should make the taxpayers
as well as his monkeys grind their teeth. In fact, the
good doctor has made a fortune from his monkeys and
in the process made a monkey out of the American
taxpayer.
"It is time for the Federal Government to get out of
this 'monkey business.' In view of the transparent
worthlessness of Hutchinson's study of jaw-grinding and
biting by angry or hard-drinking monkeys, it is time we
put a stop to the bite Hutchinson and the bureaucrats
who fund him have been taking of the taxpayer." 121
Cong. Rec. 10803 (1975).
3 Proxmire is not certain that he actually delivt>red the ~peech on the
Senate floor. He said that he might have merely in~ertt>d it int-0 the Congres.
sional R{'Cord. App. 22(}...221. In light of that uncertainty, the
question arises whether a nondrlivrred speech printed in the Congressional
Record is covered by the Speech or Debate Clause. This Court has never
passed on that question and neither the District Court nor the C-0u rt of
Appeals seemed to think it was important. Nevertheless, we assume, without
deciding, that a sprech printed in the Congressional Record carries
immunity under the Speech or Debate Clause as though delivered on the
floor.
HUTCHINSON v. PROXMIRE 117
111 Opinion of the Court
In May 1975, Proxmire referred to his Golden Fleece
Awards in a newsletter sent to about 100,000 people whose
names were on a mailing list that included constituents in
Wisconsin as well as persons in other states. The newsletter
repeated the essence of the speech and the press release.
Later in 1975, Proxmire appeared on a television interview
program where he referred to Hutchinson's research, though
he did not mention Hutchinson by name.•
The final reference to the research came in a newsletter in
February 1976. In that letter, Proxmire summarized his
Golden Fleece Awards of 1975. The letter did not mention
Hutchinson's name, but it did report:
"- The NSF, the Space Agency, and the Office of
Na val Research won the 'Golden Fleece' for spending
jointly $500,000 to determine why monkeys clench their
jaws.
"All the studies on why monkeys clench their jaws
were dropped. No more monkey business." App. 168-
171.
After the award was announced, Schwartz, acting on behalf
of Proxmire, contacted a number of the federal agencies that
had sponsored the research. In his deposition he stated that
he did not attempt to dissuade them from continuing to fund
the research but merely discussed the subject. 5 Hutchinson,
by contrast, contends that these calls were intended to persuade
the agencies to terminate his grants and contracts.
4 The parties agree that Proxmire referred to research like Hutchinson's
on at least one television show. They do not agree whether there were
other appearances on either radio or television. Hutchinson has suggested
that there were others and has produced affidavits to support his suggestion.
Proxmire cannot recall any others.
5 Senate Resolution 543, 94th Cong., 2d Sess. (1976), authorized respondents
and an additional member of Proxmire's staff to give deposition
testimony. 122 Cong. Rec. 29876 (1976).
118 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
II
On April 16, 1976, Hutchinson filed this suit in United
States District Court in Wisconsin.6 In Count I he alleges
that as a result of the actions of Proxmire and Schwartz he
has "suffered a loss of respect in his profession, has suffered
injury to his feelings, has been humiliated, held up to public
scorn, suffered extreme mental anguish and physical illness
and pain to his person. Further, he has suffered a loss of income
and ability to earn income in the future." Count II
alleges that the respondents' conduct has interfered with
Hutchinson's contractual relationships with supporters of his
research. He later amended the complaint to add an allegation
that his rights of privacy and peace and tranquility have
been infringed.
Respondents moved for a change of venue and for summary
judgment. In their motion for summary judgment they asserted
that all of their acts and utterances were protected by
the Speech or Debate Clause. In addition, they asserted that
their criticism of the spending of public funds was privileged
under the Free Speech Clause of the First Amendment. They
argued that Hutchinson was both a public figure and a public
official, and therefore would be obliged to prove the existence
of "actual malice." Respondents contended that the facts of
this case would not support a finding of actual malice.
Without ruling on venue, the District Court granted respondents'
motion for summary judgment. 431 F. Supp. 1311
(WD Wis. 1977). In so ruling, the District Court relied on
both grounds urged by respondents. It reasoned that the
Speech or Debate Clause afforded absolute immunity for respondents'
activities in investigating the funding of Hutchinson's
research, for Proxmire's speech in the Senate, and for
the press release covering the speech. The court concluded
that the investigations and the speech were clearly within the
6 On April 13, 1976, Hutchinson had written to Proxmire requesting that
he retract certain erroneous statements made in the 1975 press release.
HUTCHINSON v. PROXMIRE 119
111 Opinion of the Court
ambit of the Clause. The press release was said to be protected
because it fell within the "informing function" of Congress.
To support its conclusion, the District Court relied
upon cases interpreting the franking privilege granted to
Members by statute. See 39 U. S. C. § 3210.
Although the District Court ref erred to the "informing
function" of Congress and to the franking privilege, it did not
base its conclusion concerning the press release on those analogies.
Instead, the District Court held that the "press release,
in a constitutional sense, was no different than would
have been a television or radio broadcast of his speech from
the Senate floor." 7 431 F. Supp., at 1325. That the District
Court did not rely upon the "informing function" is clear from
its implicit holding that the newsletters were not protected.
The District Court then turned to the First Amendment to
explain the grant of summary judgment on the claims arising
from the newsletters and interviews. It concluded that
Hutchinson was a public figure for purposes of determining
respondents' liability:
"Given Dr. Hutchinson's long involvement with publicly-
funded research, his active solicitation of federal
and state grants, the local press coverage of his research,
and the public interest in the expenditure of public funds
on the precise activities in which he voluntarily participated,
the court concludes that he is a public figure for
the purpose of this suit. As he acknowledged in his
deposition, 'Certainly, any expenditure of public funds is
a matter of public interest.'" Id., at 1327.8
7 Of course, in light of Proxmire's uncertainty, see n. 3, supra, there is
no assurance that there even was a speech on the .Senate floor.
8 The District Court also concluded that Hutchinson was a "public official."
431 F. Supp., at 1327-1328. The Court of Appeals did not decide
whether that conclusion was correct. 579 F. 2d 1027, 1035 n. 14 (CA7
1978). We therefore express no opinion on the issue. The Court has not
provided precise boundaries for the category of "public official"; it cannot
be thought to include all public employees, however.
120 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
Having reached that conclusion, the District Court relied
upon the depositions, affidavits, and pleadings before it to
evaluate Hutchinson's claim that respondents had acted with
"actual malice." The District Court found that there was no
genuine issue of materia.l fact on that issue. It held that
neither a failure to investigate nor unfair editing and summarizing
could establish "actual malice." It also held that
there was nothing in the affidavits or depositions of either
Proxmire or Schwartz to indicate that they ever entertained
any doubt about the truth of their statements. Relying upon
cases from other courts, the District Court said that in determining
whether a plaintiff had made an adequate showing
of "actual malice," summary judgment might well be the rule
rather than the exception. Id., at 1330.9
Finally, the District Court concluded:
"But even if for the purpose of this suit it is found that
Dr. Hutchinson is a private person so that First Amendment
protections do not extend to [respondents], relevant
state law dictates the grant of summary judgment."
Ibid.
The District Court held that the controlling state law was
either that of Michigan or that of the District of Columbia.
Without deciding which law would govern under Wisconsin's
choice-of-law principles, the District Court concluded that
Hutchinson would not be able to recover in either jurisdiction.
The Court of Appeals affirmed, holding that the Speech or
Debate Clause protected the statements made in the press re-
9 Considering the nuances of the issues raised here, we are constra.ined
to express some doubt about the so-called "rule." The proof of "actual
malice" calls a defendant's state of mind into question, New York Times
Co. v. Sulliva:n, 376 U. S. 254 (1964), and does not readily lend itself to
summary disposition. See 10 C. Wright & A. Miller, Federal Practice and
Procedure § 2730, pp. 590-592 (1973). Cf. Herbert v. Lando, 441 U. S.
153 (1979). In the present posture of the case, however, the propriety of
dealing with such complex issues by summary judgment is not before us.
HUTCHINSON v. PROXMIRE 121
111 Opinion of the Court
lease and in the newsletters. 579 F. 2d 1027 (CA7 1978). It
interpreted Doe v. McMillan, 412 U. S. 306 (1973), as recognizing
a limited protection for the "informing function" of
Congress and concluded that distribution of both the press
release and the newsletters did not exceed what was required
for legislative purposes. 579 F. 2d, at 1033. The
followup telephone calls and the statements made by Proxmire
on television and radio were not protected by the Speech
or Debate Clause; they were, however, held by the Court of
Appeals to be protected by the First Amendment.1° It
reached that conclusion after first finding that, based on the
affidavits and pleadings of record, Hutchinson was a "public
figure." Id., at 1034-1035. The court then examined the
record to determine whether there had been a showing by
Hutchinson of "actual malice." It agreed with the District
Court "that, upon this record, there is no question that [respondents]
did not have knowledge of the actual or probable
'falsity' of their statements." Id., at 1035. The Court of
Appeals also rejected Hutchinson's argument that the District
Court had erred in granting summary judgment on the
claimed wrongs other than defamation-interference with
10 Respondents did not cross petition; neither did they argue that the
Speech or Debate Clause protected the followup telephone calls made by
Schwartz to governmental agencies or the television and radio interviews
of Proxmire. Instead, respondents relied only upon the protection afforded
by the First Amendment. In light of our conclusion, infra, that Hutchinson
is not a public figure, respondents would nevertheless be entitled to
raise the Speech or Debate Clause as an alternative ground for supporting
the judgment. From our conclusion, infra, that the Speech or Debate
Clause does not protect the republication of libelous remarks, it follows
that libelous remarks in the followup telephone calls to executive agencies
and in the television and radio interviews are not protected. Regardless
of whether and to what extent the Speech or Debate Clause may protect
calls to federal agencies seeking information, it does not protect attempts
to influence the conduct of executive agencies or libelous 11omment.s made
during the conversations. Cf. United States v. Johru;cm, 383 U.S. 169, 172
(1966); United States v. Brewster, 408 U.S. 501, 512-513 (1972).
122 OCTOBER TERM, 1978
Opinion of the Court 443U. S.
contractual relations, intentional infliction of emotional anguish,
and invasion of privacy:
"We view these additional allegations of harm as merely
the results of the statements made by the defendants. If
the alleged defamatory falsehoods themselves are privileged,
it would defeat the privilege to allow recovery for
the specified damages which they cause." Id., at 1036
(footnote omitted).11
The Court of Appeals did not review the District Court's
holding that state law also justified summary judgment for
respondents.
III
The petition for certiorari raises three questions. One involves
the scope of the Speech or Debate Clause; another
involves First Amendment claims; a third concerns the appropriateness
of summary judgment, embracing both a constitutional
issue and a state-law issue. The constitutional
issue arose from the District Court's view that solicitude for
the First Amendment required a more hospitable judicial attitude
toward granting summary judgment in a libel case.
Seen. 9, supra. The state-law issue arose because the District
Court concluded that, as a matter of local law, Hutchinson
could not recover.
Our practice is to avoid reaching constitutional questions
if a dispositive nonconstitutional ground is available. See,
e. g., Siler v. Louisville & Nash ville R. Co., 213 U. S. 175, 193
(1909). Were we to follow that course here we would remand
to the Court of Appeals to review the state-law question which
it did not consider. If the District Court correctly decided
the state-law question, resolution of the First Amendment
issue would be unnecessary. We conclude, however, that special
considerations in this case mandate that we first resolve
the constitutional questions.
11 Petitioner has not sought review of this conclusion; we e;,,.'Press no
opinion ru, to its correctness.
HUTCHINSON v. PROXMIRE 123
111 Opinion of the Court
The purpose of the Speech or Debate Clause is to protect
Members of Congress "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). See also Eastland v. United States Servicemen's
Fund, 421 U. S. 491, 503 (1975). If the respondents have
immunity under the Clause, no other questions need be considered
for they may "not be questioned in any other Place."
Ordinarily, consideration of the constitutional issue would
end with resolution of the Speech or Debate Clause question.
We would then remand for the Court of Appeals to consider
the issue of state law. Here, however, there is an indication
that the Court of Appeals would not affirm the state-law
holding. We surmise this because, in explaining its conclusion
that the press release and the newsletters were protected
by the Speech or Debate Clause, the Court of Appeals stated:
"[TJ he statements in the press release intimating that Dr.
Hutchinson had made a personal fortune and that the research
was 'perhaps duplicative' may be defamatory falsehoods."
579 F. 2d, at 1035 n. 15. In light of that surmise,
what we said in W olston v. Reader's Digest Assn., Inc., post, at
161 n. 2, is also appropriate here: "We assume that the Court
of Appeals is as familiar as we are with the general principle
that dispositive issues of statutory and local law are to be
treated before reaching constitutional issues. . . . We interpret
the footnote to the Court of Appeals opinion in this case,
where jurisdiction is based upon diversity of citizenship, to
indicate its view that ... the appeal could not be decided
without reaching the constitutional question." In light of
the necessity to do so, we therefore reach the First Amendment
issue as well as the Speech or Debate Clause question.
IV
In support of the Court of Appeals holding that newsletters
and press releases are protected by the Speech or Debate
Clause, respondents rely upon both historical precedent and
124 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
present-day congressional practices. They contend that impetus
for the Speech or Debate Clause privilege in our Constitution
came from the history of parliamentary efforts to
protect the right of members to criticize the spending of the
Crown and from the prosecution of a Speaker of the House of
Commons for publication of a report outside of Parliament.
Respondents also contend that in the modern day very little
speech or debate occurs on the floor of either House; from
this they argue that press releases and newsletters are necessary
for Members of Congress to communicate with other
Members. For example, in his deposition Proxmire testified:
"I have found in 19 years in the Senate that very often a
statement on the floor of the Sena.te or something that
appears in the Congressional Record misses the attention
of most members of the Senate, and virtually all members
of the House, because they don't read the Congressional
Record. If they are handed a news release, or something,
that is going to call it to their attention ... . " App. 220.
Respondents also argue that an essential part of the duties of
a Member of Congress is to inform constituents, as well as
other Members, of the issues being considered.
The Speech or Debate Clause has been directly passed on
by this Court relatively few times in 190 years. Eastland v.
United States Servicemen's Fund, supra; Doe v. McMillan,
412 U. S. 306 ( 1973); Gravel v. United States, 408 U. S. 606
(1972); United States v. Brewster,408 U.S. 501 (1972); Dombrowski
v. Eastland, supra; United States v. Johnson, 383
U.S. 169 (1966); Kilbourn v. Thompson, 103 U.S. 168 (1881).
Literal reading of the Clause would, of course, confine its protection
narrowly to a "Speech or Debate in either House."
But the Court has given the Clause a practical rather than a
strictly literal reading which would limit the protection to
utterances made within the four walls of either Chamber.
Thus, we have held that committee hearings are protected, even
if held outside the Chambers; committee reports are also proHUTCHINSON
v. PROXMIRE 125
111 Opinion of the Court
tected. Doe v. McMillan, supra; Gravel v. United States,
supra. Cf. Coffin v. Coffin, 4 Mass. *1, *27-*28 (1808).
The gloss going beyond a strictly literal reading of the
Clause has not. however, departed from the objective of protecting
only legislative activities. In Thomas Jefferson's
view:
"[The privilege] is restrained to things done in the House
in a Parliamentary course . . . . For [the Member] is
not to have privilege contra morem parliamentarium, to
exceed the bounds and limits of his place and duty."
T. Jefferson, A Manual of Parliamentary Practice 20
(1854), reprinted in The Complete Jefferson 704 (S. Padover
ed. 1943).
One of the draftsmen of the Constitution, James Wilson,
expressed a similar thought in lectures delivered between 1790
and 1792 while he was a Justice of this Court. He rejected
Blackstone's statement, 1 W. Blackstone, Commentaries •164,
that Parliament's privileges were preserved by keeping them
indefinite:
"Very different is the case with regard to the legislature
of the United States . . . . The great maxims, upon
which our law of parliament is founded, are defined and
ascertained in our constitutions. The arcana of privilege,
and the arcana of prerogative, are equally unknown
to our system of jurisprudence." 2 J. Wilson, Works
35 (J. Andrews ed. 1896).12
In this respect, Wilson was underscoring the very purpose of
our Constitution-inter alia, to provide written definitions of
the powers, privileges, and immunities granted rather than
rely on evolving constitutional concepts identified from diverse
sources as in English law. Like thoughts were expressed
12 But see T. Jefferson, A Manual of Parliamentary Practice 15-16 (1854),
reprinted in The Complete Jefferson 702 (S. Padover ed. 1943) (quoting
Blackstone with approval).
126 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
by Joseph Story, writing in the first edition of his Commentaries
on the Constitution in 1833:
"But this privilege is strictly confined to things done in
the course of parliamentary proceedings, and does not
cover things done beyond the place and limits of duty."
Id., § 863, at 329.
Cf. Coffin v. Coffin, supra, at *34.
In United States v. Brewster, supra, we acknowledged the
historical roots of the Clause going back to the long struggle
between the English House of Commons and the Tudor and
Stuart monarchs when both criminal and civil processes were
employed by Crown authority to intimidate legislators. Yet
we cautioned that the Clause
"must be interpreted in light of the American experience,
and in the context of the American constitutional scheme
of government rather than the English parliamentary
system. . . . [T]heir Parliament is the supreme authority,
not a coordinate branch. Our speech or debate privilege
was designed to preserve legislative independence,
not supremacy." 408 U. S., at 508.
Nearly a century ago, in Kilbourn v. Thompson, supra, at
204, this Court held that the Clause extended "to things generally
done in a session of the House by one of its members
in relation to the business before it." (Emphasis added.)
More recently we expressed a similar definition of the scope of
the Clause:
"Legislative acts are not all-encompassing. The heart
of the Clause is speech or debate in either House. Insofar
as the Clause is construed to reach other matters, they
must be an integral part of the deliberative and communicative
processes by which Members participate in committee
and House proceedings with respect to the consideration
and passage or rejection of proposed legislation
or with respect to other matters which the O:mstitution
places within the jurisdiction of either House. As the
111
HUTCHINSON v. PROXMIRE 127
Opinion of the Court
Court of Appeals put it, the courts have extended the
privilege to matters beyond pure speech or debate in
either House, but 'only when necessary to prevent indirect
impairment of such deliberations.' " Gravel v. United
States, 408 U. S., at 625 (quoting United States v. Doe,
455 F. 2d 753,760 (CAl 1972)) (emphasis added).
Cf. Doe v. McMillan, 412 U. S., at 313-314, 317; United
States v. Brewster, 408 U. S., at 512, 515--516, 517- 518; Long
V. Ansen, 293 U. s. 76, 82 (1934).
Whatever imprecision there may be in the term "legislative
activities," it is clear that nothing in history or in the explicit
language of the Clause suggests any intention to create an
absolute privilege from liability or suit for defamatory statements
made outside the Chamber. In Brewster, supra, at
507, we observed:
"The immunities of the Speech or Debate Clause were
not written into the Constitution simply for the personal
or private benefit of Members of Congress, but to protect
the integrity of the legislative process by insuring the
independence of individual legislators."
Claims under the Clause going beyond what is needed to protect
legislative independence are to be closely scrutinized.
In Brewster ·we took note of this:
"The authors of our Constitution were well aware of the
history of both the need for the privilege and the abuses
that could flow from too sweeping safeguards. In order
to preserve other values, they wrote the privilege so that
it tolerates and protects behavior on the part of Members
not tolerated and protected when done by other citizens,
but the shield does not extend beyond what is necessary to
preserve the integrity of the legislative process." 408
U.S., at 517 (emphasis added).
Indeed, the precedents abundantly support the conclusion
that a Member may be held liable for republishing defamatory
128 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
statements originally made in either House. We perceive no
basis for departing from that long-established rule.
Mr. Justice Story in his Commentaries, for example, explained
that there was no immunity for republication of a
speech first delivered in Congress:
"Therefore, although a speech delivered in the house of
commons is privileged, and the member cannot be questioned
respecting it elsewhere; yet, if he publishes his
speech, and it contains libellous matter, he is liable to an
action and prosecution therefor, as in common cases of
libel. And the same principles seem applicable to the
privilege of debate and speech in congress. No man
ought to have a right to defame others under colour of a
performance of the duties of his office. And if he does
so in the actual discharge of his duties in congress, that
furnishes no reason, why he should be enabled through
the medium of the press to destroy the reputation, and
invade the repose of other citizens. It is neither within
the scope of his duty, nor in furtherance of public rights,
or public policy. Every citizen has as good a right to be
protected by the laws from malignant scandal, and false
charges, and defamatory imputations, as a member of
congress has to utter them in his seat." 13 2 J. Story, Com-
13 Story acknowledged the arguments to the contrary: "It is proper,
however, to apprise the learned reader, that it has been recently denied in
congress by very distinguished lawyers, that the privilege of speech and
debate in congress does not extend to publication of his speech. And they
ground themselves upon an important distinction arising from the actual
differences between English and American legislation. In the former, the
publication of the debates is not strictly lawful, except by license of the
house. In the latter, it is a common right, exercised and supported by the
direct encouragement of the body. This reasoning deserves a very atten~
tive examination." 2 J. Story, Commentaries on the Constitution§ 863, pp.
329-330 ( 1833) .
At oral argument, counsel for respondents referred to a note in the fifth
edition of the Commentaries saying that the Speech or Debate Clause
protected the circulation to constituents of copies of speeches made in
111
HUTCHINSON v. PROXMIRE 129
Opinion of the Court
mentaries on the Constitution § 863, p. 329 ( 1833) ( emphasis
added).
See also L. Cushing, Elements of the Law and Practice of
Legislative Assemblies in the United States of America ,-r 604,
p. 244 (1st ed. reprint 1971).
Story summarized the state of the common law at the time
the Constitution was drafted, recalling that Parliament had by
then succeeded in its struggle to s«"cure freedom of debate.
But the privilege did not extend to republication of libelous
remarks even though first made in Parliament. Thus. in King
v. Lord Abingdon, l Esp. 225, 170 Eng. Rep. 337 (N. P. 1794),
Lord Chief Justice Kenyon rejt'cted Lord Abingdon's argument
that parliamentary privilege prot~cted him from suit for
republication of a speech first made in the House of Lords:
"[A]s to the words in question, had they been spoken in
the House of Lords, and confined to its wans, [the] Court
would have had no jurisdiction to call his Lordship before
them, to answer for them as an offence; but ... in the
present case. the offence was the publication under his
authority and sanction, and at his expense: ... a member
of Parliament had certainly a right to publish his
speech, but that speech should not be made the vehicle
of slander against any individua.J; if it was, it was a
libel .... " Id., at 228, 170 Eng. Rep .. at 338.
A similar result was reached in King v. Creevey, 1 M. & S. 273,
105 Eng. Rep. 102 (K. B. 1813).
Congress. Tr. of Oral Arg. 43. In attributing the note to Story, counsel
made an understandable mistake. As explainrd in the preface to the fifth
edit.ion, that note was added by the editor, Melville Bigelow. The note
does not appear in Story's first c-dition. Moreover, it is clear from the
text of the note and the sourres cited that Bigelow did not mean that
ther<' was an absolute privilege for defamatory remarks contained in a
spe<.>rh mitilcd to constituents as there would be if the mailing was protected
by the Spee<'h or Debate Clausi>. Instead, he sugge;;ted that there
was a qualified privilege, ::tkin to that for accurate newspaper reports of
legislative proceedings.
130 OCTOBER TERM, 1978
Opimon of the Court 4431'.S.
In Gravel v. United States, 408 U. S., at 622-626, we
recognized that the doctrine denying immunity for republication
had been accepted in the Vnited States:
"[P]rivate publication by Senator Gravel ... was in no
way essential to the deliberations of the Senate; nor does
questioning as to private publication threaten the integrity
or independence of the Senate by impermissibly
exposing its deliberations to executive influence." Id.,
at 625.
We reaffirmed that principle in Doe v. McMillan, 412 U. S.,
at 314-315:
"A Member of Congress may not with impunity publish
a libel from the speaker's stand in his home district, and
clearly the Speech or Debate Clause would not protect
such an act even though the libel was read from an official
committee report. The reason is that republishing a
libel under such circumstances is not an essential part of
the legislative process and is not part of that deliberative
process 'by which Members participate in committee and
House proceedings.' " (Footnote omitted; quoting from
Gravel v. United States, supra, at 625.) 14
We reach a similar conclusion here. A speech by Proxmire
in the Senate would be wholly immune and would be available
to other Members of Congress and the public in the Congressional
Record. But neither the newsletters nor the press
release was "essential to the deliberations of the Senate" and
neither was part of the deliberative process.
Respondents, however, argue that newsletters and press releases
are essential to the functioning of the Senate; without
14 It is worth noting that the Rules of the Senate forbid disparagement
of other Mrmbrrs on the floor. ~enate Rule XIX (Apr. 1979). Set> also
T . .Jefferson, A Manual of Parliamentary Practice 40-41 (1854), reprinted
in The Complete Jefferson 714-715 (S. Padover ed. 1943).
HUTCHINSON v. PROXMIRE 131
111 Opinion of the Court
them, they assert, a Senator cannot have a significant impact
on the other Senators. We may assume that a Member's
published statements exert some influence on other votes in
the Congress and therefore have a relationship to the legislative
and deliberative process. But in Brewster, 408 U. S., at
512, we rejected respondents' expansive reading of the Clause:
"It is well known, of course, that Members of the Congress
engage in many activities other than the purely
legislative activities protected by the Speech or Debate
Clause. These include . . . preparing so-called 'news
letters' to constituents, news releases, and speeches delivered
outside the Congress."
There we went on to note that United States v. Johnson,
383 U. S. 169 (1966), had carefully distinguished between
what is only "related to the due functioning of the legislative
process," and what constitutes the legislative process entitled
to immunity under the Clause:
"In stating that those things [Johnson's attempts to influence
the Department of Justice] 'in no wise related to
the due functioning of the legislative process' were not
covered by the privilege, the Court did not in any sense
imply as a corollary that everything that 'related' to the
office of a Member was shielded by the Clause. Quite
the contrary, in Johnson we held, citing Kilbourn v.
Thompson, supra, that only acts generally done in the
course of the process of enacting legislation were
protected.
"In no case has this Court ever treated the Clause as
protecting all conduct relating to the legislative process.
" ... In its narrowest scope, the Clause is a very large,
albeit essential, grant of privilege. It has enabled reckless
men to slander [by speech or debate] and even destroy
132 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
others with impunity, but that was the conscious choice of
the Framers." 408 U. S., at 513-516. (Emphasis in
original.)
We are unable to discern any "conscious choice" to grant immunity
for defamatory statements scattered far and wide by
mail, press, and the electronic media.
Respondents also argue that newsletters and press releases
are privileged as part of the "informing function" of Congress.
Advocates of a broad reading of the "informing function"
sometimes tend to confuse two uses of the term "informing."
In one sense, Congress informs itself collectively
by way of hearings of its committees. It was in that sense
that Woodrow Wilson used "informing" in a statement quoted
by respondents. In reality, Wilson's statement related to
congressional efforts to learn of the activities of the Executive
Branch and administrative agencies; he did not include wideranging
inquiries by individual Members on subjects of their
choice. Moreover, Wilson's statement itself clearly implies
a distinction between the informing function and the legislative
function:
"Unless Congress have and use every means of acquainting
itself with the acts and the disposition of the administrative
agents of the government, the country must be
helpless to learn how it is being served; and unless Congress
both scrutinize these things and sift them by every
form of discussion, the country must remain in embarrassing,
crippling ignorance of the very affairs which it is
most important that it should understand and direct.
The informing function of Congress should be preferred
even to its legislative function. . . . [T]he only really
self-governing people is that people which discusses and
interrogates its administration." ,v. Wilson, Congressional
Government 303 ( 1885).
It is in this narrower Wilsonian sense that this Court has
employed "informing" in previous cases holding that conHUTCHINSON
v. PROXMIRE 133
111 Opinion of the Court
gressional efforts to inform itself through committee hearings
are part of the legislative function.
The other sense of the term, and the one relied upon by
respondents, perceives it to be the duty of Members to tell the
public about their activities. Valuable and desirable as it
may be in broad terms, the transmittal of such information
by individual Members in order to inform the public and other
Members is not a part of the legislative function or the deliberations
that make up the legislative process.15 As a result,
transmittal of such information by press releases and newsletters
is not protected by the Speech or Debate Clause.
Doe v. McMillan, 412 U. S. 306 (1973), is not to the contrary.
It dealt only with reports from congressional committees,
and held that Members of Congress could not be held
liable for voting to publish a report. Voting and preparing
committee reports are the individual and collective expressions
of opinion within the legislative process. As such, they are
protected by the Speech or Debate Clause. Newsletters and
press releases, by contrast, are primarily means of informing
those outside the legislative forum; they represent the views
and will of a single Member. It does not disparage either
their value or their importance to hold that they are not entitled
to the protection of the Speech or Debate Clause.
V
Since New York Times Co. v. Sullivan, 376 U. S. 254
(1964),16 this Court has sought to define the accommodation
15 Provision for the use of the frank, 39 U. S. C. § 3210, does not alter
our conclusion. Congress, by granting franking privileges, stationery allowances,
and facilities to record speeches and statements for radio broadcast
cannot ,expand the scope of the Speech or Debate Clause to render
immune all that emanates via such helpful facilities.
16 Neither the District Court nor the Court of Appeals considered
whether the New York Times standard can apply to an individual defendant
rather than to a media defendant. At oral argument, counsel for
Hutchinson stated that he had not conceded that the New York Times
134 OCTOBER TERM, 1978
Opinion of the Court 443 U . S.
required to assure the vigorous debate on the public issues that
the First Amendment was designed to protect while at the
same time affording protection to the reputations of individuals.
E. g., Time, Inc. v. Firestone, 424 U. . 448 (1976);
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ; Rosenbloom
v. Metromedia, Inc., 403 "G. S. 29 (1971); St. Amant v.
Thompson, 390 r. S. 727 (1968); Curtis Publ'ishing Co. v.
Butts, 388 U. S. 130 ( 1967); Rosenblatt v. Baer, 383 U. S. 75
( 1966). In Gertz v. Robert Welch, Inc., the Court offered a
general definition of "public figures":
"For the most part those who attain this status [ of public
figure] have assumed roles of especial prominence in the
affairs of society. Some occupy positions of such persuasive
power and influence that they are deemed public
figures for all purposes. More commonly, those classed
as public figures have thrust themselves to the forefront
of particular public controversies in order to influence the
resolution of the issues involved. In either event, they
invite attention and comment." 418 U. S., at 345.
It is not contended that Hutchinson attained such prominence
that he is a public figure for all purposes. Instead,
respondents have argued that the District Court and the
Court of Appeals were correct in holding that Hutchinson is
a public figure for the limited purpose of comment on his
receipt of federal funds for research projects. That conclusion
was based upon two factors: first, Hutchinson's successful
application for federal funds and the reports in local newspapers
of the federal grants; second, Hutchinson's access to the
media, as demonstrated by the fact that some newspapers and
wire services reported his response to the announcement of
the Golden Fleece Award. Neither of those factors demonstandard
applied. Tr. of Oral Arg. 18. This Court has never decided
the question; our conclusion that Hutchinson is not a public figure makes
it unnecessary to do so in this case.
HUTCHINSON v. PROXMIRE 135
111 Opinion of the Court
strates that Hutchinson was a public figure prior to the controversy
engendered by the Golden Fleece Award; his access,
such as it was, came after the alleged libel.
On this record, Hutchinson's activities and public profile
are much like those of countless members of his profession.
His published writings reach a relatively small category of
professionals concerned with research in human behavior. To
the extent the subject of his published writings became a
matter of controversy, it was a consequence of the Golden
Fleece Award. Clearly, those charged with defamation cannot,
by their own conduct, create their own defense by making
the claimant a public figure. See Walston v. Reader's Digest
Assn., Inc., post, at 167-168.
Hutchinson did not thrust himself or his views into public
controversy to influence others. Respondents have not identified
such a particular controversy; at most, they point to
concern about general public expenditures. But that concern
is shared by most and relates to most public expenditures;
it is not sufficient to make Hutchinson a public figure.
If it were, everyone who received or benefited from the
myriad public grants for research could be classified as a public
figure-a conclusion that our previous opinions have rejected.
The "use of such subject-matter classifications to
determine the extent of constitutional protection afforded
defamatory falsehoods may too often result in an improper
balance between the competing interests in this area." Time,
Inc. v. Firestone, supra, at 456.
Moreover, Hutchinson at no time assumed any role of
public prominence in the broad question of concern about
expenditures. Neither his applications for federal grants nor
his publications in professional journals can be said to have
invited that degree of public attention and comment on his
receipt of federal grants essential to meet the public figure
level. The petitioner in Gertz v. Robert Welch, Inc., had
published books and articles on legal issues; he had been
136 OCTOBER TERM, 1978
BRENNAN, J., dissenting 443 U.S.
active in local community affairs. Nevertheless, the Court
concluded that his activities did not make him a public figure.
Finally, we cannot agree that Hutchinson had such access
t,o the media that he should be classified as a public figure.
Hutchinson's access was limited to responding to the announcement
of the Golden Fleece Award. He did not have
the regular and continuing access to the media that is one of
the accouterments of having become a public figure.
We therefore reverse the judgment of the Court of Appeals
and remand the case to the Court of Appeals for further proceedings
consistent with this opinion.
Reversed and remanded.
MR. JUSTICE STEWART joins in all but footnote 10 of the
Court's opinion. He cannot agree that the question whether
a communication by a Congressman or a member of his staff
with a federal agency is entitled to Speech or Debate Clause
immunity depends upon whether the communication is defamatory.
Because telephone calls to federal agency officials
are a routine and essential part of the congressional oversight
function, he believes such activity is protected by the Speech
or Debate Clause.
MR. JUSTICE BRENNAN, dissenting.
I disagree with the Court's conclusion that Senator Proxmire's
newsletters and press releases fall outside the protection
of the speech-or-debate immunity. In my view, public criticism
by legislators of unnecessary governmental expenditures,
whatever its form, is a legislative act shielded by the Speech
or Debate Clause. I would affirm the judgment below for
the reasons expressed in my dissent in Gravel v. United States,
408 u. s. 606, 648 (1972).
BAKER v. McCOLLAN
Syllabus
BAKER v. McCOLLAN
137
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
No. 78-752. Argued April 23, 1979-Decided June 26, 1979
Respondent's brother somehow procured a duplicate of respondent's
driver's license, except that it bore the brother's picture. The brother
was arrested on narcotics charges, booked in respondent's name, and
released on bond. An arrest warrant intended for the brother was
subsequently issued in respondent's name. Pursuant to that warrant,
respondent, over his protest, was taken into custody by the Potter
County, Tex., Sheriff's Department and detained in jail for several
days before the error was discovered and he was released. Claiming
that his detention in jail had deprived him of liberty without due
process of law, respondent brought an action in District Court against
petitioner sheriff of Potter County and his surety under 42 U. S. C.
§ 1983, which imposes civil liability on any person who, under color
of state law, subjects another to the deprivation of rights "secured by
the Constitution and laws." The District Court directed a verdict in
favor of petitioner and his surety. The Court of Appeals, characterizing
respondent's cause of action as a "[§] 1983 false imprisonment action,"
reversed, holding that respondent was entitled to have his § 1983 claim
presented to the jury even though the evidence supported no more
than a finding of negligence on petitioner's part.
Held: Respondent failed to satisfy § 1983's threshold requirement that the
plaintiff be deprived of a right "secured by the Constitution and laws,"
and hence had no claim cognizable under § 1983. Pp. 142-147.
(a) Absent an attack on the validity of the warrant under which he
was arrested, respondent's complaint is simply that, despite his protests
of mistaken identity, he was detained in jail for three days. Whatever
claim this situation might give rise to under state tort law, it gives
rise to no claim under the Fourteenth Amendment to the United States
Constitution. While respondent was deprived of his liberty for three
days, it was pursuant to a warrant conforming to the requirements of
the Fourth Amendment. His detention, therefore, did not amount to a
deprivation of liberty without due process of law. Pp. 142-145.
(b) Respondent's innocence of the charge contained in the warrant,
while relevant to a tort claim of false imprisonment, is largely irrelevant
to his claim of deprivation of liberty without due process of law.
138 OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
Given the requirements that an arrest be made only on probable cause
and that one detained be accorded a speedy trial, a sheriff executing
a valid arrest warrant is not required by the Constitution to investigate
independently every claim of innocence, whether the claim is based on
mistaken identity or a defense such as lack of requisite intent. Nor is
the official maintaining custody of the person named in the warrant
required by the Constitution to perform an error-free investigation of
such a claim. Pp. 145-146.
( c) The tort of false imprisonment does not become a Yiolation of
the Fourteenth Amendment merely because the defendant is a state
official. P. 146.
575 F. 2d 509, reversed.
REHNQUIST, J., drlivered the op1mon of the Court, in which BuRGER,
C. J., and STEWART, WHrTE, BLACKMUN, and PowELL, JJ., joined. BLACKMUN,
J., filed a concurring opinion, post, p. 147. lVL-\RSHALL, .J., filed a
dissenting opinion, post, p. 149. STEvExs, .T., filed a dissenting opinion, in
which BRENNAN and MARSHALL, JJ., joined, post, p. 149.
A. W. SoRelle Ill argued the cause for petitioner. With
him on the briefs were Kerry Knorpp and John L. Owen.
Douglas R. Larson argued the cause and filed a brief for
respondent.*
MR. JusTICE REHNQUIST delivered the opinion of the Court.
Last Term, in Procunier v. l\·avarette, 434 U. S. 555 ( 1978),
we granted certiorari to consider the question whether negligent
conduct can form the basis of an award of damages
under 42 U. S. C. § 1983. The constitutional violation alleged
in Procunier was interference on the part of prison officials
with a prisoner's outgoing mail. The complaint alleged that
the prison offi.cia]s had acted with every conceivable state of
mind, from "knowingly" and in ''bad faith" to "negligently
and inadvertently." We granted certiorari, however, only on
the question "[w]hether negligent failure to mail certain of
*Leon Friedman, Alan H. Levine, and Harold C. Hirshman filed n, brief
for the American Civil Liberties Union et al. as amici curiae.
,I
BAKER v. McCOLLAN 139
137 Opinion of the Court
a prisoner's outgoing letters states a cause of action under
§ 1983." 434 U. S., at 559 n. 6.
Following oral argument and briefing on the merits, the
Court held that since the constitutional right allegedly violated
had not been authoritatively declared at the time the
prison officials acted, the officials were entitled, as a matter of
law, to prevail on their claim of qualified immunity. Quoting
from Wood v. Strickland, 420 U. S. 308, 322 (1975), we observed:
"Because [ the prison officials J could not reasonably
have been expected to be aware of a constitutional right that
had not yet been declared, [they] did not act with such disregard
for the established law that their conduct 'cannot reasonably
be characterized as being in good faith.'" 434 U. S.,
at 565. It was thus unnecessary to reach the question on
which certiorari had been granted.
In the instant case, the Court of Appeals for the Fifth Circuit
saw the focal issue as whether petitioner Baker, the
sheriff of Potter County, Tex., had negligently failed to establish
certain identification procedures which would have
revealed that respondent was not the man wanted in connection
with the drug charges on which he was arrested. Accordingly,
it ·withheld decision until our opinion in Procunier
was handed down. Finding no guidance in Procunier on the
question whether an allegation of "simple negligence" states
a claim for relief under § 1983, the Court of Appeals proceeded
to answer that question affirmatively, holding that
respondent was entitled to have his § 1983 claim presented
to the .i ury even though the evidence supported no more than
a finding of negligence on the part of Sheriff Baker. We
granted certiorari. 439 U. S. 1114 ( 1979).
Having been around this track once before in Procunier,
supra, we have come to the conclusion that the question
whether an allegation of simple negligence is sufficient to state
a cause of action under § 1983 is more elusive than it appears
at first blush. It may well not be susceptible of a uniform
140 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
answer across the entire spectrum of conceivable constitutional
violations which might be the subject of a § 1983 action.
In any event, before the relationship between the
defendant's state of mind and his liability under § 1983 can
be meaningfully explored, it is necessary to isolate the precise
constitutional violation with which he is charged. For § 1983
imposes civil liability only upon one
"who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory, subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws .... "
The first inquiry in any § 1983 suit, therefore, is whether the
plaintiff has been deprived of a right "secured by the Constitution
and laws." If there has been no such deprivation, the
state of mind of the defendant is wholly immaterial.1 We
think that respondent has failed to satisfy this threshold requirement
of § 1983 and thus defer once again consideration
of the question whether simple negligence can give rise to
§ 1983 liability.
I
Leonard McCollan and respondent Linnie Carl McCollan
are brothers. Leonard somehow procured a duplicate of
Linnie's driver's license, identical to the original in every respect
except that, as the Court of Appeals put it, "Leonard's
picture graced it instead of Linnie's." McCoUan v. Tate, 575
F. 2d 509, 511 (CA5 1978). In October 1972, Leonard, masquerading
as Linnie, was arrested in Potter County on nar-
1 Of course, the state of mind of the defendant may be relevant on the
issue of whether a constitutional violation has occurred in the first place,
quite apart from t-he issue of whether § 1983 contains some additional
qualification of that nature before a defendant may be held to respond in
damages under its provisions.
BAKER v. McCOLLAN 141
137 Opinion of the Court
cotics charges. He was booked as Linnie Carl McCollan,
signed various documents as Linnie Carl McCollan, and was
released on bail as Linnie Carl McCollan. Leonard's bondsman
sought and received an order allowing him to surrender
his principal and a warrant was issued for the arrest of "Linnie
Carl McCollan."
On December 26, 1972, Linnie was stopped in Dallas for
running a red light. A routine warrant check revealed that
Linnie Carl McCoUan was wanted in Potter County, and respondent
was taken into custody over his protests of mistaken
identification. The Dallas Police Department contacted the
Potter County Sheriff's Department, compared the identifying
information on respondent's driver's license with that
contained in the Potter County arrest records, and understandably
concluded that they had their man. On December
30, Potter County deputies took custody of respondent and
placed him in the Potter County Jail in Amarillo. He remained
there until January 2, 1973, when officials compa.red
his appearance against a file photograph of the wanted man
and, recognizing their error, released him.
Respondent brought this damages action "pursuant to the
Fourteenth Amendment to the United States Constitution
and ... [§] 1983." App. 6. After each party had rested
his case, the United States District Court for the Northern
District of Texas directed a verdict in favor of Sheriff
Baker and his surety, Transamerica Insurance Co., without
articulating its reasons. The Court of Appeals for the Fifth
Circuit reversed. Characterizing respondent's cause of action
as a" [ ~] 1983 false imprisonment action," the Court of Appeals
determined that respondent had made out a prima facie case
by showing (I) intent to confine, (2) acts resulting in confinement,
and (3) consciousness of the victim of confinement or
resulting harm. The question in the court's view thus became
whether Sheriff Baker was entitled to the defense of
qualified immunity, which in turn depended on the reasonI
I
i
Ii
142 OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
ableness of his failure to institute an identification procedure
that would have disclosed the error. Noting that the error
would have been discovered if Potter County officials had
sent identifying material to Dallas or had immediately upon
respondent's arrival in Amarillo compared him with the file
photograph and fingerprints of the wanted man, the Court of
Appeals determined that a jury could reasonably conclude
that the sheriff had behaved unreasonably in failing to institute
such measures. Accordingly, the case was remanded
to the District Court for a new trial.
II
Respondent's claim is that his detention in the Potter
County jail was wrongful. Under a tort-law analysis it may
well have been. The question here, however, is whether his
detention was unconstitutional. For, as the Court of Appeals
recognized, a public official is liable under § 1983 only "if he
causes the plaintiff to be subjected to deprivation of his constitutional
rights." 575 F. 2d, at 512 (emphasis in original).
Despite this recognition, the Court of Appeals analyzed respondent's
so-called " [ §] 1983 false imprisonment action" exclusively
in terms of traditional tort-law concepts, relying
heavily on the Restatement (Second) of Torts (1965). Indeed,
nowhere in its opinion does the Court of Appeals specifically
identify the constitutional right allegedly infringed
in this case. Because respondent's claim and the Court of
Appeals' decision focus exclusively on respondent's prolonged
detention caused by petitioner's failure to institute adequate
identification procedures, the constitutional provision allegedly
violated by petitioner's action is presumably the Fourteenth
Amendment's protection against deprivations of liberty
without due process of law.
By virtue of its "incorporation" into the Fourteenth Amendment,
the Fourth Amendment requires the States to provide
a fair and reliable determination of probable cause as a condition
for any significant pretrial restraint of liberty. GerBAKER
v. McCOLLAN 143
137 Opinion of the Court
stein v. Pugh, 420 U. S. 103 (1975). The probable-cause
determination "must be made by a judicial officer either before
or promptly after arrest." Id., at 125. Since an adversary
hearing is not required, and since the probable-cause standard
for pretrial detention is the same as that for arrest, a person
arrested pursuant to a warra.nt issued by a magistrate on a
showing of probable cause is not constitutionally entitled to
a separate judicial determination that there is probable cause
to detain him pending trial.2
In this case, respondent was arrested pursuant to a facially
valid warrant, and the Court of Appeals made no suggestion
that respondent's arrest was constitutionally deficient. Indeed,
respondent makes clear that his § 1983 claim was based
solely on Sheriff Baker's actions after respondent was
incarcerated:
"McCollan's § 1983 claim against the sheriff is not for
the wrong name being placed in the warrant or the failure
to discover and change same or even the initial arrest
of the respondent, but mther for the intentional failure
to investigate and determine that the wrong man was
imprisoned." Brief for Respondent 12.
For purposes of analysis, then, this case can be parsed with
relative ease. Absent an attack on the validity of the warrant
under which he was arrested, respondent's complaint is
2 In rejecting the cont,ention that a defendant is entitled to an adversary
hearing on the question of probable cause to detain, the Gerstei,n
Court stated:
"These adversary safeguards are not essential for the probable cause
determination required by the Fourth Amendmrnt. The sole issue is
whether there is probable causr for d<'taining the arrestC'd person pending
further proceedinii:s. This issue can be determined reliably without an
adversary hearing. The standard is the same as that for arrest. That
standard-probable ca11~e to belicvr the suspect has committed a crime--
traditionally has been deridPd by a magistrate in a nonadversary proceeding
on hearsay and written testimony, and the Court has approved these
informal modes of proof." 420 U. S., at 120 (footnote omitted).
144 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
simply that despite his protests of mistaken identity, he was
detained in the Potter County jail from December 30, when
Potter County deputies retrieved him from Dallas, until January
2, when the validity of his protests was ascertained.
Whatever claims this situation might give rise to under state
tort law, we think it gives rise to no claim under the United
States Constitution. Respondent was indeed deprived of his
liberty for a period of days, but it was pursuant to a warrant
conforming, for purposes of our decision, to the requirements
of the Fourth Amendment. Obviously, one in respondent's
position could not be detained indefinitely in the face of repeated
protests of innocence even though the warrant under
which he was arrested and detained met the standards of
the Fourth Amendment. For the Constitution likewise
guarantees an accused the right to a speedy trial, and invocation
of the speedy trial right need not await indictment or
other formal charge; arrest pursuant to probable cause is itself
sufficient. United States v. Marion, 404 U.S. 307 (1971).3
8 We of course agree with the dissent's quotation of the statement from
Schilb v. Kuebel, 404 U. S. 357, 365 (1971), that "the Eighth Amendment's
proscription of excessive bail has been assumed to have application
to the States through the Fourteenth Amendment." Post, at 149 n. 1. But
the inference that the dissent appears to draw from this statement-that
States are required by the United States Constitution to release an accused
criminal defendant on bail-would, if correct, merely supply one more possibility
of release from incarceration by resort to procedures specifically
set out in the Bill of Rights, over and above those guarantees discussed in
the text. It is for violations of such constitutional and statutory rights
that 42 U.S. C. § 1983 authorizes redress; that section is not itself a source
of substantive rights, but a method for vindicating federal rights elsewhere
conferred by those parts of the United States Constitution and federal
statutes that it describes. Cases such as Neil v. Biggers, 409 U. S. 188,
198 (1972), relied upon by the dissent, post, at 152-153, and n. 7, in no way
contradict this view. The discussion of misidentification in Neil was in the
context of the use of eyewitness identification testimony at the trial which
the United States Constitution guarantees to any accused before he may
be punished. See Bell v. Wolfi.sh, 441 U.S. 520 (1979).
BAKER v. McCOLLAN 145
137 Opinion of the Court
We may even assume, arguendo, that, depending on what procedures
the State affords defendants following arrest and prior
to actual trial, mere detention pursuant to a valid warrant
but in the face of repeated protests of innocence will after the
lapse of a certain amount of time deprive the accused of
"liberty ... without due process of law." But we are quite
certain that a detention of three days over a New Year's
weekend does not and could not amount to such a deprivation.
Respondent's innocence of the charge contained in the warrant,
while relevant to a tort claim of false imprisonment in
most if not all jurisdictions, is largely irrelevant to his claim
of deprivation of liberty without due process of law.4 The
Constitution does not guarantee that only the guilty will be
arrested. If it did, § 1983 would provide a cause of action for
every defendant acquitted-indeed, for every suspect released.
Nor are the manifold procedural protections afforded criminal
defendants under the Bill of Rights "without limits." Patterson
v. New York, 432 U. S. 197, 208 (1977). "Due process
does not require that every conceivable step be taken, at
whatever cost, to eliminate the possibility of convicting an
innocent person." Ibid.
The Fourteenth Amendment does not protect against all
deprivations of liberty. It protects only against deprivations
of liberty accomplished "without due process of law." A
reasonable division of functions between law enforcement officers,
committing magistrates, and judicial officers-all of
whom may be potential defendants in a § 1983 action-is entirely
consistent with "due process of law." Given the requirements
that arrest be made only on probable cause and
that one detained be accorded a speedy trial, we do not think
a sheriff executing an arrest warrant is required by the Con-
4 We, of course, do not deal here with a criminal defendant's claim to a
new trial after convirtion where that claim is based upon newly discovered
evidence. Most States provide a procedure similar to that contained in
Fed. Rule Crim. Proc. 33 to process such claims.
146 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
stitution to investigate independently every claim of innocence,
whether the claim is based on mistaken identity or a
defense such as lack of requisite intent. Nor is the official
charged with maintaining custody of the accused named in
the warrant required by the Constitution to perform an errorfree
investigation of such a claim. The ultimate determination
of such claims of innocence is placed in the hands of the
judge and the jury.5
III
The Court of Appeals closed its opinion with the following
summary of its holding:
"We are saying that the sheriff or arresting officer has a
duty to exercise due diligence in making sure that the
person arrested and detained is actually the person sought
under the warrant and not merely someone of the same
or a similar name. See Restatement (2d) Torts § 125,
comment (d) (1965)." 575 F. 2d, at 513.
Section 1983 imposes liability for violations of rights protected
by the Constitution, not for violations of duties of care
arising out of tort Jaw. Remedy for the latter type of injury
must be sought in state court under traditional tort-law principles.
Just as "[m]edical malpractice does not become a
constitutional violation merely because the victim is a prisoner,"
Estelle v. Gamble, 429 U.S. 97, 106 (1976), false imprisonment
does not become a violation of the Fourteenth
Amendment merely because the defendant is a state official.
Having been deprived of no rights secured under the United
States Constitution, respondent had no claim cognizable under
5 In view of the substantive analysis employed by the dissent, it would
seem virtually impossible to reach a conclusion other than that any case
of misidentification in connection with an arrest made pursuant to an
admittedly valid warrant or concededly on probable cause would constitute
a deprivation of liberty without due process of law.
BAKER v. McCOLLAN 147
137 BLACKMUN, J., concurring
§ 1983. The judgment of the Court of Appeals for the Fifth
Circuit is therefore
Reversed.
MR. JusTICE BLACKMUN, concurring.
The Court long has struggled to define the "liberty" protected
by the Due Pfocess Clause of the Fourteenth Amendment.
The Court today looks to the provisions of the Bill
of Rights that have been "incorporated" into the Due Process
Clause, including the right to be free from unreasonable
seizures, the right to bail, and the right to a speedy trial, and,
finding that none of those specifically incorporated rights
apply here, concludes that petitioner did not deny respondent
due process in holding him in jail during a holiday weekend.
Ante, at 144-145.
The Court's cases upon occasion have defined "liberty"
without specific guidance from the Bill of Rights. For example,
it has found police conduct that "shocks the conscience"
to be a denial of due process. Rochin v. California, 342 U.S.
165, 172 (19-52). Mr. Justice Ha.rlan once wrote: "This
'liberty' is not a series of isolated points pricked out in terms
of [ the Bill of Rights J. It is a rational continuum which,
broadly speaking, includes a freedom from all substantial
arbitrary impositions and purposeless restraints." Poe v.
Ullman, 367 U.S. 497, 543 (1961) (dissenting opinion). See
also Roe v. Wade, 410 U.S. 113, 152-156 (1973).
The Court today does not consider whether petitioner's
conduct "shocks the conscience" or is so otherwise offensive to
the "concept of ordered liberty," Palko v. Connecticut, 302
U. S. 319, 325 ( 1937), as to warrant a finding that petitioner
denied respondent due process of law. Nothing in petitioner's
conduct suggests outrageousness. He had been sheriff for
only 40 days when this incident occurred, and, viewing the
facts in the light most favorable to respondent, petitioner's
error lay solely in failing to supervise the conduct of the
148 OCTOBER TERM, 1978
BLACKMUN, J., concurring 443 U.S.
deputies who transferred respondent to the Potter County
jail and kept him there over the weekend. The Court of
Appeals' finding that petitioner "intended to confine" respondent
rested solely on petitioner's knowledge of the office
procedures, not on any knowledge of respondent or even on
an awareness at the time this incident occurred that the procedures
might be ineffective. In contrast to the deputies
who, as MR. JUSTICE STEVENS and MR. JusTICE MARSHALL
point out, post, at 151-152 and 149, turned a deaf ear to respondent's
protests, petitioner checked the files and released
respondent as soon as petitioner became aware of respondent's
claim. The deputies are not parties to this lawsuit. While
I concluded in Rizzo v. Goode, 423 U. S. 362, 384-387 ( 1976)
( dissenting opinion), that the reckless failure of a police official
to stop a pattern of clearly unconstitutional conduct by
his subordinates could be enjoined under 1983, here there is
no indication that petitioner was aware., or should have been
aware, either of the likelihood of misidentification or of his
subordinates' action in this case.
I do not understand the Court's opinion to speak to the
possibility that Rochin might be applied to this type of case
or otherwise to foreclose the possibility that a prisoner in
respondent's predicament might prove a due process violation
by a sheriff who deliberately and repeatedly refused to check
the identity of a complaining prisoner against readily available
mug shots and fingerprints. Such conduct would be far
more "shocking" than anything this petitioner has done. The
Court notes that intent is relevant to the existence of a constitutional
violation, ante, at 140 n. 1, it reserves judgment as
to whether a more lengthy incarceration might deny due
process, ante, at 144, and it concludes only that "every" claim
of innocence need not be investigated independently, ante, at
145-146. I therefore do not agree with MR. JUSTICE STEVENS'
suggestion, post, at 154 n. 14, that a prisoner in respondent's
predicament would be foreclosed from seeking a writ of habeas
BAKER v. McCOLLAN 149
137 STEVENS, J., dissenting
corpus. Because this is my understanding, and because I
agree that the rights surveyed by the Court do not here provide
a basis for the damages award respondent seeks, I concur
in the judgment of the Court and join its opinion.
MR. JusTICE MARSHALL, dissenting.
While I join the dissenting opinion of my Brother STEVENS,
I would add one or two additional words. As I view this case,
neither "negligence" nor "mere negligence" is involved. Respondent
was arrested and not released. This constituted
intentional action and not, under these circumstances, negligence.
For despite respondent's repeated protests of misidentification,
as well as information possessed by the Potter
County sheriff suggesting that the name in the arrest warrant
was incorrect, see post, at 151 (STEVENS, J., dissenting), petitioner
and his deputies made absolutely no effort for eight
days to determine whether they were holding an innocent man
in violation of his constitutionally protected rights.
MR. JusTICE STEVENS, with whom MR. JuSTICE BRENNAN
and MR. JusTICE MARSHALL join, dissenting.
When a State deprives a person of his liberty after his
arrest, the Constitution requires that it be prepared to justify
not only the initial arrest, but the continued detention as well.1
Respondent's arrest on December 26, 1972, was authorized by
a valid warrant, and no claim is raised that it violated his
Fourth Amendment rights. The question is whether the deprivation
of his liberty during the next eight days-despite
his protests of mistaken identity-was "without due process of
1 See Gerstein v. Pugh, 420 U. S. 103, 113-114. See also Schilb v.
Kuebel, 404 U. S. 357, 365 ("1T]he Eighth Amendment's proscription of
excessive bail has been assumed to have application to the States through
the Fourteenth Amendment"); Stack v. Boyle, 342 U. S. 1, 4 ("Unless
this right to bail before trial is preserved, the presumption of innocence,,
secured only after centuries of struggle, would lose its meaning").
150 OCTOBER TERM, 1978
STEVENS, J., dissenting 443 U.S.
law" within the meaning of the Fourteenth Amendment.
The record in this case makes clear that the procedures employed
by the sheriff of Potter County, Tex., at the time
were not reasonably calculated to establish that a person
being detained for the alleged commission of a crime was in
fact the person believed to be guilty of the offense. In my
judgment, such procedures are required by the Due Process
Clause, and the deprivation of respondent's liberty occasioned
by their absence is a violation of his Fourteenth Amendment
rights.
I
Respondent's brother Leonard was arrested by a member of
the City of Amarillo Police Force on September 11, 1972; city
police officers photographed and fingerprinted him. On October
6, 1972, he was transferred to the custody of the sheriff
of Potter County. At that time, contrary to normal practice,
the Potter County sheriff's office took possession of the driver's
license the brother was carrying. They did so because it was
apparent that the license had been altered. The sheriff testified
that an alteration of that kind established a likelihood
that the arrestee was using an alias.2
A professional surety posted bond and respondent's brother
was released. On November 3, 1972, for reasons that do not
appear in the record, the bondsman sought and received an
order allowing him to surrender respondent's brother. A warrant
for his re-arrest was therefore issued. Since the brother
had been masquerading as respondent, the warrant was issued
in respondent's name.3 Although respondent has not questioned
the validity of the warrant-presumably because it
issued before petitioner became sheriff-he has emphasized the
fact that the altered driver's license in the file gave the
sheriff's deputies reason to believe that the wanted person
was using an alias.
2 App. 36-40.
3 Id., at 40-42, 118.
BAKER v. McCOLLAN 151
137 STEVENS, J., dissenting
On December 26, 1972, respondent was stopped for a traffic
violation in Dallas. The Dallas patrolman made a routine
radio check and learned that the Potter County warrant was
outstanding. Over respondrnt's repeatrd protests that he
was not the right man, the officer placed him under arrest and
took him to a Dallas police station. The desk sergeant telephoned
the Potter County sheriff's office and apparently
learned that respondent's name, sex, racC', and date of birth
corresponded with the information provided by the sheriff.
N"o mention appears to have been made of the fact that the
sheriff's files contained an altered driver's license issued in
rrspondent's name, even though respondrnt was obviously
carrying a licrnsr when he was ticketed for the traffic offense!
In short, the fact that the sheriff's office had reason to bC'-
lievc that the name in the warrant was an alias did not motivate
a.ny special effort to verify the arrestee's identification.
The sheriff's deputies allowed respondent to remain in the
Dallas lockup for four days before they picked him up. At
the time they did so, they failed to follow an identification
procedure used by comparable sheriff's offices. They did not
take the pictures and fingerprints in the file with them to
Dallas to be sure that they had the man they wanted. Nor,
when they returned to the Pottn C'ounty jail. did they ref Pr
to the pictures or the prints notwithstanding respondent's continued
protests of misidentifi.C'ation and the ready availability
of the information.5
The ensuing four days included a holiday weekend when
the shrriff was apparently away from his office. It was nevertheless
a busy period for his staff Rince about 150 prisoners
were being detained in a jail designed to house only 88.6 In
4 See id., at 42-43.
5 "ThP sheriff himself testified that it was a. standard practice in most
sheriff's departments the size of his to send such identifying material."
McCoUan v. Tate, 575 F. 2d 509, 513. See App. 44-45, 52-53.
6 Id., at 83.
152 OCTOBER TERM, 1978
STEVENS, J., dissenting 443U.S.
all, there was no procedure in effect that led any of the sheriff's
deputies to pull out the file and compare the pictures and
fingerprints with respondent. Of course, as soon as the sheriff
did so on January 2, he recognized the mistake that had been
made and immediately released respondent.
It is evident that respondent's 8-day imprisonment ·would
have been at least cut in half if any one of several different
procedures had been followed by the sheriff's office. If
his brother's file had been marked to indicate that he was
probably using an alias, a more thorough and prompt identification
check would surely have been made; if he had been
transferred from Dallas to Potter County promptly, he apparently
would have arrived before the sheriff left for the
holiday weekend. If a prompt pickup was not feasible, a
prompt mailing of the fingerprints and photographs would
have revealed the error; if the deputies who picked him up
had taken the fingerprints and photographs with them, he
would have been released in Dallas; if the file had been
checked when he arrived at the Potter <:::ounty jail, or if the
sheriff had delegated authority to review complaints of misidentification
during his absence, respondent would not have
spent four days in the Potter County jail. In short, almost
any regular procedures for verifying an arrestee's identification
would have resulted in the prompt release of respondent.
II
The Due Process Clause clearly protects an individual from
conviction based on identification procedures which are improperly
suggestive. In a criminal trial, that Clause requires
the exclusion of evidence obtained through procedures presenting
"a very substantial likelihood of . . . misidentification."
Simmons v. United States, 390 U. S. 377, 384. Fair
procedures must be used, to prevent an "irreparable misidentification"
and the resulting deprivation of liberty attaching to
BAKER v. McCOLLAN 153
137 STEVENS, J., dissenting
conviction. Ibid.7 In my judgment, the Due Process Clause
equally requires that fair procedures be employed to ensure
that the wrong individual is not subject to the deprivations
of liberty attaching to pretrial deumtion.
Pretrial detention unquestionably involves a serious deprivation
of individual liberty. "The consequences of prolonged
detention may be more serious than the interference occasioned
by arrest. Pretrial confinement may imperil the suspect's
job, interrupt his source of income, and impair his family relationships."
Gerstein v. Pugh, 420 U. S. 103, 114. The
burdens of pretrial detention are substantial ones to impose on
a presumptively innocent man, even when there is probable
cause to believe he has committed a crime.8 To impose such
burdens on the wrong man-on a man who has been mistakenly
identified as a suspect because of inadequate identification
procedures-seems to me clearly unconstitutional. It
is wholly at odds with the constitutional restraints imposed on
police officers in the performance of investigative stops,9 the
establishment of probable cause to detain as well as to arrest,1°
and the questioning of suspects taken into custody.11 In
each of these activities, police officers must conform to procedures
mandated by the Constitution which serve to minimize
7 See Foster v. California, 394 U. S. 440; Neil v. Biggers, 409 U. S. 188,
198 ("It is the likelihood of misidentification which violates a defendant's
right to due process, and it is this which was the basis of the exclusion
of evidence in Foster"). Sec also United States v. Wade, 388 U.S. 218,
228 ("The vagaries of eyewitness identification are well-known; the annals
of criminal law are rife with instances of mistaken identification").
8 See Bell v. Wolfish, 441 U. S. 520, 569, and n. 7 (MARSHALL, J.,
dissenting); id., at 593 (STEVENS, J., dissenting).
9 See Terry v. Ohio, 392 U. S. l; Delaware v. Prouse, 440 U. S. 648.
10 See, e. g., Dunaway v. New York, 442 U. S. 200; Spinelli v. United
States, 393 U. S. 410.
11 See, e. g., Brewer v. Williams, 430 U. S. 387; Miranda. v. Arizona, 384
U. S. 436; Turner v. Pennsylvania, 338 U. S. 62 (coerced confession excluded
on due process grounds even if "trustworthiness" test met). See
also Rochin v. California, 342 U. S. 165.
154 OCTOBER TERM, 1978
STEVENS, J., dissenting 443 U.S.
the risk of wrongful and unjustified deprivations of personal
liberty. It surely makes little sense to enforce limits on the
police officer seeking out and detaining those whom he believes
to have committed crimes without at the same time
requiring adherence to procedures designed to ensure that the
subject of the police action and detention is in fact the individual
the officer believes he is.
In rejecting respondent's claim that his mistaken detention
violated his constitutional rights, the Court today relies on
two alternative rationales. First, it seems to hold that the
constitutional right to a speedy trial provides adequate assurance
against unconstitutional detentions, so long as the initial
arrest is valid. I cannot agree. A speedy trial within the
meaning of the Constitution may take place weeks or
months-if not years-after the initial arrest.12 And many
arrested persons-as many as 49 % of those arrested in the
District of Columbia-are never tried at all, with charges
being dropped at some point prior to trial.13
Alternatively, the majority relies on the fact that the last
three days of respondent's detention occurred over a holiday
weekend to establish that the deprivation of his liberty was
so minimal as not to require procedural protections. Whatever
relevance the holiday might have to the sheriff's goodfaith
defense 14-an issue not presented here-it is clear to me
l 2 See, e. g., Barker v. Wingo, 407 U. S. 514 (delay of over four years
held constitutional).
13 See K. Brosi, A Cross-City Comparison of Felony Case Processing 7
( 1979). Nationally, as many as 40% of all adult arrestees are released
without the filing of charges. Y. Kamisar, W. LaFave, & J. Israel,
Modern Criminal Procedure 7 (1974).
14 While it might be argued that the holiday weekend would provide
support for the sheriff's claim that he should be immune from damages on
the grounds of a good-faith defense, it would surely seem irrelevant to any
claim that respondent might have raised in a habeas corpus proceeding
that he was being held in violation of his constitutional rights. Yet under
the majority's holding, respondent would not be entitled to such relief,
since his detention is not a violation of his constitutional rights.
BAKER v. McCOLLAN 155
137 STEVENS, J., dissenting
that the coincidence of a holiday weekend hardly reduces the
deprivation of liberty from respondent's point of view; indeed,
one might regard the deprivation of liberty as particularly
serious over a holiday weekend, and require a higher
standard of care at such a time. No claim is made that
respondent's deprivation was due to the failure to follow
otherwise applicable procedures during a holiday weekend;
and no such claim could be made, since the respondent was
detained for five days before the holiday weekend, and since
he was brought to Potter County before the weekend without
confirming his identity according to procedures which are customary
in comparable police departments.15
Certainly, occasional mistakes may be made by conscientious
police officers operating under the strictest procedures.
But this is hardly such a case. Here, there were no identification
procedures. And the problems of mistaken identification
are not, in my judgment, so insubstantial that the absence of
such procedures, and the deprivation of individual liberty
which results from their absence, should be lightly dismissed
as of no constitutional significance. The practice of making
a radio check with a centralized data bank is now a routine
policy, followed not only in every traffic stop in Potter
County,16 but also in literally hundreds of thousands of cases
per day nationwide.17 The risk of misidentification based on
coincidental similarity of names, birthdays, and descriptions
15 See 575 F. 2d, at 512 ("[T]he deputies' actions were authorized by
Sheriff Baker and the same actions were in keeping with the policies of
the Potter County Sheriff's Department at that time").
16 See App. 26 (testimony of Sheriff Baker).
17 As of May 1979, there were 7,285,951 records included in the data
base of the National Crime Information Center (NCIC), the national computerized
data bank operated by the Federal Bureau of Investigation and
designed to assist federal, state, and local law enforcement, agencies. In
April 1979, an average of 279,966 requests for information from the system
were made daily by law enforcement officials.
156 OCTOBER TERM, 1978
STEVENS, J., dissenting 443 U.S.
is unquestionably substantial; 18 it is reflected not only in
cases processed by this Court,19 but also in the emphasis placed
on securing fingerprint identification by those responsible for
the national computer system.20 The societal interests in
apprehending the guilty as well as the interests in avoiding
the incarceration of the innocent equally demand that the
identification of arrested persons conform to standards designed
to minimize the risk of error. I am not prepared or
qualified to define· the standards that should govern this aspect
of the law enforcement profession's work, but I have no hesitation
in concluding that an 8-day imprisonment resulting
from a total absence of any regular identification procedures
in Potter County was a deprivation of liberty without the due
process of law that the Constitution commands.
I respectfully dissent.
18 According to a study conducted by the International Association of
Chiefs of Police, over 5,000 civil actions were filed against police officers
asserting claims of false arrest or imprisonment between 1967 and 1971.
This figure represented over 40% of the total number of suits filed during
those years alleging any form of police misconduct. See Survey of Police
Misconduct Litigation 1967-1971, p. 6 (Americans for Effective Law
Enforcement 1974).
19 See, e. g., Ulster County Court v. Allen, 442 U. S. 140, in which the
police held one of the respondents on the basis of mistaken information received
in response to a radio check with headquarters. See also United
States v. Mackey, 387 F. Supp. 1121 (Nev. 1975) (individual arrested based
on inaccurate computer information). See generally Note, Garbage In,
Gospel Out: Establishing Probable Cause Through Computerized Criminal
Information Transmittals, 28 Hastings L. J. 509 (1976); DeWeese, Reforming
our "Record Prisons": A Proposal for the Federal Regulation
of Crime Data Banks, 6 Rutgers-Camden L. J. 26, 33 (1974) (citing
report of 35% inaccuracy in criminal histories maintained by FBI).
20 In the NCIC system, "[e]ach computerized offender criminal history
cycle must have a criminal fingerprint card as its basic source document.
This is necessary in order to preserve the personal identification integrity
of the system." NCIC, Computerized Criminal History Program; Background,
Concept and Policy 4 (FBI 1978). "[TJhe long-standing law
enforcement fingerprint identification process is an essential element in the
criminal justice system." Id., at 13.
WOI.STON v. READER'S DIGEST ASSN., INC. 157
Syllabus
WOLSTON v. READER'S DIGEST ASSOCIATION, INC.,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 78-541'4. Argued April 17, 1979-Decided June 26, 1979
As a result of a grand jury investigation, during 1957 and 19581 of Soviet
intelligence agents in the United States, petitioner's aunt and uncle were
arrested on, and later pleaded guilty to, espionage charges. In the
ensuing months, petitioner, pursuant to grand jury subpoenas, traveled
from his home in the District of Columbia to New York City, where the
grand jury was sitting, but on one occasion he failed to respond to a
subpoena, having previously attempted unsuccessfully to persuade law
enforcement authorities not to require him to travel because of his
mental condition. A Federal District Judge then issued an order to
show cause why petitioner should not be adjudged in criminal contempt
of court. Petitioner appeared in court on the return date of this order
and offered to testify before the grand jury but the offer was refused,
and thereafter he pleaded guilty to the contempt charge when his pregnant
wife became hysterical upon being called to testify as to his mental
condition. Petitioner received a suspended sentence. These event.s
were reported in a number of stories in the Washington and New York
newspapers, but the publicity subsided following petitioner's sentencing
and he succeeded for the most part in returning to the private life he
had led prior to such events. In 1974, respondent Reader's Digest Association
published a book written by respondent Barron, which describes
t,he Soviet Union's espionage organization and chronicles its activities
since World War II. The book was later published by the other
respondent publishers. In one passage in the book, petitioner is named
as "[a]mong Soviet agents identified in the United States" and "convicted
of ... contempt charges following espionage indictments," and
the index lists petitioner as a "Soviet agent in U. S." Petitioner sued
respondents, claiming that the above passages in the book were false and
defamatory. The District Court granted respondents' motion for summary
judgment, holding that petitioner was a "public figure" because,
by failing to appear before the grand jury and subjecting himself to a
citation for contempt, he "became involved in a controversy of a decidedly
public nature in a way that invited attention and comment, and
158 OCTOBER TERM, 1978
SyllabUB 443U.S.
thereby created in the public an interest in knowing about his connection
with espionage"; that the First Amendment therefore precluded recovery
unless petitioner proved that respondents had published a defamatory
falsehood with "actual malice"; and that the evidence raised no genuine
issue with respect to the existence of "actual malice." The Court of
Appeals affirmed.
Held: Petitioner was not a public figure within the meaning of this Court's
defamation cases and therefore was not required by the First Amendment
to meet the "actual malice" standard of New York Times Co. v.
Sulliva:n, 376 U. S. 254, in order t-0 recover from respondents. Pp. 163-
169.
(a) Contrary to respondents' argument and the lower courts' holdings,
petitioner does not fall within the category of those public figures
who have "thrust themselves to the forefront of particular public controversies
in order to influence the resolution of the issues involved,"
Gertz v. Robert Welch, Inc., 418 U.S. 323, 345. Neither the mere fact
that petitioner voluntarily chose not to appear before the grand jury,
knowing that t-his might be attended by publicity, the citation for contempt,
nor the simple fact that his failure to appear and the contempt
citation attracted media attention, rendered him such a public figure.
His failure to appear was in no way calculated to draw attention to
himself in order to invite public comment or influence the public with
respect to any issue, but rather appears simply to have been the result of
his poor healt-h. And there is no evidence that his failure to appear was
intended to have, or did in fact have, any effect on any issue of public
concern. Pp. 165--168.
(b) A person who engages in criminal conduct does not automatically
become a public figure for purposes af comment on a limited range
of issues relating to his conviction. Time, Inc. v. Firestone, 424 U. S.
448. To hold otherwise would create an "open season" for all who
sought to defame persons convicted of a crime. Pp. 168--169.
188 U.S. App. D. C. 185, 578 F. 2d 427, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER,
C. J., and STEWART, WHITE, POWELL, and STEVENS, JJ., joined. BLACKMUN,
J., filed an opinion concurring in the result, in which MARSHALL, J.,
joined, post, p. 169. BRENNAN, J., filed a dissenting opinion, post, p. 172.
Sidney Dickstein argued the cause for petitioner. With him
on the brief were George Kaufmann and Leslie J. Ruben.
John J. Buckley, Jr., argued the cause for respondents.
WOLSTON v. READER'S DIGEST ASSN., INC. 159
157 Opinion of the Court
With him on the brief were Edward Bennett Williams and
David Otis Fuller, Jr.+
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
In 1974, respondent Reader's Digest Association, Inc., published
a book entitled KGB, the Secret Work of Soviet Agents
(KGB), written by respondent John Barron.1 The book
describes the Soviet Union's espionage organization and
chronicles its activities since World War II. In a passage referring
to disclosures by "royal commissions in Canada and
Australia, and official investigations in Great Britain and the
United States," the book contains the following statements relating
to petitioner Ilya Walston:
"Among Soviet agents identified in the United States
were Elizabeth T. Bentley, Edward Joseph Fitzgerald,
William Ludwig Ullmann, William Walter Remington,
Franklin Victor Reno, Judith Coplon, Harry Gold, David
Greenglass, Julius and Ethel Rosenberg, Morton Sobell,
William Perl, Alfred Dean Slack, Jack Soble, Ilya Wolston,
Alfred and Martha Stern.*
"*No claim is made that this list is complete. It consists
of Soviet agents who were convicted of espionage or falsifying
information or perjury and/ or contempt charges following
espionage indictments, or who fled to the Soviet
bloc to avoid prosecution . . . . " App. 28 (emphasis
supplied).
In addition, the index to KGB lists petitioner as follows:
"Wolston, Ilya, Soviet agent in U. S." Id., at 29.
Petitioner sued the author and publishers of KGB in the
United States District Court for the District of Columbia,
+Richard M. Schmidt, Jr., filed a brief for the American Society of
Newspaper Editors et al. as amici curiae urging affirmance.
1 Respondents Bantam Books, Inc., MacMillan Book Clubs, Inc., and
Book-of-the-Month Club, Inc., are subsequent publishers of KGB under
contractual arrangements with Reader's Digest.
160 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
claiming that the passages in KGB stating that he had been
indicted for espionage and had been a Soviet agent were
false and defamatory. The District Court granted respondents'
motion for summary judgment. 429 F. Supp. 167
(1977). The court held that petitioner was a "public figure"
and that the First Amendment therefore precluded recovery
unless petitioner proved that respondents had published a
defamatory falsehood with "'actual malice'-that is, with
knowledge that it was false or with reckless disregard of
whether it was false or not," New York Times Co. v. Sullivan,
376 U.S. 254, 280 (1964). 429 F. Supp., at 172, 176. While
the District Court agreed that the above-quoted portions of
KGB appeared to state falsely that petitioner had been indicted
for espionage, it ruled, on the basis of affidavits and
deposition testimony, that the evidence raised no genuine
issue with respect to the existence of "actual malice" on the
part of respondents. Id., at 180-181. The Court of Appeals
for the District of Columbia Circuit affirmed. 188 U. S. App.
D. C. 185,578 F. 2d 427 (1978).2
2 Both the District Court and the Court of Appeals rested their decisions
on the First Amendment to the United States Constitution. The
District Court commented in a footnote that it "might also have decided
to apply the actual-malice standard in this case on the ground that the law
in the District of Columbia requires it." 429 F. Supp., at 178--179, n.
37. The court referred to an unpublished decision of the Superior
Court of the District of Columbia as support for that proposition.
Hatter v. Evening Star Newspaper Co., Civ. No. 8298-75 (Mar. 15, 1975).
But the Court of Appeals in a footnote to its opinion cast substantial
doubt on the correctness of the District Court's comment. See 188 U. S.
App. D. C., at 193 n. 3, 578 F. 2d, at 435 n. 3. It described Hatter as "a
brief unpublished order which recited several other grounds for granting
summary judgment" and which cited no District of Columbia authority,
and it noted that subsequent to the District Court's decision, another judge
of the District of Columbia Superior Court had "filed an elaborate opinion
which concluded to the contrary that in the District a newspaper may be
liable for actual damages suffered by a private person if it negligently publishes
defamation, without actual malice." 188 U. S. App. D. C., at 193
n. 3, 578 F. 2d, at 435 n. 3, citing Phillips v. Evening Star Newspaper Co.,
WOLSTON v. READER'S DIGEST ASSN., INC. 161
157 Opinion of the Court
We granted certiorari, 439 U. S. 1066 (1979), and we now
reverse. We hold that the District Court and the Court of
Appeals were wrong in concluding that petitioner was a public
figure within the meaning of this Court's defamation cases.
Petitioner therefore was not required by the First Amendment
to meet the "actual malice" standard of New York
Times Co. v. Sullivan, supra, in order to recover from
respondents.3
During 1957 and 1958. a special federal grand jury sitting
in New York City conducted a major investigation into the
activities of Soviet intelligence agents in the United States.
As a result of this investigation, petitioner's aunt and uncle,
Myra and Jack Soble, were arrested in January 1957 on
charges of spying. The Sobles later pleaded guilty to espionage
charges, and in the ensuing months, the grand jury's
investigation focused on other participants in a suspected Soviet
espionage ring, resulting in further arrests, convictions, and
Civ. No. 9999-75 (June 30, 1977). We assume that the Court of Appeals
is as familiar as we are with the general principle that dispositive issues of
statutory and local law are to be treated before reaching constitutional
issues. E. g., Dill.ard v. Virginia Industrial Comm'n, 416 U S. 783, 785
(1974); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U. S. 129, 136
(1946); Siler v. Louisville & Na,shville R. Co., 213 U.S. 175, 193 (1909).
We interpret the footnote to the Court of Appeals' opinion in this case,
where jurisdiction is based upon diversity of citizenship, to indicate its
view that Phillips represents a more accurate expression of District of
Columbia law than the dicta from Hatter and that, therefore, the appeal
could not be decided without reaching the constitutional question. See
Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967); King v. Order
of Travelers, 333 U.S. 153, 162 (1948); West v. American Tel. & Tel. Co.,
311 U. S. 223, 236--237 (1940); Washington Times Co. v. Bonner, 66 App.
D. C. 280, 86 F. 2d 836 (1936); Johnson v. Johnson Pub. Co., 271 A. 2d
696 (D. C, App. 1970); Chaloner v. Wa,shington Post Co., 36 App. D. C.
231 (1911).
3 Petitioner also challenges the propriety of summary judgment on the
issue of "actual malice." Brief for Petitioner 21-31. In view of our disposition
of the public-figure issue, we need not and do not reach this question.
See generally Hutchinson v. Proxmire, ante, at 120 n. 9.
162 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
guilty pleas. On the same day the Sobles were arrested, petitioner
was interviewed by agents of the Federal Bureau of
Investigation at his home in the District of Columbia.4 Petitioner
was interviewed several more times during the following
months in both Washington and in New York City and
traveled to New York on various occasions pursuant to grand
jury subpoenas.
On July 1, 1958, however, petitioner failed to respond to a
grand jury subpoena directing him to appear on that date.
Petitioner previously had attempted to persuade law enforcement
authorities not to require him to travel to New York for
interrogation because of his state of mental depression. App.
91 (affidavit of petitioner, June 15, 1976).5 On July 14, a
Federal District Judge issued an order to show cause why petitioner
should not be held in criminal contempt of court.
These events immediately attracted the interest of the news
media, and on July 15 and 16, at least seven news stories
focusing on petitoner's failure to respond to the grand jury
subpoena appeared in New York and Washington newspapers.
Petitioner appeared in court on the return date of the showcause
order and offered to testify before the grand jury, but
4 "Wolston was born in Russia in 1918. He subsequently lived in
Lithuania, Germany, France, and England before coming to the United
States in 1939. The army drafted him in 1942, and during his tour of
duty he became a naturalized citizen; he was trained as an interpreter and
served primarily in Alaska. Aft.er receiving an honorable discharge in
1946 he worked as an interpreter for the United States Military Government
and the State Department in Allied-occupied Berlin. He returned
to the United States in 1951 and worked as a clerk until 1953, when he
enrolled in an undergraduate program at New York University. In 1955
he and his wife moved to Washington, D. C., where he worked several
months for the Army Map Service and then as a free-lance translator
until January 1957. Deposition of Ilya Walston at 5---42." 429 F. Supp.,
at 169 n. 1.
5 Since this case was decided on respondents' motion for 811mm~ry judgment,
we must construe the record most favorably to petitioner. E. g.,
Bishop v. Wood, 426 U.S. 341, 347 n. 11 (1976); United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962).
WOLSTON v. READER'S DIGEST ASSN., INC. 163
157 Opinion of the Court
the offer was refused. A hearing then commenced on the contempt
charges. Petitioner's wife, who then was pregnant,
was called to testify as to petitioner's mental condition at the
time of the return date of the subpoena, but after she became
hysterical on the witness stand, petitioner agreed to plead
guilty to the contempt charge. See App. 92 (affidavit of
petitioner, June 15, 1976). He received a 1-year suspended
sentence and was placed on probation for three years, conditioned
on his cooperation with the grand jury in any further
inquiries regarding Soviet espionage. Ibid. Newspapers also
reported the details of the contempt proceedings and petitioner's
guilty plea. an<l sentencing. In all, during the
6-week period between petitioner's failure to appear before the
grand jury and his senhmcing, 15 stories in newspapers in
Washington and New York mentioned or discussed these
events. This flurry of publicity subsided following petitioner's
sentencing, however, and, thereafter, he succeeded for the
most part in returning to the private life he had led prior to
issuance of the grand jury subpoena. 429 F. Supp., at 174.6
At no time was petitioner indicted for espionage.
In New Yark Times Co. v. Sulliva.n, 376 U. S., at 279-280,
the Court held that the First and Fourteenth Amendments
prohibit a public official from recovering damages for a defamatory
falsehood relating to his official conduct absent proof
that the statement was made with "actual malice," as that
term is defined in that opinion. See also St. Amant v. Thompson,
390 U. S. 727, 731 (1968). Three years later, the Court
6 A short time after these events, petitioner was mentioned in two publications.
In the book :'.\1y Ten Years as a Counterspy, written by Boris
Morros and published in 1959, Morros, a former confederate of Jack
Soble who later became a double agent, states that Soble identified petitioner
as a Soviet agent. App. 30-34. And in 1960, a report prepared by
the Federal Bureau of Investigation, entitled Expose of Soviet Espionage
May 1960, listed petitioner's name among people "the FBI investigation
resulted in identifying as Soviet intelligence agents." S. Doc. No. 114,
86th Cong., 2d Sess., 24, 26-27 (1960).
164 OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
extended the New York Times standard to "public figures."
Curtis Publishing Co. v. Butts, 388 U. S. 130, 162 ( 1967)
(Warren, C. J., concurring in result). But in Gertz v. Robert
Welch, Inc., 418 U. S. 323, 344-347 (1974), we declined to
expand the protection afforded by that standard to defamation
actions brought by private individuals. We explained
in Gertz that the rationale for extending the New York Times
rule to public figures was twofold. First, we recognized that
public figures are less vulnerable to injury from defamatory
statements because of their ability to resort to effective "selfhelp."
They usually enjoy significantly greater access than
private individuals to channels of effective communication,
which enable them through discussion to counter criticism and
expose the falsehood and fallacies of defamatory statements.
418 U.S., at 344; see Curtis Publishing Co. v. Butts, 388 U.S.,
at 155 (plurality opinion); id., at 164 (Warren, C. J., concurring
in result). Second, and more importantly, was a normative
consideration that public figures are less deserving of
protection than private persons because public figures, like
public officials, have "voluntarily exposed themselves to increased
risk of injury from defamatory falsehood concerning
them." 418 U. S., at 345; see Curtis Publishing Co. v. Butts,
supra,. at 164 (Warren, C. J., concurring in result). We
identified two ways in which a person may become a public
figure for purposes of the First Amendment:
"For the most part those who attain this status have assumed
roles of especial prominence in the affairs of
society. Some occupy positions of such persuasive power
and influence that they are deemed public figures for all
purposes. More commonly, those classed as public figures
have thrust themselves to the forefront of particular
public controversies in order to influence the resolution of
the issues involved." 418 U. S., at 345.
See id., at 351; Time, Inc. v. Firestone, 424 U. S. 448, 453
(1976).
WOLSTON v. READER'S DIGEST ASSN., INC. 165
157 Opinion of the Court
Neither respondents nor the lower courts relied on any
claim that petitioner occupied a position of such "persuasive
power and influence" that he could be deemed one of that
small group of individuals \vho are public figures for all purposes.
Petitioner led a thoroughly private existence prior to
the grand jury inquiry and returned to a position of relative
obscurity after his sentencing. He achieved no general fame
or notoriety and assumed no role of special prominence in the
affairs of society as a result of his contempt citation or because
of his involvement in the investigation of Soviet espionage
in 1958. See Time, Inc. v. Firestone, mpra, at 453; Gertz v.
Robert Welch, Inc., supra, at 352.
Instead, respondents argue, and the lower courts held, that
petitioner falls within the second category of public figuresthose
who have "thrust themselves to the forefront of particular
public controversies in order to influence the resolution
of the issues involved"-and that, therefore, petitioner is a
public figure for the limited purpose of comment on his connection
,vith, or involvement in, Soviet espionage in the 1940's
and 1950's. 188 U. S. App. D. C., at 189, 578 F. 2d, at 431;
429 F. Supp., at 174-178. Both lower courts found petitioner's
failure to appear before the grand jury and citation for
contempt determinative of the public-figure issue. The District
Court concluded that by failing to appear before the
grand jury and subjecting himself to a citation for contempt,
petitioner "became involved in a controversy of a decidedly
public nature in a way that invited attention and comment,
and thereby crea.ted in the public an interest in knowing about
his connection with espionage .... " Id., at 177 n. 33. Similarly,
the Court of Appeals stated that by refusing to comply
with the subpoena, petitioner "stepped center front into the
spotlight focused on the investigation of Soviet espionage. In
short, by his voluntary action he invited attention and comment
in connection with the public questions involved in the
investigation of espionage." 188 U. S. App. D. C., at 189,
578 F. 2d, at 431.
166 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
We do not agree with respondents and the lo,ver courts
that petitioner can be classed as such a limited-purpose public
figure.7 First, the undisputed facts do not justify the conclusion
of the District Court and Court of Appeals that petitioner
"voluntarily thrust" or "injected" himself into the
forefront of the public controversy surrounding the investigation
of Soviet espionage in the United States.8 See Time,
Inc. v. Firestone, supra, at 453-454; Gertz v. Robert Welch,
Inc., supra, at 352; Curtis Publishing Co. v. Butts, supra, at
155 (plurality opinion). It would be more accurate to say
that petitioner was dragged unwillingly into the controversy.
The Government pursued him in its investigation. Petitioner
did fail to respond to a grand jury subpoena, and this failure,
as well as his subsequent citation for contempt, did attract
7 Both lower courts found that petitioner became a public figure at the
time of his contempt citation in 1958. See 188 U. S. App. D. C., at 189,
578 F. 2d, at 431; 429 F. Supp., at 176-177. Petitioner argued below that
even if he was once a public figure, the passage of time has restored him to
the status of a private figure for purposes of the First Amendment. Both
the District Court and the Court of Appeals rejected this argument. 188
U. S. App. D. C., at 189, 578 F. 2d, at 431; 429 F. Supp., at 178. And
petitioner has abandoned the argument in this Court. Reply Brief for
Petitioner 5-6, n. 8; Tr. of Oral Arg. 10. Because petitioner does not
press the issue in this Court and because we conclude that petitioner was
not a public figure in 1958, we need not and do not decide whether or
when an individual who was once a public figure may lose that status by
the passage of time.
8 It is difficult to determine with precision the "public controversy" into
which petitioner is alleged to have thrust himself. Certainly, there was no
public controversy or debate in 1958 about the desirability of permitting
Soviet espionagf' in tht> United States; all responsible United States
citizens understandably were and are opposed to it. Respondents urge,
and the Court of Appeals apparently agreed, that the public controversy
involved the propriety of the actions of law enforcement officials in investigating
and prosecuting suspected Soviet agents. 188 U.S. App. D. C., at
189, 578 F. 2d, at 431; Brief for Respondents 26-27; Tr. of Oral Arg.
27-29. We may accept, arguendo, respondents' characterization of the
"public controversy" involved in this case, for it is clear that petitioner
fails to meet the other criteria established in Gertz for public-figure status.
WOLSTON v. READER'S DIGEST ASSN., INC. 167
157 Opinion of the Court
media attention. But the mere fact that petitioner voluntarily
chose not to appear before the grand jury, knowing that
his action might be attended by publicity, is not decisive on
the question of public-figure status. In Gertz, we held that
an attorney was not a public figure even though he voluntarily
associated himself with a case that was certain to receive
extensive media exposure. 418 U.S., at 352. We emphasized
that a court must focus on the "nature and extent of an
individual's participation in the particular controversy giving
rise to the defamation." Ibid. In Gertz, the attorney took
no part in the criminal prosecution, never discussed the litigation
with the press, and limited his participation in the civil
litigation solely to his representation of a private client.
Ibid. Similarly, petitioner never discussed this matter with
the press and limited his involvement to that necessary to
defend himself against the contempt charge. It is clear that
petitioner played only a minor role in whatever public controversy
there may have been concerning the investigation of
Soviet espionage. We decline to hold that his mere citation
for contempt rendered him a public figure for purposes of comment
on the investigation of Soviet espionage.
Petitioner's failure to appear before the grand jury and
citation for contempt no doubt were "newsworthy," but the
simple fact that these events attracted media attention also is
not conclusive of the public-figure issue. A private individual
is not automatically transformed into a public figure
just by becoming involved in or associated with a matter
that attracts public attention. To accept such reasoning
would in effect re-establish the doctrine advanced by the plurality
opinion in Rosenbloom v. Metromedia, Inc., 403 U. S.
29, 44 (1971), which concluded that the New York Times
standard should extend to defamatory falsehoods relating to
private persons if the statements involved matters of public or
general concern. We repudiated this proposition in Gertz
and in Firestone, however, and we reject it again today. A
libel defendant must show more than mere newsworthiness to
168 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
justify application of the demanding burden of New Yark
Times. See Time, Inc. v. Firestone, 424 U.S., at 454.
Nor do we think that petitioner engaged the attention of
the public in an attempt to influence the resolution of the
issues involved. Petitioner assumed no "special prominence
in the resolution of public questions." See Gertz v. Robert
Welch, Inc., 418 U. S., at 351. His failure to respond to the
grand jury's subpoena was in no way calculated to draw attention
to himself in order to invite public comment or influence
the public with respect to any issue. He did not in any way
seek to arouse public sentiment in his favor and against the
investigation. Thus, this is not a case where a defendant
invites a citation for contempt in order to use the contempt
citation as a fulcrum to create public discussion about the
methods being used in connection with an investigation or
prosecution. To the contrary, petitioner's failure to appear
before the grand jury appears simply to have been the result
of his poor health. 429 F. Supp., at 177 n. 33; App. 91-92
(affidavit of petitioner, June 15, 1976). He then promptly
communicated his desire to testify and, when the off er was
rejected, passively accepted his punishment. There is no evidence
that petitioner's failure to appear was intended to have,
or did in fact have, any effect on any issue of public concern.
In short, we find no basis whatsoever for concluding that petitioner
relinquished, to any degree, his interest in the protection
of his own name.
This reasoning leads us to reject the further contention of
respondents that any person who engages in criminal conduct
automatically becomes a public figure for purposes of comment
on a limited range of issues relating to his conviction.
Brief for Respondents 24; Tr. of Oral Arg. 15, 17. We
declined to accept a similar argument in Time, Inc. v. Firestone,
supra, at 457, where ,ve said:
"[WJhile participants in some litigation may be legitimate
'public figures,' either generally or for the limited
157
WOLSTON v. READER'S DIGEST ASSN., INC. 169
BLACKMUN, J., concurring in result
purpose of that litigation, the majority will more likely
resemble respondent, drawn into a public forum largely
against their will in order to attempt to obtain the only
redress available to them or to defend themselves against
actions brought by the State or by others. There appears
little reason why these individuals should substantially
forfeit that degree of protection which the law of defamation
would otherwise afford them simply by virtue of their
being drawn into a courtroom. The public interest in
accurate reports of judicial proceedings is substantially
protected by Cox Broadcasting Co. [v. Cohn, 420 U. S.
469 (1975)]. As to inaccurate and defamatory reports
of facts, matters deserving no First Amendment protection
. . . , we think Gertz provides an adequate safeguard
for the constitutionally protected interests of the
press and affords it a tolerable margin for error by requiring
some type of fault."
We think that these observations remain sound, and that they
control the disposition of this case. To hold otherwise would
create an "open season" for all who sought to defame persons
convicted of a crime.
Accordingly, the judgment of the Court of Appeals is
Reversed.
MR. JusTICE BLACKMUN, with whom MR. JUSTICE MARSHALL
joins, concurring in the result.
I agree that petitioner is not a "public figure" for purposes
of this case. The Court reaches this conclusion by reasoning
that a prospective public figure must enter a controversy "in
an attempt to influence the resolution of the issues involved,"
ante, a.t 168, and that petitioner failed to act in that manner
purposefully here. The Court seems to hold, in other words,
that a person becomes a limited-issue public figure only if he
literally or figuratively "mounts a rostrum" to advocate a
particular view.
170 OCTOBER TERM, 1978
BLACKMUN, J., concurring in result 443 u. s.
I see no need to adopt so restrictive a definition of "public
figure" on the facts before us. Assuming, arguendo, that
petitioner gained public-figure status when he became involved
in the espionage controversy in 1958, he clearly had
lost that distinction by the time respondents published
KGB in 1974. Because I believe that the lapse of the intervening
16 years renders consideration of this petitioner's
original public-figure status unnecessary, I concur only in the
result.*
In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), this
Court held that a person may become a public figure for a
limited range of issues if he "voluntarily injects himself or is
drawn into a particular public controversy." Id., at 351.
Such a person, the Court reasoned, resembles a public official
in that he typically enjoys "significantly greater access to the
channels of effective communication" and knowingly "runs
the risk of closer public scrutiny" than would have been true
had he remained in private life. Id., at 344. The passage of
time, I believe, of ten will be relevant in deciding whether a
person possesses these two public-figure characteristics. First,
a lapse of years between a controversial event and a libelous
utterance may diminish the defamed party's access to the
means of counterargument. At the height of the publicity
*The Court notes, ante, at 166 n. 7, that petitioner at oral argument here
disclaimed the contention that the passage of time had restored him to
private status, electing to place all his eggs in the more expa.nsive basket
that forms the framework of the Court's opinion. Petitioner proffered
this contention in both the District Court and the Court of Appeals, however,
and both courts expressly considered it. 429 F. Supp. 167, 178
(1977); 188 U.S. App. D. C. 185,189,578 F. 2d 427,431 (1978). Under
these circumstances, petitioner's tactical decision does not foreclose the
"passage of time" rationale as a ratio decidendi. Indeed, petitioner makes
the related argument that, if he should be deemed a public figure, the passage
of time would be relevant in determining whether respondents' failure
to investigato amounted in this case to "actual malice." Reply Brief for
Petitioner 5-6, n. 8; Tr. of Oral Arg. 10-12.
WOLSTON v. READER'S DIGEST ASSN., INC. 171
157 BLACKMUN, J ., concurring in result
surrounding the espionage controversy here, petitioner may
well have had sufficient access to the media effectively to rebut
a charge that he was a Soviet spy. It would strain credulity
to suggest that petitioner could have commanded such media
interest when respondents published their book in 1974. Second,
the passage of time may diminish the "risk of public
scrutiny" that a putative public figure may fairly be said to
have assumed. In ignoring the grand jury subpoena in
1958, petitioner may have anticipated that his conduct would
invite critical commentary from the press. Following the
contempt citation, however, petitioner "succeeded for the
most part in returning to ... private life." Ante, at 163. Any
inference that petitioner "assumed the risk" of public scrutiny
in 1958 assuredly is negated by his conscious efforts to regain
anonymity during the succeeding 16 years.
This analysis implies, of course, that one may be a public
figure for purposes of contemporaneous reporting o.f a controversial
event, yet not be a public figure for purposes of
historical commentary on the same occurrence. Historians,
consequently, may well run a greater risk of liability for defamation.
Yet this result, in my view, does no violence to
First Amendment values. While historical analysis is no less
vital to the marketplace of ideas than reporting current
events, historians work under different conditions than do
their media counterparts. A reporter trying to meet a deadline
may find it totally impossible to check thoroughly the
accuracy of his sources. A historian writing sub specie aeternitatis
has both the time for reflection and the opportunity to
investigate the veracity of the pronouncements he makes.
For these reasons, I conclude that the lapse of 16 years between
petitioner's participation in the espionage controversy
and respondents' defamatory reference to it was sufficient to
erase whatever public-figure attributes petitioner once may
have possessed. Because petitioner clearly was a private
172 OCTOBER TERM, 1978
BRENNAN, J., dissenting 443 U.S.
individual in 1974, I see no need to decide the more difficult
question whether he was a public figure in 1958.
MR. JusTICE BRENNAN, dissenting.
I dissent. I agree with the holding of the District Court,
429 F. Supp. 167, 176 ( 1977), affirmed by the Court of Appeals,
188 U. S. App. D. C. 185, 189, 578 F. 2d 427, 431 ( 1978),
that petitioner qualified "as a public figure for the limited purpose
of comment on his connection with, or involvement in,
espionage in the 1940's and '50's." I further agree with the
holding of the District Court, 429 F. Supp., at 178, affirmed by
the Court of Appeals, 188 U. S. App. D. C., at 189, 578 F. 2d,
at 431, that petitioner also qualified as a public figure in 1974.
That conclusion follows, in my view, for the reasons stated by
the Court of Appeals, ibid., 578 F. 2d, at 431: "The issue
of Soviet espionage in 1958 and of Wolston's involvement in
that operation continues to be a legitimate topic of debate
today, for that matter concerns the security of the United
States. The mere lapse of time is not decisive."
I disagree, however, with the holding of the District Court,
affirmed by the Court of Appeals, that respondent Barron was
entitled to summary judgment. In my view the evidence
raised a genuine issue of fact respecting the existence of actual
malice on his part. I would therefore reverse the judgment
of the Court of Appeals and remand to the District Court for
trial of that issue.
LEROY v. GREAT WESTERN UNITED CORP. 173
Syllabus
LEROY, ATTORNEY GENERAL OF IDAHO, ET AL. v.
GREAT WESTERN UNITED CORP.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
No. 78-759. Argued April 17, 1979-Decided June 26, 1979
After publicly announcing its intent to make a tender offer to purchase
shares of stock of a company having substantial assets in Idaho, appellee,
a Texas-based corporation which is also engaged in business in New
York and Maryland, filed the informational schedule with the Securities
and Exchange Commission required by the Securities Exchange Act of
1934 (1934 Act), as amended by the Williams Act, and also filed documents
in Idaho in an attempt to satisfy that State's takeover statute.
When Idaho officials objected to the filing and delayed the effective
date of the tender offer, appellee brought an action in the Federal District
Court for the Northern District of Texas against the officials responsible
for enforcing Idaho's takeover law, seeking a declaration that
the state law was invalid insofar as it purported to apply to interstate
tender offers to purchase securities traded on a national exchange. The
District Court held that personal jurisdiction over the Idaho defendants
had been obtained under the Texas long-arm statute, and that venue
could be sustained under the special venue provision in § 27 of the 1934
Act giving federal district courts exclusive jurisdiction of actions brought
to enforce "any liability or duty created" by the Act. The court then
went on to hold that the Idaho takeover statute was pre-empted by
the Williams Act and placed an impermissible burden on interstate commerce.
The Court of Appeals affirmed, holding, inter alia, that venue
was authorized by § 27 of t-he 1934 Act, because Idaho's enforcement
attempt, by conflicting with the Williams Act, constituted a violation of
a "duty" imposed by § 28 (a) of the 1934 Act (which provides that nothing
in the Act shall affect a state securities regulatory agency's jurisdiction
over any security or person insofar as it does not conflict with the
Act), and that venue was also proper under 28 U. S. C. § 1391 (b)
(which permits actions not founded solely on diversity of citizenship to
be brought in the district where all defendants reside or "in which the
claim arose") because the allegedly invalid restraint against appellee
occurred in the Northern District of Texas and that was accordingly
the district "in which the claim arose."
174
Held:
OCTOBER TERM, 1978
Syllabus 443 u. s.
1. There is a sound prudential justification in this case for reversing
t,he normal order of considering personal jurisdiction in advance of venue,
since otherwise this Court would have to decide a constitutional law
question not previously decided as to whether personal jurisdiction was
properly obtained under the Texas long-arm statute. Pp. 180-181.
2. Venue was improper under § 27 of the 1934 Act because § 28 (a) of
that Act imposed no duty on the Idaho officials. Pp. 181-182.
3. Nor was venue available in the Northern District of Texas under
28 U.S. C. § 1391 (b). The District of Idaho, where the actions forming
the basis for appcllee's claim took place, is the only one in which
"the claim arose" within the meaning of § 1391 (b). Pp. 183-187.
577 F. 2d 1256, reversed.
STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J.,
and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE,
J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ.,
joined, post, p. 187.
Peter E. H e-iser, Jr., Special Deputy Attorney General of
Idaho, argued the cause and filed briefs for appellant<,.
Ivan Irwin, Jr., argued the cause for appellee. With him
on the brief were A. B. Conant, Jr., and James William Moore.
Amy Juviler, Assistant Attorney General, argued the cause
for the State of New York et al. as amici curiae urging reversal.
With her on the brief were Robert Abrams, Attorney General,
and Shirley Adelson Siegel, Solicitor General.
Deputy Solicitor General Easterbrook argued the cause for
the Securities and Exchange Commission as amicus curiae
urging affirmance. With him on the brief were Solicitor General
McCree, Elinor Hadley Stillman, and Ralph C. Ferrara.*
*Briefs of amici curiae urging reversal were filed by George Deukmejian,
Attorney General of California, Arthur C. DeGoede, Assistant Attorney
General, and Philip C. Griffin and Ronald V. Thunen, Jr., Deputy Attorneys
General; Michael T. Greely, Attorney General of Montana; Rufus L.
Edmisten, Attorney General of North Carolina, and Rudolph A. Ashton Ill,
Assistant Attorney General; and N. Jerome Diamond, Attorney General of
Vermont, for the States of California et al.; by Theodore L. Sendak, AtLEROY
v. GREAT WESTERN UNITED CORP. 175
173 Opinion of the Court
MR. JUSTICE STEVENS delivered the opinion of the Court.
An Idaho statute imposes restrictions on certain purchasers
of stock in corporations having substantial assets in Idaho.
The questions presented by this appeal are whether the state
agents responsible for enforcing the statute may be required
to defend its constitutionality in a Federal District Court in
Texas and, if so, whether the statute conflicts with the
Williams Act amendments to the Securities Exchange Act of
1934,1 or with the Commerce Clause of the United States
Constitution.2
Sunshine Mining and Metal Co. (Sunshine) is a "target
company" within the meaning of the Idaho Corporate Takeover
Act-a statute designed to regulate takeovers of corporations
that have certain connections to the State.3 Sunshine's
principal business is a silver mining operation in the Coeur
torney General, WiUiam G. Mundy, Assistant Attorney General, and
Donald P. Bogard for the State of Indiana; by FranC'is X. Bellotti, Attorney
General, and William M. O'Brien, Special Assistant Attorney General,
for the Commonwealth of Massachusetts; by William J. Brown, Attorney
General, and Dcrrwld A. Antrim, Special Assistant Attorney General,
for the State of Ohio; by Robert B. Hansen, Attorney General, Michael L.
Deamer, Chief Deputy Attorney General, and Donald B. Holbrook for the
State of Utah; and by Jon S. Hanson and Richard A. Hemmings for the
National Association of Insurance Commissioners.
1 82 Stat. 454; see 15 U. S. C. §§ 78m (d), 78m (e), 78n (d)-78n (f).
2 "The Congress shall have Power . . . To regulate Commerce with
foreign Nations, and among the several States, and with the Indian
Tribes .... " U. S. Const., Art. I, § 8.
3 Chapter 15 of Title 30 of the Idaho Code is entitled "Corporate Takeovers."
Its opening provision contains the following definition:
"'Target company' means a corporation or other issuer of securities
which is organized under the laws of this state or has its principal office in
this state, which has substantial assets located in thi,s state, whose equity
securities of any class are or have been registered under chapter 14, title 30,
Idaho Code, or predecessor laws or section 12 of the Securities Exchange
Act of 1934, and which is or may be involved in a take-over offer relating
to any class of its equity securities." Idaho Code § 30-1501 (6) (Supp.
1979) ( emphasis added).
176 OCTOBER TERM, 1978
Opinion of the Court 443U. S.
d'Alene Mining District in Idaho. Its executive offices and
most of its assets are located in the State. Sunshine is also
engaged in business in New York and, through a subsidiary,
in Maryland. Its stock is traded over the New York Stock
Exchange, and its shareholders are dispersed throughout the
country. App. 36. It is a Washington corporation. Great
Western United Corp. v. Kidwell, 439 F. Supp. 420, 423-424.
Great Western United Corp. (Great Western) is an
"offeror" within the meaning of the Idaho statute! Great
Western is a publicly owned Delaware corporation with executive
headquarters in Dallas, Tex., and corporate offices in
Denver, Colo. App. 131. In early 1977, Great Western decided
to make a public off er to purchase 2 million shares of
Sunshine stock for a premium price. Because consummation
of the proposed tender off er would cause Great Western to
own more than 5% of Sunshine's outstanding shares, Great
Western was required to comply with certain provisions of the
Williams Act and arguably also to comply with the Idaho
Corporate Takeover Act as well as with similar provisions of
New York and Maryland.
On March 21, 1977, Great Western publicly announced its
intent to make a tender offer for 2 million shares of Sunshine,
and its representatives took simultaneous steps to implement
the proposed tender offer. They filed a Schedule 13D with the
Securities and Exchange Commission in Washington, D. C.,
4 " 'Offerer' means a person who makes or in any way participates in
making a take-over offer, and includes all affiliates and associates of that
person, and all persons acting jointly or in concert for the purpose of acquiring,
holding or disposing of or exercising any voting rights attached to
the equity securities for which a take-over offer is made.
" 'Take-over offer' means the offer to acquire or the acquisition of any
equity security of a target company, pursuant to a tender offer or request
or invitation for tenders, if after the acquisition thereof the offeror would
be directly or indirectly a beneficial owner of more than five per cent
(5%) of any class of the outstanding equity securities of the issuer."
§§3(}-1501 (3), (5) (Supp. 1979).
LEROY v. GREAT WESTERN UNITED CORP. 177
173 Opinion of the Court
disclosing the information required by the Williams Act. They
consulted with state officials in Idaho, New York, and Maryland
about compliance with the corporate takeover laws of
those States. And they filed documents with the Idaho
Director of Finance in an attempt to satisfy Idaho's statute.
On March 25, 1977, Melvin Baptie, who was then the
Deputy Administrator of Securities of the Idaho Department
of Finance, sent a telecopy letter of objections to Great Westem's
filing to the company's offices in Dallas. The letter
stated that certain pages of Great Western's SEC Form 13D
were missing, asked for several a.dditional items of information,
and indicated that no hearing would be scheduled, nor
other action taken, until all of the requested information had
been received. App. to Juris. Statement A-156 to A-164.
On the same day, Tom McEldowney, the Director of Finance
of Idaho, entered an order delaying the effective date of the
tender offer. Id., at A-165 to A-166. Great Western made
no response to Baptie's letter or to McEldowney's order.
On March 28, 1977, Great Western filed this action in the
United States District Court for the Northern District of
Texas1 naming as defendants the state officials responsible for
enforcing the Idaho, New York, and Maryland takeover laws.
The complaint prayed for a declaration that the state laws
were invalid insofar as they purported to apply to interstate
cash tender offers to purchase securities traded on the national
exchange. App. 1-36. The claims against the Maryland
and New York defendants were dismissed because the former
did not attempt to enforce their statute against Great Western
and the latt{)r expressly stated that they would not assert
jurisdiction over the propo~ed tender offer. 439 F. Supp., at
428-429. The two Idaho defendants-McEldowney, the Director
of Finance, and Wayne Kidwell, then Attorney General
of the State 5-appeared specially to contest jurisdiction and
5 Baptie, who wrote the letter of comment on March 25, 1977, was not
named as a defendant. David H. Leroy has now replaced Kidwell as
Attorney General of the State.
178 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
venue, and later filed an answer contesting the merits of the
claim.
The District Court found four separate statutory bases for
federal jurisdiction.6 It held that personal jurisdiction over
the Idaho defendants had been obtained by service pursuant
to the Texas long-arm statute.7 It concluded, however, that
venue was improper under the general federal venue statute,
28 U.S. C. § 1391 (b),5 because the defendants obviously did
not reside in Texas and the claim arose in Idaho rather than in
Texas. Nonetheless, it decided that venue could be sustained
under the special venue provision in § 27 of the Securities
Exchange Act of 1934 (1934 Act). 48 Stat. 902, as amended,
15 U. S. C. § 78aa. See nn. 9 and 10, infra, and accompanying
text.
On the merits, the District Court held that the Idaho Corporate
Takeover Act is pre-empted by the Williams Act and
places an impermissible burden on interstate commerce. It
granted injunctive relief that enabled Great Western to acquire
the desired Sunshine shares in the fall of 1977. 439 F.
Supp., at 434-440. That acquisition did not moot the case,
however, because the question whether Great Western has
violated Idaho's statute will remain open unless and until the
District Court's judgment is finally affirmed.
A divided panel of the Court of Appeals for the Fifth Circuit
affirmed. The court sustained federal subject-matter
6 "The Court has subject matter jurisdiction over this case on four
bases: 28 U. S. C. § 1331 (general federal question), 28 U. S. C. § 1332
(diversity), 28 U. S. C. § 1337 (acts affecting commerce) and Section 27
of the [Securities Exchange Act of 1934, 15 U. S. C. § 78aa] ." 439 F.
Supp., at 430.
7 Tex. Rev. Civ. Stat. Ann., Art. 2031b (Vernon 1964).
8 Section 1391 (b) provides:
"A civil action wherein jurisdirtion is not founded solely on diversity
of citizenship may be brought only in the judicial district where all defendants
reside, or in which the claim arose, except as otherwise provided
by law."
LEROY v. GREAT WESTERN UNITED CORP. 179
173 Opinion of the Court
jurisdiction on the same four grounds relied upon by the District
Court. See n. 6, supra. It then advanced alternative
theories in support of both its determination that the District
Court had personal jurisdiction over the defendants and its
conclusion that venue lay in the Northern District of Texas.
First, it noted that the Texas long-arm statute authorized the
assertion of personal jurisdiction over nonresidents to the
fullest extent allowable under the Due Process Clause of the
Fourteenth Amendment. It then held that an Idaho official
who seeks to enforce an Idaho statute to prevent a Texasbased
corporation from proceeding with a national tender offer
has sufficient contacts with Texas to support jurisdiction.
Second, it held that jurisdiction was available under § 27 of
the 1934 Act,9 which gives the federal district courts exclusive
jurisdiction over suits brought "to enforce any ... duty
created" by the Act. It based this holding on the theory that
Idaho's enforcement attempts, by conflicting with the Williams
Act, constituted a violation of a "duty" imposed by § 28
(a) of the 1934 Act.1° It relied on the same reasoning to sup-
9 "The district courts of the United States ... shall have exclusive
jurisdiction of violations of this chapter or the rules and regulations thereunder,
and of all suits in equity or actions at law brought to enforce any
liability or duty created by this chapter or the rules and regulations thereunder.
Any ~rimim.l proceeding may be brought in the district wherein
any act or transaction constituting the violation occurred. Any suit or
action to enforce any liability or duty created by this chapter or rules
and regulations thereunder, or to enjoin any violation of such chapter
or rules and regulations, may be brought in any such district or in the
district wherein the defendant is found or is an inhabitant or transacts
business, and process in such cases may be served in any other district of
which the defendant is an inhabitant or wherever the defendant may be
found .... " 15 U. S. C. § 78aa.
10 Section 28 (a), as set forth in 15 U. S. C. § 78bb (a), provides in pertinent
part:
"Nothing 'in this chapter shall affect the jurisdiction of the securities commission
(or any agency or officer performing like functions) of any State
over any security or any person insofar as it does not conflict with the
provisions of this chapter or the rules and regulations thereunder."
I
i i
II
II
Ii
11
I,
'
i
'
180 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
port its conclusion that venue was authorized by § 27 of the
1934 Act. Finally, disagreeing with the District Court, the
Court of Appeals concluded that venue in the Northern District
of Texas was also proper under the general federal venue
provision, 28 U. S. C. § 1391 (b), because the allegedly invalid
restraint against Great Western occurred there and it was
accordingly "the judicial district ... in which the claim
arose." Great Western United Corp. v. Kidwell, 577 F. 2d
1256, 1265-1274. On the merits, the Court of Appeals agreed
with the analysis of the District Court. Id., at 1274-1287.
We noted probable jurisdiction of the appeal. 439 U. S.
1065. Without reaching either the merits or the constitutional
question arising out of the attempt to assert personal
jurisdiction over appellants, we now reverse because venue did
not lie in the Northern District of Texas.
I
The question of personal jurisdiction, which goes to the
court's power to exercise control over the parties, is typically
decided in advance of venue, which is primarily a matter of
choosing a convenient forum. See generally C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure § 3801,
pp. 5-6 (1976) (hereinafter Wright, Miller, & Cooper).
On the other hand, neither personal jurisdiction nor venue is
fundamentally preliminary in the sense that subject-matter
jurisdiction is, for both are personal privileges of the defendant,
rather than absolute strictures on the court, and both may
be waived by the parties. See Olberding v. Illinois Central R.
Co., 346 U. S. 338, 340; Neirbo Co. v. Bethlehem Corp., 308
U. S. 165, 167-168. Accordingly, when there is a sound prudential
justification for doing so, we conclude that a court may
reverse the normal order of considering personal jurisdiction
and venue.
Such a justification exists in this case. Although for the
reasons discussed in Part II, infra, it is clear that § 27 of the
1934 Act does not provide a basis for personal jurisdiction, the
LEROY v. GREAT WESTERN UNITED CORP. 181
173 Opinion of the Court
question whether personal jurisdiction was properly obtained
pursuant to the Texas long-arm statute is more difficult. Indeed,
because the Texas Supreme Court has construed its
statute as authorizing the exercise of jurisdiction over nonresidents
to the fullest extent permitted by the United States
Constitution,11 resolution of this question would require the
Court to decide a question of constitutional law that it has
not heretofore decided. As a prudential matter it is our practice
to avoid the unnecessary decision of novel constitutional
questions. We find it appropriate to pretermit the constitutional
issue in this case because it is so clear that venue was
improper either under § 27 of the 1934 Act or under § 1391 (b)
of the Judicial Code.
II
The linchpin of Great Western's argument that venue is
provided by § 27 of the 1934 Act is its interpretation of
§ 28 (a) of that Act. See nn. 9, 10, supra. It reads § 28 (a)
as imposing an affirmative "duty" on the State of Idaho, the
violation of which may be redressed in the federal courts
under § 27. As Mr. Justice Frankfurter said of a similar
argument in a similar case, however, "[t]his is a horse soon
curried." Olberding, supra, at 340.
The reference in § 27 to the "liabilit[ies] or dut[ies] created
by this chapter" clearly corresponds to the various provisions
in the 1934 Act that explicitly establish duties for certain participants
in the securities market or that subject such persons
11 E. g., U-Anchor Advertising, Inc. v. Burt, 553 S. W. 2d 760 (Tex.
1977). Appellants argue that this construction is only applicable to private
commercial defendants and should not govern either in a suit against
the agents of another sovereign State or in one against persons who are not
engaged in commercial endeavors. Both the District Court and the Court
of Appeals, however, have concluded that the statute does extend to the
limits of the Due Process Clause in this case, and it is not our practice
to re-examine state-law determinations of this kind. E. g., Butner v.
United States, 440 U. S. 48, 57- 58; Bishop v. Wood, 426 U. S. 341, 345-
346, and n. 8; Propper v. Clark, 337 U.S. 472, 486-487.
182 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
to possible actions brought by the Government, the Securities
and Exchange Commission, or private litigants.12 Section 28
(a) is not such a provision. There is nothing in its text or its
legislative history to suggest that it imposes any duty on the
States or that indicates who might enforce any such duty.
The section was plainly intended to protect, rather than to
limit, state authority.13 Because § 28 (a) imposed no duty on
appellants, the argument that § 27 establishes venue in the
District Court is unsupportable.14
12 E. g., § 14 (a) of the 1934 Act, 15 U. S. C. § 78n (a) ("It shall be
unlawful for any person . . . to solicit any proxy . . . in contravention
of such rules and regulations as the Commission may prescribe . . .")
(emphasis added); § 16 (b), 15 U. S. C. § 78p (b) ("For the purpose of
preventing the unfair use of information which may have been obtained by
[the] beneficial owner [of 10% of any class of equity security], director,
or officer by reason of his relationship to the issuer, any profit realized by
him from any purchase and sale, or any sale and purchase, of any equity
security of such issuer ( other than an exempted security) within any period
of less than six months, unless such security was acquired in good
faith in connection with a debt previously contracted, shall inure to and
be recoverable by the ~suer ... ") (emphasis added); § 17 (a) (1), as set
forth in 15 U. S. C. § 78q {a) (1) ("Every national securities exchange,
member thereof, broker or dealer who transacts a business in securities
through the medium of any such member, registered securities association,
registered broker or dealer, registered municipal securities dealer, registered
securities information processor, registered transfer a.gent, and registered
clearing agency . . . shaU make and keep . . . such records . . . and
make ... such reports as the Commission, by rule, prescribes ... ")
( emphasis added).
13 Thomas Corcoran, a principal draftsman of the 1934 Act, indicated
to Congress that the purpose of § 28 (a) was to leave the States with as
much leeway to regulate securities transactions as the Supremacy Clause
would allow them in the absence of such a provision. Hearings on S. Res.
84 (72d Cong.), 56, and 97 (73d Cong.) before the Senate Committee
on Banking and Currency, 73d Cong., 1st Sess., 6577 (1934). In particular,
the provision was designed to save state blue-sky laws from preemption.
See ibid.
14 When one considers the straightforward language of §§ 27 and 28 (a),
it is difficult to regard MR. JusTrCE WHITE'S ingenuous and intricate arguLEROY
v. GREAT WESTERN UNITED CORP. 183
173 Opinion of the Court
III
Nor, as the District Court correctly concluded, is venue
available under § 1391 (b). The first test of venue under that
provision-the residence of the defendants-obviously points
to Idaho rather than Texas. The Court of Appeals reasoned,
however, under the second relevant test that the claim arose
in Dallas because that is the place where the Idaho officials
"invalidly prevented Great Western from initiating a tender
offer for Sunshine." 577 F. 2d, at 1273.15 The court buttressed
its conclusion by noting that a single action against
the officials of New York, Maryland, and Idaho could not
have been instituted in any one place unless the claim was
treated as having arisen in Dallas. Ibid.
The easiest answer to this latter argument is that Great
West.em's complaint did not in fact raise justiciable claims
against any officials save those in Idaho. But that is not the
only answer. Although the legal issues raised in the complaint
challenging the constitutionality of the statutes of three
different States were similar, and the convenience of Great
Western would obviously be served by consolidating the three
claims for trial in one district, the general venue statute does
not authorize the plaintiff to rely on either of those reasons
to justify its choice of forum.
In most instances, the purpose of statutorily specified venue
ment as a realistic reflection of the actual intent of the legislators who
enacted these provisions.
Nor is the breadth of the venue created by § 27, see post, at 188-189,
citing Ritter v. Zwpan, 451 F. Supp. 926, 928 (ED Mich. 1978), a sufficient
reason for assuming that that section, rather than some narrower venue
provision, applies whenever a suit involves the 1934 Act. See Radzanower
v. Touche Ross & Co., 426 U. S. 148.
15 The Court of Appeals properly concluded that the determination of
where "the claim arose" for purposes of federal venue under § 1391 is a
federal question whose answer depends on federal law. See cases cited
in 1 J. Moore, Federal Practice "f 0.142 [5.-2], pp. 1429- 1430 (1979);
Wright, Miller, & Cooper § 3803, pp. 1(}-13.
184 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
is to protect the defendant against the risk that a plaintiff will
select an unfair or inconvenient place of trial.1 ° For that
reason, Congress has generally not made the residence of the
plaintiff a basis for venue in nondiversity cases. But cf. 28
U. S. C. § 1391 (e). The desirability of consolidating similar
claims in a single proceeding may lead defendants, such perhaps
as the New York and Maryland officials in this case, to
waive valid objections to otherwise improper venue. But
that concern does not justify reading the statute to give the
plaintiff the right to select the place of trial that best suits his
convenience. So long as the plain language of the statute
does not open the severe type of "venue gap" that the amendment
giving plaintiffs the right to proceed in the district where
the claim arose was designed to close,11 there is no reason to
read it more broadly on behalf of plaintiffs.18
Moreover, the plain language of § 1391 (b) will not bear
the Court of Appeals' interpretation. The statute allows
venue in "the judicial district ... in which the claim arose."
Without deciding whether this language adopts the occa-
16 Seo Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 493-
494; Denver & R. G. W.R. Co. v. Railroad Trainmen, 387 U.S. 556,560;
Neirbo Co. v. Bethlehem Corp., 308 U.S. 165,168; Reuben H. Donnelley
Corp. v. FTC, 580 F. 2d 264, 269 (CA7 1978).
17 See Brunette Machine Works v. Kockum Industries, 406 U. S. 706,
710, and n. 8. As Brunette indicates, the amendment of § 1391 to provide
for venue where the claim arose was designed to close the "venue gaps"
that existed under earlier versions of the statute in situations in which
joint tortfeasors, or other multiple defendants who contributed to a single
injurious act, could not be sued jointly because they resided in different
district.s. 406 U. S., at 710 n. 8. In this case, by contrast, Great Western
has att,empted to join in one suit three separate claims-each challenging a
different statute-against three sets of defendants from three States. The
statute simply does not contemplate such a choice on the part of plaintiffs.
18 "The requirement of venue is specific and unambiguous; it is not one
of those vague principles which, in the interest of some overriding policy,
is to be given a 'liberal' construction." Olberding v. Illinois Central, R.
Co., 346 U. S. 338, 340.
LEROY v. GREAT WESTERN UNITED CORP. 185
173 Opinion of the Court
sionally fictive assumption that a claim may arise in only one
district,19 it is absolutely clear that Congress did not intend to
provide for venue at the residence of the plaintiff or to give
that party an unfettered choice among a host of different districts.
Denver & R. G. W.R. Co. v. Railroad Trainmen, 387
U. S. 556, 560. Rather, it restricted venue either to the residence
of the defendants or to "a place which may be more
convenient to the litigants"-i. e., both of them-"or to the
witnesses who are to testify in the case." S. Rep. No. 1752,
89th Cong., 2d Sess., 3 (1966). See Denver & R. G. W. R.
Co., supra, at 560. See also Brunette Machine Works v.
Kockum Industries, 406 U. S. 706, 710. In our view, therefore,
the broadest interpretation of the language of § 1391 (b)
that is even arguably acceptable is that in the unusual case in
which it is not clear that the claim arose in only one specific
district,2° a plaintiff may choose between those two ( or conceivably
even more) districts that with approximately equal
plausibility-in terms of the availability of witnesses, the
accessibility of other relevant evidence, and the convenience
of the defendant (but not of the plaintiff)-may be assigned
as the locus of the claim. Cf. Braden v. 30th Judicial Circuit
Court of Ky., 410 U. S. 484, 493-494.
This case is not, however, unusual. For the claim involved
has only one obvious locus- the District of Idaho. Most importantly,
it is action that was taken in Idaho by Idaho residents-
the enactment of the statute by the legislature, the
review of Great West-em's filing, the forwarding of the comment
letter by Deputy Administrator Baptie, and the entry
of the order postponing the effective date of the tender
by Finance Director McEldowney-as well as the future action
that may be taken in the State by its officials to punish
19 The two sides of this question, and the cases supporting each, are
discussed in 1 Moore, supra n. 15, at if 0.142 [5.-2], pp. 1426-1435; Wright,
Miller, & Cooper § 3806, pp. 28-34.
20 See ALI, Study of Division of Jurisdiction Between State and Federal
Courts, Commen,ary 136-137 (1969).
186 OCTOBER TERM, 1978
Opinion of the Court 443U. S.
or to remedy any violation of its law, that provides the basis
for Great Western's federal claim. For this reason, the bulk
of the relevant evidence and witnesses-apart from employees
of the plaintiff, and securities experts who come from all over
the United States 21-is also located in the State. Less important,
but nonetheless relevant, the nature of this action challenging
the constitutionality of a state statute makes venue in
the District of Idaho appropriate. The merits of Great West--
em's claims may well depend on a proper interpretation of the
State's statute, and federal judges sitting in Idaho are better
qualified to construe Idaho law, and to assess the character of
Idaho's probable enforcement of that law, than are judges
sitting elsewhere. See cases cited in n. 11, su:pra.
We therefore reject the Court of Appeals' reasoning that
the "claim arose" in Dallas because that is where Great Western
proposed to initiate its t€nder offer, and that is where
Idaho's statute had its impact on Great Western. Aside from
the fact that these "contacts" between the "claim" and the
Texas District fall far short of those connecting the claim and
the Idaho District, we note that this reasoning would subject
the Idaho officials to suit in almost every district in the country.
For every prospective offeree-be he in New York, Los
Angeles, Miami, or elsewhere, rather than in Dallas-could
argue with equal force ( or Great Western could argue on his
behalf) that he had intended to direct his local broker to
accept the tender and was frustrated in that desire by the
Idaho law.22 As we noted above, however, such a reading of
§ 1391 (b) is inconsistent with the underlying purpose of the
provision, for it would leave the venue decision entirely in the
hands of plaintiffs, rather than making it uprimarily a matter
21 At the trial held in the Northern District of Texas, the witness roster,
in addition to various Idaho officials and Great Western employees from
Dallas, mainly included experts from the New York area as well as one
each from California, Maryland, Texas, and Wisconsin. App. 100-292.
22 Sunshine's shareholders are located in 49 States as well as the District
of Columbia and Puerto Rico. Id., at 36.
LEROY v. GREAT WESTERN UNITED CORP. 187
173 WHITE, J., dissenting
of convenience of litigants and witnesses." Denver &
R. G. W. R. Co., supra, at 560.23 In short, the District of
Idaho is the only one in which "the claim arose" within the
meaning of § 1391 (b).
The judgment of the Court of Appeals is reversed.
It is so ordered.
MR. JusTICE WHITE, with whom MR. JUSTICE BRENNAN
and MR. JUSTICE MARSHALL join, dissenting.
When Great W est'ern proposed in Dallas, Tex., to make a
cash tender offer for up to two million shares of Sunshine,
officials in Idaho, Maryland, and New York indicated that the
offer would be subject to the corporate takeover statute of
each State. Having complied with the provisions of the Williams
Act governing tender offers and believing that extraterritorial
application of the additional requirements of the state
statutes was pre-empted by and in conflict with the federal
statute, Great Western brought suit in Federal District Court
for the Northern District of Texas for declaratory and injunctive
relief against enforcement of the state statutes. Because
I conclude that venue in that District and personal jurisdiction
over the defendant state officials were authorized by § 27 of
the Securities Exchange Act of 1934, 15 U. S. C. § 78aa, I
disagree with the Court's disposition of this appeal and would
reach the merits of Great Western's contention that Idaho's
statute is pre-empted by the Williams Act.
I
The Williams Act was enacted m the form of a set of
amendments to the Securities Exchange Act, which, like the
23 In Denver & R. G. W. R. Co., the Court concluded that the drafters
of § 1391 (b) did not intend to provide venue in suits a.ga.inst unincorporated
associations in every district in which a member of the association
resided. To do so, it noted, would give the plaintiff an unrestrained choice
of venues and would accordingly be "patently unfair" to the defendant.
387 U.S., at 560. A like reasoning is controlling here.
188 OCTOBER TERM, 1978
WHITE, J., dissenting 443U.S.
Securities Act of 1933 , contains its own venue provision. Section
27 prescribes two separate requirements- one relating to
the attributes of the judicial district in which suit is brought,
and the second relating to the nature of the suit. I consider
these in turn.
A
Comparison of the terms of § 27 with the terms of the general
federal venue statute, 28 U. S. C. § 1391 (b) , shows the
relative ease with which venue may be obtained in suits
brought under the Securities Exchange Act. Whereas under
§ 1391 (b) venue is proper only in a judicial district that is
either where (a) the defendant(s) reside, or (b) "the claim
arose," under § 27 suit may be brought in any district that is
either where (a) the defendant may be found , is an inhabitant,
or transacts business, or (b) "any act or transaction constituting
the violation occurred." As the majority notes, some courts
have been reluctant to embrace the view that a claim may
arise in more than one district for purposes of § 1391 (b). On
the other hand, it has been widely accepted that there may
be more than one district where acts constituting a violation
may occur for purposes of § 27, and indeed that the act on
which venue is predicated need be only a "material" part of
an alleged violation of the Securities Exchange Act. 1 "Without
question, the intent of the venue ... provisions of the
securities laws is to grant potential plaintiffs liberal choice in
their selection of a forum." Ritter v. Zuspan, 451 F. Supp.
926, 928 (ED Mich. 1978). Given the underlying policy of
§ 27 to confer venue in a wide variety of districts in order to
ease the task of enforcement of federal securities law, it would
be anomalous indeed if venue were not available in the North-
1 See Puma v. Marriott, 294 F. Supp. 1116, 1120 (Del. 1969); Prettner
v. Aston, 339 F. Supp. 273 (Del. 1972) ; Mayer v. Development Corp. of
America, 396 F. Supp. 917, 928-930 (Del. 1975). See also Black & Co. v.
Nova-Tech, Irie., 333 F. Supp. 468 (Ore. 1971).
LEROY v. GREAT WESTERN UNITED CORP. 189
173 WHrTE, J., dissenting
ern District of Texas in this case. Faced with the alternative
left to it by the majority-of instituting separate suits in
each State attempting to apply its extraterritorial takeover
law, or perhaps waiting and defending separate enforcement
actions brought by each State---Great Western might well
choose to forgo its tender offer altogether, a result not in
keeping with the purposes of the Williams Act or § 27. Although
in this case only three States indicated an intention
to assert jurisdiction over the tender offer, and only Idaho
ultimately attempted to enforce its statute, it is important to
note that there are analogous statutes in a total of 36 States.2
With the foregoing in mind, even if the claim in this case
did not arise in Dallas within the meaning of§ 1391 (b), Dallas
is a place where an act constituting an alleged violation of the
Williams Act occurred, because it is where appellants sought
to apply Idaho's statute. Of course, for purposes of determining
whether venue requirements were met, the substantive
allegations of Great Western's claim-that is, that Idaho's
statute conflicts with the Williams Act-must be accepted as
true. The specific act alleged to violate a duty created by the
Williams Act is the application of the Idaho statute to the
Dallas tender offer. The gist of the act complained of being
extraterritorial application of Idaho's statute, this act obviously
occurs not only in Idaho but also in the district where
the extraterritorial tender offer is made.
B
Having determined that the Northern District of Texas has
the required relationship to the claim in this case, venue in
that District was proper under § 27 as long as the second general
requirement of the provision was met; that is, if it may
be said that Great Western's suit was "to enforce any liability
2 See Note, Securities Law and the Constitution: State Tender Offer
Statutes Reconsidered, 88 Yale L. J. 510, 514-515, n. 29 (1979).
190 OCTOBER TERM, 1978
WHITE, J., dissenting 443 U.S.
or duty created by this chapter ... , or to enjoin any violation
of such chapter .... " In the majority's view, the term
"duty created by this chapter" means only those duties "explicitly"
prescribed by a provision of the Williams Act.
Ante, at 181-182. The majority would further restrict the
term to refer only to duties imposed on "participants in the
securities market," ante, at 181, which presumably does not
include officials seeking to enforce state corporate takeover
laws.
But § 27 does not provide that the duty must be "explicitly"
stated in a provision of the Williams Act or that only "participants
in the securities market" have duties under the Act.
Ra.ther, it broadly encompasses all suits to enforce "any ...
duty created by" the Act. Here respondent sought an injunction
against enforcement of Idaho's statute as applied to its
interstate tender offer, on the ground that such enforcement
is pre-empted by and in conflict with the Williams Act. The
only question, then, is whether the Williams Act imposes on
state officials, expressly or impliedly, the duty not to enact
or enforce legislation inconsistent therewith. In my view,
the answer to this question must be in the affirmative. The
Supremacy Clause of the Constitution provides that if state
law conflicts with federal law, federal law prevails. Given
this command, the very enactment and existence of the Williams
Act pre-empts and invalidates all conflicting state efforts
to regulate cash tender offers. Viewed from the perspective
of potential offerors, the existence of the Act creates the
right not to be subject to conflicting state regulation. Viewed
from the perspective of state officials, the existence of the Act
creates a duty not to undertake conflicting regulation efforts.
That the duty alleged to have been violated in this case
would not exist in the absence of the Supremacy Clause does
not make the duty any less a creation of the Williams Act.
"[A]ll federal actions to enjoin a state enactment rest ultimately
on the Supremacy Clause," Swift & Co. v. Wickham,
382 U. S. Ill, 126 (1965), whether the substantive federal
LEROY v. GREAT WESTERN UNITED CORP. 191
173 WHITE, J., dissenting
law relied upon be a statute--as in Swift 3 and as in this caseor
another provision of the Constitution, such as the
Commerce Clause. Thus, the command of the Supremacy
Clause is nPcessary to the authoritative assertion of any federal
right or counterpart duty, and imposes the general duty
not to act in a manner inconsistent with federal law. However,
the specific duty alleged to have been violated in this
case- not to enforce extraterritorial state takeover laws such
as Idaho's-is imposed by the existence of pre-emptive federal
regulation! Just as various provisions of the Williams Act
create certain duties on the part of participants in the securities
market, the Williams Act as a whole creates the duty on
the part of state officials not to regulate in a manner inconsistent
with that Act.
II
Once it is determined that § 27 contemplates venue for
Great Western's claim in the Northern District of Texas, the
federal court in that District also had personal jurisdiction
over the Idaho defendants, they having been served in a "district
... wher [ e] ... found," there being no objection to the
3 A claim of pre-emption is based on an alleged violation of a federal
statute. In Swift, appellants-poultry packing companies-alleged that
"enforcement [of a Kew York statute's labeling requirements] would violate
the ... overriding requirements of [a federal labeling statute]." 382
U. S., at 114. Similarly, state welfare practices may be challenged on the
ground that they conflict with the Social Security Act, see, e. g., Edelman
v. Jordan, 415 U. S. 651, 675 (1974); Hagans v. Lavine, 415 U. S. 528
(1974); King v. Smith, 392 U.S. 309,312 n. 3 (1968).
4 The Court of Appeals concluded that appellants' duty was created by
§ 28 (a) of the Securities Exchange Act of 1934, 15 U. S. C. § 78bb (a).
See Great Western United Corp. v. Kidwell, 577 F. 2d 1256, 1271-1272
(CA5 1978). However, the duty not to act in a manner inconsistent with
the Williams Act would exist even without § 28 (a). Of course, that provision
may be relevant in considering the merits of Great Western's claim
of pre-emption, in that it may shed light on the nature and scope of state
regulation of tender offers that would not be in conflict with the Williams
Act.
192 OCTOBER TERM, 1978
WHITE, J., dissenting 443U.S.
manner of service of process, and there being no restrictions
imposed by the Constitution on the exercise of jurisdiction
by the United States over its residents, see Fitzsi.mmons v.
Barton, 589 F. 2d 330 (CA7 1979) .5
3 Appellants also raise the is.5ue whether a tender offerer has a cause
of action "under the Williams Act amendments to the Securities Exchange
Act of 1934 to challenge the constitutionality of state corporate
takeover laws." Juris. Statement 4. In Piper v. Chn·s-Craft Industries,
Inc., 430 U. S. 1, 47 n. 33 (1977), we left open the question "whether
as a general proposition a suit in equity for injunctive relief ... would
lie in favor of a tender offeror" under an antifraud provision of the
Williams Act.. See also Touche Ross & Co. v. Redington, 442 U. S. 560,
577 (1979), rejecting the notion that § 27 of the Securities &'{change Act
of 1934 creates any implied cause of action. However, the complaint
alleged a cause of action not only under the Williams Act and § 27, but also
under 42 U. S. C. § 1983, see App. 3-4, 13, which applies in suits against
state officials. Because the pre-emption claim alleges deprivation of a
right secured by a federal statute, see Part I-B of text, supra, it states
a cause of action under the "a.nd laws" provision of § 1983.
STEELWORKERS v. WEBER 193
Syllabus
UNITED STEELWORKERS OF AMERICA, AFL-CIOCLC
V. WEBER ET AL.
CERTIORARI TO THE UNITED STATES CO"C'RT OF APPEALS FOR THE
FIFTH CIRCUIT
No. 78-432. Argued March 28, 1979-Decided June 27, 1979*
In 1974, petitioners United Steelworkers of America (USWA) and Kaiser
Aluminum & Chemical Corp. (Kaiser) entered into a master collectivebargaining
agreement covering terms and conditions of employment at
15 Kaiser plants. The agreement included an affirmative action plan
designed to eliminate conspicuous racial imbalances in Kaiser's then
almost exclusively white craftwork forces by reserving for black employees
50% of the openings in in-plant craft-training programs until
the percentage of black craftworkers in a plant is commensurate with
the percentage of blacks in the local labor force. This litigation arose
from the operation of the affirmative action plan at one of Kaiser's
plants where, prior to 1974, only 1.83% of the skilled craftworkers were
black, enn though the local work force was approximately 39% black.
Pursuant to the national agreement, Kaiser, rather than continuing its
practice of hiring trained outsiders, established a training program to
train its production workers to fill craft openings, selecting trainees on
the basis of seniority, with the proYiso that at least 50% of the trainees
were to be black until the percentage of black skilled craftworkers in
the plant approximated the percentage of blacks in the local labor force.
During the plan's first year of operation, seven black and six white craft
trainees were selected from the plant's production work force, with the
most senior bla.ck trainee having less SC'niority than several white production
workers whose bids for admission were rejected. Thereafter,
respondent Weber, one of those white production workers, instituted this
class action in Federal District. Court, alleging that because the affirmatin
action program had resulted in junior black employees' receiving
training in prrference to senior white employees, respondent and other
similarly situated white employees had been discriminated against in violation
of the provisions of §§ 703 (a) and ( d) of Title VII of the Civil
Rights Act of 1964 that make it unlawful to "discriminate ... because
*Together with No. 78-435, Kaiser Aluminum & Chemical, Corp. v.
Weber et al., and No. 78-436, United States et al. v. Weber et al,., also on
certiorari to the same court.
194 OCTOBER TERM, 1978
Syllabus 443 U. 8.
of ... race" in hiring and in the selection of apprentices for training
programs. The District Court held that the affirmative action plan
violated Title VII, entered judgment in favor of the plaintiff class, and
granted injunctive relief. The Court of Appeals affirmed, holding that
all employment preferences based upon race, including those preferences
incidental to bona fide affirmative action plans, violated Title VIl's prohibition
against racial discrimination in employment.
Held:
1. Title VII's prohibition in §§ 703 (a) and (d) against racial discrimination
does not condemn all private, voluntary, race-conscious
affirmative action plans. Pp. 200-208.
(a) Respondent Weber's reliance upon a literal construction of the
statutory provisions and upon McD<mald v. Santa Fe Trail Transp. Co.,
427 U. S. 273, which held, in a case not involving affirmative action, that
Title VII protects whites as well as blacks from certain forms of racial
discrimination, is misplaced, since the Kaiser-USWA plan is an affirmative
action plan voluntarily adopted by private parties to eliminate
traditional patterns of racial segregation. "[A] thing may be within the
letter of the statute and yet not within the statute, because not within
its spirit., nor within the intention of its makers," Holy Trinity Church v.
United States, 143 U. 8. 457, 459, and, thus, the prohibition against
racial discrimination in §§ 703 (a) and (d) must be read against the
background of the legislative history of Title VII and the historical context
from which the Act arose. P. 201.
(b) Examination of those sources ma.kes clear that an interpretation
of §§ 703 (a) and (d) that forbids all race-conscious affirmative
action would bring about an end completely at variance with the purpose
of the statute and must be rejected. Congress' primary concern
in enacting the prohibition against racial discrimination in Title VII was
with the plight of the Negro in our economy, and the prohibition against
racial discrimination in employment was primarily addressed to the
problem of opening opportunities for Negroes in occupations which have
been traditionally closed to them. In view of the legislative history, the
very statutory words intended as a spur or catalyst to cause "employers
and unions to self-examine and to self-evaluate their employment practices
and to endeavor to eliminate, so far as possible, the last vestiges of
an unfortunate and ignominious page in this country's history," Albemarle
Paper Co. v. Moody, 422 U. S. 405, 418, cannot be interpreted as
an absolute prohibition against a.II private, voluntary, race-conscious
affirmative action efforts to hasten the elimination of such vestiges.
Pp. 201-204.
STEELWORKERS v. WEBER 195
193 Syllabus
(c) This conclusion is further reinforced by examination of the language
and legislative history of § 703 (j) of Title VII, which provides
that nothing contained in Title VII "shall be interpreted to require any
employer ... to grant preferential treatment ... to any group because
of the race ... of such . . . group on account of" a de facto racial imbalance
in the employer's work force. Had Congress meant to prohibit
all race-conscious affirmative action, it could have provided that
Title VII would not require or permit racially preferential integration
efforts. The legislative record shows that § 703 (j) was designed to prevent
§ 703 from being interpreted in such a way as to lead to undue
federal regulation of private businesses, and thus use of the word
"require" rather than the phrase "require or permit" in § 703 (j) forti1ies
the conclusion that Congress did not intend to limit traditional business
freedom to such a degree as to prohibit all voluntary, race-conscious
affirmative action. Pp. 204--207.
2. It is not necessary in these cases to define the line of demarcation
between permissible and impermissible affirmative action plans; it suffices
to hold that the challenged Kaiser-USW A plan falls on the permissible
side of the line. The purposes of the plan mirror those of the
statute, being designed to break down old patterns of racial segregation
and hierarchy, and being structured to open employment opportunities
for Negroes in occupations which have been traditionally closed to them.
At the same time, the plan does not unnecessarily trammel the interests
of white employees, neither requiring the discharge of white workers
and their replacement with new black hirees, nor creating an absolute
bar to the advancement of white employees since half of those trained
in the program will be white. Moreover, the plan is a temporary
measure, not intended to maintain racial balance, but simply to Plimimt,fl
a manifest racial imbalan')e. Pp. 20&-209.
563 F. 2d 216, reversed.
BRENNAN, J., delivered the op1mon of the Court, in which STEWART,
WHITE, MARSHALL, and BLACKMUN, JJ., joined. BLACKMUN, J., filed a
concurring opinion, post, 209. BURGER, C. J., filed a dissenting opinion,
post, p. 216. REHNQUIST, J., filed a dissenting opinion, in which BURGER,
C. J., joined, post, p. 219. PowELL and STEVENS, JJ., took no part in the
consideration or decision of the cases.
Michael H. Gottesman argued the cause for petitioner in
No. 78--432. With him on the briefs were Robert M. Weinberg,
Elliot Bredhofj, Bernard Kleiman, Carl Frankel, Jerome
196 OCTOBER TERM, 1978
Counsel 443 U.S.
A. Cooper, John C. Falkenberry, J. Albert Woll, and Laurence
Gold. Thompson Powers argued the cause for petitioner in
No. 78-435. With him on the briefs was Jane McGrew.
Deputy Solicitor General Wallace argued the cause for the
United States et al., petitioners in No. 78---436. With him on
the briefs were Solicitor General M cCree, Assistant Attorney
General Days, William C. Bryson, Brian K. Landsberg, and
Robert J. Reinstein.
Michael R. Fontham argued the cause and filed a brief for
respondent Weber in all cases.+
tBriefs of amici curiae urging reverrnl in all cases were filed by Arthur
Kinoy and Doris Peterson for the Affirmative Action Coordinating Center
et al.; by E. Richard Larson, Burt Neuborne, and Frank Askin for the
American Civil Liberties Union et al.; by Richard B. Sobol, Jerome Cohen,
Harrison Combs, John Fillion, Winn Newman, Carole W. Wilson, David
Rubin, John Tadlock, James E. Youngdahl, A. L. Zwerdling, and Janet
Kohn for the American Federation of State, County and Municipal Employees,
AFL--CIO, et al.; by Samuel Yee, Charles Stephen Ralstan, and
Bill Lann Lee for the Asian American Legal Defense and Education Fund
et al.; by James F. Miller and Stephen V. Bomse for the California Fair
Employment Practice Commission et al.; by Charles A. Bane, Thomas D.
Barr, Norman Redlich, Robert A. Murphy, Richard T. Seymour, Norman
J. Chachkin, and Richard S. Kohn for the Lawyers' Committee for Civil
Rights Under Law; by Nathaniel R. Jones for the National Association
for the Advancement of Colored People; by Jack Greenberg, James M.
Nabrit Ill, Eric Schnapper, Lowell Johnston, Barry L. Goldstein, Vernon
E. Jordan, Jr., and Wiley A. Branton for the N. A. A. C. P. Legal Defense
and Educational Fund, Inc., et al.; by Herbert 0. Reid and John W.
Davis for the National Medical Association, Inc., et al.; by Robert Hermann
and Evan A. Davis for the National Puerto Rican Coalition et al.;
by Jerome Tauber for the National Union of Hospital and Health Care
Employees, RWDSU, AFL--CIO; and by Eileen M. Stein and Pat Eames
for Patricia Schroeder et al. Sybille C. Fritzsche filed a brief for the
Women's Caucus, District 31 of the United Steelworkers of America, as
amicus curiae in No. 78-432 urging reversal.
Briefs of amici curiae urging affirmance in all cases were filed by J. D.
Burdick and Ronald E. Yank for the California Correctional Officers
Association; by Gerard C. Smetana for the Government Contract Employers
Association; by Ronald A. Zumbrun and John H. Findley for the Pacific
STEELWORKERS v. WEBER 197
193 Opinion of the Court
MR. JusTICE BRENNAN delivered the opinion of the Court.
Challenged here is the legality of an affirmative action
plan-collectively bargained by an employer and a unionthat
reserves for black employees 50% of the openings in an
in-plant craft-training program until the percentage of black
craftworkers in the plant is commensurate with the percentage
of blacks in the local labor force. The question for decision is
whether Congress, in Title VII of the Civil Rights Act of 1964,
78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., left
employers and unions in the private sector free to take such
race-conscious steps to eliminate manifest ra.cial imbalances in
traditionally segregated job categories. We hold that Title
VII does not prohibit such race-conscious affirmative action
plans.
I
In 1974, petitioner United Steelworkers of America (USWA)
and petitioner Kaiser Aluminum & Chemical Corp. (Kaiser)
Legal Foundation; by Leonard F. Walentynowicz for the Polish American
Congress et al.; and by Wayne T. Elliott for the Southeastern Legal
Foundation, Inc. Jack N. Rogers filed a brief for the United States
Justice Foundation as amicus curiae in No. 78-432 urging affi.rmance.
Briefs of amici curiae in all cases were filed by Vilma S. Martinez,
Morris J. Baller, and Joel G. Contreras for the American G. I. Forum
et al.; by Philip B. Kurland, Larry M. Lavin.sky, Arnold Forster, Harry
J. Keaton, Meyer Eisenberg, Justin J. Finger, Jeffrey P. Sinensky, Richard
A. Weisz, Themis N. Anastos, Dennis Rapps, and Julian E. Kulas for
the Anti-Defamation League of B'nai B'rith et al.; by John W. Finley, Jr.,
Michael Blinick, Deyan R. Brashich, and Eugene V. Rostow for the Committee
on Academic Nondiscrimination and Integrity; by Kenneth C.
McGuiness, Robert E. Williams, and Douglas S. McDowell for the Equal
Employment Advisory Council; by Mark B. Bigelow for the National
Coordinating Committee for Trade Union Action and Democracy; by
Philips B. Patton for the Pacific Civil Liberties League; by Frank J.
Donner for the United Electrical, Radio and Machine Workers of America;
by Paul D. Kamenar for the Washington Legal Foundation; and by
Gloria R. Allred for the Women's Equal Rights Legal Defense and Education
Fund. Burt Pines and Cecil W. Marr filed a brief for the city of
Los Angeles as amicus curiae in No. 78-435.
198 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
entered into a master collective-bargaining agreement covering
terms and conditions of employment at 15 Kaiser plants.
The agreement contained, inter alia, an affirmative action plan
designed to eliminate conspicuous racial imbalances in Kaiser's
then almost exclusively white craftwork forces. Black crafthiring
goals were set for each Kaiser plant equal to the percentage
of blacks in the respective local labor forces. To
enable plants to meet these goals, on-the-job training programs
were established to teach unskilled production workers-
black and white-the skills necessary to become craftworkers.
The plan reserved for black employees 50% of the
openings in these newly created in-plant training programs.
This case arose from the operation of the plan at Kaiser's
plant in Gramercy, La. Until 1974, Kaiser hired as craftworkers
for that plant only persons who had had prior craft
experience. Because blacks had long been excluded from
craft unions,1 few were able to present such credentials. As
a consequence, prior to 1974 only 1.83% (5 out of 273) of
the skilled craftworkers at the Gramercy plant were black,
1 Judicial findings of exclusion from crafts on racial grounds are so
numerous as to make such exclusion a proper subject for judicial notice.
See, e. IJ., United States v. Elevator Constructors, 538 F. 2d 1012 (CA3
1976); Associated General Contractors of Massachusetts v. Altschuler,
490 F. 2d 9 (CAI 1973); Southern Illinois B~tilders Assn. v. Ogilvie, 471
F. 2d 680 (CA7 1972); Contractors Assn. of Eastern Pennsylvania v.
Secretary of Labor, 442 F. 2d 159 (CA3 1971); Insulators & Asbestos
Workers v. Vogler, 407 F. 2d 1047 (CA5 1969); Buckner v. Goodyear Tire
& Rubber Co., 339 F. Supp. 1108 (ND Ala. 1972), aff'd without opinion,
476 F. 2d 1287 (CA5 1973). See also U.S. Commission on Civil Rights,
The Challenge Ahead: Equal Opportunity in Referral Unions 58--94
(1976) (summarizing judicial findings of discrimination by craft unions);
G. Myrdal, An American Dilemma 1079-1124 (1944); F. Marshall & V.
Briggs, The Negro and Apprrnticeship (1967); S. Spero & A. Harris, The
Black Worker (1931); U.S. Commission on Civil Rights, Employment 97
(1961); State Advisory Committees, U. S. Commission on Civil Rights, 50
States Report 209 (1961); Marshall, The Negro in Southern Unions,
in The Negro and the American Labor Movement 145 (J. Jacobson ed.
1968) ; App. 63, 104.
STEELWORKERS v. WEBER 199
193 Opinion of the Court
even though the work force in the Gramercy area was approximately
39 % black.
Pursuant to the national agreement Kaiser altered its crafthiring
practice in the Gramercy plant. Rather than hiring
already trained outsiders, Kaiser established a training program
to train its production workers to fill craft openings.
Selection of craft trainees was made on the basis of seniority,
with the proviso that at least 50% of the new trainees were
to be black until the percentage of black skilled craftworkers
in the Gramercy plant approximated the percentage of blacks
in the local labor force. See 415 F. Supp. 761, 764.
During 1974, the first year of the operation of the Kaiser-
USW A affirmative action plan, 13 craft trainees were selected
from Gramercy's production work force. Of these, seven were
black and six white. The most senior black selected into the
program had less seniority than several white production
workers whose bids for admission were, rejected. Thereafter
one of those white production workers, respondent Brian
Weber (hereafter respondent), instituted this class action in
the United States District Court for the Eastern District of
Louisiana.
The complaint alleged that the filling of craft trainee positions
at the Gramercy plant pursuant to the affirmative action
program had resulted in junior black employees' receiving
training in preference to senior white employees, thus
discriminating against respondent and other similarly situated
white employees in violation of §§ 703 (a) 2 and
2 Section 703 (a), 78 Stat. 255, as amended, 86 Stat. 109, 42 U.S. C.
§ 2000e-2 (a), provides:
"(a) ... It shall be an unlawful employment practice for an employer-
" (I) 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 rmplo_vment, 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 individ200
OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
( d) 3 of Title VII. The District Court held that the plan violated
Title VII, entered a judgment in favor of the plaintiff
class, and granted a permanent injunction prohibiting Kaiser
and the USW A "from denying plaintiffs, Brian F. Weber and all
other members of the class, access to on-the-job training programs
on the basis of race." App. 171. A divided panel of
the Court of Appeals for the Fifth Circuit affirmed , holding
that all employment preferences based upon race, including
those preferences incidental to bona fide affirmative action
plans, violated Title VII's prohibition against racial discrimination
in employment. 563 F. 2d 216 (1977). We granted
certiorari. 439 U.S. 1045 0978). We reverse.
II
We emphasize at the outset the narrowness of our inquiry.
Since the Kaiser-USWA plan does not involve state action ,
this case does not present an alleg-ecl violation of the Equal
Protection Clause of the Fourteenth Amendment. Further,
since the Kaiser-lTSWA plan was adopt~d voluntarily, we are
not concerned with what Title VII requires or with what a
court might order to remedy a past proved violation of the
Act. The only question before us is the narrow statutory issue
of whether Title VII forbids private employers and unions from
voluntarily agreeing upon bona fide affirmative action plans
that accord racial preferences in the manner and for the purpose
provided in the Kaiser-USvVA plan. That question was
ual of employmc-nt opportunities or otherwise adversely affect his status
as an employee, because of such individual's race, color, rrligion, sex, or
national origin."
3 Section 703 (d), 78 Stat. 256, 42 U. S. C. § 2000e--2 (d), provides:
"It s hall be an unlawful employmC'nt practice for any employrr, labor
organization, or joint lnbor-munagement. rommitter controlling apprf>ntic eship
or other training or retraining, including on-the-job training programs
to discriminate against. any individual because of his race, color, religion ,
sex, or national origin in admission to, or 1·mployment in, any progrnm
established to provide apprenticeship or other training."
STEELWORKERS v. WEBER 201
193 Opinion of the Court
expressly left open in McDonald v. Santa Fe Trail Transp. Co.,
427 U.S. 273,281 n. 8 (1976), which held, in a case not involving
affirmative action, that Title VII protects whites as well
as blacks from certain forms of racial discrimination.
Respondent argues that Congress intended in Title VII to
prohibit all race-conscious affirmative action plans. Respondent's
argument rests upon a literal interpretation of §§ 703
(a) and (d) of the Act. Those sections make it unlawful to
"discriminate ... because of ... race" in hiring and in the
selection of apprentices for training programs. Since, the
argument runs, McDonaldv. Santa Fe Trail Transp. Co., supra,
settled that Title VII forbids discrimination against whites as
well as blacks, and since the Kaiser-USW A affirmative action
plan operates to discriminate against white employees solely
because they are white, it follows that the Kaiser-USWA plan
violates Title VIL
Respondent's argument is not without force. But it overlooks
the significance of the fact that the Kaiser-USWA plan
is an affirmative action plan voluntarily adopted by private
parties to eliminate traditional patterns of racial segregation.
In this context respondent's reliance upon a literal construction
of §§ 703 (a) and (d) and upon McDonald is misplaced.
See McDonald v. Santa Fe Trail Transp. Co., supra, at 281 n. 8.
It is a "familiar rule, that a thing may be within the letter of
the statute and yet not within the statute, because not within
its spirit, nor within the intention of its makers." Holy
Trinity Church v, United States, 143 U. S. 457, 459 (1892).
The prohibition against racial discrimination in §§ 703 (a) and
(d) of Title VII must therefore be read against the background
of the legislative history of Title VII and the historical
context from which the Act arose. See Train v. Colorado
Public Interest Research Group, 426 U. S. 1, 10 (1976);
National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 620
(1967); United States v. American Trucking Assns., 310 U.S.
534, 543-544 (1940). Examination of those sources makes
I
202 OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
clear that an interpretation of the sections that forbade all raceconscious
affirmative action would "bring about an end completely
at variance with the purpose of the statute" and must
be rejected. United States v. Public Utilities Comm'n, 345
U. S. 295, 315 (1953). See Johansen v. United States, 343
U.S. 427, 431 (1952); Longshoremen v. Juneau Spruce Corp.,
342 U. S. 237, 243 (1952); Texas & Pacific R. Co. v. Abilene
Cotton Oil Co., 204 U.S. 426 (1907).
Congress' primary concern in enacting the prohibition
against racial discrimination in Title VII of the Civil Rights
Act of 1964 was with "the plight of the Negro in our economy."
110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey).
Before 1964, blacks were largely relegated to
"unskilled and semi-skilled jobs." Ibid. (remarks of Sen.
Humphrey); id., at 7204 (remarks of Sen. Clark); id., at 7379-
7380 (remarks of Sen. Kennedy). Because of automation the
number of such jobs was rapidly decreasing. See id., at 6548
(remarks of Sen. Humphrey); id., at 7204 (remarks of Sen.
Clark). As a consequence, "the relative position of the Negro
worker [ was] steadily ,vorsening. In 1947 the nonwhite
unemployment rate was only 64 percent higher than the white
rate; in 1962 it was 124 percent higher." Id., at 6547 (remarks
of Sen. Humphrey). See also id., at 7204 (remarks of
Sen. Clark). Congress considered this a serious social problem.
As Senator Clark told the Senate:
"The rate of Negro unemployment has gone up consistently
as compared with white unemployment for the
past 15 years. This is a social malaise and a social situation
which we should not tolerate. That is one of the
principal reasons why the bill should pass." Id., at 7220.
Congress feared that the goals of the Civil Rights Act--
the integration of blacks into the mainstream of American
society- could not be achieved unless this trend were reversed.
And Congress recognized that that would not be possible
I
......I
STEELWORKERS v. WEBER 203
193 Opinion of the Court
unless blacks were able to secure jobs "which have a future."
Id., at 7204 (remarks of Sen. Clark). See also id., at 7379-
7380 (remarks of Sen. Kennedy). As Senator Humphrey
explained to the Senate:
"What good does it do a Negro to be able to eat in a
fine restaurant if he cannot afford to pay the bill? What
good does it do him to be accepted in a hotel that is too
expensive for his modest income? How can a Negro child
be motivated to take full adva.ntage of integrated educational
facilities if he has no hope of getting a job where
he can use that education?" Id., at 6547.
"Without a job, one cannot afford public convenience
and accommodations. Income from employment may be
necessary to further a man's education, or that of his
children. If his children have no hope of getting a good
job, what will motivate them to take advantage of educational
opportunities?" Id., at 6552.
These remarks echoed President Kennedy's original message
to Congress upon the introduction of the Civil Rights Act
m 1963.
"There is little value in a Negro's obtaining the right
to be admitted to hotels and restaurants if he has no cash
in his pocket and no job." 109 Cong. Rec. 11159.
Accordingly, it was clear to Congress that "[t]he crux of the
problem [was] to open employment opportunities for Negroes
in occupations which have been traditionally closed to them,"
110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey), and
it was to this problem that Title VII's prohibition against
racial discrimination in employment was primarily addressed.
It plainly appears from the House Report accompanying
the Civil Rights Act that Congress did not inrend wholly to
prohibit private and voluntary affirmative action efforts as
one method of solving this problem. The Report provides:
"No bill can or should lay claim to eliminating all of
204 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
the causes and consequences of racial and other types of
discrimination against minorities. There is reason to
believe, however, that national leadership provided by the
enactment of Federal legislation dealing with the most
troublesome problems will create an atmosphere conducive
to voluntary or local resolution of other farms of
discrimination." H. R. Rep. No. 914, 88th Cong., 1st
Sess., pt. 1, p. 18 (1963). (Emphasis supplied.)
Given this legislative history, we cannot agree with respondent
that Congress intended to prohibit the private sector
from taking effective steps to accomplish the goal that Congress
designed Title VII to achieve. The very statutory words
intended as a spur or catalyst to cause "employers and unions
to self-examine and to self-evaluate their employment practices
and to endeavor to eliminate, so far as possible, the last
vestiges of an unfortunate and ignominious page in this
country's history," Albemarle Paper Co. v. Moody, 422 U. S.
405, 418 (1975), cannot be interpreted as an absolute prohibition
against all private, voluntary, race-conscious affirmative
action efforts to hasten the elimination of such vestiges.4 It
would be ironic indeed if a law triggered by a Nation's concern
over centuries of racial injustice and intended to improve
the lot of those who had "been excluded from the American
dream for so long," 110 Cong. Rec. 6552 (1964) (remarks of
Sen. Humphrey), constituted the first legislative prohibition
of all voluntary, private, race-conscious efforts to abolish traditional
patterns of racial segregation and hierarchy.
Our conclusion is further reinforced by examination of the
4 The problem that Congress addressed in 1964 remains with us. In
1962, the nonwhite unemployment rate was 124% higher than the white
rate. See ll0 Cong. Rec. 6547 (1964) (remarks of Sen. Humphrey). In
1978, the black unemployment rate was 129% higher. See Monthly
Labor Review, U. S. Department of Labor, Bureau of Labor Statistics 78
(Mar. 1979).
STEELWORKERS v. WEBER 205
193 Opinion of the Court
language and legislative history of § 703 (j) of Title VII.5
Opponents of Title VII raised two related arguments against
the bill. First, they argued that the Act would be interpreted
to require employers with racially imbalanced work
forces to grant preferential treatment to racial minorities in
order to integrate. Second, they argued that employers with
racially imbalanced work forces would grant preferential treatment
to racial minorities, even if not required to do so by the
Act. See 110 Cong. Rec. 8618-8619 (1964) (remarks of Sen.
Sparkman). Had pongress meant to prohibit all raceconscious
affirmative action, as respondent urges, it easily
could have answered both objections by providing that
Title VII would not require or permit racially preferential
integration efforts. But Congress did not choose such a
course. Rather, Congress added § 703 (j) which addresses
only the first objection. The section provides that nothing
contained in Title VII "shall be interpreted to require any
5 Section 703 (j) of Title VII, 78 Stat. 257, 42 U. S. C. § 2000e-2 (j),
provides:
"Nothing contained in this title shall be interpreted to require any
employer, employment agency, labor organization, or joint labor-management
committee subject to this title to grant preferential treatment to any
individual or to any group because of the race, color, religion, sex, or
national origin of such individual or group on account of an imbalance
which may exist with respect to the total number or percentage of persons
of any race, color, religion, sex, or national origin employed by any employer,
referred or classified for employment by any employment agency or
labor organization, admitted to membership or classified by any labor
organization, or admitted to, or employed in, any apprenticeship or other
training program, in comparison with the total number or percentage of
persons of such race, color, religion, sex, or national origin in any community,
State, section, or other area, or in the available work force in any
community, State, section, or other area."
Section 703 (j) speaks to substantive liability under Title VII, but it
does not preclude courts from considering racial imbalance as evidence of
a Title VII violation. See Teamsters v. United States, 431 U. S. 324, 339-
340, n. 20 (1977). Remedies for substantive violations are governed by
§ 706 (g), 42 U. S. C. § 2000e-5 (g).
206 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
employer ... to grant preferential treatment ... to any group
because of the race ... of such ... group on account of" a
de facto racial imbalance in the employer's work force. The
section does not state that "nothing in Title VII shall be interpreted
to permit" voluntary affirmative efforts to correct racial
imbalances. The natural inference is that Congress chose not
to forbid all voluntary race-conscious affirmative action.
The reasons for this choice are evident from the legislative
record. Title VII could not have been enact€d into law without
substantial support from legislators in both Houses who
traditionally resisted federal regulation of private business.
Those legislators demanded as a price for their support that
"management prerogatives, and union freedoms ... be left
undisturbed to the greatest extent possible." H. R. Rep.
No. 914, 88th Cong., 1st Sess., pt. 2, p. 29 (1963). Section 703
(j) was proposed by Senator Dirksen to allay any fears that
the Act might be interpreted in such a way as to upset this
compromise. The section was designed to prevent § 703 of
Title VII from being interpreted in such a way as to lead to
undue "Federal Government interference with private businesses
because of some Federal employee's ideas about racial
balance or racial imbalance." 110 Cong. Rec. 14314 (1964)
(remarks of Sen. Miller).6 See also id., at 9881 (remarks of
6 Title VI of the Civil Rights Act of 1964, considered in University of
California Regents v. Bakke, 438 U. S. 265 (1978), contains no provision
comparable to § 703 (j). This is because Title VI was an exercise of
federal power over a matter in which the Federal Government was already
directly involved: the prohibitions against race-based conduct contained in
Title VI governed "program[s] or activit[ies] receiving Federal financial
assistance." 42 U. S. C. § 2000d. Congress was legislating to assure
federal funds would not be used in an improper manner. Title VII, by
contrast,, was enacted pursuant to the commerce power to regulate purely
private decisionmaking and was not intended to incorporate and particularize
the commands of the Fifth and Fourteenth Amendments. Title
VII and Title VI, therefore, cannot be read in pari materia. See 110
Cong. Rec. 8315 (1964) (remarks of Sen. Cooper). See also id., at 11615
(remarks of Sen. Cooper).
STEELWORKERS v. WEBER 207
193 Opinion of the Court
Sen. Allott); id., at 10520 (remarks of Sen. Carlson); id., at
11471 (remarks of Sen. Javits); id., at 12817 (remarks of Sen.
Dirksen). Clearly, a prohibition against all voluntary, raceconscious,
affirmative action efforts would disserve these ends.
Such a prohibition would augment the powers of the Federal
Government and diminish traditional management prerogatives
while at the same time impeding attainment of the ultimate
statutory goals. In view of this legislative history and
in view of Congress' desire to avoid undue federal regulation
of private businesses, use of the word "require" rather than
the phrase "require or permit" in § 703 (j) fortifies the conclusion
that Congress did not intend to limit traditional business
freedom to such a degree as to prohibit all voluntary, raceconscious
affirmative action .7
1 Respondent argues that our construction of § 703 conflicts with various
remarks in the legislative record. See, e. g., 110 Cong. Rec. 7213
(1964) (Sens. Clark and Case); id .. at 7218 (Sens. Clark and Cai,e); i'.d..
at 6549 (Sen. Humphrey); id .. at 8921 (Sen. Williams). We do not agree.
In Senator Humphrry's word~, these comments were intended as assurances
that Title VII would not allow establishment of systems "to maintain
racial ba.Jance in rmplo:vment." Id., at 11848 (empha1'is added). They
were not addressed to temporary, voluntary, affirmative action measures
undertaken to eliminate manifeS't rarial imbalance in traditionally segregated
job categorirs. Moreover, the comments referred to by respondent
all preceded the adoption of § 703 Ci), 42 U. S. C. § 2000r-2 (j). After
§ 703 (j) was adopted, congressional comments were all to the effect that
employers would not be required to in:stitnte preferential quotas to avoid
Title VII liability, see. e. g., ll0 Cong. Rec. 12819 (1964) (remarks of
Sen. Dirksen); id., at 13079-13080 (remarks of Sen. Clark); id., at 15876
(re>marks of Re>p. Lindsay). There was no suggestion after the adoption
of § 703 (j) that wholly voluntary, race-conscious, affirmative action efforts
would in themselves constitute a violation of Title VII. On the contrary,
as Representative MacGre>gor told the House shortly before the final vote
on Title VII:
"Important as the srope and extent of this bill is, it is also vitally
important that all Americans understand what this bill does not cover.
"Your mail and mine, your contacts and mine with our constituents,
indicates a great degree of misunderstanding about this bill. People com208
OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
We therefore hold that Title VII's prohibition in §§ 703 (a)
and ( d) against racial discrimination does not condemn all
private, voluntary, race-conscious affirmative action plans.
III
We need not today define in detail the line of demarcation
between permissible and impermissible affirmative action
plans. It suffices to hold that the challenged Kaiser-USW A
affirmative action plan falls on the permissible side of the
line. The purposes of the plan mirror those of the statute.
Both were designed to break down old patterns of racial segregation
and hierarchy. Both \vere structured to "open employment
opportunities for J\Tegroes in occupations which have
been traditionally closed to them." 110 Cong. Rec. 6548
(1964) (remarks of Sen. Humphrey).8
At the same time, the plan does not unnecessarily trammel
the interests of the white employees. The plan does not require
the discharge of white workers and their replacement
with new black hirees. Cf. 1l1 cDonald v. Santa Fe Trail
Transp. Co., 427 U. S. 273 (1976). Nor does the plan create
an absolute bar to the advancement of white employees; half
of those trained in the program will be white. Moreover, the
plan is a temporary measure; it is not in tended to maintain
racial balance, but simply to eliminate a manifest racial
imbalance. Preferential selection of craft trainees at the
Gramercy plant will end as soon as the percentage of black
skilled craft,vorkers in the Gramercy plant approximates the
plain about ... preferential treatment or quotas in employment. There
is a mistaken belief that CongreRs is legislating in these areas in this bill.
When we drafted this bill we i>xrluded these issues largely because the
problems raised by these controversial questions are more properly handled
at a governmental le\·cl closer to tht> Amnican people and by communities
and individuals themseh·es." 110 Cong. Rec. 15893 (1964).
8 See n. 1, supra. This is not to suggest that the freedom of an employer
to undertake rare-conscious affirmative action efforts depends on
whether or not his effort is motivated by fear of liability under Title VIL
STEELWORKERS v. WEBER 209
193 BLACKMUN' J ., concurring
percentage of blacks in the local labor force. See 415 F. Supp.,
at 763.
We conclude, therefore, that the adoption of the Kaiser-
USWA plan for the Gramercy plant falls within the area of
discretion left by Title VII to the private sector voluntarily
to adopt affirmative action plans designed to eliminate conspicuous
racial imbalance in traditionally segregated job categories.
9 Accordingly, the judgment of the Court of Appeals
for the Fifth Circuit is
Reversed.
MR. JusTICE PowELL and MR. JUSTICE STEVENS took no part
in the consideration or decision of these cases.
MR. JUSTICE BLACKMUN, concurring.
While I share some of the misgivings expressed in MR. Jus-
TICE REHNQursT's dissent, post, p. 219, concerning the extent
to which the legislative history of Title VII clearly supports
the result the Court reaches today, I believe that additional
considerations, practical and equitable, only partially perceived,
if perceived at all, by the 88th Congress, support the
conclusion reached by the Court today, and I therefore join its
opinion as well as its judgment.
I
In his dissent from the decision of the United States Court
of Appeals for the Fifth Circuit, Judge Wisdom pointed out
that this litigation arises from a practical problem in the administration
of Title VII. The broad prohibition against discrimination
places the employer and the union on what he ac-
9 Our disposition makes unnecessa.ry consideration of petitioners' argument
that their plan was justified because they feared that black employees
would bring suit under Title VII if they did not adopt an affirmative
action plan. Nor need we consider petitioners' contention that their
affirmative action plan represented an attempt to comply with Exec.
Order No. 11246, 3 CFR 339 (1964-1965 Comp.).
210 OCTOBER TERM, 1978
BLACKMUN, J., concurring 443 U.S.
curately described as a "high tightrope without a net beneath
them." 563 F. 2d 216, 230. If Title VII is read literally, on
the one hand they face liability for past discrimination against
blacks, and on the other they face liability to whites for any
voluntary preferences adopted to mitigate the effects of prior
discrimination against blacks.
In this litigation, Kaiser denies prior discrimination but concedes
that its past hiring practices may be subject to question.
Although the labor force in the Gramercy area was approximately
39% black, Kaiser's work force was less than 15%
black, and its craftwork force was less than 2% black. Kaiser
had made some effort to recruit black painters, carpenters,
insulators, and other craftsmen, but it continued to insist that
those hired have five years' prior industrial experience, a requirement
that arguably was not sufficiently job related to
justify under Title VII any discriminatory impact it may have
had. See Parson v. Kaiser Aluminum & Chemical Corp., 575
F. 2d 1374, 1389 (CA5 1978), cert. denied sub nom. Steelworkers
v. Parson, 441 U. S. 968 (1979). The parties dispute
the extent to which black craftsmen were available in the local
labor market. They agree, however, that after critical reviews
from the Office of Federal Contract Compliance, Kaiser and
the Steelworkers established the training program in question
here and modeled it along the lines of a Title VII consent
decree later entered for the steel industry. See United States
v. Allegheny-Ludlum Industries, Inc., 517 F. 2d 826 (CA5
1975). Yet when they did this, respondent Weber sued, alleging
that Title VII prohibited the program because it discriminated
against him as a white person and it was not supported
by a prior judicial finding of discrimination against blacks.
Respondent Weber's reading of Title VII, endorsed by the
Court of Appeals, places voluntary compliance with Title VII
in profoun<l jeopardy. The only way for the employer and the
union to keep their footing on the "tightrope" it creates would
be to eschew all forms of voluntary affirmative action. Even
STEELWORKERS v. WEBER 211
193 BLACKMUN, J ., concurring
a whisper of emphasis on minority recruiting would be forbidden.
Because Congress intended to encourage private
efforts to come into compliance with Title VII, see Alexander
v. Gardner-Denver Co., 415 U.S. 36, 44 (1974), Judge Wisdom
concluded that employers and unions who had committed
"arguable violations" of Title VII should be free to make reasonable
responses without fear of liability to whites. 563
F. 2d, at 230. Preferential hiring along the lines of the Kaiser
program is a reasonable response for the employer, whether or
not a court, on these facts, could order the same step as a
remedy. The company is able to avoid identifying victims of
past discrimination, and so avoids claims for backpay that
would inevitably follow a response limited to such victims. If
past victims should be benefited by the program, however, the
company mitigates its liability to those persons. Also, to the
extent that Title VII liability is predicated on the "disparate
effect" of an employer's past hiring practices, the program
makes it less likely that such an effect could be demonstrated.
Cf. County of Los Angeles v. Davis, 440 U. S. 625, 633-634
(1979) (hiring could moot a pru:;t Title VII claim). And the
Court has recently held that work-force statistics resulting
from private affirmative action were probative of benign intent
in a "disparate treatment" case. Furnco Construction Corp. v.
Waters, 438 U. S. 567, 579-580 (1978).
The "arguable violation" theory has a number of advantages.
It responds to a practical problem in the administration
of Title VII not anticipated by Congress. It draws
predictability from the outline of present law and closely
effectuates the purpose of the Act. Both Kaiser and the
United States urge its adoption here. Because I agree that it
is the soundest way to approach this case, my preference
would be to resolve this litigation by applying it and holding
that Kaiser's craft training program meets the requirement
that voluntary affirmative action be a reasonable response to
an "arguable violation" of Title VIL
212 OCTOBER TERM, 1978
BLACKMUN, ,J., concurring 443 lJ. s.
II
The Court, ho-wever, declines to consider the narrow "arguable
violation" approach and adheres instead to an interpretation
of Title VII that permits affirmative a.ction by an employer
whenever the job catt'gory in question is "traditionally
segregated." Ante, at 209, and n. 9. The sources cited suggest
that the C'ourt considers a job category to be "traditionally
segregated" when there has been a societal history of purposeful
exclusion of blacks from the job category, resulting in
a persistent disparity between the proportion of blacks in the
labor force and the proportion of blacks among those who hold
jobs within the category.*
"Traditionally sep;regated job categories," where they exist,
sweep far more broadly than the class of "arguable violations"
of Title VII. The Court's expansive approach is somewhat
*The jobs in qurstion here include those of carpenter, electrician, general
repairman, insulator, machinist, and painter. App. 165. The sources
citt>d, ante, at. 198 n. I, e~tablish, for example, that although 11.7% of the
-Cnited State-" population in 19i0 was black, the percentage of blacks
among the membership of carprntrrs' unions in 19i2 was only 3.7o/c. For
painters, the percC>ntagr was 4.9, and for electririans, 2.6. U. S. Commission
on Civil Rights, The Challrnire Ahead: Equal Opportunity in Referral
Union,; 274, 281 (1976). Kaiser's Director of Equal Opportunity
Affairs testifird that. as a result of discrimination in employment and
training opportunity, hlacks were underrepresented in skilled crafts "in
every indu~try in the United States, [Ind in every area of the rnited
States." App. 90. While the parties dispute the cause of the rclnti\·e
underrepresentation of blacks in Kai~er's rraftwork force, the Court of
Appeals indicatc-d that it thoue;ht "the e;eneral Jack of skills among available
blarks" was respon•iblc. 563 F. 2d 216, 224 n. 13. There can be
little doubt that any lark of ski!! has its root~ in purposeful disrrimination
of the past, including segregated and inferior trade schools for blacks in
Louisiana, U. S. Commi"Sion on Civil Rights, 50 States Report 209
(1961); traditionally all-whitP craft unions in that State, including the
electrical workers and the plumbers . id., at. 2oi;i; union nepotism, Asbestos
Workers v. Vogler, 407 F. 2d 1047 (C.'\5 1969); and ;;egrrgnted apprenticeship
programE, F. Mar~hall & V. Briggs, The ~egro and Apprenticeship
27 (1967).
STEELWORKERS v. WEBER 213
193 BLACKMUN, J., concurring
disturbing for me because, as MR. JUSTICE REHNQUIST points
out, the Congress that passed Title VII probably thought it
was adopting a principle of nondiscrimination tha.t would
apply to blacks and whites alike. While st>tting aside that
principle can be justified where necessary to advance statutory
policy by encouraging reasonable responses as a form of
voluntary compliance that mitigates "arguable violations,"
discarding the principle of nondiscrimination where no countervailing
statutory policy exists appears to be at odds with
the bargain struck when Title VII was enacted .
. \ closer look at the prob1em. however. reveals that in each
of the principal ways in which the Court's "traditionally segregated
job categories" approach expands on the "arguable violations"
theory, still other considerations point in favor of the
broad standard adopted by the Court, and make it possible
for me to conclude that the Court's reading of the statute is
an acceptable one.
A. The first point at which the Court departs from the
"arguable violations" approach is that it measures an individual
employer's capacity for affirmative action solely in terms
of a statistical disparity. The individual employer need not
have engaged in discriminatory practices in the past. While.
under Title VII, a mere disparity may provide the basis for a
prima facie case against an employer, Dothard v. Rawlinson,
433 r. S. 321, 329-331 ( 1977). it would not conclusively prove a
violation of the Act. Teamsters v. United States, 431 U.S. 324,
339-340. n. 20 (1977); see§ 703 (j), 42 U.S. C. § 2000e-2 (j).
As a practical matter, however, this difference may not be
that great. While the "arguable violation" standard is conceptually
satisfying. in practice the emphasis would be on
"arguable" rather than on "violation." The great difficulty
in the District Court was that no one had any incentive to
prove that Kaiser had violated the Act. Neither Kaiser nor
the St~elworkers wanted to establish a past violation, nor did
Weber. The blacks harmed had never sued and so had no
established representative. The Equal Employment OpporI
214 OCTOBER TERM, 1978
BLACKMUN, J., concurring 443 U.S.
tunity Commission declined to intervene, and cannot be expected
to intervene in every case of this nature. To make
the "arguable violation" standard work, it would have to be
set low enough to permit the employer to prove it without
obligating himself to pay a damages award. The inevitable
tendency would be to avoid hairsplitting litigation by simply
concluding that a mere disparity between the racial composition
of the employer's work force and the composition of the
qualified local labor force would be an "arguable violation,"
even though actual liability could not be established on that
basis alone. See Note, 57 N. C. L. Rev. 695, 714-719 (1979).
B. The Court also departs from the "arguable violation"
approach by permitting an employer to redress discrimination
that lies wholly outside the bounds of Title VIL For example,
Title VII provides no remedy for pre-Act discrimination,
Hazelwood School District v. United States, 433 U. S. 299,
309-310 (1977); yet the purposeful discrimination that
creates a "traditionally segregated job category" may have
entirely predated the Act. More subtly, in assessing a prima
facie case of Title VII liability, the composition of the employer's
work force is compared to the composition of the pool
of workers who meet valid job qualifications. Hazelwood,
433 U. S., at 308 and n. 13; Teamsters v. United States, 431
U. S., at 339-340, and n. 20. When a "job category" is traditionally
segregated, hmvever, that pool will reflect the effects
of segregation, and the Court's approach goes further and
permits a comparison with the composition of the labor force
as a whole, in which minorities are more heavily represented.
Strong considerations of equity support an interpretation
of Title VII that would permit private affirmative action to
reach where Title VII itself does not. The bargain struck in
1964 with the passage of Title VII guaranteed equal opportunity
for white and black alike, but where Title VII provides
no remedy for blacks, it should not be construed to foreclose
private affirmative action from supplying relief. It seems
unfair for respondent Weber to argue, as he does, that the
STEELWORKERS v. WEBER 215
193 BLACKMUN, J., concurring
asserted scarcity of black craftsmen in Louisiana, the product
of historic discrimination, makes Kaiser's training program
illegal because it ostensibly absolves Kaiser of an Title VII
liability. Brief for Respondents 60. Absent compelling evidence
of legislative intent, I would not interpret Title VII
itself as a means of "locking in" the effects of segregation
for which Title VII provides no remedy. Such a construction,
as the Court points out, ante, at 204, would be "ironic," given
the broad remedial purposes of Title VIL
MR. JcsTICE REHNQUIST's dissent, while it focuses more on
what Title VII does not require than on what Title VII forbids,
cites several passages that appear to express an intent to
"lock in" minorities. In mining the legislative history anew,
however, the dissent, in my view, fails to take proper account
of our prior cases that have given that history a much more
limited reading than that adopted by the dissent. For example,
in Griggs v. Duke Power Co., 401 U. S. 424, 434-436, and
n. 11 ( 1971), the Court refused to give controlling weight to
the memorandum of Senators Clark and Case which the dissent
now finds so persuasive. See post, at 239-241. And in
quoting a statement from that memorandum that an employer
would not be "permitted ... to prefer Negroes for future
vaicancies," post, at 240, the dissent does not point out that the
Court's opinion in Teamsters v. United States, 431 U. S., at
349-351, implies that that language is limited to the protection
of established seniority systems. Here, seniority is not in
issue because the craft training program is new and does not
involve an abrogation of pre-existing seniority rights. In
short, the passages marshaled by the dissent are not so compelling
as to merit the whip hand over the obvious equity of
permitting employers to ameliorate the effects of past discrimination
for which Title VII provides no direct relief.
III
I also think it significant that, while the Court's opinion
does not foreclose other forms of affirmative action, the Kaiser
216 OCTOBER TERM, 1978
B.uRGER, C. J., dissenting 443 U.S.
program it approves is a moderate one. The opinion notes
that the program does not afford an absolute preference for
blacks, and that it ends when the racial composition of Kaiser's
craftwork force matches the racial composition of the
local population. It thus operates a.s a temporary tool for
remedying past discrimination without attempting to "maintain"
a previously achieved balance. See Universi,ty of California
Regents v. Bakke, 438 U. S. 265, 342 n. 17 (1978)
(opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN,
JJ.). Because the duration of the program is finite, it perhaps
will end even before the "stage of maturity when action along
this line is no longer necessary." Id., at 403 (opinion of
BLACK MUN, J.). And if the Court has misperceived the political
will, it has the assurance that because the question is
statutory Congress may set a different course if it so chooses.
MR. CHIEF JUSTICE BURGER, dissenting.
The Court reaches a result I would be inclined to vote for
were I a Member of Congress considering a proposed amendment
of Title VII. I cannot join the Court's judgment, however,
because it is contrary to the explicit language of the
statute and arrived at by means wholly incompatible with
long-established principles of separation of powers. Under
the guise of statutory "construction," the Court effectively
rewrites Title VII to achieve what it regards as a desirable
result. It "amends" the statute to do precisely what both
its sponsors and its opponents agreed the statute wa.s not
intended to do.
When Congress enacted Title VII a.f ter long study and
searching debate, it produced a statute of extraordinary clarity,
which speaks directly to the issue we consider in this case.
In § 703 ( d) Congress provided:
"It shall be an unlawful employment practice for any
employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training or
193
STEELWORKERS v. WEBER 217
BURGER, C. J., dissenting
retraining, including on-the-job training programs to discriminate
against any individual because of his race, color,
religion, sex, or national origin in admission to, or employment
in, any program established to provide apprenticeship
or other training." 42 U. S. C. § 2000e-2 ( d).
Often we have difficulty interpreting statutes either because
of imprecise drafting or because legislativf' compromises have
produced genuine ambiguities. But here there is no lack of
clarity, no ambiguity. The quota embodied in the collectivebargaining
agreement between Kaiser and the Steelworkers
unquestionably discriminates on the basis of race against individual
employees seeking admission to on-the-job training
programs. And, under the plain language of § 703 (d) , that
is "an unlawful employment practice."
Oddly, the Court seizes upon the very clarity of the statute
almost as a justification for evading the unavoidable impact
of its language. The Court blandly tells us that Congress
could not really have meant what it said, for a "literal construction"
would defeat the "purpose" of the statute-at least
the congressional "purpose" as five .Justices divine it today.
But how are judges supposed to ascertain the purpose of a
statute except through the ,vords Congress used and the legislative
history of the statute's evolution? One need not even
resort to the legislative history to recognize what is apparent
from the face of Title VII-that it is specious to suggest that
§ 703 C.i) contains a negative pregnant that permits employers
to do ,vhat §§ 703 (a) and (d) unambiguously and unequivocally
forbid employers from doing. Moreover, as MR.
JUSTICE REHNQUIST's opinion-which I join-conclusively
demonstrates, the legislative history makes equally clear that
the supporters and opponents of Title VII reached an agreement
about the statute's intended effect. That agreement,
expressed so clearly in the language of the statute that no one
should doubt its meaning, forecloses the reading which the
Court gives the statute today.
218 OCTOBER TERM, 1978
BURGER, C. J., dissenting 443 U.S.
Arguably, Congress may not have gone far enough in
correcting the effects of past discrimination when it enacted
Title VII. The gross discrimination against minorities to
which the Court advert&--particularly against Negroes in the
building trades and craft unions-is one of the dark chapters
in the otherwise great history of the American labor movement.
And, I do not question the importance of encouraging
voluntary compliance with the purposes and policies of Title
VII. But that statute was conceived and enacted to make
discrimination against any individual illegal, and I fail to see
how "voluntary compliance" with the no-discrimination principle
that is the heart and soul of Title VII as currently written
will be achieved by permitting employers to discriminate
against some individuals to give preferential treatment to
others.
Until today, I had thought the Court was of the unanimous
view that "[dJiscriminatory preference for any group, minority
or majority, is precisely and only what Congress has proscribed"
in Title VII. Griggs v. Duke Power Co., 401 U. S.
424, 431 (1971). Had Congress intended otherwise, it very
easily could have drafted language allowing what the Court
permits today. Far from doing so, Congress expressly prohibited
in §§ 703 (a) and (d) the very discrimination against
Brian Weber which the Court today approves. If "affirmative
action" programs such as the one presented in this case are to
be permitted, it is for Congress, not this Court, to so direct.
It is often observed that hard cases make bad law. I suspect
there is some truth to that adage, for the "hard'' cases always
tempt judges to exceed the limits of their authority, as the
Court does today by totally rewriting a crucial part of Title
VII to reach a "desirable" result. Cardozo no doubt had this
type of case in mind when he wrote:
"The judge, even when he is free, is still not wholly free.
He is not to innovate at pleasure. He is not a knight.-
errant, roaming at will in pursuit of his own ideal of
193
STEELWORKERS v. WEBER 219
REHNQUIST, J ., dissenting
beauty or of goodness. He is to draw his inspiration from
consecrated principles. He is not to yield to spasmodic
sentiment, to vague and unregulated benevolence. He
is to exercise a discretion informed by tradition, methodized
by analogy, disciplined by system, and subordinated
to 'the primordial necessity of order in the social
life.' Wide enough in all conscience is the field of discretion
that remains.'' The Nature of the Judicial Process
141 (1921).
What Cardozo tells us is beware the "good result," achieved
by judicially unauthorized or intellectually dishonest means on
the appealing notion that the desirable ends justify the improper
judicial means. For there is always the danger that
the seeds of precedent sown by good men for the best of
motives will yield a rich harvest of unprincipled acts of others
also aiming at "good ends."
MR. JusTICE REHNQUIST, with whom THE CHIEF JUSTICE
joins, dissenting.
In a very real sense, the Court's opinion is ahead of its
time: it could more appropriately have been handed down five
years from now, in 1984, a year coinciding with the title of
a book from which the Court's opinion borrows, perhaps subconsciously,
at least one idea. Orwell describes in his book
a governmental official of Oceania, one of the three great
world powers, denouncing the current enemy, Eurasia, to an
assembled crowd:
"It was almost impossible to listen to him without being
first convinced and then maddened. . . . The speech had
been proceeding for perhaps twenty minutes when a messenger
hurried onto the platform and a scrap of paper was
slipped into the speaker's hand. He unrolled and read it
without pausing in his speech. Nothing altered in his
voice or manner, or in the content of what he was saying,
but suddenly the names were different. Without words
220 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
said, a wave of understanding rippled through the crowd.
Oceania was at war with Eastasia! . . . The banners and
posters with which the square was decorated were all
wrong! ...
"[Tl he speaker had swi tche<l from one line to the other
actually in mid-sentence, not only without a pause, but
without even breaking the syntax.'' G. Orwe11, Nineteen
Eighty-Four 181-182 (1949).
Today's decision represents an equally dramatic and equa1ly
unremarked switch in this Court's interpretation of Title VII.
The operative sections of Title YII prohibit racial discrimination
in employment simpliciter. Taken in its normal
meaning, and as understood by all M embers of Congress who
spoke to the issue during the legislative debates, see infra, at
231-251, this language prohibits a covered employer from considering
race when making an employment decision, whether
the race be black or white. Several years ago, however, a
tJ nited States District Court held that "the dismissal of white
employees charged with misappropriating company property
while not dismissing a similarly charged Negro employee does
not raise a claim upon which Title VII relief may be granted."
.\ti cDoncild v. Santa Fe Trail Transp. Co., 427 r. R. 273, 278
(1976). This Court unanimously reversed, concludinll: from
the "uncontradicted legislative history" that "Title VII prohibits
ra-<'ial discrimination against the white petitioners in
this case upon the same standards as would be applicable
were they Negroes .... " Id., at 280.
We have never wavered in our understanding that Title
VII "prohihits all racial discrimination in employment, without
exception for any group of particular employees." Id., at
283 ( emphasis in original). In Griggs v. Duke Power Co.,
401 r. R. 424, 431 0971), our first occasion to interpret
Title VII, a unanimous Court observed that " [ d liscriminatory
preference, for any group, minority or majority, is precisely
and only what Congress has proscribed." And in our most
STEELWORKERS v. WEBER 221
193 REHNQUIST, J., dissenting
recent discussion of the issue, we uttered words seemingly dispositive
of this case: "It is clear beyond cavil that the obligation
imposed by Title VII is to provide an equal opportunity
for each applicant regardless of race, without regard to whether
members of the applicant's race are already proportionately
represented in the work force." Furnco Construction Corp. v.
Waters, 438 U.S. 567,579 (1978) (emphasis in original).'
Today, however, the Court behaves much like the Orwellian
speaker earlier described, as if it had been handed a note indicating
that Title VII would lead to a result unacceptable to
the Court if interpreted here as it was in our prior decisions.
Accordingly, without even a break in syntax, the Court rejects
"a literal construction of § 703 (a)" in favor of newly discovered
"legislative history," which leads it to a conclusion
directly contrary to that compelled by the "uncontradicted
legislative history" unearthed in McDonald and our other
prior decisions. Now we are told that the legislative history
of Title VII shows that employers arc free to discriminate on
the basis of race: an employer may, in the Court's words,
"trammel the interests of the white employees" in favor of
black employees in order to eliminate "racial imbalance."
Ante, at 208. Our earlier interpretations of Title VII, like the
banners and posters decorating the square in Oceania, were all
wrong.
As if this were not enough to make a reasonable observer
question this Court's adherence to the oft-stated principle that
our duty is to construe rather than rewrite legislation, United
States v. Rutherford, 442 U.S. 544, 555 (1979), the Court also
seizes upon § 703 Ci) of Title VII as an independent, or at
least partially independent, basis for its holding. Totally
ignoring the wording of that section, which is obviously
addressed to those charged with the responsibility of inter-
1 Our statements in Griggs and Furnco Construction, patently inconsistent
with today's holding, are not even mentioned, much less distinguished,
by the Court.
222 OCTOBER TERM, 1978
REHNQUIST, J ., dissenting 443 U.S.
preting the law rather than those who are subject to its
proscriptions, and totally ignoring the months of legislative
debates preceding the section's introduction and passage,
which demonstrate clearly that it was enacted to prevent
precisely what occurred in this case, the Court infers from
§ 703 (j) that "Congress chose not to forbid all voluntary
race-conscious affirmative action." Ante, at 206.
Thus, by a tour de force reminiscent not of jurists such
as Hale, Holmes, and Hughes, but of escape artists such as
Houdini, the Court eludes clear statutory language, "uncontradicted"
legislative history, and uniform precedent in concluding
that employers are, after all, permitted to consider
race in making employment decisions. It may be that one or
more of the principal sponsors of Title VII would have preferred
to see a provision allowing preferential treatment of
minorities written into the bill. Such a provision, however,
would have to have been expressly or impliedly excepted
from Title VII's explicit prohibition on all racial discrimination
in employment. There is no such exception in the Act.
And a reading of the legislative debates concerning Title
VII, in which proponents and opponents alike uniformly denounced
discrimination in favor of, as well as discrimination
against, Negroes, demonstrates clearly that any legislator harboring
an unspoken desire for such a provision could not
possibly have succeeded in enacting it into law.
I
Kaiser opened its Gramercy, La., plant in 1958. Because
the Gramercy facility had no apprenticeship or in-plant craft
training program, Kaiser hired as craftworkers only persons
with prior craft experience. Despite Kaiser's efforts to locate
and hire trained black craftsmen, few were available in the
Gramercy area, and as a consequence, Kaiser's craft positions
were manned almost exclusively by whites. In February
1974, under pressure from the Office of Federal Contract Compliance
to increase minority representation in craft positions
STEELWORKERS v. WEBER 223
193 REHNQUIST, J ., dissenting
at its various plants,2 and hoping to deter the filing of employment
discrimination claims by minorities, Kaiser entered
into a collective-bargaining agreement with the United Steelworkers
of America (Steelworkers) which created a new onthe-
job craft training program at 15 Kaiser facilities, including
the Gramercy plant. The agreement required that no
less than one minority applicant be admitted to the training
program for every nonminority applicant until the percentage
of blacks in craft positions equaled the percentage of blacks
in the local work force.3 Eligibility for the craft training pro-
2 The Office of Federal Contract Compliance (OFCC), subsequently
renamed the Office of Federal Contract Compliance Programs (OFCCP),
is an arm of the Department of Labor responsible for ensuring compliance
by Government contractors with the equal employment opportunity requirements
established by Exec. Order No. 11246, 3 CFR 339 (1964-1965
Comp.), as amended by Exec. Order No. 11375, 3 CFR 684 (1966-1970
Comp.), and by Exec. Order No. 12086, 3 CFR 230 (1979).
Executive Order No. 11246, as amended, requires all applicants for federal
contracts to refrain from employment discrimination and to "take affirmative
action to ensure that applicants are employed, and that employees are
treated during employment, without regard to their ra.ce, color, religion,
sex or national origin." § 202 (1), 3 CFR 685 (1966-1970 Comp.), note
following 42 U. S. C. § 2000e. The Executive Order empowers the Secretary
of Labor to issue rules and regulations necessary and appropriate to
achieve its purpose. He, in turn, has delegated most enforcement duties
to the OFCC. See 41 CFR § 60-20.1 et seq., § 60-2.24 (1978).
The affirmative action program mandated by 41 CFR § 60-2 (Revised
Order No. 4) for nonconstruction contractors requires a "utilization" study
to determine minority representation in the work force. Goals for hiring
and promotion must be set to overcome any "underutilization" found to
exist.
The OFCC employs the "power of the purse" to coerce acceptanoo of
its affirmative action plans. Indeed, in this action, "the district court found
that the 1974 collective bargaining a11:reement reflected less of a desire on
Kaiser's part to train black craft workers than a self-interest in satisfying
the OFCC in order to retain lucrative government contracts." 563 F. 2d
216, 226 (CA5 1977).
3 The pertinent portions of the collective-bargaining agreement provide:
"It is further agreed that the Joint Committee will specifically review the
minority representation in the existing Trade, Craft and Assigned Main224
OCTOBER TERM, 1978
REHNQUIST, J ., dissenting 443 U.S.
grams was to be determined on the basis of plant seniority,
with black and white applicants t-0 be selected on the basis
of their relative seniority within their racial group.
Brian Weber is white. He was hired at Kaiser's Gramercy
plant in 1968. In April 1974, Kaiser announced that it was
offering a total of nine positions in three on-the-job training
programs for skilled craft jobs. Weber applied for a1l three
programs, but was not selected. The successful candidatesfive
black and four white applicants-were chosen in accordtenance
classifications, in the plants set forth below, and, wherr necessary,
establish certain goals and time tables in order to achieve a desired
minority ratio:
"[Gramercy Works listed, among others]
"As a.pprentice and era.ft jobs are to be filled, the contractual selection
criteria shall be applied in reaching such goals; at a minimum, not less
than one minority employee will enter for every non-minority employee
entering unt ii the goal is reached unless at a particular time there are
insufficient available qualified minority candidates ....
"The term 'minority' as used herein shall be as defined in EEOC Reporting
Requirements." 415 F. Supp. 761, 763 (ED La. 1976).
The "Joint Committer" subsequently enterrd into a "Memorandum of
Understanding" establishing a goal of 39% as the percentage of blacks that
must. be rrpresented in each "craft family" at Kaisrr's Gramercy plant.
Id., at 764. The goal of 39% minority representation was based on the
percentage of minority workers iwailable in the Gramercy area.
Cont.rary to the Court's assertion, it is not at. all clear that Kaiser's
admis~ion quota i~ a "temporary measure . . not intended t-0 maintain
racial balance." Ante, at 208. Dennis E. English, indust.rial relations
superintendent at the Gramercy plant, testified at trial:
"Once the goal is reached of 39 percent, or whatever the figure will be
down the road, I think it's subject to change, once the goal is reached in
each of the craft families, at. that time, we will then revert to a ratio of
what that percentage is, if it rrmains at 39 percent and we attain 39
percent someday, W<' will then continue placing trainees in the program at
that percentage. The idea, again, being to have a minority represrntation
in the plant that is equal to that representation in the community work
force population." App. 69.
STEELWORKERS v. WEBER 225
193 REHNQUIST, J., dissenting
ance with the 50% minority admission quota mandated under
the 1974 collective-bargaining agreement. Two of the successful
black applicants had less seniority than Weber.'
Weber brought the instant class action 5 in the United States
District Court for the Eastern District of Louisiana, alleging
that use of the 50% minority admission quota to fill vacancies
in Kaiser's craft training programs violated Title VII's prohibition
on racial discrimination in employment. The District
Court and the Court of Appeals for the Fifth Circuit
agreed, enjoining further use of race as a criterion in admitting
applicants to the era.ft training programs.6
4 In addition to the April programs, the company offered three more
training programs in 1974 with a total of four positions available. Two
white and two black employees were selected for the programs, which were
for "Air Conditioning Repairman" (one position), "Carpenter-Painter"
(two positions), and "Insulator" (one position). Weber sought to bid for
the insulator trainee position, but he was not selected because that job
was reserved for the most senior qualified black employee. Id., at 46.
5 The class was defined to include the following employees:
"All persons employed by Kaiser Aluminum & Chemical Corporation at
its Gramercy, Louisiana, works who are members of the United Steelworkers
of America, AFL-CIO Local 5702, who are not members of a
minority group, and who have applied for or were eligible to apply for
on-the-job training programs since February 1, 1974." 415 F. Supp., at
763.
6 In upholding the District Court's injunction, the Court of Appeals
affirmed the District Court's finding that Kaiser had not been guilty of
any past discriminatory hiring or promotion at its Gramercy plant. The
court thus concluded that this finding removed the instant action from this
Court's line of "remedy" decisions authorizing fictional seniority in order
to place proved victims of discrimination in as good a position as they
would have enjoyed absent the discriminatory hiring practices. See
Franks Y. Bowman Transp. Co., 424 U. S. 747 (1976). "In the absence
of prior discrimination," the Court of Appeals observed, "a racial quota
loses its character as an equitable remedy and must be banned as an
unlawful racial preference prohibited by Title VII, §§ 703 (a) and (d).
Title VII outlaws preferences for any group, minority or majority, if based
on race or other impermissible classifications, but it does not outlaw
preferences favoring victims of discrimination." 563 F. 2d, at 224 (em226
OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
II
Were Congress to act today specifically to prohibit the type
of racial discrimination suffered by Weber, it would be hard
pressed to draft language better tailored to the task than that
found in § 703 (d) of Title VII:
"It shall be an unlawful employment practice for any
employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training or
retraining, including on-the-job training programs to discriminate
against any individual because of his race, color,
religion, sex, or national origin in admission to, or employment
in, any program established to provide apprenticeship
or other training." 78 Stat. 256, 42 U. S. C.
§ 2000e-2 (d).
phasis in original). Nor was the Court of Appeals moved by the claim
that Kaiser's discriminatory admission quota is justified to correct a lack
of training of Negroes due to past societal discrimination: "Whatever other
effects societal discrimination may have, it has had-by the specific finding
of the court below-no effect on the semority of any party here." Id., at
226 (emphasis in original). Finally, the Court of Appeals rejected the
argument that Kaiser's admission quota does not violate Title VII because
it is sanctioned, indeed compelled, by Exec. Order No. 11246 and regulations
issued by the OFCC mandating affirmative action by all Government
contractors. See n. 2, supra. Citing Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579 (1952), the court concluded that "[i]f Executive
Order 11246 mandates a racial quota for admission to on-the-job training
by Kaiser, in the absence of any prior hiring or promotion discrimination,
the Executive Order must fall before this direct congressional prohibition
[of§ 703 (cl)]." 563 F. 2d, at 227 (emphasis in original).
Judge Wisdom, in dissent, argued that "[i]f an affirmative action plan,
adopted in a collective bargaining agreement, is a reasonable remedy for
an arguable violation of Title VII, it should be upheld." Id., at 230. The
United States, in its brief before this Court, and MR. JusTICE BLACKMUN,
ante, p. 209, largely adopt Judge Wisdom's theory, which apparently rests
on the conclusion that an employer is free to correct arguable discrimination
against his black employees by adopting measures that he knows will
discriminate against his white employees.
STEEL WORKERS v. WEBER Z27
193 REHNQUIST, J., dissenting
Equally suited to the task would be§ 703 (a)(2), which makes
it unlawful for an employer to classify his employees "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." 78 Stat. 255, 42 U. S. C.
§ 2000e-2 (a) (2).7
Entirely consistent with these two express prohibitions is
the language of § 703 (j) of Title VII, which provides that the
Act is not to be interpreted "to require any employer ... to
grant preferential treatment to any individual or to any group
because of the race ... of such individual or group" to correct
a racial imbalance in the employer's work force. 42 U. S. C.
§ 2000e-2 (j) .8 Seizing on the word "require," the Court
7 Section 703 (a) (1) provides the third express prohibition in Title VII
of Kaiser's discriminatory admission quota:
"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 .... " 78 Stat. 255, 42 U. S. C.
§ 2000e-2 (a) (1).
8 The full text of §703(j), 78 Stat. 257, 42 U.S. C. §2000e-2(j),
provides as follows:
"Nothing contained in this title shall be interpreted to require any
employer, employment agency, labor organization, or joint labor-management
committee subject to this t itle to grant preferential treatment
to any individual or to any group because of the race, color, religion,
sex, or national origin of such individual or group on a.ccount of
an imbalance which may exist with respect to the total number or percentage
of persons of any ra.ce, color, religion, ~ex, or national origin employed
by any employer, referred or classified for employment by any
employment agency or labor organization, admitted to membership or
classified by any labor organization, or admitted to, or employed in, any
apprenticeship or other training program, in comparison with the total
number or percentage of persons of such race, color, religion, sex, or national
origin in any community, State, section, or other area, or in the
available work force in any community, State, section, or other area."
228 OCTOBER TERM, 1978
REHNQUIST, J ., dissenting 443 u. s.
infers that Congress must have intended to "permit" this type
of racial discrimination. Not only is this reading of § 703 (j)
outlandish in the light of the flat prohibitions of §§ 703 (a)
and (d), but, as explained in Part III, it is also totally belied
by the Act's legislative history.
Quite simply, Kaiser's racially discriminatory admission
quota is flatly prohibited by the plain language of Title VII.
This normally dispositive fact,9 however, gives the Court only
momentary pause. An "interpretation" of the statute upholding
Weber's claim would, according to the Court, "'bring
about an end completely at variance with the purpose of the
statute.'" Ante, at 202, quoting United States v. Public Utilities
Comm'n, 345 U. S. 295, 315 (1953). To support this
conclusion, the Court calls upon the "spirit" of the Act, which
it divines from passages in Title VII's legislative history indicating
that enactment of the statute was prompted by Congress'
desire "'to open employment opportunities for Negroes
in occupations which [hadJ been traditionally closed to them.'"
Ante, at 203, quoting ll0 Cong. Rec. 6548 (1964) (remarks of
Sen. Humphrey) .10 But the legislative history invoked by
9 "If the words are plain, they give meaning to the act, and it is neither
the duty nor the privilege of the courts to enter speculative fields in search
of a different meaning.
" . . . [WJ hen words are free from doubt they must be taken as the
final expression of the legislative intent, and are not to be added to or
subtracted from by considerations drawn ... from any extraneous souroe."
Caminetti v. United States, 242 U.S. 470,490 (1917).
10 In holding that Title VII cannot be interpreted to prohibit use of
Kaiser's racially discriminatory admission quota, the Court reasons that it
would be "ironic" if a law inspired by the history of racial discrimination
in employment against blacks forbade employers from voluntarily discriminating
against whites in favor of blacks. I see no irony in a law
that prohibits all voluntary racial discrimination, even discrimination directed
at whites in favor of blacks. The evil inherent in discrimination
against Negroes is that it is based on an immutable characteristic, utterly
irrelevant to employment decisions. The characteristic becomes no less
STEELWORKERS v. WEBER 229
193 REHNQUIST, J ., dissenting
the Court to avoid the plain language of §§ 703 (a) and (d)
simply misses the point. To be sure, the reality of employment
discrimination against Negroes provided the primary
impetus for passage of Title VII. But this fact by no means
supports the proposition that Congress intended to leave employers
free to discriminate against white persons.11 In most
i=utable and irrelevant, and discrimination based thereon becomes no
less evil, simply because the person excluded is a member of one race
rather than another. Far from ironic, I find a prohibition on all preferential
treatment based on race as elementary and fundamental as the principle
that "two wrongs do not make a right."
11 The only shred of legislative history cited by the Court in support of
the proposition that "Congress did not intend wholly to prohibit private
and voluntary affirmative action efforts," ante, at 203, is the following excerpt
from the Judiciary Committee Report accompanying the civil rights
bill reported to the House:
"No bill can or should lay claim to elimin,iting all of the ca.uses and
consequences of racial and other types of discrimination against minorities.
There is reason to believe, however, that national leadership provided
by the enactment of Federal legislation dealing with the most
troublesome problems will create an atmosphere conducive to voluntary or
local resolution of other forms of discrimination." H. R. Rep. No. 914,
88th Cong., 1st Sess., pt. 1, p. 18 (1963) (hereinafter H. R. Rep.), quoted
ante, at 203-204.
The Court seizes on the italicized language to support its conclusion that
Congress did not intend to prohibit voluntary imposition of racially discriminatory
employment quotas. The Court, however, stops too short in
its reading of the House Report. The words immediately following the
material excerpted by the Court are as follows:
"It is, however, possible and necessary for the Congress to enact legislation
which prohibits and provides the means of terminating the most
serious types of discrimination. This H. R. 7152, as amended, would
achieve in a number of related areas. It would reduce discriminatory
obstacles to the exercise of the right to vote and provide means of expediting
the vindication of that right. It would make it possible to remove
the daily affront and humiliation involved in discriminatory denials of
access to facilities ostensibly open to the general public. It would guarantee
that there will be no discrimination upon recipients of Federal
financial assistance. It would prohibit discrimination in employment, and
230 OCTOBER TERM, 1978
REHNQUIST, J ., dissenting 443 U.S.
cases, "[l] egislative history ... is more vague than the statute
we are called upon to interpret." United States v. Public
Utilities Comm'n .. supra, at 320 (Jackson, J., concurring).
Here, however, the legislative history of Title VII is as clear
as the language of §§ 703 (a) and (d), and it irrefutably
demonstrates that Congress meant precisely what it said in
§§ 703 (a) and (d)-that no racial discrimination in employment
is permissible under Title VII, not even preferential
treatment of minorities to correct racial imbalance.
III
In undertaking to review the legislative history of Title VII,
I am mindful that the topic hardly makes for light reading,
provide means to expedite termination of discrimination in public education.
It would open additional avenues to deal with redress of denials
of equal protection of the laws on account of race, color, religion, or national
origin by State or local authorities." H. R. Rep., pt. 1, p. 18
(emphasis added).
When thus read in context, the meaning of the italicized language in
the Court's excerpt of the House Report becomes clear. By dealing with
"the most serious types of discrimination," such as discrimination in voting,
public accommodations, employment, etc., H. R. 7152 would hopefully
inspire "voluntary or local resolution of other forms of discrimination,"
that is, forms other than discrimination in voting, public accommoda.tions,
employment, etc.
One can also infer from the House Report that the Judiciary Committee
hoped that federal legislation would inspire voluntary elimination
of discrimination against minority groups other th.an those protected
under the bill, perhaps the aged and handicapped to name just two. In
any event, the House Report does not support the Court's proposition
that Congress, by banning racial discrimination in employment, intended
to permit racial discrimination in employment.
Thus, examination of the House Judiciary Committee's report reveals
that the Court's interpretation of Title VII, far from being compelled
by the Act's legislative history, is utterly without support in that legi5lative
history. Indeed, as demonstrated in Part III, infra, the Court's interpretation
of Title VII is totally refuted by the Act's legislative history.
STEELWORKERS v. WEBER 231
193 REHNQUIST, J., dissenting
but I am also fearful that nothing short of a thorough examination
of the congressional debates will fully expose the magnitude
of the Court's misinterpretation of Congress' intent.
A
Introduced on the floor of the House of Representatives on
June 20, 1963, the bill-H. R. 7152- that ultimately became
the Civil Rights Act of 1964 eontained no compulsory provisions
directed at private discrimination in employment. The
bill was promptly referred to the Committee on the Judiciary,
where it was amended to include Title VII. With two exceptions,
the bill reported by the House Judiciary Committee
contained§§ 703 (a) and (d) as they were ultimately enacted.
Amendments subsequently adopted on the House floor added
§ 703's prohibition against sex discrimination and § 703 ( d) 's
coverage of "on-the-job training."
After noting that "[tlhe purpose of [Title VII] is to eliminate
... discrimination in employment based on race, color,
rrligion, or national origin," thf' Judiciary Committee's Report
simply paraphrased the provisions of Title VII without elaboration.
H. R. R<>p., pt. 1, p. 26. In a separate Minority
Report, howevPr, opponents of the measure on the Committre
advanced a Iinf' of attack which was reiterated throughout the
debatrs in both the House and Senate and which ultimately
led to passage of § 703 (.j). Noting that the word "discrimination"
was nowhere defined in H. R. 7152, the Minority
Rrport charged that the absence from Title VII of any reference
to "racial imbalance" was a "public relations" ruse and
that "the administration intends to rely upon its own construction
of 'discrimination' as including the lack of racial
balance .... " H. R. Rep., pt. 1, pp. 67-68. To demonstrate
how the bill would oprrate in practice, the Minority Report
posifrd a number of hypothetical employment situations, concluding
in each example that the employer "may be forced to
hire according to race, to 'racially balance' those who work for
232 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 u. s.
him in every job classification or be in violation of Federal
law." Id., at 69 (emphasis in original).12
When H. R. 7152 reached the House floor, the opening
speech in support of its passage was delivered by Representative
Celler, Chairman of the House Judiciary Committee and
the Congressman responsible for introducing the legislation.
A portion of that speech responded to criticism "seriously mis-
12 One example has particular relevance to the instant litigation:
''Under the power granted in this bill, if a carpenters' hiring hall, say, had
20 men awaiting call, the ,first 10 in seniority being white carpenters, the
union could be forced to pass them over in favor of carpenters beneath
them in seniority but of the stipulated race. And if the union roster did
not contain the names of the carpenters of the race needed to 'racially
balance' the job, the union agent must, then, go into the street and recruit
members of the stipulated race in sufficient number to comply with Federal
orders, else his local could be held in violation of Federal law." H. R.
Rep., pt. 1, p. 71.
From this and other examples, the ::\iinority Report concluded: "That
this is, in fact, a not too subtle system of racism-in-reverse cannot be
successfully denied." Id., at 73.
Obviously responding to the Minority Report's charge that federal
agencies, particularly the Equal Employment- Opportunity Commission
would equate "discrimination" with "racial imbalance," the Republican
sponsors of the bill on the Judiciary Committee stated in a separate
Report:
"It must also be stressed that the Commission must confine its activities
to correcting abuse, not promoting equality with mathematical certainty.
In this regard, nothing in the title permits a person to demand employment.
. . . Internal affairs of employers and labor organizations must
not be interfered with except to the limited extent that correction is required
in discrimination practices. Its primary task is to make certain
that the channels of employment are open to persons regardless of their
race and that jobs in companies or membership in unions are strictly
filled on the basis of qualification." Id., pt. 2, p. 29.
The Republican supporters of the bill concluded their remarks on Title
VII by declaring that "[a]ll vestiges of inequality based solely on race
must be removed .... " Id., at 30.
STEELWORKERS v. WEBER 233
193 REHNQUIST, J., dissenting
represent[ing] what the bill would do and grossly distort[ing]
its effects":
"[T] he charge has been made that the Equal Employment
Opportunity Commission to be established by title
VII of the bill would have the power to prevent a business
from employing and promoting the people it wished,
and that a 'Federal inspector' could then order the hiring
and promotion only of employees of certain races or relig10us
groups. This description of the bill is entirely
wrong ....
"Even [a] court could not order that any preference
be given to any particular race, religion or other group,
but would be limited to ordering an end of discrimination.
The statement that a Federal inspector could order the
employment and promotion only of members of a specific
racial or religious group is therefore patently erroneous.
" ... The Bill would do no more than prevent ... employers
from discriminating against or in favor of workers
because of their race, religion, or national origin.
"It is likewise not true that the Equal Employment Opportunity
Commission would have power to rectify existing
'racial or religious imbalance' in employment by
requiring the hiring of certain people without regard to
their qualifications simply because they are of a given
race or religion. Only actual discrimination could be
stopped." 110 Cong. Rec. 1518 (1964) (emphasis added).
Representative Ce1Ier's construction of Title VII was repeated
by several other supporters during the House debate.13
13 Representative Lindsay had this to say:
"This legislation ... does not, as has been suggested heretofore both on
and off the floor, force acceptance of people in ... jobs ... because they
are Negro. It does not impose quotas or any special privileges of seniority
234 OCTOBER TERM, 1978
REHNQU1sT, .J., dissenting 443 U.S.
Thus, the battle lines were drawn early in the legislative
struggle over Title VII, with opponents of the measure charging
that agencies of the Federal Government such as the Equal
Employment Opportunity Commission (EEOC), by interpreting
the word "discrimination" to mean the existence of "racial
imbalance," would "require" employers to grant preferential
treatment to minorities, and supporters responding that the
EEOC would be granted no such power and that, indeed, Title
VII prohibits discrimination "in favor of workers because of
their race." Supporters of H. R. 7152 in the House ultimately
prevailed by a vote of 290 to 130,14 and the measure was sent
to the Senate to begin what became the longest debate in that
body's history.
or acceptance. There is nothing whatever in this bill about racial balance
as appears so frequently in the minority report of the Committee.
"What the bill does do is prohibit discrimination because of race .... "
110 Cong. Rec. 1540 (1964).
Representative Minish added: "Under title VII, employment will be on
the basis of merit, not of race. This means that no quota system will be
set up, no one will be forced to hire incompetent help because of race or
religion, and no one will be given a vested right to demand employment
for a certain job." Id., at 1600. Representative Goode11, answering the
charge that Title VII would be interpreted "to requir[e] a racial baJance,"
id., at 2557, responded: "There is nothing here as a matter of legisla.tiv€
history that would require racial balancing. . . . We are not talking about
a union having to balance its membership or an employer having to
balance the number of employees. There is no quota involved. It is a
matter of an individual's rights having been violated, charges having
been brought, investigatjon carried out and conciliation having been attempted
and then proof in court that there was discrimination and denial
of rights on the basis of race or color." Id., at 2558. After H. R. 7152
had been passed and sent to the Senate, Republican supporters of the
bill in the House prepared an interpretative memorandum making clear
that "title VII does not permit the ordering of racial quotas in businesses
or unions and does not permit interferences with seniority rights of employees
or union members." Id., at 6566 (emphasis added).
14 Eleven Members did not vote.
STEELWORKERS v. WEBER 235
193 REHNQUIST, J., dissenting
B
The Senate debate was broken into three phases: the debate
on sending the bill to Committee, the general debate on the
bill prior to invocation of cloture, and the debate following
cloture.
1
When debate on the motion to refer the bill to Committee
opened. opponents of Title VII in the Senate immediately
echoed the fears expressed by their counterparts in the House,
as is demonstrated by the following colloquy between Senators
Hill and Ervin :
"Mr. ERVIN. I invite attention to ... Section [703
(a)] ....
"I ask the Senator from Alabama if the Commission
could not tell an employer that he had too few employees,
that he had limited his employment, and enter an order,
under [Section 703 (a)], requiring him to hire more persons,
not because the employer thought he needed more
persons, but because the Commission wanted to compel
him to employ persons of a particular race.
"Mr. HILL. The Senator is correct. That power is
written into the bill. The employer could be forced to
hire additional persons . . . ." 110 Cong. Rec. 4764
(1964).15
15 Continning with their exchange, Senators Hill and Ervin broached
the subject of racial balance:
"Mr. ERVIN. So if the Commissioner ... l'hould be joined by another
member of the CommiSl'ion in the finding that the employer had too high
a percentage, in the Commission's judgment, of persons of the Caucasian
race working in his business, they <'OUlrl make the employer either hire, in
addition to his present employees, an extra number of Nf'11;ro employees,
or compf'I him to fire employees of the Caucasian race in order to make a
place for Negro employees?
"Mr. HILL. The Senator is correct, although the employer might not
236 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
Senator Humphrey, perhaps the primary moving force behind
H. R. 7152 in the Senate, was the first to state the proponents'
understanding of Title VII. Responding to a political advertisement
charging that federal agencies were at liberty to
interpret the word "discrimination" in Title VII to require
racial balance, Senator Humphrey stated: "[T]he meaning
of racial or religious discrimination is perfectly clear. . . .
[I]t means a distinction in treatment given to different individuals
because of their different race, religion, or national
origin." Id., at 5423.16 Stressing that Title VII "does not
limit the employer's freedom to hire, fire, promote or demote
for any reasons- or no reasons-so long as his action is not
need the additional employees, and although they might bring his business
into bankruptcy." 110 Cong. Rec. 4764 (1964).
This view was reiterated by Senator Robertson:
"It is contemplated by this title that the percentage of colored and white
population in a community shall be in similar percentages in every business
establishment that employs over 25 persons. Thus, if there were
10,000 colored persons in a city and 15,000 whites, an employer with 25 employees
would, in order to overcome racial imbalance, bo required to have
10 colored personnel and 15 white. And if by chance that employer had
20 colored employees, he would have to fire 10 of them in order to rectify
the situation. Of course, this works the other way around where whites
would be fired." Id., at 5092.
Senator Humphrey interrupted Senator Robertson's discussion, responding:
"The bill does not require that at all. If it did, I would vote against
it. . . . There is no percentage quota." Ibid.
16 This view was reiterated two days later in the "Bipartisan Civil Rights
Newsletter" distributed to the Senate on March 19 by supporters of
H. R. 7152:
"3. Defining discrimination: Critics of the civil rights bill have charged
that the word 'discrimination' is left undefined in the bill and therefore
the door is open for interpretation of this term according to 'whim or
caprice.' ...
"There is no sound basis for uncertainty about the meaning of discrimination
in the context of the civil rights bill. It means a distinction in
treatment given to different individuals because of their different race,
religion, or national origin." Id., at 7477.
STEELWORKERS v. WEBER 237
193 REHNQUIS'l', .T., dissenting
based on race," Senator Humphrey further stated that
"nothing in the hiH would permit any official or court to
require any employer or labor union to give preferential
treatment to any minority group." lbid.17
After 17 days of debate, the Senate voted to take up the hill
directly, without referring it to a committee. Id., at 6455.
Consequently, there is no Committee Report in the Senate.
2
Formal debate on the merits of H. R. 7152 began on March
30, 1964. Supporters of the bill in the Senate had made
elaborate preparations for this second round. Senator Humphrey,
the majority whip, and Senator Kuchel, the minority
whip, were selected as the bipartisan floor managers on the
entire civil rights bill. Responsibility for explaining and defending
each important title of the bill was placed on bipartisan
"captains." Senators Clark and Case ·were selected as the
bipartisan captains responsible for Title VII. Vaas, Title
VII: Legislative History, 7 B. C. Ind. & Com. L. Rev. 431,
444--445 (1966) (hereinafter Title VII: Legislative History).
In the opening speech of the formal Senate debate on the
bill, Senator Humphrey address<.'d th<.' main concern of Title
17 Earlier in the debatr, Senator Humphrey had introduced a newspaper
artide quoting the answers of a Justice Department "expert" t-0 the "10
most commonly expressed objections to rTitle VII]." Insofar as is pertinent
here, the article stated:
"Objection: The law would rm power Federal 'inspectors' to require
employers to hire by race. White people would be fired to make room
for Negroes. Seniority rights would be destroyed ....
"Reply: The bill requires no such thing. The five-member Equal
Employment Opportunity Commission that would be created would have
no powers to order anything. . . .
" ... The bill would not authorize anyone to order hiring or firing to
achieve racial or religious balance. An employer will remain wholly free
to hire on the basis of his needs and of the job candidate's qualifications.
What is prohibited is the refusal to hire someone because of his race or
religion. Similarly, the law will have no effect on union seniority rights."
Id., at 5094.
238 OCTOBER TERM, 1978
REHNQUIST, J ., dissenting 443 U.S.
VII's opponents, advising that not only does Title VII not
require use of racial quotas, it does not permit their use.
"The truth," stated the floor leader of the bill, "is that this
title forbids discriminating against anyone on account of race.
This is the simple and complete truth about title VII." 110
Cong. Rec. 6549 (1964). Senator Humphrey continued:
"Contrary to the allegations of some opponents of this
title, there is nothing in it that will give any power to the
Commission or to any court to require hiring, firing, or
promotion of employees in order to meet a racial 'quota'
or to achieve a certain racial balance.
"That bugaboo has been brought up a dozen times;
but it is nonexistent. In fact, the very opposite is true.
Title VII prohibits discrimination. In effect, it says that
race, religion and national origin are not to be used as
the basis for hiring and firing. Title VII is designed to
encourage hiring on the basis of ability and qualifications,
not race or religion." Ibid. (emphasis added).
At the close of his speech, Senator Humphrey returned briefly
to the subject of employment quotas: "It is claimed that the
bill would require racial quotas for all hiring, when in fact it
provides that ra.ce shall not be a basis for making personnel
decisions." Id., at 6553.
Senator Kuchel delivered the second major speech in support
of H. R. 7152. In addressing the concerns of the opposition,
he observed that " [ n] othing could be further from the
truth" than the charge that "Federal inspectors" would be
empowered under Title VII to dictate racial balance and preferential
advancement of minorities. Id., at 6563. Senator
Kuchel emphasized that seniority rights would in no way be
affected by Title VII: "Employers and labor organizations
could not discriminate in favor of or against a person because
of his race, his religion, or his national origin. In such matters
... the bill now before us ... is color-blind." Id., at
6564 (emphasis added).
STEELWORKERS v. WEBER 239
193 REHNQUrsT, J ., dissenting
A few days later the Senate's attention focused exclusively
on Title VII, as Senators Clark and Case rose to discuss the
title of H. R. 7152 on which they shared floor "captain" responsibilities.
In an interpretative memorandum submitted
jointly to the Senate, Senators Clark and Case took pains to
refute the opposition's charge that Title VII would result in
preferential treatment of minorities. Their words were clear
and unequivocal:
''There is no requirement in title VII that an employer
maintain a racial balance in his work force. On the contrary,
any deliberate attempt to maintain a racial balance,
whatever such a balance may be, would involve a
violation of title VII because maintaining such a balance
would require an employer to hire or to refuse to hire on
the basis of race. It must be emphasized that discrimination
is prohibited as to any individual." Id., at 7213.18
18 In obvious reference to the charge that the word "discrimination" in
Title VII would be interpreted by federal agencies to mean the absence of
racial balance, the interpretative memorandum stated:
"[Section 703] prohibits discrimination in employment because of race,
color, religion, sex, or national origin. It has been suggested that the
concept of discrimination is vague. In fact it is clear and simple and
has no hidden meanings. To discriminate is to make a distinction, to
make a difference in treatment or favor, and those distinctions or differences
in treatment or favor which are prohibited by [Section 703] are
those which are based on any five of the forbidden criteria: race, color,
religion, sex, and national origin." Id., at. 7213 (emphasis added).
Earlier in his speech, Senator Clark introduced a memorandum prepared
at his request by the Justice Department with the purpose of
responding to criticisms of Title VII leveled by opponents of the measure,
particularly Senator Hill. With regard to racial balance, the Justice Department
stated:
"Finally, it has been asserted that title VII would impose a requirement
for 'racial balance.' This is incorrect. There is no provision ...
in title VII ... that requires or authorizes any Federal agency or Federal
court to require preferential treatment for any individual or any group
for the purpose of achieving racial balance. . . . No employer is required
to maintain any ratio of Negroes to whites . . . . On the contrary,
240 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
Of particular relevance to the instant litigation were their observations
regarding seniority rights. As if directing their
comments at Brian Weber, the Senators said:
"Title VII would have no effect on established seniority
rights. Its effect is prospective and not retrospective.
Thus, for example, if a business has been discriminating
in the past and as a result has an all-white working force,
when the title comes into effect the employer's obligation
would be simply to fill future vacancies on a nondiscriminatory
basis. He would not be obliged-or indeed permitted-
to fire whites in order to hire Negroes, or to
pref er Negroes for future vacancies, or, once Negroes are
hired, to give them special seniority rights at the expense
of the white workers hired earlier." Ibid. ( emphasis
added).19
any deliberate attempt to maintain a given balance would almost certainly
run afoul of title VII because it would involve a failure or refusal
to hire some individual because of his race, color, religion, sex, or national
origin. What title VII seeks to accomplish, what the civil rights bill
seeks to accomplish is equal treatment for all." Id., at 7207.
19 A Justice Department memorandum earlier introduced by Senator
Clark, see n. 18, supra, expressed the same view regarding Title VII's
impact on seniority rights of employees:
"Title VII would have no effect on seniority rights existing at the time it
takes effect. . . . This would be true even in the case where owing to
discrimination prior to the effective date of the title, white workers had
more seniority than Negroes. . . . [A]ssuming that seniority rights were
built up over a period of time during which Negroes were not hired, these
rights would not be set aside by the taking effect of title VII. Employers
and labor organizations would simply be under a duty not to discriminate
against ~egroes because of their race." 110 Cong. Rec. 7207 (1964).
The interpretation of Title VII contained in the memoranda introduced
by Senator Clark totally refutes the Court's implied suggestion that
Title VII would prohibit an employer from discriminating on the basis
of race in order to maintain a racial balance in his work force, but would
permit him to do so in order to a,chieve racial balance. See ante, at 208,
and n. 7.
The maintain-achieve distinction is analytically indefensible in any event.
STEELWORKERS v. WEBER 241
193 REHNQUIST, J., dissenting
Thus, with virtual clairvoyance the Senate's leading supporters
of Title VII anticipated precisely the circumstances of
this case and advised their colleagues that the type of minority
preference employed by Kaiser would violate Title VII's ban
on racial discrimination. To further accentuate the point,
Senator Clark introduced another memorandum dealing with
common criticisms of the bill, including the charge that racial
quotas would be imposed under Title VII. The ans,ver was
simple and to the point: "Quotas are themselves discriminatory."
Id., at 7218.
Despite these clear statements from the bill's leading and
most knowledgeable proponents, the fears of the opponents
Apparently, the Court is saying that an employer is free to achieve a
racially balanced work force by discriminating against whites, but that
once he has reached his goal, he is no longer free to discriminate in order
to maintain that racial balance. In other words, once Kaiser reaches its
goal of 39% minority representation in craft positions at the Gramercy
plant, it can no longer comidn race in admitting employees into its on-thejob
training programs, e\'en if the programs become as "all-white" as
they were in April 1974.
Obviously, the Court is driven to this illogical position by the glaring
statement, quoted in text, of Senators Clark and Case that "any deliberate
attempt to maintain a racial balance ... would involve a violation of title
VII because maintaining such a balance would require an employer to hire
or to refuse to hire on the basis of race." 110 Cong. Rec. 7213 (1964)
(emphasis added). Achieving a certain racial balance, however, no less
than maintaining such a balance, would require an employer to hire or to
refuse to hire on thr basis of race. Further, the Court's own conclusion
that Title VII's legislative historr, coupled with the wording of§ 703 (j),
evinces a congressional intrnt to leave employers free to employ "private,
voluntary, race-conscious affirmative action plans," ante, at. 208, is inconsistent
with its maintain-achieve distinction. If Congress' primary purpose
in enacting Title VII was to open employment opportunities previously
closed to Negroes, it would seem to make little difference whether the
employer opening those opportunitiPs was achiPving or maintaining a certain
racial balance in his work force. Likewise, if § 703 (j) evinces Congress'
intent to permit imposition of race-conscious nffirmative action plans,
it would seem to make little difference whether the plan was adopted to
achieve or maintain the desired racial balance.
242 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443U.S.
were not put to rest. Senator Robertson reiterated the view
that "discrimination" could be interpreted by a federal
"bureaucrat" to require hiring quotas. Id., at 7418-7420.20
Senators Smathers and Sparkman, while conceding that Title
VII does not in so many words require the use of hiring
quotas, repeated the opposition's view that employers would
be coerced to grant preferential hiring treatment to minorities
by agencies of the Federal Government.21 Senator Williams
was quick to respond:
"Those opposed to H. R. 7152 should realize that to hire
a Negro solely because he is a Negro is racial discrimination,
just as much as a 'white only' employment policy.
Both forms of discrimination are prohibited by title VII
of this bill. The language of that title simply states that
race is not a qualification for employment. . . . Some
people charge that H. R. 7152 favors the Negro, at the
expense of the white majority. But how can the language
of equality favor one race or one religion over
another? Equality can have only one meaning, and that
meaning is self-evident to reasonable men. Those who
say that equality means favoritism do violence to common
sense." Id., at 8921.
20 Senator Robertson's cbservations prompted Senator Humphrey to
make the following offer: "If the Senator can find in title VII . . . any
language which provides that an employer will have to hire on the basis
of percentage or quota related to color ... I will start eating the pages one
after another, because it is not in there." 110 Cong. Rec. 7420 (1964).
21 Referring to the EEOC, Senator Smathers argued that Title VII
"would make possible the creation of a Federal bureaucracy which would,
in the final analysis, cause a man to hire someone whom he did not want
to hire, not on the basis of ability, but on the basis of religion, color, or
creed .... " Id., at 8500. Senator Sparkman's comments were to the
same effect. See n. 23, infra. Severa.I other opponents of Title VII
expressed similar views. See 110 Cong. Rec. 9034-9035 (1964) (remarks
of Sens. Stennis and Tower); id., at 9943-9944 (remarks of Sens. Long
and Talmadge); id., at 10513 (remarks of Sen. Robertson).
STEELWORKERS v. WEBER 243
193 REHNQUIST, J ., dissenting
Senator Williams concluded his remarks by noting that Title
VII's only purpose is "the elimination of racial and religious
discrimination in employment." lbid.22 On May 25, Senator
Humphrey again took the floor to defend the bill against
"the well-financed drive by certain opponents to confuse and
mislead the American people." Id., at 11846. Turning once
again to the issue of preferPntial treatment, Senator Humphrey
remained faithful to the view that he had repeatedly
expressed:
"The title does not provide that any preferential treatment
in employment shall be given to Negroes or to any
other persons or groups. It does not provide that any
quota systems may be established to maintain racial balance
in employment. In fact, the title would prohibit
preferential treatment for any particular group, and any
person, whether or not a member of any minority group,
would be permitted to file a complaint of discriminatory
employment practices." Id., at 11848 (emphasis added).
While the debate in the Senate raged, a bipartisan coalition
under the leadership of Senators Dirksen, Mansfield, Humphrey,
and Kuchel was working with House leaders and representatives
of the Johnson administration on a number of
amendments to H. R. 7152 designed to enhance its prospects
of passage. The so-called "Dirksen-Mansfield" amendment
was introduced on May 26 by Senator Dirksen as a substitute
for the entire House-passed bill. The substitute bill, which
ultimately became law, left unchanged the basic prohibitory
language of § § 703 (a) and ( d), as well as the remedial provisions
in § 706 (g). It added, however, several provisions defining
and clarifying the scope of Title VII's substantive pro-
22 Several other proponents of H. R. 7152 commented briefly on Title
VII, observing that it did not authorize the imposition of quotas to correct
racial imbalance. See id., at 9113 (remarks of Sen. Keating); id., at 9881-
9882 (remarks of Sen. Allott); id., at 10520 (remarks of Sen. Ca.rlson);
id., at 11768 (remarks of Sen. McGovern).
244 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
hibitions. One of those clarifying amendments,§ 703 (j), was
specifically directed at the opposition's concerns regarding
racial balancing and preferential treatment of minorities, providing
in pertinent part: "Nothing contained in [Title VII]
shall be interpreted to require any employer . . . to grant
preferential treatment to any individual or to any group because
of the race ... of such individual or group on account
of" a racial imbalance in the employer's work force. 42
U. S. C. § 2000e-2 (j); quoted in full in n. 8, supra.
The Court draws from the language of § 703 (j) primary
support for its conclusion that Title VII's blanket prohibition
on racial discrimination in employment does not prohibit preferential
treatment of blarks to correct racial imbalance. Alleging
that opponents of Title VII had argued (I) that the Act
would be interpreted to require employers with racially imbalanced
work forces to grnnt preferential treatment to minorities
and (2) that "employers with racially imbalanced work
forces would grant preferential treatment to racial minorities,
even if not required to do so by the Act," ante, at 205, the Court
concludes that § 703 (j) is responsive only to the opponents'
first objection and that Congress therefore must have intended
to permit voluntary, private discrimination against whites in
order to correct racial imbalance.
Contrary to the Court's analysis, the language of § 703 (j)
is precisely tailored to the objection voiced time and again by
Title VII's opponents. Not once during the 83 days of debate
in the Senate did a speaker, proponent or opponent, suggest
that the bill would allow employers voluntaril11 to prefer racial
minorities over white persons.2" In light of Title VII's flat
23 The Court cites the remarks of Senator Sparkman in support of its
suggestion that opponents had argued that employers would take it upon
themselves to balance their work forces by granting preferential treatment
to racial minorities. In fact, Senator Sparkman's comments accurately
reflerted the opposition's "party line." He argued that while the language
of Title VII does not expressly require imposition of racial quotas (no one,
of course, had ever argued to the contrary), the law would be applied by
STEELWORKERS v. WEBER 245
193 RF:HNQUIST, J., dissenting
prohibition on discrimination "against any individual ...
because of such individual's race," § 703 (a), 42 U. S. C.
§ 2000e-2 (a), such a contention would have been, in any
event, too preposterous to warrant response. Indeed, speakers
on both sides of the issue, as the legislative history makes
clear, recognized that Title VII would tolerate no voluntary
racial preference, whether in favor of blacks or whites. The
complaint consistently voiced by the opponents was that Title
VII, particularly the word "discrimination," would be interpreted
by federal agencies such as the EEOC to require the
federal agencies in such a way that "some kind of quota system will be
used." Id., at 8619. Senator Sparkman's view is rPflected in the following
exchange with Senator Stennis:
"Mr. SPARKMAN. At any ratr, when the Government agent came
to interview an rmployer who had 100 persons in his rmploy, the first
question would be, 'How many Negroes are you employing?' Suppose
the population of that area was 20 perrrnt Kegro. Immediately the agent
would say, 'You should haYe at least 20 Kegroes in your employ, and
they should be distributed among your supervisory personnel and in all
the other categories'; and the agent would insist that that be done
immediately.
"Mr. STENNIS ....
"The Senator from Alabama has made very clear his point about employment
on the quota basis. Would not the same basis be applied to
promotions?
"Mr. SPARKMA~. Certainly it would. As I have said, when the
Federal agents came to check on the situation in a ,:mall business which
had 100 employees, and when the agents said to the employer, 'You must
hire 20 Negroes, and some of them must be employed in supervisory capacitiPs,'
and so forth, and so on, the agent would also say, 'And you must
promote the Negroes, too, in order to distribute them evenly among
the various ranks of your employees.'" Id., at 8618 (emphasis added).
Later in his r!'marks, Senator Sparkman stated: "Certainly the suggestion
will be made to a small business that may have a small Government contract
... that if it does not carry out the suggestion that has been made to
the company by an inspector, its Government contract will not be renewed."
Ibid. Except for the size of the business, Senator Sparkman
has seen his prophecy fulfilled in this case.
246 OCTOBER TERM, 1978
REHNQUIST, J ., dissenting 443 U.S.
correction of racial imbalance through the granting of preferential
treatment to minorities. Verbal assurances that Title
VII would not require- indeed, would not permit-preferential
treatment of blacks having failed, supporters of H. R. 7152
responded by proposing an amendment carefully worded to
meet. and put to rest, the opposition's charge. Indeed, unlike
§§ 703 (a) and (d) , which are by their terms directed at
entities-e. g., employers, labor unions- whose actions are
restricted by Title VII's prohibitions, the language of 703 (j)
is specifically directed at entities- federal agencies and
courts-charged with the responsibility of interpreting Title
VII's provisions.2•
In light of the background and purpose of § 703 (j), the
irony of invoking the section to justify the result in this case
is obvious. The Court's frequent references to the "voluntary"
nature of Kaiser's racially discriminatory admission
quota bear no relationship to the facts of this case. Kaiser
and the Steelworkers acted under pressure from an agency of
the Federal Government, the Office of Federal Contract Compliance,
which found that minorities were being "underutilized"
at Kaiser's plants. See n. 2, supra. That is, Kaiser's
work force was racially imbalanced. Bowing to that pressure,
Kaiser instituted an admissions quota preferring blacks over
whites, thus confirming that the fears of Title VII's opponents
were well founded. Today, § 703 (.i), adopted to allay those
fears , is invoked by the Court to uphold imposition of a racial
quota under the very circumstances that the section was
intended to prevent.2 5
2
• Compare§ 703 (a), 42 U.S. C . § 2000e-2 (11.) ("It shall be an unlawful
employment practice for an employer ... "), with § 703 (j), 42
U. S. C. § 2000e-2 (j) ("Nothing contained in this subchapter shall be
interpreted ... ").
25 In support of its reading of § 703 (j), the Court argues that "a prohibition
against all voluntary, rare-conscious, affirmative action efforts
would disserve" the important policy, expressed in the House Report on
H. R. 7152, that Title VII leave "ma.nagement prerogatives, and union
STEELWORKERS v. WEBER 247
193 REHNQUIST, J., dissenting
Section 703 (j) apparently calmed the fears of most of the
opponents; aft«:>r its introduction, complaints concerning racial
balance and preferential treatment died down considerably.~6
Proponents of the bill, however, continued to reassure the
opposition that its concerns were unfounded. In a len11:thy
defense of the entire civil rights bill, Senator Muskie emphasized
that the opposition's "torrent of words ... cannot obscure
this basic, simple truth: Every Ameriean eitizen has the right
to equal treatment-not favored treatment, not complete
freedoms ... undi.~turbed to the 11;reatcst extent possible" H. R. Rep.,
pt. 2, p. 29, quoted ante, at 206. The Court. thus concludes that "Congress
did not intend to limit traditional business freedom to such a de11;ree
as to prohibit all voluntary, rare-conscious affirmative action." Ante,
at 207.
Thl' smtrnces in the House Report immediately following the statement
quoted by the Court, howe\·er. belie the Court's conclusion:
"Internal affairs of employers and labor organizations must not be interfered
with except to the limited extent that correction is required in discrimination
practices. Its primary task is to make certain that the channels
of employment are open to per"ons regardless of their race and that
jobs in companies or membership in unions are strictly filled on the basis
of qualification." H. R. Rep., pt. 2, p. 29 (E>mpha~is added).
Thus, the House Report invoked by the Court is perfectly consistent with
the rountle!,S obserrntions elsewhere in Title YII's voluminous legislative
history that rmployers are free to makE> employment decisions without
governmental interference, so lon11: as those decisions are made without
regard to racr. The whole purpo~r of Tit IE> VII wa~ to deprive employer;:
of their "traditional business freedom" to discriminate on the basis of
race. In this case, the "channels of employment" at Kaiser were hardly
"open" to Brian \Veber.
26 Some of the opponents still wrrc not satisfied. For rxample, Senator
Ervin of North Carolina continued to maintain that Title VII "would give
the Federal Government the pown to go into any business or industry
in the United Sta1es ... and tell the operator of that business whom he
had to hire." ll0 Cong. Rer. 13077 (1964). Senators Russell and Byrd
rrmained of the \'iew that pressures exerted by federal agencies would
compel rmployrrs "to give priority definitely and almost completely, in
most instan<'<'S. to the members of the minority group." Id., at 13150
(remarks of Sen. Russell).
248 OCTOBER TERM, 1978
REHNQUIST, J ., dissenting 443 U.S.
individual equality-just equal treatment." 110 Cong. Rec.
12614 (1964). With particular reference to Title VII, Senator
Muskie noted that the measure "seeks to afford to all
Americans equal opportunity in employment without discrimination.
Not equal pay. Not 'racial balance.' Only equal
opportunity." Id., at 12617.21
Senator Saltonstall, Chairman of the Republican Conference
of Senators participating in the drafting of the Dirksen-
Mansfield amendment, spoke at length on the substitute bill.
He advised the Senate that the Dirksen-Mansfield substitute,
which included § 703 (j), "provides no preferential treatment
for any group of citizens. In fact, it specifically prohibits
such treatment." 110 Cong. Rec. 12691 (1964) (emphasis
added).28
27 Senator Muskie also addressed the charge that federal agencies would
equate "discrimination," as that word is used in Title VII, with "racial
balance":
"[S]ome of the opposition to this title has been based upon its alleged
vagueness [and] its failure to define just what is meant by discrimination
. . . . I submit that, on either count, the opposition is not well
taken. Discrimination in this bill means just what it means anywhere: a
distinction in treatment given to different individuals because of their
race ... [a]nd, as a practical matter, we all know what constitutes racial
discrimination." Id., at 12617.
Senator Muskie then reviewed the various provisions of § 703, concluding
that they "provide a clear and definitive indication of the type of practice
which this title seeks to eliminate. Any serious doubts concerning [Title
VII's] application would, it seems to me, stem at least partially from the
predisposition of the person expressing such doubt." 110 Cong. Rec. 12618
(1964).
28 The Court states that congressional mmmPnt.s regarding § 703 (j)
"were all to the effect that employers would not be required to institute
preferential quotas to avoid Title VII liability." Ante, at 207 n. 7 (emphasis
in original). Senator Saltonstall's statement that Title VII of the
Dirksen-Mansfield substitute, which contained § 703 (j), "specifically prohibits"
preferential treatment for any racial group disproves the Court's
observation. Further, in a major statement explaining the purpose of the
Dirksen-Mansfield substitute amendments, Senator Humphrey said of
STEELWORKERS v. WEBER 249
193 REHNQUIST, J., dissenting
On June 9, Senator Ervin offered an amendment that
would entirely delete Title VII from the bill. In answer to
Senator Ervin's contention that Title VII "would make the
members of a particular race special favorites of the laws,"
id., at 13079, Senator Clark retorted:
"The bill does not make anyone higher than anyone
else. It establishes no quotas. It leaves an employer
free to select whomever he wishes to employ ....
"All this is subject to one qualification, and that qualification,
is to state: 'In your activity as an employer ...
you must not discriminate because of the color of a man's
skin .... '
"That is all this provision does ....
"It merely says, 'When you deal in interstate commerce,
you must not discriminate on the basis of race ... .' "
Id., at 13080.
The Ervin amendment was defeated, and the Senate turned
its attention to an amendment proposed by Senator Cotton
to limit application of Title VII to employers of at least 100
employees. During the course of the Senate's deliberations on
the amendment, Senator Cotton had a revealing discussion
with Senator Curtis, also an opponent of Title VII. Both
men expressed dismay that Title VII \vould prohibit preferential
hiring of "members of a minority race in order to
enhance their opportunity":
"Mr. CURTIS. Is it not the opinion of the Senator
that any individuals who provide jobs for a class of people
who have perhaps not had sufficient opportunity for
jobs should be commended rather than outlawed?
§ 703 (j): "This subsection does not represent any change in the substance
of the title. It does state dearly and accurately what we have maintained
all along about the bill's intent and meaning." 110 Cong. Rec. 12723
(1964). What Senator Humphrey had "maintnined all along about the
bill's intent and meaning," was that it neither required nor permitted
imposition of preferential quotas to eliminate racial imbalances.
250 OCTOBER TERM, 1978
REHNQUlST, J., dissenting 443 U.S.
"Mr. COTTON. Indeed it is." Id., at 13086.29
Thus, in the only exchange on the Senate floor raising the possibility
that an employer might wish to reserve jobs for minorities
in order to assist them in overcoming their employment
disadvantage, both speakers concluded that Title VII prohibits
such, in the words of the Court, "voluntary, private,
race-conscious efforts to abolish traditional patterns of racial
29 The complete exchange between Senators Cotton and Curtis, insofar
as is pertinent here, is as follows:
"Mr. COTTON ....
"I would assume that anyone who will administer the laws in future
years will not discriminate between the races. If I were a Negro, and by
dint of education, training, and hard work I had amassed enough property
as a Negro so that I had a business of my own-and there are many of
them in this country-and I felt that, having made a success of it myself,
I wanted to help people of my own race to step up as I had stepped up,
I think I should have the right to do so. I think I should have the right
to employ Negroes in my own establishment and put out a helping hand
to them if I so desired. I do not believe that anyone in Washington
should be permitted to come in and say, 'You cannot employ all Negroes.
You must have some Poles. You must have some Yankees.' ...
"Mr. CURTIS. ...
"The Senator made reference to the fact that a member of a minority
race might become an employer and should have a right to employ members
of his race in order to give them opportunity. Would not the same
thing follow, that a member of a majority race might wish to employ
almost entirely, or entirely, members of a minority race in order to enhance
their opportunity? And is it not true that under title VII as
written, that would constitute discrimination?
"Mr. COTION. It certainly would, if someone complained about it
and felt that he had been deprived of a job, and that it had been given
to a member of a minority race because of his race and not because of
some other reason." Id., at 13086.
This colloquy refutes the Court's statement that "[t]here was no suggestion
after the adoption of § 703 (j) that wholly voluntary, race-conscious,
affirmative action efforts would in themselves constitute a violation of
Title VII." Ante, at 207 n. 7.
STEELWORKERS v. WEBER 251
193 REHNQUIST, J., dissenting
segregation and hierarchy." Ante, at 204. Immediately after
this discussion, both Senator Dirksen and Senator Humphrey
took the floor in defense of the 25-employee limit contained
in the Dirksen-Mansfield substitute bill, and neither Senator
disputed the conclusions of Senators Cotton and Curtis. The
Cotton amendment was defeated.
3
On June 10, the Senate, for the second time in its history,
imposed cloture on its Members. The limited debate that
followed centered on proposed amendments to the Dirksen-
Mansfield substitute. Of some 24 proposed amendments,
only 5 were adopted.
As the civil rights bill approached its final vote, several supporters
rose to urge its passage. Senator Muskie adverted
briefly to the issue of preferential treatment: "It has been
said that the bill discriminates in favor of the Negro at the expense
of the rest of us. It seeks to do nothing more than to
lift the Negro from the status of inequality to one of equality
of treatment." 110 Cong. Rec. 14328 (1964) (emphasis
added). Senator Moss, in a speech delivered on the day that
the civil rights bill was finally passed, had this to say about
quotas:
"The bill does not accord to any citizen advantage or
preference--it does not fix quotas of employment or
school population-it does not force personal association.
What it does is to prohibit public officials and those who
invite the public generally to patronize their businesses
or to apply for employment, to utilize the offensive,
humiliating, and cruel practice of discrimination on the
basis of race. In short, the bill does not accord special
consideration; it establishes equality." Id., at 14484
(emphasis added).
Later that day, June 19, the issue was put to a vote, and the
Dirksen-Mansfield substitute bill was passed.
252 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 u. s.
C
The Act's return engagement in the House was brief. The
House Committee on Rules reported the Senate version without
amendments on June 30, 1964. By a vote of 289 to 126,
the House adopted H. Res. 789, thus agreeing to the Senate's
amendments of H. R. 7152.30 Later that same day, July 2,
the President signed the bill and the Civil Rights Act of 1964
became law.
IV
Reading the language of Title VII, as the Court purports
to do, "against the background of [its] legislative history ...
and the historical context from which the Act arose," ante, at
201, one is led inescapably to the conclusion that Congress fully
understood what it was saying and meant precisely what it
said. Opponents of the civil rights bill did not argue that
employers would be permitted under Title VII voluntarily to
grant preferential treatment to minorities to correct racial
imbalance. The plain language of the statute too clearly
prohibited such racial discrimination to admit of any doubt.
They argued, tirelessly, that Title VII would be interpreted
by federal agencies and their agents to require unwilling employers
to racially balance their work forces by granting preferential
treatment to minorities. Supporters of H. R. 7152
30 Only three Congressmen spoke to the issue of racial quotas during the
House's debate on the Senate amendments. Representative Lindsay
stated: "[W]e wish to emphasize also that this bill does not require quotas,
racial balance, or any of the other things that the opponents have been
saying about it." 110 Cong. Rec. 15876 (1964). Representative Mc-
Culloch echoed this understanding, remarking that "[t] he bill does not
permit the Federal Government t'J require an employer or union to hire
or accept for membership a quota of persons from any particular minority
group." Id., at 15893. The remarks of Representative MacGregor,
quoted by the Court, ante, at 207-208, n. 7, are singularly unhelpful. He
merely noted that by adding§ 703 (i) to Title VII of the House bill, "[t]he
Senate ... spelled out [the House's] intentions more specifically." 110
Cong. Rec. 15893 (1964).
STEELWORKERS v. WEBER 253
193 REHNQUIST, J ., dissenting
responded, equally tirelessly, that the Act would not be so
interpreted because not only does it not require preferential
treatment of minorities, it also does not permit preferential
treatment of any race for any reason. It cannot be doubted
that the proponents of Title VII understood the meaning of
their words, for " [ s] eldom has similar legislation been debated
with greater consciousness of the need for 'legislative
history,' or with greater care in the making thereof, to guide
the courts in interpreting and applying the law." Title VII:
Legislative History, at 444.
To put an end to the dispute, supporters of the civil rights
bill drafted and introduced § 703 (j). Specifically addressed
to the opposition's charge, § 703 (j) simply enjoins federal
agencies and courts from interpreting Title VII t-o require
an employer to prefer certain racial groups to correct imbalances
in his work force. The section says nothing about
voluntary preferential treatment of minorities because such
racial discrimination is plainly proscribed by §§ 703 (a) and
(d). Indeed, had Congress intended to except voluntary,
race-conscious preferential treatment from the blanket prohibition
of racial discrimination in §§ 703 (a) and (d), it
surely could have drafted language better suited to the task
than § 703 (j). It knew how. Section 703 (i) provides:
"Nothing contained in [Title VII] shall apply to any
business or enterprise on or near an Indian reservation
with respect to any publicly announced employment
practice of such business or enterprise under which a
preferential treatment is given to any individual because
he is an Indian living on or near a reservation." 78 Stat.
257, 42 U.S. C. § 2000e-2 (i).
V
Our task in this case, like any other case involving the construction
of a statute, is to give effect to the intent of Congress.
To divine that intent, we traditionally look first to the
254 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
words of the statute and, if they are unclear, then to the
statute's legislative history. Finding the desired result hopelessly
foreclosed by these conventional sources, the Court
turns to a third source-the "spirit" of the Act. But close
examination of what the Court proffers as the spirit of the Act
reveals it as the spirit animating the present majority, not the
88th Congress. For if the spirit of the Act eludes the cold
words of the statute itself, it rings out with unmistakable
clarity in the words of the elected representatives who made
the Act law. It is equality. Senator Dirksen, I think, captured
that spirit in a speech delivered on the floor of the
Senate just moments before the bill was passed:
" ... [T] oday we come to grips finally with a bill that
advances the enjoyment of living; but, more than that,
it advances the equality of opportunity.
"I do not emphasize the word 'equality' standing by
itself. It means equality of opportunity in the field of
education. It means equality of opportunity in the field
of employment. It means equality of opportunity in the
field of participation in the affairs of government . . . . 1
"That is it.
"Equality of opportunity, if we are going to talk about
conscience, is the mass conscience of mankind that speaks
in every generation, and it will continue to speak long
after we are dead and gone." 110 Cong. Rec. 14510
( 1964).
There is perhaps no device more destructive to the notion
of equality than the numerus clau.sus-the quota. Whether
described as "benign discrimination" or "affirmative action/'
the racial quota is nonetheless a creator of castes, a two-edged
sword that must demean one in order to prefer another. In
passing Title VII, Congress outlawed all racial discrimination,
recognizing that no discrimination based on race is benign,
that no action disadvantaging a person because of his color is
affirmative. With today's holding, the Court introduces into
STEELWORKERS v. WEBER 255
193 REHNQUIST, J., dissenting
Title VII a tolerance for the very evil that the law was intended
to eradicate, without offering even a clue as to what
the limits on that tolerance may be. We are told simply that
Kaiser's racially discriminatory admission quota "falls on the
permissible side of the line." Ante, at 208. By going not
merely beyond, but directly against Title VII's language and
legislative history, the Court has sown the wind. Later courts
will face the impossible task of reaping the whirlwind.
256 OCTOBER TERM, 1978
Syllabus
EDMONDS v. COMPAGNIE GENERALE
TRANSATLANTIQUE
443 U.S.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR TIIE
FOURTH CIRC"CIT
No. 78-479. Argued March 19 , 1979-Decided June 27, 1979
Petitioner longshoreman, while employed by a stevedoring concern that
respondent shipowner bad engagc>d to unload cargo from its vessel, was
injured in the course of that work, and receivl'd benefits for the injury
from his employer under the Long8horcmC'n's and Harbor Workers'
C-0mpensation Act (Act). Petitioner also brought this n~ligence action
against respondent in Federal District Court, wherC'in the jury determined
that petitioner was responsible for lOC'f of the total negligence
resulting in his injury, that the stevedore's fault, throuii;h a cocrnployee's
negliii;ence, contributed 70"{-, and that respondent was accountable for
20%. Following established maritime law, the Distrirt Court reduced
the award to petitioner by the 10'1, attributed to his own negligence but
refused further to reduce the award against respondent in proportion to
the fault of the stevedore-employn. The Court of App<'als reversed ,
holding that the 1972 Amendments to the Act had altered the traditional
admiralty rule by making the shipowner liable only for that share of the
totJi.l damages equivalent to the ratio of its fault to the total fault.
Held:
1. Under the 1972 Amendments to the Act, Congress did not intend
to change the judicially rreated admiralty rule that the shipowner can
be made to pay all the damages not dne to t-he plaintiff's own negligence
by imposing a proportionate-fault rule. Pp. 263-271.
(a) There is no conflict between the provisions of the Amendments
that (1) in the evE>nt of injury to a. person covered by the Act "caused
by the negligence of a vessel," surh person may bring an action against
the vessel as a. third party, and the employer shall not be liable to the
vessel for such damages directly or indirectly and any agreements or
warranties to the contrary shall be void, and (2) if suoh person was
employed by the vessel to provide stevedoring services, no such action
shall be permitted 1f the mjury was "caused by the negligence of persons
engaged in providing stevedoring services to the vessel." The first
provision addresses the recurring situation, such as in this case, where
the party injured by the vessel's negligence is a lon)l;&horcman employed
by a stevedoring concern, and does not purport to modify the traditional
EDMONDS v. COMPAGNIE GENERALE TRANSATL. 257
256 Syllabus
admiralty rule. The second provision applies only to the less familiar
arrangement where the ship is its own stevedore, and is to be construed
as permitting a third-party suit against the shipowner-stevedore when
negligence in its nonstevedoring capacity contributes to the injury.
Pp. 263-266.
(b) The legislative history does not support the Court of Appeals'
interpretation of the statute, which modifies the longshoreman's preexisting
rights against the negligent vessel. Pp. 266-268.
(c) While some inequity appears inevitable in the present statutory
scheme, and while the Court of Appeals' proportionate-fault rule may
remove some of the inequities, nevertheless it creates others and appears
to shift some burdens to the longshoreman. There is nothing to indicate
and it will not be presumed that Congress intended to place the burden
of the inequity on the longshoreman whom the Act seeks to protect.
Pp. 268-271.
2. Nor will this Court change the traditional rule so as to make the
vessel liable only for the damages in proportion to its own negligence.
By now changing what Congress understood to be the law and did not
itself wish to modify, this Court might knock out of kilter the delicate
balance effected by Congress concerning the liability of vessels, as third
parties, to pay damages to longshoremen who are injured while engaged
in stevedoring operations. This Court should stay its hand in these
circumstances. Pp. 271- 273.
577 F. 2d 1153, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which BURGER, C. J.,
and BRENNAN, STEWART, and REHNQUIST, JJ., joined. BLACKMUN, J.,
filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined,
post, p. 273. POWELL, J., took no part in the consideration or decision
of the case.
Calvin W. Breit argued the cause for petitioner. With him
on the briefs was C. Arthur Rutter, Jr.
Charles F. Tucker argued the cause for respondent. With
him on the brief was John B. King, Jr.*
*Briefs of amici curiae urging reversal were filed by David R. Owen for
Liberty Mutual Insurance Co.; and by Thomas D. Wilcox for the National
Association of Stevedores.
Briefs of amici curiae urging affinnance were filed by Randall C. Cole258
OCTOBER TERM, 1978
Opinion of the Court 443U.S.
MR. JusTICE WHITE delivered the opinion of the Court.
On March 3, 1974, the S.S. Atlantic Cognac, a containership
owned by respondent, arrived at the Portsmouth Marine
Terminal, Va. Petitioner, a longshoreman, was then employed
by the Nacirema Operating Co., a stevedoring concern
that the shipowner had engaged to unload cargo from
the vessel. The longshoreman was injured in the course of
that work, and he received benefits for that injury from his
employer under the Longshoremen's and Harbor Workers'
Compensation Act. 44 Stat. 1424, as amended, 33 U. S. C.
§ 901 et seq. In addition, the longshoreman brought this
negligence action against the shipowner in Federal District
Court.
A jury determined that the longshoreman had suffered
total damages of $100,000, that he was responsible for 10%
of the total negligence resulting in his injury, that the stevedore's
fault, through a co-employee's negligence, contributed
70%, and that the shipowner was accountable for 20%.1
Following an established principle of maritime law, the District
Court reduced the award to the longshoreman by the
10% attributed to his own negligence.2 But also in accordance
with maritime law, and the common law as well, the
court refused further to reduce the award against the shipowner
in proportion to the fault of the employer.
The United States Court of Appeals for the Fourth Circuit,
with two judges dissenting, reversed en bane, holding that the
man for American Export Lines, Inc., et al.; and by Graydon S. Staring
for the Pacific Merchant Shipping Association.
Paul S. Edelman, Arthur Abarbanel, and Bernard M. Goldstein filed a
brief for the As.sociation of Trial Lawyers of America as amicus curiae.
1 The District Court set aside R jury verdict for the longshoreman in an
earlier trial because of errors in the jury instructions.
2 The plaintiff's negligence is not an absolute bar to recovery under maritime
law, which accepts the concept of comparative negligence of plaintiff
and defendant. Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 408-409
(1953); The Max Morris, 137 U. S. 1, 15 (1890); see n. 23, infra.
EDMONDS v. COMPAGNIE GENERALE TRANSATL. 259
256 Opinion of the Court
1972 Amendments to the Act, 86 Stat. 1251, had altered the
traditional admiralty rule by making the shipowner liable
only for that share of the total damages equivalent to the
ratio of its fault to the total fault. 577 F. 2d 1153, 1155-1156
(1978) .3 Other Courts of Appeals have reached the contrary
conclusion.4 We granted certiorari to resolve this conflict,
439 U. S. 952 (1978), and, once again,5 we have before us a
question of the meaning of the 1972 Amendments.
I
Admiralty law is judge-made law to a great extent, United
States v. Reliable Transfer Co., 421 U. S. 397, 409 (1975);
Fitzgerald v. United States Lines Co., 374 U.S. 16, 20 (1963),
and a longshoreman's maritime tort action against a shipowner
was recognized long before the 1972 Amendments, see
Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 413--414 (1953),
as it has been since. 6 As that law had evolved by 1972, a
3 A panel of the Court of Appeals had earlier reached a similar conclusion.
558 F. 2d 186, 193-194 (1977); seen. 26, infra.
4 Zapico v. Bucyrus-Erie Co., 579 F. 2d 714, 725 (CA2 1978); Samueui
v. Empresa Lineas Maritimas Argentinas, 573 F. 2d 884, 887-889 (CA5
1978), cert. pending, No. 78-795; Dodge v. Mitsui Shintaku Ginko K. K.
Tokyo, 528 F. 2d 669, 671-673 (CA9 1975), cert. denied, 425 U. S. 944
(1976); Shellman v. United States Lines, Inc., 528 F. 2d 675, 679-680
(CA9 1975), cert. denied, 425 U. S. 936 (1976). See also Cella v. Partenreederei
MS Ravenna, 529 F. 2d 15, 20 (CAI 1975) (indicating agreement
with Dodge, supra), cert. denied, 425 U.S. 975 (1976); Marant v. Farrell
Lines, Inc., 550 F. 2d 142, 145-147 (CA3 1977) (discussing but reserving
the issue); id., at 147-152 (Van Dusen, J., concurring) (expressing concern
over validity of apportionment of damages).
5 See also Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249
(1977); Director, Workers' Compensation Programs v. Rasmussen, 440
U. S. 29 (1979); P. C. Pfeiffer Co. v. Diverson Ford, No. 78-425 (to be
reargued October Term 1979).
6 Title 33 U. S. C. § 933 (a), which was unchanged in 1972, states that
when a longshoreman "determines that some person other than the employer
or a person or persons in his employ is liable in damages, he need not elect
whether to receive ... compensation or to recover damages against such
260 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
longshoreman's award in a suit against a negligent shipowner
would be reduced by that portion of the damages assignable
to the longshoreman's own negligence; but, as a matter of
maritime tort law, the shipowner would be responsible to the
longshoreman in full for the remainder, even if the stevedore's
negligence contributed to the injuries.1 This latter rule is in
accord with the common law, which allows an injured party
to sue a tortfeasor for the full amount of damages for an
indivisible injury that the tortfeasor's negligence was a substantial
factor in causing, even if the concurrent negligence
of others contributed to the incident.8
third person." Section 905 (b), which was added in 1972, states that the
longshoreman "may bring an action against [the shipowner] as a third
party in accordance with the provisions of section 933 .... "
7 See, e. g., Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U. S. 106,
108, 113 (1974) (longshoreman could have recovered entire damages from
shipowner responsible for 50% of the total fault); Hal,cyon Lines v. Haenn
Ship Ceiling & Refitting Corp., 342 U. S. 282, 283 (1952) (shipowner
responsible for 25% of negligence required to pay 100% of damages, and
contribution unavailable from negligent shoreside contractor, an employer
under the Act). See also The Atla,s, 93 U. S. 302 (1876); The Juniata,
93 U. S. 337 (1876). We stated the common-law rule in The Atlas and
adopted it as part of admiralty jurisprudence: "I'fothing is more clear
than the right of a plaintiff, having suffered such a loss, to sue in a
common-law action all the wrong-doers, or any one of them, at his election;
and it is equally clear, that, if he did not contribute to the disaster,
he is entitled to judgment in either case for the full amount of his Joss."
93 U. S., at 315.
8 Restatement (Second) of Torts §§ 433A, 875, and 879 (1965 and
1979); T. Cooley, Law of Torts 142-144 (1879); W. Prosser, Law of Torts
§ 47, pp. 297-299, and § 52, pp. 314-315 (4th ed. 1971); cf. Washington &
Georgetown R. Co. v. Hickey, 166 U. S. 521, 527 (1897). A tortfeasor is
not relieved of liability for the entire harm he caused just because another's
negligence was also a factor in effecting the injury. "Nor arc the damages
against him diminished." Restatement, supra, § 879, Comment a. Likewise,
under traditional tort law, a plaintiff obtaining a judgment against
more than one concurrent tortfeasor may satisfy it against any one of
them. Id., § 886. A concurrent tortfeasor generally may seek contribution
from another, id., § 886A, but he is not relieved from liability for the
EDMONDS v. COMPAGNIE GENERALE TRANSATL. 261
256 Opinion of the Court
The problem we face today, as was true of similar problems
the Court has dealt with in the past, is complicated by the
overlap of loss-allocating mechanisms that are guided by
somewhat inconsistent principles. The liability of the ship
to the longshoreman is determined by a combination of judgemade
and statutory law and, in the present context, depends
on a showing of negligence or some other culpability. The
longshoreman-victim, however, and his stevedore-employeralso
a tortfeasor in this case-are participants in a workers'
compensation scheme that affords benefits to the longshoreman
regardless of the employer's fault and provides that the
stevedore's only liability for the longshoreman's injury is to
the longshoreman in the amount specified in the statute.•
33 U. S. C. § 905. We have more than once attempted to
reconcile these systems.
We first held that the shipowner could not circumvent the
exclusive-remedy provision by obtaining contribution from
the concurrent tortfeasor employer. Halcyon Lines v. H aenn
Ship Ceiling & Refitting Corp., 342 U. S. 282 (1952); Pope
& Talbot, Inc. v. Hawn, supra; see Cooper Stevedoring Co. v.
Fritz Kopke, Inc., 417 U.S. 106, 111- 113 (1974). As a matter
of maritime law, we also held that a longshoreman working on a
vessel was entitled to the warranty of seaworthiness, Seas
Shipping Co. v. Sieracki, 328 U. S. 85, 94 (1946), which
amounted to liability without fault for most onboard injuries.
1° However, we went on to hold, as a matter of conentire
damages even when the nondef Pndant tortfeasor is immune from
liability. Id., § 880. These principles, of course, are inapplicable where
the injury is divisible and the causation of ea.ch part can be sepa.rately assigned
to each tortfeasor. Id., §§ 433A (1) and 881.
9 Generally, workers' compensation benefits are not intended to compensate
for an employee's entire losses. 1 A. Larson, Law of Workmen's
Compensation § 2.50 (1978). The 1972 Amendments to the Act, however,
make a determined effort to narrow the gap between the harm suffered
and the benefits payable.
10 See, e. g., Mitchell v. Trawler Racer, Inc., 362 U. S. 539, 549- 550
(1960).
262 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
tract law, that the shipowner could obtain from the stevedore
an express or implied warranty of workmanlike service that
might result in indemnification of the shipowner for its
liability to the longshoreman. Ryan Stevedoring Co. v. Pan-
Atlantic S.S. Corp., 350 U. S. 124 (1956).
Against this background, Congress acted in 1972, among
other things,1' to eliminate the shipowner's liability to the
longshoreman for unseaworthiness and the stevedore's liability
to the shipowner for unworkmanlike service resulting in
injury to the longshoreman-in other words, to overrule
Sieracki and Ryan. See Northeast Marine Terminal Co. v.
Caputo, 432 U.S. 249, 260-261, and n. 18 ( 1977) ; Cooper Stevedoring
Co. v. Fritz Kopke, Inc., supra, at 113 n. 6. Though
admitting that nothing in either the statute or its history
expressly indicates that Congress intended to modify as well
the existing rules governing the longshoreman's maritime
negligence suit against the shipowner by diminishing damages
recoverable from the latter on the basis of the proportionate
fault of the nonparty stevedore, 577 F. 2d, at 1155, and
n. 2, the en bane Court of Appeals found that such a result
was necessary to reconcile two sentences added in 1972 as
part of 33 U. S. C. § 905 (b). The two sentences state:
"In the event of injury to a person covered under this
chapter caused by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover damages
by reason thereof, may bring an action against such vessel
as a third party in accordance with the provisions of
section 933 of this title, and the employer shall not be
liable to the vessel for such damages directly or indirectly
and any agreements or warranties to the contrary shall
11 The Amendments also increased compensation benefits, expanded the
Act's geographic coverage, and instituted a new means of adjudicating compensation
cases. Robertson, Jurisdiction, Shipowner Negligence and Stevedore
I=unities under the 1972 Amendments to the Longshoremen's Act,
28 Mercer L. Rev. 515, 516 (1977).
256
EDMONDS v. COMPAGNIE GENERALE TRANSATL. 263
Opinion of the Court
be void. If such person was employed by the vessel to
provide stevedoring services, no such action shall be permitted
if the injury was caused by the negligence of
persons engaged in providing stevedoring services to the
vessel." 33 U. S. C. § 905 (b).
The Court of Appeals described the perceived conflict in this
fashion:
"The first sentence says that if the injury is caused by
the negligence of a vessel the longshoreman may recover,
but the second sentence says he may not recover anything
of the ship if his injury was caused by the negligence
of a person providing stevedoring services. The
sentences are irreconcilable if read to mean that any negligence
on the part of the ship will warrant recovery
while any negligence on the part of the stevedore will defeat
it. They may be harmonized only if read in apportioned
terms." 577 F. 2d, at 1155.
For a number of reasons, we are unpersuaded that Congress
intended to upset a "long-established and familiar principl
[ e]" of maritime law by imposing a proportionate-fault
rule. Cf. Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783
(1952).
A
In the first place, the conflict seen by the Court of Appeals
is largely one of its own creation. Both sides admit that each
sentence may be read so as not to conflict with the other.
The first sentence addresses the recurring situation, reflected
by the facts in this case, where the party injured by the negligence
of the vessel is a longshoreman employed by a stevedoring
concern. In these circumstances, the longshoreman
may sue the vessel as a third party, but his employer, the
stevedore, is not to be liable directly or indirectly for any
damages that may be recovered. This first sentence overrules
Ryan and prevents the vessel from recouping from the
264 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
stevedore any of the damages that the longshoreman may recover
from the vessel. But the sentence neither expressly
nor implicitly purports to overrule or modify the traditional
rule that the longshoreman may recover the total amount of
his damages from the vessel if the latter's negligence is a
contributing cause of his injury, even if the stevedore, whose
limited liability is fixed by statute, is partly to blame.
The second sentence of the paragraph is expressly addressed
to the different and less familiar arrangement where the injured
longshoreman loading or unloading the ship is employed
by the vessel itself, not by a separate stevedoring companyin
short, to the situation where the ship is its own stevedore.12
In this situation, the second sentence places some limitations
on suits against the vessel for injuries caused during its stevedoring
operations.'3 Whatever these limitations may be, there
is no conflict between the two sentences, and one arises only
if the second sentence is read, as the Court of Appeals read
it, as applying to all injured longshoremen, whether employed
by the ship or by an independent stevedore. Nothing in the
legislative history advises this construction of the sentence,14
12 The first proposals in the legislative movement that produced the
1972 Amendments would have made all shipowners statutory employers,
not just those also acting as stevedores, and thus cut off any tort action
by the longshoreman. S. 525, 92d Cong., 1st Sess., § 1 (1971), Legislative
History of the Longshoremen's and Harbor Workers' Compensation Act
Amendments of 1972 (Committee Print compiled for the Subcommittee
on Labor of the Senate Committee on Labor and Public Welfare), pp.
393-394 ( 1972). Congress ultimately decided to preserve the longshoremen's
tort action against shipowners acting as shipowners.
13 In Jackson v. Lykes Bros. S. S. Co., 386 U. S. 731 (1967) , and R eed
v. The Yaka, 373 U.S. 410 (1963), we upheld a longshoreman's negligence
or unseaworthiness action against the shipowner-stevedore.
14 See S. Rep. No. 92-1125, p. 11 (1972) (hereinafter S. Rep.) ("Accordingly,
the bill provides in the case of a longshoreman who is
employed directly by the vessel there will be no action for damages if the
injury was caused by the negligence of persons engaged in performing
longshoring services") ( emphasis supplied). The House Report, H. R.
EDMONDS v. COMPAGNIE GENERALE TRANSATL. 265
256 Opinion of the Court
and ,ve see no reason to depart from the language of the
statute in this respect.
Respondent insists that, even though the two sentences may
deal with different business arrangements, problems still arise.
If under the first sentence a third-party suit against the vessel
is authorized when any part of the negligence causing the
injury is that of the vessel, it is argued that suit against the
vessel under the second sentence should be barred when any
part of the negligence causing the injury is that of a coworker
also providing stevedoring services to the vessel.
Under this interpretation, the employee of the independent
stevedore could recover from the ship where the stevedore
was responsible for 99% of the negligence, though a ship's
employee performing stevedoring services could not hold the
vessel liable if his co-worker's negligence ,vas the slightest
cause of the injury.15 This is said to be preposterous and contrary
to the legislative intent to treat the vessel that provides
its own stevedoring services just like other shipowners when
and if it negligently causes injury in its capacity as a shipowner
and just like other stevedores when it negligently injures
in the course of providing its own loading or unloading
services.16
Aside from the fact that the problem suggested would
arise only in the application of the second sentence, which is
not involved in this case, the argument that the words
"caused by the negligence of" in the two sentences must be
given the same meaning and that they cannot have the meaning
ascribed to them by petitioner's construction of the first
sentence, logically leads to the conclusion that the injured
Rep. No. 92-1441 (1972), is identical to the Senate Report in all respects
material to this case. Accordingly, further references will be only to the
Senate Report.
15 In many cases, of course, the shipowner whose act or omission contributed
only a very small percentage of the total negligence will avoid
liability on the ground of lack of causation.
16 S. Rep. 11-12.
I
I
266 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
longshoreman should never be able to bring suit against the
vessel unless it is the sole cause of the injury. This is a
doubly absurd conclusion. It is supported by no one, and to
avoid it, it is necessary only to construe th€ second sentence
to permit a third-party suit against the vessel providing its
own loading and unloading services when negligence in its
nonstevedoring capacity contributes to the injury. The second
sentence means no more than that all longshoremen are
to be treated the same whether their employer is an independent
stevedore or a shipowner-stevedore and that all stevedores
are to be treated the same whether they are independent or
an arm of the shipowner itself.
This leaves the question of the measure of recovery against
a shipowner, whether or not it is doing its own stevedoring,
when as shipowner it is only partially responsible for the
negligence, but we are quite unable to distill from the face of
the obviously awkward wording of the two sentences any indication
that Congress intended to modify the pre-existing rule
that a longshoreman who is injured by the concurrent negligence
of the stevedore and the ship may recover for the entire
amount of his injuries from the ship.
B
The legislative history strongly counsels against the Court
of Appeals' interpretation of the statute, which modifies the
longshoreman's pre-existing rights against the negligent vessel.
The reports and debates leading up to the 1972 Amendments
contain not a word of this concept.11 This silence is
most eloquent, for such reticence while contemplating an
17 In the Senate hearings, a plaintiff's lawyer mentioned diminution of
damages as a possible solution so long as the shipowner's liability for unseaworthiness
was retained. The only committee member present rejected
this proposal, and Congress apparently never gave it serious consideration.
See Hearings on S. 2318, S. 525, and S. 1547 before the Subcommittee on
Labor of the Senate Committee on Labor and Public Welfare, 92d Cong.,
2d Sess., 354-355 (1972).
EDMONDS v. COMPAGNIE GENERALE TRANSATL. 267
256 Opinion of the Court
important and controversial change in existing law is
unlikely.18 Moreover, the general statements appearing in the
legislative history concerning § 905 (b) are inconsistent with
what respondent argues was in the back of the legislators' minds
about this specific issue. The Committees repeatedly refer
to the refusal to limit the shipowner's liability for negligence,
19 which they felt left the vessel in the same position
as a land-based third party whose negligence injures an
employee.2° Because an employee generally may recover in
full from a third-party concurrent tortfeasor,21 these statements
are hardly indi-cative of an intent to modify the law
in the respect found by the Court of Appeals. At the very
least, one would expect some hint of a purpose to work such a
change, but there was none.
18 Laborers' lnternatio-nal Union, Local No. 1057 v. NLRB, 186 U. S.
App. D. C. 13, 20,567 F. 2d 1006, 1013 (1977).
The debate over § 905 (b) involved the removal of the shipowner's
liability for unseaworthiness. That occurred as a concomitant of ending
liability under the stevedore's warranty of workmanlike service, which was
a quid pro quo for increasing :he compensation benefits. See S. Rep.
9-10. Some Congressmen objected to removing the vessel's liability for
unseaworthiness because that would deny millions of dollars of relief
for longshoremen's injuries. 118 Cong. Rec. 36382--36384 (1972) (Reps.
Eckhardt, Dent, and Ashley). Indeed, the concern shared by some
Congressmen over any modification of third-party actions "had political
ramifications which . . . resulted in forestalling any improvements in
the ... Act for over twelve years." S. Rep. 9. Those Congressmen
likely would have assailed the diminution of the longshoreman's recovery
in proportion to the stevedore's fault if they had any inkling that the
Amendments did that.
19 ld., at 2, 5, 10.
20 Id., at 8 ("where a longshoreman or other worker covered under
this Act is injured through the fault of the vessel, the vessel should be
liable for damages as a third party, just as land-based third parties in nonmaritime
pursuits are liable for damages when, through their fault, a
worker is injured"); accord, id., at 10 and 11.
21 See n. 8, supra; 2A Larson, supra n. 9, § 75.22, at 14-263; Soule,
Toward an Equitable and Rational Allocation of Employee Injury Losses
in Cases with Third Party Liability, 1979 Ins. Counsel J. 201, 202-208.
268 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
The shipowner denies that the legislative history is so onesided,
relying upon statements that vessels "will not be
chargeable with the negligence of the stevedore or [the] employees
of the stevedore." S. Rep. 11; see 577 F. 2d, at 1156
n. 2. But in context these declarations deal only with removal
of the shipowner's liability under the warranty of seaworthiness
for acts of the stevedore 22-even nonnegligent ones.23
C
Finally, we note that the proportionate-fault rule adopted
by the Court of Appeals itself produces consequences that we
doubt Congress intended. It may remove some inequities,
but it creates others and appears to shift some burdens to the
longshoreman.
As we have said, § 905 permits the injured longshoreman to
sue the vessel and exempts the employer from any liability
to the vessel for any damages that may be recovered. Congress
clearly contemplated that the employee be free to sue
the third-party vessel, to prove negligence and causation on
the vessel's part, and to have the total damages set by the
court or jury without regard to the benefits he has received or
to which he may be entitled under the Act. Furthermore,
22 S. Rep. 9-11.
23 E. g., Italia Societa per Azioni di Na vigazione v. Oregon Stevedoring
Co., 376 U.S. 315 (1964).
The shipowner also relies upo:i the Reports' reference to "comparative
negligence," S. Rep. 12, but in context it is obvious that Congress
alluded only, and not erroneously, see Prosser, Comparative Negligence, 51
Mich. L. Rev. 465 n. 2 (1953), to the comparative negligence of the plaintiff
longshoreman and the defendant shipowner-a concept that, unlike the
proposal before us today, was well established in admiralty. See S. Rep.
12; 33 U. S. C. § 905 (a); n. 2, supra. It would be particularly curious
for Congress to refer expressly to the established principle of comparative
negligence, yet say not a word about adopting a new rule limiting
the liability of the shipowner on the basis of the nonparty employer's
negligence.
EDMONDS v. COMPAGNIE GENERALE TRANSATL. 269
256 Opinion of the Court
under the traditional rule, the employee may recover from
the ship the entire amount of the damages so determined.
If he recovers less than the statutory benefits, his employer is
still liable for the statutory amount.
Under this arrangement, it is true that the ship will be
liable for all of the damages found by the judge or jury; yet
its negligence may have been only a minor cause of the injury.
The stevedore-employer may have been predominantly responsible;
yet its liability is limited by the Act, and if it has
lien rights on the longshoreman's recovery it may be out-ofpocket
even less.
Under the Court of Appeals' proportionate-fa.ult rule, however,
there will be many circumstances where the longshoreman
will not be able to recover in any way the full amount of
the damages determined in his suit against the vessel. If, for
example, his damages are at least twice the benefits paid or
payable under the Act and the ship is less than 50% at fault,
the total of his statutory benefits plus the reduced recovery
from the ship will not equal his total damages. More generally,
it would appear that if the stevedore's proportionate
fault is more than the proportion of compensation to actual
damages, the longshoreman will always fall short of recovering
the amount that the fact.finder has determined is necessary
to remedy his total injury, even though the diminution is due
not to his fault, but to that of his employer.2'
But the impact of the proportionate-fault rule on the longshoreman
does not stop there. Under § 933 (b), an administrative
order for benefits operates as an assignment to the
stevedore-employer of the longshoreman's rights against the
third party unless the longshoreman sues within six months.
And a corresponding judicially created lien in the employer's
24 See Zapico v. Bucyrus-Erie Co., 579 F. 2d, at 725 ("one is still left
to wonder why the longshoreman injured by the negligence of a third
party should recover less when his employer has also been negligent
than when the employer has been without fault").
270 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
favor operates where the longshoreman himself sues.25 In
the past, this lien has been for the benefits paid up to the
amount of the recovery.26 And under § 933 (c), which Congress
left intact in 1972, where the stevedore-employer sues
the vessel as statutory assignee it may retain from any recovery
an amount equal in general to the expenses of the suit,
the costs of medical services and supplies it provided the
employee, all compensation benefits paid, the present value
of benefits to be paid, plus one-fifth of whatever might remain.
Under the Court of Appeals' proportionate-fault system,
the longshoreman would get very little, if any, of the diminished
recovery obtained by his employer. Indeed, unless
the vessel's proportionate fault exceeded the ratio of compensation
benefits to total damages, the longshoreman would
receive nothing from the third-party action, and the negligent
stevedore might recoup all the compensation benefits it had
paid.
Some inequity appears inevitable in the present statutory
scheme, but we find nothing to indicate and should not presume
that Congress intended to place the burden of the
inequity on the longshoreman whom the Act seeks to protect.2'
Further, the 1972 Amendments make quite clear that "the
employer shall not be liable to the vessel for such damages
directly or indirectly," 33 U. S. C. § 905 (b) ( emphasis supplied)
,28 and that with the disappearance of the ship's contribution
and indemnity right against the stevedore the latter
25 See The Etna, 138 F. 2d 37 (CA3 1943).
26 The original Fourth Circuit panel opinion would have made the shipowner
liable for an amount equal not just to his proportionate fault, but
also to the employer's lien. 558 F. 2d, at 194. The en bane court refused
to make the vessel liable for the additional amount of the lien and declined
to rule on any alteration of the lien since the employer was not party
to the suit. 577 F. 2d, at 1156.
27 Cf. NortheMt Marine Terminal, Co. v. Caputo, 432 U. S., at 279.
28 "It is the Committee's intention to prohibit such recovery under any
theory including, without limitation, theories based on contract or tort."
EDMONDS v. COMPAGNIE GENERALE TRANSATL. 271
256 Opinion of the Court
should no longer have to appear routinely in suits between longshoreman
and shipowner.2
1) Consequently, as we have done
before, we must reject a "theory that nowhere appears in the
Act, that was never mentioned by Congress during the legislative
process, that does not comport with Congress' intent,
and that restricts ... a remedial Act " Northew;t
Marine Terminal Co. v. Caputo, 432 U. S., at 278-279.
II
Of course, our conclusion that Congress did not intend to
change the judicially created rule that the shipowner can be
made to pay all the damages not due to the plaintiff's own
negligence does not decide whether we are free to and should
change that role so as to make the vessel liable only for
the damages in proportion to its own negligence. Indeed, some
amici in support of respondent share the view that Congress
did not change the rule but argue that this Court should do
so. We disagree.
Though we recently acknowledged the sound arguments
supporting division of damages between parties before the
court on the basis of their comparative fault, see United
States v. Reliable Transfer Co., 421 U. S. 397 (1975),30 we
S. Rep. 11; see Pope & Talbot, Inc. v. Hawn, 346 U. S., at 412
("reduction of r the shipowner's] liability at the expense of [the employer]
would be the substantial equivalent of contribution"); Dodge v.
Mitsui Shintaku Ginko K. K. Tokyo, 528 F. 2d, at 673; Steinberg, The
1972 Amendments to the Longshoremen's and Harbor Workers' Compensation
Act: Negligence Actions by Longshoremen against Shipowners-A
Proposed Solution, 37 Ohio St. L. J. 767, 792-793 (1976).
29 See S. Rep. 9 ("much of the financial resources which could better
be utilized to pay improved compensation benefits were now being spent
to defray litigation costs" of stevedores in third-party actions).
30 As noted in n. 8, supra, the general rule is that a person whose negligence
is a substantial factor in the plaintiff's indivisible injury is entirely
liable even if other factors concurred in causing the injury. Normally,
the chosen tortfeasor may seek contribution from another concurrent tortf
easor. If both are already before the court-for example, when the
272 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
are mindful that here we deal with an interface of statutory
and judge-made law. In 1972 Congress aligned the rights
and liabilities of stevedores, shipowners, and longshoremen in
light of the rules of maritime law that it chose not to
change.31 "One of the most controversial and difficult issues
plaintiff himself is the concurrent tortfeasor or ,vhen the two tortfeasors
are suing each other as in a collision case like Reliable Tran.sf er-a separate
contribution action is unnecessary, and damages are simply allocated accordingly.
But the stevedore is not a party and cannot be made a party
here, so the Reliable Transfer contribution shortcut is inapplicable. Contribution
remedies the unjust enrichmei1t of the concurrent tortfeasor, see
Leflar, Contribution and Indemnity Between Tortfeasors, 81 U. Pa. L.
Rev. 130, 136 (1932), and while it may sometimes limit the ultimate loss
of the tortfeasor chosen by the plaintiff, it does not justify allocating more
of the loss to the innocent employee, who was not unjustly enriched. See
also H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making
and Application of Law 525 ( tent. ed. 1958). Our prior cases recognize
that. Even before Reliable Transfer, we apportioned damages between
vessels that collided and sued one another. Reliable Transfer merely
changed the apportionment from equal division to division on the basis
of relative fault. But we did not upset the rule that the plaintiff may
recover from one of the colliding vessels the damage concurrently caused
by tho negligence of both. Compare Reliable Transfer Co. (apportionment
of damages on basis of relative fault between plaintiff and defendant
who concurrently caused grounding), and The Schoaner Catharine v. Dickinson,
17 How. 170 (1855) (equal apportionment of damages between
libelant and respondent vessels where both at fault in collision), with The
Atlas, 93 U. S. 302 (1876) (in suit by insurer of cargo against one of two
ships whose concurrent fault caused collision, the insurer is entitled to recover
in full, despite the rule of equal apportionment, because the insurer
is not a wrongdoer), and The Juniata, 93 U.S. 337, 340 (1876) (same;
if respondent vessel has any rights against nonparty vessel, they "must be
settled in another proceeding").
31 Of course, our decision does not necessarily have any effect on situations
where the Act provides the workers' compensation scheme but the
third-party action is not governed by principles of maritime law. Cf.
Dawson v. Contractors Transp. Corp., 151 U. S. App. D. C. 401, 467 F.
2d 727 (1972) (private employees in the District of Columbia). See also
infra, at 273.
EDMONDS v. COMPAGNIE GENERALE TRANSATL. 273
256 BLACKMUN, J., dissenting
which [Congress was] required to resolve ... concern [ ed]
the liability of vessels, as third parties, to pay damages to
longshoremen who are injured while engaged in stevedoring
operations." S. Rep. 8. By now changing what we have
already established that Congress understood to be the law,82
and did not itself wish to modify, we might knock out of
kilter this delicate balance. As our cases advise, we should
stay our hand in these circumstances. Cooper Stevedoring
Co. v. Fritz Kopke, Inc., 417 U. S., at 112; Halcyon Lines v.
Haenn Ship Ceiling & Refitting Corp., 342 U. S., at 285-286.
Once Congress has relied upon conditions that the courts have
created, we are not as free as we would otherwise be to change
them. A change in the conditions would effectively alter the
statute by causing it to reach different results than Congress
envisioned. Indeed, Congress might have intended to adopt
the existing maritime rule even for third-party actions under
the Act that are not within the admiralty jurisdiction, though
we need not and do not reach that issue today.
Accordingly, we reverse the judgment below and remand for
proceedings consistent with this opinion.
It is so ordered.
MR. JuSTICE POWELL took no part in the consideration or
decision of this case.
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE MARSHALL
and MR. JUSTICE STEVENS join, dissenting.
The jury in this case found that the shipowner, the stevedore,
and the longshoreman were each partially responsible
32 Respondent seeks support for its position in the results of "a meeting
attended by representatives of labor and industry, Committee members
and Committee staff." Brief for Respondent 16. Respondent asserts
that the participants at this meeting arrived at a compromise whereby the
courts were to fashion the rules to be applied in concurrent-fault situations.
No official record of this meeting exists, and subsequent legislative
history does not so much as hint at such a compromise. We are not told
274 OCTOBER TERM, 1978
BLACK1\1UN, J., dissenting 443 U.S.
for the latter's (petitioner Stanley Edmonds) injury. A member
of the ship's crew instructed Edmonds to remove a jack
from the rear wheel of a large cargo container. As Edmonds
went behind the container to remove the jack, another longshoreman
backed a truck into the container, causing it to roll
backwards and pin Edmonds against the bulkhead. The jury
concluded that the shipowner, as the employer of the crewman,
was 20% responsible for the accident; the stevedore, as
the employer of the longshoreman driving the truck, was 70%
responsible; and Edmonds himself was 10% responsible.
The Court holds that the shipowner, who was 20% negligent,
must pay 90% of Edmonds' damages. Edmonds, because
of his comparative negligence, must absorb 10% of the
damages himself. But the stevedore, who, the jury determined,
was 70% at fault, will recoup its statutory compensation
payments out of the damages payable to Edmonds, and
thus will go scot-free.1
The Court does not, and indeed could not, def end this result
on grounds of reason or fairness. Today's ruling means
that concurrently negligent stevedores will be insulated from
the obligation to pay statutory workmen's compensation benefits,
and thus will have inadequate incentives to provide a
safe working environment for their employees. It also means
that shipowners in effect will be held vicariously liable for
the negligence of stevedores, and will have to pay damages far
out of proportion to their degree of fault. Nor does the Court
suggest that its holding is compelled by the language or legisthat
the Senators and Representatives who voted for the Amendments
when they reached the floor knew of the compromise, and we can only
presume that they acted with the existing state of the law, not the probability
of future judicial change, in mind.
1 As of December 18, 1978, the stevedore's insurance company had paid
Edmonds a total of $49,152 in statutory benefits. Brief for Liberty Mutual
Insurance Co. as Amicus Curiae 2. Under the judicially created lien sanctioned
by the Court's opinion, ante, at 269-----270, the stevedore's insurer will
recover this entire sum out of the $90,000 damages awarded to Edmonds.
EDMONDS v. COMPAGNIE GENERALE TRANSATL. 275
256 BLACKMUN, J., dissenting
lative history of § 5 (b) of the Longshoremen's and Harbor
Workers' Compensation Act (LHWCA), 33 U.S. C. § 905 (b).
The Court appears to advance two justifications for its decision:
first, that principles of comparative negligence did not
apply under the traditional law of admiralty, and Congress
intended to preclude judicial modification of that law when it
passed the 1972 Amendments to the LHWCA; and second,
that a rule of comparative negligence would be unfair to injured
longshoremen. Since I find both purported justifications
wholly inadequate to support the Court's decision, I
respectfully dissent.
I
The Court begins with the proposition that, under the law
maritime as it existed in 1972, the shipowner could not reduce
its liability because of the comparative negligence of the stevedore:
I am not entirely convinced. None of the decisions
cited by the Court, ante, at 260 n. 7, stands for this proposition;
the cases relied upon all concern the conceptually distinct
problem~to which the Court has given varying answers-of
whether there is a right of contribution among joint tortfeasors.
2 I am willing to assume, however, for purposes of
argument, that the Court has correctly stated the "traditional"
admiralty rule.
The Court next states that Congress itself did not impose a
rule of comparative negligence when it adopted § 905 (b) in
1972. Again, I am not altogether sure. As Chief Judge
Haynsworth demonstrated in his opinion for the en bane court
2 Technically, there is no issue of "joint and several" liability here, for
the stevedore has statutory immunity from tort liability. 33 U. S. C.
§ 905 (a). Nor are the policies behind the common-law rule of joint
and several liability applicable. The common-law rule serves largely to
protect plaintiffs from defendants who are unable to pay judgments entered
against them. The LHWCA, however, provides safeguards to ensure
the payment of compensation benefits. 33 U. S. C. § 932. There is little
need, therefore, to make the shipowner liable for full damages to protect
the longshoreman from impecunious stevedores.
276 OCTOBER TERM, 1978
BLACKMUN, J., dissenting 443 U.S.
below, there is some tension between the first and second sentences
of § 905 (b) .3 These sentences are most easily reconciled
if one assumes that Congress was thinking in terms of
comparative negligence. The Court points out that there are
other, less plausible, ways of reconciling the two sentences.
Although I feel there is room for debate on this question, I am
again willing to assume, for purposes of argument, that Congress
did not impose a rule of comparative negligence in thirdparty
suits under the LHWCA.
I cannot agree, however, with the Court's third proposition:
that Congress intended to prohibit this Court from fashioning
a rule of comparative negligence in suits for damages by a
longshoreman against the shipowner. It is well established
that courts exercising jurisdiction in maritime affairs have
broad powers of interstitial rulemaking. As the Court stated in
United States v. Reliable Transfer Co., 421 U. S. 397, 409
( 1975), "the Judiciary has traditionally taken the lead in formulating
flexible and fair remedies in the law maritime, and
'Congress has largely left to this Court the responsibility for
fashioning the controlling rules of admiralty law.' Fitzgerald
3 The first sentence reads: "In the event of injury to a person covered
under this chapter cau.sed by the negligence of a vessel, then such person
... may bring an action against such vessel as a third party .... "
The second sentence reads: "If such person was employed by the vessel
to provide stevedoring services, no such action shall be permitted if the
injury was caused by the negligence of persons engaged in providing stevedoring
services to the vC'ssel." (Emphasis added.) If the phrase "caused
by the negligence" in both sentences is given the same meaning, and interpreted
to mean "caused by any negligence what.soever," then an employee
of an independent stevedoring company could recover full damages under
the first sentence if the shipowner was 1 % negligent. and the stevedore
99% negligent. A longshoreman hired directly by the shipowner, however,
would be denied any recovery at all under the second sentence if
persons involved in doing stevedoring work committed as little as 1 % of
the negligence, even if the shipowner was otherwise 99% negligent. If the
statutory phrase "caused by the negligence" is interpreted to import the
notion of comparative negligence, this anomaly does not arise.
EDMONDS v. COMPAGNIE GENERALE TRANSATL. 277
256 BLACKMUN, J., dissenting
v. United States Lines Co., 374 U. S. 16, 20." I find nothing
in the language or legislative history of § 905 (b) that indicates
Congress intended to reverse this presumption with
respect to third-party actions under the LHWCA.
The Court suggests that Congress, in enacting § 905 (b),
"aligned the rights and liabilities of stevedores, shipowners,
and longshoremen" on the specific assumption that the shipowner
would not be allowed to reduce its liability because of
the stevedore's comparative negligence. Ante, at 272. The
legislative history belies this notion. Congress had two narrow
objectives in mind in enacting § 905 (b) in 1972: to overcome
this Court's decision in Seas Shipping Co. v. Sieracki, 328
U.S. 85 (1946), and its decision in Ryan Stevedoring Co. v.
Pan-Atlantic S.S. Corp., 350 U. S. 124 (1956). See S. Rep.
No. 92-1125, pp. 8-11 (1972). These decisions had created a
form of circuitous liability whereby the longshoreman, under
Seas Shipping, sued the shipowner under a theory of unseaworthiness;
the shipowner, under Ryan Stevedoring, obtained
full indemnity from the stevedore; and the stevedore ended
up paying actual damages rather than statutory compensation.
Congress overruled the strict-liability theory of Seas Shipping
to ensure that " [ t] he vessel will not be chargeable with the
negligence of the stevedore or employees of the stevedore."
S. Rep. No. 92-1125, supra, at 11. It eliminated the Ryan
Stevedoring action for indemnification because if "the vessel's
liability is to be based on its own negligence, and the vessel
will no longer be liable under the unseaworthiness doctrine for
injuries which are really the fault of the stevedore, there is
no longer any necessity for permitting the vessel to recover the
damages for which it is liable to the injured worker from the
stevedore .... " S. Rep. No. 92-1125, supra, at 11. These
statements of legislative purpose are as consistent, or more
consistent, with a system of comparative negligence, than with
a congressional assumption that the shipowner would be fully
liable for the concurrent negligence of the stevedore.
278 OCTOBER TERM, 1978
BLACKMUN, J., dissenting 443 U.S.
The legislative history indicates that, if anything, Congress
intended to preserve the role of the federal courts in filling in
the contours of § 905 (b). The House and Senate Reports
state that the liability of a shipowner in an action brought by
a longshoreman should be analogous to that which "would
render a land-based third party in non-maritime pursuits liable
under similar circumstances." S. Rep. No. 92-1125, supra,
at 11. The Report emphasizes, however, that this does not
mean state tort law is to govern third-party negligence suits
against the vessel.
"[TJhe Committee does not intend that the negligence
remedy authorized in the bill shall be applied differently
in different ports depending on the law of the State in
which the port may be located. The Committee intends
that legal questions which may arise in actions brought
under these provisions of the Jaw shall be determined as
a matter of Federal law. In that connection, the Committee
intends that the admiralty concept of comparative
negligence, rather than the common law rule as to contributory
negligence, shall apply in cases where the injured
employee's own negligence may have contributed
to causing the injury. Also, the Committee intends that
the admiralty rule which precludes the defense of 'assumption
of risk' in an action by an injured employee
shall also be applicable." Id., at 12.
In other words, Congress specifically reaffirmed the admiralty
law tradition in the 1972 Amendments, and intended that this
Court would continue to resolve "legal questions which may
arise in actions brought under these provisions" in accordance
with that tradition.
In short, in this case, as in Rel-iable Transfer, 421 U. S., at
409, "[nJo statutory or judicial precept precludes a change
in the rule [that the shipowner is fully liable for the concurrent
negligence of the stevedore], and indeed a proportional
fault rule would simply bring recovery [as between the steveEDMONDS
v. COMPAGNIE GENERALE TRANSATL. 279
256 BLACKMUK, J., dissenting
dore and shipowner J into line with the rule of admiralty law
long since established [as between the longshoreman and the
shipowner]."
II
I am also convinced that no injustice to injured longshoremen
would result from a rule of comparative negligence. A
rule of comparative negligence in no case would reduce the
longshoreman's total award below his statutory workmen's
compensation benefits.4 The rule of comparative negligence
would affect only the relative proportion of statutory benefits
and damages in the longshoreman's total compensation package.
In the present case, for example, a rule of comparative
negligence would mean the longshoreman would receive 20%
damages and 80% statutory benefits, as opposed to 90%
damages and 10% statutory benefits.
At first blush, it might appear that there is something unfair
about reducing the total potential award of the longshoreman
in this manner. But when the different purposes of the statutory
compensation scheme and the third-party action for
negligence are considered, it can be seen that this result is
fully consistent with the policies of the statute. The LHWCA
statutory compensation scheme, like other workmen's compensation
plans, is based on a compromise. The longshoreman
accepts less than full damages for work-related injuries.
In exchange, he is guaranteed that these statutory benefits will
be paid for every work-related injury without regard to fault.
The third-party tort action, in contrast, embodies an element
of risk. The longshoreman faces the prospect of an increased
award, but also the possibility of receiving nothing if the
shipowner is found not to have been negligent.
• Those benefits, after the 1972 Amendments, are relatively generous.
The LHWCA claimant receives two-thirds of his lost wages, free of income
taxes, and adjusted periodically for inflation, 33 U. S. C. §§ 906, 908; his
medical and rehabilitation expenses are paid, § 907; and his attorney's
fees are paid. § 928.
280 OCTOBER TERM, 1978
BLACK:MUN, J., dissenting 443 U.S.
The problem of perceiving the equities arises because of the
interaction of the compensation scheme and the tort scheme.
If a longshoreman is injured while working on a vessel, and
the stevedore is 100% at fault, no one considers it unjust
that the longshoreman receives only statutory benefits. The
award of less than full damages is the quid pro quo for the
guarantee of recovery without regard to the employer's fault.
Similarly, if a longshoreman is injured and the shipowner is
100% to blame, everyone agrees that it is fitting and proper
for the shipowner to pay full damages. The Court, however,
perceives "some inequity" in not allowing the longshoreman
to obtain full damages when the shipowner has been determined
to be only 20% negligent. Presumably, this same
"inequity" would result if the longshoreman did not obtain
full damages when the shipowner was 10% or 5% or even
1 % negligent. This is not equity, however, but a windfall.
Under the Court's rule, the longshoreman is guaranteed statutory
compensation without regard to fault and is given a riskfree
chance to obtain full damages if the shipowner is found
negligent in even the slightest degree. A more evenhanded
equity, in my view, would be for the longshoreman to recover
damages for that portion of the injury for which the shipowner's
negligence is responsible, and to recover the balance
in statutory compensation, representing that portion of the
injury for which the longshoreman is guaranteed an award
regardless of fault.5
III
In sum, this case presents the relatively common situation
where a statute is open to two interpretations, and the legislative
history, although instructive as to the overriding purposes
of Congress, provides no specific guidance as to which
5 See Coleman & Daly, Equitable Credit: Apportionment of Damages
According to Fault in Tripartite Litigation Under the 1972 Amendments
to the Longshoremcn's and Harbor Workers' Compensation Act, 35 Md. L.
Rev. 351 (1976).
-
.....
EDMONDS v. COMPAGNIE GENERALE TRANSATL. 281
256 BLACK~UN, J., dissenting
interpretation Congress would have adopted if it had addressed
the precise issue. Our duty, in such a case, is to adopt
the interpretation most consonant with reason, equity, and
the underlying purposes Congress sought to achieve. If we
are wrong, Congress can, as it has in the past, step in and
adopt some other solution. But the problem should not be
resolved by complacently accepting an unfair and unjust result,
on the assumption the choice between the two interpretations
ideally should be made by Congress. Under that approach,
the Court and the country at large may end up with
nothing more than an unfair and unjust result.
I
I
I
282 OCTOBER TERM, 1978
Syllabus 443 U.S.
CALIFANO, SECRETARY OF HEALTH, EDUCATION,
AND WELFARE v. BOLES ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
No. 78-808. Argued April 25, 1979---Decided June 27, 1979
Held: Section 202 (g) (1) of the Social Security Act restricting "mother's
insurance benefits" to widows and divorced wives of wage earners does
not violate the equal protection component of the Due Process Clause
of the Fifth Amendment by thus denying such benefits to the mother of
an illegitimate child because she was never married to the wage earner
who fathered the child. Pp. 288-297.
(a) Such denial bears a rational relation to the Government's desire
to ease the economic dislocation that occurs when the wage earner
dies and the surviving parent is left with the choice to stay home and
care for the children or to go to work. Congress could reasonably conclude
that a woman who never married the wage earner is far less likely
than one who did to be dependent upon the wage earner at the time
of his death. Pp. 288-293.
(b) The incidental and, to a large degree, speculative impact of
§ 202 (g) (1) on illegitimate children as a class is not sufficient to treat
the denial of "mother's insurance benefits" to unwed mothers as discrimination
against the children. The focus of these benefits is on the
economic dilemma of the surviving spouse or former spouse, whereas the
needs, as such, of the minor children of the dec,eased wage earner are
addressed through the separate "child's insurance benefits" provided by
the Act. Pp. 293-296.
464 F. Supp. 408, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER,
C. J., and STEWART, PowELL, and STEVENS, JJ., joined. MARSHALL, J.,
filed a dissenting opinion, in which BRENNAN, WHITE, and BLACKMUN, JJ.,
joined, post, p. 297.
Harriet S. Shapiro argued the cause for appellant. With
her on the briefs were Solicitor General M cCree, Assistant
Attorney General Babcock, William Kanter, and Susan A.
Ehrlich.
CALIFANO v. BOLES 283
282 Opinion of the Court
Herbert Semmel argued the cause for appellees. With him
on the brief was Nancy Duff Campbell.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Since the Depression of the 1930's, the Government has
taken increasingly upon itself the task of insulating the
economy at large and the individual from the buffeting of
economic fortune. The federal old-age, survivors, and disability
insurance provisions of the Social Security Act (SSA)
are possibly the pre-eminent examples: attempts to obviate,
through a program of forced savings, the economic dislocations
that may otherwise accompany old age, disability, or the death
of a breadwinner. As an exercise in governmental administration,
the social security system is of unprecedented dimension;
in fiscal year 1977 nearly 150 million claims were filed.1
Given this magnitude, the number of times these SSA
claims have reached this Court warrants little surprise.2 Our
1 Social Security Administration's Office of Management and Administration,
The Year in Review: The Administration of Social Security Programs
1977, p. ii (July 1978).
2 Califano v. Yama.saki, 442 U.S. 682 (1979); Califano v. Jobst, 434
U. S. 47 (1977); Califano v. Webster, 430 U. S. 313 (1977); Califano v.
Goldfarb, 430 U. S. 199 (1977); Mathews v. De Castro, 429 U. S. 181
(1976); Norton v. Mathews, 427 U. S. 524 (1976); Mathews v. Lucas, 427
U.S. 495 (1976); Mathews v. Eldridge, 424 U.S. 319 (1976); Weinberger
v. Salfi, 422 U. S. 749 (1975); Weinberger v. Wiesenfeld, 420 U. S. 636
(1975); Jimenez v. Weinberger, 417 U. S. 628 (1974); Richardson v.
Wright, 405 U.S. 208 (1972); Richardson v. Belcher, 404 U.S. 78 (1971);
Richardson v. Perales, 402 U. S. 389 (1971); Flemming v. Nestor, 363
U. S. 603 (1960). Ylany other cases have been disposed of by summary
action. This Court has also had numerous cases involving claims arising
under federal-state cooperative welfare programs authorized by the SSA.
See, e. g., Graham v. Richardson, 403 U. S. 365 (1971) (Assistanoe to
Persons Permanently and Totally Disabled); California Human Resources
Dept. v. Java, 402 U. S. 121 (1971) (unemployment insurance); Dandridge
v. Williams, 397 U. S. 471 (1970) (Aid to Families With Dependent
Children).
284 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
cases evidence a sensitivity to the legislative and administrative
problems posed in the design of such a program and in
the adjudication of claims on this scale. The problems are
generally of two types. The first is categorization.3 In light
of the specific dislocations Congress wishes to alleviate, it is
necessary to define categories of beneficiaries. The process of
categorization presents the difficulties inherent in any linedrawing
exercise where the draftsman confronts a universe of
potential beneficiaries with different histories and distinct
needs. He strives for a level of generality that is administratively
practicable, with full appreciation that the included
class has members whose "needs" upon a statutorily defined
occurrence may not be as marked as those of isolated individuals
outside the classification. "General rules are essential
if a fund of this magnitude is to be administered with a
modicum of efficiency, even though such rules inevitably produce
seemingly arbitrary consequences in some individual
cases." Califano v. Jobst, 434 U.S. 47, 53 (1977). A process
of case-by-case adjudication that would provide a "perfect fit"
in theory would increase administrati~e expenses to a degree
that benefit levels would probably be reduced, precluding a
3 The bulk of our cases fall under this heading. Califano v. Jobst,
supra (termination of dependent child's bC'nefits upon his marriage);
Califano v. Webster, supra (gender-based differences in benefit computation);
Califano v. Goldfarb, supra (gender-based differences in defining
dependent of deceased wage earner); Mathews v. De C(])Jtro. supra (denial
of "wife's insurance benefits" to divorced women under 62 years of age);
Norton v. Mathews, supra (illrgitimate children denied presumption of
dependency enjoyed by legitimates); Mathews v. Lucas, supra (same as
Norton); Weinberger v. Salfi, supra (duration-of-relationship requirements
for receipt of mother's or child's insurance benefits); Weinberger v.
Wiesenfeld, supra (grnder-based denial of survivor's benefits to widowers);
.Jimenez v. Weinberger, supra (denial of disability insurance benefits to
illegitimate children born after onset of wage earner's disability); Richardson
v. Belcher, supra (reduction in social security benefits to reflect
state workmen's compensation benefits); Flemming v. Nestor, supra
(termination of insurance benefits to aliens upon their deportation).
CALIFANO v. BOLES 285
282 Opinion of the Court
perfect fit in fact. Mathews v. Luca.s, 427 U. S. 495, 509
(1976); Weinberger v. Salfi, 422 U.S. 749, 776-777 (1975).
The second type of problem that has been brought to this
Court involves the Social Security Administration's procedures
for dispute resolution where benefits have been
denied, decreased, or terminated because the Administration
has concluded that the claimant is not entitled to what
he has requested or to what he has received in the past.4
Again the Court has been sensitive to the special difficulties
presented by the mass administration of the social security
system. After the legislative task of classification is completed,
the administrative goal is accuracy and promptness in
the actual allocation of benefits pursuant to those classifications.
The magnitude of that task is not amenable to the
full trappings of the adversary process lest again benefit levels
be threatened by the costs of administration. Mathews v.
Eldridge, 424 U. S. 319, 343-349 (1976); Richardson v.
Perales, 402 U. S. 389, 406 (1971). Fairness can best be
assured by Congress and the Social Security Administration
through sound managerial techniques and quality control
designed to achieve an acceptable rate of error.
This case involves a challenge to a categorization. Appellees
Norman J. Boles and Margaret Gonzales represent a nationwide
class of all illegitimate children and their mothers who
are allegedly ineligible for insurance benefits under the SSA
because in each case the mother was never married to the
wage earner who fathered her child. Section 202 (g) (1) of
the SSA, as amended, 42 U.S. C. § 402 (g)(l), only makes
"mother's insurance benefits" available to widows and di-
• Califano v. Yamasaki. supra (lack of prerecoupment oral hearing in
overpayment cases); Mathews v. Eldridge, supra (question whether evidentiary
hearing necessary before termination of disability insurance benefits);
Richardson v. Wright, supra (challenge to procedures employed in
suspension or termination of disability benefits); Richardson v. Perales,
supra (written reports by physicians who have examined disability insurance
claimants are "substantial evidence" supporting denial of benefits).
286 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
vorced wives.5 By virtue of this Court's decision in Weinberger
v. Wiesenfeld, 420 U. S. 636 ( 1975), "mother's insurance
benefits" are available to widowers, leaving the title
5 Section 202 (g) (1), as set forth in 42 U. S. C. § 402 (g)(l), provides:
"(1) The widow and every surviving divorced mother (as defined
in section 416 (d) of this title) of an individual who died a fully or currently
insured individual, if such widow or surviving divorced mother-
" (A) is not married,
"(B) is not entitled to a widow's insurance benefit,
" ( C) is not entitled to old-age insurance benefits, or is entitled to old-age
insuranoo benefits each of which is less than three-fourths of the primary
insurance amount of such individual,
"(D) has filed application for mother's insurance benefits, or was entitled
to wife's insurance benefits on the basis of the wages and self-employment
income of such individual for the month preceding the month in which he
died,
"(E) at the time of filing such application has in her care a child or such
individual entitled to a child's insurance benefit, and
"(F) in the case of a surviving divorced mother-
" (i) the child referred to in subparagraph (E) is her son, daughter, or
legally adopted child, and
"(ii) the benefits referred to in such subparagraph are payable on the
basis of such individual's wages and self-employment income,
"shall (subject to subsection (s) of this section) be entitled to a mother's
insurance benefit for each month, beginning with the first month after
August 1950 in which she becomes so entitled to such insurance benefits
and ending with the month prec.eding the first month in which any of the
following occurs: no child of such deceased individual is entitled to a
child's insurance benefit, such widow or surviving divorced mother becomes
entitled to an old-age insurance benefit equal to or exceeding three-fourths
of the primary insurance amount of such deceased individual, she becomes
entitled to a widow's insuranoe benefit, she remarries, or she dies. Entitlement
to such benefits shall also end, in the case of a surviving divorced
mother, with the month immediately preceding the first month in which
no son, daughtN, or legally adopted child of such surviving divorced
mother is entitled to a child's insurance benefit on the basis of the wages
and self-employment income of such deceased individual."
Section 216 (d)(3), 42 U.S. C. §416 (d)(3), states:
"(3) The term 'surviving divorced mother' means a woman divorced
from an individual who has died, but only if (A) she is the mother of his
CALIFANO v. BOLES 287
282 Opinion of the Court
of these benefits a misnomer. There we held that the provision
of such benefits only to women violated the Due Process
Clause of the Fifth Amendment.
Norman W. Boles died in 1971. He left a widow, Nancy L.
Boles, and their two children, who were each promptly awarded
child's insurance benefits. Nancy Boles receives mother's
insurance benefits. Appellee Gonzales lived with Norman W.
Boles for three years before his marriage to Nancy Boles and
bore a son by him, Norman J. Boles.6 Gonzales sought
mother's insurance benefits for herself and child's benefits
for her son. Her son was granted benefits, but her personal
request was denied because she had never been married to the
wage earner.
Gonzales exhausted her administrative remedies and then
filed this suit in the United States District Court for the
Western District of Texas. The District Court certified a
class of "all illegitimate children and their mothers who are
presently ineligible for Mother's Insurance Benefits solely
because 42 U. S. C. § 402 (g) ( 1) restricts such benefits to
women who were once married to the fathers of their children."
App. to Juris. Statement la-2a. The District Court
found that § 202 (g) ( 1) of the SSA was unconstitutional.
There were three steps in its logic.
First, it read Weinberger v. Wiesenfeld, supra, as holding
that mother's insurance benefits are chiefly for the benefit of
the child. It quoted from a passage in that opinion where
this Court observed:
"[Section] 402 (g), linked as it is directly to responsibility
for minor children, was intended to permit women to elect
son or daughter, (B) she legally adopted his son or daughter while she
was married to him and while such son or daughter was under the age of
18, (C) he legally adopted her son or daughter while she was married to
him and while such son or daughter was under the age of 18, or (D) she
was married to him at the time both of them legally adopted a child under
the age of 18."
6 Norman W. Boles had acknowledged his paternity of Norman J. Boles.
288 OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
not to work and to devote themselves to the care of
children ....
"That the purpose behind § 402 (g) is to provide children
deprived of one parent with the opportunity for the
personal attention of the other could not be more clear
in the legislative history." 420 U. S., at 648-649.
On the basis of this language it then concluded that for purposes
of equal protection analysis, the pertinent discrimination
in this case is not unequal treatment of unwed mothers,
but rather discrimination against illegitimate children. In
its final step the District Court held that the application of
§ 202 (g)(l) at issue here is unconstitutional, relying on cases
of this Court invalidating on constitutional grounds legislation
that discriminated against illegitimates solely because of their
status at birth. E. g., Weber v. Aetna Casualty & Surety
Co., 406 U. S. 164 (1972); Gomez v. Perez, 409 U. S. 535
(1973); Jimenez v. Weinberger, 417 U. S. 628 (1974);
Trimble v. Gordon, 430 U.S. 762 (1977).
We noted probable jurisdiction, 439 U. S. 1126 (1979), and
now conclude that the District Court incorrectly analyzed the
equal protection issue in this case. We accordingly reverse.
As this Court noted in Weinberger v. Wiesenfeld, supra, at
643, § 202 (g) "was added to the Social Security Act in 1939
as one of a large number of amendments designed to 'afford
more adequate protection to the family as a unit.' H. R.
Rep. No. 728, 76th Cong., 1st Sess., 7 (1939)." The benefits
created in 1939 "were intended to provide persons dependent
on the wage earner with protection against the economic
hardship occasioned by loss of the wage earner's support."
Califano v. Jobst, 434 U.S., at 50; see Mathews v. De Castro,
429 U. S. 181, 185- 186 (1976). Specifically, § 202 (g) "was
intended to permit women [and now men] to elect not to
work and to devote themselves to care of children." 420
U. S., at 648. The animating concern was the economic
dislocation that occurs when the wage earner dies and the surCALIF
ANO v. BOLES 289
282 Opinion of the Court
v1vmg parent is left with the choice to stay home and care
for the children or to go to work, a hardship often exacerbated
by years outside the labor force. "Mother's insurance benefits"
were intended to make the choice to stay home easier.
But the program was not designed to be, and we think is not
now, a general system for the dispensing of child-care subsidies.
7 Instead, Congress sought to limit the category of
beneficiaries to those \Vho actually suffer economic dislocation
upon the death of a wage earner and are likely to be confronted
at that juncture with the choice between employment
or the assumption of full-time child-care responsibilities.
In this light there is an obvious logic in the exclusion from
§ 202 (g) of women or men who have never married the wage
earner. "Both tradition and common experience support the
conclusion that marriage is an event which normally marks an
important change in economic status." Califano v. Jobst,
supra, at 53. Congress could reasonably conclude that a
woman who has never been married to the wage earner
is far less likely to be dependent upon the wage earner at the
time of his death. He was never legally required to support
her and therefore was less likely to have been an important
source of income. Thus, the possibility of severe economic
dislocation upon his death is more remote.
We confronted an analogous classification in Mathews v.
De Castro, supra, which involved a challenge to the exclusion
of divorced women from "wife's income benefits." In concluding
that the classification did not deny equal protection,
we observed:
"Divorce by its nature works a drastic change in the
economic and personal relationship between a husband
1 Califano v. Jobst, 434 U.S., at 52:
"The statute is designed to provide the wage earner and the dependent
members of his family with protection against the hardship occasioned by
his loss of earnings; it is not simply a welfare program generally benefiting
needy persons."
See also Mathews v. De Castro, 429 U.S., at 185-186.
290 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
and wife. . . . Congress could have rationally assumed
that divorced husbands and wives depend less on each
other for financial and other support than do couples who
stay married. The problems that a divorced wife may
encounter when her former husband becomes old or disabled
may well differ in kind and degree from those that
a woman married to a retired or disabled husband must
face. . . . She may not feel the pinch of the extra
expenses accompanying her former husband's old age or
disability. . . . It was not irrational for Congress to
recognize this basic fact in deciding to defer monthly
payments to divorced wives of retired or disabled wage
earners until they reach the age of 62." 429 U. S., at
188-189.
Likewise, Weinberger v. Salfi, 422 U.S. 749 (1975), upheld
a 9-month duration-of-relationship eligibility requirement for
the wife and stepchildren of a deceased wage earner. The
stated purpose of the requirement was "to prevent the use of
sham marriages to secure Social Security payments." Id., at
767. We found that the only relevant constitutional argument
was whether "the test [ appellees could not] meet [was] not
so rationally related to a legitimate legislative objective that
it [ could] be used to deprive them of benefits available to
those who [did] satisfy that test." Id., at 772. We recognized
that the statutory requirement would deny benefits in some
cases of legitimate, sincere marriage relationships.
"While it is possible to debate the wisdom of excluding
legitimate claimants in order to discourage sham relationships,
and of relying on a rule which may not exclude
some obviously sham arrangements, we think it clear
that Congress could rationally choose to adopt such a
course. Large numbers of people are eligible for these
programs and are potentially subject to inquiry as to the
validity of their relationships to wage earners. . . . Not
only does the prophylactic approach thus obviate the
282
CALIFANO v. BOLES 291
Opinion of the Court
necessity for large numbers of individualized determinations,
but it also protects large numbers of claimants who
satisfy the rule from the uncertainties and delays of
administrative inquiry into the circumstances of their
marriages." Id., at 781-782.
It is with this background that we must analyze what the
District Court in this case perceived to be the flaw in relying
on dependence as a rationale for the statutory distinction between
married and unmarried persons. The District Court
pointed out that in 1972 Congress lifted the requirement that
divorced women seeking mother's insurance benefits show that
they were in some measure dependent on the wage earner
immediately before his death.8 It seized this fact as refutation
of any characterization of these benefits as an attempt to
ease the dislocation of those who had been dependent on the
deceased. We think the District Court is demanding a precision
not warranted by our cases.
Certainly Congress did not envision such precision. The
legislative history surrounding the devolution of support requirements
suggests that its effect on mother's insurance benefits
was an incidental and relatively minor byproduct of
8 Originally, nothing similar to mother's insurance benefits for divorced
women was provided by the SSA. Then in 1950 these benefits, subject
to limitations not relevant here, were made available to a surviving
divorced wife, if she had not remarried, had a child in her care entitled to
child's insurance benefits, and at the time of the wage earner's death had
been receiving at least one-half of her support from him. Act of Aug.
28, 1950, § 101 (a), 64 Stat. 485.
In 1965, the remarriage bar to mother's insurance benefits was relaxed.
A woman's rights as a surviving divorced mother would be restored if her
second marriage ended in divorce. Moreover, a showing that she was
receiving or entitled to rrceive "substantial contributions" from the wage
earner at the time of his death would suffice in lieu of a showing that she
received at least one-half of her support from the wage earner. Old-Age,
Survivors, and Disability Amendments of 1965, § 308, 79 Stat. 377-379.
Finally, in 1972 Congress made the changes discussed by the District
Court. Social Security Amendments of 1972, § 114 (c), 86 Stat. 1348.
292 OCTOBER TER:\1, 1978
Opinion of the Court 443 U.S.
Congress' core concern: older women who were married to
wage earners for over 20 years-women who of ten only knew
work as housewives-and ·who ·were not eligible for surviving
divorced wife's insurance benefits because state divorce laws
did not permit alimony or because they had accepted a property
settlement in lieu of alimony.0 The Social Security laws
9 Interestingly, younger women receiving mother's benefits are not even
mentioned in the Committee Reports on the 1972 amendment.
"Benefits, under present law, arc payable to a divorced wife age 62
or older and a divorced widow age 60 or older if her marriage lasted at
least 20 years before the divorce, and to a surviving divorced mother.
In order to qualify for any of these benefits a divorced woman is requirrd
to show that: (1) she was receiving at least one-half of her support from
her former husband; (2) she was receiving substantial contributions from
her former husband pursuant to a written agreement; or (3) there was a
court order in effect providing for substantial contributions to her support
by her former husband.
"In some States the courts are prohibited from providing for alimony,
and in these States a divorced woman is precluded from meeting the
third support requirement. Even in States which allow alimony, the
court may have decided at the time of the divorce that the wife was
not in need of financial support. Moreover, a divorced woman's eligibility
for social security benefits may depend on the advice she received at the
time of her divorce. If a woman accepted a property settlement in lieu
of alimony, she could, in effect, have disqualified herself for divorced wife's,
divorced widow's, or surviving divorced mother's benefits.
"The intent of providing benefits to divorced women is to protect women
whose marriages are dissolved when they are far along in years-particularly
housewives who have not been able to work and earn social security
protection of their own. The committee believes that the support requirements
of the law have operated to deprive some divorced women of the
protection they should have received and, therefore, recommends that these
requirements be eliminated. The requirement that the marriage of a
divorced wife or widow must have lasted for at least 20 years before the
divorce would not be changed." S. Rep. No. 92-1230, p. 142 (1972).
See H. R. Rep. No. 92-231, pp. 54-55 (1971). When the 1965 changes
were made there was only passing mention of younger women receiving
mother's insurance benefits. S. Rep. No. 404, 89th Cong., 1st Sess., 108
(1965).
CALIFANO v. BOLES 293
282 Opinion of the Court
have maintained uniform support requirements for divorced
,vife's, divorced widow's, and surviving divorced mother's benefits.
Obviously administration is thereby simplified. Undoubtedly,
some younger divorced wives ·with children of
deceased wage earners in their care who could not meet the
old support requirements incidentally benefit from Congress'
concern that many older women were being victimized once
by state divorce laws and again by the Social Security laws.10
However, when Congress seeks to alleviate hardship and
inequity under the Social Security laws, it may quite rightly
conceive its task to be analogous to painting a fence, rather
than touching up an etching. We have repeatedly stated
that there is no constitutional requirement that "a statutory
provision ... filte[r] out those, and only those, who are in the
factual position which generated the congressional concern
reflected in the statute." Weinberger v. Sa.lfi, 422 U. S., at
777; Mathews v. De Castro, 429 U. S., at 189. In sum, we
conclude that the denial of mother's insurance benefits to a
woman who never married the wage earner bears a rational
relation to the Government's desire to ease economic privation
brought on by the wage earner's death.
But the appellees argue that to characterize the problem in
this fashion is to miss the point because at root this case
involves discrimination against illegitimate children. Quite
naturally, those who seek benefits denied them by statute
will frame the constitutional issue in a manner most favorable
to their claim. The proper classification for purposes of equal
10 There are no precise figures as to the extra cost to the insurance fund
posed by this exp:rnsion of mother's insurance benefits. It can be inferred
from the attention this expansion received in the legislative history that its
cost was a relatively Rmall part of the $23 million annual increase in benefits
estimatui for eliminating support requirements across the board.
See S. Rep. No. 92-1230, supra, at 142. The Department of Health,
Education, and Welfare has estimated that compliance with the District
Court's decision in this case will cost $60 million annually.
294 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
protection analysis is not an exact science, but scouting must
begin with the statutory classification itself. Only when it is
shown that the legislation has a substantial disparate impact
on classes defined in a different fashion may analysis continue
on the basis of the impact on those classes.
We conclude that the legislation in this case does not have
the impact on illegitimates necessary to warrant further
inquiry whether § 202 (g) is the product of discriminatory
purposes. See Personnel Administrator of Mass. v. Feeney,
442 U. S. 256 (1979). "Mother's insurance benefits" are
distinct from "child's insurance benefits." The latter are
benefits paid to the minor children of the deceased wage
earner 11 and, as noted, Gonzales' son did receive child's insurance
benefits. The benefit to a child as a result of the parent
or guardian's receipt of mother's insurance benefits is incidental:
mother's insurance benefit payments do not vary with the
number of children within the recipient's care, they are not
available in the foster care context, and they are lost on
remarriage or if the surviving parent earns a substantial income-
all despite the needs of the child. Thus, the focus of
these benefits is on the economic dilemma of the surviving
spouse or former spouse; the child's needs as such are addressed
through the separate child's insurance benefits.12 Nor
11 In Jimenez v. Weinberger, 417 U. S. 628 (1974), this Court struck
down an absolute bar to child's insurance benefits for illegitimate children
whose paternity had never been acknowledged or affirmed by evidence of
domicile with, or support by, the wage earner before the onset of the
disability.
12 There is obviously a significant difference between this interpretation
of the statutory purpose and that subscribed to by the author of this
opinion in his separate concurrence in Weinberger v. Wiesenfeld, 420 U. S.,
at 655. To the extent that these interpretations conflict, the author feels
he can do no better than quote Mr. Justice Jackson, concurring in
McGrath v. Kristensen, 340 U.S. 162, 177-178 (1950):
"Precedent, however, is not lacking foT ways by which a judge may recede
from a prior opinion that has proven untenable and perhaps misled others.
See Chief Justice Taney, License Cases, 5 How. 504, recanting views he
CALIFANO v. BOLES 295
282 Opinion of the Court
is it invariably true that whatever derivative benefits are enjoyed
by the child whose parent or guardian receives mother's
insurance benefits will not be enjoyed by illegitimate children.
If the illegitimate child is cared for by the deceased wage
earner's wife, she will receive mother's insurance benefits even
though she has no natural children of her own and never
adopted the child.13 And many legitimate children live in
households that are not headed by individuals eligible for
mother's benefits.
In order to make out a disparate impact warranting further
scrutiny under the Due Process Clause of the Fifth Amendment,
it is necessary to show that the class which is purportedly
discriminated against consequently suffers significant
deprivation of a benefit or imposition of a substantial
burden. If the class of beneficiaries were expanded in the
fashion pressed by appellees, the beneficiaries, in terms of
those who would exercise dominion over the benefits and
whose freedom of choice would be enhanced thereby, would
be unwed mothers, not illegitimate children. Certainly every
governmental benefit has a ripple effect through familial relationships
and the economy generally, its propagation determined
by the proximity and sensibilities of others. Possibly
the largest class of incidental beneficiaries are those who are
gratified in a nonmaterial way to see a friend or relative rehad
pressed upon the Court as Attorney General of Maryland in Brown
v. Maryland, 12 Wheat. 419. Baron Bramwell extricated himself from a
somewhat similar embarrassment by saying, 'The matter does not appear
to me now as it appears to have appeared to me then.' Andrews v. Styrap,
26 L. T. R. (N. S.) 704, 706. And Mr. Justice Story, accounting for his
contradiction of his own former opinion, quite properly put the matter:
'My own error, however, can furnish no ground for its being adopted by
this Court ... .' United States v. Gooding, 12 Wheat. 460, 478. . . . If
there are other ways of gracefully and good-naturedly surrendering former
views to a better considered position, I invoke them all."
13 Compare 42 U.S. C. §402(g)(l)(E) with §402(g)(l)(F)(i).
296 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
ceive benefits. Some limits must be imposed for purposes
of constitutional analysis, and we conclude that in this case
the incidental and, to a large degree, speculative impact on
illegitimates as a class is not sufficient to treat the denial of
mother's insurance benefits to unwed mothers as discrimination
against illegitimate children.
The SSA and its amendments are the product of hard
choices and countervailing pressures. The desire to alleviate
hardship wherever it is found is tempered by the concern
that the social security system in this country remain
a contributory insurance plan and not become a general
welfare program. General welfare objectives are addressed
through public assistance legislation. In light of the limited
resources of the insurance fund, any expansion of the class of
beneficiaries invariably poses the prospect of reduced benefits
to individual claimants. We need look no further than the
facts of this case for an illustration. The benefits available
to Norman W. Boles' beneficiaries under the Act are limited
by his earnings record. The effect of extending benefits to
Gonzales will be to reduce benefits to Nancy Boles and her
children by 20%.14 Thus, the end result of extending benefits
to Gonzales may be to deprive Nancy Boles of a meaningful
choice between full-time employment and staying home with
her children, thereby undermining the express legislative purpose
of mother's insurance benefits. We think Congress could
rationally choose to concentrate limited funds where the need
is likely to be greatest.
Because of our disposition of the Fifth Amendment issue,
we need not and do not reach the appellant's other arguments:
that the District Court improperly certified a nationwide
class that included individuals who were not shown to
have met the jurisdictional requirements of § 205 (g) of the
14 Brief for Appellant 29 n. 22.
CALIFANO v. BOLES 297
282 MARSHALL, J., dissenting
SSA, 42 U. S. C. § 405 (g) ,15 and that sovereign immunity
barred that court's award of retroactive monetary relief.
The judgment of the District Court is accordingly
Reversed.
MR. JUSTICE MARSHALL, with whom MR. JusTICE BRENNAN,
MR. JusTicE WHITE, and MR. JUSTICE BLACKMUN join,
dissenting.
The critical question in this dispute is whether § 202 (g) of
the Social Security Act, 42 U. S. C. § 402 (g), discriminates
against unmarried parents or against illegitimate children.
The Court determines that the intended beneficiaries of § 202
(g) are dependent spouses, and that the statute therefore
distinguishes between categories of parents. Having thus
characterized the statute, the Court concludes that the use of
marital status as an index of dependency on a deceased wage
earner is permissible under Califano v. Jobst, 434 U. S. 47, 50
(1977), and Mathews v. De Castro, 429 U. S. 181, 185~186
(1976). If, however, as the District Court found, the statute
benefits children, then it incorporates a distinction based on
legitimacy which must be tested under the more rigorous
standards of Jimenez v. Weinberger, 417 U.S. 628 (1974), and
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972).
Determining the proper classification for purposes of equal
protection analysis is, to be sure, not "an exact science."
Ante, at 294. But neither is it an exercise in statutory revision.
And only by disregarding the clear legislative history,
structure, and effect of the Mother's Insurance Benefits Program
can the Court characterize dependent spouses, rather
than children, as the intended beneficiaries of § 202 (g). Just
four Terms ago, a unanimous Court concluded that the clear
purpose underlying § 202 (g) "is to provide children deprived
of one parent with the opportunity for the personal attention
15 See Califano v. Yamasaki, 442 U.S. 682 (1979).
i
L
298 OCTOBER TERM, 1978
MARSHALL, J ., dissenting 443 u. s.
of the other." Weinberger v. Wiesenfeld, 420 U.S. 636, 648-
649 (1975).1 Indeed, the author of today's opinion for the
Court concurred separately in Wiesenfeld on the ground that
an examination of the legislative history and statutory context
of § 202 (g) "convincingly demonstrates that the only
purpose of [ § 202 (g) l is to make it possible for children
of deceased contributing workers to have the personal care
and attention of a surviving parent." 420 U. S., at 655
(REHNQUIST, J., concurring) (emphasis added). That same
legislative history and statutory context now persuade the
Court that the "animating concern" of § 202 (g) is to assist a
surviving spouse, and that any benefit to a child is merely
"incidental." Ante, at 288-289, 294. I cannot agree. In my
judgment, the history and structure of the Act establish as
"convincingly" here as they did in Wiesenfeld that § 202 (g)
was designed to aid children. And because denial of support
for illegitimates bears no substantial relationship to that purpose,
I respectfully dissent.
I
The Court concedes, as it must, that Congress intended the
Mother's Insurance Benefits Program to enable surviving
spouses to stay at home and care for their children. Ante, at
288. Despite this concession, the Court manages to conclude
that the sole beneficiaries of the program, for equal protection
purposes, are the spouses who provide care, not the children
who receive it. Unencumbered by a.ny direct support from
the legislative history, the Court reaches this conclusion by
positing that the program was designed to aid surviving parents
who "actually suffer economic dislocation upon the death
of a wage earner." Ante, at 289. Given this a.ssert€d pur-
1 In Wiesenfeld, the Court held that § 202 (g) 's denial of benefits to
widowers reflected impermissible gender-based discrimination. In so ruling,
we reasoned that classifications based on the sex of the surviving
parent bore no relationship to the statutory objective of enabling children
who had lost one parent to receive full-time care by the other. See 420
U.S., at 651.
CALIFANO v. BOLES 299
282 MARSHALL, J., dissenting
pose, the Court finds "obvious logic" in § 202 (g) 's exclusion of
unwed mothers, since ucongress could reasonably conclude
that a woman who has never been married to the wage earner
is far less likely to be dependent upon the ,vage earner at the
time of his death." Ante, at 289. However, neither the history
nor structure of the statute supports the Court's determination
that Congress enacted § 202 (g) to assist dependent
spouses rather than their children.
Aid to surviving parents was first extended under the
Social Security Act Amendments of 1939 in the form of
"widows' benefits." The Advisory Council on Social Security,
which formulated the program, indicated that payments were
"intended as supplements to the orphans' benefits with the
purpose of enabling the widow to remain at home and care for
the children." Final Report of the Advisory Council on
Social Security 31 (1938). Proposals to grant benefits to dependent
widows ,vithout minor children were rejected, on the
apparent theory that young childless women could work and
older widows would have savings or grown children able to
assist them. Report of the Social Security Board, H. R. Doc.
No. 110, 76th Cong., 1st Sess., 7-8 (1939). See also H. R.
Rep. No. 728, 76th Cong., 1st Sess., 36-37 (1939); Hearings
on the Social Security Act Amendments of 1939 before the
House Committee on ·ways and Means, 76th Cong., 1st Sess.,
61 (1939). Subsequent re-enactments of the program reflected
no change in the underlying statutory objective-to allow
surviving parents "to stay home and care for [their] children
instead of working." 1971 Advisory Council on Social
Security, Reports on the Old-Age, Survivors, and Disability
Insurance and Medicare Programs 30 (1971).
Moreover, the entire structure of the statute belies the
Court's determination that Congress intended mother's insurance
to aid a wage earner's economically dependent spouse
rather than his children. Section 202 (g) imposes no express
requirement of dependency. As the District Court noted,
300 OCTOBER TERM, 1978
MARSHALL, J., dissenting 443 u. s.
mothers and their legitimate children may obtain benefits
under § 202 (g) "regardless of whether [ the wage earner] was
living with them or supporting them at the time of his death.
or even if he never lived with or supported them." 464 F.
Supp. 408, 412 (WD Tex. 1978). By contrast, an unmarried
mother and her child who were fully dependent on the insured
nonetheless remain ineligible for assistance under § 202 (g).
That divorced parents and their children qualify for mother's
insurance further undercuts the Court's attempted linkage between
the marital requirement and dependency. A woman
previously married to a deceased ,vage earner is eligible for
benefits even if neither she nor her child ever received support
from the father, and even if the father vvas excused from any
legal support obligations in the divorce proceedings. Indeed, a
mother whose second marriage tBrrninates in death or divorce
may claim benefits on the account of her first husband although
in all likelihood, any entitlement to support terminated
upon her remarriage. See 464 F. Supp., at 413.2 In
short, nothing in the structure or history of the statute sustains
the Court's conclusion that the purpose of § 202 (g) is
to benefit dependent spouses as opposed to children.
Equally untenable is the Court's further determination that
§ 202 (g) has insufficient discriminatory impact on illegitimates
to warrant further analysis. See ante, at 294. In con-
2 The Court dismisses this awkward fact with an equally awkward
metaphor. In the Court's view, Congress' inclusion of divorced parents
represents an attrmpt to "alleviate hardship and inequity under the Social
Security laws." Ante, at 293. And, under the Court's analysis, when Congress
undertakes such an endeavor, "it may quite rightly conceive its task
to be analogous to painting a fence, rather than touching up an etching."
Ibid. But this cha.racteri:.ia.tion of legislative technique elides the issue
relevant here, the purpose of the statutory scheme. Metaphor cannot
mask the significance of Congress' decision to confer benefits on divorc,ed
spouses. That these individuals may obtain mother's insurance of itself
negates the proposition that the painter-draftsman was concerned with
assisting dependent parents rather than their children.
CALIFANO v. BOLES 301
282 MARSHALL, J., dissenting
eluding that § 202 (g) has no such disparate effect, the Court
reasons first that
"[t]he benefit to a child as a result of the parent or
guardian's receipt of mother's insurance benefits is incidental:
mother's insurance benefit payments do not vary
with the number of children within the recipient's care,
they are not available in the foster care context, and they
are lost on remarriage or if the surviving parent earns a
substantial income .... " Ante, at 294.
But none of these enumerated eligibility requirements support
the Court's characterization of children as "incidental" rather
than intended beneficiaries of § 202 (g). On the contrary,
these restrictions, together with two others the Court neglects
to mention, are consistent with the stated purpose of the program-
to afford parents who would otherwise be forced to
work the option of caring for their children at home. That
objective is plainly served by eligibility limitations excluding
individuals whose economic resources already permit such a
choice. Factors including remarriage, outside income, and
qualification for foster care payments directly or indirectly
reflect such resources; the number of the recipient's children
does not. Similarly, the conditions that mother's benefits
cease when a child reaches 18 or leaves the parent's care and
custody, see § 202 (d)(5), 42 U. S. C. § 402 (d)(5), also
reinforce the conclusion that children are the actual beneficiaries
of § 202 (g). For the parent's eligibility continues
"only so long as it is realistic to think that the children might
need their parent at home." Weinberger v. Wiesenfeld, 420
U. S., at 650 n. 17.
The Court further submits that the discriminatory impact
of § 202 (g) is not of constitutional dimension because an
illegitimate child could conceivably obtain benefits if he
leaves the home of his natural mother to live with his deceased
father's wife. This suggestion, of course, presupposes both an
extraordinary beneficence on the part of the wife, and no
302 OCTOBER TERM, 1978
MARSHALL, J., dissenting 443 U. 8.
strong attachment between the natural mother and her child,
assumptions which the Court does not and could not defend.3
And forcing a child to forgo living with his natural mother in
order to obtain assistance under § 202 (g) hardly comports
with the articulated purpose of the program, to encourage
parental care.
In any event, as this Court's prior holdings amply demonstrate,
a statute that disadvantages illegitimates as a class is
not saved simply because not all members of that class are
penalized under all conceivable circumstances. For example,
in both Weber v. Aetna Casualty & Surety Co., 406 U.S. 164
(1972), and Jimenez v. Weinberger, 417 U.S. 628 (1974), we
rejected an argument that illegitimates suffered no discrimination
under statutes extending benefits to legitimate children
but only to certain categories of illegitimates.4 Similarly, in
3 Although statistics in this area are difficult to obtain, available data
reveal that a very high percentage of illegitimate children reside with their
natural mothers. Approximately one-half of all illegitimate births are to
women under age 20, see Department of Health, Education, and Welfare,
Monthly Vital Statistics Report, Final Natality Statistics, 1977, p. 19
(Feb. 1979), :rnd studies indicate that between 86% and 93% of these
mothers are living with their children. See Report by the Alan Guttmacher
Institute, Research and Development Division of the Planned
Parenthood Federation of America, 11 Million Teenagers 11 (1976) (hereinafter
cited as Planned Parenthood Report); F. Furstenberg, Unplanned
Parenthood 174 (1966) (hereinafter cited as Furstenberg); Zelnik &
Kantner, the Resolution of Teenage First Pregnancies, 6 Family Planning
Perspectives 77 (1974) (Table 5). Comparable figures have been
reported for mothers over age 20. Soc Wisconsin Department of Health
and Social Services, Unmarried Mothers in Wisconsin, 1974 (1975) (Tables
11, 13). The remaining children are residing with either adoptive parents
or other individuals. See Planned Parenthood Report 11; Furstenberg
174. One in-depth study found that the latter separations were generally
attributable to the mother's illness or inability to obtain child care during
hours of employment. lbul.
4 Under the workmen's compensation statute at issue in Weber, illegitimate
children could recover benefits on the same basis as legitimates only
if acknowledged by their fathers. See 406 U. S., at 167-168. Jimenez
involved a statute granting disability insurance benefits to illegitimates
CALIFANO v. BOLF.8 303
282 MARSHALL, J., dissenting
Trimble v. Gordon, 430 U. S. 762 (1977), the Court held
unconstitutional a statute denying illegitimate children the
right to inherit from their intestate fathers even though illegitimates
whose fathers wrote wills were not disadvantaged by
the provision. So too here, the Court cannot dismiss the discriminatory
impact of § 202 ( g) by a "hypothetical reshuffling
of the facts," Trimble v. Gordon, supra, at 774, particularly one
that disregards the very relationship between a surviving single
parent and child which the statute was intended to foster.
Finally, the Court suggests that § 202 (g) does not disadvantage
illegitima.tes in any constitutionally cognizable sense
because it is surviving spouses, not their children, who "exercise
dominion over the benefits and whose freedom of choice
[is] enhanced thereby." Ante, at 295. However, that the
parent makes the decision to stay at home does not render the
child any less the beneficiary of that choice. As a practical
matter, the parent also exercises "dominion" over the children's
insurance benefits afforded by § 202 ( d) of the Act, 42
U. S. C. § 402 (d) , but the child is nonetheless the recipient.
Children now become "incidental" and "speculative" beneficiaries
of § 202 (g) only because the Court declares them to
be so.
I would adhere to the understanding, unanimously expressed
in Wiesenfeld, that the Mother's Insurance Program,
both in purpose and effect, is a form of assistance to children.
Thus, the statute's eligibility restrictions should be evaluated
as they in fact operate, as discrimination based on legitimacy.
II
Statutes that foreclose opportunities solely because of a
child's status at birth represent a particularly invidious form
where: ( 1) state law permitted them to inherit from the wage earner;
(2) their illegitimacy resulted from formal or nonobvious defects in their
parents' marriage ceremony; (3) they had subsequently been legitimated;
or (4) the disabled wage-earning parent had contributed to their support
or had lived with them prior to disability. See 417 U. S., at 631, and n. 2.
304 OCTOBER TERM, 1978
MARSHALL, J ., dissenting 443 u. s.
of discrimination. Gomez v. Perez, 409 U. S. 535 (1973);
Levy v. Louigi,ana, 391 U. S. 68 (1968). To penalize an illegitimate
child for conduct he could not prevent and a status
he cannot alter is both "illogical and unjust." Weber v.
Aetna Casualty & Surety Co., supra, at 175. Accordingly,
classifications based on legitimacy violate the equal protection
requirements of the Fifth Amendment 5 unless they bear a
close and substantial relationship to a permissible governmental
interest. See Jimenez v. Weinberger, supra, at 637;
Mathews v. Lucas, 427 U. S. 495, 509-510 (1976).
In arguing that § 202 ( g) meets this test, the Secretary suggests
that legitimate children as a class are more likely than
illegitimates to be dependent on the insured wage earner at
the time of his death. Therefore, because the statute establishes
a maximum amount payable to any one wage earner's
survivors, the Secretary contends that the exclusion of illegitimates
is an appropriate means of allocating finite resources
to those most likely t-0 have suffered economically from the
insured's death. Brief for Appellant 28.
The threshold difficulty with this argument is that § 202
(g)'s marital restriction bars recovery by illegitimates regardless
of whether any other individuals are eligible to claim
benefits on a particular wage earner's account. Thus, the
restriction defended here as a rationing device withholds assistance
to illegitimates even when there are no competing
claimants among whom to ration. Insofar as the exclusion of
illegitimates is designed to allocate limited funds on the basis
of need, it is not carefully tailored to achieve that objective.
See Trimble v. Gordon, supra, at 770-771; Gomez v. Perez,
supra, at 538.0
5 See Vance v. Bradley, 440 U. S. 93, 94-95, n. 1 (1979); Bolling v.
Sharpe, 347 U. S. 497, 499 (1954).
0 That Congress has established a maximum which cannot fully provide
for all survivors affords no basis for preferring legitimate rhildren over
dependent illegitimates. See Weber v. Aetna Casualty & Surety Co., 406
CALIFANO v. BOLES 305
282 MARSHALL, J ., dissenting
But even if § 202 (g) 's marital restriction operated only in
contexts of multiple claimants, it could not withstand scrutiny
under Weber v. Aetna Casualty & Surety Co., 406 U. S. 164
(1972), and Jimenez v. Weinberger, 417 U.S. 628 (1974). In
both those cases, the Court recognized that the marital status
of parents is not a sufficiently accurate index of the economic
needs of their children to warrant conclusively denying assistance
to illegitimates. At issue in Weber was a workmen's
compensation scheme which provided that unacknowledged
illegitimate children could recover on the account of an insured
only if payments to other eligible claimants did not
exhaust the maximum allowable benefits. Noting that an
unacknowledged illegitimate child "may suffer as much from
the loss of a parent as a child born within wedlock," 406
U. S., at 169, the Court declined to view status at birth as an
adequate proxy for economic dependence. See also Richardson
v. Griffin, 409 U. S. 1069 (1972), summarily aff'g 346
F. Supp. 1226 (Md.); Richardson v. Davis, 409 U. S. 1069
(1972), summarily aff'g 342 F. Supp. 588 (Conn.). Again in
Jimenez v. Weinberger, we struck down a statute granting
social security benefits to a disabled worker's legitimate children
born after the onset of disability but not to afterborn
illegitimate children except under certain limited circumstances.
See n. 4, supra.. The constitutional infirmities identified
in Jimenez are equally evident in this case; that statute,
like § 202 ( g), was overinclusive to the extent it aided legitimate
children not actually dependent on the insured wage
earner, and underinclusive to the extent it withheld assistance
from illegitimate children who were in fact dependent. And
here, as in Jimenez, it serves no purpose consistent with the
aims of the Social Security Act to deny illegitimates all op-
U. S. 164, 175-176 (1972); Richardson v. Griffin, 409 U. S. 1069 (1972),
summarily aff'g 346 F. Supp. 1226 (Md.); Richardson v. Davis, 409 U. S.
1069 (1972), summarily aff'g 342 F. Supp. 588 (Conn.).
306 OCTOBER TERM, 1978
MARSHALL, J., dissenting 443U.S.
portunity to establish their dependence and their concomitant
right to insurance benefits. See 417 U. S., at 636.7
We cannot, of course, expect perfect congruence between
legislative ends and means in the administration of a complex
statutory scheme. See ante, at 284--285. But neither should
we give our imprimatur to distinctions needlessly predicated
on a disfavored social status, particularly one beyond an individual's
power to affect. Although a "blanket and conclusive
exclusion" of illegitimate children may be an administratively
expedient means of screening for dependence under
§ 202 (g), see Jimenez v. Weinberger, supra, at 636, it is also
inaccurate, unjust, and, under this Court's settled precedents,
unconstitutional.
I respectfully dissent.
7 Unlike the statute upheld in Mathews v. Lucas, 427 U.S. 495 (1976),
which presumed the dependence of legitimate children but required proof
of dependence by illegitimates, § 202 (g) conclusively bars recovery even
to those illegitimates who could establish that they were supported by the
deceased wage earner at the time of his death.
JACKSON v. VIRGINIA 307
Syllabus
JACKSON V. VIRGINIA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FOURTH CIRCUIT
No. 78-5283. Argued March 21', 1979-Decided June 28, 1979
Petitioner was convicted of first-degree murder after a bench trial in a
Virginia court, and his motion and petition in the state courts to set
aside the conviction on the ground that there was insufficient evidence
of premeditation, a necessary element of first-degree murder, were
denied. He then brought a habeas corpus proceeding in Federal District
Court, which, applying the "no evidence" criterion of Thompson
v. Louisville, 362 U. S. 199, found the record devoid of evidence of
premeditation and granted the writ. Applying the same criterion, the
Court of Appeals reversed, holding that there was some evidence that
petitioner had intended to kill the victim.
Held:
1. A federal habeas corpus court must consider not whether there was
any evidence to support a state-court conviction, but whether there was
sufficient evidence to justify a rational trier of fact to find guilt beyond
a reasonable doubt. In re Winship, 397 U. S. 358. Pp. 313-324.
(a) In re Winship presupposes as an essential of the due process
guaranteed by the Fourteenth Amendment that no person shall be made
to suffer the onus of a criminal conviction except upon sufficient proofdefined
as evidence necessary to convince a trier of fact beyond a reasonable
doubt of the existence of every element of the offense.
Pp 313-316.
(b) After In re Winship, the critical inquiry on review of the sufficiency
of the evidence to support a criminal conviction must be not
simply to determine whethPr the jury was properly instructed on reasonable
doubt, but to determine whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt. The relevant
question is whether after viewing the evidence in the light most favorable
to the proscrution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. The Thompson
"no evidence" rule is simply inadequate to protect against misapplications
of the constitutional standard of reasonable doubt. Pp. 316-320.
(c) In a challenge to a state conviction brought under 28 U. S. C.
§ 2254, which requires a federal court to entertain a state prisoner's
claim that he is being held in "custody in violation of the Constitution
308 OCTOBER TERM, 1978
Syllabus 443 U.S.
or laws or treaties of the United States," the applicant is entitled to
habeas corpus relief if it is found that upon the evidence adduced at the
trial no rational trier of fact could have found proof of guilt beyond a
reasonable doubt. Pp. 320-324.
2. A review of the record in this case in the light most favorable to
the prosecution shows that a rational factfinder could have found petitioner
guilty bi>yond a reasonable doubt of first-degree murder under
Virginia law. Pp. 324-326.
580 F. 2d 1048, affirmed.
STEWART, J., delivered the opm1on of the Court, in which BRENNAN,
WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEVENS, ,T., filed an
opinion concurring in the judgment, in which BURGER, C. J., and REHNQUIST,
J., joined, post, p. 326. POWELL, J., took no part in the consideration
or decision of the case.
Carolyn J. Colville, by appointment of the Court, 439 U. S.
1064, argued the cause pro !we vice and filed briefs for
petitioner.
Marshall Coleman, Attorney General of Virginia, argued the
cause for respondents. With him on the brief was Linwood T.
Wells, Assistant Attorney General.*
·X•Briefs of amici curiae urging affirmance were fil<'<l by George Deukmejian,
Attorney General, Jack R. Winkler, Chief Assistant Attorney
General, Arnold 0. Overoye, Assistant Attorney General, and Eddie T.
Keller, Willard F. Jones, and Jane K. Fischer, Deputy Attorneys General,
for the State of California; by Arthur K. Bolton, Attorney General,
Robert S. Stubbs fl, Executive Assistant Attorney General, Don A.
Langham, First Assistant Attorney General, John C. Walden, Senior Assistant
Attorney General, and Susan V. Boleyn, Assistant Attorney General,
for the State of Georgia; by Frank J. Kelley, Attorney General,
Robert A. Derengoski, Solicitor General, and Thomas L. Casey, Assistant
Attorney General, for the State of Michigan; and for their re.spective
States by Theodore L. Sendak, Attorney General, David A. Arthur,
Deputy Attorney General, and Donald P. Bogard, of Indiana, Robert B.
Hansen, Attorney General of Utah, Edward G. !Jiester, Jr., Attorney
General of Pennsylvania, Paul L. Douglas, Attorney General of Nebraska,
and Chauncey H. Browning, Attorney General of West Virginia.
JACKSON v. VIRGINIA 309
307 Opinion of the Court
MR. JUSTICE STEWART delivered the opinion of the Court.
The Constitution prohibits the criminal conviction of any
person except upon proof of guilt beyond a reasonable doubt.
In re Winship, 397 lT. S. 358. The question in this case is
what standard is to be applied in a. federal habeas corpus proceeding
when the claim is made that a person has been convicted
in a state court upon insufficient evidence.
I
The petitioner was convicted after a bench trial in the Circuit
Court of Chesterfield C'ounty, Va., of the first-degree murder
of a woman named Mary Houston Cole. 1 Unde>r Virginia
law, murder is dPfined as "the unlawful killing of another with
malice aforethought." Stapleton v. Commonwealth, 123 Va.
825,968. E. 801. Pre>meditation , or specific intent to kill, distinguishes
murdn in the first from murder in the second
degree; proof of this element is essential to conviction of the
former offense, and the burden of proving it clearly rests with
the prosecution. Shiflett v. Commonwealth, 143 Va. 609,
130 S. E. 777; J efferson v. Commonwealth, 214 Va. 432, 201
S. E. 2d 749.
That the petitioner had shot and killed Mr::;.. Cole was not
in dispute at the trial. The State's evidenc<> established that
1 The del!;rres of murder in Virginia. are specified in Va. Code § 18.2-32
(1975) as follows:
"Murder, other than rapital murder, hy poison, lying in wait, imprisonment,
starving, or by any willful, delibnate, and premeditated killing, or
in the commission of, or attempt to commit, arson, rape, robbery, burglary
or abduction ... is murder of the first degree, punishable as a Class 2
felony.
"All murder otlwr than capital mur<lcr and murder in the first degree is
murder of the second degree and is punishable as a Class 3 felony."
Cla~s 2 felonie8 carry a term of 20 yrars to life. § 18.2-10 (b) (1975).
The sente>nre for Class 3 Monies can range from 5 to 20 years, § 18.2-10
(r). Murder itself takes its drfinition in Virginia from the common law.
Stapleton v. Commonwealth, 123 Va. 825, 96 S. E. 01.
310 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
she had been a member of the staff at the local county jail,
that she had befriended him while he was imprisoned there
on a disorderly conduct charge, and that when he was released
she had arranged for him to live in the home of her son and
daughter-in-law. Testimony by her relatives indicated that
on the day of the killing the petitioner had been drinking and
had spent a great deal of time shooting at targets with his
revolver. Late in the afternoon, according to their testimony,
he had unsuccessfully attempted to talk the victim into driving
him to North Carolina. She did drive the petitioner to
a local diner. There the two were observed by several police
officers, who testified that both the petitioner and the victim
had been drinking. The two were observed by a deputy
sheriff as they were prepa.ring to leave the diner in her car.
The petitioner was then in possession of his revolver, and the
sheriff also observed a kitchen knife in the automobile. The
sheriff testified that he had offered to keep the revolver until
the petitioner sobered up, but that the latter had indicated
that this would be unnecessary since he and the victim were
about to engage in sexual a.ctivity.
Her body was found in a secluded church parking lot a day
and a half later, naked from the waist down, her slacks beneath
her body. Uncontradicted medical and expert evidence
established that she had been shot twice at close range with
the petitioner's gun. She appeared not to have been sexually
molested. Six cartridge cases identified as having been fired
from the petitioner's gun were found near the body.
After shooting Mrs. Cole, the petitioner drove her car to
North Carolina, where, after a short trip to Florida, he was
arrested several days later. In a post.arrest statement, introduced
in evidence by the prosecution, the petitioner admitted
that he had shot the victim. He contended, however,
that the shooting had been accidental. When asked to describe
his condition at the time of the shooting, he indicated
that he had not been drunk, but had been "pretty high." His
JACKSON v. VIRGINIA 311
307 Opinion of the Court
story was that the victim had attacked him with a knife when
he resisted her sexual advances. He said that he had defended
himself by firing a number of warning shots into the
ground, and had then reloaded his revolver. The victim, he
said, then attempted to take the gun from him, and the gun
"went off" in the ensuing struggle. He said that he fled
without seeking help for the victim because he was afraid.
At the trial, his position was that he had acted in self-defense.
Alternatively, he claimed that in any event the State's own
evidence showed that he had been too intoxicated to form
the specific intent necessary under Virginia law to sustain a
conviction of murder in the first degree.2
The trial judge, declaring himself convinced beyond a reasonable
doubt that the petitioner had committed first-degree
murder, found him guilty of that offense.3 The petitioner's
motion to set aside the judgment as contrary to the evidence
was denied, and he was sentenced to serve a term of 30 years
in the Virginia state penitentiary. A petition for writ of
error to the Virginia Supreme Court on the ground that the
evidence was insufficient to support the conviction was denied.4
1 Under Virginia law, voluntary intoxication-although not an affirmative
defense to second-degree murder-is material to the element of premeditation
and may be found to have negated it. Hatcher v. Commonwealth,
218 Va. 811, 241 S. E. 2d 756.
3 When trial without a jury is had on a not guilty plea in Virginia, the
court is to "have and exercise all the powers, privileges and duties given
to juries .... " Va. Code§ 19.2-257 (1975).
4 There is no appeal as of right from a criminal conviction in Virginia.
Saunders v. Reynolds, 214 Va. 697, 204 S. E. 2d 421. Ea.ch petition for
writ of error under Va. Code § 19.2- 317 (1975) is reviewed on the merits,
however, and the effect of a denial is to affirm the judgment of conviction
on the merits. Saunders v. Reynolds, supra.
The petition for writ of error alleged that "the trial Court erred in finding
the Petitioner guilty of first-degree murder in light of the evidence
introduced on behalf of the Commonwealth, and on unwarranted inferences
drawn from this evidence." The petitioner contended that an affirmance
would violate the Due Process Clause of the Fourteenth Amendment. In
312 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
The petitioner then commenced this habeas corpus proceeding
in the United States District Court for the Eastern
District of Virginia, raising the same basic claim.5 Applying
the "no evidence" criterion of Thompson v. Louisville, 362
U. S. 199, the District Court found the record devoid of evidence
of premeditation and granted the writ. The Court of
Appeals for the Fourth Circuit reversed the judgment." The
court noted that a dissent from the denial of certiorari in a
case in this Court had exposed the question whether the constitutional
rule of In re Winship, 397 U. S. 358, might compel
a new criterion by which the validity of a state criminal conviction
must be tested in a federal habeas corpus proceeding.
See Freeman v. Zahradnick, 429 U. S. 1111 (dissent from
denial of certiorari). But the appellate court held that in
the absence of further guidance from this Court it would apply
the same "no evidence" criterion of Thompson v. Louisville
that the District Court had adopted. The court was of the
view that some evidence that the petitioner had intended to
kill the victim could be found in the facts that the petitioner
had reloaded his gun after firing warning shots, that he had
had time to do so, and that the victim was then shot not once
but twice. The court also concluded that the state trial judge
could have found that the petitioner was not so intoxicated as
to be incapable of premeditation.
We granted certiorari to consider the petitioner's claim that
under In re Winship, supra, a federal habeas corpus court must
its order denying Jackson's petition, the Virginia Supreme Court stated it
was "of [the] opinion that there is no reversible error in the judgment
complained of . . . ." Virginia law requires sufficiency claims to be
raised on direct appeal; such a claim may not be raised in a state habeas
corpus proceeding. Pettus v. Peyton, 207 Va. 906, 153 S. E. 2d 278.
5 The District Court correctly found that the petitioner had exhausted
his state remedies on this issue. See n. 4, supra.
6 The opinions of the District Court and the Court of Appeals are not
reported. The Court of Appeals' judgment order is reported at 580 F.
2d 1048.
JACKSON v. VIRGINIA 313
307 Opinion of the Court
consider not whether there was any evidence to support a
state-court conviction, but whether there was sufficient evidence
to justify a rational trier of the facts to find guilt beyond
a reasonable doubt. 439 U. S. 1001.
II
Our inquiry in this case is narrow. The petitioner has not
seriously questioned any aspect of Virginia law governing the
allocation of the burden of production or persuasion in a murder
trial. See Mullaney v. Wilbur, 421 U. S. 684; Patterson
v. New York, 432 U. S. 197. As the record demonstrates, the
judge sitting as factfinder in the petitioner's trial was aware
that the State bore the burden of establishing the element of
premeditation, and stated that he was applying the reasonabledoubt
standard in his appraisal of the State's evidence. The
petitioner, moreover, does not contest the conclusion of the
Court of Appeals that under the "no evidence" rule of
Thompson v. Louisville, supra, his conviction of firstdegree
murder is sustainable. And he has not attacked the
sufficiency of the evidence to support a conviction of seconddegree
murder. His sole constitutional claim, based squarely
upon Winship, is that the District Court and the Court of
Appeals were in error in not recognizing that the question to
be decided in this case is whether any rational factfinder could
have concluded beyond a reasonable doubt that the killing for
which the petitioner was convicted was premeditated. The
question thus raised goes to the basic nature of the constitutional
right recognized in the Winship opinion.
III
A
This is the first of our cases to expressly consider the question
whether the due process standard recognized in Winship
constitutionally protects an accused against conviction except
upon evidence that is sufficient fairly to support a conclusion
314 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
that every element of the crime has been established beyond
a reasonable doubt. Upon examination of the fundamental
differences between the constitutional underpinnings of
Thompson v. Louisville, supra, and of In re Winship, supra,
the answer to that question, we think, is clear.
It is axiomatic that a conviction upon a charge not made or
upon a charge not tried constitutes a denial of due process.
Cole v. Arkansas, 333 U. S. 196, 201; Presnell v. Georgia, 439
U. S. 14. These standards no more than reflect a broader
premise that has never been doubted in our constitutional system:
that a person cannot incur the loss of liberty for an
offense without notice and a meaningful opportunity to
defend. E. g., Hovey v. Elliott, 167 U. S. 409, 416-420. Cf.
Boddie v. Connecticut, 401 U. S. 371, 377-379. A meaningful
opportunity to defend, if not the right to a trial itself, presumes
as well that a total want of evidence to support a
charge will conclude the case in favor of the accused. Accordingly,
we held in the Thompson case that a conviction based
upon a record wholly devoid of any relevant evidence of a crucial
element of the offense charged is constitutionally infirm.
See also Vachon v. New Hampshire, 414 U.S. 478; Adderley
v. Florida, 385 U. S. 39; Gregory v. Chicago, 394 U. S.
111; Douglas v. Buder, 412 U. S. 430. The "no evidence"
doctrine of Thompson v. Louisville thus secures to an accused
the most elemental of due process rights: freedom from a
wholly arbitrary deprivation of liberty.
The Court in Thompson explicitly stated that the due
process right at issue did not concern a question of evidentiary
"sufficiency." 362 U. S., at 199. The right established in
In re Winship, however, clearly stands on a different footing.
Winship involved an adjudication of juvenile delinquency
made by a judge under a state statute providing that the
prosecution must prove the conduct charged as delinquentwhich
in Winship would have been a criminal offense if engaged
in by an adult-by a preponderance of the evidence.
JACKSON v. VIRGINIA 315
307 Opinion of the Court
Applying that standard, the judge was satisfied that the
juvenile was "guilty," but he noted that the result might well
have been different under a standard of proof beyond a reasonable
doubt. In short, the record in Winship was not totally
devoid of evidence of guilt.
The constitutional problem addressed in Winship was thus
distinct from the stark problem of arbitrariness presented in
Thompson v. Louisville. In Winship, the Court held for the
first time that the Due Process Clause of the Fourteenth
Amendment protects a defendant in a criminal case against
conviction "except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which
he is charged." 397 U. S., at 364. In so holding, the Court
emphasized that proof beyond a reasonable doubt has traditionally
been regarded as the decisive difference between criminal
culpability and civil liability. Id., at 358-362. See Davis
v. United States, 160 U. S. 469; Brinegar v. United States, 338
U.S. 160, 174; Lelandv. Oregon, 343 U.S. 790; 9 J. Wigmore,
Evidence § 2495, pp. 307-308 (3d ed. 1940). Cf. Woodby v.
INS, 385 U. S. 276, 285. The standard of proof beyond a
reasonable doubt, said the Court, "plays a vital role in the
American scheme of criminal procedure," because it operates
to give "concrete substance" to the presumption of innocence,
to ensure against unjust convictions, and to reduce the risk of
factual error in a criminal proceeding. 397 U. S., at 363. At
the same time, by impressing upon the factfinder the need to
reach a subjective state of near certitude of the guilt of the
accused, the standard symbolizes the significance that our
society attaches to the criminal sanction and thus to liberty
itself. Id., at 372 (Harlan, J., concurring).
The constitutional standard recognized in the Winship case
was expressly phrased as one that protects an accused against
a conviction except on "proof beyond a reasonable doubt .... "
In subsequent cases discussing the reasonable-doubt standard,
we have never departed from this definition of the rule or from
316 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
the Winship understanding of the central purposes it serves.
See, e. g., Ivan V. v. City of New York, 407 U.S. 203, 204;
Lego v. Twomey, 404 U. S. 477, 486-487; Mullaney v. Wilbur,
421 U.S. 684; Patterson v. New York, 432 U.S. 197; Cool v.
United States, 409 U. S. 100, 104. In short, Winship presupposes
as an essential of the due process guaranteed by the
Fourteenth Amendment that no person shall be made to
suffer the onus of a criminal conviction except upon sufficient
proof-defined as evidence necessary to convince a trier of
fact beyond a reasonable doubt of the existence of every element
of the offense.
B
Although several of our cases have intimated that the factfinder's
application of the reasonable-doubt standard to the
evidence may present a federal question when a state conviction
is challenged, Lego v. Twomey, supra, at 487; Johnson v.
Louisiana, 406 U. S. 356, 360, the Federal Courts of Appeals
have generally assumed that so long as the reasonable-doubt
instruction has been given at trial, the no-evidence doctrine
of Thompson v. Louisville remains the appropriate guide for
a federal habeas corpus court to apply in assessing a state prisoner's
challenge to his conviction as founded upon insufficient
evidence. See, e. g., Cunha v. Brewer, 511 F. 2d 894 (CA8).7
We cannot agree.
The Winship doctrine requires more than simply a trial
7 The Court of Appeals in the present case, of course, recognized that
Winship may have changed the constitutional standard in federal habeas
corpus. And the Court of Appeals for the Sixth Circuit recently recognized
the possible impact of Winship on federal habeas corpus in a case in
which it held that "a rational trier o-f fact could have found the defendant
... guilty beyond a reasonable doubt." Spruytte v. Koehler, affinnance
order, 590 F. 2d 335. An even more recent case in that court provoked
a lively debate among three of its members regarding the effect of
Winship upon federal habeas corpus. The writ was granted in that case,
even though the trial record concededly contained "some evidence" of the
applicant's guilt. See Speigner v. Jago, 603 F. 2d 1208.
JACKSON v. VIRGINIA 317
307 Opinion of the Court
ritual. A doctrine establishing so fundamental a substantive
constitutional standard must also require that the factfinder
will rationally apply that standard to the facts in evidence.8
A "reasonable doubt," at a minimum, is one based upon
"reason." 9 Yet a properly instructed jury may occasionally
convict even when it can be said that no rational trier of fact
could find guilt beyond a reasonable doubt, and the same may
be said of a trial judge sitting as a jury. In a federal trial,
such an occurrence has traditionally been deemed to require
reversal of the conviction. Glasser v. United States, 315 U. S.
60, 80; Bronston v. United States, 409 U. S. 352. See also,
e.g., Curley v. United States, 81 U.S. App. D. C. 389, 392-393,
160 F. 2d 229, 232-233.10 Under Winship, which established
8 The trier of fact in this case was a judge and not a jury. But this is
of no constitutional significance. The record makes clear that the judge
deemed himself "properly instructed."
9 A "reasonable doubt" has often been described as one "based on reason
which arises from the evidence or lack of evidence." Johnson v. Louisiana,
406 U. S. 356, 360 (citing cases). For a discussion of variations in the
definition used in jury instructions, see Holland v. United States, 348 U.S.
121, 140 (rejecting contention that circumstantial evidence must exclude
every hypothesis but that of guilt).
10 This, of course, does not mean that convictions are frequently reversed
upon this ground. The practice in the federal courts of entertaining
properly preserved challenges to evidentiary sufficiency, see Fed. Rule
Crim. Proc. 29, serves only to highlight the traditional understanding in our
system that the application of the beyond-a-reasonable-doubt standard to
the evidence is not irretrievably committed to jury discretion. To be
sure, the factfinder in a criminal case has traditionally been permitted
to enter an unassailable but unreasonable verdict of "not guilty." This
is the logical corollary of the rule that there can be no appeal from a
judgment of acquittal, even if the evidence of guilt is overwhelming. The
power of the factfinder to err upon the side of mercy, however, has never
been thought to include a power to enter an unreasonable verdict of guilty.
Carpenters & Joiners v. United States, 330 U. S. 395, 408. Cf. Capitol,
Traction Co. v. Hof, 174 U. S. 1, 13-14. Any such premise is wholly
belied by the settled practice of testing evidentiary sufficiency through a
motion for judgment of acquittal and a postverdict appeal from the denial
318 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
proof beyond a reasonable doubt as an essential of Fourteenth
Amendment due process, it follows that when such a conviction
occurs in a state trial, it cannot constitutionally stand.
A federal court has a duty to assess the historic facts when
it is called upon to apply a constitutional standard to a conviction
obtained in a state court. For example, on direct
review of a state-court conviction, where the claim is made
that an involuntary confession was used against the defendant,
this Court reviews the facts to determine whether the confession
was wrongly admitted in evidence. Blackburn v. Alabama,
361 U. S. 199, 205-210. Cf. Drope v. Missouri, 420
U. S. 162, 174--175, and n. 10. The same duty obtains in
federal habeas corpus proceedings. See Townsend v. Sain,
372 U. S. 293, 318; Brown v. Allen, 344 U. S. 443, 506-507
(opinion of Frankfurter, J.).
After Winship the critical inquiry on review of the sufficiency
of the evidence to support a criminal conviction must
be not simply to determine whether the jury was properly
instructed, but to determine whether the record evidence could
reasonably support a finding of guilt beyond a reasonable
doubt.11 But this inquiry does not require a court to "ask
of such a motion. See generally 4 L. Orfield, Criminal Procedure Under
the Federal Rules §§29:1-29:29 (1967 and Supp. 1978)
l1 Until 1972, the Court of Appeals for the Second Circuit took the
position advanced today by the opinion concurring in the judgment that
the beyond-a-reasonable-doubt standard is merely descriptive of the state
of mind required of the factfinder in a criminal case and not of the actual
quantum and quality of proof necessary to support a criminal conviction.
Thus, that court held that in a jury trial the judge need not distinguish
between criminal and civil cases for the purpose of ruling on a motion for
judgment of acquittal. United States v. Feinberg, 140 F. 2d 592, 594.
In United States v. Taylor, 464 F. 2d 240 (CA2), Feinberg was overruled,
partly on the strength of Winship. The Taylor court adopted the directed-
verdict criterion articulated in Curley v. United States, 81 U. 8.
App. D. C. 389, 392-393, 160 F. 2d 229, 232-233 (If "reasonable" jurors
"must necessarily have ... a reasonable doubt" as to guilt, the judge
"must require acquittal, because no other result is permissible within the
JACKSON v. VIRGINIA 319
307 Opinion of the Court
itself whether it believes that the evidence at the trial established
guilt beyond a reasonable doubt." Woodby v. INS,
385 U. S., at 282 (emphasis added). Instead, the relevant
question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt. See Johnson v. Louisiana, 406 U. S., at
362. This familiar standard gives full play to the responsibility
of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Once a def end ant
has been found guilty of the crime charged, the factfinder's
role as weigher of the evidence is preserved through a legal
conclusion that upon judicial review all of the evidence is to
be considered in the light most favorable to the prosecution.12
The criterion thus impinges upon "jury" discretion only to
the extent necessary to guarantee the fundamental protection
of due process of law.13
fixed bounds of jury consideration"). This is now the prevailing criterion
for judging motions for acquittal in federal criminal trials. See generally
2 C. Wright, Federal Practice and Procedure§ 467 (1969 and Supp. 1978).
12 Contrary to the suggestion in the opinion concurring in the judgment,
the criterion announced today as the constitutional minimum required to
enforce the due process right established in Winship is not novel. See,
e.g., United States v. Amato, 495 F. 2d 545,549 (CA5) ("whether, taking
the view [of the evidence] most favorable to the Government, a reasonably-
minded jury could accept the relevant evidence as adequate and sufficient
to support the conclusion of the defendant's guilt beyond a reasonable
doubt") (emphasis added) ; United States v. Jo~genson, 451 F. 2d 516,
521 (CAlO) (whether, "considering the evidence in the light most favorable
to the government, there is substantial evidence from which a jury
might reasonably find that an accused is guilty beyond a reasonable
doubt") (emphasis added). Glasser v. United States, 315 U.S. 60, 80, has
universally been understood as a case applying this criterion. See, e. g.,
Harding v. United States, 337 F. 2d 254, 256 (CA8). See generally 4
Orfield, supra n. 10, § 29.28.
13 The question whether the evidence is constitutionally sufficient is of
course wholly unrelated to the question of how rationally the verdict
320 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
That the Thompson "no evidence" rule is simply inadequate
to protect against misapplications of the constitutional standard
of reasonable doubt is readily apparent. "[Al mere
modicum of evidence may satisfy a 'no evidence' standard
.... " Jacobellis v. Ohio, 378 U. S. 184, 202 (Warren,
C. J., dissenting). Any evidence that is relevant-that has
any tendency to make the existence of an element of a crime
slightly more probable than it would be without the evidence,
cf. Fed. Rule Evid. 401-could be deemed a "mere modicum."
But it could not seriously be argued that such a "modicum"
of evidence could by itself rationally support a conviction
beyond a reasonable doubt. The Thompson doctrine simply
fails to supply a workable or even a predictable standard for
determining whether the due process command of Winship has
been honored.14
C
Under 28 U. S. C. § 2254, a federal court must entertain a
claim by a state prisoner that he or she is being held in "custody
in violation of the Constitution or laws or treaties of the
was actually reached. Just as the standard announced today does not
permit a court to make its own subjective determination of guilt or innocence,
it docs not require scrutiny of the reasoning process actually used
by the factfinder-if known. See generally 3 F. Wharton, Criminal Procedure
§ 520 (12th ed. 1975 and Supp. 1978).
14 Application of the Thompson standard to ftSsess the YRlidity of ft
criminal conviction after Winship could lead to absurdly unjust results.
Our cases have indicated that failure to instruct a jury on the necessity of
proof of guilt beyond a reasonable doubt can never be harmless error.
See Cool v. United States, 409 U. S. 100. Cf. Taylor v. Kentucky, 436
U. S. 478. Thus, a defendant whose guilt was acttwlly proved by overwhelming
evidence would be denied due process if the jury was instructed
that he could be found guilty on a mere prC'ponderance of the evidence.
Yet a defendant against whom there was but onC' slender bit of evidence
would not be denied due process so long as the jury has been properly instructed
on the prosecution's burden of proof beyond a reasonable doubt.
Such results would be wholly faithless to the constitutional rationale of
Winship.
JACKSON v. VIRGINIA 321
307 Opinion of t.he Court
United States." Under the Winship decision, it is clear that a
state prisoner who alleges that the evidence in support of his
state conviction cannot be fairly characterized as sufficient to
have led a rational trier of fact to find guilt beyond a reasonable
doubt has stated a federal constitutional claim. Thus,
assuming that state remedies have been exhausted, see 28
U. S. C. § 2254 (b), and that no independent and adequate
state ground stands as a bar, see Estelle v. Williams, 425
U. S. 501; Francis v. Henderson, 425 U. S. 536; Wainwright
v. Sykes, 433 U. S. 72; Fay v. Noia, 372 l:". S. 391, 438, it follows
that such a claim is cognizable in a federal habeas corpus
proceeding. The respondents have argued, nonetheless,
that a challenge to the constitutional sufficiency of the evidence
should not be entertained by a federal district court
under 28 U. S. C. § 2254.
In addition to the argument that a Winship standard invites
replication of state criminal trials in the guise of § 2254
proceedings-an argument that simply fails to recognize that
courts can and regularly do gauge the sufficiency of the evidence
without intruding into any legitimate domain of the
trier of fact-the respondents have urged that any departure
from the Thompson test in federal habeas corpus proceedings
will expand the number of meritless claims brought to the
federal courts, will duplicate the work of the state appellate
courts, will disserve the societal interest in the finality of state
criminal proceedings, and will increase friction between the
federal and state judiciaries. In sum, counsel for the State
urges that this type of constitutional claim should be deemed
to fall within the limit on federal habeas corpus jurisdiction
identified in Stone v. PoweU, 428 U. S. 465, with respect to
Fourth Amendment claims. ·we disagree.
First, the burden that is likely to follow from acceptance of
the Winship standard has, we think, been exaggerated. Federal-
court challenges to the eviclentiary support for state convictions
have since Thompson been dealt with under § 2254.
E. g., Freeman v. Stone, 444 F. 2d 113 (CA9); Grieco v.
I
322 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
Meachum, 533 F. 2d 713 (CAI); Williams v. Peyton, 414 F.
2d 776 (CA4). A more stringent standard will expand the
contours of this type of claim, but will not create an entirely
new class of cases cognizable on federal habeas corpus. Furthermore,
most meritorious challenges to constitutional sufficiency
of the evidence undoubtedly will be recognized in the
state courts, and, if the state courts have fully considered the
issue of sufficiency, the task of a federal habeas court should
not be difficult. Cf. Brown v. Allen, 344 U. S., at 463.15 And
this type of claim can almost always be judged on the written
record without need for an evidentiary hearing in the federal
court.
Second, the problems of finality and federal-state comity
arise whenever a state prisoner invokes the jurisdiction of a
federal court to redress an alleged constitutional violation.
A challenge to a state conviction brought on the ground that
the evidence cannot fairly be deemed sufficient to have established
guilt beyond a reasonable doubt states a federal constitutional
claim. Although state appellate review undoubtedly
will serve in the vast majority of cases to vindicate
the due process protection that follows from Winship, the
same could also be said of the vast majority of other federal
constitutional rights that may be implicated in a state criminal
trial. It is the occasional abuse that the federal writ of
habeas corpus stands ready to correct. Brown v. Allen, supra,
at 498-501 (opinion of Frankfurter, J.).
1 ~ The Virginia Supreme Court's order denying Jackson's petition for
writ of error does not make clear what criterion was applied to the petitioner's
claim that the evidence in support of his first-degree murder conviction
was insufficient. See n. 4, supra. At oral argu~ent, counsel for
the petitioner contended that tho Virginia sufficiency standard is not keyed
to Winship. Counsel for the State disagreed. Under these circumstances,
we decline to speculate as to the criterion that the state court applied.
The fact that a state appellate court invoked the proper standard, however,
although entitled to great weight, does not totally bar a properly
presented claim of this type under § 2254.
.....
JACKSON v. VIRGINIA 323
307 Opinion of the Court
The respondents have argued nonetheless that whenever a
person convicted in a state court has been given a "full and
fair hearing" in the state system-meaning in this instance
state appellate review of the sufficiency of the evidence--
further federal inquiry-a.part from the possibility of discretionary
review by this Court--should be foreclosed. This
argument would prove far too much. A judgment by a state
appellate court rejecting a challenge to evidentiary sufficiency
is of course entitled to deference by the federal courts, as is
any judgment affirming a criminal conviction. But Congress
in § 2254 has selected the federal district courts as precisely
the forums that are responsible for determining whether state
convictions have been secured in accord with federal constitutional
la\v. The federal habeas corpus statute presumes
the norm of a fair trial in the state court and adequate state
postconviction remedies to redress possible error. See 28
U. S. C. §§ 2254 (b), (d). What it does not presume is that
these state proceedings will always be without error in the
constitutional sense. Tht> duty of a federal habeas corpus court
to appraise a claim that constitutional error did occur-reflecting
as it does the belief that the "finality" of a deprivation
of liberty through the invocation of the criminal sanction
is simply not to be achieved at the expense of a constitutional
right-is not one that can be so lightly abjured.
The constitutional issue presented in this case is far different
from the kind of issue that was the subject of the Court's
decision in Stone v. Powell, supra. The question whether a
defendant has been convicted upon inadequate evidence is
central to the basic question of guilt or innocence. The constitutional
necessity of proof beyond a reasonable doubt is not
confined to those defendants who are morally blameless.
E. g., Mullaney v. Wilbur, 421 U. S., at 697-698 (requirement
of proof beyond a reasonable doubt is not "limit[ ed] to
those facts which, if not proved, would wholly exonerate" the
accused). Under our system of criminal justice even a thief
324 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
is entitled to complain that he has been unconstitutionally
convicted and imprisoned as a burglar.
We hold that in a challenge to a state criminal conviction
brought under 28 U. S. C. § 2254-if the settled procedural
prerequisites for such a claim have otherwise been satisfiedthe
applicant is entitled to habeas corpus relief if it is found
that upon the record evidence adduced at the trial no rational
trier of fact could have found proof of guilt beyond a reasonable
doubt.16
IV
Turning finally to the specific facts of this case, we reject
the petitioner's claim that under the constitutional standard
dictated by Winship his conviction of first-degree murder
cannot stand. A review of the record in the light most favorable
to the prosecution convinces us that a rational factfinder
could readily have found the petitioner guilty beyond a reasonable
doubt of first-degree murder under Virginia law.
There was no question at the trial that the petitioner had
fatally shot Mary Cole. The crucial factual dispute went to
the sufficiency of the evidence to support a finding that he had
specifically intended to kill her. This question, as the Court
of Appeals recognized, must be gauged in the light of applicable
Virginia law defining the element of premeditation.
Under that law it is well settled that premeditation need not
exist for any particular length of time, and that an intent to
kill may be formed at the moment of the commission of the
unlawful act. Commonwealth v. Brown, 90 Va. 671, 19 S. E.
447. From the circumstantial evidence in the record, it is
16 The respondents have suggested that this constitutional standard will
invite int.rnsions upon the power of the States to define criminal offenses.
Quite to the contrary, the standard must be applied with explicit reference
to the substantive elements of the criminal offense as defined by sta.te
law. Whether the State could constitutionally make the conduct at issue
criminal at all is, of course, a distinct question. See Papachristou v.
Jacksonville, 405 U. S. 156; Robin.son v. Cal,ifornia, 370 U. S. 660.
JACKSON v. VIRGINIA 325
307 Opinion of the Court
clear that the trial judge could reasonably have found beyond
a reasonable doubt that the petitioner did possess the necessary
intent at or before the time of the killing.
The prosecution's uncontradicted evidence established that
the petitioner shot the victim not once but twice. The petitioner
himself admitted that the fatal shooting had occurred
only after he had first fired several shots into the ground and
then reloaded his gun. The evidence was clear that the two
shots that killed the victim were fired at close, and thus predictably
fatal, range by a person who was experienced in the
use of the murder weapon. Immediately after the shooting,
the petitioner drove ,vithout mishap from Virginia to North
Carolina, a fact quite at odds with his story of extreme intoxication.
Shortly before the fatal episode, he had publicly expressed
an intention to have sexual relations with the victim.
Her body was found partially unclothed. From these uncontradicted
circumstances, a rational factfinder readily could
have inferred beyond a reasonable doubt that the petitioner,
notwithstanding evidence that he had been drinking on the
day of the killing, did have the capacity to form and had in
fact formed an intent to kill the victim.
The petitioner's calculated behavior both before and after
the killing demonstrated that he was fully capable of committing
premeditated murder. His claim of self-defense would
have required the trial judge to draw a series of improbable
inferences from the basic facts, prime among them the inference
that he was wholly uninterested in sexual activity with
the victim but that she was so interested as to have willingly
removed part of her clothing and then attacked him with a
knife when he resisted her advances, even though he was
armed with a loaded revolver that he had just demonstrated
he knew how to use. It is evident from the record that the
trial judge found this story, including the petitioner's belated
contention that he had been so intoxicated as to be incapable
of premeditation, incredible.
326 OCTOBER TERM, 1978
STEVENS, J., concurring in judgment 443U.S.
Only under a theory that the prosecution was under an
affirmative duty to rule out every hypothesis except that of
guilt beyond a reasonable doubt could this petitioner's challenge
be sustained. That theory the Court has rejected in
the past. Holland v. United States, 348 U. S. 121, 140. We
decline to adopt it today. Under the standard established in
this opinion as necessary to preserve the due process protection
recognized in Winship, a federal habeas corpus court
faced with a record of historical facts that supports conflicting
inferences must presume-Bven if it does not affirmatively
appear in the record-that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that
resolution. Applying these criteria, we hold that a rational
trier of fact could reasonably have found that the petitioner
committed murder in the first degree under Virginia law.
For these reasons, the judgment of the Court of Appeals is
affirmed.
It is so ordered.
MR. JUSTICE POWELL took no part in the consideration or
decision of this case.
MR. JusTICE STEVENS, with whom THE CHIEF JUSTICE and
MR. JusTICE REHNQUIST join, concurring in the judgment.
The Constitution prohibits the criminal conviction of any
person except upon proof sufficient to convince the trier of
fact of guilt beyond a reasonable doubt. Cf. ante, at 309.
This rule has prevailed in our courts "at least from our early
years as a Nation." In re Winship, 397 U. S. 358, 361.
Today the Court creates a new rule of law-one that has
never prevailed in our jurisprudence. According to the Court,
the Constitution now prohibits the criminal conviction of any
person-including, apparently, a person against whom the
facts have already been found beyond a reasonable doubt by
a jury, a trial judge, and one or more levels of state appellate
judges-except upon proof sufficient to convince a federal
JACKSON v. VIRGINIA 327
307 STEVENS, J ., concurring in judgment
judge that a "rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Ante, at 319.
The adoption of this novel constitutional rule is not necessary
to the decision of this case. Moreover, I believe it is an
unwise act of lawmaking. Despite its chimerical appeal as a
new counterpart to the venerable principle recognized in Winship,
I am persuaded that its precipitous adoption will adversely
affect the quality of justice administered by federal
judges. For that reason I shall analyze this new brainchild
with some care.
I shall begin by explaining why neither the record in this
case, nor general experience with challenges to the sufficiency
of the evidence supporting criminal convictions, supports,
much less compels, the conclusion that there is any need for
this new constitutional precept. I shall next show that it is
not logically compelled by either the holding or the analysis
in In re Winship, supra.. Finally, I shall try to demonstrat.e
why the Court's new rule-if it is not just a meaningless
shibboleth-threatens serious harm to the quality of our
judicial system.
I
It is, of course, part of this Court's tradition that new rules
of law emerge from the process of case-by-case adjudication
of constitutional issues. Widespread concern that existing
constitutional doctrine is unjust often provides the occasion,
and is sometimes even relied upon as a justification, for the
exercise of such lawmaking authority by the Court. Without
entering the debate over the legitimacy of this justification
for judicial action, it is at least certain that it should not be
the basis for dramatic-indeed, for any-constitutional lawmaking
efforts unless ( 1) those efforts are necessary to the
decision of the case at hand and (2) powerful reasons favor
a change in the law. See Ashwander v. TVA, 297 U. S. 288,
345-348 ( Brandeis, J., concurring).
328 OCTOBER TERM, 1978
STEVENS, J., concurring in judgment 443 U. S.
In this case, the Court's analysis fails on both counts. It
has accordingly formulated a new constitutional principle
under the most dangerous possible circumstances--i. e., where
the exercise of judicial authority is neither necessitated nor
capable of being limited by "the precise facts to which
[the rule is originally] to be applied," Liverpool, N. Y. &
P. S. S. Co. v. Emigration Comm'rs, 113 U. S. 33, 39, nor
even by some broader set of identifiable experiences with the
evil supposedly involved.
Most significantly, the Court has announced its new constitutional
edict in a case in which it has absolutely no bearing
on the outcome. The only factual issue at stake is whether
petitioner intended to kill his victim. If the evidence is viewed
"in the light most favorable to the prosecution," ante, at 319-
and, indeed, we may view it through the eyes of the actual
factfinder, whose observations about the evidence are recorded
in the trial transcript- there can be only one answer to that
question no matter what standard of appellate review is
applied. In Part IV of its opinion, the Court accepts this
conclusion. There is, therefore, no need to fashion a broad
new rule of constitutional law to dispose of this squalid but
rather routine murder case. Under any view, the evidence is
sufficient.
The Court's new rule is adopted simply to forestall some hypothetical
evil that has not been demonstrated, and in my view
is not fairly demonstrable. Although the Judiciary has received
its share of criticism-principally because of the delays
and costs associated with litigation-I am aware of no general
dissatisfaction with the accuracy of the factfi.nding process or
the adequacy of the rules applied by state appellate courts
when reviewing claims of insufficiency.
What little evidence the Court marshals in favor of a contrary
conclusion is unconvincing. See ante, at 317-318, n. 10.
The Court is simply incorrect in implying that there are a significant
number of occasions when federal convictions are
JACKSON v. VIRGINIA 329
307 STEVENS, J., concurring in judgment
overturned on appeal because no rational trier of fact could
have found guilt beyond a reasonable doubt. The two opinions
of this Court cited ante, at 317, stand for no such proposition.
In neither was a conviction reversed for insufficiency.
See Glasser v. United States, 315 U. S. 60; Bronston v. United
States, 409 U. S. 352.
Moreover, a study of the 127 federal criminal convictions
that were reviewed by the various Courts of Appeals and reported
in the most recent hardbound volume of the Federal
Reporter, Second Series, Volume 589, reveals that only 3 were
overturned on sufficiency grounds. And of those, one was
overturned under a "no evidence" standard, while the other
two, in which a total of only 3 out of 36 counts were actually
reversed, arguably involved legal issues masquerading as sufficiency
questions.1 It is difficult to believe that the federal
courts will turn up more sufficiency problems than this on
habeas review when, instead of acting as the first level of
1 In United States v. Tarr, 589 F. 2d 55 (CAI 1978), the court overturned
one of two counts of which appellant was convicted because there
was insufficient evidence to prove that he had the intf>nt to aid and abet.
the unauthorized transfer of a machinegun in violation of 26 U. S. C.
§ 5861 (e) and 18 U. S. C. § 2. The court found "no evidence" that
appellant had the requisite knowledge. 589 F. 2d, at 60.
In United States v. Whetzel, 191 U. S. App. D. C. 184, 589 F. 2d 707
(1978), the court overturned 2 of the 35 counts of appellant's conviction
because "the Government failed to offer proof that would permit a jury
to reasonably infer that the merchandise [appellant] transported had a
value of $5,000." Id., at 188, 589 F. 2d, at 711. However, the basis for
this determination was that the Government's valuation method, which the
trial court allowed the jury to consider, was legally erroneous. Similiarly,
in United States v. Fearn, 589 F. 2d 1316 (CA7 1978), the court overturned
the conviction based on a federal nonconstitutional rule, which
surely would not apply in habeas review of state convictions, "that a conviction
must rest upon firmer ground than the uncorroborated admission
or confession of the accused." Id., at 1321. The court did not independently
analyze whether the uncorroborated confession involved in that case
could itself have allowed a rational trier of fact to find guilt beyond a
reasonable doubt.
330 OCTOBER TERM, 1978
STEVENS, J., concurring in judgment 443U.S.
review, as in the cases studied, they will be acting as the
second, third, or even fourth level of appellate review. In
short, there is simply no reason to tinker with an elaborate
mechanism that is now functioning well.
II
There is nothing in the facts of this case or, so far as the
Court has demonstrated, in those of cases like it to warrant
today's excursion into constitutional rulemaking. The Court
instead portrays its rule as the logical corollary of the principle
recognized in Winship regarding the subjective state of
mind that persons charged with the responsibility of evaluating
the credibility of evidence must possess before they find
the defendant guilty in a criminal case. But an examination
of Winship reveals that it has nothing to do with appellate,
much less habeas corpus, review standards; that the reasoning
used in that case to reach its conclusion with respect to the
trier of fact does not support, and indeed counsels against, the
Court's conclusion with respect to federal habeas judges; and
that there is no necessary connection between the rule recognized
in Winship and the rule invented by the Court today.
In distinct contrast to the circumstances of this case, the
facts of Winship presented "a case where the choice of the
standard of proof has made a difference: the [trial] judge
below forthrightly acknowledged that he believed by a preponderance
of the evidence [in], but was not convinced beyond a
reasonable doubt" of, the juvenile's guilt. 397 U. S., at 369
(Harlan, J., concurring). Because the trier of fact entertained
such a doubt, this Court held that the juvenile was
constitutionally entitled to the same verdict that an adult
defendant in a criminal case would receive. In so holding,
the Court merely extended to juveniles a protection that had
traditionally been available to defendants in criminal trials
in this Nation. Id., at 361.
But nothing in the Winship opinion suggests that it also
JACKSON v. VIRGINIA 331
307 STEVENS, J., concurring in judgment
bore on appellate or habeas corpus procedures. Although it
repeatedly emphasized the function of the reasonable-doubt
standard as describing the requisite "subjective state of certitude"
of the "factfinder," 2 it never mentioned the question
of how appellate judges are to know whether the trier of fact
really was convinced beyond a reasonable doubt, or, indeed,
whether the factfinder was a "rational" person or group of
persons.
Yioreover, the mode of analysis employed in Winship finds
no counterpart in the Court's opinion in this case. For example,
in Winship, the Court pointed out the breadth of both
the historical and the current acceptance of the reasonabledoubt
trial standard.3 In this case, by contrast, the Court
2 In In re Winship, 397 U. S., at 364, thr Court stated: "As we said
in Speiser v. Randall, [357 U. S. 513,] 525-526: 'There is always in
litigation a margin of error, representing error in factfinding, which both
parties must take into account. Where one party has at stake an interest
of transcending value-as a criminal defendant his liberty-this
margin of error is reduced as to him by the process of placing on the other
party the burden of ... persuading the factfinder at the conclusion of the
trial of his guilt beyond a rrasonable doubt. Due process commands that
no man shall lose his liberty unless the Government has borne the burden
of ... convincing the factfinder of his guilt.' To this end, the reasonabledoubt
standard is indispensable, for it 'impresses on the trier of fact the
necessity of reaching a subjective state of certitude of the facts in issue.'
Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family
Law Quarterly, No. 4, pp. 1, 26 (1967)." (Emphasis added.)
Later on the same page, the Court added:
"It is also important in our free society that cwry individual going about
his ordinary affairs have confidence that his iovernment cannot adjudge
him guilty of a criminal offense u·ithout convincing a proper factfi,-nder of
his guilt with utmost certainty.'' Ibid. (emphasis added).
See also id., at 370 (Ha.rlan, J., concurring) ("[A] standard of proof represents
an attempt to instruct the factfinder concerning the degree of confidence
our society thinks he should have in the correctness of factual
conclusions for a particular type of adjudication") ( emphasis added).
3 The Court, relying on treatises that analyzed the law in all 50 States
as well as in the federal system, determined both that the reasonable-doubt
332 OCTOBER TERM, 1978
STEVENS, J., concurring in judgment 443 U.S.
candidly recognizes that the Federal Courts of Appeals have
"generally" rejected the habeas standard that it adopts today.
Ante, at 316.4
The Winship court relied on nine prior opinions of this
Court that bore directly on the issue presented. 397 1J. S.,
at 362. Here, the Court purportedly relies on two prior
decisions, but as is pointed out, mpra, at 329, nPither of these
cases itself applied a "reasonable doubt" appellate standard to
overturn a conviction, neither purported to be interpreting the
Constitution, and neithf'r expressed any viev,r whatsoever on
the appropriate standard in collateral proceedings such as are
involved in this case.5 As the Court itself notes, we have
instead repeatedly endorsed the "no evidence" test. and have
continued to do so after Winship was decided. Vachon v.
standard has prrvailed at the trial level "at least from our early years as
a Nation" and that it "is now accepted in common law jurisdictions as the
measure of pl:'rsuasion by whi<'h the prosecution must convince the trier
of all the essential elrmC"nts of guilt." Id.,· at 361 (emphasis added).
See also id., at 372 (Harlnn, J., concurring) ("It is only because of t he
nearly complete and long-standing acceptance of the rensonable-doubt
standard by the States in criminal trials that the Court has not before
today had to hold explicitly that due process, as an expression of fundamental
procedural fairness, requires a more stringent standard for criminal
trials than for ordinary civil litigation") (rmphasis added).
4 The Court has undertaken no systematic analysis of the standards for
reviewing the sufficiency of the evidence that pn,vail eithrr in state habeas
corpus and other collateral procrrdings or in state appellate courts. What
sources I have discovered suggest that "varied standards" are in use and
that each is "subject to shifting and elastic definitions." ,vinningham,
The Dilemma of the Directed Acquittal, 15 Vand. L. Rev. 699, 705-706
(1962). See ALI Code of Criminal Procedure, Commentary on§ 321, pp.
961- 962 (1930); Rules of Criminal Procedure 481 (c) , 522 (a) and commentary,
10 U. L.A. (1974).
5 It hardly bears repeating that habeas corpus is not intended as a substitute
for appeal, nor as a device for rcviewing the merits of guilt determinations
at criminal trials. See generally Stone v. Powell, 428 U. S. 465.
Instead, it is designed to guard against extreme malfunctions in the state
criminal justice systems.
JACKSON v. VIRGINIA 333
307 STEVENS, J., concurring in judgment
New Hampshire, 414 U. S. 478; Douglas v. Buder, 412 U. S.
430; Gregory v. Chicago, 394 U. S. 111; Adderley v. Florida,
385 U. S. 39; Thompson v. Louisville, 362 U. S. 199. See also
Clyatt v. United States, 197 U.S. 207,222.
The primary reasoning of the Court in Winship is also inapplicable
here. The Court noted in that case that the reasonable-
doubt standard has the desirable effect of significantly
reducing the risk of an inaccurate factfinding and thus of
erroneous convictions, as well as of instilling confidence in the
criminal justice system. 397 U. S., at 363-364. See also id.,
at 370-372 (Harlan, J., concurring). In this case, however,
it would be impossible (and the Court does not even try) to
demonstrate that there is an appreciable risk that a factfinding
made by a jury beyond a reasonable doubt, and twice
reviewed by a trial judge in ruling on directed verdict and
post-trial acquittal motions and by one or more levels of
appellate courts on direct appeal, as well as by two federal
habeas courts under the Thompson "no evidence" rule, is
likely to be erroneous.6 Indeed, the very premise of Winship
is that properly select€d judges and properly instructed
juries act rationally, that the former will tell the truth when
they declare that they are convinced beyond a reasonable
doubt and the latter will conscientiously obey and understand
the reasonable-doubt instructions they receive before retiring
to reach a verdict, and therefore that either factfinder will
itself provide the necessary bulwark against erroneous factual
determinations. To presume otherwise is to make light of
Winship.1
6 As I discuss earlier, see supra, at 329, the incidence of factual error at
the trial level in federal courts appears to be exceedingly low, even when
measured by the relatively strict appellate standard used by the Federal
Courts of Appeals. Presumably the incidence of errors that survive that
first level of review is even smaller.
7 Indeed, the Court makes light of Winship by suggesting that, in the
absence of its new habeas procedure, the result of that case is simply "a
trial ritual." Ante, at 316-317. Far more likely in my view is that the
334 OCTOBER TERM, 1978
STEVENS, J., concurring in judgment 443 U.S.
Having failed to identify the evil against which the rule is
directed, and having failed to demonstrate how it follows
from the analysis typically used in due process cases of this
character, the Court places all of its reliance on a dry, and
in my view incorrect, syllogism: If Winship requires the
factfinder to apply a reasonable-doubt standard, then logic
requires a reviewing judge to apply a like standard
But, taken to its ultimate conclusion, this "logic" would
require the reviewing court to "ask itself whether it believes
that the evidence at the trial established guilt beyond a reasonable
doubt." Woodby v. INS, 385 U. S. 276, 282 ( emphasis
added). The Court, however, rejects this standard, as
well as others that might be considered consist~mt with Winship.
For example, it does not require the reviewing court to
view just the evidence most favorable to the prosecution and
then to decide whether that evidence convinced it beyond a
reasonable doubt, nor whether, based on the entire record,
rational triers of fact could be convinced of guilt beyond a
reasonable doubt. Instead, and without explanation, it
chooses a still narrower standard that merely asks whether,
"after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt." Ante, at 319.8 It seems to me that if "logic" allows
Court's difficult-to-apply but largely unnecessary rnle will it,;elf result in a
"collateral-attack ritual" that, will underminC' the integrity of both the state
and federal judiciaries. See infra, at 336-339.
8 So far as I can determine, this standard first appeared in our jurisprudencC'
in Mn . .JusncE 8TEWART's opinion dissenting from the Court's
denial of certiorari in Freeman v. Za.hradnick, 429 U. S. 1111, 1112, ll 13,
1114, 1116. At that time, it gave the impression of being somewhat
narrower than-if only because it was stated quite differently from-the
test used by the Courts of Apprals in reviewing federal ronvirtions on
direct appeal. See Curley v. United States, 81 U. S. App. D. C. 389, 392-
393, 160 F. 2d 229, 232-233 (1947). Although the Court twice repeats
the Freeman test, see ante, at 313, 319, it now appears either to equate
that standard with the-in my view-broader federal direct-review standard,
JACKSON v. VIRGINIA 335
307 STEVENS, J., concurring in judgment
this choice after Winship it should also allow the presumption
that the Court has rejected-that trial judges and juries will
act rationally and honestly in applying the reasonable-doubt
standard, at least so long as the trial is free of procedural error
and the record contains evidence tending to prove each of the
elements of the offense.
Time may prove that the rule the Court has adopted today
is the wisest compromise between one extreme that maximizes
the protection against the risk that innocent persons will be
erroneously convicted and the other extreme that places the
greatest faith in the ability of fair procedures to produce just
verdicts. But the Court's opinion should not obscure the fact
that its new rule is not logically compelled by the analysis or
the holding in Winship or in any other precedent, or the fact
that the rule reflects a new policy choice rather than the
application of a pre-existing rule of law.
III
The Court cautions against exaggerating the significance of
its new rule. Ante, at 321. It is true that in practice there
may be little or no difference between a record that does not
contain at least some evidence tending to prove every element
of an offense and a record containing so little evidence that
no rational factfinder could be persuaded of guilt beyond a
reasonable doubt. Moreover, I think the Court is quite correct
when it acknowledges that "most meritorious challenges
to constitutional sufficiency of the evidence undoubtedly will
be recognized in the state courts." Ante, at 322. But this only
means that the new rule will seldom, if ever, provide a convicted
state prisoner with any tangible benefits. It does not
mean that the rule will have no impact on the administration
of justice. On the contrary, I am persuaded that it will be
seriously harmful both to the state and federal judiciaries.
or to endorse both standards despite their differences. See ante, at 318,
Bnd nn. 11, 12.
336 OCTOBER TERM, 1978
STEVENS, J., concurring in judgment 443 U. S.
The Court indicates that the new standard to be applied
by federal judges in habeas corpus proceedings may be substantially
the same as the standard most state reviewing
courts are already applying. Ante, at 322. The federal district
courts are therefore being directed simply to duplicate
the reviewing function that is no,v being performed adequately
by state appellate courts. In my view, this task may
well be inconsistent with the prohibition-added by Congress
to the federal habeas statute in order to forestall undue federal
interference with state proceedings, see Wainwright v.
Sykes, 433 l:. S. 72, 80-against overturning "a determination
after a hearing on the merits of a factual issue, made
by a State court of competent jurisdiction." 28 P. S. C.
§ 2254 (d). See LaVallee v. Delle Rose, 410 r. S. 690. In
any case, to assign a single federal district judge the responsibility
of directly reviewing. and inevitably supervising_ the
most routine work of the highest courts of a State can only
undermine the morale and the esteem of the state judiciaryparticularly
when the stated purpose of the additional layer
of review is to determine whether the State's factfind er is
"rational." 9 Such consequences are intangible but nonetheless
significant.
0 In the past, collateral review of state proceedings has been justified
largely on the grounds (1) that federal judges have special expertise in the
federal issues that regularly arise in habeas corpus proceeding, and (2) that
they are less susceptible than state judges to political pressures against
applying constitutional rules to overturn convictions. See, e. g., Ra.rtels,
Avoiding a Comity of Errors, 29 Stan. L. Rev. 27, 30 n. 9 (1976). Cf.
Steffel v. Thompson, 415 U.S. 452, 464; Mitchum v. Foster, 407 U.S. 225,
242. But neither of these justifications has any force in the present context.
State judges are more familiar with the e!C'ments of state offenses
than are federal judges and should be better able to evaluate sufficiency
daims. Moreover, of all decisions owrturning convictions, the least likely
to be unpopular and thus to distort. f'tate decisionmaking processes are ones
based on the inadequacy of the evidence. Indeed, once federal courts
were divested of authority to second-guess state courts on Fourth Amendment
issues, which are far more likely to generate politically motivated
JACKSON v. VIRGINIA 337
307 STEVENS, J., concurring in judgment
The potential effect on federal judges is even more serious.
Their burdens are already so heavy that they are delegating
to staff assistants more and more work that we once expected
judges to perform.10 The new standard will invite an unknown
number of state prisoners to make sufficiency challenges
that they would not have made under the old rule.
Moreover, because the "rational trier of fact" must certainly
base its decisions on all of the evidence, the Court's broader
standard may well require that the entire transcript of the
state trial be read whenever the factfinders' rationality is challenged
under the Court's rule.11 Because this task will confront
the courts of appeals as well as district courts, it will
surely impose countless additional hours of unproductive labor
on federal judges and their assistants.12 The increasing volstate-
court decisions, see Stone v. Powell, 428 U. S. 465, a like result in
this case would seem to be a fortiori.
1° For example, the heavy federal workload has required the 13 regular
and 7 senior judges on the Ninth Circuit t-0 hire 30 staff attorneys and 33
law clerks to assist them in their labors.
11 Additional burdens will also be imposed if the Court's rule is extended
to federal habeas proceedings reviewing federa.l criminal trials, as wen as
to ones reviewing state civil commitment proceedings in which we have
recently required at least the "clear and convincing" test to be applied as
a matter of federal constitutional law. Addington v. Texas, 441 U. S. 418.
This Court's workload will also increase, of course, when its certiorari
docket expands to accommodate the challenges generated by the Court's
new rule. The effect will be even greater if the Court's opinion is read to
require state appellate courts to apply the reasonable-doubt test on direct
review and to require this Court to apply it when reviewing the decisions
of those courts on certiorari.
12 Professor Bator has persuasively explained how the law of diminishing
returns inevitably makes it unwise to have duplicative review processes
on the "merits" in criminal cases:
"[/Jf a criminal judgment is ever to be final, the notion of legality must
at some point include the assignment of final competences to determine
legality. But, it may be asked, why should we seek a point at which such
a judgment becomes final? Conceding that no process can assure ultimate
truth, will not 11epetition of inquiry stand a better chance of approximat338
OCTOBER TERM, 1978
STEVENS, J., concurring in judgment 443 U.S.
ume of work of this character has already led some of our
most distinguished lawyers to discontinue or reject service on
the federal bench.13 The addition of a significant volume
ing it? In view of the awesomeness of the consequences of conviction,
shouldn't we allow redetermination of the merits in an attempt to make
sure that no error has occurred?
"Surely the answer runs, in the first place, in terms of conservation of
resources-and I mean not only simple economic resources, but all of the
intellectual, moral, and political resources involved in the legal system.
The presumption must be, it seems to me, that if a job can be well done
once, it should not be done twice. If one set of institutions is as capable
of performing the task at hand as another, we should not ask both to do
it. The challenge really runs the other way: if a proceeding is held to
determine the facts and law in a case, and the processes used in that proceeding
are fitted to the task in a manner not inferior t-0 those which
would be used in a second proceeding, so that one cannot demonstrate that
relitigation would not merely consist of repetition and second-guessing,
why should not the first proceeding 'count'? Why should we duplicate
effort? After all, it is the very purpose of the first go-around to decide
the case. Neither it nor any subsequent go-around can assure ultimate
truth. If, then, the previous determination is to be ignored, we must have
some masoned institutional justification why this should be so.
"Mere iteration of process can do other kinds of damage. I could
imagine nothing more subversive of a judge's sense of responsibility, of the
inner subjective conscientiousness which is so essential a part of the difficult
and subtle art of judging well, than an indiscriminate acceptance of
the notion that all the shots will always be called by someone else. Of
course this does not mean that we should not have appea.ls. As we shall
see, important functional and ethical purposes are served by allowing recourse
to 3Jl appellate court in a unitary system, and to a federal supreme
court in a federal system. The acute question is the effect it will have on
a trial judge if vie then allow still further recourse where these purposes
may no longer be rekvant. What seems so objectionable is second-guessing
merely for the sake of second-guessing, in the service of the illusory
notion that if we only try hard enough we will find the 'truth.'" Bator,
Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,
76 Harv. L. Rev. 441, 450-451 (1963).
See also F. James, Civil Procedure 518 (1965).
13 The testimony of Griffin Bell at his confirmation hearings for Attorney
General is particularly relevant. When asked by Senator Scott of VirJACKSON
v. VIRGINIA 339
307 STEVENS, J., concurring in judgment
of pointless labor can only impair the quality of justice administered
by federal judges and thereby undermine "the respect
and confidence of the community in applications of
the ... law." In re Winship, 397 U. S., at 364.
For these reasons, I am unable to join the Court's gratuitous
directive to our colleagues on the federal bench.
ginia why he had earlier resigned from his seat on the Court of Appeals
for the Fifth Circuit, Judge Bell responded:
"I found it not to be a rewarding experience any longer. Whether it was
because there was no more excitement after the 19601s1 or whether it was
because the case load changed, but the work load was oppressive. I would
not have minded the work load, but the character of the cases changed.
It was almost lik(> S(>rving on a criminal court. I did not want to do that
any longer." Hearings on the Prospective Nomination of Griffin B. Bell,
of Georgia, to be Attorney General, before the Senate Committee on the
Judiciary, 95th Cong., 1st Se:ss., 27 (1977).
340 OCTOBER TERM, 1978
Syllabus 443 U.S.
FEDERAL OPEN :MARKET COMMITTEE OF THE
FEDERAL RESERVE SYSTE.M v. MERRILL
CERTIORARI TO THE L'NITED STATES COL"RT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
'.\Jo. 77-1387. Argued December 6, 1978-Decided .JunC' 28, 1979
This case presents the question whether the Freedom of Information Act
(FOLi\) is Yiolat-ed by petitioner's practice, authorized by regulation, 12
CFR § 271.5 (1978), of withholding certain monPtnry policy directives
from the public during the month they are in effect, such directives being
published in full in the Frderal Register at the end of the month. To implement
its authority to conduct open market operations of the Federal
Reserve System, petitioner has established a combined investment pool
for all Federal Reserve banks, administered by the Account :\fanager.
Petitioner meets npproximately once a month to review the overall
state of the economy and consider the appropriate course of monetary
and open market policy. Its principal conclusions are embodied in a
"Domestic Policy Directiw," which indicates in ge>neral terms whether
petitioner wishes to follow an expansionary, deflationary, or unchanged
monetary r)o!icy in the period ahead, and which indudes specific tolerance
ranges for the growth in the money supply and for the federal
funds rate. The Account Manager is guided by the Domestic Policy
Directive in his transactions with dealers who trade in Government
securities. A Domestic Policy Directi\·e exists as a document for approximately
one month before it appears in the Federal Register, by
which time it has been supplanted by a new Directive. Respondent,
who had been denied immediate nccess under the FOIA to certain records
of petitioner's policy actions, instituted suit for declaratory and
injunctive relief against the operation of 12 CFR § 271.5 and the policy
of delayed disclosure. Without rxpressly considning petitioner's contention
that immediate disclosurt> of Domestic Policy Directives and
tolerance ranges would interfere with the conduct of national monetary
policy, the District Court entered judgment for respondrnt, holding,
inter alia, that the Directives were "statements of general policy" which,
under the FOIA, had to be "currently" published in the Federal Register;
that the I-month delay failed to satisfy the current publication
requirement; and that the Directives could not be withheld under Exemption
5 of the FOIA, which applies to documents that are "interagency
or intra-agency memorandums or letters which would not be
340
FEDERAL OPEN MARKET COMMITTEE v. MERRILL 341
Syllabus
available by law to a party ... in litigation with the agency." The
Court of Appeals affirmed, rrlso expressing no opinion about petitioner's
assertion that immediate disclosure of Domestic Policy Directives and
tolerance ranges would seriously interfere with the conduct of national
monetary policy.
Held:
1. Petitioner's Domestic Poliry Directives are "intra-agency memorandums"
within the meaning of Exemption 5 of the FOIA. Petitioner
is clearly an "agency" as that term is defined in the Administrative Procedure
Act, and the Directives are essentially petitioner's written instructions
to the Account Manager, a subordinate official of the agency. The
instructions are binding only upon the Account Manager, and neither
establish rules that govern the adjudication of individual rights nor
require particular conduct or forbearance by any member of the public.
Pp. 352-353.
2. Although Exemption 5 does not confer general authority upon an
agency, without regard to any privilege enjoyed by the Government in
the civil discovery context, to delay disclosure of intra-agency memorandums
that would undermine the effectiveness of the agency's policy
if released immediately, nevertheless Exemption 5 docs incorporate a
qualified privilege for confidential commercial information, at least to
the extent that this information is generated by the Government itself
in the process leading up to awarding a contract. See Fed. Rule Civ.
Proc. 26 ( c) (7). Pp. 353- 360.
3. Although petitioner's Domestic Policy Directives can fairly be described
as containing confidential commercial information generated in
the process of awarding a contract, it does not necessarily follow that
they would be protected against immediate disclosure in the civil discovery
process. If the Directives contain sensitive information not
otherwise available, and if immediate release of the Directives would significantly
harm the Government's monetary functions or ~ommnr.iAl
interests, then a slight delay in the publication of the Directives, such
as that authorized by 12 CFR § 271.5, would be permitted under Exemption
5. Determination of whether, or to what extent, the Directives
would in fact be afforded protection in civil discovery must await the
development of a proper record on remand. If the District Court concludes
that the Directives would be afforded protection, then it should
also consider whether the operative portions of the Directives can faasibly
be segregated from the purely descriptive materials therein, and the
latter made subject to disclosure or publication without delay. See EPA
v. Mink, 410 U. S. 73, 91. Pp. 361-364,
184 U. 8. App. D. C. 203, 565 F. 2d 778, vacated and remanded.
342 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
BLACKMUN, J., deliveJ1ed the opinion of the Court, in which BURGER,
C. J., and BRENNAN, \VHITE, MARSHALL, PowELL, and REHNQUIST, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in which STEWART, J.,
joined in part, post, p. 364.
Kenneth S. Geller argued the cause for petitioner. With
him on the briefs were Solicitor General M cCree, Assistant
Attorney General Babcock, Leonard Schaitman, and Thomas
G. Wilson.
Victor H. Kramer argued the cause for respondent. With
him on the brief was Douglru; L. Parker.*
MR. JusTICE BLACKMUN delivered the opinion of the Court.
The Federal Open Market Committee has a practice, authorized
by regulation, 12 CFR § 271.5 (1978),1 of withholding
*Diane B. Cohn and Girardeau A. Spann filed a brief for the Reporters
Committee for Freedom of the Press et al. as amici curiae urging
affinnance.
1 The regulation provides:
"§ 271.5 Deferment of availability of certain information.
"(a) Deferred availability of information. In some instances, certain
types of information of the Committee are not published in the FEDERAL
REGISTER or made available for public inspection or copying until after
such period of time as the Committee may determine to be reasonably necessary
to avoid the effects described in paragraph (b) of this section or as
may otherwise be necessary to prevent impairment of the effective discharge
of the Committee's statutory :responsibilities.
"(b) Reasons for deferment of availability. Publication of, or access
to, certain information of the Committee may be deferred because earlier
disclosure of such information would:
" ( 1) Interfere with the orderly execution of policies adopted by the
Committee in the performance of its statutory functions;
"(2) Permit speculators and others to gain unfair profits or to obtain
advantages by speculative trading in securities, foreign exchange, or
otherwise;
"(3) Result in unnecessary or unwarranted disturbances in the securities
market;
" ( 4) Make open market operations more costly;
"(5) Interfere with the orderly execution of the objectives or policies
FEDERAL OPEN MARKET COMMITTEE v. MERRILL 343
340 Opinion of the Court
certain monetary policy directives from the public during the
month they are in effect. At the end of the month, the directives
are published in full in the Federal Register. The
United States Court of Appeals for the District of Columbia
Circuit held that this practice violates the Freedom of Information
Act, 5 U. S. C. § 552. 184 U. S. App. D. C. 203, 565 F. 2d
778 ( 1977). We granted certiorari on the strength of the
Committee's representations that this ruling could seriously
interfere with the implementation of national monetary
policy. 436 U.S. 917 (1978).
I
Open market operations-the purchase and sale of Government
securities in the domestic securities market-are the
most important monetary policy instrument of the Federal
Reserve System.2 When the Federal Reserve System buys
securities in the open market, the payment is ordinarily
credited in the reserve account of the seller's bank, increasing
the total volume of bank reserves. When the Federal Reserve
System sells securities on the open market, the sales price
usually is debited in the reserve account of the buyer's bank,
decreasing the total volume of reserves. Changes in the volume
of bank reserves affect the ability of banks to make loans
of other Government agencies concerned with domestic or foreign economic
or fiscal matters; or
"(6) Interfere with, or impair the effectiveness of, financial transactions
with foreign banks, bankers, or countries that may influence the flow of
gold and of dollar balances to or from foreign countries."
2 App. 46, 55. See generally Board of Governors of the Federal Reserve
System, The Federal Reserve System, Purposes and Functions 14--15,
49-67 (197 4).
Other major economic tools employed by the Federal Reserve System
include the setting of reserve requirements for commercial banks that are
members of the Federal Reserve System, and the determination of the
discount rate for borrowing by member banks. App. 46, 56.
344
and investments.3
interest rates and
whole.
OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
This in turn has a substantial impact on
investment activity in the economy as a
The Federal Open Market Committee (FOMC or Committee),
petitioner herein, by statute has exclusive control over
the open market operations of the entire Federal Reserve System.
12 U. S. C. § 263 (b). The FO:MC • is charged with
conducting open market operations "with a view to accommodating
commerce and business and with regard to their
bearing upon the general credit situation of the country."
§ 263 (c). To implement this authority, the Committee has
established a combined investment pool for all Federal Reserve
banks, known as the System Open Market Account.
A senior officer of the Federal Reserve Bank of X ew York is
regularly appointed Account :Manager of the System Open
Market Account.
The FOMC meets approximately once a month to review
the overall state of the economy and consider the appropriate
course of monetary and open market policy. The Committee's
principal conclusions are embodied in a statement called
the Domestic Policy Directive. The Directive summarizes
the economic and monetary background of the FOMC's deliberations
and indicates in general terms whether the Committee
·wishes to follow an expansionary, deflationary, or
unchanged monetary policy in the period ahead. The Committee
also attempts to agree on specific tolerance ranges
3 Under the Federal Reserve Board's Regulation D, 12 CFR Pt. 204
(1978), member banks are required to hold reserves in a prescribed ratio
to deposits. 1'-'lember banks typically respond to an increase in arnilable
reserves (or to a reduction in the required reserve-to-deposit ratio) by
either making new loans and investments, or by selling their excess reserves
to other member banh that can take advantage of these reserves because
of particular lending or investment opportunities. App. 47.
4 The Committee is composed of the seven members of the Board of
Governors of the Federal Reserve System, nnd five representatives of the
Federal Reserve banks. 12 U. S. C. § 263 (a).
FEDERAL OPEN MARKET COMMITTEE v. MERRILL 345
340 Opinion of the Court
for the growth in the money supply and for the federal
funds rate.5 The recent practice of the Committee has been
to include these tolerance ranges in the Domestic Policy
Directive.6
5 The tolerance ranges for the growth of the money supply are stated
in terms of "M1," defined as currency in circulation plus demand deposits
held by the public in commercial banks, and "M2 ," defined as "Mi'' plus
time and savings deposits, other than large negotiable certificates of
deposit, held in commercial banks. App. 81. The federal funds rate is the
rate at which commercial banks are willing to lend or borrow immediately
available reserves on an overnight basis. Id., at 78. As such, it is particularly
sensitive to changes in the availability of reserves. The Committee's
use of these concepts, expressed in terms of tolerance ranges, is
illustrated by the operative language of the Domestic Policy Directive
adopted at the October 17, 1978, meeting of the FOMC:
"Early in the period before the next regular meeting, System open market
operations shall be directed at attaining a weekly-average Federal funds
rate slightly above the current level. Subsequently, operations shall be
directed at maintaining the weekly-average Federal funds rate within the
range of 83/4 to 9¼ per cent. In deciding on the specific objective for
the Federal fonds rate the 11anager shall be guided mainly by a range of
tolerance for growth in M-2 over the October-November period of 5½ to
9½ per cent, provided that growth of M-1 over that period does not exceed
an annual rate of 6½ per cent." 64 Fed. Res. Bull. 947, 956, (1978).
6 Prior to February 1977, the Domestic Policy Directives did not include
specific tolerance ranges for the growth in money supply and the federal
funds rate. Instead, the operative language of the Directives contained
such general phrases as "the Committee seeks to achieve some easing in
bank reserve and money market conditions, provided that the monetary
aggregates do not appear to be growing excessively"; "the Committee seeks
to achieve ba,nk reserve and money market conditions consistent with more
rapid growth in monetary aggregates over the months ahead than has
occurred in recent months"; or "the Committee seeks to achieve bank
reserve and money market conditions consistent with moderate growth in
monetary aggregates over the months ahead." App. 82-83. The record
does not indicate in what manner the tolerance ranges were communicated
to the Account Manager during this period.
After February 1977, the operative language of the Directives began to
incorporate specific tolerance ranges of the form set forth in n. 5, supra.
The record contains no explanation as to why the FOMC began including
346 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
The day-to-day operations of the Account Manager are
guided by the Domestic Policy Directive and associated tolerance
ranges, a.nd by a daily conference call with the staff and
at least one member of the FOMC. Subject to this oversight,
the Manager has broad discretion in implementing the Committee's
policy. In transacting business for the System Open
Market Account, he deals with about 25 dealers who actively
trade in United States Government and federal agency securities.
Roughly half of these dealers are departments of large
commercial banks; the others include large investment firms
and smaller firms that specialize in Government securities.
These dealers trade primarily for their own account. App. 33.
The Federal Reserve Board is required by statute to keep
a record of all policy actions taken by the FOMC with respect
to open market operations. 12 U. S. C. § 247a. To comply
with this requirement, the FOMC secretariat prepares a document
during the month a.f ter each Committee meeting. This
document is called the Record of Policy Actions. It contains
a general review of economic and monetary conditions at the
time of the meeting, the text of the Domestic Policy Directive,
any other policy actions taken by the Committee, the
votes on these actions, and the dissenting views, if any. A
draft of the Record of Policy Actions is distributed to the
participants at the next meeting of the Committee for their
comments, and is revised and released for publication in the
Federal Register a few days later. 41 Fed. Reg. 22261 (1976).
In other ,vords, the Record of Policy Actions is published
in the Federal Register aJmost as soon as it is drafted and approved
in final form by the Committee.7 The Domestic
the tolerance ranges in the Directives at that time. Nor is there any
explanation in the Record of Policy Artions issued after the February
meeting. 63 Fed. Res. Bull. 380-394-(1977).
7 Prior to 1967, the Records of Policy Actions were published only in
the Federal Reserve Board's Annual Report to Congress. See Committee's
Press Release, Mar. 24, 1975, App. 59; 413 F. Supp. 494, 504 (DC 1976).
In response to the passage of the Freedom of Information Act in that
FEDERAL OPEN MARKET COMMITTEE v. MERRILL 347
340 Opinion of the Court
Policy Directive, however, exists as a document for approximately
one month before it makes its first public appearance
as part of the Record of Policy Actions. Moreover, by the
time the Domestic Policy Directive is released as part of the
Record of Policy Actions, it has been supplanted by a new
Directive and is no longer the current and effective policy of
the FOMC.
II
Respondent, when this action was instituted in May 1975,
was a law student at Georgetown University Law Center,
Washington, D. C. App. 8. The complaint alleged that he
had "developed a strong interest in administrative law and
the operation of agencies of the federal government," and had
formed a desire to study "the process by which the FOMC
regulates the national money supply through the frequent
adoption of domestic policy directives." Ibid.
In pursuit of these professed academic interests, respondent
in March 1975, through counsel, filed a request under the
Freedom of Information Act (FOIA) seeking the "[r]ecords of
policy actions taken by the Federal Open Market Committee
at its meetings in January 1975 and February 1975, including,
but not limited to, instructions to the Manager of the Open
Market Account and any other person relating to the purchase
and sale of securities and foreign currencies." Id., a.t 13.8
year, the FOMC instituted a policy of releasing the Record of Policy
Actions, including the Domestic Policy Directive, 90 days after the Directive
was adopted by the Commission. Ibid. On March 21, 1975, just
before the instant lawsuit was filed, the period of delay was shortened to
45 days. 40 Fed. Reg. 13204 (1975). The present policy was adopted
on May 24, 1976. 41 Fed. Reg. 22261 (1976).
Because the Rerord of Policy Actions is not completed :md formally
adopted until the meeting after the meeting to which it applies, respondent
apparently conceded in the Court of Appeals that the Committee's present
guidelines for release of that document are consistent with the FOIA. See
184 U. S. App. D. C. 203, 207, 565 F. 2d 778, 782 (1977).
8 Respondent also requested the Memoranda of Discussion for the January
1975 and February 1975 meetings. App. 13. Memoranda of Discus348
OCTOBER TERYI, 1978
Opinion of the Court 443U.S.
The FOMC denied the request, explaining that the Records of
Policy Actions, including the Domestic Policy Directive, were
available only on a delayed basis under the policy set forth in
12 CFR § 271.5.0 An administrative appeal resulted in release
of the requested documents, but only because the withholding
period by then had expired. Governor Robert C.
Holland of the Federal Reserve Board, on behalf of the Committee,
wrote to respondent's counsel that the Committee remained
firmly committed to what he described as "a legislative
policy against premature disclosures which would impair
the effectiveness of the operations of Government agencies."
App. 21.
Respondent then instituted this litigation in the United
States District Court for the District of Columbia, seeking
declaratory and injunctive relief against the operation of 12
CFR § 271.5 and the policy of delayed disclosure. App. 7.
The FOMC in due course moved for summary judgment, and
submitted affidavits from Committee members and staff that
generally advanced two reasons why immediate disclosure of
the Domestic Policy Directives and tolerance ranges would
interfere with the FOMC's statutory functions.
First, the Committee argued that immediate release of the
sion were detailed minutes of the statements made and actions taken at
the Committee's meetings. The District Court held that under 5 U. S. C.
§ 552 (b) ( 5) respondent was entitled to those parts of the :Memoranda
that contained "reasonably segregable" statements of fart, 413 F. Supp.,
at 506, and the parties subsequently agreed on the factual portions of
the Memoranda to be produced. This ruling was not challenged in the
Court of Appeals, see 184 U. S. App. D. C., at 207 n. 8, 565 F. 2d, at 782
n. 8, and is not in issue here.
In May 1976, the FOMC voted to discontinue the preparation of
Memoranda of Discussion, 62 Fed. Res. Bull. 581, 590-591 (1976).
9 In accordance with the then-current policy of the FOMC, see n. 7,
supra, the regulation specifically provided that "the Committee's current
economic policy directive adopted at each meeting of the Committee is
pubished in the FEDERAL REGISTER approximately 90 days after the date
of its adoption." 12 CFR § 271.5 (1975).
FEDERAL OPEN MARKET COMMITTEE v. MERRILL 349
340 Opinion of the Court
Domestic Policy Directive and tolerance ranges would make
it difficult to implement limited or gradual changes in monetary
policy. Disclosure of the FOMC's monetary policy objectives
would have an immediate "announcement effect," as
market participants moved quickly to adjust their holdings of
Government securities in anticipation of purchases or sales by
the System Open Market Account. This would result in
sudden price and interest rate movements, which might be
considerably larger than the Committee contemplated and
might be beyond the power of the FOMC or the Federal
Reserve to control.
Second, the FOMC contended that immediate disclosure of
the Directive and tolerance ranges would permit large institutional
investors, who would have the means to analyze the
information quickly and act rapidly in buying or selling securities,
to obtain an unfair advantage over small investors.
Respondent submitted no counter-affidavits to these contentions,
since he considered them "irrelevant" to the legal
issues presented. Brief for Respondent 33-34, n. 12. The
District Court apparently agreed. Without addressing the
FOMC's affidavits, or entering any findings about the effect
that premature disclosure might have on open market operations,
the court granted summary judgment for respondent.
413 F. Supp. 494 (DC 1976). It held, as the FOMC had conceded.
that the Domestic Policy Directives were "statements
of general policy ... formulated and adopted by the agency"
that, under 5 U. S. C. § 552 (a)(l)(D) , had to be "currently
publish [ ed] in the Federal Register for the guidance of the
public." 10 It further concluded that by waiting until a new
10 Section 552 provides:
"(a) Each agency shall make available to the public information as
follows:
"(I) Each agrncy ~hall separately state and currently publish in the
Federal Register for the guidance of the public-
" (D) substantive rules of general applicability adopted as authorized by
350 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
Directive had been promulgated before publishing the preceding
one, the FOMC was in violation of the "current publication"
requirement. 413 F. Supp., at 505. Finally, the court
rejected the Committee's contentions that the Domestic
Policy Directives could be withheld under either Exemption
2 of the FOIA, relating to internal personnel rules and practices
of an agency, or Exemption 5, relating to inter-agency or
intra-agency memorandums or letters which would not be
available to a party other than an agency in litigation with an
agency.11
On appeal to the United States_ Court of Appeals for the
District of Columbia Circuit, the FOMC did not contest the
ruling that the Domestic Policy Directives were "statements
of general policy" that, under § 552 (a)(l)(D), had to be
"currently publish[ed]" in the Federal Register. Similarly,
it did not challenge the conclusion that the 1-month delay
failed to satisfy the current-publication requirement. Moreover,
the Committee abandoned the argument that the Directives
were covered by Exemption 2. The Committee, instead,
concentrated on the contention that premature disclosure
would seriously disrupt the conduct of open market operations,
and continued to urge that the policy of delayed disclosure
was authorized by Exemption 5.
law, and statements of general policy or interpretations of general applicability
formulated and adopted by the agency."
The District Court also held that policy actions of the FOMC other
than the Domestic Policy Directive had to be indexed and promptly disclosed
pursuant to 5 U.S. C. § 552 (a) (B).
11 Title 5 U. S. C. § 552 also provides:
"(b) This section does not apply to matters that are-
"(2) related solely to the internal personnel rules and practices of an
agency;
" ( 5) inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation with
the agency."
FEDERAL OPEN MARKET COMMITTEE v. MERRILL 351
340 Opinion of the Court
The Court of Appeals rejected the FOMC's Exemption 5
arguments. It held that the Domestic Policy Directives were
not exempt from disclosure under the "executive" privilege
attaching to predecisional communications. It also ruled that
Exemption 5 was not designed to protect against premature
disclosure of otherwise final decisions. Finally, it concluded
that there was no other civil discovery privilege that could
serve as a basis for holding that the Directives were exempt
from disclosure under Exemption 5. Like the District Court,
the Court of Appeals expressed no opinion about the FOMC's
assertion that immediate disclosure of the Domestic Policy
Directives and tolerance ranges would seriously interfere with
the conduct of national monetary policy. If the assertion
were true, the court suggested, Congress could specifically exempt
this material from the prompt-disclosure requirement of
the FOIA.12 184 U. S. App. D. C. 203, 565 F. 2d 778 (1977).
III
This Court has had frequent occasion to consider the
FOIA,13 and it is not necessary to describe its history and
background in detail. It suffices to say that the purpose of
the FOIA is "to establish a general philosophy of full agency
disclosure unless information is exempted under clearly delin-
12 The third exemption specified by 5 U. S. C. § 552 (b) covers matters
that are
"(3) specifically exempted from disclosure by statute (other than section
552b of this title), provided that such statute (A) requires that the
matters be withheld from the public in such a manner as to leave no discretion
on the issue, or (B) establishes particular criteria for withholding
or refers to particular types of matters to be withheld."
13 See EPA v. Mink, 410 U. S. 73 (1973); Renegotiation Board v.
Bannercraft Clothing Co., 415 U. S. 1 (1974); NLRB v. Sears, Roebuck
& Co., 421 U. S. 132 (1975); Renegotiation Board v. Grumman Aircraft
Corp., 421 U.S. 168 (1975); FAA Adminuitrator v. Robertson, 422 U.S.
255 (1975); Department of Air Force v. Rose, 425 U. S. 352 ( 1976);
NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214 (1978); Chrysler
Corp. v. Brown, 441 U.S. 281 (1979).
352 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
eated statutory language." S. Rep. Ko. 813, 89th Cong., 1st
Sess., 3 (1965). The Act makes available to any person all
agency records, which it divides into three categories: some
must be currently published in the Federal Register, 5 U. S. C.
§ 552 (a)(l); others must be "pr::imptly publish[ed]" or
made publicly available and indexed, § 552 (a) (2); and all
others must be promptly furnished on request, § 552 (a) (3).
It then defines nine specific categories of records to which the
Act "does not apply." § 552 (b). The district court is given
jurisdiction to enjoin an agency from withholding agency
records, and to order the production of any agency records
improperly withheld. § 552 (a)(4)(B). The burden in any
such proceeding is on the agency to establish that the requested
information is exempt. Ibid.
At issue here is Exemption 5 of the FOL\, which provides
that the affirmative disclosure provisions do not apply to
"inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency
in litigation with the agency." § 552 (b) (5). Exemption 5,
in other words, applies to documents that (a) are "interagency
or intra-agency memorandums or letters," and (b) consist
of material that "would not be available by Ia,v to a
party ... in litigation with the agency."
A
There can be little doubt that the FOMC's Domestic Policy
Directives constitute "inter-agency or intra-agency memorandums
or letters." FOMC is clearly an "agency" as that
term is defined in the Administrative Procedure Act. 5 U.S. C.
§§ 551 (1), 552 (e). And the Domestic Policy Directives are
essentially the FOMC's written instructions to the Account
Manager, a subordinate official of the agency. These instructions,
although possibly of interest to members of the public,
are binding only upon the Account Manager. The Directives
do not establish rules that govern the adjudication of inFEDERAL
OPEN MARKET COMMITTEE v. MERRILL 353
340 Opinion of the Court
dividual rights, nor do they require particular conduct or
forbearance by any member of the public. They are thus
"intra-agency memorandums" within the meaning of Exemption
5.
B
Whether the Domestic Policy Directives "would not be
available by law to a party ... in litigation with the agency"
presents a more difficult question. The House Report stat~s
that Exemption 5 was intended to allow an agency to withhold
intra-agency memoranda which would not "routinely be
disclosed to a private party through the discovery process in
litigation with the agency .... " H. R. Rep. No. 1497, 89th
Cong .. 2d Sess., 10 (1966). EPA v. Mink, 410 U.S. 73, 86-87
(1973), recognized that one class of intra-agency memoranda
shielded by Exemption 5 is agency reports and working
papers subject to the "executive" privilege for predccisional
deliberations. 1V. LRB v. Sears, Roebuck & Co., 421 lT. S. 132
(1975), confirmed this interpretation, and further held that
Exemption 5 c>ncompasscs materials that constitute a privileged
attorney's work product. Id., at 154-155.
The FOMC does not contend that the Domestic Policy
Directives are protected by either the privilege for predecisional
communications or the privilege for an attorney's work
product.14 Its principal argument, instead, is that Exemption
5 confers general authority upon an agency to delay
disclosure of intra-agency memoranda that would undermine
the effectiveness of the agency's policy if released immediately.
This general authority exists, according to the FOMC, even if
the memoranda in question could be routinely discovered by
a party in civil litigation with the agency.
We must reject this analysis. First, since the FOMC does
not indicat€ that the asserted authority to defer disclosure of
14 Although the FOMC argued in the Court of Appeals that the Domestic
Policy Directives wen' protected by executive privilege, it has not
presented that argument here. Brief for Petitioner 30 n. 22.
354 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
intra-agency memoranda rests on a privilege enjoyed by the
Government in the civil discovery context, its argument is
fundamentally at odds with the plain language of the statute.
EPA v. Mink, 410 U.S., at 85-86; NLRB v. Sears, Roebuck &
Co., 421 U. S., at 149. In addition, the Committee's argument
proves too much. Such an interpretation of Exemption
5 would appear to allow an agency to withhold any
memoranda, even those that contain final opinions and statements
of policy, whenever the agency concluded that disclosure
would not promote the "efficiency" of its operations
or otherwise would not be in the "public interest." This would
leave little, if anything, to FOIA's requirement of prompt
disclosure, and would run counter to Congress' repeated rejection
of any interpretation of the FOIA which would allow an
agency to withhold information on the basis of some vague
"public interest" standard. H. R. Rep. No. 1497, supra, at 5,
9; S. Rep. No. 813, supra, at 3, 5, 8; EPA v. Mink, 410 U. S.,
at 78-80.
The FOMC argues, in the alternative, that there are several
civil discovery privileges, in addition to the privileges for predecisional
communications and an attorney's work product,
that would allow a district court to delay discovery of documents
such as the Domestic Policy Directives until they are
no longer operative. The Committee contends that Exemption
5 incorporates each of these privileges, and that it thus
shields the Directives from a requirement of immediate
disclosure.
Preliminarily, we note that it is not clear that Exemption 5
was intended to incorporate every privilege known to civil
discovery. See NLRB v. Robbins Tire & Rubber Co., 437
U. S. 214, 254 n. 12 (1978) (PowELL, J., concurring in part
and dissenting in part). There are, to be sure, statements in
our cases construing Exemption 5 that imply as much. See,
e. g., Renegot-iation Board v. Grumman Aircraft Corp., 421 U.S.
168, 184 (1975) ("Exemption 5 incorporates the privileges
which the Government enjoys under the relevant statutory and
FEDERAL OPEN MARKET COMMITTEE v. MERRILL 355
340 Opinion of the Court
case law in the pretrial discovery context"). Heretofore, however,
this Court has recognized only two privileges in Exemption
5, and, as NLRB v. Sears, Roebuck & Co., 421 U.S., at 150-
154, emphasized, both these privileges are expressly mentioned
in the legislative history of that Exemption.15 Moreover, material
that may be subject to some other discovery privilege
may also be exempt from disclosure under one of the other
eight exemptions of FOIA, particularly Exemptions 1, 4, 6,
and 7.16 We hesitate to construe Exemption 5 to incorporate
a civil discovery privilege that would substantially duplicate
another exemption. Given that Congress specifically recognized
that certain discovery privileges were incorporated into
Exemption 5, and dealt with other civil discovery privileges
in exemptions other than Exemption 5, a claim that a privilege
other than executive privilege or the attorney privilege is
covered by Exemption 5 must be viewed with caution.
The most plausible of the three privileges asserted by the
FOMC 11 is based on Fed. Rule Civ. Proc. 26 (c)(7), which
15 See H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966) (referring
to "advice from staff assistants and the exchange of ideas among agency
personnel"); S. Rep. No. 813, 89th Cong., 1st Sess., 2 (1965) (noting that
Exemption 5 includes "the working papers of the agency attorney and
documents which would come within the attorney-client privilege if applied
to private parties") .
16 Exemption 1 applies to classified national security information ; Exemption
4 applies to trade secrets and privileged commercial or financial
information obtained from a person; Exemption 6 covers personnel and
medical files the disclosure of which would constitute a clearly unwarranted
invasion of privacy; and Exemption 7 shields certain types of
investigatory records gathered for law enforcement purposes. 5 U. S. C.
§§ 552 (b)(l), (4), (6), (7).
17 The two other privileges advanced by the FOMC are a privilege for
"official gove-rnmcnt information" whose disclosure would be harmful to
the public interest, see Machin v. Zuckert, 114 U. S. App. D. C. 335. 338,
316 F. 2d 336, 339, cert. denied, 375 U. S. 896 (1963), and a priYilege
based on Fed. Rule Civ. Proc. 26 ( c) (2), which permits a court to order
that discovery "may be had only on specified terms and conditions, including
a designation of the time or place." In light of our disposition of
356 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
provides that a district court, "for good cause shown," may
order "that a trade secret or other confidential research,
development, or commercial information not be disclosed or
be disclosed only in a designated way." 18 The Committee
argues that the Domestic Policy Directives constitute "confidential
... commercial information," at least during the
month in which they provide guidance to the Account Manager,
and that they therefore would be privileged from civil
discovery during this period.
The federal courts have long recognized a qualified evidentiary
privilege for trade secrets and other confidential commercial
information. See, e. g., E. I. du Pont de Nemours
Powder Co. v. Masland, 244 U.S. 100, 103 (1917); 8 J. Wigmore,
Evidence § 2212, pp. 156- 157 (McNaughton rev. 1961 ).
The Federal Rules of Civil Procedure provide similar qualified
protection for trade secrets and confidential commercial information
in the civil discovery context. Federal Rule Civ. Proc.
26 (c)(7), which replaced former Rule 30 (b) in 1970, was
intended in this respect to "reflec [ t] existing law." Advisory
Committee's Xotcs on Fed. Rule CiY. Proc. 26, 28 U. S. C.
App., p. 444. The Federal Rules, of course, are fully applicable
to the United States as a party. See, e. g., United States
v. Procter & Gamble Co., 356 U. S. 677, 681 (1958); 4 J.
Moore, Federal Practice ,r 26.61 [2], p. 26-263, (1976). And
this case, we do not consider whether either asserted privilege is incorporat€
d in Exemption 5.
1 s The full text reads:
"Upon motion by a party or by the person from whom discovery is
sought, and for good rause shown, the court in which the action is pending
or alternatively, on matters relating to a deposition, the court in the district
where the deposition is to be taken may make any order whirh justice
requires to protect a party or person from annoyance, rmbarrassmrnt,
oppression, or undue burden or expense, including one or more of the
following: ... (7) that a trade secret or other confidential research, development,
or commerrial information not be disclosed or be diselosed only
in a designated way." Fed. Rule Civ. Proc. 26 (c) (7).
FEDERAL OPEN MARKET COMMITTEE v. MERRILL 357
340 Opinion of the Court
we see no reason why the Government could not, in an appropriate
case, obtain a protective order under Rule 26 (c)(7).19
To be surr, the House and Senate Reports do not provide
the same unequivocal support for an Exemption 5 privilege
for "confidential ... commercial information" as they do for
the executive and attorney work product privileges. Nevertheless,
we think that the House Report, when read in conjunction
with the hearings conducted by the relevant House
and Senate Committees, can fairly be read as authorizing at
least a limited form of Exemption 5 protection for "confidential
... commercial information."
In hearings that precedPd the Pnactment of the FOIA,
various agencies complained that the original Senate bill,
which did not include the present Exemption 5,20 failed to
19 Ser Menominee Engineering Corp. v. United States, 20 Fed. Rules
Serv. 2d 894 (Ct. Cl. 1975); Consolidated Box Co., Inc. v. United States,
18 Fed. Rules Serv. 2d 115 (Ct. Cl. 1973) (involving applications for protective
ordrrs under the identically worded Rule 71 (f) of the Court of
Claims).
20 S. 1666, introduced in the 88th Congrrss in 1963, included a fifthnumbered
exemption for "intra-agC'nc~r or inter-agency memorandums or
letters dealing solely with matters of law or policy." It was reported
favorably by the Senate Judiciary CommitteC', S. Rep. No. 1219, 88th
Cong., 2d Sess. (1964), and pas~ed thr Senatr, but rearhed the House
too late for action. Department of Air Force v. Rose. 425 U. S., at 362-
363; Renegotiation Board v. Bannercraft Clothing Co., 415 U. S., at
18 n. 18. Substantially the same measure was rrint.roduced in the 89th
Congress as S. 1160 and H. R. ,5012. Freedom of Information Source
Book, Subrommittec on Administrative Practice and Procedure, Senate
Judiciary Committrr. S. Doc. No. 93-82, p. 8 (1974). After additional
hearings in the House in ?viarch and April 196.5, Hearings on H. R. 5012,
etc., before a Subrommitt<'e of the House Commit.tee on Government
Operations, 89t h Cong., 1st Sess. (1965), and in the Senate in l\fay 1965,
Hearings on S. 1160, ek, before the Subrommittee on Administrative
Practicr :rnd Procedure of the Senate Committee on the JudiciaD', 89th
Cong., 1st Srss. (1965), the Senate Judiciary Committee struck the words
"dealing solely with matters of law or policy," and inserted in lieu thereof
"which would not be available by law to a private party in litigation with
358 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
provide sufficient protection for confidential commercial information
and other information about Government business
transactions. For example, the Department of Defense expressed
concern that information relating to the purchase or
sale of real estate, materials, or other property might not be
protected, Hearings on S. 1160, etc., before the Subcommittee
on Administrative Practice and Procedure of the Senate Committee
on the Judiciary, 89th Cong., 1st Sess., 418 (1965);
the General Services Administration stressed the need to avoid
early disclosure of information that might prejudice the
,Government's bargaining position in business transactions,
,id., at 480; and the Post Office Department urged that in
matters such as the negotiation of contracts, it should stand
on the same footing as a private party. Hearings on H. R.
5012, etc., before a Subcommittee of the House Committee on
Government Operations, 89th Cong., 1st Sess., 224 (1965).
Included among those expressing such criticism was the Acting
General Counsel of the Department of the Treasury, who
specifically referred to the Department's concern about premat'ure
disclosure of information concerning Federal Reserve open
market operations. Id., at 49.21
the agency." S. Rep. No. 813, supra n. 15, at 1. The bill, as thus
amended, passed the Senate on October 13, 1965. It was reported favorably
by the House Committee on Government Operations, H. R. Rep.
No. 1497, supra n. 15, passed the House on June 20, 1966, and was signed
by President Johnson on July 4, 1966.
21 Acting General Counsel Smith stated:
"I might interpolate at this point another example or two which I do
not have in my statement. Information as to purchases by the Federal
Reserve System, for example, of Government securities in the market, if
prematurely disclosed could have, we feel; serious effects on the orderly
handling of the Government's financing requirements so that in all of these
things there is a question of timing. There are many things on which
full disclosure is made in reports which are published or filed with the
Congress with a timelag, there is no basic secrecy about these matters, and
yet the premature release of these could be very damaging to the general
interest."
FEDERAL OPEN MARKET COMMITTEE v. MERRILL 359
340 Opinion of the Court
After the hearings were completed, Congress amended the
provision that ultimately became Exemption 5 to provide for
nondisclosure of materials that "would not be available by
law to a party ... in litigation with the agency." The House
Report, echoing the Report on the original Senate bill, S. Rep.
No. 1219, 88th Cong., 2d Scss., 6---7, 13---14 (1964), explained
that one purpose of the revised Exemption 5 was to protect
internal agency deliberations and thereby ensure "full and
frank exchange of opinions" within an agency. H. R. Rep.
No. 1497, supra n. 15, at 10. It then added, significantly:
"Moreover, a Government agency cannot alwa.ys operate
effectively if it is required to disclose documents or information
which it has received or generated before it completes
the process of awarding a contract or issuing an
order, decision or regulation. This clause is intended to
exempt from disclosure this and other information and
records wherever necessary without, at the same time,
permitting indiscriminate administrative secrecy" ( emphasis
added). Ibid.
In light of the complaints registered by the agencies about
premature disclosure of information relating to Government
contracts, we think it is reasonable to infer that the House
Report, in referring to "information ... generated [in] the
process of awarding a contract." specifically contemplated a
limited privilege for confidential commercial information pertaining
to such contracts.22
This conclusion is reinforced by consideration of the cliff
erences bet,veen commercial information generated in the
process of awarding a contract, and the type of material protected
by executive privilege. The purpose of the privilege
for predecisional deliberations is to insure that a decision-
22 Although the Senate Report does not contain a similar reference to
information generated in the process of awarding a contract, there is no
inconsistency in this respect between the House Report and the Senate
Report. Cf. Department of Air Poree v. Rose, 425 U. S., at 363-367.
360 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
maker will receive the unimpeded advice of his associates.
The theory is that if advice is revealed, associates may be
reluctant to be candid and frank. It follows that documents
shielded by executive privilege remain privileged even after
the decision to which they pertain may have been effected,
since disclosure at any time could inhibit the free flow of
advice. including analysis, reports, and expression of opinion
·within the agency. The theory behind a privilege for confidential
commercial information generated in the process
of awarding a contract, however, is not that the flow of advice
may be hampered, but that the Government will be placed at
a competitive disadvantage or that the consummation of the
contract may be endangered. Consequently, the rationale for
protecting such information expires as soon as the contract
is awarded or the offer withdrawn.
We are further convinced that recognition of an Exemption
5 privilege for confidential commercial information generated
in the process of awarding a contract would not
substantially duplicate any other FOIA exemption. The
closest possibility is Exemption 4, which applies to "trade
secrets and commercial or financial information obtained from
a person and privileged or confidential." 5 U. S. C. § 552
(b) ( 4). Exemption 4, however, is limited to information
"obtained from a person," that is, to information obtained
outside the Government. See 5 U. S. C. § 551 (2). The
privilege for confidential information about Government contracts
recognized by the House Report, in contrast, is necessarily
confined to information generated by the Federal Government
itself.
We accordingly conclude that Exemption 5 incorporates a
qualified privilege for confidential commercial information, at
least to the extent that this information is generated by the
Government itself in the process leading up to awarding a
contract.23
23 Our conclusion that the Domestic Policy Directives are at least
FEDERAL OPEN MARKET COMMITTEE v. MERRILL 361
340 Opinion of the Court
C
The only remammg questions are whether the Domestic
Policy Directives constitute confidential commercial information
of the sort given qualified protection by Exemption 5,
and, if so, whether they would in fact be privileged in civil
discovery. Although the analogy is not exact, we think that
the Domestic Policy Directives and associated tolerance ranges
are substantially similar to confidential commercial information
generated in the process of awarding a contract. During
the month that the Directives provide guidance to the Account
Manager, they are surely confidential, and the information is
commercial in nature because it relates to the buying and
selling of securities on the open market. Moreover, the
Directive and associated tolerance ranges are generated in
the course of providing ongoing direction to the Account
potentially eligible for protection under Exemption 5 does not conflict
with the District Court's finding that the Directives are "statements of
general policy ... formulated and adopted by the agency," which must
be "currently publish[ed]" in the Federal Register pursuant to 5 U.S. C.
§552 (a)(l). 413 F. Supp., at 504--505. It is true that in NLRB v.
Sears, Roebuck & Co., we noted that there is an obvious relationship
between Exemption 5 and the affirmative portion of the FOIA which
requires the prompt disclosure and indexing of final opinions and statements
of policy that have been adopted by the agency. 5 U. S. C.
§ 552 (a) (2). \Ve held that, with respect to final opinions, Exemption 5
can never apply; with respect to other documents covered by 5 U. S. C.
§ 552 (a) (2), we said that we would be "reluctant" to hold that the Exemption
5 privilege would ever apply. 421 U. S., at 153-154. These
observations, however, were made in the course of a discussion of the
privilege for predecisional communications. It should be obvious that
the kind of mutually exclusive relationship between final opinions and
statements of policy, on one hand, and predecisional communications, on
the other, does not necessarily exist between final statements of policy and
other Exemption 5 privileges. In this respect, we note that Sears itself
held that a memorandum subject to the affirmative disclosure requirement
of § 552 (a) (2) was nevertheless shielded from disclosure under Exemption
5 because it contained a privileged attorney's work product. 421
U.S., at 160.
362 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
Manager in the execution of large-scale transactions in Government
securities; they are, in this sense, the Government's
buy-sell order to its broker.
Although the Domestic Policy Directives can fairly be
described as containing confidential commercial information
generated in the process of awarding a contract, it does not
necessarily follow that they are protected against immediate
disclosure in the civil discovery process. As with most evidentiary
and discovery privileges recognized by law, "there
is no absolute privilege for trade secrets and similar confidential
information." 8 C. Wright & A. Miller, Federal Practice
and Procedure§ 2043, p. 300 ( 1970); 4 J. Moore, Federal Practice
,i- 26.60 [ 4J, p. 26-242 (1970). Cf. United States v. Nixon,
418 U. S. 683, 705-707 (1974). "The courts have not given
trade secrets automatic and complete immunity against disclosure,
but have in each case \Veighed their claim to privacy
against the need for disclosure. Frequently, they have been
afforded a limited protection." Advisory Committee's Notes
on Fed. Rule Civ. Proc. 26, 28 U. S. C. App., p. 444; 4 J. Moore,
Federal Practice ,i- 26.75, pp. 26--540 to 26-543 (1970).24 We
are mindful that "the discovery rules can only be applied under
Exemption 5 by way of rough analogies," EPA v. Mink, 410
U. S., at 86, and, in particular, that the individual FOIA appli-
24 Actually, orders forbidding any disclosure of trade secrets or confidential
commercial information are rare. More commonly, the trial
court will enter a protective order restricting disclosure to counsel, see,
e. g., Chesa International, Ltd. v. Fashion Associates, Inc., 425 F. Supp.
234 (SDNY 1977); Xerox Corp. v. International Bus£-r1ess Machines Corp.,
64 F. R. D. 367 (SDNY 1974); Scovill Mfg. Co. v. Sunbeam Corp.,
61 F. R. D. 598 (Del. 1973); or to the parties, see, e. g., Borden Co.
v. Sylk, 289 F. Supp. 847 (ED Pa. 1968); United States v. Article of
Drug Consisting of 30 Individually Cartoned Jars, More or Less, 43
F. R. D. 181 (Del. 1967); United States v. Standard Oil Co. (New Jersey) ,
23 F. R. D. 1 (SDNY 1958). We think the Domestic Policy Directives
should be considered "privileged," for Exemption 5 purposes, if any type of
order would be appropriate forbidding disclosure of the confidential material
therein to the general public.
FEDERAL OPEN MARKET COMMITTEE v. MERRILL 363
340 Opinion of the Court
cant's need for information is not to be taken into account
in determining ,vhether materials are exempt under Exemption
5. Ibid.; NLRB v. Sears, Roebuck & Co., 421 U. S., at
149 n. 16. Nevertheless, the sensitivity of the commercial
secrets involved, and the harm that would be inflicted upon
the Government by premature disclosure, should continue to
serve as relevant criteria in determining the applicability of
this Exemption 5 privilege. Accordingly, we think that if
the Domestic Policy Directives contain sensitive information
not otherwise available, and if immediate release of these Directives
would significantly harm the Government's monetary
functions or commercial interests, then a slight delay in the
publication of the Directives, such as that authorized by 12
CFR § 271.5, would be permitted under Exemption 5.
Here, the District Court made no findings about the impact
of immediate disclosure of the Domestic Policy Directives and
tolerance ranges. The Committee submitted unanswered affidavits
purporting to sho,v that prompt disclosure of this
information would interfere with the orderly execution of the
FOMC's monetary policies, and would give unfair advantage
to large investors. In this Court, the FOMC has sought to
supplement those affidavits by arguing, for the first time,
that immediat€ release of the Domestic Policy Directives
would jeopardize the Government's commercial interests by
imposing substantial additional borrowing costs on the United
States Treasury/" Respondent has sought, again for the first
25 In its brief, the Committee argues that the "announcement effect"
produced by immediate disclosure of the Directives and tolerance ranges
would cause sharper fluctuations in the interest rates on Government securities
traded by the System Open Market Account. As a result of these
fluctuations, the risk of dealing in or purchasing Government securities
would increase. To compensate for this larger risk, dealers and purchasers
would demand a higher yield on Government securities. Given the huge
amount of borrowing by the Federal Government each year, even a small
change in yield on Government securities would represent a substantial cost
to the Government. The F0~1C estimates that the cost might run as
high as $300 million annually. Brief for Petitioner 29.
364 OCTOBER TER:\I, 19i8
STEVENS, J., dissenting 443 U.S.
time, to show that there is substantial disagreement among
experts about the impact of prompt disclosure of the Directives,
and that some experts actua11y believe prompt disclosure
would have a beneficial effect. Brief for Respondent 33-46.
Under the circumstances, we do not consider whether, or
to what extent, the Domestic Policy Directives would in fact
be afforded protection in civil discovery. That determination
must await the development of a proper record. If the District
Court on remand concludes that the Directives would be
afforded protection. then it should also consider ,vhether the
operative portions of the Domestic Policy Directives 20 can
feasibly be segregated from the purely descriptive materials
therein, and the latter made subject to disclosure or publication
without delay. See EPA v. Mink, 410 U. S., at 91.
The judgment of the Court of Appeals is therefore vacated,
and the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
MR. JvsTICE STEVENS, with whom MR. J'L"STICE STEWART*
joins, dissenting.
The practical question in this case is whether the Federal
Reserve System's monthly changes in monetary policy should
be made available immediately to the general public or should
be filtered into the market through a handful of sophisticated
representatives of large commercial banks and investment
firms. The legal question is whether the statutory requirement
that statements describing such policy changes be published
"currently" means what it says.
On the practical level, it seems to me that the operation of
an "open" market committee should be open to all~not just
26 See nn. 5 and 6, supra.
*~fa. J.usTICE STEWART joins this dissenting opinion insofar as it expresses
,·iews concerning the "legal question" presented.
FEDERAL OPEN MARKET COMMITTEE v. MERRILL 365
340 STEVENS, J., dissenting
to a selected few.1 On the legal level, I am satisfied that the
District Court and the Court of Appeals correctly read the
plain language of the Freedom of Information Act.
The FOIA, 5 U. S. C. § 552 (a)(l), provides that every
"agency shall separately state and currently publish in the
Federal Register for the guidance of the public ... statements
of general policy ... formulated and adopted by the agency."
It is agreed that the Federal Open Market Committee is an
agency within the meaning of the Act, and both the District
Court and the Court of Appeals concluded that the monthly
monetary policy directives are "statements of general policy."
This Court does not disagree with that conclusion. It is plain
therefore that the statute imposes a mandatory requirement
of "current" publication.
In my opinion that requirement is not satisfied by withholding
publication "temporarily"-i. e., until the policy directives
become obsolete. The same principle of construction
should apply to monthly policy statements as to annual policy
statements. They should be made public while they are
effective.
Although the Court recognizes that these policy directives
may not be permanently withheld from public view without
violating the Act, it nonetheless concludes that their tempo-
1 As Professor Milton Friedman of the University of Chicago stated:
"May I say also that I have long been in favor of the immediate release of
the records of policy actions of the FOMC. I have recommended repeatedly
in testimony to Congress that the FOMC meetings be held on a
Friday so that the record of policy actions can be written ... and then
released not later than Sunday night so that no business days pass without
this record being available." Hearings on H. R. 9465 and 9589 before the
Subcommittee on Domestic Monetary Policy of the House Committee on
Banking, Finance and Urban Affairs, 95th Cong., 1st Sess., 202 (1977).
These views also reflect those of Sherman Maisel, a former member of
the Federal Resenre Board, who has written in this context that "[m]ost
experts on markets ... believe that the better the information, the better
the market." S. Maisel, Managing the Dollar 175 (1973).
366 OCTOBER TERM, 1978
STEVENS, J., dissenting 443 U.S.
rary suppression is warranted by one of the statutory exemptions
to the Act. I find this conclusion incomprehensible.
In the first place, nothing in any of the nine exemptions to
the Act has any bearing on the present situation.2 But more
2 The Court relies on Exemption 5, but I find its analysis unpersuasive.
The Court admirably recognizes the danger of allowing every conceivable
discovery privilege to be read into Exemption 5. See ante, at 354-355.
It proposes, therefore, that only those privileges that are recognized in the
legislative history of FOIA should be incorporated in the Exemption. To
the extent, however, that every reference in the subcommittee hearings to
the danger of disclo:,ing some type of governmental information suffices
under this test-virtually every agency appeared before Congress with a
list of such "dangers"-the Exemption would render the Act meaningless.
On the other hand, if the Court's test is designed to limit Exemption 5 to
those references in the legislative history that clearly bear on Congress'
final understanding of the Act, I sec no justification for the Court's recognition
of a vague "commercial information" component of that Exemption.
First, the passage in the House Report that the Court relies on, which
refers to "information which [an agency] has received or generated before
it completes the process of awarding a contract," H. R. Rep. No. 1497,
89th Cong., 2d Sess., 10 (1966), is rather clearly directed both at a different
governmental activity (i. e., procurement of goods or services by the
Government acting as commercial buyer) and at a different stage in the
course of that activity (i. e., "before it completes [its] process") than is
involved in this case. Here, the agency is engaged in a clearly governmental
activity-the regulation of financial markets-and has already
settled upon its final position and has acted upon it. Moreover, the
absence in the Senate Report of even this thin reed to support the Court's
analysis is significant in light of our recognition that that Report, rather
than the House Report, is the most accurate reflection of the congressional
will with respect to FOIA. Department of Air Force v. Rose,
425 U. S. 352, 363-367. Finally, the fact that Congress did include a
"commercial information" exemption in the Act, albeit one that clearly
does not apply in this case-Exemption 4-should persuasively counsel
against our adopting a novel and strained interpretation of another exemption
to encompass such information. This is particularly so in this case in
view of the fact that the very agency involved here unsuccessfully requested
that Congress amend the proposed Exemption 4 to provide protection
for the policy directives involved in this case. Hearings on H. R.
5012, etc., before a Subcommittee of the House Committee on GovernFEDERAL
OPEN MARKET COMMITTEE v. MERRILL 367
340 STEVENS, J., dissenting
fundamentally, the Court's temporary exemption is inconsistent
with the structure of the Act. Under FOIA, all information
must be released, in the specified manner-i. e., in this
case, "currently"-unless it fits into one of nine categories.
As to material in those categories, the Act simply "does not
apply." 5 U. S. C. § 552 (b) (emphasis added). Between
"current" release and total exemption, therefore, the statute
establishes no middle ground. Accordingly, I cannot agree
with the Court's recognition of a third alternative for "exempt"
material to which the Act nonetheless applies-albeit on a
delayed basis. If there is to be a new category subject to full
disclosure but only after a "slight delay," I believe it should be
created by Congress rather than the Court.
The Court's nev>'ly created category will impose substantial
litigation costs and burdens on any requesting party seeking
to overcome an agency's objection to immediate disclosure.
For henceforth that party must prove that compliance with
the statute's disclosure mandate would not "significantly harm
the Government's monetary functions or commercial interests."
Ante, at 363. The imposition of such an obstacle to
prompt disclosure is inconsistent with the overriding statutory
policy of giving the ordinary citizen unfettered access to
information about how his Government operates.3
I respectfully dissent.
ment Operations, 89th Cong., 1st Sess., 51, 55, 228, 229 (1965). Having
failed to provide such protection in Exemption 4, which so clearly relates
to commercial information, Congress wiH no doubt be surprised to find
that the Court has read that protection into Exemption 5.
3 E. g., Department of Air Force v. Rose, supra, at 361; EPA v. Mink,
410 U. S. 73, 79-80.
368 OCTOBER TERM, 1978
Syllabus 443 U.S.
GANNETT CO., INC. v. DEPASQUALE, COUNTY COURT
JUDGE OF SENECA COUNTY, N. Y., ET AL.
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK
No. 77-1301. Argued November 7, 1978-Decided July 2, 1979
At a pretrial hearing on a motion to suppress allegedly involuntary confessions
and certain physical evidence, respondents Greathouse and
Jones, who were defendants in a state prosecution for second-degree
murder, robbery, and grand larceny, requested that the public and the
press be excluded from the hearing, arguing that the unabated buildup
of adverse publicity had jeopardized their ability to receive a fair trial.
The District Attorney did not oppose the motion and a reporter employed
by petitioner, whose newspapers had given extensive coverage of
the crime through the defendants' indictment and arraignment, made no
objection at the time of the closure motion though she was present in
the courtroom. Respondent trial judge granted the motion, and, in
response to the reporter's letter on the next day asserting a right to
cover the hearing and requesting access to the transcript, stated that
the suppression hearing had concluded and that any decision on immediate
release of the transcript had been reserved. Petitioner then
moved to have the closure order set aside but the trial judge, after a
hearing, refused to vacate the order or grant petitioner immediate access
to the transcript, ruling that the interest of the press and the public
was outweighed by the defendants' right to a fair trial. Petitioner
immediately commenced a proceeding in the nature of prohibition and
mandamus in the New York Supreme Court, Appellate Division, challenging
the trial court's orders on First, Sixth, and Fourteenth Amendment
grounds. The Appellate Division vacated the orders, holding that
they transgressed the public's vital interest in open judicial proceedings
and further constituted an unlawful prior restraint in violation of
the First and Fourteenth Amendments. The New York Court of Appeals,
although holding that the case was technically moot because
shortly before entry of the Appellate Division's judgment, the defendants
had pleaded guilty to lesser included offenses and a transcript of
the suppression hearing was made available to petitioner, nevertheless
retained jurisdiction in view of the importance of the issues and upheld
the exclusion of the press and the public from the pretrial proceeding.
Held:
1. The controversy is not moot. This Court's jurisdiction is not de368
GANNEIT CO. v. DEPASQUALE
Syllabus
369
feated "simply because the order attacked has expired, if the underlying
dispute between the parties is one 'capable of repetition, yet
evading review.'" Nebraska Press Assn. v. Stuart, 427 U. S. 539, 546.
Here, the order closing the pretrial hearing is too short in its duration
to permit full review, and it is reasonably to be expected that petitioner
will be subjected to similar closure orders in the future. Pp. 377-378.
2. The Constitution does not give petitioner an affirmative right of
access to the prrtrial proceeding, all the participants in the litigation
having agreed that it should be dosed to protect the fair-trial rights of
the defendants. Pp. 378--394.
(a) To safeguard the due process rights of the accused, a trial judge
has an affirmative constitutional duty to minimize the effects of prejudicial
pretrial publicity, and he may take protective measures even when
they are not strictly and inescapably necessary. Publicity concerning
pretrial suppression hearings poses special risks of unfairness because it
may influence public opinion against a defendant and inform potential
jurors of inculpatory information wholly inadmissible at the actual
trial. Pp. 378--379.
(b) The Sixth Amendment's guarantee of a public trial is for the
benefit of the defendant alone. The Constitution nowhere mentions any
right of accrss to a criminal trial on the part of the public. Cf. In re
Oliver, 333 U.S. 257; Estes v. Texas. 381 U.S. 532. While there is a
strong societal interest in public trials, nevertheless members of the
public do not have an enforceable right to a public trial that can be
asserted independently of the parties in the litigation. The adversary
system of criminal justice is premised upon the proposition that the
public interest is fully protected by the participants in the litigation.
Pp. 379-384.
(c) The history of the Sixth Amendment's public-trial guarantee
demonstrates no more than the existence of a common-law rule of open
civil and criminal proceedings, not a constitutional right of members of
the general public to attend a criminal trial. Even if the Sixth and
Fourteenth Amendments could properly be viewed as embodying the
common-law right of the public to attend criminal trials, there is no
persuasive evidence that the public had any right at common law to
attend pretrial proceedings. To the contrary, by the time of the adoption
of the Constitution, public trials were clearly associated with the
protection of the defendant, and pretrial proceedings, precisely because
of the same concern for a fair trial, were never oharacterized by the Rllme
degree of openness as were actual trials. Pp. 384-391.
(d) Even assuming, arguendo, that the First and Fourteenth Amendments
may guarantee a right to members of the press and the public
370 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
to attend criminal trials in some situations, this putative right was given
all appropriate deference by the state nisi prius court in the present
case. Even though none of the spectators present in the courtroom,
including petitioner's reporter, objected when t-he defendants made the
closure motion, petitioner's counsel was given an opportunity to be
heard, and the trial court thneafter concluded that the defendants'
right to a fair trial outweighed the "constitutional rights of the press
and the public." Furthermore, any denial of access was only temporary;
once the danger of prejudice had dissipated, a transcript of the
suppression hearing was made available. Thus, any First and Fourteenth
Amendment right of petitie,ner to attend criminal trials was not
violated. Pp. 391-393.
43 N. Y. 2d 370. 372 N. E. 2d 544. affirmed.
Sn::wART, J., delivered the opinion of the Court, in which BuRGER, C. J.,
and PowELL, REHNQUIST, and STEVENS, JJ., joined. BURGER, C. J., post,
p. 394, PowELL, J., post, p. 397, and REHNQUIST, J., post, p. 403, filed
concurring opinions. BLACKMUN, J., filed an opinion concurring in part
and dissenting in part, in which BRENNAN, WHITE, and MARSHALL, JJ.,
joined, post, p. 406.
Robert C. Bernius argued the cause for petitioner. With
him on the briefs was John Stuart Smith.
Bernard Kobroff argued the cause and filed a brief for
respondents.*
MR. JUSTICE STEWART delivered the opinion of the Court.
The question presented in this case is whether members
of the public have an independent constitutional right to
insist upon access to a pretrial judicial proceeding, even though
*Briefs of amici curiae urging reversal were filed by David Rudenstine,
Bruce J. Ennis, and Joel M. Gora for the American Civil Liberties Union
ct al.; by Arthur B. Hanson, Frank M. Northam, and Richard M.
Schmidt, Jr., for the American Newspaper Publishers Association et al.;
and by Anthony F. Essaye for the Deadline Club, the New York City
Chapter of the Society of Professional Journalists, Sigma Delta Chi, et al.
Briefs of amici curiae were filed by E. Barrett Prettyman, Jr., and
Erwin Krnsnow for the Reporters Committee for Freedom of the Press
et al.; and by Floyd Abrams for New York Times Co.
GANNETT CO. v. DEPASQUALE 371
368 Opinion of the Court
the accused, the prosecutor, and the trial judge all have agreed
to the closure of that proceeding in order to assure a fair trial.
I
Wayne Clapp, aged 42 and residing at Henrietta, a Rochester,
N. Y., suburb, disappeared in July 1976. He was last
seen on July 16 when, with two male companions, he went
out on his boat to fish in Seneca Lake, about 40 miles from
Rochester. The two companions returned in the boat the
same day and drove away in Clapp's pickup truck. Clapp
was not with them. When he failed to return home by
July 19, his family reported his absence to the police. An
examination of the boat, laced with bulletholes, seemed to
indicate that Clapp had met a violent death aboard it. Police
then began an intensive search for the two men. They
also began lake-dragging operations in an attempt to locate
Clapp's body.
The petitioner, Gannett Co., Inc., publishes two Rochester
newspapers, the morning Democrat & Chronicle and the evening
Times-Union.1 On July 20, each paper carried its first
1 The Democrat & Chronicle and the Times-Union are published in
Rochester, N. Y. Rochester, in Monroe County, is approximately 40 miles
from the Seneca County line. The circulation of the newspapers is
primarily in Monroe County. There are some subscribers, however, in
Seneca County. In 1976, when this case arose, the Democrat & Chronicle
had a Seneca County daily circulation of 1,022, giving it a 9.6% share of
the market in that county, and a Sunday circulation of 1,532, for a 14.3%
share of the market. The Times-Union published only a daily edition and
had but one subscriber in Seneca County. American Newspaper Markets,
Inc., Circulation '77 / '78, pp. 522, 541. The Bureau of the Census estimated
Seneca County's 1976 population at 34,000. U. S. Department of
Commerce, Bureau of the Census, Current Population Reports, Series
P-26, No. 76-32, Population Estimates 3 (Aug. 1977).
The petitioner in 1976 also owned a Rochester, N. Y., television station.
And there were other newspapers in Seneca County at that time. See
Circulation '77 /78, supra, at 522. The record in this case, however, contains
no evidence concerning newspaper coverage of Clapp's disappearance
372 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
story about Clapp's disappearance. Each reported the few
details that were then known and stated that the police were
theorizing that Clapp had been shot on his boat and his body
dumped overboard. Each stated that the body was missing.
The Times-Union mentioned the names of respondents Greathouse
and Jones and said that Greathouse "was identified as
one of the two companions who accompanied Clapp Friday"
on the boat; said that the two were aged 16 and 21, respectively;
and noted that the police were seeking the two men
and Greathouse's wife, also 16. Accompanying the evening
story was a 1959 photograph of Clapp. The report also contained
an appeal from the state police for assistance.
Michigan police apprehended Greathouse, Jones, and the
woman on July 21. This came about when an interstat£
bulletin describing Clapp's truck led to their discovery in
Jackson County, Mich., by police who observed the truck
parked at a local mot£!. The petitioner's two Rochester
papers on July 22 reported the details of the capture. The
stories recounted how the Michigan police, after having arrest£
d Jones in a park, used a helicopt£r and dogs and tracked
down Greathouse and the ·woman in some woods. They recited
that Clapp's truck was located near the park.
The stories also stated that Seneca County police theorized
that Clapp wa.s shot with his own pistol, robbed, and his body
thrown into Seneca Lake. The articles provided background
on Clapp's life, sketched the events surrounding his disappearance,
and said that 1-.rew York had issued warrants for the
arrest of the three persons. One of the articles reported that
the Seneca County District Attorney would seek to extradite
the suspects and would attempt to carry through with a
homicide prosecution even if Clapp's body were not found.
The paper also quoted the prosecutor as stating, however, that
and the subsequent prosecution of respondents Greathouse and Jones
other than that which appeared in the Democrat & Chronicle and the
Times-Union.
GANNETT CO. v. DEPASQUALE 373
368 Opinion of the Court
the evidence was still developing and "the case could change."
The other story noted that Greathouse and Jones were from
Texas and South Carolina, respectively.
Both papers carried stories on July 23. These revealed that
Jones, the adult, had waived extradition and that New York
police had traveled to Michigan and were questioning the suspects.
The articles referred to police speculation that extradition
of Greathouse and the woman might involve "legalities"
because they ,vere only 16 and considered juveniles in
Michigan. The morning story provided details of an interview
with the landlady from whom the suspects had rented a
room while staying in Seneca County at the time Clapp disappeared.
It also noted that Greathouse, according to state
police, was on probation in San Antonio, Tex., but that the
police did not know the details of his criminal record.
The Democrat & Chronicle carried another story on the
morning of July 24. It stated that Greathouse had led the
Michigan police to the spot where he had buried a .357 magnum
revolver belonging to Clapp and that the gun was being
returned to New York with the three suspects. It also stated
that the police had found ammunition at the motel where
Greathouse and the woman were believed to have stayed
before they were arrest€d. The story repeated the basic facts
known about the disappearance of Clapp and the capture of
the three suspects in Michigan. It stated that New York
police continued to search Seneca Lake for Clapp's body.
On July 25, the Democrat & Chronicle reported that Greathouse
and Jones had been arraigned before a Seneca County
Magistrate on second-degree murder charges shortly after their
arrival from Michigan; that they and the woman also had
been arraigned on charges of second-degree grand larceny;
that the three had been committed to the Seneca County jail;
that all three had "appeared calm" during the court session;
and that the Magistrate had read <lepositions signed by three
witnesses, one of whom testified to having heard "five or six
374 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
shots" from the lake on the day of the disappearance, just
before seeing Clapp's boat "veer sharply" in the water.
Greathouse, Jones, and the woman were indicted by a
Seneca County grand jury on August 2. The two men were
charged, in several counts, with second-degree murder, robbery,
and grand larceny. The woman was indicted on one
count of grand larceny. Both the Democrat & Chronicle and
the Times-Union on August 3 reported the filing of the indictments.
Each story stated that the murder charges specified
that the two men had shot Clapp with his own gun, had
weighted his body with anchors and tossed it into the lake,
and then had made off with Clapp's credit card, gun, and
truck. Each reported that the defendants were held without
bail, and each again provided background material with details
of Clapp's disappearance. The fact that Clapp's body
sti11 had not been recovered was mentioned. One report noted
that, according to the prosecutor, if the body were not recovered
prior to trial, "it will be the first such trial in New York
State history." Each paper on that day also carried a brief
notice that a memorial service for Clapp would be held that
evening in Henrietta. These notices repeated that Greathouse
and Jones had been charged with Clapp's murder and
that his body had not been recovered.
On August 6, each paper carried a story reporting the details
of the arraignments of Greathouse and Jones the day before.
The papers stated that both men had pleaded not guilty
to all charges. Once again, each story repeated the basic facts
of the accusations against the men and noted that the woman
was arraigned on a larceny charge. The stories noted that
defense attorneys had been given 90 days in which to file
pretrial motions.
During this 90-day period, Greathouse and Jones moved to
suppress statements made to the police. The ground they
asserted was that those statements had been given involunGANNEIT
CO. v. DEPASQUALE 375
368 Opinion of the Court
tarily.2 They also sought to suppress physical evidence seized
as fruits of the allegedly involuntary confessions; the primary
physical evidence they sought to suppress was the gun to
which, as petitioner's newspaper had reported, Greathouse had
led the Michigan police.
The motions to suppress came on before Judge DePasquale
on November 4.8 At this hearing, defense attorneys argued
that the unabated buildup of adverse publicity had jeopardized
the ability of the defendants to receive a fair trial. They
thus requested that the public and the press be excluded from
the hearing. The District Attorney did not oppose the motion.
Although Carol Ritter, a reporter employed by the petitioner,
was present in the courtroom, no objection was made at the
time of the closure motion. The trial judge granted the
motion.
The next day, however, Ritter wrote a letter to the trial
judge asserting a "right to cover this hearing," and requesting
that "we ... be given access to the transcript." The judge responded
later the same day. He stated that the suppression
hearing had concluded and that any decision on immediate
release of the transcript had been reserved. The petitioner
then moved the court to set aside its exclusionary order.
2 Under N. Y. Crim. Proc. Law §§ 710.40 and 255.20 (McKinney Supp.
1978), a. defendant was required to file in advance of trial any motion
to suppress evidence. The statutes permitted a defendant to make such
a motion for the first time during trial only when he did not have a
reasonable opportunity to do so prior to trial, or when the State failed to
provide notice before trial that it would seek to introduce a confession of
the defendant. §§ 710.30 and 710.40.2.
8 The hearing on the motion of defendants Greathouse and Jones to
suppress their confessions as involuntary was held before trial in accordance
with the decision in People v. Huntley, 15 N. Y. 2d 72, 204 N. E. 2d
179 (1965). In Huntley, the New York Court of Appeals ruled that the
separate inquiry into the voluntariness of a confession, required by this
Court's decision in Jackson v. Denno, 378 U. S. 368 (1964), was to be
made in a preliminary hearing. 15 N. Y. 2d, at 78, 204 N. E. 2d, at 183.
376 OCTOBER TER},11, 1978
Opinion of the Court 443 U.S.
The trial judge scheduled a hearing on this motion for
November 16 after allowing the parties to file briefs. At this
proceeding, the trial judge stated that, in his view, the press
had a constitutional right of access although he deemed it
"unfortunate" that no representative of the petitioner had
objected at the time of the closure motion. Despite his acceptance
of the existence of this right, however, the judge
emphasized that it had to be balanced against the constitutional
right of the defendants to a fair trial. After finding on
the record that an open suppression hearing would pose a
"reasonable probability of prejudice to these defendants," the
judge ruled that the interest of the press and the public was
outweighed in this case by the defendants' right to a fair trial.
The judge thus refused to vacate his exclusion order or grant
the petitioner immediate access to a transcript of the pretrial
hearing.
The following day, an original proceeding in the nature of
prohibition and mandamus, challenging the closure orders on
First, Sixth, and Fourteenth Amendment grounds, was commenced
by the petitioner in the Supreme Court of the State
of New York, Appellate Division, Fourth Department. On
December 17, 1976, that court held that the exclusionary orders
transgressed the public's vital interest in open judicial
proceedings and further constituted an unlawful prior restraint
in violation of the First and Fourteenth Amendments.
It accordingly vacated the trial court's orders. 55 App. Div.
2d 107, 389 N. Y. S. 2d 719 (1976).
On appeal, the New York Court of Appeals held that the
case was technically moot 4 but, because of the critical importance
of the issues involved, retained jurisdiction and
reached the merits. The court noted that under state law,
4 Shortly before the entry of judgment by the Appellate Division, both
defendants had pleaded guilty to lesser included offenses in satisfaction
of the charges against them. Immediately thereafter, a transcript of the
suppression hearing was made available to the petitioner.
GANNETT CO. v. DEPASQUALE 377
368 Opinion of the Court
" [ c J riminal trials are presumptively open to the public,
including the press," but held that this presumption was overcome
in this case because of the danger posed to the defendants'
ability to receive a fair trial. Thus, the Court of Appeals
upheld the exclusion of the press and the public from
the pretrial proceeding. 43 N. Y. 2d 370, 372 N. E. 2d 544
( 1977). Because of the significance of the constitutional
questions involved, we granted certiorari. 435 U. S. 1006.
II
We consider, first, the suggestion of mootness, noted and
rejected by the New York Court of Appeals. 43 N. Y. 2d,
at 376, 372 N. E. 2d, at 547. We conclude that this aspect
of the case is governed by Nebraska Press Assn. v. Stuart,
427 U. S. 539, 546-547, and that the controversy is not moot.
The petitioner, of course, has obtained access to the transcript
of the suppression hearing. But this Court's jurisdiction
is not defeated, id., at 546, "simply because the order
attacked has expired, if the underlying dispute between the
parties is one 'capable of repetition, yet evading review.'
Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515
( 1911) ." To meet that test, two conditions must be satisfied:
"(l) the challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration, and (2) there
was a reasonable expectation that the same complaining
party would be subjected to the same action again." Weinstein
v. Bradford, 423 U. S. 147, 149.
Those conditions have been met. The order closing a pretrial
hearing is too short in its duration to permit full review.
And to the extent the order has the effect of denying access to
the transcript, termination of the underlying criminal proceeding
by a guilty plea, as in this case, or by a jury verdict, nearly
always will lead to a lifting of the order before appellate
review is completed. The order is "by nature short-lived."
Nebraska Press, supra, at 547. Further, it is reasonably to
378 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
be expected that the petitioner, as publisher of two New York
newspapers, will be subjected to similar closure orders entered
by New York courts in compliance with the judgment of that
State's Court of Appeals. We therefore turn to the merits.
III
This Court has long recognized that adverse publicity can
endanger the ability of a defendant to receive a fair trial.
E.g., Sheppard v. Maxwell, 384 U.S. 333; Irvin v. Dowd, 366
U.S. 717; Marshall v. United States, 360 U.S. 310. Cf. Estes
v. Texas, 381 U. S. 532. To safeguard the due process rights
of the accused, a trial judge has an affirmative constitutional
duty to minimize the effects of prejudicial pretrial publicity.
Sheppard v. Maxwell, supra. And because of the Constitution's
pervasive concern for these due process rights, a trial
judge may surely take protective measures even when they
are not strictly and inescapably necessary.
Publicity concerning pretrial suppression hearings such as
the one involved in the present case poses special risks of
unfairness. The whole purpose of such hearings is to screen
out unreliable or illegally obtained evidence and insure that
this evidence does not become known to the jury. Cf. Jackson
v. Denno, 378 U. S. 368. Publicity concerning the proceedings
at a pretrial hearing, however, could influence public opinion
against a defendant and inform potential jurors of inculpatory
information wholly inadmissible at the actual trial.
The danger of publicity concerning pretrial suppression
hearings is particularly acute, because it may be difficult to
measure with any degree of certainty the effects of such
publicity on the fairness of the trial. After the commencement
of the trial itself, inadmissible prejudicial information
about a defendant can be kept from a jury by a variety of
means.5 When such information is publicized during a pre-
5 In addition to excluding inadmissible evidence, a trial judge may order
sequestration of the jury or take any of a variety of protective measures.
GANNETT CO. v. DEPASQUALE 379
368 Opinion of the Court
trial proceeding, however, it may never be altogether kept
from potential jurors. Closure of pretrial proceedings is of ten
one of the most effective methods that a trial judge can
employ to attempt to insure that the fairness of a trial will
not be jeopardized by the dissemination of such information
throughout the community before the trial itself has . even
begun. Cf. Rideau v. Louisiana, 373 U. S. 723.6
IV
A
The Sixth Amendment, applicable to the States through the
Fourteenth, surrounds a criminal trial with guarantees such
as the rights to notice, confrontation, and compulsory process
that have as their overriding purpose the protection of the
accused from prosecutoria.I and judicial abuses.' Among the
guarantees that the Amendment provides to a person charged
with the commission of a criminal offense, and to him alone,
is the "right to a speedy and public trial, by an impartial
jury." The Constitution nowhere mentions any right of
access to a criminal trial on the part of the public; its guar-
See Nebrru;ka Press Assn. v. Stuart, 427 U.S. 539, 562-565; Sheppard v.
Maxwell, 384 U. S. 333, 358-362.
6 All of this does not mean, of course, that failure to close a pretrial
hearing, or take other protective measures to minimize the impact of
prejudicial publicity, will warrant the extreme remedy of reversal of a conviction.
But it is precisely because reversal is such an extreme remedy,
and is employed in only the rarest cases, that our criminal justice system
permits, and even encourages, t-rial judges to be overcautious in ensuring
that a defendant will receive a fair trial.
7 The Sixth Amendment provides:
"In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defence."
380 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
antee, like the others enumerated, is personal to the accused.
See Faretta v. California, 422 U. S. 806, 848 (" [T]he specific
guarantees of the Sixth Amendment are personal to the
accused") (BLACKMUN, J., dissenting).
Our cases have uniformly recognized the public-trial guarantee
as one created for the benefit of the defendant. In In
re Oliver, 333 U. S. 257, this Court held that the secrecy of
a criminal contempt trial violated the accused's right to a
public trial under the Fourteenth Amendment. The right to
a public trial, the Court stated, "has always been recognized
as a safeguard against any attempt to employ our courts as
instruments of persecution. The knowledge that every criminal
trial is subject to contemporaneous review in the forum
of public opinion is an effective restraint on possible abuse of
judicial power." Id., at 270. In an explanatory footnote, the
Court stated that the public-trial guarantee
" ... 'is for the protection of all persons accused of
crime-the innocently accused, that they may not become
the victim of an unjust prosecution, as well as the guilty,
that they may be awarded a fair trial-that one rule [as
to public trials] must be observed and applied to all.'
Frequently quoted is the statement in [1] Cooley, Constitutional
Limitations (8th ed. 1927) at 647: 'The requirement
of a public trial is for the benefit of the accused;
that the public may see he is fairly dealt with and not
unjustly condemned, and that the presence of interested
spectators may keep his triers keenly alive to a sense of
their responsibility and to the importance of their functions
.... '" Id., at 270 n. 25.8
Similarly, in Estes v. Texas, supra, the Court held that a
defendant was deprived of his right to due process of law
under the Fourteenth Amendment by the televising and
8 The Court also recognized that while the right to a public trial is
guaranteed to an accused, publicity also provides various benefits to the
public. 333 U. S., at 270 n. 24.
GANNETT CO. v. DEPASQUALE 381
368 Opinion of the Court
broadcasting of his trial. In rejecting the claim that the
media representatives had a constitutional right to televise the
trial, the Court stated that "[t]he purpose of the requirement
of a public trial was to guarantee that the accused would be
fairly dealt with and not unjustly condemned." 381 U. S., at
538-539. See also id., at 588 ("Thus the right of 'public trial'
is not one belonging to the public, but one belonging to the
accused, and inhering in the institutional process by which
justice is administered") (Harlan, J., concurring); id., at 583
(" [TJhc public trial provision of the Sixth Amendment is a
'guarantee to an accused' ... [and] a necessary component
of an accused's right to a fair trial ... ") (Warren, C. J.,
concurring).
Thus, both the Oliver and Estes cases recognized that the
constitutional guarantee of a public trial is for the benefit of
the defendant. There is not the slightest suggestion in either
case that there is any correlative right in members of the
public to insist upon a public trial.9
9 Numerous commentators have also recognized that only a defendant
has a right to a public trial undrr the Sixth Amendment. E. g., Radin,
The Right to a Public Trial, 6 Temple L. Q. 381, 392 (1932) (a public
right to a public trial "cannot be derived from the Constitution because
the Constitution certainly does not mention a public trial as the privilege
of the public, but expressly as that of the accused"); Boldt, Should Canon
35 Be Amended?, 41 A. B. A. J. 55, 56 (1955) ("[T]he guarantee of
public trial is for the benefit of persons charged with crime . . . . It is
significant that the Constitution does not say that the public has the right
to 'enjoy' or even attend trials. There is nothing in the constitutional
language indicating that any individual other than the accused in a criminal
trial ... [has] either a right to attend the trial or to publicity emanating
from the trial"); Note, The Right to Attend Criminal Hearings, 78
Colum. L. Rev. 1308, 1321 (1978) (since the Sixth Amendment confers a
right to a public trial to the accused, "to elaborate a parallel and possibly
adverse public right of access from the public trial guarantee clause strains
even flexible constitutional language beyond its proper bounds"); Note,
The Right to a Public Trial in Criminal Cases, 41 N. Y. U. L. Rev. 1138,
1156 (1966) ("Despite the importance of the public's interest, however, it
does not appear that a public right is 'so rooted in the traditions and
382 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
B
While the Sixth Amendment guarantees to a defendant in
a criminal case the right to a public trial, it does not guarantee
the right to compel a private trial. "The ability to waive a
constitutional right does not ordinarily carry with it the right
to insist upon the opposite of that right." Singer v. United
States, 380 U.S. 24, 34-35.10 But the issue here is not whether
the defendant can compel a private trial.11 Rather, the issue
conscience of our people as to be ranked as fundamental,' ... particularly
in view of the uncertain status of this right in the majority of the state
courts").
See also Powell, The Right to a Fair Trial, 51 A. B. A. J. 534, 538
(1965) ("We must bear in mind that the primary purpose of a public
trial and of the media's right as a part of the public to attend and
report what occurs there is to protect the accused"); 1 T. Cooley, Constitutional
Limitations 647 (8th ed. 1927) ("The requirement of a public
trial is for the benefit of the accused ... ").
It appears that before today, only one court, state or federal, has ever
held that the Sixth and Fourteenth Amendments confer upon members of
the public a right of access to a criminal trial. United States v. Cianfrani,
573 F. 2d 835 (CA3 1978). The Cianfrani case has been criticized for its
departure from the plain meaning of the Sixth Amendment. See Note,
78 Colum. L. Rev., at 1321-1322.
10 In Faretta v. Ca/,ifornia, 422 U. S. 806, by contrast, the Court held
that the Sixth and Fourteenth Amendments guarantee that an accused
has a right to proceed without counsel in a criminal case when he
voluntarily and intelligently elects to do so. In reaching t.his result, the
Court relied on the language and structure of the Sixth Amendment which
grants to the accused the right to make a defense. As part of this right to
make a defense, the Amendment speaks of the "assistance" of counsel, thus
contemplating a norm in which the accused, and not a lawyer, is master
of his own defense. Id., at 819-820.
11 The question in this case is not, as the dissenting opinion repeatedly
suggests, post, at 411, 415, 418, 425, 426, whether the Sixth and Fourteenth
Amendments give a defendant the right to compel a secret trial. In this
case the defendants, the prosecutor, and the judge all agreed that closure
of the pretrial suppression hearing was necessary to protect the defendants'
right to a fair trial. Moreover, a transcript of the proceedings was made
available to the public. Thus, there is no need to decide the question
GANNETI CO. v. DEPASQUALE 383
368 Opinion of the Court
is whether members of the public have an enforceable right to
a public trial that can be asserted independently of the parties
in the litigation.
There can be no blinking the fact that there is a strong
societal interest in public trials. Openness in court proceedings
may improve the quality of testimony, induce unknown
witnesses to come forward with relevant testimony, cause all
trial participants to perform their duties more conscientiously,
and generally give the public an opportunity to observe the
judicial system. Estes v. Texas, 381 U. S., at 583 (Warren,
C. J., concurring). But there is a strong societal interest in
other constitutional guarantees extended to the accused as
well. The public, for example, has a definite and concrete interest
in seeing tha.t justice is swiftly and fairly administered.
See Barker v. Wingo, 407 U. S. 514, 519. Similarly, the public
has an interest in having a criminal case heard by a jury,
an interest distinct from the defendant's interest in being tried
by a jury of his peers. Patton v. United States, 281 U.S. 276,
312.
Recognition of an independent public interest in the enforcement
of Sixth Amendment guarantees is a far cry, however,
from the creation of a constitutional right on the part of the
public. In an adversary system of criminal justice, the public
interest in the administration of justice is protected by the
participants in the litigation. Thus, because of the great
public interest in jury trials as the preferred mode of factfinding
in criminal cases, a defendant cannot waive a jury
trial without the consent of the prosecutor and judge. Singer
v. United States, supra, at 38; Patton v. United States, supra,
at 312. But if the defendant waives his right to a jury trial,
framed by the dissenting opinion. If that question were presented, it is
clear that the defendant would have no such right. See Singer v. United
States, 380 U. S. 24, 35 ("[A]lthough a defendant can, under some circumstances,
waive his constitutional right to a public trial, he has no
absolute right to compel a private trial").
384 OCTOBER TERM, 1978
:)pinion of the Court 443U.S.
and the prosecutor and the judge consent, it could hardly be
seriously argued that a member of the public could demand a
jury trial because of the societal interest in that mode of factfinding.
Cf. Fed. Rule Crim. Proc. 23 (a) (trials to be by
jury unless waived by a defendant, but the court must approve
and the prosecution must consent to the waiver). Similarly,
while a defendant cannot convert his right to a speedy trial
into a right to compel an indefinite postponement, a member
of the general public surely has no right to prevent a continuance
in order to vindicate the public interest in the efficient
administration of justice. In short, our adversary system of
criminal justice is premised upon the proposition that the
public interest 1s fully protected by the participants in the
litigation.12
V
In arguing that members of the general public have a constitutional
right to attend a criminal trial, despite the obvious
lack of support for such a right in the structure or text of the
Sixth Amendment, the petitioner and amici rely on the history
of the public-trial guarantee. This history, however, ultimately
demonstrates no more than the existence of a commonlaw
rule of open civil and criminal proceedings.
A
Not many common-law rules have been elevated to the
status of constitutional rights. The provisions of our Consti-
12 The Court has recognized that a prosecutor "is the representative not
of an ordinary party to a controversy, but of a sovereignty whose obligation
to govern impartially is as compelling as its obligation to govern at
all; and whose interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done. As such, he is in a
peculiar and very definite sense the servant of the law .... " Berger v.
United States, 295 U. S. 78, 88. The responsibility of the prosecutor as a
representative of the public surely encompasses a duty to protect the
societal interest in an open trial. But this responsibility also requires him
to be sensitive to the due process rights of a defendant to a fair trial.
A fortiori, the trial judge has the same dual obligation.
GANNETT CO. v. DEPASQUALE 385
368 Opinion of the Court
tution do reflect an incorporation of certain few common-law
rules and a rejection of others. The common-law right to a
jury trial, for example, is explicitly embodied in the Sixth and
Seventh Amendments. The common-law rule that looked
upon jurors as interested parties who could give evidence
against a defendant 13 was explicitly rejected by the Sixth
Amendment provision that a defendant is entitled to be tried
by an "impartial jury." But the vast majority of commonlaw
rules were neither made part of the Constitution nor
explicitly rejected by it.
Our judicial duty in this case is to determine whether the
common-law rule of open proceedings was incorporated, rejected,
or left undisturbed by the Sixth Amendment. In
pursuing this inquiry, it is important to distinguish between
what the Constitution permits and what it requires. It
has never been suggested that by phrasing the public-trial
guarantee as a right of the accused, the Framers intended to
reject the common-law rule of open proceedings. There is no
question that the Sixth Amendment permits and even presumes
open trials as a norm. But the issue here is whether
the Constitution requires that a pretrial proceeding such as
this one be opened to the public, even though the participants
in the litigation agree that it should be closed to protect the
defendants' right to a fair trial.14 The history upon which the
petitioner and amici rely totally fails to demonstrate that the
Framers of the Sixth Amendment intended to create a constitutional
right in strangers to attend a pretrial proceeding,
13 Blackstone, for example, stated that it "universally obtains" that if a
juror knows of a mat.ter in issue, he may "give his evidence publicly in
court." 3 W. Blackstone, Commentaries *375.
14 Thus, it is not enough to say, in the words of the dissenting opinion,
that there is no "evidence that casting the public-trial concept in terms of
a right of the accused signaled a departure from the common-law practice,"
post, at 425, and that "there is no indication that the First Congress, in
proposing what became the Sixth Amendment, meant to depart from the
common-law practice .... " Post, at 426.
386 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
when all that they actually did was to confer upon the accused
an explicit right to demand a public trial.15 In conspicuous
contrast with some of the early state constitutions that pro-
15 An additional problem with the historical analysis of the petitioner
and amici is that it is equally applicable to civil and criminal cases and
therefore proves too much. For many centuries, both civil and criminal
trials have traditionally been open to the public. As early as 1685, Sir
John Rawles commented that open proceedings were necessary so "that
truth may be discovered in civil as well as criminal matters" (emphasis
added). Remarks upon Mr. Cornish's Trial, 11 How. St. Tr. 455, 460.
English commentators also assumed that the common-law rule was that the
public could attend civil and criminal trials without distinguishing between
the two. E. g., 2 E. Coke, Institutes of the Laws of England 103
(6th ed. 1681) ("all Causes ought to be heard ... openly in the Kings
Courts"); 3 W. Blackstone, Commentaries *372; M. Hale, The History
of the Common Law of England 343, 345 (6th ed. 1820); E. Jenks, The
Book of English Law 73-74 (6th ed. 1967).
The experience in the American Colonies was analogous. From the
beginning, the norm was open trials. Indeed, the 1677 New Jersey Constitution
provided that any person could attend a trial whether it was "civil
or criminal," Concessions and Agreements of West New Jersey (1677) ,
ch. XXIII, quoted in 1 B. Schwartz, The Bill of Rights: A Documentary
History 129 (1971) (emphasis added). Similarly, the 1682 and 1776
Pennsylvania Constitutions both provided that "all courts shall be open,"
1 Schwartz, supra, at 140, 271 ( emphasis added).
If the existence of a common-law rule were the test for whether there
is a Sixth Amendment public right to a public trial, therefore, there would
be such a right in civil as well as criminal cases. But the Sixth Amendment
does not speak in terms of civil cases at all; by its terms it is
limited to providing rights to an accused in criminal cases. In short, there
is no principled basis upon which a public right of access to judicial
proceedings can be limited to criminal cases if the scope of the right is
defined by the common law rather than the text and structure of the
Constitution.
Indeed, many of the advantages of public criminal trials are equally
applicable in the civil trial context. While the operation of the judicial
process in civil cases i~ often of interest only to the parties in the litigation,
this is not always the case. E. g., Dred Scott v. Sandford, 19 How. 393;
Plessy v. Ferguson, 163 U. S. 537; Brown v. Board of Education, 347
U. S. 483; University of California Regents v. Bakke, 438 U. S. 265.
Thus, in some civil cases the public interest in access, and the salutary
GANNETT CO. v. DEPASQUALE 387
368 Opinion of the Court
vided for a public right to open civil and criminal trials,16 the
Sixth Amendment confers the right to a public trial only upon
a defendant and only in a criminal case.
B
But even if the Sixth and Fourteenth Amendments could
properly be viewed as embodying the common-law right of the
public to a.ttend criminal trials, it would not necessarily follow
that the petitioner would have a right of access under the
circumstances of this case. For there exists no persuasive
evidence that at common law members of the public had any
right to attend pretrial proceedings; indeed, there is substantial
evidence to the contrary.11 By the time of the adoption
of the Constitution, public trials were clearly associated with
the protection of the defendant.1
" And pretrial proceedings,
effect of publicity, may be as strong as, or stronger than, in most criminal
cases.
16 See n. 15, supra.
17 Although pretrial suppression hearings were unknown at common law,
other preliminary hearings were formalized by statute as early as 1554
and 1555. 1 & 2 Phil. & M., ch. 13 (1554); 2 & 3 Phil. & M., ch. 10
(1555).
18 After the abolition of the Star Chamber in 1641, defendants in crimirn1.I
cases began to acquire many of the rights that are presently embodied in
the Sixth Amendment. Thus, the accused now had the right to confront
witnesses, caJl witnesses in his own behalf, and generally the right to a fair
trial as we now know it. It was during this period that the public trial
first became identified as a right of the accused. As one commentator has
stated:
"The public trial, although it had always been the custom, acquired new
significance. It gave the individual protection against being den!ed any
of his other fundamental rights. A public trial would ma.ke it difficult for
a judge to abuse a jury or the accused. Any such abuses would cause
much public indignation. Thus, it must have seemed implicit that the
public trial was as much an essential element of a fair trial as any of the
newer conventions." Note, Legal History: Origins of the Public Trial,
35 Ind. L. J. 251,255 (1960).
It was during this period that we first find defendants demanding a
public trial. See, The Trial of John Lilburne, 4 How. St. Tr. 1270, 1273
388 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
precisely because of the same concern for a fair trial, were
never characterized by the same degree of 0penness as were
actual trials.19
(1649), in which Lllburne, on trial for treason, referred to a public trial
as "the first fundamental liberty of an Englishman." Indeed, the fact
that the Framers guaranteed to an accused the right to a public trial in the
same Amendment that contains the other fair-trial rights of an accused
also suggests that open trials were by then clearly associated with the
rights of a defendant.
19 Even with respect to trials themselves, the tradition of publicity has
not been universal. Exclusion of some members of the general public has
been upheld, for example, in cases invoh-ing violent crimes against minors.
Geise v. United States, 262 F. 2d 151 (CA9 1958). The public has also
been temporarily excluded from trials during testimony of certain witnesses.
E. g., Beauchamp v. Cahill, 297 Ky. 505, 180 S. W. 2d 423
(1944) (exclusion justified when children forced to testify to revolting
facts); State v. Callahan, 100 :\1inn. 63, 110 N. W. 342 (1907) (exclusion
justified when embarrassment could prevent effective testimony); Hogan
v. State, 191 Ark. 437, 86 S. W. 2d 931 (1935) (trial judge properly closed
trial to spectators during testimony of 10-year-old rape victim); United
States ex rel. Smallwood v. LaValle, 377 F. Supp. 1148 (EDNY), aff'd,
508 F. 2d 837 (1974). Exclusion has also been permitted when the evidence
in a case was expected to be obscene. State v. Croak, 167 La.
92, 118 So. 703 (1928). Finally, trial judges have been given broad discretion
to exclude spectators to protect order in their courtrooms. United
States ex rel. Orlando v. Fay, 350 F. 2d 967 (CA2 1965) (exclusion of
general public justified after an outbur3t in court by defendant and his
mother).
Approximately half the St.ates also have statutory provisions containing
limitations upon public trials. E. g., Ala. Code § 12-21-202 (1975)
(public can be excluded in rape cases); Ga. Code § 81-1006 (1978) (public
can be excluded where evidence is vulgar); Mass. Gen. Laws Ann.,
ch. 278, § 16A (West 1972) (general public can be excluded from all trials
of designated crimes); Minn. Stat. § 631.04 (1978) (no person under 17
who is not a party shall be present in a criminal trial); Va. Code§ 19.2-
266 (1975) ("In the trial of all criminal cases ... the court may, in its
discretion, exclude ... any persons whose presence would impair the
conduct of a fair trial . . .").
The petitioner and amici appear to argue that since exclusion of members
of the public is relatively rare, there must be a constitutional public
GANNETT CO. v. DEPASQUALE 389
368 Opinion of the Court
Under English common law, the public had no right to
attend pretrial proceedings. E. g., E. Jenks, The Book of
English Law 75 (6th ed. 1967) ("It must, of course, be
remembered, that the principle of publicity only applies to the
actual trial of a case, not necessarily to the preliminary or
prefatory stages of the proceedings . . ."); F. Maitland,
Justice and Police 129 ( 1885) (The "preliminary examination
of accused persons has gradually assumed a very judicial
form . . . . The place in which it is held is indeed no 'open
court,' the public ·can be excluded if the magistrat€ thinks that
the ends of justice will thus be best answered ... "). See also
Indictable Offences Act, 11 & 12 Viet., ch. 42, § 19 (1848) (providing
that pretrial proceedings should not be deemed an
open court and that the public could therefore be excluded);
Magistrates' Courts Act, 15 & 16 Geo. 6 & 1 Eliz. 2, ch. 55,
§ 4 (2) (1952) (same).20
right to a public trial. This argument, however, confuses the existence
of a constitutional right with the common-law tradition of open civil and
criminal proceedings. See n. 15, supra. This common-law tradition,
coupled with the explicit right of the accused to a public trial in criminal
cases, fully explains the general prevalence of open trials.
20 Similarly, the press had no privilege for the reporting of pretrial
judicial proceedings under English common law. Thus in the well-kno,vn
case of King v. Fisher, 2 Camp. 563, 170 Eng. Rep. 1253 (N. P. 1811), the
court forbade the dissemination of information about a pretrial hearing to
protect the right of the accused to receive a fair trial. In distinguishing
between the privilege accorded the reporting of trials, and the absence of
such a privilege of reporting pretrial proceedings, Lord Ellenborough
declared:
"If any thing is more important than another in the administration of
jUBtice, it is that jurymen should come to the trial of those persons on
whose guilt or innocence they are to decide, with minds pure and unprejudiced.
. . . Trials at law, fairly reported, although they may occasionally
prove injurious to individuals, have been held to be privileged. Let them
continue so privileged. . . . But these preliminary examinations have
no such privilege. Their only tendency is to prejudge those whom the
390 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
Closed pretrial proceedings have been a familiar part of the
judicial landscape in this country as well. The original New
York Field Code of Criminal Procedure published in 1850, for
example, provided that pretrial hearings should be closed to
the public "upon the request of a defendant." 21 The explanatory
report made clear that this provision was designed to
protect defendants from prejudicial pretrial publicity:
"If the examination must necessarily be public, the
consequence may be that the testimony upon the mere
preliminary examination will be spread before the community,
and a state of opinion created, which, in cases of
great public interest, will render it difficult to obtain an
unprejudiced jury. The interests of justice require that
the case of the defendant should not be prejudged, if it
can be avoided; and no one can justly complain, that
until he is put upon his trial, the dangers of this prejudgment
are obviated." 22
Indeed, eight of the States that have retained all or part of the
law still presumes to be innocent, and to poison the sources of justice."
Id., at 570-571, 170 Eng. Rep., at 1255.
See also King v. Parke, [1903] 2 K. B. 432, 438.
Restrictions of public access and reporting of pretrial proceedings did
not involve suppression hearings because such hearings did not exist in
early common law. But the rationale for the lack of a public right of
access to pretrial judicial proceedings- protection of the right of the accused
to a fair trial-is equally applicable to pretrial suppression hearings.
Indeed, the entire purpose of a pretrial suppression hearing is to ensure
that the accused will not be unfairly convicted by contaminated evidence.
21 Commissioners on Practice and Pleadings, Code of Criminal Procedure,
§ 202 (Final Report 1850).
22 /d., at 94. To protect a defendant's right to a public trial, however,
closure could be ordered only at the request of the defendant:
"To gua.rd the rights of the defendant against a secret examination, the
section provides that it shall not be conducted in private, unless at his
request." Id., at 95.
GANNEIT CO. v. DEPASQUALE 391
368 Opinion of the Court
Field Code have kept the explicit provision relating to closed
pretrial hearings. 23
For these reasons, we hold that members of the public have
no constitutional right under the Sixth and Fourteenth
Amendments to attend criminal trials.
VI
The petitioner also argues that members of the press and
the public have a right of access to the pretrial hearing by
reason of the First and Fourteenth Amendments. In Pell v.
Procunier, 417 U. S. 817, Saxbe v. Washington Post Co., 417
U. S. 843, and Houchins v. KQED, Inc., 438 U. S. 1, this
Court upheld prison regulations that denied to members of the
press access to prisons superior to that afforded to the public
generally. Some Members of the Court, however, took the
position in those cases that the First and Fourteenth Amendments
do guarantee to the public in general, or the press in
23 Ariz. Rule Crim. Proc. 9.3; Cal. Penal Code Ann. § 868 (West 1970);
Idaho Code § 19-811 (1979); Iowa Code § 761.13 (1973); Mont. Code
Ann. § 46-10--201 (1978); Nev. Rev. Stat. § 171.204 (1975); N. D. Cent.
Code § 29-07-14 (1974); Utah Code Ann. § 77-15--13 (1978). Other
States have similar provisions. E. g., Pa. Rule Crim. Proc. 323 (f)
(providing that suppression hearings shall be open "unless defendant
moves that it be held in the presence of only the defendant, counsel for
the parties, court officers and necessary witnesses"). Still other States
allow closure of pretrial hearings without statutory authorization. Nebraska
Press Assn. v. Stuart, 427 U. S., at 568.
Until a yca.r ago, the American Bar Association also endorsed the view
that presiding officers should close pretrial hearings at the request of a
defendant unless there was no "substantial likelihood" that the defendant
would be prejudiced by an open proceeding. ABA Project on Standards
for Criminal Justice, Fair Trial and Free Press § 3.1 (App. Draft 1968).
The ABA, following the "approach taken by the Supreme Court in Nebraska
Press Association v. Stuart," has now changed this standard.
ABA Project on Standards for Criminal Justice, Fair Trial and Free
Press, Standard 8--3.2, p. 16 (App. Draft 1978). The Nebraska Press
case, however, is irrelevant to the question presented here. See n. 25,
infra.
392 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
particular, a right of access that precludes their complete exclusion
in the absence of a significant governmental interest.
See Saxbe, supra, at 850 (POWELL, J., dissenting); Houchins,
supra, at 19 (STEVENS, J., dissenting). See also id., at 16
(STEWART, J., concurring).
The petitioner in this case urges us to r.arrow our rulings
in Pell, Saxbe, and Houchins at least to the extent of recognizing
a First and Fourteenth Amendment right to attend
criminal trials. 2
• We need not decide in the abstract, however,
whether there is any such constitutional right. For even
assuming, arguendo, that the First and Fourteenth Amendments
may guarantee such access in some situations, a question
we do not decide, this putative right was given aII appropriate
deference by the state nisi prius court in the present
case.
Several factors lead to the conclusion that the actions of
the trial judge here were consistent with any right of access
the petitioner may have had under the First and Fourteenth
Amendments. First, none of the spectators present in the
courtroom, including the reporter employed by the petitioner,
objected when the defendants made the closure motion. Despite
this failure to make a contemporaneous objection, counsel
for the petitioner was given an opportunity to be heard at a
proceeding where he was allowed to voice the petitioner's
objections to closure of the pretrial hearing. At this proceeding,
which took place after the filing of briefs, the trial court
balanced the "constitutional rights of the press and the
public" against the "defendants' right to a fair trial." The
trial judge concluded after making this appraisal that the
press and the public could be excluded from the suppression
hearing and could be denied immediate access to a transcript,
24 The petitioner argues that trials have traditionally been open to the
public, in contrast to prisons from which the public has been traditionally
excluded. We need not decide in this case whether this factual difference
is of any constitutional significance.
GANNETI CO. v. DEPASQUALE 393
368 Opinion of the Court
because an open proceeding would pose a "reasonable probability
of prejudice to these defendants." Thus, the trial
court found that the representatives of the press did have a
right of access of constitutional dimension, but held, under the
circumstances of this case, that this right was outweighed by
the defendants' right to a fair trial. In short, the closure
decision was based "on an assessment of the competing societal
interests involved ... rather than on any determination that
First Amendment freedoms were not implicated." Saxbe,
supra, at 860 (POWELL, J., dissenting).
Furthermore, any denial of access in this case was not absolute
but only temporary. Once the danger of prejudice had
dissipated, a transcript of the suppression hearing was made
available. The press and the public then had a full opportunity
to scrutinize the suppression hearing. Unlike the
case of an absolute ban on access, therefore, the press here
had the opportunity to inform the public of the details of the
pretrial hearing accurately and completely. Under these circumstances,
any First and Fourteenth Amendment right of
the petitioner to attend a criminal trial was not violated.25
VII
We certainly do not disparage the general desirability of
open judicial proceedings. But we are not asked here to de-
25 This Court's decision in Nebraska Press Assn. v. Stuart, supra, is
of no assistance to the petitioner in this case. The Nebraska Press
case involved a direct prior restraint imposed by a trial judge on the
members of the press, prohibiting them from disseminating information
about a criminal trial. Since "it ,has been generally, if not universally,
considered that it is the chief purpose of the [First Amendment's] guaranty
to prevent previous restraints upon publication," Near v. Minnesota
ex rel. Olson, 283 U. S. 697, 713, the Court held that the order violated
the constitutional guarantee of a free press. See also Oklahoma Publishing
Co. v. District Court, 430 U. S. 308. The exrlusion order in the present
case, by contrast, did not prevent the petitioner from publishing any
infonnation in its possession. The proper inquiry, t,herefore, is whether
the petitioner was denied any constitutional right of access.
394 OCTOBER TERM, 1978
BURGER, C. J., concurring 443 U.S.
clare whether open proceedings represent beneficial social
policy, or whether there would be a constitutional barrier to a
state law that imposed a stricter standard of closure than the
one here employed by the New York courts. Rather, we are
asked to hold that the Constitution itself gave the petitioner
an affirmative right of access to this pretrial proceeding, even
though all the participants in the litigation agreed that it
should be closed to protect the fair-trial rights of the
defendants.
For all of the reasons discussed in this opinion, we hold that
the Constitution provides no such right. Accordingly, the
judgment of the New York Court of Appeals is affirmed.
Is is so ordered.
MR. CHIEF JUSTICE BURGER, concurring.
I join the opinion of the Court, but I write separately
to emphasize my view of the nature of the proceeding involved
in today's decision. By definition, a hearing on a motion before
trial to suppress evidence is not a trial; it is a pretrial
hearing.
The Sixth Amendment tells us that " [ i] n all criminal
prosecutions, the accused shall enjoy the right to a ... public
trial." (Emphasis supplied.) It is the practice in Western
societies, and has been part of the common-law tradition for
centuries, that trials generally be public. This is an important
prophylaxis of the system of justice that constitutes the
adhesive element of our society. The public has an interest
in observing the performance not only of the litigants and the
witnesses, but also of the advocates and the presiding judge.
Similarly, if the accused testifies, there is a proper public
interest in that testimony. But interest alone does not create
a constitutional right.
At common law there was a very different presumption for
proceedings which preceded the trial. There was awareness
of the untoward effects that could result from the publication
GANNETT CO. v. DEPASQUALE 395
368 BURGER, C. J., concurring
of information before an indictment was returned or before a
person was bound over for trial. For an example we need
only consider the case of Daubney v. Cooper, 5 M. & R.
314 (K. B. 1829), which involved a suit for trespass against
a judge for forcing a person out of a courtroom. The argument
concentrated on whether a defendant was entitled
to be represented by counsel. But the following exchange on
appeal illustrates the distinction drawn between trials and
pretrial proceedings:
(Counsel) " . .. The decision in Cox v. Coleridge proceeded
on the ground that what had taken place before
the magistrates, was merely a preliminary inquiry. The
decision proceeded entirely upon that ground. The Court
pointed out the inconvenience which would result from
giving publicity to such previous inquiry."
Bayley, J. (interrupting) " . .. I believe that in that
case a distinction was taken between a preliminary
inquiry and an inquiry upon which there may be a
conviction."
(Counsel continued) " ... Lord Tenterden there says,
'This being only a preliminary inquiry and not a trial,
makes, in my mind, all the difference.'"* (Emphasis
in original.)
Parke, J. (interrupting) " ... The decision in Cox v.
Coleridge turned upon its being a case of preliminary
inquiry." Id., at 316,318.
In sum, at common law, the courts recognized that the timing
of a proceeding was likely to be critical.
When the Sixth Amendment was written, and for more than
*The full quotation was: "It [the proceeding] is only a preliminary inquiry,
whether there be sufficient ground to commit the prisoner for trial.
The proceeding before the grand jury is precisely of the same nature, and
it would be difficult, if the right exists in the present case, to deny it in
that. This being only a preliminary inquiry, and not a trial, makes, in my
mind, all the difference." Cox v. Coleridge, 1 B. & C. 37, 49-50, 107 Eng.
Rep. 15, 19-20 (1822).
396 OCTOBER TERM, 1978
BURGER, C. J., concurring 443 U.S.
a century after that, no one could have conceived that the
exclusionary rule and pretrial motions to suppress evidence
would be part of our criminal jurisprudence. The authors of
the Constitution, imaginative, farsighted, and perceptive as
they were, could not conceivably have anticipated the paradox
inherent in a judge-made rule of evidence that excludes undoubted
truth from the truthfinding processes of the adversary
system. Nevertheless, as of now, we are confronted not
with a legal theory but with the reality of the unique strictures
of the exclusionary rule, and they must be taken into
account in this setting. To make public the evidence developed
in a motion to suppress evidence, cf. Brewer v.
Williams, 430 U.S. 387 (1977), would, so long as the exclusionary
rule is not modified, introduce a new dimension to
the problem of conducting fair trials.
Even though the draftsmen of the Constitution could not
anticipate the 20th-century pretrial proceedings to suppress
evidence, pretrial proceedings were not wholly unknown in
that day. Written interrogatories were used pretrial in 18thcentury
litigation, especially in admiralty cases. Thus, it
is safe to assume that those lawyers who drafted the Sixth
Amendment were not unaware that some testimony was likely
to be recorded before trials took place. Yet, no one ever suggested
that there was any "right" of the public to be present
at such pretrial proceedings as were available in that time;
until the trial it could not be known whether and to what
extent the pretrial evidence would be offered or received.
Similarly, during the last 40 years in which the pretrial
processes have been enormously expanded, it has never occurred
to anyone, so far as I am aware, that a pretrial deposition
or pretrial interrogatories were other than wholly private
to the litigants. A pretrial deposition does not become part of
a "trial" until and unless the contents of the deposition are
offered in evidence. Pretrial depositions are not uncommon
to take the testimony of a witness, either for the defense or
GANNETT CO. v. DEPASQUALE 397
368 PowELL, J., concurring
for the prosecution. In the entire pretrial period, there is no
certainty that a trial will take place. Something in the neighborhood
of 85 percent of all criminal charges are resolved by
guilty pleas, frequently after pretrial depositions have been
taken or motions to suppress evidence have been ruled upon.
For me, the essence of all of this is that by definition "pretrial
proceedings" are exactly that.
MR. JUSTICE PowELL, concurring.
Although I join the opinion of the Court, I would address
the question that it reserves. Because of the importance of
the public's having accurate information concerning the operation
of its criminal justice system, I would hold explicitly that
petitioner's reporter had an interest protected by the First
and Fourteenth Amendments in being present at the pretrial
suppression hearing.1 As I have argued in Saxbe v. Washington
Post Co., 417 U. S. 843, 850 ( 1974) (PowELL, J.,
dissenting), this constitutional protection derives, not from
any special status of members of the press as such, but rather
1 In the present case, members of the press and public were excluded
from a pretrial suppression hearing, rather than from the trial itself. In
our criminal justice system as it has developed, suppression hearings often
are as important as the trial which may follow. The government's case
may turn upon the confession or other evidence that the defendant seeks
to suppress, and the trial court's ruling on such evidence may determine the
outcome of the case. Indeed, in this case there was no trial as, following
the suppression hearing, plea bargaining occurred that resulted in guilty
pleas. In view of the special significance of a suppression hearing, the
public's interest in this proceeding often is comparable to its interest in
the trial itself. It is to be emphasized, however, that not all of the incidents
of pretrial and trial are comparable in terms of public interest and
importance to a formal hearing in which the question is whether critical, if
not conclusive, evidence is to be admitted or excluded. In the criminal
process, there may be numerous arguments, consultations, and decisions, as
well as depositions and interrogatories, that are not central to the process
and that implicate no First Amendment rights. And, of course, grand
jury proceedings traditionally have been held in strict confidence. See
Houchins v. KQED, Inc., 438 U.S. 1, 34-35 (1978) (STEVENS, J., dissenting).
398 OCTOBER TERM, 1978
PowELL, J ., concurring 443 U.S.
because "[i]n seeking out the news the press . . acts as an
agent of the public at large," each individual member of which
cannot obtain for himself "the information needed for the
intelligent discharge of his political responsibilities." Id., at
863. Cf. First National Bank of Boston v. Bellotti, 435 U.S.
765, 776-778 (1978).
The right of access to courtroom proceedings, of course, is
not absolute. It is limited both by the constitutional right
of defendants to a fair trial, see, e. g., Estes v. Texas, 381
U. S. 532 (1965), and by the needs of government to obtain
just convictions and to preserve the confidentiality of sensitive
information and the identity of informants. Cf. Procunier
v. Martinez, 416 U. S. 396, 412-413 (1974); Houchins v.
KQED, Inc., 438 U. S. 1, 34-35 (1978) (STEVENS, J., dissenting)
; Saxbe v. Washington Post Co., supra, at 872-873 ( dissenting
opinion). The task of determining the application of
these limitations in each individual trial necessarily falls
almost exclusively upon the trial court asked to exclude members
of the press and public from the courtroom. For it would
be entirely impractical to require criminal proceedings to cease
while appellate courts were afforded an opportunity to review
a trial court's decision to close proceedings. It is all the more
important, therefore, that this Court identify for the guidance
of trial courts the constitutional standard by which they are
to judge whether closure is justified, and the minimal procedure
by which this standard is to be applied.2
In cases such as this, where competing constitutional
rights must be weighed in the context of a criminal trial,
2 Contrary to MR. JUSTICE REHNQUIST's suggestion, post, at 405, lower
courts cannot assume after today's decision that they are "free to determine
for themselves the question whether to open or close the proceeding"
free from all constitutional constraint. For although I disagree with my
four dissenting Brethren concerning the origin and the scope of the constitutional
limitations on the closing of pretrial proceedings, I agree with
their conclusion that there are limitations and that they require the carefnl
attention of trial courts before closure can be ordered.
GANNETT CO. v. DEPASQUALE 399
368 PowELL, J ., concurring
the often difficult question is whether unrestrained exercise
of First Amendment rights poses a serious danger to the fairness
of a defendant's trial. "As we stressed in Estes, the
presence of the press at judicial proceedings must be limited
when it is apparent that the accused might otherwise be
prejudiced or disadvantaged." Sheppard v. Maxwell, 384
U. S. 333, 358 ( 1966) (footnote omitted); see Estes v. Texas,
supra, at 539. In striking this balance there are a number
of considerations to be weighed. In Nebraska Press Assn. v.
Stuart, 427 U. S. 539 ( 1976), we concluded that there is a
strong presumption against prohibiting members of the press
from publishing information already in their possession concerning
courtroom proceedings. Excluding all members of
the press from the courtroom, however, differs substantially
from the "gag order" at issue in Nebraska Press, as the latter
involved a classic prior restraint, "one of the most extraordinary
remedies known to our jurisprudence," id., at 562, and
applied to information irrespective of its source. In the
present case, on the other hand, we are confronted with a trial
court's order that in effect denies access only to one, albeit
important, source. It does not in any way tell the press what
it may and may not publish.
Despite these differences between N ebraska Press and the
present case, petitioner asks the Court to impose a severe
burden upon defendants seeking closure. The approach
taken in MR. JUSTICE BLACKMUN's opinion would grant this
request, limiting closure to those cases where "it is strictly and
inescapably necessary in order to protect the fair-trial guarantee."
See post, at 440. It is difficult to imagine a case where
closure could be ordered appropriately under this standard.
A rule of such apparent inflexibility could prejudice defendants'
rights and disserve society's interest in the fair and
prompt disposition of criminal trials. As a result of pretrial
publicity, defendants could be convicted after less than the
meticulously fair trial that the Constitution demands. There
400 OCTOBER TERM, 1978
POWELL, J., concurring 443 U.S.
also could be an increase in reversal of convictions on appeal.
In either event, it seems to me that the approach suggested
by petitioner would not adequately safeguard the defendant's
right to a fair trial, a right of equal constitutional significance
to the right of access. The better course would be a more
flexible accommodation between First and Sixth Amendment
rights which are protected from state-law interference by the
Fourteenth Amendment-an accommodation under which
neither defendants' rights nor the rights of members of the
press and public should be made subordinate. Cf. Branzburg
v. Hayes, 408 U. S. 665, 709-710 (1972) (POWELL, J., concurring).
The question for the trial court, therefore, in considering
a motion to close a pretrial suppression hearing is whether
a fair trial for the defendant is likely to be jeopardized by
publicity, if members of the press and public are present and
free to report prejudicial evidence that will not be presented
to the jury.
Although the strict standard of Nebraska Press is not applicable
to decisions concerning closure of courtroom proceedings,
much of the discussion in that case of the factors to be considered
in making decisions with respect to "gag orders"
is relevant to closure decisions. Thus, where a defendant
requests the trial court to exclude the public, it should consider
whether there are alternative means reasonably available
by which the fairness of the trial might be preserved without
interfering substantially with the public's interest in prompt
access to information concerning the administration of justice.
Similarly, because exclusion is justified only as a protection of
the defendant's right to a fair trial and the State's interest in
confidentiality, members of the press and public objecting to
the exclusion have the right to demand that it extend no
farther than is likely to achieve these goals. Thus, for example,
the trial court should not withhold the transcript of
closed courtroom proceedings past the time when no prejudice
is likely to result to the defendant or the State from its release.
It is not enough, however, that trial courts apply a certain
GANNETT CO. v. DEPASQUALE 401
368 PowELL, J., concurring
standard to requests for closure. If the constitutional right
of the press and public to access is to have substance, representatives
of these groups must be given an opportunity to be
heard on the question of their exclusion. But this opportunity
extends no farther than the persons actually present at the
time the motion for closure is made, for the alternative would
require substantial delays in trial and pretrial proceedings
while notice was given to the public. Upon timely objection
to the granting of the motion, it is incumbent upon the trial
court to afford those present a reasonable opportunity to be
heard on the question whether the defendant is likely to be
deprived of a fair trial if the press and public are permitted to
remain in attendance. At this hearing, it is the defendant's
responsibility as the moving party to make some showing that
the fairness of his trial likely will be prejudiced by public
access to the proceedings. Similarly, if the State joins in
the closure request, it should be given the opportunity to show
that public access would interfere with its interests in fair
proceedings or preserving the confidentiality of sensitive information.
On the other hand, members of the press and
public who object to closure have the responsibility of showing
to the court's satisfaction that alternative procedures are
available that would eliminate the dangers shown by the
defendant and the State.
The question, then, is whether the First Amendment right
of access outlined above was adequately respected in the
present case. As the Court notes, the reporter ordered from
the courtroom upon the motion of the defendants did not
object to the closure order until the suppression hearing was
all but completed. Petitioner's right to be heard on the
question of closure, therefore, was not invoked until the
closure was an accomplished and irrevocable fact.3 Upon
3 Indeed, during subsequent oral argument, the trial court told counsel
for petitioner: "It is very unfortunate that you were not here when the
[closure] motion was made, but the motion was made and it was made
with the moving force behind the motion being the rights of the defendants
402 OCTOBER TERM, 1978
PowELL, J., concurring 443 u. s.
petitioner's request, counsel for the newspaper was allowed
within a reasonable time after the request to present written
and oral arguments to the court cha1lenging its closure order.
At this oral argument, the trial court applied a standard
similar to that set forth above. It first reviewed for petitioner's
counsel the factual basis for its finding that closure
had been necessary to preserve the fairness of the defendants'
trial. In the court's view, the nature of the evidence to be
considered at the hearing, the young age of two of the defendants,
and the extent of the publicity already given the
case had indicated that an open hearing would substantially
jeopardize the fairness of the defendants' subsequent trial.
Moreover, the court emphasized the fact that the prosecutor,
as well as each of the defense lawyers, had endorsed the closure
motion. On the other hand, the court found that petitioner
had not presented any basis for changing the court's views on
the need for closure. Throughout oral argument, the court
recognized the constitutional right of the press and public to
be present at criminal proceedings. It concluded, however,
that in the "unique situation" presented to it, closure had
been appropriate, and that the seal it had placed upon the
transcript of the suppression hearing should continue in
effect.4
to a fair trial." App. 13. "The Gannett newspapers knew that the matter
was scheduled for a hearing, they did have an opportunity to have counsel
present on that pa.rticular morning that the [closure] motion was made,
and unfortunately there was no representative of the Gannett newspapers."
Id., at 17.
4 It does not appear from the record that the trial court gave any explicit
considrration to the alternatives to closure and the sealing of the
transcript. Although genrrally such consideration is necessary in order
to determine whether the Constitution permits closure, see supra, at 400,
in the circumstances of the present case I cannot find error in the trial
court's met,hod of proceeding. Petitioner's counsel, when he appeared
after the closure order had been effectuated, suggested only obliquely that
the court should consider alternatives such as a change of venue. At oral
argument before the court, the lawyer insisted that "there must be a
GANNETT CO. v. DEPASQUALE 403
368 REHNQUIST, J ., concurring
In my view, the procedure followed by the trial court fully
comported with that required by the Constitution. Moreover,
the substantive standard applied was essentially correct, and,
giving due deference to the proximity of the trial judge to the
surrounding circumstances, I cannot conclude that it was error
in this case to exclude petitioner's reporter. I therefore
agree that the judgment of the New York Court of Appeals
must be affirmed.
MR. JusTICE REHNQUIST, concurring.
While I concur in the opinion of the Court, I write separately
to emphasize what should be apparent from the Court's
Sixth Amendment holding and to address the First Amendment
issue that the Court appears to reserve.
The Court today holds, without qualification, that "members
of the public have no constitutional right under the
Sixth and Fourteenth Amendments to attend criminal trials."
Ante, at 391. In this case, the trial judge closed the suppression
hearing because he concluded that an open hearing might
have posed a danger to the defendants' ability to receive a
fair trial. Ante, at 376. But the Court's recitation of this fact
and its discussion of the need to preserve the defendant's right
to a fair trial, ante, at 378-379, should not be interpreted to
mean that under the Sixth Amendment a trial court can close
factual showing that there are no alternative means of remedying that
problem [ of prejudicial publicity], and the only thing that has been mentioned
today ... is that there is a reasonable probability that the defendants'
case would be prejudiced." Insofar as this remark suggested
that the burden was on the defendants to prove that there were no
alternatives to closure, the court properly rejected the suggestion. See
discussion, supra, at 401. And it appears that petitioner's counsel, for
his part, made no effort to show that any alternative method of proceeding
would be satisfactory. In light of the unsettled state of the law confronting
the trial court, and the uncertain nature of the claims petitioner
was making, I conclude that there was no material deviation from the
guidelines set forth above.
404 OCTOBER TERM, 1978
REHNQUrsT, J., concurring 443U.S.
a pretrial hearing or trial only when there is a danger that
prejudicial publicity will harm the defendant.1 To the contrary,
since the Court holds that the public does not have any
Sixth Amendment right of access to such proceedings, it necessarily
follows that if the parties agree on a closed proceeding,
the trial court is not required by the Sixth Amendment to
advance any reason whatsoever for declining to open a pretrial
hearing or trial to the public. "There is no question that
the Sixth Amendment permits and even presumes open trials
as a norm." Ante, at 385. But, as the Court today holds, the
Sixth Amendment does not require a criminal trial or hearing
to be opened to the public if the participants to the litigation
agree for any reason, no matter how jurisprudentially appealing
or unappealing, that it should be closed.
The Court states that it may assume "arguendo" that the
First and Fourteenth Amendments guarantee the public a
right of access to pretrial hearings in some situations, because
it concludes that in this case this "putative right was given
all appropriate deference." Ante, at 392. Despite the Court's
seeming reservation of the question whether the First Amendment
guarantees the public a right of access to pretrial proceedings,
it is clear that this Court repeatedly has held that
there is no First Amendment right of access in the public or
the press to judicial or other governmental proceedings. See
post, at 411; Nixon v. Warner Communications, Inc., 435 U. S.
589, 609 ( 1978); Saxbe v. W a.shington Post Co., 417 U.S. 843,
850 (1974); Pell v. Procunier, 417 U. S. 817, 834 (1974);
Branzburg v. Hayes, 408 U. S. 665, 684-685 (1972); Zemel v.
Rusk, 381 U.S. 1, 16--17 (1965); Estes v. Texas, 381 U.S. 532,
1 In fact, as both the Court and the dissent recognize, the instances in
which pretrial publicity alone, even pervasive and adverse publicity, actually
deprives a defendant of the ability to obtain a fair trial will be
quite rare. Ante, at 379 n. 6; post, at 443-444; see N ebra1Jka Press Assn.
v. Stuart, 427 U.S. 539, 551-555 (1976); Murphy v. Florida, 421 U.S. 794,
798-799 (1975); Beck v. Washington, 369 U.S. 541, 557 (1962); Stroble v.
California, 343 U. S. 181, 191- 194 (1952).
GANNETT CO. v. DEPASQUALE 405
368 REHNQUIST, J., concurring
539-540 (1965). See also Houchins v. KQED, Inc., 438 U.S. 1,
9-15 (1978) (opinion of BURGER, C. J., joined by WHITE and
REHNQUIST, JJ.); id., at 16 (STEWART, J., concurring). "The
First and Fourteenth Amendments do not guarantee the public
a right of access to information generated or controlled by
government, nor do they guarantee the press any basic right
of access superior to that of the public generally. The Constitution
does no more than assure the public and the press
equal access once government has opened its doors." Ibid.
Thus, this Court emphatically has rejected the proposition
advanced in MR. JUSTICE PowELL's concurring opinion, ante,
at 400-401, that the First Amendment is some sort of constitutional
"sunshine law" that requires notice, an opportunity to
be heard, and substantial reasons before a governmental proceeding
may be closed to the public and press. Because this
Court has refused to find a First Amendment right of access
in the past, lower courts should not assume that after today's
decision they must adhere to the procedures employed by the
trial court in this case or to those advanced by MR. JusTICE
PowELL in his separate opinion in order to avoid running
afoul of the First Amendment. To the contrary, in my view
and, I think, in the view of a majority of this Court, the lower
courts are under no constitutional constraint either to accept
or reject those procedures. They remain, in the best tradition
of our federal system, free to determine for themselves
the question whether to open or close the proceeding.2 Hope-
2 My Brother PoWELL suggests in his concurring opinion that I am
wrong in so stating. Ante, at 398 n. 2. He believes that the four dissenters-
who expressly reject his First Amendment views, post, at 411, and
who, instead, rely on a Sixth Amendment analysis that is repudiated by a
majority of the Court today-will join him in any subsequent case to
impose constitutional limitations on the ability of a trial court to close
judicial proceedings. I disagree with l\fa. JusTICE PowELL for two reasons.
First, in a matter so commonly arising in the regular administration of
criminal justice, I do not so lightly as my Brother POWELL impute to the
four dissenters in this case a willingness to ignore the doctrine of stare
406 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443U.S.
fully, they will decide the question by accommodating competing
interests in a judicious manner. But so far as the
Constitution is concerned, the question is for them, not us, to
resolve.
MR. JUSTICE BLACKMUN, with whom MR. JusTICE BRENNAN,
MR. JusTICE WHITE, and MR. JUSTICE MARSHALL join,
concurring in part and dissenting in part.
I concur in Part II of the Court's opinion but I dissent from
that opinion's subsequent Parts. I also cannot join the
Court's phrasing of the "question presented," ante, at 370-371,
or its distress and concern with the publicity the Clapp murder
received in the Seneca County, N. Y., area.
Today's decision, as I view it, is an unfortunate one. I
fear that the Court surrenders to the temptation to overstate
and overcolor the actual nature of the pre-August 7, 1976,
publicity; that it reaches for a strict and flat result; and that
in the process it ignores the important antecedents and significant
developmental features of the Sixth Amendment.
The result is an inflexible per se rule, as MR. JUSTICE REHNQUIST
so appropriately observes in his separate concurrence,
ante, at 403--404. That rule is to the effect that if the defense
and the prosecution merely agree to have the public excluded
from a suppression hearing, and the trial judge does not
resist-as trial judges may be prone not to do, since nonresistance
is easier than resistance-closure shall take place,
and there is nothing in the Sixth Amendment that prevents
deci.si.s and to join with him in some later decision to form what might
fairly be called an "odd quintuplet," agreeing that the authority of trial
courts to close judicial proceedings to the public is subject to limitations
stemming from two different sources in the Constitution. But even if this
were to occur, the very diversity of views that necessarily would be reflected
in any such disposition would seem to me, as a practical matter, to
place outside of any limits imposed by the United States Constitution all
but the most bizarre orders closing judicial proceedings-the sort of orders
which have spawned the saying that "hard cases make bad law."
GANNETT CO. v. DEPASQUALE 407
368 Opinion of BLA.CKMUN, J.
that happily agreed upon event. The result is that the important
interests of the public and the press (as a part of
that public) in open judicial proceedings are rejected and cast
aside as of little value or significance.
Because I think this easy but wooden approach is without
support either in legal history or in the intendment of the
Sixth Amendment, I dissent.
I
The Court's review of the facts, ante, at 371-377, does not
face up to the placid, routine, and innocuous nature of the
news articles about the case and, indeed, their comparative
infrequency. I attempt to supply what is missing:
The reporting by both newspapers on August 3 of the filing
of the indictments was the first time either of the two papers
had carried any comment about the case since July 25, nine
days before. On August 6, each paper carried a story reporting
the arraignments of Greathouse and Jones on the preceding
day. Thereafter, no story about the Clapp case appeared
in petitioner's papers until the suppression hearing on November
4. Thus, for 90 days preceding that hearing there was
no publicity whatsoever. From July 20, when the first story
appeared, until August 6, a period of 18 days, 14 different
articles were printed in the two papers. Because the evening
paper usually reprinted or substantially duplicated the
morning story, there were articles on only 7 different days
during this 18-day period, with the evening story containing
little that differed from the morning story on the 5 days
that accounts appeared in both papers.
Furthermore, there can be no dispute whatsoever that the
stories consisted almost entirely of straightforward reporting
of the facts surrounding the investigation of Clap-p's disappearance,
and of the arrests and charges. The stories contained
no "editorializing" and nothing that a fairminded
person could describe as sensational journalism. Only one
picture appeared; it was a photograph of Clapp that accom408
OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443U.S.
panied the first story printed by the Times-Union. There is
nothing in the record to indicate that the stories were placed
on the page or within the paper so as to play up the murder
investigation. Headlines were entirely factual. The stories
were relatively brief. They appeared only in connection with
a development in the investigation, and they gave no indication
of being published to sustain popular interest in the case.
The motions to suppress came on before Judge DePasquale
on November 4. Despite the absence of any publicity in the
newspapers for three months, counsel for both defendants, at
the commencement of the hearing and without previously having
indicated their intention so to do, asked for the exclusion of
all members of the public and press present in the courtroom.
They urged as grounds for their motions that "we are going
to take evidentiary matters into consideration here that may
or may not be brought forth subsequently at a trial." App.
4. After being reminded by the court that the defendants
had a constitutional right to a public trial and that such exclusion
"does abridge the rights, the constitutional rights,
of the defendants," Greathouse's attorney, joined by Jones'
lawyer, stated: "I fully understand that, your Honor, but this
is not a trial, it is a hearing, and I think the dilatorious f sic]
effects far outweigh the constitutional rights." Id., at 5.
The court then turned to the District Attorney. The prosecutor
indicated that he did not wish to be heard with respect
to the motion and said only: "I stated earlier that I thought
it was up to the defense, and I would not oppose what they
wished to do." Ibid. Thereupon the court, without further
inquiry, granted the motion for closure. It said that "it is
not the trial of the matter" and that "matters may come up
in the testimony of the People's witnesses that may be
prejudicial to the defendant." Id., at 6.
We therefore have a situation where the two defense attorneys
suddenly and without notice moved that the suppression
hearing be closed, and where the prosecutor, obviously taken
off guard and having no particularly strong feeling, or any
GANNETT CO. v. DEPASQUALE 409
368 Opinion of BLACKMUN, J.
considered position, acquiesced. The court, to its credit, was
sensitive about the rights of the defendants to a public proceeding,
even though it thought "it is not the trial of the
matter." The court obviously was not impressed with any
brooding presence of possible prejudicial publicity. Its comment
was only that "evidentiary matters may come up ...
that may be prejudicial." It is difficult to imagine anything
less sensational in a murder context.
Yet this is all that the Court possesses to justify its description
of the question presented as one in the context of an
agreement by the accused, the prosecutor, and the trial judge
to have closure "in order to assure a fair trial," ante, at 371,
and the hearing as one where, ante, at 375, "defense attorneys
argued that the unabated buildup of adverse publicity had
jeopardized the ability of the defendants to receive a fair
trial."
I find little in the record that tends to support either of
those descriptions of such serious consequence. There is no
reference to or inference of an "unabated buildup of adverse
publicity." All the defense attorneys spoke of were "the
dilatorious effects" of "evidentiary matters ... that may or
may not be brought forth subsequently at a trial." App. 5, 4.
MR. JUSTICE REHNQUIST notes this thin concern. Ante, at
403-404. The defense lawyers were representing their clients,
of course, and perhaps were properly overcautious, but they
certainly favored the court with nothing about "unabated
buildup of adverse publicity" that must be prevented "in
order to assure a fair trial." In fairness to the Court today,
its colorful allusions to what it assumes took place when the
motions were presented on November 4 may be attributable
to comments in the opinion of the majority of the New York
Court of Appeals: 1
"At the commencement of a pretrial suppression hear-
1 Two of the six judges who heard the case in the New York Court of
Appeals dissented. They would have found the order entered by the
410 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443U.S.
ing, defense attorneys argued that an unabated buildup
of adverse publicity had already jeopardized their clients'
ability to receive a fair trial." 43 N. Y. 2d 370, 375, 372
N. E. 2d 544, 546.
"The details, however, were not known and public
curiosity was intense." Id., at 381, 372 N. E. 2d, at 550.
The New York majority went on to rule that the presumption
of closure was raised in this case because the public knew
that respondents Greathouse and Jones "had been caught
'red-handed' by Michigan police with fruits of the crime,"
and because it was "widely known" that they "had made
incriminating statements before being returned to" New York.
Ibid., 372 N. E. 2d, at 550. And the court found that the level
of "legitimate public concern" necessary to overcome the presumption
of closure had not been demonstrated:
"Widespread public awareness kindled by media saturation
does not legitimize mere curiosity. Here the public's
concern was not focused on prosecutorial or judicial accountability;
irregularities, if any, had occurred out of
State. The interest of the public was chiefly one of
active curiosity with respect to a notorious local happening."
Ibid., 372 N. E. 2d, at 550.
With all respect, it is difficult for me to extract all of that
from the casual comments made at the hearing before Judge
DePasquale. Cf. People v. Jones, 47 N. Y. 2d 409,391 N. E.
2d 1335 (1979).
II
This Court confronts in this case another aspect of the recurring
conflict that arises whenever a defendant in a criminal
case asserts that his right to a fair trial clashes with the right
of the public in general, and of the press in particular, to an
County Court to be of the type of prior restraint prohibited by Nebr1J1Jka
Press Assn. v. Stuart, 427 U. S. 539 (1976), and would have affirmed the
Appellate Division on the ground that the evidence did not support entry
of the order. 43 N. Y. 2d 370, 382, 372 N. E. 2d 544, 551.
GANNEI'T CO. v. DEPASQUALE 411
368 Opinion of BLACKMUN, J.
open proceeding. It has considered other aspects of the problem
in deciding whether publicity was sufficiently prejudicial to
have deprived the defendant of a fair trial. Compare Murphy
v. Florida, 421 U. S. 794 (1975), with Sheppard v. Maxwell,
384 U. S. 333 (1966). And recently it examined the extent
to which the First and Fourteenth Amendments protect news
organizations' rights to publish, free from prior restraint, information
learned in open court during a pretrial suppression
hearing. Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976).
But the Court has not yet addressed the precise issue raised
by this case: whether and to what extent the Constitution
prohibits the States from excluding, at the request of a defendant,
members of the public from such a hearing. See id., at
564 n. 8; id., at 584 n. 11 (BRENNAN, J., concurring in judgment);
Times-Picayune Publishing Corp. v. Schulingkamp,
419 U.S. 1301, 1308 n. 3 (1974) (POWELL, J., in chambers).
It is clear that this case does not involve the type of prior
restraint that was in issue in cases like Nebraska Press.
Neither the County Court nor the Court of Appeals restrained
publication of, or comment upon, information already known
to the public or the press, or about the case in general. The
issue here, then, is not one of prior restraint on the press but
is, rather, one of access to a judicial proceeding.
Despite MR. JusTICE PowELL's concern, ante, p. 397, this
Court heretofore has not found, and does not today find, any
First Amendment right of access to judicial or other governmental
proceedings. See, e. g., Nixon v. Warner Communications,
Inc., 435 U. S. 589, 608~610 (1978); Pell v. Procunier,
417 U. S. 817, 834 (1974). One turns then, instead, to that
provision of the Constitution that speaks most directly to the
question of access to judicial proceedings, namely, the publictrial
provision of the Sixth Amendment.
A
The familiar language of the Sixth Amendment reads: "In
all criminal prosecutions, the accused shall enjoy the right
412 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
to a speedy and public trial." This provision reflects the tradition
of our system of criminal justice that a trial is a "public
event" and that " [ w ]hat transpires in the court room is public
property." Craig v. Harney, 331 U. S. 367, 374 (1947).
And it reflects, as well, "the notion, deeply rooted in the common
law, that 'justice must satisfy the appearance of justice.'"
Levine v. United States, 302 U. S. 610, 616 (1960), quoting
Offutt v. United States, 348 U. S. 11, 14 (1954).
More importantly, the requirement that a trial of a criminal
case be public embodies our belief that secret judicial proceedings
would be a menace to liberty. The public trial is rooted
in the "principle that justice cannot survive behind walls of
silence," Sheppard v. Maxwell, 384 U. S., at 349, and in the
"traditional Anglo-American distrust for secret trials," In re
Oliver, 333 U. S. 257, 268 (1948). This Nation's accepted
practice of providing open trials in both federal and state
courts "has always been recognized as a safeguard against any
attempt to employ our courts as instruments of persecution.
The knowledge that every criminal trial is subject to contemporaneous
review in the forum of public opinion is an effective
restraint on possible abuse of judicial power." Id., at
270.
The public-trial guarantee, moreover, ensures that not only
judges but all participants in the criminal justice system are
subjected to public scrutiny as they conduct the public's business
of prosecuting crime. This publicity "guards against the
miscarriage of justice by subjecting the police, prosecutors,
and judicial processes to extensive public scrntiny and criticism."
Sheppard v. Maxwell, 384 U. S., at 350. Publicity
"serves to guarantee t-he fairness of trials and to bring to bear
the beneficial effects of public scrutiny upon the administration
of justice." Cox Broadcasting Corp. v. Cohn, 420 U. S.
469, 492 (1975). "The commission of crime, prosecutions
resulting from it, and judicial proceedings arising from the
prosecutions . . . are without question events of legitimate
GANNEIT CO. v. DEPASQUALE 413
368 Opinion of BLACKMUN, J.
concern to the public." Ibid. Indeed, such information is
"of critical importance to our type of government in which
the citizenry is the final judge of the proper conduct of public
business." Id., at 495.2 Even in those few cases in which
the Court has permitted limits on courtroom publicity out
of concern for prejudicial coverage, it has taken care to emphasize
that publicity of judicial proceedings "has always been
regarded as the handmaiden of effective judicial administration,
especially in the crin::inal field." Sheppard v. M a.xwell,
384 U. S., at 350. And in Estes v. Texas, 381 U. S. 532, 541
( 1965), the Court found that it "is true that the public has
the right to be informed as to what occurs in its courts."
MR. JusTICE STEWART, the author of the Court's opinion here,
stated in dissent in Estes, id., at 614--615: "The suggestion
that there are limits upon the public's right to know what goes
on in the courts causes me deep concern."
2 Although I am dealing here with access under the Sixth Amendment,
it is worthy of note that this Court's decisions emphasizing the protection
afforded reporting of judicial proceedings under the First Amendment also
point up the grave concern that information relating to the administration
of criminal justice be widely available. In Landmark Communications,
Inc. v. Virginia, 435 U. S. 829 (1978), for example, the Court noted that
"the operation of the judicial system itself ... is a matter of public interest,"
id., at 839, and that reporting judicial disciplinary proceedings "lies
near the core of the First Amendment." Id., at 838. And in Nebraska
Press Assn. v. Stuart, 427 U. S., at 559, the Court recognized that
"[t]ruthful reports of public judicial proceedings ha.ve been afforded special
protection against subsequent punishment" because of the importance
of free commentary about the conduct of the criminal justice system.
Any question of access under the Sixth Amendment aside, the "extraordinary
protections afforded by the First Amendment" with respect to
the reporting of judicial proceedings, id., at 560, indicate the importance
attached to making the public aware of the business of the courts. "The
administration of the law is not the problem of the judge or prosecuting
attorney alone, but necessitates the active cooperation of an enlightened
public." Wood v. Georgia, 370 U. S. 375, 391 (1962). See Bridges v.
California, 314 U. S. 252 (1941); Pennekamp v. Florida, 328 U. S. 331
(1946).
414 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
The importance we as a Nation attach to the public trial
is reflected both in its deep roots in the English common law
and in its seemingly universal recognition in this country since
the earliest times. When In re Oliver was decided in 1948,
the Court was "unable to find a single instance of a criminal
trial conducted in camera in any federal, state, or municipal
court during the history of this country," 333 U. S., at 266
(footnote omitted), with the exception of cases in courts-martial
and the semiprivate conduct of juvenile court proceedings.
Id., at 266 n. 12. Nor could it uncover any record "of even
one such secret criminal trial in England since abolition of the
Court of Star Chamber in 1641." Ibid. This strong tradition
of publicity in criminal proceedings, and the States' recognition
of the importance of a public trial, led the Court in In re
Oliver to conclude that the Sixth Amendment's guarantee of a
public trial, as applied to the States through the Fourteenth
Amendment, proscribed conviction through the type of secret
process at issue in that case.
The public-trial concept embodied in the Sixth Amendment
remains a fundamental and essential feature of our system of
criminal justice in both the federal courts and in the state
courts.3 The Due Process Clause of the Fourteenth Amend-
3 Forty-eight of the fifty States protect the right to a public trial in one
way or another. Forty-five have constitutional provisions specifically
guaranteeing the right: Ala. Const., Art. 1, § 6; Alaska Const., Art. I,
§ 11; Ariz. Const., Art. 2, §§ 11, 24; Ark. Const., Art. 2, § 10; Cal. Const.,
Art. 1, § 15; Colo. Const., Art. 2, § 16; Conn. Const., Art. 1, § 8; Del.
Const., Art. 1, §§ 7, 9; Fla. Const., Art. 1, § 16; Ga. Const., Art. 1, § 1,
,r 11; Haw. Const., Art. 1, § 11; Idaho Const., Art. 1, § 13; Ill. Const., Art.
1, § 8; Ind. Const., Art. 1, §§ 12, 13; Iowa Const., Art. 1, § 10; Kan. Const.,
Bill of Rights, § 10; Ky. Const., Bill of Rights, §§ 11, 14; La. Const.,
Art. 1, §§ 16, 22; Me. Const., Art. 1, § 6; Mich. Const., Art. 1, §20;
Minn. Const., Art. 1, § 6; Miss. Const., Art. 3, §§ 24, 26; Mo. Const.,
Art. 1, § 18 (a); Mont. Const., Art. 2, § 24; Nob. Const., Art. 1, § 11;
N. J. Const., Art. 1, ,r 10; N. M. Const., Art. 2, § 14; N. C. Const., Art. 1,
§§ 18, 24; N. D. Const., Art. 1, §§ 13, 22; Ohio Const., Art. 1, §§ 10, 16;
Okla. Const., Art. 2, § 20; Ore. Const., Art. 1, § 11; Pa. Const., Art. 1,
GANNETT CO. v. DEPASQUALE 415
368 Opinion of BLACKMUN, J.
ment requires that in criminal cases the States act in conformity
with the public-trial provision of the Sixth Amendment.
Duncan v. Louisiana, 391 U. S. 145, 148 (1968);
Argersinger v. Hamlin, 407 U.S. 25, 28 (1972).
B
By its literal terms, the Sixth Amendment secures the right
to a public trial only to "the accused." And in this case, the
accused ,vere the ones who sought to waive that right, and to
have the public removed from the pretrial hearing in order
to guard against publicity that po3sibly would be prejudicial
to them. The Court is urged, a.ccordingly, to hold that the
decision of respondents Greathouse and Jones to submit to a
private hearing is controlling.
The Court, however, previously has recognized that the
Sixth Amendment may implicate interests beyond those of
the accused. In Barker v. Wingo, 407 U. S. 514 (1972), for
example, the Court unanimously found this to be so with
respect to the right to a speedy trial. "In addition to the general
concern that all accused persons be treated according to
decent and fair procedures, there is a societal interest in providing
a speedy trial which exists separate from, and at
§§ 9, 11; R. I. Const., Art. 1, § 10; S. C. Const., Art. 1, §§ 9, 14; S. D.
Const., Art. 6, §§ 7, 20; Tenn. Const., Art. 1, §§ 9, 17; Tex. Const.,
Art. I,§ 10; Utah Const., Art. 1, §§ 11, 12; Vt. Const., Ch. 1, Art. 10th;
Va.. Const., Art. 1, § 8; Wash. Const., Art. 1, § 22; W. Va. Const., Art. 3,
§§ 14, 17; Wis. Const., Art. 1, § 7; Wyo. Const., Art. 1, § 8.
In addition, New Hampshire has held that the Due Process Clause of its
Constitution, Pt. 1, Art. 15, requires that criminal trials be held in public.
Martineau v. Helgemoe, 117 N. H. 841, 842, 379 A. 2d 1040, 1041 (1977).
Maryland by judicial decision requires open proceedings. Dutton v.
State, 123 Md. 373, 386-387, 91 A. 417, 422-423 (1914). New York by
statute provides for open trials. N. Y. Civil Rights Law, Art. 2, § 12
(McKinney 1976).
Only Masschusetts and Nevada appear to have no st.ate provision for
public trials. But see Commonwealth v. Marshall, 356 Mass. 432, 253
N. E. 2d 333 (1969).
416 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
times in opposition to, the interests of the accused." Id., at
519. This separate public interest led the Court to reject a
rule that would have made the defendant's assertion of his
speedy-trial right the critical factor in deciding whether the
right had been denied, for a rule depending entirely on the
defendant's demand failed to take into account that "society
has a particular interest in bringing swift prosecutions." Id.,
at 527.
The same is true of other provisions of the Sixth Amendment.
In Singer v. United States, 380 U. S. 24 (1965), the
Court rejected a contention that, since the constitutional right
to a jury trial was the right of the accused, he had an absolute
right to be tried by a judge alone if he considered a bench trial
to be to his advantage. Rejecting a mechanistic waiver approach,
the Court reviewed the history of trial by jury at
English common law and the pra.ctice under the Constitution.
The common law did not indicate that the accused had a right
to compel a bench trial. Although there were isolated instances
where such a right had been recognized in the American
Colonies, the Court could find no "general recognition of a
defendant's right to be tried by the court instead of by a jury.
Indeed, if there had been recognition of such a right, it would
be difficult to understand why Article III and the Sixth Amendment
were not drafted in terms which recognized an option."
Id., at 31. Noting that practice under the Constitution similarly
established no independent right to a bench trial, the
Court held that neither the jury trial provision in Art. III,
§ 2,4 nor the Sixth Amendment empowered an accused to
compel the opposite of what he was guaranteed specifica.lly by
the Constitution.
The Court in Singer recognized that in Patton v. United
States, 281 U. S. 276 ( 1930), it had held that a defendant
could waive his jury trial right, but it held that a proffered
4 "The Trial of all Crimes, except in Cases of Impeachment, shall be by
Jury."
GANNETT CO. v. DEPASQUALE 417
368 Opinion of BLACKMUN, J.
waiver need not be given effect in all cases. Quoting Patton,
281 U. S., at 312, the Court observed: "Trial by jury has been
established by the Constitution as the 'normal and . . .
preferable mode of disposing of issues of fact in criminal
cases.'" 380 U. S., at 35. The Court rejected "the bald
proposition that to compel a defendant in a criminal case
to undergo a jury trial against his will is contrary to his
right to a fair trial or to due process." Id., at 36. Rather,
the Court said, a defendant's "only constitutional right concerning
the method of trial is to an impartial trial by jury."
Ibid. Accordingly, the Court concluded that the Constitution
was no impediment to conditioning the grant of a request
for a bench trial upon the consent of the court and the
Government.
In Singer, the Court also recognized that similar reasoning
is applicable to other provisions to the Sixth Amendment.
"The ability to waive a constitutional right does not ordinarily
carry with it the right to insist upon the opposite of that
right." Id., at 34-35. For example, although the accused
"can waive his right to be tried in the State and district where
the crime was committed, he cannot in all cases compel transfer
of the case to another district." Id., at 35. While he
"can waive his right to be confronted by the witnesses against
him," he cannot thereby compel the prosecution "to try the
case by stipulation." And, most relevant here, "although a
defendant can, under some circumstances, waive his constitutional
right to a public trial, he has no absolute right to
compel a private trial." Ibid.
Indeed, in only one case, apparently, Faretta v. California,
422 U. S. 806 (1975), has this Court ever inferred from the
Sixth Amendment a right that fairly may be termed the
"opposite" of an explicit guarantee. In Faretta, the Court
found that not only did the Amendment secure the assistance
of counsel to the defendant in a criminal prosecution, but, by
inference, it also granted him the right to self-representation.
418 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
In so ruling, however, the Court was careful to stress that it
followed Singer's holding that the ability to waive a Sixth
Amendment right did not carry with it the automatic right
to insist upon its opposite. "The inference of rights is not,
of course, a mechanical exercise." 422 U. S., at 819 n. 15.
By inferring the existence of a right to self-representation, the
Court did not mean to "suggest that this right arises mechanically
from a defendant's power to waive the right to the assistance
of counsel. . . . On the contrary, the right must be
independently found in the structure and history of the constitutional
text." Id., at 819-820, n. 15. Following the approach
of Singer, then, the Court found that "the structure of
the Sixth Amendment, as well as ... the English and colonial
jurisprudence from which the Amendment emerged," 422
U. S., at 818, established the existence of an independent right
of self-representation.
C
It is thus clear from Singer, Barker, and Faretta that the
fact the Sixth Amendment casts the right to a public trial in
terms of the right of the accused is not sufficient to permit the
inference that the accused may compel a private proceeding
simply by waiving that right. Any such right to compel a
private proceeding must have some independent basis in the
Sixth Amendment. In order to determine whether an independent
basis exists, we should examine, as the Court did in
Singer, the common-law and colonial antecedents of the publictrial
provision as well as the original understanding of the
Sixth Amendment. If no such basis is found, we should then
turn to the function of the public trial in our system so that
we may decide under what circumstances, if any, a trial court
may give effect to a defendant's attempt to waive his right.
1. The Court, in In re Oliver, 333 U. S., at 266, recognized
that this Nation's "accepted practice of guaranteeing a public
trial to an accused has its roots in our English common law
heritage." Study of that heritage reveals that the tradition
GANNETT CO. v. DEPASQUALE 419
368 Opinion of BLACKMUN, J.
of conducting the proceedings in public came about as an
inescapable concomitant of trial by jury, quite unrelated to
the rights of the accused, and that the practice at common law
was to conduct all criminal proceedings in public.
Early Anglo-Saxon criminal proceedings were "open-air
meetings of the freemen who were bound to attend them."
F. Pollock, The Expansion of the Common Law 140 (1904)
(hereinafter Pollock). Criminal trials were by compurgation
or by ordeal, and took place invariably before the assembled
community, many of whom were required to attend. 1 W.
Holdsworth, A History of English Law 7-24 ( 4th ed. 1927)
(hereinafter Holdsworth). This Anglo-Saxon tradition of
conducting a judicial proceeding "like an ill-managed public
meeting," Pollock 30, persisted after the Conquest, when the
Norman kings introduced in England the Frankish system of
conducting inquests by means of a jury. Wherever royal justice
,vas introduced, the jury system accompanied it, and both
spread rapidly throughout England in the years after 1066.
1 Holdsworth 316. The rapid spread of royal courts led to the
replacement of older methods of trial, which were always
public, with trial by jury with little procedural change. The
jury trial "was simply substituted for [ older methods], and
was adapted with as little change as possible to its new position."
Id., at 317. This substitution of royal justice for traditional
law served the Crown's interests by "enlarging the
king's jurisdiction and bringing well-earned profit in fines and
otherwise to the king's exchequer, and the best way of promoting
those ends was to develop the institution, or let it develop
itself, along the lines of least resistance." Pollock 40.
Thus, the common law from its inception was wedded to
the Anglo-Saxon tradition of publicity, and the "ancient
rul[e that c]ourts of justice are public," id., at 51, was in turn
strengthened by the hegemony the royal courts soon established
over the administration of justice. Bentham noted that
by this accommodation of the common law to the Anglo-
I
I
:
'
I
420 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
Saxon practice of nolding open courts, "publicity ... became a
natural, and, as good fortune would have it, at length an inseparable,
concomitant" of English justice. 1 J. Bentham,
The Rationale of Judicial Evidence 584-585 ( 1827).
Publicity thus became intrinsically associated with the sittings
of the royal courts. Coke noted that the very words "In
curia Domini Regis" ("In the King's Court"), in the Statutum
de Marleberge, ch. 1, enacted in 1267, 52 Hen. 3, indicated
public proceedings. 2 E. Coke, Institutes of the Laws
of England 103 (6th ed. 1681).5
This and other commentary 6 indicate that by the 17th century
the concept of a public trial was firmly established under
the common law. Indeed, there is little record, if any, of
secret proceedings, criminal or civil, having occurred at any
time in known English history. Apparently, not even the
Court of Star Chamber, the name of which has been linked
with secrecy, conducted hearings in private. 5 Holdsworth
156, and nn. 5 and 7, and 163; Radin, The Right to a Public
Trial, 6 Temp. L. Q. 381, 386-387 (1932). Rather, the unbroken
tradition of the English common law was that criminal
trials were conducted "openlie in the presence of the Judges,
5 "These words are of great importance, for all Causes ought to be
heard, ordered, and determined before the Judges of the Kings Courts
openly in the Kings Courts, whither all persons may resort; and in no
chambers, or other private places: for the Judges are not Judges of
chambers, but of Courts, and therefore in open Court, where the parties
Counce! and Attorneys attend, ought orders, rules, awards, and Judgments
to be made and given, and not in chambers or other private places ....
Nay, that .Judge that ordereth or rul,eth a Cause in his chamber, though
his order or rule be just, yet offendeth he the Law, (as here it appeareth)
because he doth it not in Court."
6 See, e. g., T. Smith, De Republica Anglorum 79, 101 (Alston ed. 1972) ,
published in 1583, where the author, in contrasting the English common
law with the civil law system of the Continent, stressed that in England
all adjudications were open to the public as a matter of course. See also
Trial of John Lilburne (1649), reported in 4 How. St. Tr. 1270, 1274
(1816).
GANNETT CO. v. DEPASQUALE 421
368 Opinion of BLACKMUN, J.
the Justices, the enquest, the prisoner, and so manie as will or
can come so neare as t.o heare it, and all depositions and witnesses
given aloude, that all men may heare from the mouth
of the depositors and witnesses what is saide." T. Smith, De
Republica Anglorum 101 (Alston ed. 1972).
In the light of this history, it is most doubtful that the tradition
of publicity ever was associated with the rights of the
accused. The practice of conducting the trial in public was
established as a feature of English justice long before the
defendant was afforded even the most rudimentary rights.
For example, during the century preceding the English Civil
War, the defendant was kept in secret confinement and could
not prepare a defense. He was not provided with counsel
either before or at the trial. He was given no prior notice of
the charge or evidence against him. He probably could not
call witnesses on his behalf. Even if he could, he had no
means to procure their attendance. Witnesses were not necessarily
confronted with the prisoner. Document originals
were not required to be produced. There were no rules of
evidence. The confessions of accomplices were admitted
against each other and regarded as specially cogent evidence.
And the defendant was compelled to submit to examination.
1 J. Stephen, A History of the Criminal Law of England 350
( 1883). Yet the trial itself, without exception, was public.
It is not surprising, therefore, that both Hale and Blackstone,
in identifying the function of publicity at common law,
discussed the open-trial requirement not in terms of individual
liberties but in terms of the effectiveness of the trial process.
Each recognized publicity as an essential of trial at common
law. And each emphasized that the requirement that evidence
be given in open court deterred perjury, since "a witness
may frequently depose that in private, which he will be
ashamed to testify in a public and solemn tribunal." 3
W. Blackstone, Commentaries *373. See M. Hale, The History
of the Common Law of England 343, 345 (6th ed. 1820).
422 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
Similarly, both recognized that publicity was an effective
check on judicial abuse, since publicity made it certain that
"if the judge be PARTIAL, his partiality and injustice will be
evident to all by-standers." Id., at 344. See 3 W. Blackstone,
Commentaries *372.7
In the same vein, Bentham stressed that publicity was "the
most effectual safeguard of testimony, and of the decisions depending
on it; it is the soul of justice; it ought to be extended to
every part of the procedure, and to all causes." J. Bentham,
A Treatise On Judicial Evidence 67 (1825). Bentham
believed that, above all, publicity was the most effectual
safeguard against judicial abuse, without which all other
checks on misuse of judicial power became ineffectual. I
J. Bentham, The Rationale of Judicial Evidence 525 (1827).
And he contended that publicity was of such importance to
the administration of justice, especially in criminal cases, that
it should not be dispensed with even at the request of the
defendant. "The reason is ... there is a party interested (viz.
the public at large) whose interest might, by means of the
privacy in question, and a sort of conspiracy, more or less
explicit, between the other persons concerned (the judge included)
be made a sacrifice." Id., at 576-577.
This English common-law tradition concerning public trials
out of which the Sixth Amendment provision grew is not made
up of "shreds of English legal history and early state constitutional
and statutory provisions," see Faretta v. California, 422
U. S., at 843 ( dissenting opinion describing the right of selfrepresentation),
pieced together to produce the desired result.
7 Similarly, the Solicitor General, Sir John Hawies, in 1685 in his
Remarks upon Mr. Cornish's Trial, 11 How. St. Tr. 455,460, stated:
"The reason that all matters of law are, or ought to be transacted
publicly, is, That any person, unconcerned as well as concerned, may, as
amicus curiae, inform the court better, if he thinks they are in an error,
that justice may be done: and the reason that all trials are public, is, that
any person may inform in point of fact, though not subpoena'd, that truth
may be discovered in civil as well as criminal matters."
GANNETT CO. v. DEPASQUALE 423
368 Opinion of BLACKMUN, J.
Whatever may be said of the historical analysis of other
Sixth Amendment provisions, history here reveals an unbroken
tradition at English common law of open judicial proceedings
in criminal cases. In publicity, we "have one
tradition, at any rate, which has persisted through all changes"
from Anglo-Saxon times through the development of the
modern common law. Pollock 31-32. See E. Jenks, The
Book of English Law 73-74 (6th ed. 1967). There is no
evidence that .criminal trials of any sort ever were conducted
in private at common law, whether at the request of the
defendant or over his objection. And there is strong evidence
that the public trial, which developed before other procedural
rights now routinely afforded the accused, widely was perceived
as serving important social interests, relating to the
integrity of the trial process, that exist apart from, and conceivably
in opposition to, the interests of the individual
defendant. Accordingly, I find no support in the commonlaw
antecedents of the Sixth Amendment public-trial provision
for the view that the guarantee of a public trial carries
with it a correlative right to compel a private proceeding.8
8 The continuing development in England of the common-law notion of
publicity during the years since the founding of our own Nation casts
light upon the function of publicity in our system of justice. For example,
in a series of cases establishing a privilege for the reporting of judicial
proceedings, the courts recognized: "Though the publication of such
proceedings may be to the disadvantage of the particular individual concerned,
yet it is of vast importance to the public that the proceedings of
Courts of Justice should be universally known. The general advantage to
the country in having these proceedings made public, more than coW1terbalances
the inconveniences to the private persons whose conduct may be
the subject of such proceedings." King v. Wright, 8 D. & E. 293, 298,
101 Eng. Rep. 1396, 1399 (K. B. 1799). Sec Davison v. Duncan, 7 El. &
Bl. 229, 230--231, 119 Eng. Rep. 1233, 1234 (Q. B. 1857); Wason v. Walter,
4 L. R. 73, 88 (Q. B. 1868).
Important for my purposes is the decision in Daubney v. Cooper, 10
B. & C. 237, 109 Eng. Rep. 438 (K. B. 1829). There the court upheld
a verdict for damages in an action by a spectator, who had been ejected
424 OCTOBER TERM, 1978
Opinion of BucKMUN, J. 443U.S.
2. This English common-law view of the public trial early
was transplanted to the American Colonies, largely through
the influence of the common-law ·,\Titers whose views shaped
the early American legal systems. "Coke's Institutes were
read in the American Colonies by virtua11y every student of
the law," Klopfer v. North Carolina, 386 U.S. 213,225 (1967),
and no citation is needed to establish the impact of Hale and
Blackstone on colonial legal thought. Early colonial charters
reflected the view that open proceedings were an essential
quality of a court of justice, and they cast the concept of a
public trial in terms of a characteristic of the system of justice,
rather than of a right of the accused. Indeed, the first
public-trial provision to appear in America spoke in terms
of the right of the public, not the accused, to attend trials:
"That in all publick courts of justice for tryals of
causes, civil or criminal, any person or persons, inhabitants
of the said Province may freely come into, and
attend the said courts, and hear and be present, at all or
any such tryals as shaJI be there had or passed, that justice
may not be done in a corner nor in any covert manner."
Concessions and Agreements of West New Jersey
(1677), ch. XXIII, quoted in 1 B. Schwartz, The Bill of
Rights: A Documentary History 129 (1971) (hereinafter
Schwartz).
from a criminal proceeding, against the magistrate who had ejected him.
The court stated:
"[Ilt is one of the essential qualities of a court of justice that its proceedings
should be public, and that all parties who may be desirous of
hearing what is going on, if there be room in the place for that purpose,-
provided they do not interrupt the proceedings, and provided there is no
specific reason why they should be removed,-have a right to be present
for the purpose of hearing what is going on." Id., at 240, 109 Eng. Rep.,
at 440.
See also Scott v. Scott, [1913] A. C. 417, 438-439 (Haldane, L. C.), 440-
441 (Earl of Halsbury).
GANNETT CO. v. DEPASQUALE 425
368 Opinion of BLACKMUN, J.
Similarly, the Pennsylvania Frame of Government of 1682,
which Professor Schwartz described as, " [ i J n many ways,
[ one of] the most influential of the Colonial documents protecting
individual rights," 1 Schwartz 130, provided that in
Willian Penn's colony ''all courts shall be open." Id., at 140.
This practice of conducting judicial proceedings in criminal
cases in public took firm hold in all the American Colonies.
There is no evidence that any colonial court conducted cri.minal
trials behind closed doors or that any recognized the right
of an accused to compel a private trial.
Neither is there any evidence that casting the public-trial
concept in terms of a right of the accused signaled a departure
from the common-law practice by granting the accused the
power to compel a private proceeding. The first provision
to speak of the public trial as an entitlement of the accused
apparently ,vas that in ,r IX of the Pennsylvania Declaration
of Rights of 1776. It said that "in all prosecutions for criminal
offences, a man hath a right to ... a speedy public trial."
See 1 Schwartz 265. The provision was borrowed almost
verbatim from the Virginia Declaration of Rights, adopted
earlier the same year, with one change: the word "public" was
added. Virginia's Declaration ha.cl provided only that the
accused "hath a right to ... a speedy trial." See id., at
235. It is doubtful that, by adding this single word, Pennsylvania
intended to depart from its historic practice by creating
a right waivable by the defendant, for at the time its
Declaration of Rights was adopted, Pennsylvania also adopted
its Constitution of 1776, providing, in § 26, that "[a]ll courts
shall be open." See 1 Schwartz 271. And there is no evidence
that after 1776 Pennsylvania departed from earlier practice,
either by conducting trials in private or by recognizing
a power in the accused to compel a nonpublic proceeding.9
9 Although a number of States followed the language of Virginia's
Declaration, only Vermont copied the Pennsylvania emendation by adding
the word "public" to the speedy-trial prwision. Vt. Const., Declaration
426 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
Similarly, there is no indication that the First Congress,
in proposing what became the Sixth Amendment, meant to
depart from the common-law practice by creating a power in
an accused to compel a private proceeding. The Constitution
as originally adopted, of course, did not contain a public-trial
guarantee. And though several States proposed amendments
to Congress along the lines of the Virginia Declaration, only
New York mentioned a "public" trial. See E. Dumbauld, The
Bill of Rights 173-205 and, specifically, 190 (1957); I Elliot's
Debates 328 (2d ed. 1836). But New York did not follow
Virginia's language by casting the right as one belonging only
to the accused; it urged rather that Congress should propose
an amendment providing that the "trial should be speedy,
public, and by an impartial jury .... " Amendments Proposed
by New York (I 788), quoted in I Elliot's Debates,
at 328.
I am thus persuaded that Congress, modeling the proposed
amendment on the cognate provision in the Virginia
Declaration, as many States had urged, did merely what
Pennsylvania had done in 1776, namely, added the word
"public" to the Virginia language without at all intending
thereby to create a correlative right to compel a private proceeding.
Indeed, in light of the settled practice at common
law, one may also say here that "if there had been recognition
of such a right, it would be difficult to understand why ... the
Sixth Amendment [ was] not drafted in terms which recognized
an option." Singer v. United States, 380 U. S .. at 31. And,
to use the language of the Court in Faretta v. California, 422
of Rights § X (1777), quoted in 1 Schwartz 323. Once again, however,
there is no evidence that by so doing Vermont intended to depart
from the common-law practice of holding court in public. Indeed, the
Vermont Declaration, adopted by the revolutionary legislature in haste,
was "virtually raJ verbatim repetitio[n] of the relevant. Pennsylvania."
article. 1 Schwartz 319. It is thus doubtful that by adding the word
"public" Vermont, any more than Pennsylvania, intended to a.!ter existing
practice.
....
GANNETT CO. v. DEPASQUALE 427
368 Opinion of BLACKMUN, J.
U. S., at 832: "If anyone had thought that the Sixth Amendment,
as drafted," departed from the common-law principle
of publicity in criminal proceedings, "there would undoubtedly
have been some debate or comment on the issue. But there
was none." Mr. Justice Story, writing when the adoption of
the Sixth Amendment was within the memory of living man,
noted that "in declaring, that the accused shall enjoy the right
to a speedy and public trial ... [the Sixth Amendment] does
but follow out the established course of the common law in all
trials for crimes. The trial is always public." 3 J. Story, Commentaries
on the Constitution of the United States 662 (1833).
I consequently find no evidence in the development of
the public-trial concept in the American Colonies and in the
adoption of the Sixth Amendment to indicate that there was
any recognition in this country, any more than in England, of
a right to a private proceeding or a power to compel a private
trial arising out of the ability to waive the grant of a public
one. I shall not indulge in a mere mechanical inference
that, by phrasing the public trial as one belonging to the
accused, the Framers of the Amendment must have meant the
accused to have the power to dispense with publicity.
3. I thus conclude that there is no basis in the Sixth
Amendment for the suggested inference. I also find that,
because there is a societal interest in the public trial that
exists separately from, and at times in opposition to, the interests
of the accused, cf. Barker v. Wingo, 407 U. S., at 519, a
court may give effect to an accused's attempt to waive his
public-trial right only in certain circumstances.
The courts and the scholars of the common law perceived
the public-trial tradition as one serving to protect the integrity
of the trial and to guard against partiality on the part of the
court. The same concerns are generally served by the public
trial today. The protection against perjury which publicity
provides, and the opportunity publicity offers to unknown
witnesses to make themselves known, do not necessarily serve
I
428 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
the defendant. See 6 J. Wigmorc, Evidence § 1834 (Chadbourn
rev. 1976) (hereinafter Wigmore). The public has an
interest in having criminal prosecutions decided on truthful
and complete records, and this interest, too, does not necessarily
coincide with that of the accused.
Nor does the protection against judicial partiality serve only
the defendant. It is true that the public-trial provision
serves to protect every accused from the abuses to which
secret tribunals would be prone. But the defendant himself
may benefit from the partiality of a corrupt, biased, or incompetent
judge, "for a secret trial can result in favor to as well
as unjust prosecution of a defendant." Lewis v. Peyton, 352
F. 2d 791, 792 (CA4 1965).
Open trials also enable the public to scrutinize the performance
of police and prosecutors in the conduct of public
judicial business. Trials and particularly suppression hearings
typically involve questions concerning the propriety of
police and government conduct that took place hidden from
the public view. Any interest on the part of the prosecution
in hiding police or prosecutorial misconduct or ineptitude may
coincide with the defendant's desire to keep the proceedings
private, with the result that the public interest is sacrificed
from both sides.
Public judicial proceedings have an important educative
role as well. The victim of the crime, the family of the victim,
others who have suffered similarly, or others accused of
like crimes, have an interest in observing the course of a
prosecution. Beyond this, however, is the interest of the
general public in observing the operation of the criminal justice
system. Judges, prosecutors, and police officials often
are elected or are subject to some control by elected officials,
and a main source of information about how these officials
perform is the open trial. And the manner in which criminal
justice is administered in this country is in and of itself of
interest to all citizens. In Cox Broadcasting Corp. v. Cohn,
GANNETT CO. v. DEPASQUALE 429
368 Opinion of BLACKMUN, J.
420 U. S., at 495, it was noted that information about the
criminal justice system "appears to us to be of critical importance
to our type of government in which the citizenry is
the final judge of the proper conduct of public business."
Important in this regard, of course, is the appearance of
justice. "Secret hearings-though they be scrupulously fair
in reality-are suspect by nature. Public confidence cannot
long be maintained where important judicial decisions are
made behind closed doors and then announced in conclusive
terms to the public, wit.h the record supporting the court's
decision sealed from public view." United States v. Cianfrani,
573 F. 2d 835, 851 (CA3 1978). The ability of the
courts to administer the criminal laws depends in no small
part on the confidence of the public in judicial remedies, and
on respect for and acquaintance with the processes and deliberations
of those courts. 6 ·wigmore § 1834, at 438. Anything
that impairs the open nature of judicial proceedings
threatens to undermine this confidence and to impede the
ability of the courts to function.
These societal values secured by the public trial are fundamental
to the system of justice on both the state and federal
levels. As such, they have been recognized by the large
majority of both state 10 and federal 11 courts that have con-
10 Nearly every State that has considered the issue has recognized that
the public has a strong interest in maintaining open trials. Most of these
cases have involved state constitutional provisions modeled on the Sixth
Amendment in that the public-trial right is phrased in terms of a guarantee
to the accused. See, e. g., Jackson v. Mobley, 157 Ala. 408, 411-412,
47 So. 590, 592 (1908); Commercial Printing Co. v. Lee, 262 Ark. 87,
93-96, 553 S. W. 2d 270, 273- 274 ( 1977); Lincoln v. Denver Post, 31 Colo.
App. 283, 285-286, 501 P. 2d 152, 154 (1972); State ex rel. Gore Newspapers
Co. v. Tyson, 313 So. 2d 777, 785- 788 (Fla. App. 1975); Gannett
Pacific Corp. v. Richardson, 59 Haw. 224, 230-231, 580 P. 2d 49, 55 (1978);
State v. Beaudoin, 386 A. 2d 731, 733 (Me. 1978); Cox v. State, 3 Md.
App. 136, 139-140, 238 A. 2d 157, 158-159 (1968); State v. Schmit, 273
Minn. 78, 86-88, 139 N. W. 2d 800, 806-807 (1966); State v. Keeler, 52
[Footnote 11 is on p. 430]
430 OCTOBER TERM, 1978
Opinion of BLAcKMUN, J. 443U.S.
sidered the issue over the years since the adoption of the
Constitution. Indeed, in those States with constitutional pro-
Mont. 205, 218-219, 156 P. 1080, 1083-1084 (1916); Keene PublUjhing
Corp. v. Keene DUjtrict Court, 117 N. H. 959, 962-963, 380 A. 2d 261,
263-264 (1977); State v. Allen, 73 N ..J . 132, 157- 160, 373 A. 2d 377, 389-
390 (1977); Neal v. State, 86 Okla. Cr. 283, 289, 192 P. 2d 294, 297
(1948); State v. Holm, 67 Wyo. 360, 382-385, 224 P. 2d 500, 508-509
(1950).
Several States have recognized such an interest under constitutional
provisions establishing open courts. E. g., State v. White, 97 Ariz. 196,
198, 398 P. 2d 903, 904 (1965); Smith v. State, 317 A. 2d 20, 23-24 (Del.
1974); Johnson v. Simpson, 433 S. W. 2d 644, 646 (Ky. 1968); Brown v.
State, 222 Miss. 863, 869, 77 So. 2d 694, 696 (1955); In re Edens, 290
N. C. 299, 306, 226 S. E. 2d 5, 9-10 (1976); E. W. Scripps Co. v. Fulton,
100 Ohio App. 157, 160-169, 125 N. E. 2d 896, 899-904 (1955); State
ex rel. Varney v. Ellis, 149 W. Va. 522, 523-524, 142 S. E. 2d 63, 65
(1965).
Massachusetts appears to have no case precisely in point. But in
Cowley v. Pulgi,fer, 137 Mass. 392 (1884), the Supreme Judicial Court,
in an opinion by Mr. Justice Holmes, stated that the chief advantage of
permitting a privilege for publication of reports of judicial proceedings
"is the security which publicity gives for the proper administration of
justice." Id., at 394. The court continued:
"[This] privilege and the access of the public to the courts stand in
reason upon f'nmmnn ground. . . . It is desirable that the trial of
causes should take place under the public eye, not because the controversies
of one citizen ,lrith another are of public concern, but because it
is of the highest moment that those who administer justice should always
act under the sense of public responsibility, and that every citizen should
be able to satisfy himself with his own ,eyes as to the mode in which a
public duty is performed." Ibid.
11 See, e. g., United States v. Clark, 475 F. 2d 240, 246-247 (CA2 1973);
Stamicarbon, N. V. v. American Cyanamid Co., 506 F. 2d 532, 540-542
(CA2 1974); United States v. Cianfrani, 573 F. 2d 835, 852-854 (CA3
1978); Lewis v. Peyton, 352 F. 2d 791, 792 (CA4 1965).
The Court today cites no case where the public has been totally excluded
from all of a trial or all of a pretrial suppression hearing. See ante, at 388
n. 19. Indeed, in almost every case that the Court cites, no such general
exclusion was permitted: In Geise v. United States, 262 F. 2d 151, 155 (CA9
1958), for example, the press, members of the bar, and relatives and friends
of parties and the witnesses were allowed to remain. Similarly, in United
GANNETI CO. v. DEPASQUALE 431
368 Opinion of BLACKMUN, J.
v1s10ns modeled on the Sixth Amendment, guaranteeing the
right to a public trial literally only to the accused, there has
States ex rel. Orlando v. Fay, 350 F. 2d 967, 970 (CA2 1965), the press
and members of the bar were admitted at all times. In State v. Croak,
167 La. 92, 94-95, 118 So. 703, 704 (1928), a fair-sized audience composed
of members of the public was always present. The court in Beauchamp
v. Cahill, 297 Ky. 505, 508, 180 S. W. 2d 423, 424 (1944), though it
recognized that the trial court could exclude limited classes of spectators
in certain circumstances, held that that court could not exclude a "reasonable
portion of the public" who wanted to attend, and it disapproved
the limited exclusion that did occur. In State v. Cal,lahan, 100 Minn. 63,
110 N. W. 342 (1907), and Hogan v. State, 191 Ark. 437, 86 S. W. 2d
931 (1935), the Court does point to cases where a court upheld an exclusion
of all the public, though even there the exclusions were for strictly
limited periods of time. Those exclusions were over the objections of
the defendants, and they surely are questionable law today, not only under
the Sixth Amendment but under state law as well. See State v. Schmit,
273 Minn., at 86-88, 139 N. W. 2d, at 805--807; Commercial Printing Co.
v. Lee, 262 Ark., at 93-96, 553 S. W. 2d, at 273-274.
Similarly, though the Court cites a number of state statutory provisions
that it says contain limitations on public trials, it cites no cases
deC'ided under those provisions excluding all the public and the press from
trials or suppression hearings. If any such cases exist, which is doubtful,
they are few indeed. It appears, rather, that such statutes have been
interpreted to permit limited exclusion of certain groups of spectators from
trial, but seldom applied so as to result in blanket exclusion of the public
and press. For example, in Reeves v. State, 264 Ala. 476, 483, 88 So. 2d
561, 567 (1956), the court, in applying the Alabama provision cited by
the Court, ante, at 388 n. 19, noted that the trial court had not excluded,
among others, "members of the press, radio, television or other newsgathering
services, ... [and] members of the bar." Accord, Ex parte
Rudolph, 276 Ala. 392, 393, 162 So. 2d 486, 487 (1964). Similarly, in
applying the Georgia statute cited by the Court, the courts of that State
have not excluded, among others, members of the press and of the bar.
E. (!., Moore v. State, 151 Ga. 648, 651-652, 658-659, 108 S. E. 47, 49, 52
(1921). Indeed, in Moore, the trial court allowed the press to attend as
one of the "parties at interest" not excludable. Id., at 651, 108 S. E., at
49. And in upholding the constitutionality of the Massachusetts statute
permitting exclusion in certain cases involving sex crimes, the Supreme
Judicial Court noted that the press had not been excluded under the
statute, and that it therefore need not reach the constitutionality of the
432 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
been widespread recognition that such provisions serve the
interests of the public as well as those of the defendant.12
I therefore conclude that the Due Process Clause of the
Fourteenth Amendment, insofar as it incorporates the publicstatute
in circumstances where the press was excluded, "even if the statute
could be interpreted as permitting such exclusion" of the press. Commonwealth
v. Blondin, 324 Mass. 564, 572, 87 N. E. 2d 455, 460 (1949).
There is no evidence that under any of the other provisions cited by
the Court tribunals have excluded all members of the public, including the
press, from a trial or suppression proceeding.
The Court in In re Oliver recognized that, even though some cases
up to that time had allowed limited departures from publicity, no court
had gone so far as to sanction exclusion of the press. 333 U. S., at
272 n. 29. Since that time only the New York courts in this case, and
perhaps some isolated others, have departed from this tradition in criminal
cases. And although some commentators have criticized the Sixth Amendment
approach to establishing a public right of access, they have gone on
to find that right rooted in some other provision of the Constitution.
E. g., Note, The Right to Attend Criminal Hearings, 78 Colum. L. Rev.
1308, 1326-1331 (1978) (public access right derived from combination
of the First and Sixth Amendments). Even Radin, whose ideas in this
area Professor Wigrnore described as "farfetched," 6 Wigmore § 1834,
though he criticized public access, would not have excluded the press
and selected members of the public from any trial. Radin, The Right to
a Public Trial, 6 Temple L. Q. 381, 394-395 (1932).
12 See cases cited in n. 10, supra. For example, in Commercial Printing
Co. v. Lee, 262 Ark. 87, 553 S. W. 2d. 270 (1977), the Supreme Court
of Arkansas held that the exclusion of the public from the voir dire phase
of a criminal trial violated the State's public-trial constitutional provision,
even though it, like the Sixth Amendment, literally read in favor
of only the accused. The court found that members of the public have
a strong interest in observing criminal proceedings, inasmuch as they involve
crimes against society. And it added that since courthouses, prosecutors,
judges, and often defense attorneys are paid for with public funds,
the public "has every right to ascertain by personal observation whether
its officials are properly carrying out their duties in responsibly and
capably administering justice, and it would require unusual circumstances
for this right to be held subordinate to the contention of a defendant that
he is prejudiced by a public trial ( or any part thereof)." / d., at 95,
553 S. W. 2d, at 274.
GANNETT CO. v. DEPASQUALE 433
368 Opinion of BLACKMUN, J.
trial provision of the Sixth Amendment, prohibits the States
from excluding the public from a proceeding within the ambit
of the Sixth Amendment's guarantee without affording full
and fair consideration to the public's interests in maintaining
an open proceeding. And I believe that the Sixth and Fourteenth
Amendments require this conclusion notwithstanding
the fact it is the accused who seeks to close the trial.13
D
Before considering whether and under what circumstances
a court may conduct a criminal proceeding in private, one must
first decide ,vhether the Sixth Amendment, as applied through
the Fourteenth, encompasses the type of pretrial hearing contemplated
by Jackson v. Denno, 378 U. S. 368 (1964), and at
issue in this case. The Amendment, of course, speaks only
of a public "trial." Both the County Court and the New
York Court of Appeals emphasized that exclusion from the
formal trial on the merits was not at issue, apparently in the
belief that the Sixth Amendment's public-trial provision
applies with less force, or not at all, to a pretrial proceeding.
13 The American Bar Association Standards adopt the view that, the
public has a. strong interest in maintaining the openness of criminal trials,
and that the Sixth Amendment protects that interest:
"The sixth amendment speaks in terms of the right of the accused to
a public trial, but this right does not belong solely to the accused to
assert or forgo as he or she desires. , . . The defendant's interest, primarily,
is to ensure fair treatment in his or her particular case. While
the public's more generalized interest in open trials includes a concern
for justice to individual defendants, it goes beyond that. The transcendent
reason for public trials is to ensure efficiency, competence, and integrity
in the overall operation of the judicial system. Thus, the defendant's
willingness to waive the right to a public trial in a criminal case cannot
be the deciding factor. . . . It is just as important to the public to guard
against undue favoritism or leniency 11.s to guard against undue harshness
or discrimination." ABA Project, on Standards for Criminal Justice, Fair
Trial a.nd Free Press, Standard 8-3.2, p. 15 (App. Draft 1978). (Footnotes
omitted.)
'
434 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
I find good reason to hold that even if a State, as it may,
chooses to hold a Jackson v. Denno or other suppression
hearing separatB from and prior to the full trial, the Sixth
Amendment's public-trial provision applies to that hearing.
First, the suppression hearing resembles and relates to the
full trial in almost every particular. Evidence is presented by
means of live testimony, witnesses are sworn, and those witnesses
are subject to cross-examination. Determination of
the ultimate issue depends in most cases upon the trier of
fact's evaluation of the evidence, and credibility is often crucial.
Each side has incentive to prevail, with the result that
the role of publicity as a testimonial safeguard, as a mechanism
to encourage the parties, the witnesses, and the court to
a strict conscientiousness in the performance of their duties,
and in providing a means whereby unknown witnesses may
become known, is just as important for the suppression hearing
as it is for the full trial.
Moreover, the pretrial suppression hearing often is critical,
and it may be decisive, in the prosecution of a criminal case.
If the defendant prevails, he will have dealt the prosecution's
case a serious, perhaps fatal, blow; the proceeding often then
will be dismissed or negotiated on terms favorable to the
defense. If the prosecution successfully resists the motion to
suppress, the defendant may have little hope of success at
trial ( especially where a confession is in issue), with the result
that the likelihood of a guilty plea is substantially increased.
United States v. Clark, 475 F. 2<l 240, 246-247 (CA2 1973);
United States v. Cuinfrani, 573 F. 2d, at 848-851.
The suppression hearing often is the only judicial proceeding
of substantial importance that takes place during a criminal
prosecution. In this very case, the hearing from which
the public was excluded was the only one in which the important
factual and legal issues in the prosecution of respondents
Greathouse and Jones were considered. It was the only proceeding
at which the conduct of the police, prosecution, and
GANNETT CO. v. DEPASQUALE 435
368 Opinion of BLACKMUN, J.
the court itself was exposed to scrutiny. Indeed, in 1976,
when this case was processed, every felony prosecution in
Seneca County-and I say this without criticism-was terminated
without a trial on the merits. N. Y. Leg. Doc.
No. 90, Judicial Conference of the State of New York, 22d
Annual Report 55 ( 1977). This statistic is characteristic of
our state and federal criminal justice systems as a whole,14
and it underscores the importance of the suppression hearing
in the functioning of those systems.
Further, the issues considered at such hearings are of great
moment beyond their importance to the outcome of a particular
prosecution. A motion to suppress typically involves,
as in this case, allegations of misconduct by police and prosecution
that raise constitutional issues. Allegations of this
kind, although they may prove to be unfounded, are of importance
to the public as well as to the defendant. The
searches and interrogations that such hearings evaluate do not
take place in public. The hearing therefore usually presents
the only opportunity the public has to learn about police and
prosecutorial conduct, and about allegations that those responsible
to the public for the enforcement of laws themselves
are breaking it.
A decision to suppress often involves the exclusion of highly
relevant evidence. Because this is so, the decision may generate
controversy. See Bivens v. Six Unknown Fed. Narcotics
14 In 1976, in the Supreme Court for the city of New York, 89.7% of
all criminal cases were terminated by dismissal (25 .6 % ) or by plea of
guilty (64.1 % ) . N. Y. Leg. Doc. No. 90, Judicial Conference of the State
of New York, 22d Annual Report 52 (1977). In the Supreme Courts and
County Courts outside New York City, 93.4% of the criminal cases were
disposed of by dismissal (18.9%) or by plea of guilty (74.5%). Id., at 56.
As noted, these statistics are characteristic of the criminal justice
system across the country. See generally National Institute of Law
Enforcement and Criminal Justice, Law Enforcement Assistanc,e AdminiEtration,
Plea Bargaining in the United States, App. A ( 1978).
436 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
Agents, 403 U. S. 388, 412-420 (1971) (dissenting opinion).
It is important that any such decision be made on the basis
of evidence and argument offered in open court, so that all
who care to see or read about the case may evaluat€ for themselves
the propriety of the exclusion.
These factors lead me to conclude that a pretrial suppression
hearing is the close equivalent of the trial on the merits
for purposes of applying the public-trial provision of the Sixth
Amendment. Unlike almost any other proceeding apart from
the trial itself, the suppression hearing implicates all the policies
that require that the trial be public. For this reason, I
would be loath to hold that a State could conduct a pretrial
Jackson v. Denno hearing in private over the objection of the
defendant. And for this same reason, the public's interest
in the openness of judicial proceedings is implicated fully
when it is the accused who seeks to exclude the public from
such a hearing. Accordingly, I conclude that the Sixth and
Fourteenth Amendments prohibit a State from conducting a
pretrial suppression hearing in private, even at the request of
the accused, unless full and fair consideration is first given to
the public's interest, protected by the Amendments, in open
trials.15
The Court holds, however, that, even assuming the Sixth and
Fourteenth Amendments could be viewed as embodying a
public right of access to trials. there was no common-law right
in members of the public to att€nd preliminary proceedings.
But I have not said that there was. I have demonstrated
that there was a right to attend trials. And I have said
that, because of the critical importance of suppression hearings
to our systems of criminal justice-as well as because of
the close similarity in form of a suppression hearing to a full
15 The ABA Standards take the position that pretrial suppression hearings
are within the scope of the Sixth Amendment's public-trial provision.
ABA Project on Standards for Criminal Justice, Fair Trial and
Free Press, Standard 8-3.2, p. 15, and n. 1 (App. Draft 1978).
GANNETT CO. v. DEPASQUALE 437
368 Opinion of BLACKMUN, J.
trial-for purposes of the Sixth Amendment public-trial provision
the pretrial suppression hearing at issue in this case
must be considered part of the trial.
It is significant that the sources upon ,vhich the Court
relies do not concern suppression hearings. They concern
hearings to determine probable cause to bind a defendant
over for trial. E. g., Indictable Offences Act, 11 & 12 Viet.,
ch. 42, §§ 17, 19 (1848); Cal. Penal Code Ann. § 868 (West
Supp. 1979). Such proceedings are not critical to the criminal
justice system in the way the suppression-of-evidence hearing
is and they are not close equivalents of the trial itself in form.
The fact that such proceedings might have been held in private
at common law in England or in this country does not
detract from my conclusion that pretrial suppression hearings
should not be, any more than does the fact that grand juriesor
preliminary proceedings such as coroner's inquests at common
law-were and are secret.
Indeed, the modern suppression hearing, unknown at common
law, is a type of objection to evidence such as took place
at common la,v, and as takes place today in the case of nonconstitutional
objections, in open court during trial. There
is no federal requirement that States conduct suppression hearings
prior to trial. See Pinto v. Pierce, 389 U. S. 31, 32
( 1967). I assume that if such an objection were made
during trial, it would be made in open court during the course
of the public trial. I am unwilling to a1lmv the temporal
factor to control whether the public will be able to have
access to the proceeding.
The Court also must believe that not even the accused
has a right to a public pretrial suppression hearing. For if,
as the Court assumes for the sake of argument, there is a
public right to attend trials that the Sixth Amendment protects,
it is difficult to see why, if that right does not extend
to preliminary proceedings insofar as the public is concerned,
it should extend to such proceedings insofar as the defendant
438 OCTOBER TERM, 1978
Opinion of BLAcKMUN, J . 443 U.S.
is concerned. And many of the precedents upon which the
Court relies denied a public preliminary proceeding to the
accused as well as to the public. E. g., Indictable Offences
Act, 11 & 12 Viet., ch. 42, § 17 (1848).
Alternatively, the Court finds that the right to a public
trial is the right of the accused only, and that the public
has no enforceable interest in public trials. Under this
analysis, the defendant-so long as the prosecution and the
judge agree-may surely close a full trial on the merits as
well as a pretrial suppression hearing. The Court's analysis
would thus allow closed trials as well without providing
for any standards to insure that "the public['s] ... right to
be informed as to what occurs in its courts" has been protected.
Estes v. Texas, 381 U. S., at 541.
I, for one, am unwilling to allow trials and suppression hearings
to be closed with no way to ensure that the public interest
is protected. Unlike the other provisions of the Sixth Amendment,
the public-trial interest cannot adequately be protected
by the prosecutor and judge in conjunction, or connivance,
with the defendant. The specter of a trial or suppression
hearing where a defendant of the same political party as the
prosecutor and the judge-both of whom are elected officials
perhaps beholden to the very defendant they are to tryobtains
closure of the proceeding without any consideration
for the substantial public interest at stake is sufficiently real
to cause me to reject the Court's suggestion that the parties
be given complete discretion to dispose of the public's interest
as they see fit. The decision of the parties to close a proceeding
in such a circumstance, followed by suppression of
vital evidence or acquittal by the bench, destroys the appearance
of justice and undermines confidence in the judicial
system in a way no subsequent provision of transcript might
remedy. But even where no connivance occurs, prosecutors
and judges may have their own reasons for preferring a closed
proceeding. And a prosecutor, who seeks to obtain a conGANNETT
CO. v. DEPASQUALE 439
368 Opinion of BLACKMUN, J.
viction free from error, and a judge who seeks the same while
protecting the defendant's rights, may lack incentive to assert
some notion of the public interest in the face of a motion by a
criminal defendant to close a trial.
III
At the same time, I do not deny that the publication of
information learned in an open proceeding may harm irreparably,
under certain circumstances, the ability of a defendant
to obtain a fair trial. This is especially true in the context
of a pretrial hearing, where disclosure of information, determined
to be inadmissible at trial, may severely affect a
defendant's rights. Although the Sixth Amendment's publictrial
provision establishes a strong presumption in favor of
open proceedings, it does not require that all proceedings be
held in open court when to do so would deprive a defendant
of a fair trial.
No court has held that the Sixth Amendment imposes an
absolute requirement that courts be open at all times. On
the contrary, courts on both the state and federal levels have
recognized exceptions to the public-trial requirement even
when it is the accused who objects to the exclusion of the
public or a portion thereof. Thus, it is clear that the court
may exclude unruly spectators or limit the number of spectators.
And in both Estes v. Texas, 381 U. S. 532 (1965) , and
Sheppard v. Maxwell, 384 U. S. 333 (1966), this Court held
that a court may place restrictions on the access of the electronic
media in particular, and certain types of newsgathering
in general, inside the courthouse doors. There are a number
of instances where the courts have gone further and upheld
the exclusion of the public for limited periods of time. Examples
are when it was necessary to preserve the confidentiality
of the Government's "skyjacker profile," United States v. Bell,
464 F. 2d 667 (CA2), cert. denied, 409 U. S. 991 ( 1972), and
when it was necessary to effectuate Congress' determination
440 OCTOBER TERM, 1978
Opinion of BLAcKMUN, J. 443U.S.
that the confidentiality of communications intercepted under
Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, 18 U. S. C. § 2510 et seq., be preserved prior to the
determination that such communications were lawfully intercepted.
United States v. Cianfrani, 573 F. 2d 835 (CA3
1978).
I need express no opinion on the correctness of such decisions.
But they illustrate that courts have been willing to
permit limited exceptions to the principle of publicity where
necessary to protect some other interest. Because of the importance
we attach to a fair trial, it is clear that whatever
restrictions on access the Sixth Amendment may prohibit in
another context, it does not prevent a trial court from restricting
access to a pretrial suppression hearing where such restriction
is necessary in order to ensure that a defendant not be
denied a fair trial as a result of prejudicial publicity flowing
from that hearing.16 See Branzburg v. Hayes, 408 U. S. 665,
685 (1972).
At the same time, however, the public's interest in maintaining
open courts requires that any exception to the rule
be narrowly drawn. It comports with the Sixth Amendment
to require an accused who seeks closure to establish that it is
strictly and inescapably necessary in order to protect the fairtrial
guarantee. That finding must be made in the first
instance, of course, by the trial court. I cannot detail here
16 This observation is confined to cases where the defendant seeks to close
the hearing on the ground that his fair-trial rights will be infringed by
an open proceeding. I express no opinion as to whether or when a
proceeding subject to the command of the Sixth Amendment may be
closed over the objection of the defendant. Nor need I determine what
interests other than those of the defendant in a fair trial may support
an order of closure. My comments are also confined to rulings within
the ambit of the Sixth Amendment's public-trial provision. I thus express
no opinion about proceedings, such as those in juvenile court, not otherwise
subject to the requiremf'nt of the Sixth Amendment. See McKeiver
v. Pennsylvania, 403 U.S. 528, 540---541 (1971) (plurality opinion.)
GANNETT CO. v. DEPASQUALE 441
368 Opinion of BLACKMUN, J.
all the factors to be taken into account in evaluating the
defendant's closure request, nor can I predict how the balance
should be struck in every hypothetical case. The accused
who seeks closure should establish, however, at a minimum
the following:
First, he should provide an adequate basis to support a finding
that there is a substantial probability that irreparable
damage to his fair-trial right will result from conducting the
proceeding in public. This showing will depend on the facts.
But I think it requires evidence of the nature and extent of
the publicity prior to the motion to close in order to establish
a basis for the trial court to conclude that further coverage will
result in the harm sought to be prevented. In most cases,
this will involve a showing of the impact on the jury pool.
This seldom can be measured with exactness, but information
relating to the size of the pool, the extent of media coverage
in the pertinent locality, and the ease with which change of
venire can be accomplished or searching voir dire instituted to
protect against prejudice, would be relevant. The court also
should consider the extent to which the information sought
to be suppressed is already known to the public, and the
extent to which publication of such information, if unknown,
would have an impact in the context of the publicity that has
preceded the motion to close.
Second, the accused should show a substantial probability
that alternatives to closure will not protect adequately his
right to a fair trial. One may suggest numerous alternatives,
but I think the following should be considered: continuance,
severance, change of venue, change of venire, voir dire, peremptory
challenges, sequestration, and admonition of the
jury. ABA Project on Standards for Criminal Justice, Fair
Trial and Free Press, Standard 8-3.2, p. 16 (App. Draft 1978).
See Nebraska Press Assn. v. Stuart, 427 U. S., at 562-565;
Sheppard v. Maxwell, 384 U.S., at 354 n. 9, 358-362. One or
more of these alternatives may adequately protect the ac442
OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
cused's interests and relieve the court of any need to close the
proceeding in advance.17
I note, too, that for suppression hearings alternatives to
closure exist that would enable the public to attend but that
would limit dissemination of the information sought to be
suppressed. At most such hearings, the issues concern not so
much the contents of a confession or of a wiretap, or the
nature of the evidence seized, but the circumstances under
which the prosecution obtained this material. Many hearings,
with care, could be conducted in public with little risk
that prejudicial information would be disclosed.
Third, the accused should demonstrate that there is a substantial
probability that closure will be effective in protecting
against the perceived ha.rm. Where significantly prejudicial
information already has been made public, there might well
be little justification for closing a pretrial hearing in order
to prevent only the disclosure of details.
I emphasize that the trial court should begin with the
assumption that the Sixth Amendment requires that a pre-
17 The Court suggests that the public's interest will be served adequately
by permitting delayed access to the transcript of the closed
proceeding once the danger to the accused's fair-trial right has dissipated.
A transcript, however, docs not always adequately substitute for presence
at the proc~cding itself. Also, the inherent delay may defeat the purpose
of the public-trial requirement. Later events may crowd news of yesterday's
proceeding out of the public view. "As a practical matter ... the
element of time is not unimportant if press coverage is to fulfill its traditional
function of bringing news to the public promptly." Nebraska
Press Assn. v. Stuart, 427 U. S., at 561. Public access is restricted
precisely at the time when public interest is at its height. Bridges v.
Cmifornw, 314 U. S. 252, 268 (1941). Moreover, an important event,
such as a judicial election or the selection of a prosecuting attorney, may
occur when the public is ignorant of the details of judicial and prosecutorial
conduct. Finally, although a record is kept for later release, when
the proceeding itself is kept secret, it is impossible to know what it would
have been like had the pressure of publicity been brought to bear on the
parties during the proceeding itself.
GANNETT CO. v. DEPASQUALE 443
368 Opinion of BLACKMUN, J.
trial suppression hearing be conducted in open court unless a
defendant carries his burden to demonstrate a strict and inescapable
necessity for closure. There should be no need for a
representative of the public to demonstrate that the public interest
is legitimate or genuine, or that the public seeks access
out of something more than mere curiosity. Trials and suppression
hearings by their nature are events of legitimate
public interest, and the public need demonstrate no threshold of
respectability in order to attend. This is not to say, of course,
that a court should not take into account heightened public
interest in cases of unusual importance to the community or
to the public at large. The prosecution of an important officeholder
could intensify public interest in observing the proceedings,
and the court should take that interest into account
where it is warranted. It is also true, however, that as the
public interest intensifies, so does the potential for prejudice.
As a rule, the right of the accused to a fair trial is compatible
with the interest of the public in maintaining the publicity
of pretrial proceedings. "In the overwhelming majority of
criminal trials, pretrial publicity presents few unmanageable
threats to this important right." Nebraska Press Assn. v.
Stuart, 427 U. S., at 551. Our cases "cannot be made to stand
for the proposition that juror exposure to information about
a state defendant's prior convictions or to news accounts of
the crime with which he is charged alone presumptively deprives
the defendant of due process." Murphy v. Florida, 421
U. S. 794, 799 ( 1975). A high level of publicity is not necessarily
inconsistent with the ability of the defendant to obtain
a fair trial where the publicity has been largely factual in
nature, id., at 802; Beck v. Washington, 369 U.S. 541, 542-
545, 557-558 (1962), or where it abated some time prior to
trial. See Stroble v. California, 343 U.S. 181, 191-194 (1952).
In those cases where a court has found publicity sufficiently
prejudicial as to warrant reversal on due process
grounds, the publicity went far beyond the normal bounds of
444 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
coverage. In Irvin v. Dowd, 366 U.S. 717 (1961) , for example,
there was a barrage of adverse publicity about the defendant's
offer t-0 plead guilty and his confession to several
murders and burglaries. In Rideau v. Louisiana, 373 U. S.
723 (1963), there was live pretrial television coverage of the
defendant's confession. And in Estes v. Texas, 381 U. S.
532 (1965) , and Sheppard v. Maxwell, 384 U.S. 333 (1966),
the press, and especially the electronic media, intruded to such
an extent on the courtroom proceedings that all semblance of
decorum and sobriety was lost. See Nebraska Press Assn. v.
Stuart, 427 U. S., at 551-556; Murphy v. Florida, 421 U. S.,
at 798-799.
But " [ c] ases such as these are relatively rare." Nebraska
Press, 427 U. S., at 554. All our decisions in this area,
"[t]aken together, ... demonstrate that pretrial publicityeven
pervasive, adverse publicity-does not inevitably lead to
an unfair trial." Ibid. These cases provide the background
against which a trial judge must evaluate a motion to close a
hearing on the ground that an open hearing will result in publicity
so prejudicial that a defendant will be deprived of his
due process right to a fair trial. In Stroble, Murphy, and
Beck, of course, the sharpened vision of hindsight helped the
Court to see that the trial had been fair notwithstanding the
publicity. The trial judge faced with a closure motion has
the more difficult task of looking into the future. I do not
mean to suggest that only in the egregious circumstances of
cases such as Estes and Sheppard would closure be permissible.
But to some extent the harm that the defendant fears
from publicity is also speculative.
If, after considering the essential factors, the trial court
determines that the accused has carried his burden of establishing
that closure is necessary, the Sixth Amendment is no
barrier to reasonable restrictions on public access designed to
meet that need. Any restrictions imposed, however, should extend
no further than the circumstances reasonably require.
GANNETT CO. v. DEPASQUALE 445
368 Opinion of BLACKMUN, J.
Thus, it might well be possible to exclude the public from only
those portions of the proceeding at which the prejudicial information
would be disclosed, while admitting to other portions
where the information the accused seeks to suppress
would not be revealed. United States v. Cianfrani, 573 F. 2d,
at 854. Further, closure should be temporary in that the
court should ensure that an accurate record is made of those
proceedings held in camera and that the public is permitted
proper access to the record as soon as the threat to the defendant's
fair-trial right has passed.
I thus reject the suggestion that the defendant alone may
determine when closure should occur. I also reject any
notion that the decision whether to permit closure should be
in the hands of the prosecutor on the theory that he is the
representative of the public's interest. It is in part the
public's interest in observing the conduct of the prosecutor,
and the police with whom he is closely associated, that the
public-trial provision serves. To cloak his own actions or
those of his associates from public scrutiny, a prosecutor thus
may choose to close a hearing where the facts do not warrant
it. Moreover, prosecutors often are elected, and the public
has a strong interest, as noted, in observing the conduct of
elected officials. In addition, the prosecutor may fear reversal
on appeal if he too strenuously resists the motion of a defendant
to close a hearing. Conversely, a prosecutor may wrap
in the mantle of the public interest his desire to disseminate
prejudicial information about an accused prior to trial, and
so resist a motion to close where the circumstances warrant
some restrictions on access. I thus am unwilling to commit
to the discretion of the prosecutor, against whose own misconduct
or incompetence the public-trial requirement is designed
in part to protect, the decision as to whether an accused's
motion to close will be granted.
As a final safeguard, I would conclude that any person removed
from a court should be given a reasonable opportunity to
446 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U.S.
state his objections prior to the effectiveness of the order.
This opportunity need not take the form of an evidentiary
hearing; it need not encompass extended legal argument that
results in delay; and the public need not be given prior notice
that a closure order will be considered at a given time and
place. But where a member of the public contemporaneously
objects, the court should provide a reasonable opportunity to
that person to state his objection. Finally, the court should
state on the record its findings concerning the need for closure
so that a reviewing court may be adequately informed.
IV
The Sixth Amendment, in establishing the public's right
of access to a criminal trial and a pretrial proceeding, also fixes
the rights of the press in this regard. Petitioner, as a newspaper
publisher, enjoys the same right of access to the Jackson
v. Denno hearing at issue in this case as does the general
public. And what petitioner sees and hears in the courtroom
it may, like any other citizen, publish or report consistent with
the First Amendment. "Of course, there is nothing that proscribes
the press from reporting events that transpire in the
courtroom." Sheppard v. Maxwell, 384 U. S., at 362-363.
Reporters for newspaper, television, and radio "are entitled to
the same rights as the general public" to have access to the
courtroom, Estes v. Texas, 381 U. S., at 540, where they "are
always present if they wish to be and are plainly free to report
whatever occurs in open court through their respective media."
Id., at 541-542. "[O]nce a public hearing ha[s] been held,
what transpired there could not be subject to prior restraint."
Nebraska Press Assn. v. Stuart, 427 U.S., at 568.
Petitioner acknowledges that it seeks no greater rights than
those due the general public. But it argues that, the Sixth
Amendment aside, the First Amendment protects the free flow
of information about judicial proceedings, and that this flow
may not be cut off without meeting the standards required to
GANNETT CO. v. DEPASQUALE 447
368 Opinion of BLACKMUN, J.
justify the imposition of a prior restraint under the First
Amendment. Specifically, petitioner argues that the First
Amendment prohibits closure of a pretrial proceeding except
in accord with the standards established in Nebraska Press
and only after notice and hearing and a stay pending appeal.
I do not agree. As I have noted, this case involves no
restraint upon publication or upon comment about information
already in the possession of the public or the press. It
involves· an issue of access to a judicial proceeding. To the
extent the Constitution protects a right of public access to
the proceeding, the standards enunciated under the Sixth
Amendment suffice to protect that right. I therefore need
not reach the issue of First Amendment access.
V
I return to the exclusion order entered by Judge DePasquale.
It is clear that the judge entered the order because of his
apparent concern for the fair-trial rights of the defendants
and his suspicion that those rights would be threatened if the
hearing were public. I ackno,vledge that concern, but I conclude
that the order was not justified on the facts of this case.
There was no factual basis upon which the court could conclude
that a substantial probability existed that an open proceeding
would result in harm to the defendants' rights to a fair
trial. The coverage in petitioner's newspapers of Clapp's disappearance
and the subsequent arrest and prosecution of
Greathouse and Jones was circumspect. Stories appeared on
only 7 of the 18 days between July 20 and August 6. All
coverage ceased on August 6 and did not resume until after
the suppression hearing three months later. The stories that
appeared were largely factual in nature. The reporting was
restrained and free from editorializing or sensationalism.
There was no screaming headline, no lurid photograph, no
front-page overemphasis. The stories were of moderate length
and were linked to factual developments in the case. And
448 OCTOBER TERM, 1978
Opinion of BLACKMUN, J. 443 U. S.
petitioner's newspapers had only a small circulation in Seneca
County. See n. 1, ante, of the Court's opinion.
In addition, counsel for respondents stated that the only
fact not known to petitioner prior to the suppression hearing
was the content of the confessions. Tr. of Oral Arg. 40.
Prior to the hearing, petitioner had learned of the confessions
and of the existence and nature of the physical evidence
sought to be suppressed. It is thus not at all likely that the
openness of the suppression hearing would have resulted in
the divulgence of additional information that would have
made it more probable that Greathouse and Jones would be
denied a fair trial.
On this record, I cannot conclude, as a matter of law, that
there was a sufficient showing to establish the strict and inescapable
necessity that supports an exclusion order. The circumstances
also would not have justified a holding by the
trial court that there was substantial probability that alternatives
to closure would not have sufficed to protect the rights
of the accused.
It has been said that publicity "is the soul of justice."
J. Bentham, A Treatise on Judicial Evidence 67 (1825). And
in many ways it is: open judicial processes, especially in the
criminal field, prot€ct against judicial, prosecutorial, and police
abuse; provide a means for citizens to obtain information
about the criminal justice system and the performance of public
officials; and safeguard the integrity of the courts. Publicity
is essential to the preservation of public confidence in
the rule of law and in the operation of courts. Only in rare
circumstances docs this principle clash with the rights of the
criminal defendant to a fair trial so as to justify exclusion.
The Sixth and Fourteenth Amendments require that the
States take care to determine that those circumstances exist
before excluding the public from a hearing to which it otherwise
is entitled to come freely. Those circumstances did not
exist in this case.
COLUMBUS BOARD OF EDUCATION v. PENICK 449
Syllabus
COLUMBUS BOARD OF EDUCATION ET AL. v.
PENICK ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT
No. 78-610. Argued April 24, 1979-Decided July 2, 1979
This class action was brought in 1973 by students in the Columbus, Ohio,
school system, charging that the Columbus Board of Education (Board)
and its officials had pursued and were pursuing a course of conduct
having the purpose and effect of causing and perpetuating racial segregation
in the public schools, contrary to the Fourteenth Amendment.
The case was ultimately tried in April-June 1976, final arguments were
heard in September 1976, and in March 1977 the District Court .filed
an opinion and order containing its findings of fact and conclusions of
law. It found (1) that in 1954, when Brown v. Board of Education,
347 U. S. 483 (Brown I), was decided, the Board was not operating a
racially neutral unitary school system, but was conducting "an enclave
of separate, black schools on the near east side of Columbus" and that
this was "the direct result of cognitive acts or omissions of those school
board members and administrators who had originally intentionally
caused and later perpetuated the racial isolation"; (2) that since the
decision in Brown v. Board of Education, 349 U.S. 294 (Brown II), the
Board had been under a continuous constitutional obligation to disestablish
its dual system and that it has failed to discharge this duty; and
(3) that in the intervening years since 1954 ther,e had been a series of
Board actions and practices that could not "reasonably be explained
without reference to racial concerns" and that "intentionally aggravated,
rather than alleviated," racial separation in the schools. Ultimately concluding
that at the time of trial the racial segregation in the Columbus
school system "directly resulted from [the Board's] intentional segregative
acts and omissions," in violation of the Equal Protection Clause of
the Fourteenth Amendment, the court, accordingly, enjoined the defendants
from continuing to discriminate on the basis of race in operating the
public schools and ordered the submission of a systemwide desegregation
plan. Subsequently, following the decision in Daytan Board of Education
v. Brinkman, 433 U. S. 406 (Dayton I), the District Court rejected
the Board's argument that that decision required or permitted modification
of the court's finding or judgment. Based on its examination of the
record, the Court of Appeals affirmed the judgments against the
defendants.
450
Held:
OCTOBER TERM, 1978
Syllabus 443 U.S.
1. On the record, there is no apparent reason to disturb the findings
and conclusions of the District Court, affirmed by the Court of Appeals,
that the Board's conduct at the time of trial and before not only was
animated by an unconstitutional, segregative purpose, but also had current
segregative impact that was sufficiently systemwide to warrant the
remedy ordered by the District Court. Pp. 454-463.
(a) Proof of purposeful and effective maintenance of a body of
separate black schools in a substantial part of the system is itself prima
facie proof of a dual system and supports a finding to this effect absent
sufficient contrary _proof by the Board, which was not forthcoming in
this case. Pp. 455-458.
(b) The Board's continuing affirmative duty to disestablish the
dual school system, mandated by Brown II, is beyond question, and
there is nothing in the record to show that at the time of trial the dual
school system in Columbus and its effects had been disestablished. Pp.
458-461.
2. There is no indication that the judgments below !'ested on any
misapprehension of the controlling law. Pp. 463-468.
(a) Where it appears that the Di~trict Court, while recognizing
that disparate impact and foreseeable consequences, without more, do
not establish a constitutional violation, correctly noted that actions
having foreseeable and anticipated disparate impact are relevant evidence
to prove the ultimate fact of a forbidden purpose, the court stayed
well within the requirements of Washington v. Davis, 426 U.S. 229, and
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252,
that a plaintiff seeking to make out an equal protection violation on the
basis of racial discrimination must show purpose. Pp. 464-465.
(b) Where the District Court repeatedly emphasized that it had
found purposefully segregative practices with current, systemwide
impact, there was no failure to observe the requirements of Dayton I,
that the remedy imposed by a court of equity should be commensurate
with the violation a.scertained. Pp. 465--467.
(c) Nor was there any misuse of Keyes v. School Dist. No. 1, Den,-
ver, Colo., 413 U. S. 189, where it wa.s held that purposeful discrimination
in a substantial part of a school system furnishes a sufficient basis
for an inferential finding of a systemwide discriminatory intent unless
otherwise rebutted and that given the purpose to operate a dual school
system one could infer a connection between such purpose and racial
separation in other parts of the school system. Pp. 467-468.
583 F. 2d 787, affirmed.
COLUMBUS BOARD OF EDUCATION v. PENICK 451
449 Syllabus
WHITE, J., delivered the opinion of the Court, in which BRENNAN,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BURGER, C. J., filed an
opinion concurring in the judgment, post, p. 468. STEWART, J., filed an
opiruon concurring in the judgment, in which BURGER, C. J., joined, post,
p. 469. POWELL, J., filed a dissenting opinion, post, p. 479. REHNQUIST,
J., filed a dissenting opinion, in which PowELL, J., joined, post, p. 489.
Samuel H. Porter argued the cause for petitioners. With
him on the briefs were Earl F. Morris and Curtis A. Loveland.
Thomas I. Atkins argued the cause for respondents. With
him on the brief were Richard M. Stein, William L. Taylor,
Nathaniel R. Jones, Louis R. Lucas, William E. Caldwell, Paul
R. Dimond, Robert A. Murphy, Richard S. Kohn, and Norman
J. Chachkin. Mark O'Neill filed a brief for the Ohio
State Board of Education et al. as respondents under this
Court's Rule 21 ( 4).
Assistant Attorney General Days argued the cause for the
United States as amicus curiae urging affirmance. With him
on the brief were Acting Solicitor General Wallace, Sara Sun
Beale, Brian K. Landsberg, and Robert J. Reinstein.*
*Briefs of amici curiae urging reversal were filed by Richard S. Gebelein,
Attorney General of Delaware, Regina M. Small, Deputy Attorney General,
Mason E. Turner, Jr., James T. McKinstry, and Philip B. Kurland
for the Delaware State Board of Education et al.; and by Charles E.
Brown and Ira Owen Kane for the Neighborhood School Coordinating
Committee et al.
Briefs of amici curiae urging affirmance were filed by Burt N euborne,
E. Richard Larson, Robert Allen Sedler, Winn Newman, and Carole W.
Wilson for the American Civil Liberties Union et al.; by Arthur J.
Lesemann for the Fair Housing Council of Bergen County, N. J.; by
Jack Greenberg, James M. Nabrit III, Bill Lann Lee, Joseph L. Rauh, Jr.,
John Si/,ard, Elliott C. Lichtman, and John Fillion for the NAACP Legal
Defense and Educationa.J Fund, Inc., et al.; and by Stephen J. Pollak,
Richard M. Sharp, W endy S. White, and David Rubin for the National
Education Association et al.
Briefs of amici curiae were filed by Harriet F. Pilpel, Nathan Z. Dershowitz,
and Joseph B. Rabi.son for the American Jewish Congress; and by
Duane W. Krohnke for Special School District No. 1, Minneapolis, Minn .
452 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
MR. JUSTICE WHITE delivered the opinion of the Court.
The public schools of Columbus, Ohio, are highly segregated
by race. In 1976, over 32% of the 96,000 students in the system
were black. About 70% of all students attended schools
that were at least 80% black or 80% white. 429 F. Supp. 229,
240 (SD Ohio 1977). Half of the 172 schools were 90%
black or 90% white. 583 F. 2d 787, 800 (CA6 1978). Fourteen
named students in the Columbus school system brought
this case on June 21, 1973, against the Columbus Board of
Education, the State Board of Education, and the appropriate
local and state officials.1 The second amended complaint,
filed on October 22, 1974, charged that the Columbus defendants
had pursued and were pursuing a course of conduct having
the purpose and effect of causing and perpetuating
segregation in the public schools, contrary to the Fourteenth
Amendment. A declaratory judgment to this effect and
appropriate injunctive relief were prayed. Trial of the case
began more than a year later, consumed 36 trial days, produced
a record containing over 600 exhibits and a transcript
in excess of 6,600 pages, and was completed in June 1976.
Final arguments were heard in September, and in March 1977
the District Court filed an opinion and order containing its
findings of fact and conclusions of law. 429 F. Supp. 229.
The trial court summarized its findings:
"From the evidence adduced at trial, the Court has
found earlier in this opinion that the Columbus Public
Schools were openly and intentionally segregated on the
basis of race when Brown rv . Board of Education, 347
U. S. 483 (Brown I)] was decided in 1954. The Court
has found that the Columbus Board of Education never
actively set out to dismantle this dual system. The Court
has found that until legal action was initiated by the
1 A similar group of plaintiffs was allowed to intervene, and the original
plaintiffs were allowed to file an amended complaint that was certified as a
class action. 429 F. Supp. 229, 233-234 (SD Ohio 1977); App. 50.
449
COLUMBUS BOARD OF EDUCATION v. PENICK 453
Opinion of the Court
Columbus Area Civil Rights Council, the Columbus
Board did not assign teachers and administrators to Columbus
schools at random, without regard for the racial
composition of the student enrollment at those schools.
The Columbus Board even in very recent times ... has approved
optional attendance zones, discontiguous attendance
areas and boundary changes which have maintained
and enhanced racial imbalance in the Columbus Public
Schools. The Board, even in very recent times and after
promising to do otherwise, has adjured [sic] workable suggestions
for improving the racial balance of city schools.
"Viewed in the context of segregative optional attendance
zones, segregative faculty and administrative hiring
and assignments, and the other such actions and decisions
of the Columbus Board of Education in recent and remote
history, it is fair and reasonable to draw an inference of
segregative intent from the Board's actions and omissions
discussed in this opinion." Id., at 260--261.
The District Court's ultimate conclusion was that at the
time of trial the racial segregation in the Columbus school
system "directly resulted from [ the Board's] intentional segregative
acts and omissions," id., at 259, in violation of the
Equal Protection Clause of the Fourteenth Amendment. Accordingly,
judgment was entered against the local and state
defendants enjoining them from continuing to discriminate on
the basis of race in operating the Columbus public schools and
ordering the submission of a systemwide desegregation plan.
Following decision by this Court in Dayton Board of Education
v. Brinkman, 433 U. S. 406 (Dayton/), in June 1977, and
in response to a motion by the Columbus Board, the District
Court rejected the argument that Dayton I required or permitted
any modification of its findings or judgment. It reiterated
its conclusion that the Board's "'liability in this case
concerns the Columbus School District as a whole,' " App. to
Pet. for Cert. 94, quoting 429 F. Supp., at 266, asserting that,
454 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
although it had "no real interest in any remedy plan which is
more sweeping than necessary to correct the constitutional
wrongs plaintiffs have suffered," neither would it accept any
plan "which fails to take into account the systemwide nature
of the liability of the defendants." App. to Pet. for Cert. 95.
The Board subsequently presented a plan that complied with
the District Court's guidelines and that was embodied in a
judgment entered on October 7. The plan was stayed pending
appeal to the Court of Appeals.
Based on its own examination of the extensive record, the
Court of Appeals affirmed the judgments entered s.gainst the
local defendants.2 583 F. 2d 787. The Court of Appeals
could not find the District Court's findings of fact clearly
erroneous. Id., at 789. Indeed, the Court of Appeals examined
in detail each set of findings by the District Court and
found strong support for them in the record. Id., at 798, 804,
805, 814. The Court of Appeals also discussed in detail and
found unexceptionable the District Court's understanding and
application of the Fourteenth Amendment and the cases construing
it.
Implementation of the desegregation plan was stayed pending
our disposition of the case. 439 U. S. 1348 (1978) (REHNQUIST,
J., in chambers). We granted the Board's petition for
certiorari, 439 U. S, 1066 (1979), and we now affirm the judgment
of the Court of Appeals.
I
The Board earnestly contends that when this case was
brought and at the time of trial its operation of a segregated
school system was not done with any general or specific
racially discriminatory purpose, and that whatever unconsti-
2 The Court of Appeals vacated the judgment against the state defendants
and remanded for further proceedings regarding those parties. 583
F. 2d 787, 815-818 (CA6 1978). No issue with respect to the state
defendants is before us now.
COLUMBUS BOARD OF EDUCATION v. PENICK 455
449 Opinion of the Court
tutional conduct it may have been guilty of in the past such
conduct at no time had systemwide segregative impact and
surely no remaining systemwide impact at the time of trial.
A systemwide remedy was therefore contrary to the teachings
of the cases, such as Dayton I, that the scope of the constitutional
violation measures the scope of the remedy.3
We have discovered no reason, however, to disturb the judgment
of the Court of Appeals, based on the findings and conclusions
of the District Court, that the Board's conduct at
the time of trial and before not only was animated by an unconstitutional,
segregative purpose, but also had current, segregative
impact that was sufficiently systemwide to warrant the
remedy ordered by the District Court.
These ultimate conclusions were rooted in a series of constitutional
violations that the District Court found the Board
to have committed and that together dictated its judgment and
decree. In each instance, the Court of Appeals found the
District Court's conclusions to be factually and legally sound.
A
First, although at least since 1888 there had been no statutory
requirement or authorization to operate segregated
schools,4 the District Court found that in 1954, when Brown v.
3 Petitioners also argue that the District Court erred in requiring that
every school in the system be brought roughly within proportionate racial
balance. \Ve see no misuse of mathematical ratios under our decision
in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22-25
(1971), especially in light of the Board's failure to justify the continued
existence of "some schools that are all or predominantly of one race .... "
Id., at 26; see App. to Pet. for Cert. 102-103. Petitioners do not otherwise
question the remedy if a systemwide violation was properly found.
4 In 1871, pursuant to the requirements of state law, Columbus maintained
a complete separation of the races in the public schools. 429 F.
Supp., at 234-235. The Ohio Supreme Court ruled in 1888 that state law
no longer required or permitted the segregation of schoolchildren. Board
of Education v. State, 45 Ohio St. 555, 16 N. E. 373. Even prior to
that, in 1881, the Columbus Board abolished its separate schools for
456 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
Board of Education, 347 U. S. 483 (Brown I), was decided,
the Columbus Board was not operating a racially neutral,
unitary school system, but was conducting "an enclave of
separate, black schools on the near east side of Columbus,"
and that " [ t] he then-existing racial separation was the direct
result of cognitive acts or omissions of those school board
members and administrators who had originally intentionally
caused and later perpetuated the racial isolation .... " 429
F. Supp., at 236. Such separateness could not "be said to
have been the result of racially neutral official acts." Ibid.
Based on its own examination of the record, the Court of
Appeals agreed with the District Court in this respect, observing
that, " [ w ]hile the Columbus school system's dual blackwhite
character was not mandated by state law as of 1954, the
record certainly shows intentional segregation by the Columbus
Board. As of 1954 the Columbus School Board had
'carried out a systematic program of segregation affecting a
substantial portion of the students, schools, teachers and facilities
within the school system.'" 583 F. 2d, at 798-799, quoting
Keyes v. School Dist. l\To. 1, Denver, Colo., 413 U. S. 189,
201-202 (1973).
The Board insists that, since segregated schooling was not
commanded by state law and since not all schools were wholly
black or wholly white in 1954, the District Court was not warblack
and white students, but by the end of the first decade of this century
it had returned to a segregated school policy. Champion Avenue
School was built in 1909 in a predominantly black area and was completely
staffed with bla.ck teachers. Other hlack schools were established
as the black population grew. The Board gerrymandered attendance
zones so that white students who lived near these schools were assigned
to or could attend white schools, which often were further from their
homes. By 1943, a. total of five schools had almost exclusively black
student bodies, and ea.ch was assigned an all-black faculty, often through
all-white to all-black faculty transfers that occurred each time the Board
came to consider a particular school as a black school. 429 F. Supp., at
234.-236.
COLUMBUS BOARD OF EDUCATION v. PENICK 457
449 Opinion of the Court
ranted in finding a dual system.5 But the District Court found
that the "Columbus Public Schools were officially segregated
by race in 1954," App. to Pet. for Cert. 94 ( emphasis added); 6
and in any event, there is no reason to question the finding
that as the "direct result of cognitive acts or omissions" the
5 Both our dissenting Brethren and the separate concurrence of MR. Jus-
TICE STEWART put great weight on the absence of a statutory mandate or
authorization to discriminate, but the Equal Protection Clause was aimed at
all official actions, not just those of state legislatures. "[N]o agency of the
State, or of the officers or agents by whom its powers are exerted, shall deny
to any person within its jurisdiction the equal protection of the laws. Whoever,
by virtue of public position under a State government, ... denies or
takes away the equal protection of the laws ... violates the constitutional
inhibition; and as he acts in the name and for the State, and is clothed with
the State's power, his act is that of the State." Ex parte Virginia, 100 U.S.
339,347 (1880). Thus, in Yick Wo v. Hopkins, 118 U.S. 356 (1886), the discriminatory
application of an ordinance fair on its face was found to be unconstitutional
state action. Even actions of state agents that may be illegal
under state law are attributable to the State. United States v. Price, 383
U.S. 787 (1966); Screws v. United States, 325 U.S. 91 (1945). Our decision
in Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189 (1973),
plainly demonstrates in the educational context that there is no magical
difference between segregated schools mandated by statute and those that
result from local segregative acts and policies. The presence of a statute
or ordinance commanding separation of the races would ease the plaintiff's
problems of proof, but here the District Court found that the local officials,
by their conduct and policies, had maintained a dual school system
in violation of the Fourteenth Amendment. The Court of Appeals agreed,
and we fail to see why there should be a lesser constitutional duty to
eliminate that system than there would have been had the system been
ordained by law.
6 The dissenters in this case claim a better grasp of the historical and
ultimate facts than the two courts below had. But on the issue of whether
there was a dual school system in Columbus, Ohio, in 1954, on the record
before us we are much more impressed by the views of the judges who
have lived with the case over the years. Also, our dissenting Brothers'
suggestion that this Court should play a special oversight role in reviewing
the factual dPterminations of the lower courts in school desegregation cases,
post, at 491-492 (REHNQUIST, J., dissenting), asserts an omnipotence and
omniscience that we do not have and should not claim.
458 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
Board maintained "an enclave of separate, black schools on
the near east side of Columbus." 429 F. Supp., at 236. Proof
of purposeful and effective maintenance of a body of separate
black schools in a substantial part of the system itself is
prima facie proof of a dual school system and supports a finding
to this effect absent sufficient contrary proof by the Board,
which was not forthcoming in this case. Keyes, supra, at 203.7
B
Second, both courts below declared that since the decision
in Brown v. Board of Education, 349 U. S. 294 (1955)
(Brown II), the Columbus Board has been under a continuous
constitutional obligation to disestablish its dual school system
and that it has failed to discharge this duty. App. to Pet. for
Cert. 94; 583 F. 2d, at 799. Under the Fourteenth Amendment
and the cases that have construed it, the Board's duty to
dismantle its dual system cannot be gainsaid.
Where a racially discriminatory school system has been
found to exist, Brown II imposes the duty on local school
boards to "effectuate a transition to a racially nondiscriminatory
school system." 349 U. S., at 301. "Brown II was a call
for the dismantling of well-entrenched dual systems," and
school boards operating such systems were "clearly charged
7 It is argued that Dayton I, 433 U. S. 406 (1977), implicitly overruled
or limited those portions of Keyes and Swann approving, in certain circumstances,
inferences of general, systemwide purpose and current, systemwide
impact from evidence of discriminatory purpose that has resulted in
substantial current segregation, and approving a systemwide remedy
absent a showing by the defendant of what part of the current imbalance
was not caused by the constitutional breach. Dayton I does not purport
to disturb any aspect of Keyes and Swann; indeed, it cites both cases with
approval. On the facts found by the District Court and affirmed by the
Court of Appeals at the time Dayton first came before us, there were only
isolated instances of intentional segregation, which were insufficient to
give rise to an inference of systemwide institutional purpose and which
did not add up to a facially substantial systemwide impact. Dayton
Board of Education v. Brinkman (Dayton II), post, at 531, and n. 5.
COLUMBUS BOARD OF EDUCATION v. PENICK 459
449 Opinion of the Court
with the affirmative duty to take whatever steps might be
necessary to convert to a unitary system in which racial discrimination
would be eliminated root and branch." Green v.
County School Board, 391 U. S. 430, 437--438 (1968). Each
instance of a failure or refusal to fulfill this affirmative duty
continues the violation of the Fourteenth Amendment. Dayton
I, 433 U. S., at 413--414; Wright v. Council of City of
Emporia, 407 U. S. 451, 460 (1972); United States v. Scotland
Neck Board of Education, 407 U. S. 484 (1972) (creation
of a new school district in a city that had operated a dual
school system but was not yet the subject of court-ordered
desegregation).
The Green case itself was decided 13 years after Brown II.
The core of the holding was that the school board involved
had not done enough to eradicate the lingering consequences
of the dual school system that it had been operating at the
time Brown I was decided. Even though a freedom-of-choice
plan had been adopted, the school system remained essentially
a segregated system, with many all-black and many all-white
schools. The board's continuing obligation, which had not
been satisfied, was" 'to come forward with a plan that promises
realistically to work ... now ... until it is clear that stateimposed
segregation has been completely removed.' " Swann
v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1,
13 ( 1971), quoting Green, supra, at 439 ( emphasis in original).
As THE CHIEF JusTICE's opinion for a unanimous Court
in Swann recognized, Brown and Green imposed an affirmative
duty to desegregate. "If school authorities fail in their affirmative
obligations under these holdings, judicial authority may
be invoked. . . . In default by the school authorities of their
obligation to proffer acceptable remedies, a district court has
broad power to fashion a remedy that will assure a unitary
school system.'' 402 U. S., at 15-16. In Swann, it should be
recalled, an initial desegregation plan had been entered in
1965 and had been affirmed on appeal. But the case was
reopened, and in 1969 the school board was required to come
460 OCTOBER TERM, 1978
Opinion of the Court 443 U. S.
forth with a more effective plan. The judgment adopting the
ultimate plan was affirmed here in 1971, 16 years after
Brown II.
In determining whether a dual school system has been disestablished,
Swann also mandates that matters aside from
student assignments must be considered:
"[W] here it is possible to identify a 'white school' or a
'Negro school' simply by reference to the racial composition
of teachers and staff, the quality of school buildings
and equipment, or the organization of sports activities, a
prima facie case of violation of substantive constitutional
rights under the Equal Protection Clause is shown." 402
U.S., at 18.
Further, Swann stated that in devising remedies for legally
imposed segregation the responsibility of the local authorities
and district courts is to ensure that future school construction
and abandonment are not used and do not serve to perpetuate
or re-establish the dual school system. Id., at 20-21. As for
student assignments, the Court said:
"No per se rule can adequately embrace all the difficulties
of reconciling the competing interests involved; but
in a system with a history of segregation the need for
remedial criteria of sufficient specificity to assure a school
authority's compliance with its constitutional duty warrants
a presumption against schools that are substantially
disproportionate in their racial composition. Where the
school authority's proposed plan for conversion from a
dual to a unitary system contemplates the continued
existence of some schools that are all or predominantly
of one race, they have the burden of showing that such
school assignments are genuinely nondiscriminatory."
Id., at 26.
The Board's continuing "affirmative duty to disestablish the
dual school system" is therefore beyond question, McDaniel
COLUMBUS BOARD OF EDUCATION v. PENICK 461
449 Opinion of the Court
v. Barresi, 402 U. S. 39, 41 (1971), and it has pointed to
nothing in the record persuading us that at the time of trial
the dual school system and its effects had been disestablished.
The Board does not appear to challenge the finding of the
District Court that at the time of trial most blacks were still
going to black schools and most whites to white schools.
Whatever the Board's current purpose with respect to racially
separate education might be, it knowingly continued its failure
to eliminate the consequences of its past intentionally
segregative policies. The Board "never actively set out to dismantle
this dual system." 429 F. Supp., at 260.
C
Third, the District Court not only found that the Board had
breached its constitutional duty by failing effectively to eliminate
the continuing consequences of its intentional systemwide
segregation in 1954, but also found that in the intervening
years there had been a series of Board actions and practices
that could not "reasonably be explained without reference
to racial concerns,'' id., at 241, and that "intentionally aggravated,
rather than alleviated," racial separation in the
schools. App. to Pet. for Cert. 94. These matters included
the general practice of assigning black teachers only to those
schools with substantial black student populations, a practice
that was terminated only in 1974 as the result of a conciliation
agreement with the Ohio Civil Rights Commission; the intentionally
segregative use of optional attendance zones,8 discon-
8 Despite petitioners' avowedly strong preference for neighborhood
schools, in times of residential racial transition the Board created optional
attendance zones to allow white students to avoid predominantly black
schools, which were often closer to the homes of the white pupils. For
example, until well after the time the complaint was filed, petitioners
allowed students in "a small, white enclave on Columbus' predominantly
black near-east side ... to escape attendance at black" schools. 429 F.
Supp., at 244. The court could perceive no racially neutral reasons for
this optional zone. Id., at 245. "Quite frankly, the Near-Bexley Option
462 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
tiguous attendance areas,9 and boundary changes; 10 and the
selection of sites for new school construction that had the
foreseeable and anticipated effect of maintaining the racial
separation of the schools.11 The court generally noted that
appears to this Court to be a classic example of a segregative device designed
to permit white students to escape attendance at predominantly
black schools." Ibid.
9 This technique was applied when neighborhood schools would have
tended to desegregate the involved schools. In the 1960's, a group of
white students were bused past their neighborhood school to a "whiter"
school. The District Court could "discern no other explanation than a
racial one for the existence of the Moler discontiguous attendance area
for the period 1963 through 1969." Id., at 247. From 1957 until 1963,
students living in a predominantly white area near Heimandale Elementary
School attended a more remote, but identifiably white school.
Id., at 247-248.
10 Gerrymandering of boundary lines also continued after 1954. The
District Court found, for instance, that for one area on the west side of
the city containing three white schools and one black school the Board had
altered the lines so that white residential areas were removed from the
black school's zone and black students were contained within that zone.
Id., at 245-247. The Court found that the segregative choice of lines was
not justified "as a matter of academic administration" and "had a substantial
and continuing segregative impact upon these four west side
schools." Id., at 247.
Another example involved the former Mifflin district that had been
absorbed into the Columbus district. The Board staff presented two alternative
means of drawing necessary attendance zones: one that was desegregative
and one that was segregative. The Board chose the segregative
option, and the District Court was unpersuaded that it had any legitimate
educational reasons for doing so. Id., at 248-250.
11 The District Court found that, of the 103 schools built by the Board
between 1950 and 1975, 87 opened with racially identifiable student bodies
and 71 remained that way at the time of trial. This result was reasonably
foreseeable under the circumstances in light of the sites selected, and the
Board was often specifically warned that it was, without apparent justification,
choosing sites that would maintain or further segregation. Id., at
241~243. As the Court of Appeals noted:
"[T]his record actually requires no reliance upon inference, since, as indicated
above, it contains repeated instances where the Columbus Board was
COLUMBUS BOARD OF EDUCATION v. PENICK 463
449 Opinion of the Court
"[s]ince the 1954 Brown decision, the Columbus defendants
or their predecessors were adequately put on notice of the fact
that action was required to correct and to prevent the increase
in" segregation, yet failed to heed their duty to alleviate racial
separation in the schools. 429 F. Supp., at 255.12
II
Against this background, we cannot fault the conclusion of
the District Court and the Court of Appeals that at the time
of trial there was systemwide segregation in the Columbus
schools that was the result of recent and remote intentionwarned
of the segregative effect of proposed site choices, and was urged to
consider alternatives which could have had an integrative effect. In these
instances the Columbus Board chose the segregative sites. In this situation
the District Judge was justified in relying in part on the history of
the Columbus Board's site choices and construction program in finding
deliberate and unconstitutional systemwide segregation." 583 F. 2d, at
804.
12 Local community and civil rights groups, the "Ohio State University
Advisory Commission on Problems Facing the Columbus Public Schools,
and officials of the Ohio State Board of Education all called attention to
the problem [of segregation] and made certain curative recommendations."
429 F. Supp., at 255. This was particularly important because the Columbus
system grew rapidly in terms of geography and number of students,
creating many crossroads where the Board could either turn toward segregation
or away from it. See id., at 243. Specifically, for example, the
University Commission in 1968 made certain recommendations that it
thought not only would assist desegregation of the schools but also would
encourage integrated residential patterns. l.d., at 256. The Board itself
came to similar conclusions about what could be done, but its response was
"minimal." Ibid. See alEo id., at 264. Additionally, the Board refused
to create a site-selection advisory group to assist in avoiding sites with a
segregative effect, refused to ask state education officials to present plans
for desegregating the Columbus public schools, and refused to apply for
federal desegregation-assistance funds. / d., at 257; see id., at 239. The
District Court drew "the inference of segregative intent from the Columbus
defendants' failures, after notice, to consider predictable racial consequences
of their acts and omissions when alternatives were available
which would have eliminated or lessened racial imbalance." Id., at 240.
I!
464 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
ally segregative actions of the Columbus Board. While appearing
not to challenge most of the subsidiary findings of
historical fact, Tr. of Oral Arg. 7, petitioners dispute many
of the factual inferences drawn from these facts by the two
courts below. On this record, however, there is no apparent
reason to disturb the factual findings and conclusions entered
by the District Court and strongly affirmed by the Court of
Appeals after its own examination of the record.
Nor do we discern that the judgments entered below rested
on any misapprehension of the controlling law. It is urged
that the courts below failed to heed the requirements of Keyes,
Washington v. Davis, 426 U. S. 229 (1976), and Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252
( 1977), that a plaintiff seeking to make out an equal protection
violation on the basis of racial discrimination must
show purpose. Both courts, it is argued, considered the requirement
satisfied if it were shown that disparate impact
would be the natural and foreseeable consequence of the
practices and policies of the Board, which, it is said, is nothing
more than equating impact with intent, contrary to the controlling
precedent.
The District Court, however, was amply cognizant of the
controlling cases. It is understood that to prevail the plaintiffs
were required to " 'prove not only that segregated schooling
exists but also that it was brought about or maintained by
intentional state action,' " 429 F. Supp., at 251, quoting Keyes,
413 U.S., at 198-that is, that the school officials had "intended
to segregate." 429 F. Supp., at 254. See also 583 F. 2d, at
801. The District Court also recognized that under those
cases disparate impact and foreseeable consequences, without
more, do not establish a constitutional violation. See, e.g., 429
F. Supp., at 251. Nevertheless, the District Court correctly
noted that actions having foreseeable and anticipated disparate
impact are relevant evidence to prove the ultimate fact, forbidden
purpose. Those cases do not forbid "the foreseeable
---
COLUMBUS BOARD OF EDUCATION v. PENICK 465
449 Opinion of the Court
effects standard from being utilized as one of the several kinds
of proofs from which an inference of segregative intent may
be properly drawn." Id., at 255. Adherence to a particular
policy or practice, "with full knowledge of the predictable
effects of such adherence upon racial imbalance in a school
system is one factor among many others which may be considered
by a court in determining whether an inference of
segregative intent should be drawn." Ibid. The District
Court thus stayed well within the requirements of Washington
v. Davi,s and Arlington Heights. See Personnel Adm,inistrator
of Massachusetts v. Feeney, 442 U. S. 256, 279 n. 25 (1979).
It is also urged that the District Court and the Court of
Appeals failed to observe the requirements of our recent decision
in Dayton I, which reiterated the accepted rule that the
remedy imposed by a court of equity should be commensurate
with the violation ascertained, and held that the remedy for
the violations that had then been established in that case
should be aimed at rectifying the "incremental segregative
effect" of the discriminatory acts identified.13 In Dayton I,
only a few apparently isolated discriminatory practices had
13 Petitioners have indicated that a few of the recent violations specifically
discussed by the District Court involved so few students and lasted
for such a short time that they are unlikely to have any current impact.
But that contention says little or nothing about the incremental impact of
systemwide practices extending over many years. Petitioners also argue
that because many of the involved schools were in areas that had become
predominantly black residential areas by the time of trial, tho racial separation
in the schools would have occurred even without the unlawful conduct
of petitioners. But, as the District Court found, petitioners' evidence in
this respect was insufficient to counter respondents' proof. See Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 271 n. 21
(1977); Mt. HeaUhy City Bd. of Education v. Doyle, 429 U. S. 274,
287 ( 1977). And the phenomenon described by petitioners seems only
to confirm, not disprove, the evidence accepted by the District Court
that school segregation is a contributing cause of housing segregation.
429 F. Supp., at 259; see Keyes, 413 U.S., at 202-203; Swann, 402 U.S.,
at 20-21.
466 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
been found; 14 yet a system wide remedy had been imposed
without proof of a systemwide impact. Here, however, the
District Court repeatedly emphasized that it had found purposefu1ly
segregative practices with current, systemwide impact.
15 429 F. Supp., at 252, 259-260, 264, 266; App. to Pet.
for Cert. 95; 583 F. 2d, at 799.16 And the Court of Appeals,
responding to similar arguments, said:
"School board policies of systemwide application neces-
14 Although the District Court in this case discussed in its major opinion
a number of specific instances of purposeful segregation, it made it quite
clear that its broad findings were not limited to those instances: "Viewing
the Court's March 8 findings in their totality, this case does not rest on
three specific violations, or eleven, or any other specific number. It concerns
a school board which since 1954 has by its official acts intentionally
aggravated, rather than alleviated, the racial imbalance of the public
schools it administers. These were not the facts of the Dayton case."
App. to Pet. for Cert. 94.
15 MR. JUSTICE REHNQUIST's dissent erroneously st.ates that we have
"reliev[ed] school desegregation plaintiffs from any showing of a causal
nexus between intentional segregative actions and the conditions they seek
to remedy." Post, at 501. As we have expressly noted, both the District
Court and the Court of Appeals found that the Board's purposefully
discriminatory conduct and policies had current, systemwide impact-an
essential predicate, as both courts recognized, for a systemwide remedy.
Those courts reveal a much more knowledgeable and reliable view of the
facts and o'f the record than do our dissenting Brethren.
16 "For example, there is little dispute that Champion, Felton, Mt. Vernon,
Pilgrim and Garfield were de jure segregated by direct acts of the
Columbus defendants' predecessors. They were almost completely segregated
in 1954, 1964, 1974 and today. Nothing has occurred to substantially
alleviate that continuity of discrimination of thousands of black
students over the intervening decades." 429 F. Supp., at 260 (footnote
omitted).
"The finding of liability in this case concerns the Columbus school district
as a whole. Actions and omissions by public officials which tend to
make black schools blacker necessarily have the reciprocal effect of making
white schools whiter. '[l]t is obvious that a practice of concentrating
Negroes in certain schools by structuring attendance zones or designating
"·feeder" schools on the basis of race has the reciprocal effect of keeping
449
COLUMBUS BOARD OF EDUCATION v. PENICK 467
Opinion of the Court
sarily have systemwide impact. 1) The pre-1954 policy
of creating an enclave of five schools intentionally designed
for black students and known as 'black' schools, as
found by the District Judge, clearly had a 'substantial'-
indeed, a systemwide-impact. 2) The post-1954 failure
of the Columbus Board to desegregate the school system
in spite of many requests and demands to do so, of course,
had systemwide impact. 3) So, too, did the Columbus
Board's segregative school construction and siting policy
as we have detailed it above. 4) So too did its student
assignment policy which, as shown above, produced the
large majority of racially identifiable schools as of the
school year 1975-76. 5) The practice of assigning
black teachers and administrators only or in large majority
to black schools likewise represented a systemwide
policy of segregation. This policy served until July 1974
to deprive black students of .opportunities for contact
with and learning from white teachers, and conversely to
deprive white students of similar opportunities to meet,
know and learn from black teachers. It also served
as discriminatory, systemwide racial identification of
schools." 583 F. 2d, at 814.
Nor do we perceive any misuse of Keyes, where we held that
purposeful discrimination in a substantial part of a school
system furnishes a sufficient basis for an inferential finding of
a systemwide discriminatory intent unless otherwise rebutted,
and that given the purpose to operate a dual school system
one could infer a connection between such a purpose and racial
other nearby schools predominantly white.' Keyes[, supra, at 201].
The evidence in this case and the factual determinatioru; made earlier in
this opinion support the finding that those elementary, junior, and senior
high schools in the Columbus school district which presently have a predominantly
black student enrollment have been substantially and directly
affected by the intentional acts and omissions of the defendant local and
state school boards." Id., at 266.
468 OCTOBER TERM, 1978
BURGER, C. J., concurring in judgment 443 U.S.
separation in other parts of the school system. There was no
undue reliance here on the inferences permitted by Keyes, or
upon those recognized by Swann. Furthermore, the Board
was given ample opportunity to counter the evidence of segregative
purpose and current, systemwide impact, and the findings
of the courts below were against it in both respects. 429
F. Supp., at 260; App. to Pet. for Cert. 95, 102, 105.
Because the District Court and the Court of Appeals committed
no prejudicial errors of fact or law, the judgment appealed
from must be affirmed.
So ordered.
MR. CHIEF JUSTICE BuRGER, concurring in the judgment.
I perceive no real difference in the legal principles stated
in the dissenting opinions of MR. JuSTICE REHNQUIST and
MR. JusTICE POWELL on the one hand and the opinion of
MR. JusTICE STEWART concurring in the result in this case on
the other; they differ only in their view of the District Court's
role in applying these principles in the finding of facts.
Like MR. JusTICE REHNQUIST, I have serious doubts as to
how many of the post-1954 actions of the Columbus Board
of Education can properly be characterized as segregative in
intent and effect. On this record I might very well have concluded
that few of them were. However, like MR. JUSTICE
STEWART, I am prepared to defer to the trier of fact because
I find it difficult to hold that the errors rise to the level of
"clearly erroneous" under Rule 52. The District Court did
find facts sufficient to justify the conclusion reached by
MR. JusTICE STEWART that the school "district was not being
operated in a racially neutral manner" and that the Board's
actions affected "a meaningful portion" of the school system.
Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 208
(1973). For these reasons I join MR. JusTrCE STEWART'S
opinion.
In joining that opinion, I must note that I agree with much
COLUMBUS BOARD OF EDUCATION v. PENICK 469
449 Opinion of STEWART, J.
that is said by JusTICES REHNQUIST and PowELL in their dissenting
opinions in this case and in Dayton Board of
Education v. Brinkman, post, p. 526. I agree especially with
that portion of MR. JUSTICE REHNQUIST's opinion that criticizes
the Court's reliance on the finding that both Columbus
and Dayton operated "dual school systems" at the time of
Brown v. Board of Education, 347 U. S. 483 ( 1954), as a basis
for holding that these school boards have labored under an
unknown and unforeseeable affirmative duty to desegregate
their schools for the past 25 years. Nothing in reason or our
previous decisions provides foundation for this novel legal
standard.
I also agree with many of the concerns expressed by
MR. JUSTICE PowELL with regard to the use of massive transportation
as a "remedy." It is becoming increasingly doubtful
that massive public transportation really accomplishes
the desirable objectives sought. Nonetheless our prior decisions
have sanctioned its use when a constitutional violation
of sufficient magnitude has been found. We cannot retry
these sensitive and difficult issues in this Court; we can only
set the general legal standards and, within the limits of
appellate review, see that they are followed.
MR. JusTICE STEWART, with whom THE CHIEF JUSTICE
joins, concurring in the result in No. 78-610 and dissenting
in No. 78-627, post, p. 526.
My views in these cases differ in significant respects from
those of the Court, leading me to concur only in the result in
the Columbus case, and to dissent from the Court's judgment
in the Dayton case.
It seems to me that the Court of Appeals in both of these
cases ignored the crucial role of the federal district courts in
school desegregation litigation1-a role repeatedly emphasized
1 Federal Rule Civ. Proc. 52 (a) reflects the general deference that is to
be paid to the findings of a district court. "Findings of fact sha.11 not
470 OCTOBER TERM, 1978
Opinion of STEWART, J. 443 U.S.
by this Court throughout the course of school desegregation
controversies, from Brown v. Board of Education, 349 U. S.
294 (Brown Il),2 to Dayton Board of Education v. Brinkman,
433 U.S. 406 (Dayton l).3 The development of the law concerning
school segregation has not reduced the need for sound
factfinding by the district courts, nor lessened the appropriateness
of deference to their findings of fact. To the contrary,
the elimination of the more conspicuous forms of governmentally
ordained racial segregation over the last 25 years counsels
undiminished deference to the factual adjudications of the
federal trial judges in cases such as these, uniquely situated
as those judges are to appraise the societal forces at work in
the communities where they sit.
Whether actions that produce racial separation are intentional
within the meaning of Keyes v. School Dist. No. 1,
Denver, Colo., 413 U.S. 189; Washington v. Davis, 426 U.S.
229; and Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U. S. 252, is an issue that can present very difficult
be set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the credibility of the witnesses."
See United States v. United States Gypsum Co., 333 U. S. 364, 394--395.
2 "School authorities have the primary responsibility for elucidating,
assessing, and solving these problems; courts will have to consider whether
the action of school authorities constitutes good faith implementation of
the governing constitutional principles. Because of their proximity to
local conditions and the possible need for further hearings, the courts
which originally heard these cases can best perform this judicial appraisal."
Brown II, 349 U. S., at 299.
3 "Indeed, the importance of the judicial administration aspects of the
case are heightened by the presence of the substantive issues on which it
turns. The proper observance of the division of functions between the
federal trial courts and the federal appellate courts is important in every
case. It is especially important in a case such as this where the District
Court for the Southern District of Ohio was not simply asked to render
judgment in accordance with the law of Ohio in favor of one private party
against another; it was asked by the plaintiffs, students in the public
school system of a large city, to restructure the administration of that
system." Dayton I, 433 U. S., at 409-410.
COLUMBUS BOARD OF EDUCATION v. PENICK 471
449 Opinion of STEWART, J.
and subtle factual questions. Similarly intricate may be factual
inquiries into the breadth of any constitutional violation,
and hence of any permissible remedy. See Milliken v. Bradley,
418 U.S. 717 (Milliken I); Dayton I, supra. Those ta.sks
are difficult enough for a trial judge. The coldness and
impersonality of a printed record, containing the only evidence
available t-0 an appellate court in any case, can hardly make
the answers any clearer. I doubt neither the diligence nor the
perseverance of the judges of the courts of appeals, or of my
Brethren, but I suspect that it is impossible for a reviewing
court factually to know a case from a 6,600-page printed record
as well as the trial judge knew it. In assessing the facts
in lawsuits like these, therefore, I think appellate courts should
accept even more readily than in most cases the factual findings
of the courts of first instance.
My second disagreement with the Court in these cases stems
from my belief that the Court has attached far too much importance
in each case to the question whether there existed a
"dual school system" in 1954. As I understand the Court's
opinions in these cases, if such an officially authorized segregated
school system can be found to have existed in 1954,
then any current racial separation in the schools will be presumed
to have been caused by acts in violation of the Constitution.
Even if, as the Court says, this presumption is
rebut.table, the burden is on the school board to rebut it.
And, when the factual issues are as elusive as these, who
bears the burden of proof can easily determine who prevails
in the litigation. Speiser v. Randall, 357 U. S. 513, 525-526.
I agree that a school district in violation of the Constitution
in 1954 was under a duty to remedy that violation. So was
a school district violating the Constitution in 1964, and so is
one violating the Constitution today. But this duty does not
justify a complete shift of the normal burden of proof:"
4 In Keyes v. School Dist. No. 1, Deriver, Colo., 413 U. S. 189, the
Court did discuss the affirmative duty of a school board to desegregate
l 4:
472 OCTOBER TERM, 1978
Opinion of STEWART, J. 443 U.S.
Presumptions are sometimes justified because in common
experience some facts are likely to follow from others. See
Ulster County Court v. Allen, 442 U. S. 140; Sandstrom v.
Montana, 442 U. S. 510. A constitutional violation in 1954
might be presumed to make the existence of a constitutional
violation 20 years later more likely than not in one of two
ways. First, because the school board then had an invidious
intent, the continuing existence of that collective state of mind
might be presumed in the absence of proof to the contrary.
Second, quite apart from the current intent of the school
board, an unconstitutionally discriminatory school system in
1954 might be presumed still to have major effects on the contemporary
system. Neither of these possibilities seems to me
likely enough to support a valid presumption.
Much has changed in 25 years, in the Nation at large and in
Dayton and Columbus in particular. Minds have changed
with respect to racial relationships. Perhaps more importantly,
generations have changed. The prejudices of the
school boards of 1954 ( and earlier) cannot realistically be assumed
to haunt the school boards of today. Similarly, while
two full generations of students have progressed from kindergarten
through high school, school systems have changed.
Dayton and Columbus are both examples of the dramatic
growth and change in urban school districts.5 It is unrealistic
the school district, but limited its discussion to cases "where a dual
system was compelled or authorized by statute at the time of our decision
in Brown v. Board of Education .... " Id., at 200. It is undisputed
that Ohio has forbidden its school boards racially to segregate the public
schools since at least 1888. See Dauton I, 433 U. S., at 410 n. 4; Ohio
Rev. Code Ann. § 3313.48 (Supp. 1978); Board of Education v. State,
45 Ohio St. 555, 16 N. E. 373; Clemons v. Board of Education, 228
F. 2d 853, 858.
5 The Columbus School District grew quickly in the years after 1954.
In 1950-1951, the district had 46,352 students. In 1960-1961, over 83,000
students were enrolled. Attendance peaked in 1971-1972 at just over
110,000 students, before sinking to 95,000 at the time of trial. Between
-
COLUMBUS BOARD OF EDUCATION v. PENICK 473
449 Opinion of STEWART, J.
to assume that the hand of 1954 plays any major part in shaping
the current school systems in either city. For these reasons,
I simply cannot accept the shift in the litigative burden
of proof adopted by the Court.
Because of these basic disagreements with the Court's approach,
these two cases look quite different to me from the
way they look to the Court. In both cases, there is no doubt
that many of the districts' children are in schools almost solely
with members of their own race. These racially distinct areas
make up substantial parts of both districts. The question
remains, however, whether the plaintiffs showed that this
racial separation was the result of intentional systemwide
discrimination.
The Dayton case
After further hearings following the remand by this Court
in the first Dayton case, the District Court dismissed this lawsuit.
It found that the plaintiffs had not proved a discriminatory
purpose behind many of the actions challenged. It
found further that the plaintiffs had not proved that any significant
segregative effect had resulted from those few practices
that the school board had previously undertaken with an
invalid intent. The Court of Appeals held these findings to
be clearly erroneous. I cannot agree.
As to several claimed acts of post-1954 discrimination, the
Court of Appeals seems simply to have differed with the trial
court's factual assessments, without offering a reasoned explanation
of how the trial court's finding fell short.6 The
1950 and 1970, an average of over 100 classrooms a year were added to
the district.
Although the Dayton District grew less dramatically, the student population
increased from 35,000 in 1950-1951, of whom approximately 6,600
were Negro, to 45,000 at the time of trial, of whom about 22,000 were
Negro. Twenty-four new schools were opened in Dayton between 1950
and the time of trial.
6 For example, the District Court concluded that faculty segregation in
474 OCTOBER TERM, 1978
Opinion of STEWART, J. 443U.S.
Court of Appeals may have been correct in its assessment of
the facts, but that is not demonstrated by its opinion. I
would accept the trial judge's findings off ~ct.
Furthermore, the Court of Appeals relied heavily on the
proposition that the Dayton School District was a "dual system"
in 1954, and today this Court places great stress on the
same foundation. In several instances, the Court of Appeals
overturned the District Court's findings of fact because of the
trial court's failure to shift the burden of proof.' Because I
think this shifting of the burden is wholly unjustified, it seems
to me a serious mistake to upset the District Court's findings
on any such basis. If one accepts the facts as found by the
District Judge, there is almost no basis for finding any constitutional
violations after 1954. Nor is there any substantial
the Dayton district ceased by 1963. The Court of Appeals reversed,
saying:
"In Brinkman I, supra, 503 F. 2d at 697-98, this court found that defendants
'effectively continued in practice the racial assignment of faculty
through the 1970--71 school year.' This finding is supported by substantial
evidence on the record. The finding of the district court to the contrary
is clearly erroneous." (Footnotes omitted.) Brinkman v. Gilligan,
583 F. 2d 243,253 (CA6).
7 Thus, in considering certain optional attendance zones that tho District
Court found had not been instituted with a discriminatory intent, the
Court of Appeals wrote:
"In reaching these clearly erroneous findings of fact, the district court
once again failed to recognize the optional zones as a perpetuation, rather
than an elimination, of the existing dual system; failed to afford plaintiffs
the burden-shifting benefits of their prima facie case; and failed to
evaluate the evidence in light of tests for segregative intent enunciated by
the Supreme Court, this court and other circuits in decisions cited in this
opinion." Id., at 255.
The Court of Appeals opinion relied upon the same theory in overturning
the factual conclusions of the District Court that school construction
and site selection had not been undertaken with a discriminatory purpose
in Dayton. Thus, it is impossible to separate the conclusions of law made
by the Court of Appeals from its rulings that the District Court made
clearly erroneous findings of fact.
COLUMBUS BOARD OF EDUCATION v. PENICK 475
449 Opinion of STEWART, J.
evidence of the continuing impact of pre-1954 discrimination.
Only if the defendant school board is saddled with the burdens
of proving that it acted out of proper motives after 1954 and
that factors other than pre-1954 policies led to racial separation
in the district's schools, could these plaintiffs possibly
prevail.
For the reasons I have expressed, I dissent from the opinion
and judgment of the Court.
The Columbus case
In contrast, the Court of Appeals did not upset the District
Court's findings of fact in this case. In a long and careful
opinion, the District Judge discussed numerous examples of
overt racial discrimination continuing into the 1970's.8 Just
8 The two clearest cases of discrimination involved attendance zones.
The near-Bexley optional zone operated from the 1959-1960 school year
through the 1974-1975 school year. This zone encompassed a small area
of Columbus between Alum Creek and the town of Bexley. The area
west of the creek was predominately Negro; the area covered by the
option was predominately white. Students living in that zone were given
the option of being bused entirely through the town of Bexley to "white"
Columbus schools on its eastern border. The District Court concluded:
"Nothing presented by the Columbus defendants at trial, at closing
arguments, or in their briefs convinces the Court that the Near-Bexley
Option was created or maintained for racially neutral reasons. The Court
finds that the option was not created and maintained because of overcrowding
or geographical barriers.
" ... Quite frankly, the Near-Bexley Option appears to this Court to be a
classic example of a segregative device designed to permit white students
to escape attendance at predominately black schools." 429 F. Supp. 229,
245 (SD Ohio).
The Moler discontiguous zone affected two elementary schools in the
southeastern portion of the school district. A majority of the students in
the Alum Crest Elementary School were, at all relevant times, Negro.
Through 1969, no more than 8.7% of the students at the other school,
~oler Elementary, were Negro. The District Court found:
"Between September, 1966 and June, 1968, about 70 students, most of
them white, were bused daily past Alum Crest Elementary from the dis476
OCTOBER TERM, 1978
Opinion of STEWART, J. 443 U.S.
as I would def er to the findings of fact made by the District
Court in the Dayton case, I would accept the trial court's
findings in this case.
The Court of Appeals did rely in part on its finding that the
Columbus Board operated a dual school system in 1954, as
does this Court. But evidence of recent discriminatory intent,
so lacking in the Dayton case, was relatively strong in
this case. The particular illustrations recounted by the District
Court may not have affected a large portion of the school
district, but they demonstrated that the district was not being
operated in a racially neutral manner. The District Court
found that the Columbus Board had intentionally discriminated
against Negro students in some schools, and that there
was substantial racial separation throughout the district.
The question in my judgment is whether the District Court's
conclusion that there had been a systemwide constitutional
violation can be upheld on the basis of those findings, without
reference to an a.ffirmative duty stemming from the situation
in 1954.
I think the Court's decision in Keyes v. School Di.st. No. 1,
Denver, Colo., 413 U.S. 189, provides the answer:
"[WJe hold that a finding of intentionally segregative
school board actions in a meaningful portion of a school
system, as in this case, creates a presumption that other
segregated schooling within the system is not adventitious.
It establishes, in other words, a prima facie case
contiguous attendance area to Moler Elementary. The then-principal of
Alum Crest watched the bus drive past the Alum Crest building on its
way to and from Moler. At the time, the Columbus Board of Education
was leasing 11 classrooms at Alum Crest to Franklin County. There was
enough classroom space at Alum Crest to accommodate the students who
were transported to Moler. When the principal inquired of a Columbus
school administrator why this situation existed, he was given no reasonable
explanation.
"The Court can discern no other explanation than a racial one for the
existence of the Moler discontiguous attendance area for the period 1963
through 1969." Id., at 247.
449
COLUMBUS BOARD OF EDUCATION v. PENICK 477
Opinion of STEWART, J.
of unlawful segregative design on the part of school authorities,
and shifts to those authorities the burden of
proving that other segregated schools within the system
are not also the result of intentionally segregative
actions." Id., at 208.
The plaintiffs in the Columbus case, unlike those in the Dayton
case, proved what the Court in Keyes defined as a prima
facie case.9 The District Court and the Court of Appeals
correctly found that the school board did not rebut this
presumption. It is on this basis that I agree with the District
Court and the Court of Appeals in concluding that the
Columbus School District was operated in violation of the
Cons ti tu tion.
The petitioners in the Columbus case also challenge the
remedy imposed by the District Court. Just two Terms ago
we set out the test for determining the appropriate scope of
a remedy in a case such as this:
"If such violations are found, the District Court in the
first instance, subject to review by the Court of Appeals,
must determine how much incremental segregative effect
these violations had on the racial distribution of the . . .
school population as presently constituted, when that
distribution is compared to what it would have been
in the absence of such constitutional violations. The
remedy must be designed to redress that difference, and
only if there has been a systemwide impact may there be
a systemwide remedy." Dayton I, 433 U.S., at 420.
0 The Denver School District at the time of the trial in Keyes had 96,000
students, almost exactly the number of students in the Columbus system
at the time of this trial. The Park Hill region of Denver had been the
scene of the intentional discrimination that the Court believed justified a
presumption of systemwide violation. That region contained six elementary
schools and one junior high school, educating a small portion of the
school district's students, but a large number of the district's Negro
students.
478 OCTOBER TERM, 1978
Opinion of STEWART, J. 443 U.S.
In the context in which the Columbus case has reached us, I
cannot say that the remedy imposed by the District Court was
impermissible under this test. For the reasons discussed
above, the District Court's conclusion that there was a systemwide
constitutional violation was soundly based. And
because the scope of the remedy is tied to the scope of the
violation, a remedy encompassing the entire school district
was presumptively appropriate. In litigating the question
of remedy, however, I think the defendants in a case such as
this should always be permitted to show that certain schools
or areas were not affected by the constitutional violation.
The District Court in this case did allow the defendants to
show just that. The school board proposed several remedies,
but it put forward only one plan that was limited by the
allegedly limited effects of the violation. That plan would
have remedied racial imbalance only in the schools mentioned
in the District Court's opinion. Another remedy proposed by
the school board would have resulted in a rough racial balance
in all but 22 "all-white" schools. But the board did not assert
that those schools had been unaffected by the violations. Instead,
it justified that plan on the ground that it would bring
the predominately Negro schools into balance with no need
to involve the 22 all-white schools on the periphery of the
district. The District Court rejected this plan, finding that
it would not offer effective desegregation since it would leave
those 22 schools available for "white flight." The plan ultimately
adopted by the District Court used the Negro school
population of Columbus as a benchmark, and decreed that all
the public schools should be 32% minority, plus or minus
15%.
Although, as the Court stressed in Green v. County School
Board, 391 U. S. 430, a remedy is to be judged by its effectiveness,
effectiveness alone is not a reason for extending a remedy
to all schools in a district. An easily visible correlation between
school segregation and residential segregation cannot by
COLUMBUS BOARD OF EDUCATION v. PENICK 479
449 POWELL, J. dissenting
itself justify the blanket extension of a remedy throughout a
district. As Dayton I made clear, unless a school was affected
by the violations, it should not be included in the remedy. I
suspect the defendants in Columbus might have been able to
show that at least some schools in the district were not affected
by the proved violations. Schools in the far eastern or northern
portions of the district were so far removed from the
center of Negro population that the unconstitutional actions
of the board may not have affected them at all. But the
defendants did not carry the burden necessary to exclude those
schools.
The remedy adopted by the District Court used numerical
guidelines, but it was not for that reason invalid. As this
Court said in Swann v. Charlotte-Mecklenburg Board of
Eduwtion, 402 U.S. 1:
"Awareness of the racial composition of the whole school
system is likely to be a useful starting point in shaping a
remedy to correct past constitutional violations. In sum,
the very limited use made of mathematical ratios was
within the equitable remedial discretion of the District
Court." Id., at 25.
On this record, therefore, I cannot say that the remedy was
improper.
For these reasons, I concur in the result in Columbus Board
of Education v. Penick, and dissent in Dayton Board of
Eduwtion v. Brinkman.
MR. JusTICE POWELL, dissenting.*
I join the dissenting opinions of MR. JUSTICE REHNQUIST
and write separat€ly to emphasize several points. The
Court's opinions in these two cases are profoundly disturbing.
They appear to endorse a wholly new constitutional concept
applicable to school cases. The opinions also seem remark-
*[This opinion applies also to No. 78-627, Dayton Board of Education
et al. v. Brinkma:n et al., post, p. 526.J
I
480 OCTOBER TERM, 1978
POWELL, J. dissenting 443U.S.
ably insensitive to the now widely accepted view that a quarter
of a century after Brown v. Board of Education, 347 U. S.
483 (1954) (Brown/), the federal judiciary should be limiting
rather than expanding the extent to which courts are operating
the public school systems of our country. In expressing
these views, I recognize, of course, that my Brothers who have
joined the Court's opinions are motivated by purposes and
ideals that few would question. My dissent is based on a
conviction that the Court's opinions condone the creation of
bad constitutional law and will be even worse for public education-
an element of American life that is essential, especially
for minority children.
I
MR. JusTICE REHNQUIST's dissents demonstrate that the
Court's decisions mark a break with both precedent and principle.
The Court indulges the courts below in their stringing
together of a chain of "presumptions," not one of which is
close enough to reality to be reasonable. See ante, at 472
(opinion of STEWART, J.). This chain leads inexorably to the
remarkable conclusion that the absence of integration found to
exist in a high percentage of the 241 schools in Columbus and
Dayton was caused entirely by intentional violations of the
Fourteenth Amendment by the school boards of these two
cities. Although this conclusion is tainted on its face, is not
supported by evidence in either case, and as a general matter
seems incredible, the courts below accepted it as the necessary
premise for requiring as a matter of constitutional law a systemwide
remedy prescribing racial balance in each and every
school.
There are unintegrated schools in every major urban area
in the country that contains a substantial minority population.
This condition results primarily from familiar segregated
housing patterns, which-in turn-are caused by social,
economic, and demographic forces for which no school board
is responsible. These causes of the great~r part of the school
---
COLUMBUS BOARD OF EDUCATION v. PENICK 481
449 POWELL, J. dissenting
segregation problem are not newly discovered. Nearly a
decade ago, Professor Bickel wrote:
"In most of the larger urban areas, demographic conditions
are such that no policy that a court can order, and
a school board, a city or even a state has the capability
to put into effect, will in fact result in the foreseeable
future in racially balanced public schools. Only a reordering
of the environment involving economic and social
policy on the broadest conceivable front might have an
appreciable impact." A. Bickel, The Supreme Court and
the Idea of Progress 132, and n. 47 (1970).1
Federal courts, including this Court today, continue to ignore
these indisputable facts. Relying upon fictions and presumptions
in school cases that are irreconcilable with principles of
equal protection law applied in all other cases, see, e. g., Personnel
Administrator of Massachusetts v. Feeney, 442 U. S.
256 (1979); Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U. S. 252 (1977); Washington v. Dav'is, 426 U. S.
229 (1976), federal courts prescribe systemwide remedies without
relation to the causes of the segregation found to exist, and
implement their decrees by requiring extensive transportation
of children of all school ages.
The type of state-enforced segregation that Brown I properly
condemned no longer exists in this country. This is not to
say that school boards--particularly in the great cities of the
North, Midwest, and West-are taking all reasonable measures
to provide integrated educational opportunities. As I
indicated in my separate opinion in Keyes v. School Dist.
No. 1, Denver, Colo., 413 U.S. 189, 223-236 (1973), de facto
segregation has existed on a large scale in many of these cities,
1 See also Farley, Residential Segregation and Its Implications for School
Integration, 39 Law & Contemp. Prob., No. 1, p. 164 (1975); K. Taeuber
& A. Taeuber, Negroes in Cities (1965). The Court of Appeals below
treated the residential segregation in Dayton and Columbus as irrelevant.
See post, at 522, and n. 24 (REHNQUIST, J.,.dissenting).
482 OCTOBER TERM, 1978
PowELL, J. dissenting 443 U.S.
and often it is indistinguishable in effect from the type of
de jure segregation outlawed by Brown. Where there is proof
of intentional segregative action or inaction, the federal courts
must act, but their remedies should not exceed the scope of
the constitutional violation. Dayton Board of Education v.
Brinkman, 433 U. S. 406 (1977); Austin Independent School
Dist. v. United States, 429 U. S. 990, 991 (1976) (POWELL, J.,
concurring); Pasadena City Board of Education v. Spangler,
427 U. S. 424 (1976); Milliken v. Bradley, 418 U. S. 717
(1974); Swann v. Charlotte-Mecklenburg Board of Education,
402 U. S. I, 16 (1971). Systemwide remedies such as were
ordered by the courts below, and today are approved by this
Court, lack any principled basis when the absence of integration
in all schools cannot reasonably be attributed to discriminatory
conduct.2
MR. JusTICE REHNQUIST has dealt devastatingly with the
2 As I suggested in my separate opinion in Keyes, it is essential to identify
the constitutional right that is asserted in school desegregation cases.
The Court's decisions hardly have been lucid on this point. In Brown v.
Board of Education, 349 U.S. 294 (1955) (Brown II), the Court identified
the "fundamental principle" enunciated in Brown I, as being the unconstitutionality
of "racial discrimination in public education." 349 U. S., at 298.
In Keyes, I undertook to define the right, derived from the Equal Protection
Clause, as one to attend an "integrated school system," a system
in which school authorities take into consideration the enhancement of
integrated school opportunities in addition to the goal of quality education
in making and implementing their customary decisions. 413 U. 8., at 226.
I also noted that an integrated system does not mean that "every school
must in fact be an integrated unit," id., at 227, and emphasized that the
Equal Protection Clause "does not require that school authorities undertake
widespread student transportation solely for the sake of maximizing
integration." Id., at 242. When challenged, the school authorities must
show that in fact they are operating an integrated system in the foregoing
sense. This is quite different from the burden imposed on the school
authorities by the Court of Appeals and the District Court in No. 78-610,
of proving, by a preponderance of the evidence, that they have met an
affirmative duty in existence since 1954 to eliminate -every racially identifiable
school "root and branch."
COLUMBUS BOARD OF EDUCATION v. PENICK 483
449 POWELL, J. dissenting
way in which the Court of Appeals endowed prior precedents
with new and wondrous meanings. I can add little to what
he has said. I therefore move to more general but, in my
view, important considerations that the Court simply ignores.
II
Holding the school boards of these two cities responsible
for all of the segregation in the Dayton and Columbus sysstems
and prescribing fixed racial ratios in every school as
the constitutionally required remedy necessarily implies a
belief that the same school boards-under court supervisionwill
be capable of bringing about and maintaining the desired
racial balance in each of these schools. The experience in
city after city demonstrates that this is an illusion. The
process of resegregation, stimulated by resentment against
judicial coercion and concern as to the effect of court supervision
of education, will follow today's decisions as surely as
it has in other cities subjected to similar sweeping decrees.
The orders affirmed today typify intrusions on local and
professional authorities that affect adversely the quality of
education. They require an extensive reorganization of both
school systems, including the reassignment of almost half of
the 96,000 students in the Columbus system and the busing
of some 15,000 students in Dayton. They also require reassignments
of teachers and other staff personnel, reorganization
of grade structures, and the closing of certain schools.
The orders substantially dismantle and displace neighborhood
schools in the face of compelling economic and educational
reasons for preserving them. This wholesale substitution of
judicial legislation for the judgments of elected officials and
professional educators derogates the entire process of public
education.3 Moreover, it constitutes a serious interference
3 Defending lawsuits that remain active for years and complying with
elaborate court decrees also divert the time, attention, and resources of
school authorities from education.
484 OCTOBER TERM, 1978
PowELL, J. dissenting 443 U.S.
with the private decisions of parents as to how their children
will be educated. These harmful consequences are the inevitable
byproducts of a judicial approach that ignores other
relevant factors in favor of an exclusive focus on racial balance
in every school.
These harmful consequences, moreover, in all likelihood
will provoke responses that will defeat the integrative purpose
of the courts' orders. Parents, unlike school officials, are not
bound by these decrees and may frustrate them through the
simple expedient of withdrawing their children from a public
school system iri which they have lost confidence. In spite of
the substantial costs often involved in relocation of the family
or in resort to private education/ experience demonstrates that
many parents view these alternatives as preferable to submitting
their children to court-run school systems. In the
words of a leading authority:
"An implication that should have been seen all along
but can no longer be ignored is that a child's enrollment
in a given public school is not determined by a governmental
decision alone. It is a joint result of a governmental
decision ( the making of school assignments) and
parental decisions, whether to remain in the same residential
location, whether to send their child to a private
school, or which school district to move into when moving
into a metropolitan area. The fact that the child's enrollment
is a result of two decisions operating jointly
means that government policies must, to be effective,
anticipate parental decisions and obtain the parents' active
cooperation in implementing school policies." Cole-
4 A third alternative is available to parents moving for the first time into
a metropolitan area where a school district is operating under a "systemwide
remedy" decree. To avoid the probability of their children being
bused away from neighborhood schools, and in view of the widely held
belief that the schools under a court decree are likely to be inferior, these
parents may seek residences beyond the urban school district.
449
COLUMBUS BOARD OF EDUCATION v. PENICK 485
PowELL, J. dissenting
man, New Incentives for Desegregation, 7 Human Rights,
No. 3, pp. 10, 13 (1978).
At least where inner-city populations comprise a large proportion
of racial minorities and surrounding suburbs remain
white, conditions that exist in most large American cities, the
demonstrated effect of compulsory integration is a substantial
exodus of whites from the system. See J. Coleman, S. Kelly,
& J. Moore, Trends in School Segregation, 1968-1973, pp. 66,
76-77 (1975). It would be unfair and misleading to attribute
this phenomenon to a racist response to integration per se.
It is at least as likely that the exodus is in substantial part
a natural reaction to the displacement of professional and
local control that occurs when courts go into the business of
restructuring and operating school systems.
Nor will this resegregation be the only negative effect
of court-coerced integration on minority children. Public
schools depend on community support for their effectiveness.
When substantial elements of the community are driven to
abandon these schools, their quality tends to decline, sometimes
markedly. Members of minority groups, who have
relied especially on education as a means of advancing themselves,
also are likely to react to this decline in quality by removing
their children from public schools.5 As a result,
5 Academic debate has intensified as to the degree of educational benefit
realized by children due to integration. See R. Crain & R. Mahard, The
Influence of High School Racial Composition on Black College Attendance
and Test Performance (1978); Coleman, New Incentives for Desegregation,
7 Human Rights, No. 3, p. 10 (1978); Weinberg, The Relationship
Between School Desegregation and Academic Achievement: A Review of
the Research, 39 Law & Contemp. Prob., No. 2, p. 241 (1975). Much of
the dispute seems beside the point. It is essential that the diverse peoples
of our country learn to live in harmony and mutual respect. This end is
furthered when young people attend schools with diverse student bodies.
But the benefits that may be achieved through this experience often will
be compromised where the methods employed to promote integration include
coercive measures such as forced transportation to achieve some
486 OCTOBER TERM, 1978
PowELL, J. dissenting 443 U.S.
public school enrollment increasingly will become limited to
children from families that either lack the resources to choose
alternatives or are indifferent to the quality of education. The
net effect is an overall deterioration in public education, the
one national resource that traditionally has made this country
a land of opportunity for diverse ethnic and racial groups.
See Keyes, 413 U.S., at 250 (opinion of POWELL, J.).
III
If public education is not to suffer further, we must "return
to a more balanced evaluation of the recognized interests of
our society in achieving desegregation with other educational
and societal interests a community may legitimately assert."
Id., at 253. The ultimate goal is to have quality school systems
in which racial discrimination is neither practiced nor
tolerated. It has been thought that ethnic and racial diversity
in the classroom is a desirable component of sound education
in our country of diverse populations, a view to which
I subscribe. The question that courts in their single-minded
pursuit of racial balance seem to ignore is how best to move
toward this goal.
For a decade or more after Brown I, the courts properly
focused on dismantling segregated school systems as a means
of eliminating state-imposed discrimination and furthering
wholesome diversity in the schools.6 Experience in recent
theoretically desirable racial balance. Cf. N. St. John, School Desegregation
Outcomes for Children (1975).
6 During this period the issues confronted by the courts by and large
involved combating the devices by which States deliberately perpetuated
dual school° systems and dismantling segregated systems in small, rural
areas. E. g., Green v. County School Board, 391 U. S. 430 (1968); Griffin
v. School Board, 377 U. S. 218 (1964); Goss v. Board of Education, 373
U.S. 683 (1963); Cooper v. Aaron, 358 U. S. 1 (1958). Sec Wilkinson,
The Supreme Court and Southern School Desegregation, 1955--1970: A
History and Analysis, 64 Va. L. Rev. 485 (1978). This Court did not
begin to face the difficult administrative and social problems associated
with de facto segregation in large urban school systems until Swann v.
COLUMBUS BOARD OF EDUCATION v. PENICK 487
449 POWELL, J. dissenting
years, however, has cast serious doubt upon the efficacy of
far-reaching judicial remedies directed not against specific
constitutional violations, but rather imposed on an entire
school system on the fictional assumption that the existence
of identifiable black or white schools is caused entirely by
intentional segregative conduct, and is evidence of systemwide
discrimination. In my view, some federal courts-now
led by this Court-are pursuing a path away from rather than
toward the desired goal. While these courts conscientiously
view their judgments as mandated by the Constitution (a
view that would have astonished constitutional scholars
throughout most of our history), the fact is that restructuring
and overseeing the operation of major public school systemsas
ordered in these cases-fairly can be viewed as social engineering
that hardly is appropriate for the federal judiciary.
The time has come for a thoughtful re-examination of the
proper limits of the role of courts in confronting the intractable
problems of public education in our complex society.
Proved discrimination by state or local authorities should
never be tolerated, and it is a first responsibility of the judiciary
to put an end to it where it has been proved. But many
courts have continued also to impose wide-ranging decrees,
and to retain ongoing supervision over school systems. Local
and state legislative and administrative authorities have been
supplanted or relegated to initiative-stifling roles as minions
of the courts. Indeed, there is reason to believe that some
legislative bodies have welcomed judicial activism with respect
to a subject so inherently difficult and so politically sensitive
that the prospect of others confronting it seems inviting.
Federal courts no longer should encourage this deference by
the appropriate authorities-no matter how willing they may
Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971). It is
especially unfortunate that the Court today refuses to acknowledge these
problems and chooses instead to sanction methods that, although often
appropriate and salutary in the earlier context, are disruptive and counterproductive
in school systems like those in Columbus and Dayton.
488 OCTOBER TERM, 1978
POWELL, J. dissenting 443 u. s.
be to defer. Courts are the branch least competent to provide
long-range solutions acceptable to the public and most conducive
to achieving both diversity in the classroom and quality
education.
School boards need not wait, and many have not waited,
for innovative legislative guidance. The opinion of the Court
in Swann, though of ten cited ( as in this case) for views I
think were never intended, identified some constructive actions
always open to school authorities:
"An optional majority-to-minority transfer provision
has long been recognized as a useful part of every desegregation
plan. Provision for optional transfer of those
in the majority racial group of a particular school to
other schools where they will be in the minority [ or less
in the majority] is an indispensable remedy for those
students willing to transfer to other schools in order to
lessen the impact on them of the state-imposed stigma
of segregation. In order to be effective, such a transfer
arrangement must grant the transferring student free
transportation and space must be made available in the
school to which he desires to move." 402 U.S., at 26-27.
See also Keyes, 413 U.S., at 240-241 (opinion of PowELL, J.).
Incentives can be employed to encourage these transfers, such
as creation of magnet schools providing special educational
benefits and state subsidization of those schools that expand
their minority enrollments. See, e. g., Willie, Racial Balance
or Quality Education?, in School Desegregation, Shadow and
Substance 7 (Levinsohn & Wright eds. 1976). These and
like plans, if adopted voluntarily by States, also could help
counter the effects of racial imbalances between school districts
that are beyond the reach of judicial correction. See
Milliken v. Bradley, 418 U. S. 717 (1974); cf. Coleman, 7
Human Rights, at 48-49.7
7 Wisconsin has implemented a system of subsidized, voluntary, intra- and
inter-district majority-to-minority transfers. 1975 Wis. Laws, ch. 220,
COLUMBUS BOARD OF EDUCATION v. PENICK 489
449 REHNQUIST, J., dissenting
After all, and in spite of what many view as excessive government
regulation, we are a free society-perhaps the most
free of any in the world. Our people instinctively resent
coercion, and perhaps most of all when it affects their children
and the opportunities that only education affords them. It is
now reasonably clear that the goal of diversity that we call
integration, if it is to be lasting and conducive to quality
education, must have the support of parents who so frequently
have the option to choose where their children will attend
school. Courts, of course, should confront discrimination
wherever it is found to exist. But they should recognize limitations
on judicial action inherent in our system and also the
limits of effective judicial power. The primary and continuing
responsibility for public education, including the bringing
about and maintaining of desired diversity, must be left with
school officials and public authorities.
MR. JusTICE REHNQUIST, with whom MR. JUSTICE PowELL
joins, dissenting.
The school desegregation remedy imposed on the Columbus
school system by this Court's affirmance of the Court of Appeals
is as complete and dramatic a displacement of local
authority by the federal judiciary as is possible in our federal
system. Pursuant to the District Court's order, 42,000 of
the system's 96,000 students are reassigned to new schools.
There are like reassignment of teachers, staff, and administrators,
reorganization of the grade structure of virtually every
codified at Wis. Stat. § 121.85 (1975). It is too early to determine
whether this experiment will attain its objective of encouraging substantial
integration. But it is the sort of effort that should be considered by st-ate
and local officials and elected bodies. The contrast between the underlying
philosophy of the Wisconsin plan and the massive coercion undertaken by
the courts below is striking. See Meadows, Open Enrollment and Fiscal
Incentives, in School Desegregation, Shadow and Substance 143 (Levinsohn
& Wright eds. 1976).
490 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
elementary school in the system, the closing of 33 schools, and
the additional transportation of 37,000 students.
It is difficult to conceive of a more serious supplantation
because, as this ·court recognized in Brown v. Board of Education,
347 U. S. 483, 493 (1954) (Brown I), "education is
perhaps the most important function of state and local governments";
indeed, it is "a vital national tradition." Dayton
Board of Education v. Brinkman, 433 U. S. 406, 410 (1977)
(Dayton I); see Milliken v. Bradley, 418 U. S. 717, 741-742
(1974); Wright v. Council of City of Emporia, 407 U. S.
451, 469 (1972). That "local autonomy has long been
thought essential both to the maintenance of community concern
and support for public schools and t-0 quality of the educational
process," Milliken, supra, at 741-742, does not, of
course, place the school system beyond the authority of federal
courts as guardians of federal constitutional rights. But the
practical and historical importance of the tradition does
require that the existence of violations of constitutional rights
be carefully and clearly defined before a federal court invades
the traditional ambit of local control, and tha.t the subsequent
displacement of local authority be limited to that necessary to
correct the identified violations. "It is for this reason that the
case for displacement of the local authorities by a federal court
in a school desegregation case must be satisfactorily established
by factual proof and justified by a reasoned statement
of legal principles." Dayton I, supra, at 410.
I think the District Court and Court of Appeals in this case
did not heed this admonition. One can search their opinions
in vain for any concretB notion of what a "systemwide violation"
consists of or how a trial judge is to go about determining
whether such a violation exists or has existed. What logic
is evident emasculates the key determinants set down in
Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189
( 1973), for proving the existence and scope of a violation warranting
federal-court intervention: discriminatory purpose
and a causal relationship between acts motivated by such a
COLUMBUS BOARD OF EDUCATION v. PENICK 491
449 REHNQUIST, J., dissenting
purpose and a current condition of segregation in the school
system. The lower courts' methodology would all but eliminate
the distinction between de facto and de jure segregation
and render all school systems captives of a remote and
ambiguous past.
Today the Court affirms the Court of Appeals for the Sixth
Circuit in this case and Dayton Bo(!,rd of Education v. Brinkman
(Dayton II), post, p. 526, in opinions so Delphic that
lower courts will be hard pressed to fathom their implications
for school desegregation litigation. I can only offer two suggestions.
The first is that the Court, possibly chastened by
the complexity and emotion that accompanies school desegregation
cases, wishes to relegate the determination of a violation
of the Equal Protection Clause of the Fourteenth Amendment
in any plan of pupil assignment, and the formulation
of a remedy for its violation, to the judgment of a single district
judge. That judgment should be subject to review
under the "clearly erroneous" standard by the appropriate
court of appeals, in much the same way that actions for an
accounting bet,veen private partners in a retail shoe business
or claimants in an equitable receivership of a failing commercial
enterprise are handled. "Discriminatory purpose" and
"systemwide violation" are to be treated as talismanic phrases
which, once invoked, warrant only the most superficial scrutiny
by appellate courts.
Such an approach is, however, obviously inconsistent with
the Dayton I admonition and disparages both this Court's
oft-expressed concern for the important role of local autonomy
in educational matters and the significance of the constitutional
rights involved. It also holds out the disturbing prospect
of very different remedies being imposed on similar school
systems because of the predilections of individual judges and
their good-faith but incongruent efforts to make sense of this
Court's confused pronouncements today.1 Concepts such as
1 See Dayton Board of Education v. Brinkman (Dayton II), post, p. 542
(REHNQUIST, J., dissenting).
'
'
'
1;
t
I ,
I
492 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
"discriminatory purpose" and "systemwide violation" present
highly mixed questions of law and fact. If district court
discretion is not channelized by a clearly articulated methodology,
the entire federal-court system will experience the
disaffection which accompanies violation of Cicero's maxim
not to "lay down one rule in Athens and another rule in
Rome."
Yet, the only alternative reading of today's opinions, i. e., a
literal reading, is even more disquieting. Such a reading
would require embracing a novel analytical approach to school
segregation in systems without a history of statutorily mandated
separation of the ra.ces-an approach that would have
dramatic consequences for urban school systems in this country.
Perhaps the adjective "analytical" is out of place, since
the Court's opinions furnish only the most superficial methodology,
a framework which if it were to be adopted ought to
be examined in a far more thorough and critical manner than
is done by the Court's "lick and a promise" opinions today.
Given the similar approaches employed by the Court in this
case and Dayton II, this case suffices for stating what I
think are the glaring deficiencies both in the Court's new
framework and in its decision to subject the Columbus school
system to the District Court's sweeping racial balance remedy.
I
The Court suggests a radical new approach to desegregation
cases in systems without a history of statutorily mandated
separation of the races: if a district court concludes-employing
what in honesty must be characterized as an irrebuttable
presumption-that there was a "dual" school system at the
time of Brown I, 347 U.S. 483 (1954), it must find post-1954
constitutional violations in a school board's failure to take
every affirmative step to integrate the system. Put differently,
racial imbalance at the time the complaint is filed is
sufficient to support a system wide, racial balance, school busing
COLUMBUS BOARD OF EDUCATION v. PENICK 493
449 REHNQUIST, J., dissenting
remedy if the district court can find some evidence of discriminatory
purpose prior to 1954, without any inquiry into
the causal relationship between those pre-1954 violations and
current segregation in the school system.
This logic permeates the findings of the District Court and
Court of Appeals, and the latter put it most bluntly.
"[T]he District Judge on review of pre-1954 history
found that the Columbus schools were de jure segregated
in 1954 and, hence, the Board had a continuing constitutional
duty to desegregate the Columbus schools. The
pupil assignment figures for 1975-76 demonstrate the
District Judge's conclusion that this burden has not been
carried. On this basis alone (if there were no other
proofs), we believe we would be required to affirm the
District Judge's finding of present unconstitutional segregation."
583 F. 2d 787, 800 (1978).
In Brinkman v. Gilligan, 583 F. 2d 243, 256 (CA6 1978),
also affirmed today, this post-1954 "affirmative duty" is
characterized as a duty "to diffuse black and white students"
throughout the system.
The Court in this case apparently endorses that view. For
the Court finds that " [ e] ach instance of a failure or refusal
to fulfill this affirmative duty continues the violation of the
Fourteenth Amendment," ante, at 459, and the mere fact that
at the time of suit "most blacks were still going to black
schools and most whites to white schools'' establishes current
effect. Ante, at 461.
In order to fully comprehend the dramatic reorientation the
Court's opinion thus implies, and its lack of any principled
basis, a brief historical review is necessary. In 1954, this
Court announced Brown I and struck down on equal protection
grounds laws requiring or permitting school assignment
of children on the basis of race. See also Bolling v. Sharpe,
347 U. S. 497 (1954). The question of remedy was reserved
for a new round of briefing, and the following Term this Court
II
I'
494 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
remanded to the District Courts in the five consolidated cases
"to take such proceedings and enter such orders and decrees
consistent with this opinion as are necessary and proper to
admit to public schools on a racially nondiscriminatory basis
with all deliberate speed the parties t-0 these cases." Brown
v. Board of Education, 349 U.S. 294, 301 (1955) (Brown II).
The majority concedes that this case does not involve racial
assignment of students mandated by state law; Ohio abandoned
any "statutory requirement or authorization to operate
segregated schools" by 1888. Ante, at 455. Yet, it was precisely
this type of segregation-segregation expressly mandated
or permitted by state statute or constitution-that was
addressed by Brown I, and the mandate of the Brown cases was
that "[a]ll provisions of federal, state, or local law requiring
or permitting such discrimination must yield" to "the fundamental
principle that racial discrimination in public education
is unconstitutional." 349 U. S., at 298. The message of
Brown I I was simple and resonant because the violation was
simple and pervasive.
There were, however, some issues upon which the Brown II
Court was vague. It did not define what it meant by "effectuat[
ing] a transition to a racially nondiscriminatory school
system," id., at 301, and therefore the next 17 years focused
on the question of the appropriate remedy where racial separation
had been maintained by operation of state law.
The earliest post-Brown school cases in this Court only
intimated that "a transition to a racially nondiscriminatory
school system" required adoption of a policy of nondiscriminatory
admission.2 It was not until the 1967 Term that this
2 Cooper v. Aaron, 358 U. S. 1 (1958); Goss v. Board of Education, 373
U.S. 683 (1963); Griffin v. School Board, 377 U.S. 218 (1964).
In discussing the Brown II mandate, this Court in Cooper v. Aaron,
supra, at 7, observed:
"Of course, in many locations, obedience to the duty of desegregation
would require the immediate general admission of Negro children, otherwise
qualified as students for their appropriate classes, at particular
-
COLUMBUS BOARD OF EDUCATION v. PENICK 495
449 REHNQUIST, J., dissenting
Court indicated that school systems with a history of statutorily
or constitutionally mandated separation of the races
would have to do more than simply permit black students to
attend white schools and vice versa. In that Term, the Court
had before it "freedom-of-choice" plans put forward as desegregation
remedies. The factual context of the lead case,
Green v. County School Board, 391 U. S. 430 (1968), is a far
cry from the complicated urban metropolitan system we confront
toda.y. The New Kent County school system consisted
of two schools-one black and one white-with a total enrollment
of 1,300 pupils. At the time of suit a black student had
schools. On the other hand, a District Court, after analysis of the
relevant factors (which, of course, excludes hostility to racial desegregation),
might conclude that justification existed for not requiring the
present nonsegregated admission of all qualified Negro children."
A similar limited expectation pervades Goss v. Board of Education,
supra, where this Court invalidated court-ordered desegregation plans
which permitted transfers on the basis of race. Specifically, the desegregation
plan called for the redrawing of school districts without reference
to race, but explicitly authorized transfers by students of one race from
a school where their race was a minority to a school where their race
was a majority. There was no provision for majority-to-minority school
transfers. This Court objected to the explicit racial character of the
transfer program.
"Our task then is to decide whether these transfer provisions are ...
unconstitutional. In doing so, we note that if the transfer provisions were
made available to all students regardless of their race and regardless as
well of the racial composition of the school to which he requested transfer
we would have an entirely different case. Pupils could then at their
option (or that of their parents) choose, entirely free of any imposed
racial considerations, to remain in the school of their zone or transfer to
another." 373 U. S., at 687.
Griffin v. School Board, supra, involved a situation where a school system
literally closed down its schools rather than desegregate. The decree
endorsed by this Court, in the face of massive resistance, was simply an
order to the school board requiring it to admit students without regard
to race to a white high school and to make plans for admissions to elementary
schools without regard to race.
496 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
never attended the white school or a white student the black
school.
This Court found that the "freedom-of-choice" plan approved
by the District Court for the desegregation of the New
Kent County schools was inadequate. Noting that the "pattern
of separate 'white' and 'Negro' schools in the New Kent County
school system established under compulsion of state laws is
precisely the pattern of segregation to which Brown I and
Brown II were particularly addressed," the Court observed
that Brown II charged "[s]chool boards such as the respondent
then operating state-compelled dual systems ... with the
affirmative duty to take whatever steps might be necessary to
convert to a unitary system in which racial discrimination
would be eliminated root and branch." 391 U.S., at 435, 437-
438. In the three years following court approval of the
freedom-of-choice plan in New Kent County, not a single
white child had chosen to attend the historically black school,
which continued to serve 85% of the county's black schoolchildren.
The Green Court concluded that a freedom-ofchoice
plan, in a school system such as this and in the absence
of other efforts at desegregation, wa,g not sufficient to provide
the remedy mandated by Brown II. The Court suggested
zoning, i. e., some variation of a neighborhood school policy,
as a possible alternative remedy.3
3 Two other cases were handed down on the same day as Green. Raney
v. Board of Education, 391 U.S. 443 (1968), involved an almost identical
factual situation with a similar experience under a freedom-of-choice plan.
For the same reasons that such a plan was inadequate for New Kent
County, it was found inadequate for the Gould School District involved
in the Raney litigation. The other case handed down with Green, Monroe
v. Board of Comm'rs, 391 U. S. 450 (1968), concerned the city of
Jackson, Tenn. At issue in that case was a "free-transfer" rather than
"freedom-of-choice" plan. The "free-transfer" provisions were part of a
court-ordered plan that essentially instituted a neighborhood school policy
for the three junior high schools in the system. Any child could transfer
to another school if space was available, i. e., if there were no neighborhood-
zone residents to fill the spaces. This Court did not object to the
COLUMBUS BOARD OF EDUCATION v. PENICK 497
449 REHNQUIST, J., dissenting
That brings the history of school desegregation litigation
in this Court to THE CHIEF JusTICE's opinion in Swann v.
Charlotte-Mecklenburg Board of Education, 402 U. S. 1
( 1971), upon which the majority and respondents heavily
rely.4 Swann also addressed school systems with a history of
statutorily or constitutionally mandated separation of the
races; "[t]hat was what Brown v. Board of Education was
all about." Id., at 6. Swann was an attempt to define "in
more precise terms" the appropriate scope of the remedy in
cases of that nature. Ibid. It simply did not attempt to articulate
the manner by which courts were to determine the existence
of a viol,a,tion in school systems without a history of segregation
imposed by statute or the state constitution.5 Certainly
school systems with such a history were charged by Brown II
to "effectuate a transition t-0 a racially nondiscriminatory
school system." But Swann did not speak of the failure to
conform to this duty as a "continuing violation." The specific
references to an affirmative duty in Swann were to the
neighborhood school policy as part of a remedy, even though some neighborhoods
were racially identifiable, but it found that the effect of the freetransfer
policy was to maintain the racial characters of the three junior
high schools. One remained all black and another 99% white.
4 There were two school desegregation cases heard in this Court in the
years between Swann and Green. Alexander v. Holmes County Board of
Education, 396 U. S. 19 (1969), reiterated that the era of "all deliberate
speed" had ended. United States v. Montgomery County Board of Education,
395 U. S. 225 ( 1969), involved an order requiring the reassignment of
some faculty and staff of the Montgomery County school system in line
with numerical targets set by the District Court.
5 Nevertheless, the Court of Appeals refers to Swann as an opinion
which "dealt more thoroughly than any other opinion of the Court with
the method of proof of constitutional violations," 583 F. 2d 787, 793 (CA6
1978), and relies on it throughout its opinion for standards of proof in determining
the existence of a violation. Swann was in fact an attempt to
articulate the "equitable remedial discretion of the District Court" which
admits more latitude than the standards for determining a violation. 402
U. S., at 25; see id., at 15-16. There is no "discretion" in the latter
context.
498 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443U.S.
duty of a school board found to have overseen a school system
with state-imposed segregation to put forward a plan to
remedy that situation. It was in this context that the Court
observed that upon "default by the school authorities of their
obligation to proffer acceptable remedies, a district court has
broad power to fashion a remedy that will assure a unitary
school system." 402 U. S., at 16.6
This understanding of the "affirmative duty" was acknowledged
in the first case confronting a school system without a
history of state-mandated racial assignment, Keyes v. School
Dist. No. 1, Denver, Colo., 413 U. S. 189 ( 1973). There the
Court observed:
"[W] e have held that where plaintiffs prove that a current
condition of segregated schooling exists within a
school district where a dual system was compelled or
authorized by statute at the time of our decision in Brown
v. Board of Education, 347 U. S. 483 (1954) (Brown I),
the State automatically assumes an affirmative duty 'to
effectuate a transition to a racially nondiscriminatory
school system,' Brown v. Board of Education, 349 U. S.
6 Later in its opinion, the Swann Court refers to the District Court's
finding, "approved by the Court of Appeals, that the school board had
totally defaulted in its acknowledged duty to come forward with an
acceptable plan of its own, notwithstanding the patient efforts of the
District Judge who, on at least three occasions, urged the board to submit
plans." Id., at 24.
Four other cases came down the same day as Swann. One was dismissed
for lack of jurisdiction, Moore v. Charlotte-Mecklenburg Board of
Education, 402 U. S. 47 (1971); one upheld a declaration that a North
Carolina antibusing law was unconstitutional, North Carolina State
Board of Education v. Swann, 402 U. S. 43 (1971); and another remanded
a remedy order for reconsideration in light of criteria laid down in Swann,
Davis v. Board of School Comm'rs of Mobile County, 402 U. S. 33
(1971). The final case, McDaniel v. Barresi, 402 U. S. 39 (1971), invalidated
a state-court order barring on federal grounds a formerly statutory
dual system's voluntary transition to a modified neighborhood school
policy.
449
COLUMBUS BOARD OF EDUCATION v. PENICK 499
REHNQUIST, J., dissenting
294, 301 (1955) (Brown II), see also Green v. County
School Board, 391 U. S. 430, 437-438 (1968), that is, to
eliminate from the public schools within their school system
'all vestiges of state-imposed segregation.' Swann
v. Charlotte-Mecklenburg Board of Education, 402 U. S.
1, 15 (1971).
"This is not a case, however, where a statutory dual
system has ever existed." / d., at 200-201 (footl).ote
omitted).
It was at this juncture that the Court articulated the proposition
that has become associated with Keyes.
"Nevertheless, where plaintiffs prove that the school authorities
have carried out a systematic program of segregation
affecting a substantial portion of the students,
schools, teachers, and facilities within the school system,
it is only common sense to conclude that there exists a
predicate for a finding of the existence of a dual school
system." Id., at 201.
The notion of an "affirmative duty" as acknowledged in
Keyes is a remedial concept defining the obligation on the
school board to come forward with an effective desegregation
plan after a finding of a dual system. This could not be
clearer in Keyes itself.
" [ P] roof of state-imposed segregation in a substantial
portion of the district will suffice to support a finding by
the trial court of the existence of a dual system. Of
course, where that finding is made, as in cases involving
statutory dual systems, the school authorities have an
affirmative duty 'to effectuate a transition to a racially
nondiscriminatory school system.' Brown II, supra, at
301." Id., at 203.7
7 The point is reiterated later in the Keyes opinion.
"If the District Court determines that the Denver school system is a dual
school system, respondent School Board ha's the affirmative duty to desegregate
the entire system 'root and branch.'" 413 U. S., at 213.
500 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
Indeed, Keyes did not discuss the complexion of the Denver
school system in 1954 or in any other way intimate the analysis
adopted by the Court today.8 Rather, it emphasized that
the relevance of past actions was determined by their causal
relationship to current racially imbalanced conditions.
Even so brief a history of our school desegregation jurisprudence
sheds light on more than one point. As a matter
of history, case law, or logic, there is nothing to support the
novel proposition that the primary inquiry in school desegregation
cases involving systems without a history of statutorily
mandated racial assignment is what happened in those systems
before 1954. As a ma.tter of history, 1954 makes no
more sense as a benchmark-indeed it makes less sense-than
1968, 1971, or 1973. Perhaps the latter year has the most to
commend it, if one insists on a benchmark, because in Keyes
this Court first confronted the problem of school segregation
in the context of systems without a history of statutorily
mandated separation of the races.
As a matter of logic, the majority's decision to turn the year
1954 into a constitutional Rubicon also fails. The analytical
underpinnings of the concept of discriminatory purpose have
received their still incomplete articulation in the 1970's. It is
sophistry to suggest that a school board in Columbus in 1954
could have read Brown I and gleaned from it a consfitutional
duty "to diffuse black students throughout the ... system" or
take whatever other action the Court today thinks it should
have taken. And not only was the school board to anticipate
the state of the law 20 years hence, but also to have a full
8 In fact, this theory was pressed upon the Court in Dayton I, Brief
for Respondents, 0. T. 1976, No. 76-539, pp. 58-71; yet it was implicitly
rejected in this Court's detailed articulation of the proper approach to
equal protection challenges involving school systems "where mandatory
segregation by law of the races in the schools has long since ceased." 433
U. 8., at 420.
COLUMBUS BOARD OF EDUCATION v. PENICK 501
449 REHNQUIST, J., dissenting
appreciation for discrete acts or omissions of school boards 20
to 50 years earlier.9
Of course, there are always instances where constitutional
standards evolve and parties are charged with conforming to
the new standards. But I am unaware of a case where the
failure to anticipate a change in the law and take remedial
steps is labeled an independent constitutional violation. The
difference is not simply one of characterization: the Court's
decision today enunciates, without analysis or explanation,
a new methodology that dramatically departs from Keyes
by relieving school desegregation plaintiffs from any showing
of a causal nexus between intentional segregative actions and
the conditions they seek t-0 remedy.
Causality plays a central role in Keyes as it does in all equal
protection analysis. The Keyes Court held that before the
burden of production shifts to the school board, the plaintiffs
must prove "that the school authorities have carried out a
systematic program of segregation affecting a substantial portion
of the students, schools, teachers, and facilities within the
school system." 413 U. S., at 201 (emphasis added). The
Court recognized that a trial court might find "that a lesser
degree of segregated schooling ... would not have resulted
even if the Board had not acted as it did," and "that at some
point in time the relationship between past segregative acts
and present segregation may become so attenuated as to be
incapable of supporting a finding of de jure segregation warranting
judicial intervention." Id., at 211. The relevance
of past acts of the school board was to depend on whether
"segregation resulting from those actions continues to exist."
Id., at 210.10 That inquiry is not central under the approach
9 As the Court notes, incidents relied on by the District Court occurred
anywhere from 1909 to 1943.
10 "The essential element of de jure segregation is 'a current condition of
segregation resulting from intentional state action.'" Washington v. Davis,
426 U. S. 229, 240 (1976) (quoting Keyes v. School Dist. No. 1, Deriver,
Colo., 413 U.S., at 205).
502 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 u. s.
approved by the Court today. Henceforth, the question is
apparently whether pre-1954 acts contributed in some unspecified
manner to segregated conditions that existed in 1954.
If the answer is "Yes," then the only question is whether the
school board has exploited all integrative opportunities that
presented themselves in the subsequent 25 years. If not, a
systemwide remedy is in order, despite the plaintiff's failure
to demonstrate a link between those past acts and current
racial imbalance.
The Court's use of the term "affirmative duty" implies that
integration be the pre-eminent-indeed, the controlling-educational
consideration in school board decisionmaking. It
takes precedence over other legitimate educational objectives
subject to some vague feasibility limitation. That implication
is dramatically demonstrated in this case. Both lower
courts necessarily gave special significance to the Columbus
School Board's post-1954 school construction and siting
policies as supporting the systemwide remedy in this case.11
They did not find-in fact, could not have found-that the
siting and construction of schools were racially motivated.
As the District Court observed:
"In 1950, pursuant to a request of the then Columbus
school superintendent. the Bureau of Educational Research
at The Ohio State University began a comprehensive,
scientific and objective analysis of the school plant
needs of the school system. The Bureau studied and re-
11 The reliance on school construction was critical. As the Court of
Appeals found, the other post-1954 incidents relied on by the District
Court were "isolated," 583 F. 2d, at 805, and therefore could not have
constituted a basis for a systemwide remedy. Dayton I, 433 U. S. 406
(1977). And the only other conduct arguably having systemwide implications,
racial assignment of teachers, had been corrected, was not the subject
of any remedial order, 429 F. Supp. 229, 238, 260 (SD Ohio 1977), and, in
any event, could not, itself support the systemwide remedy under the Sixth
Circuit's own precedents. Higgim v. Board of Education of City of Grand
Rapuls, 508 F. 2d 779 (CA6 1974); see Dayton II, post, at 536 n. 9.
449
COLUMBUS BOARD OF EDUCATION v. PENICK 503
REHNQUIST, J., dissenting
ported on community growth characteristics, educational
programs, enrollment projections, the system's plan of
organization, the existing plant, and the financial ability
of the community to pay for new school facilities. Thereafter,
a number of general and specific recommendations
were made to the Columbus Board by the Bureau. The
recommendations included the size and location of new
school sites as well as additions to existing sites. The
recommendations were conceived to accommodate the socalled
'community or neighborhood school concept.' The
1950 concept was related to a distance criteria grounded
on walking distance to schools as follows: ¾ mile for
elementary, 1½ miles for junior high and 2 miles for
senior high students.
"The Board of Education adopted and relied upon the
Bureau's recommendations in proposing and encouraging
the passage of bond issues in 1951, 1953, 1956, 1959 and
1964. School construction of new facilities and additions
to existing structures were accomplished in substantial
conformity with the Bureau's periodic studies and recommendations."
429 F. Supp. 229, 237-238 (SD Ohio
1977).
Thus, the Columbus Board of Education employed the most
objective criteria possible in the placement of new schools.
Nevertheless, the District Court and Court of Appeals found
that conformity with these recommendations was a violation
of the Equal Protection Clause because "in some instances the
need for school facilities could have been met in a manner
having an integrative rather than a segregative effect." Id.,
at 243.12 By endorsing this logic, the Court, as a result of its
12 Prefacing its discussion with the observation that "in some instances
initial site selection and bounda.ry changes present integrative opportunities,"
429 F. Supp., at 241, the District Court made specific findings only
with respect to 2 of the 103 schools constructed between 1950 and 1975
in the Columbus school system-Gladstone Elementary and Sixth Avenue
504 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
finding of an affirmative duty, employs remedy standards
to determine the existence of post-1954 violations in school
construction and ignores the previously pivotal role of discriminatory
purpose.13
Elementary-I of which does not exist today. The sites for both schools
followed recommendations by the Bureau of Education Research of Ohio
State University. Ohio State University Bureau of Educational Research,
The 1958-1959 Study of the Public School Building Needs of Columbus,
Ohio 58 (1959) (Sixth Avenue); Ohio State University Bureau of Educational
Research, The 1963-1964 Study of the Public School Building
Needs of Columbus, Ohio 65 ( 1964) (Gladstone).
The Gladstone Elementary School opened in 1965. The "violation"
inherent in that siting is described as follows by the District Court and
this passage is quoted and fully adopted by the Court of Appeals.
"The need for greater school capacity in the general Duxberry area
would have been logically accommodated by the construction of Gladstone
north of its present location, nearer to Hudson Street. This would, of
course, require some redrawing of boundary lines in order to accommodate
the need for class space in Hamilton and Duxberry. If, however, the
boundary lines had been drawn on a north-south pattern rather than an
east-west pattern, as some suggested, the result would have been an
integrative effect on Hamilton, Duxberry and the newly-constructed
school." 429 F. Supp., at 242, quoted in 583 F. 2d, at 803.
Thus, the placement of Gladstone is a violation-not because the placement
was racially motivated, it was demonstrably not so-but because
another site would have had a more integrative impact, and it is a violation
despite the determination by the Bureau of Educational Research that
objective and legitimate educational criteria militated in favor of the
Gladstone site.
The secondary status of educational objectives other than integration
is even more obvious in the discussion of the Sixth A venue School where
the District Court characterized the relevant inquiry as whether "the
objectives of racial integration would have been better served" by a different
site and different boundaries. 429 F. Supp., at 243. The Sixth
Avenue School does not exist any more, and students within its old boundaries
attend two neighboring, racially balanced schools.
13 This is explicitly recognized by the Court in Dayton Il, post, at 538
(emphasis added):
"[T]he measure of the post-Brown I conduct of a school board under an
unsatisfied duty to liquidate a dual system is the effectiveness, not the
COLUMBUS BOARD OF EDUCATION v. PENICK 505
449 REHNQUIST, J., dissenting
This unprecedented "affirmative duty" superstructure sits
atop a weak foundation-the existence of a "dual" school
system in 1954. This finding was predicated on the presence
purpose, of the actions in decreasing or increasing the segregation caused
by the dual system."
But the cases relied on by the Court, ante, at 459, to establish this affirmative
duty and its implications-Dayton I, Wright v. Council of City of
Emporia, 407 U. S. 451 ( 1972), and United States v. Scotland N eek Board
of Education, 407 U.S. 484 (1972)-bear absolutely no relation to the analysis
in this case. The pages cited from Dayton I simply endorse a Court
of Appeals' observation that there is nothing wrong with a school board
rescinding resolutions it was under no duty to promulgate; as I have
indicated, the analysis set out in Dayton I is entirely inconsistent with the
"affirmative duty" invoked by the courts below. See n. 8, supra. The
citation to Wright is equally mysterious. The city of Emporia is located
in Greensville County, Va. Up until 1968, it was part of Greensville
County's public school system. A desegregation lawsuit was initiated in
1965 and resulted in a court-ordered "freedom-of-choice" desegregation
plan for the Greensville County schools, including those within the city
of Emporia. After Green, the court modified its decree and ordered pairing
of certain schools. The city of Emporia then announced its intention
to withdraw its schools from the Greensville County school system. The
District Court enjoined it from doing so because Emporia's schools had
been part of the adjudicated dual system, and the court's decree would be
frustrated by withdrawal of the Emporia schools. In contrast the instant
case has nothing to do with frustrating outstanding court orders.
United States v. Scotland Neck Board of Education, supra, was a case
where the United States Department of Justice had been negotiating
with the County School Board of Halifax County, N. C., in an attempt
to bring it into compliance with federal law. In 1965, the schools of
Halifax County were completely segregated on the basis of race. An
agreement was reached that was designed to make the Halifax County
school system unitary by the 1969 school year. However, in 1969, the
North Carolina Legislature authorized a new independent school district
in the middle of Halifa."\'. County which was to be bounded by the city
limits of Scotland Neck. The United States promptly filed suit seeking
desegregation of the Halifax County schools and an injunction blocking
Scotland Neck's withdrawal. The District Court ordered desegregation
of the Halifax County schools and enjoined creation of the independent
Scotland Neck district. This Court held, quoting Wright, that if the
506 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
of four predominantly black elementary schools and one predominantly
black junior high school on the "near east side
of Columbus," a then and now black residential area. The
Columbus School Board at that time employed, as it does now,
a neighborhood school policy. The specific Board actions that
the District Court cited were racial assignment of teachers
and gerrymandering along part of the border between two
school districts.14 The Court concludes that these violations
involved a substantial part of the Columbus school system
in 1954, and invokes Keyes for the proposition that the finding
of a dual school system follows "absent sufficient contrary
proof by the Board, which was not forthcoming in this case."
Ante, at 458.
There are two major difficulties with this use of Keyes.
First, without any explanation, the Court for the first time
applies it to define the character of a school system remote in
time--here 25 or more years ago-without any examination
of the justifications for the Keyes burden-shifting principles
when those principles are used in this fashion. Their use is
a matter of" 'policy and fairness,'" 413 U.S., at 209 (quoting
9 J. Wigmore, Evidence § 2486, p. 275 (3d ed. 1940)), and I
think the Keyes "presumption" scores poorly on both counts
when focused on a period beyond memory and of ten beyond
Scotland Neck" 'proposal would impede the dismantling of a dual system,
then a district court, in the exercise of its remedial discretion, may enjoin
it from being carried out.'" 407 U. S., at 489. There is certainly no
support in Scotland Neck for the analysis employed today, and the Court
offers no explanation.
14 As the Court today acknowledges, Dayton II, post, at 536 n. 9, racial
assignment of teachers does not make out a Keyes showing regarding racial
assignment of students. And testimony on the existence of gerrymandering
went little beyond the establishment of an irregular boundary line. Testimony
of W. A. Montgomery, App. 389-390. Cf. Wright v. Rockefeller,
376 U. 8. 52 ( 1964). The District Court conceded that at the time of
Brown I, there was "substantial racial mixing of both students and faculty
in some schools" in the Columbus system. 429 F. Supp., at 236.
COLUMBUS BOARD OF EDUCATION v. PENICK 507
449 REHNQUIST, J., dissenting
records!• What records are available are equally available
to both sides. In this case the District Court relied almost
exclusively on instances that occurred between 1909 and 1943:
undoubtedly beyond the period when many Board members
had their experiences with the system as students, let alone as
administrators. It is much more difficult for school board
authorities to piece together the influences that shaped the
racial composition of a district 20, 30, or 40 years ago. The
evidence on both sides becomes increasingly anecdotal. Yet
the consequences of the School Board's inability to make such
a showing only become more dramatic. Here violations with
respect to 5 schools, only 3 of which exist today, occurring
over 30 years ago are the key premise for a systemwide racial
15 "The burdens of pleading and proof with regard to most facts have
been and should be assigned to the plaintiff who generally seeks to change
the present state of affairs and who therefore naturally should be expected
to bear the risk of failure of proof or persuasion." E. Cleary, McCormick
on Evidence 786 (2d ed. 1972).
There is a policy judgment sometimes made, which "should not be overemphasized,"
id., at 787, that the facts on a particular issue are so peculiarly
within the knowledge of a certain party that the burden of proof on
that issur should be allocated to him. Whatever the merits of the burdenshift
to the school board where contemporaneous board decisions are at
issue, see Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S., at 262-
263 (REHNQUIST, J., dissenting), they do not commend a burden-shift
regarding conduct 25 or more years ago.
The Court charges that in questioning the propriety of employing the
Keyes burden-shift in this case, we "claim a better grasp of the historical
and ultimate facts than the two courts below had." Ante, at 457 n. 6. But
the Keyes burden-shift is not an ultimate finding of fact at all. It is a
creature of this Court, brought into play by the making of only a prima
facie showing, and applied in this case in a completely novel way. To
criticize its use is not to upset "factfinding," but to criticize the absence of
findings of fact which have heretofore been thought necessary in order to
support the sort of remedy imposed by the District Court. Its use here
is surely no less a subject for this Court's review than it was in Keyes
itself.
508 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
balance remedy involving 172 schools-most of which did not
exist in 1950.16
My second concern about the Court's use of the Keyes presumption
may render my first concern academic. For as I
suggest in Part III below, the Court today endorses views
regarding the neighborhood school policy and racially identifiable
neighborhoods that essentially make the Keyes presumption
irrebuttable.
II
The departure from established doctrines of causation and
discriminatory purpose does not end with the lower courts'
preoccupation with an "affirmative duty" exhumed from the
conduct of past generations to be imposed on the present
without regard to the forces that actually shaped the current
racial imbalance in the school system. It is also evident in
their examination of post-1954 violations, which the Court
refers to as "the intentionally segregative use of optional attendance
zones, discontiguous attendance areas, and boundary
changes." Ante, at 461-462 (footnotes omitted).
As a preliminary matter, I note that the Court of Appeals
observed, I think correctly, that these post-1954 incidents
"can properly be classified as isolated in the sense that they
do not form any systemwide pattern." 583 F. 2d, at 805.
All the incidents cited, let alone those that can meet a properly
applied segregative intent standard, could not serve as the
basis for a systemwide racial balance remedy.
In Washington v. Dav-is, 426 U. S. 229 (1976), Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252
16 The Columbus school system has changed dramatically in the last 25
years. The city grew from 40 square miles in 1950 to 173 square miles in
1975, and its student enrollment more than doubled. Many of the system's
schools serve areas that were undeveloped in 1950. One hundred and three
new school buildings were added during this period and 145 additions
were made to existing buildings. On average, over 100 new classrooms
were built each year.
COLUMBUS BOARD OF EDUCATION v. PENICK 509
449 REHNQUIST, J., dissenting
(1977), and Personnel Administrator of Massachusetts v.
Feeney, 442 U. S. 256 (1979), we have emphasized that discriminatory
purpose as a motivating factor in governmental
action is a critical component of an equal protection violation.
Like causation analysis, the discriminatory-purpose requirement
sensibly seeks to limit court intervention to the rectification
of conditions that offend the Constitution-stigma and
other harm inflicted by racially motivated governmental
action-and prevent unwarranted encroachment on the autonomy
of local governments and private individuals which could
well result from a less structured approach.
This Court has not precisely defined the manner in which
discriminatory purpose is to be proved. Indeed, in light of
the varied circumstances in which it might be at issue, simple
and precise rules for proving discriminatory purpose could not
be drafted. The focus of the inquiry in a case such as this,
however, is not very difficult to articulate: Is a desire to separate
the races among the reasons for a school board's decision
or particular course of action? The burden of proof on this
issue is on the plaintiffs. Washington v. Dav-is, supra, at
244-245; Arlington Heights v. Metropolitan Housing Dev.
Corp., supra, at 270.
The best evidence on this score would be a contemporaneous
explanation of its action by the school board, or other less
dramatic evidence of the board's actual purpose, which indicated
that one objective was to separate the races. See
Arlington Heights, supra, at 268. Objective evidence is also
probative. Indeed, were it not, this case would warrant very
little discussion, for all the evidence relied on by the courts
below was of an "objective" nature.
But objective evidence must be carefully analyzed for it
may otherwise reduce the "discriminatory purpose" requirement
to a "discriminatory impact" test by another name.
Private and governmental conduct in matters of general importance
to the community is notoriously ambiguous, and for
510 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
objective evidence to carry the day it must be a reliable index
of actual motivation for a governmental decision-at least
sufficient to meet the plaintiff's burden of proof on purpose or
intent. We have only recently emphasized:
"'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." Personnel Administrator
of Massachusetts v. Feeney, supra, at 279.
The maintenance of this distinction is important: both to
limit federal courts to their constitutional missions and to
afford school boards the latitude to make good-faith, colorblind
decisions about how best to realize legitimate educational
objectives without extensive post hoc inquiries into
whether integration would have been better served-even at
the price of other educational objectives-by another decision:
a different school site, a different boundary, or a different
organizational structure. In a school system with racially
imbalanced schools, every school board action regarding construction,
pupil assignment, transportation, annexation, and
temporary facilities will promote integration, aggravate segregation,
or maintain segregation. Foreseeability follows from
the obviousness of that propositior.1.. Such a tight noose on
school board decisionmaking will invariably move government
of a school system from the townhall to the courthouse.
The District Court in this case held that it was bound by
the standard for segregative intent articulated by the Court
of Appeals for the Sixth Circuit in Oliver v. Michigan State
Board of Education, 508 F. 2d 178, 182 (1974):
"A presumption of segregative purpose arises when
plaintiffs establish that the natural, probable, and foreseeable
result of public officials' action or inaction was an
increase or perpetuation of public school segregation.
449
COLUMBUS BOARD OF EDUCATION v. PENICK 511
REHNQUIST, J., dissenting
The presumption becomes proof unless defendants affirmatively
establish that their action or inaction was a
consistent and resolute application of racially neutral
policies." 429 F. Supp., at 254 n. 3.
This is precisely the type of "impact" trigger for shifting the
burden of proof on the intent component of an equal protection
violation that we rejected in Washington v. Davis, supra.
There the Court of Appeals had applied the standards of
Title VII to determine whether a qualifying test for police
candidates discriminated against blacks in violation of the
Equal Protection Clause. According to the Court of Appeals,
the plaintiffs were initially required to show disproportionate
impact on blacks.17 That impact was a constitutional violation
absent proof by the defendants that the test was "an
adequate measure of job performance in addition to being an
indicator of probable success in the training program." 426
U. S., at 237. Put differently, the defendants were to show
that the test was the product of a racially neutral policy. This
Court reversed, rejecting "the view that proof of discriminatory
racial purpose is unnecessary in making out an equal
protection violation." Id., at 245.
Indeed, reflection indicates that the District Court's test
for segregative intent in this case is logically nothing more
than the affirmative duty stated a different way. Under the
test, a "presumption of segregative purpose arises when plaintiffs
establish that the natural, probable, and foreseeable result
17 To add the word "foreseeable" does not change the analysis, because
the police department in Davis would be hard pressed to say that the
disparate impact of the examination was unforeseeable. It is well documE>
nted that minorities do not perform as well as Anglo-Americans on
standardized exams-principally because of cultural and socioeconomic
differences. The Davis Court implicitly recognized that the impact in that
and similar cases was foreseeable. 426 U. S., at 248, and n. 14. See
Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256, 278-
279 (1979).
512 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
of public officials' . . . inaction was . . perpetuation of
public school segregation. The presumption becomes proof
unless defendants affirmatively establish that their ... inaction
was a consistent and resolute application of racially
neutral policies." If that standard were to be applied to the
average urban school system in the United States, the implications
are obvious. Virtually every urban area in this country
has racially and ethnically identifiable neighborhoods,
doubtless resulting from a melange of past happenings
prompted by economic considerations, private discrimination,
discriminatory school assignments, or a desire to reside near
people of one's own race or ethnic background. See Austin
Independent School Dist. v. United States, 429 U. S. 990,
994 (1976) (POWELL, J., concurring). It is likewise true
that the most prevalent pupil assignment policy in urban
areas is the neighborhood school policy. It follows inexorably
that urban areas have a large number of racially identifiable
schools.
Certainly "public officials' ... inaction ... perpetuat[ es] ...
public school segregation" in this context. School authorities
could move to pairing, magnet schools, or any other device
to integrate the races. The failure to do so is a violation
under Oliver unless the "inaction was a consistent and resolute
application of racially neutral policies." The policy that
most school boards will rely on at trial, and the policy which
the Columbus School Board in fact did rely on, is the neighborhood
school policy. According to the District Court in
this case, however, not only is that policy not a defense, but
in combination with racially segregated housing patterns, it
is itself a factor from which one can infer segregative intent
and a factor in this case from which the District Court did
infer segregative intent, stating that "[t]hose who rely on
it as a defense to unlawful school segregation fail to recognize
the high priority of the constitutional right involved." 429
F. Supp., at 258.
COLUMBUS BOARD OF EDUCATION v. PENICK 513
449 REHNQUIST, J., dissenting
But the Constitution does not command that school boards
not under an affirmative duty to desegregate follow a policy
of "integration iiber alles." If the Court today endorses that
view, and unfortunately one cannot be sure, it has wrought
one of the most dramatic results in the history of public education
and the Constitution. A duty not to discriminate in
the school board's own actions is converted into a duty to
ameliorate or compensate for the discriminatory conduct of
other entities and persons.
I reserve judgment only because the Court at points in its
opinion seems of the view that the District Court applied a
test other than the Oliver test for segregative intent, despite
the District Court's clear indication to the contrary. 429 F.
Supp., at 253-254, n. 3. In fact, in Dayton II, post, at 536
n. 9, the Court expressly rejects the Oliver test, and in its
opinion in this case, ante, at 464-465, indicates that the District
Court treated foreseeable effects as only another bit of
evidence and finds that not incompatible with this Court's
pr10r cases.
"Those cases do not forbid 'the foreseeable effects standard
from being utilized as one of the several kinds of
proofs from which an inference of segregative intent may
be properly drawn.' [ 429 F. Supp.], at 255. Adherence
to a particular policy or practice, with full knowledge of
the predictable effects of such adherence upon racial
imbalance in a school system is one factor among many
others which may be considered by a court in determining
whether an inference of segregative intent should be
drawn.' Ibid."
I have no difficulty with the proposition that foreseeable effects
are permissible considerations "as one of the several kinds
of proofs" as long as they are not the only type of proof. Use
of foreseeable effects in the latter fashion would be clearly inconsistent
with Davis, Arlington Heights, and Feeney. But
I do have great difficulty with this Court's taking the above
514 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443U. S.
quotations from the District Court out of context and thereby
imputing a general test for discriminatory purpose to the District
Court from a passage which in fact was part of a discussion
of the probativeness of a very special kind of evidence
on intent: a neighborhood school policy s-impliciter.1.s As far as
gauging the purpose underlying specific actions is concerned,
it is quite clear from its expression and application of the
relevant test for intent, that the District Court looked for
foreseeability per se.19
18 Specifically, the District Court prefaced its discussion of the neighborhood
school policy with the following question :
"If a board of education assigns students to schools near their homes pursuant
to a neighborhood school policy, and does so with full knowledge of
segregated housing patterns and with full understanding of the foreseeable
racial effects of its actions, is such an assignment policy a factor which may
be considered by a court in determining whether segregative intent exists?
A majority of the United States Supreme Court has not directly answered
this question regarding non-racially motivated inaction." 429 F. Supp.,
at 254 (latter emphasis added).
Before today, I would have thought that the question whether nonracially
motivated inaction was probative on discriminatory purpose would answer
itself with an emphatic "No." We have to date indicated that only racially
motivated governmental decisionmaking is addressed by the Equal Protection
Clause. It was in the course of reasoning t o an affirmative answer
to this question that the District Court made the first observation quoted
by the Court, i. e., that the foreseeable effects of nonracially motivated
inaction is probative on segregative intent. And the second quotation lifts
the District Court's conclusion on this issue out of context.
"Substantial adherence to the neighborhood school concept with foll knowledge
of the predictable effects of such adherence upon racial imbalance in
a school system is one factor among many others which may be considered
by a court in determining whether an inference of segregative intent
should be drawn." Id., at 255 (emphasis added).
Thus the interesting proposition, worthy of Lewis Carroll at his best, that
a lack of discriminatory purpose will not by itself support an inference of
discriminatory purpose.
19 In its general discussion of discriminatory intent or purpose, the District
Court defines the relevant test as follows:
"The intent contemplated as necessary proof can best be described as
COLUMBUS BOARD OF EDUCATION v. PENICK 515
449 REHNQUIST, J., dissenting
As such, the District Court's treatment of specific post-1954
conduct reflects the same cavalier approach to causality and
purpose that underlies the 1954 affirmative duty. That determination
requires no more "omnipotence and omniscience,"
ante, at 457 n. 6, than similar determinations in Dayton I,
Davis, and Arlington Heights. The court found violations with
respect to three optional attendance zones. The Near-Bexley
zone, the only zone discussed by this Court, afforded students
the option to attend schools in either one of two bordering districts.
The District Court found that the zone gave white students
of Bexley the opportunity to avoid attending the predominantly
black schools to the east. I do not think that the
District Court finding can be said to be clearly erroneous despite
the lack of any direct evidence on discriminatory purpose, for
the School Board did not suggest any educational justification
for this zone and none is apparent. But as that court recognized,
the zone is of little significance as far as the current state
of segregation in the school system is concerned. "The July 10,
1972, minutes of the State Board of Education . .. appear to
indicate that in 1972, there were 25 public elementary school
students and two public high school students residing in the
optional zone." 429 F. Supp., at 245 (emphasis added). As
of 1975, the zone has been dismantled, and the District Court
clearly suggests that it does not have any current effect on the
Columbus school system.20
Two other optional attendance zones were identified as off enit
is usually described-intent embodies the expectations that are the
natural and probable consequences of one's act or failure to act. That is,
the law presumes that one intends the natural and probable consequences
of one's actions or inactions." Id., at 252.
See id., at 253-254, n. 3.
20 Id., at 245:
"The Court is not so concerned with the numbers of students who
exercised or could have exercised this option, as it is with the light that
the creation and maintenance of the option sheds upon the intent of the
Columbus Board of Education."
,,
I.:
L, ,
Lo
1,
b
i
L,
516 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
sive. One existed for two years, between 1955 and 1957, and
permitted students in a predominantly white neighborhood to
attend the "white" West Broad Elementary School rather
than the predominantly black Highland School. Like the
Near-Bexley option, there is no apparent educational justification
and, therefore, no grounds to upset the District Court's
finding of a violation. This optional zone afforded the District
Court an excellent opportunity to probe the effects of a
past violation, because in 1957 the optional zone was made
a permanent part of the West Broad district. But the District
Court made no findings as to the current effect of the
past violation nor saw fit to hypothesize how many students
might have been affected. It was clearly of the opinion that
no such inquiry was necessary.
The final optional attendance zone demonstrates the influence
of the "affirmative duty"-whether the 1954 variety or
that which follows from Oliver. This optional zone was also
created in 1955 in roughly the same part of Columbus. It
gave some students within Highland's boundaries the option
of attending the neighboring West Mound Street Elementary
School. Again, the District Court found, this permitted transfer
to a "whiter'' school. But the District Court also found
that there was a legitimate educational objective for creation
of the zone: Highland was overcrowded and West Mound was
under capacity. The District Court, however, concluded that
the School Board's actions were objectionable because "feasible
alternatives" were available; that is, other optional attendance
zones could have been drawn which would have had "an
integrative effect on West Mound." This again suggests a
duty on the School Board to select the most integrative
alternative.
The second set of post-1954 actions faulted by the District
Court were two discontiguous attendance areas. These were
situations where students in a defined geographical area were
assigned to a school in a zone not contiguous with their neighCOLUMBUS
BOARD OF EDUCATION v. PENICK 517
449 REHNQUIST, J., dissenting
borhood. One zone was established in 1963 and involved
about 70 students. The School Board unsuccessfully argued
at trial that the children were sent to the predominantly white
Moler Elementary School because the nearest school, the predominantly
black Alum Crest Elementary, had no room for
them. The District Court indicates that this violative condition
existed until 1969, presumably because after that date the
discontiguous area had a substantial black population and an
integrative effect on the Moler Elementary School. Since the
discontiguous area now has an integrative effect, one might
ask what is its current segregative effect on the school system?
Ironically, under the District Court's reasoning, it would be a
violation for the Columbus School Board to now disband the
Moler Elementary discontiguous attendance area.
The second discontiguous zone existed from 1957 to 1963
and permitted students on three streets within the Heimandale
Elementary District to attend the "whiter" Fornof Elementary
School. The Columbus School Board "inherited" this discontiguous
attendance arrangement when it annexed the
Marion-Franklin District in 1957. Both schools at that time
were at or over capacity and when a six-classroom addition
was made to Heimandale in 1963, the discontiguous zone was
terminated and the children assigned to Heimandale. According
to the HEW Civil Rights Survey, Heimandale today
is a racially balanced school. App. 747. The District
Court made no findings as to the current effect of the Board's
5-year retention of the Heimandale-Fornof arrangement.
The last discrete violation discussed by the District Court
involved the Innis-Cassady alternative organizational proposals.
These proposals involved an area of the Columbus
school district that was annexed in 1971. The area had one
school, the Cassady Elementary School, which was very overcrowded,
and placing another school in the district was a
priority for the Columbus School Board in 1972. The District
Court did not fault the site chosen for the second school
in the old Mifflin District. However, it inferred segregative
518 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
intent in the School Board's decision to use a K-6 organization
in both schools, rather than using K-3 organization in one
school and 4-6 organization in the other and thereby drawing
students from throughout the district. The District Court
found that the latter would have been the more integrative
alternative because of residential segregation in the district.
At trial, the School Board attempted to justify its choice by
pointing out that the pairing alternative would have required
substantial transportation and a deviation from the standard
K-6 organization employed throughout the Columbus school
system. The court found "no evidence in this record" that
pairing would have necessitated "substantial transportation"
and that the Board had on prior occasions used a K-3 structure-
apparently a reference to the K-3 primary center for
crippled children.21
Thus, the Innis-Cassady discussion evinces this same affirmative
duty to select the more integrative alternative and a
consequent shift of the burden of proof to the School Board
to prove that the segregative choice was mandated by other
legitimate educational concerns. But under Washington v.
Davis and Arlington Heights the burden is on the plaintiffs to
show impact and purpose, and in a situation where there is
"no evidence" in the record to prove or disprove a proffered
justification for a school board decision, the plaintiffs have
failed to establish a violation of their constitutional rights.
Secondly, the fact that a school board has once or twice
or three times in the past deviated from a policy does not
impugn that policy as a justification for a school board decision.
There is no constitutional requirement of perfect consistency.
Arlington Heights, 429 U.S., at 269. The fact that
the Columbus School Board currently maintains a K-3 orga-
21 There were apparently only two other instances where the Columbus
School Board has had K-3 primary units and both of those were to
supplement overcrowding in the lower grades of K-6 home schools. Id.,
at 249.
COLUMBUS BOARD OF EDUCATION v. PENICK 519
449 REHNQUIST, J., dissenting
nization for crippled children hardly diminishes the Board's
interest in maintaining a standard organizational structure
for traditional schools throughout the school district.22
Rather, in Arlington Heights we spoke of substantive departures
from existing policy as casting light on discriminatory
purpose, "particularly if the factors usually considered important
by the decisionmaker strongly favor a decision contrary
to the one reached." Id., at 267.
Thus, it is clear that with respect to a number of the post-
1954 actions that the District Court found to be independent
violations, foreseeability was not one kind of evidence, but
the whole ball game-whether the District Court thought that
result dictated by the Oliver test or the post-1954 "affirmative
duty" purportedly imposed as a result of pre-1954 conduct.
Those findings that could be supported by the concept of discriminatory
purpose propounded in Davis and Arlington
Heights were not accompanied by any effort to link those
violations with current conditions of segregation in the school
system. In sum, it is somewhat misleading for the Court to
refer to these actions as in some sense independent of the
constitutional duty it suggests that the Columbus Board assumed
in 1954. And, in any event, the small number of students
involved in these instances could not independently
support the sweeping racial balance remedy imposed by the
District Court. Cf. Dayton I, 433 U.S. 406 (1977).
III
The casualness with which the District Court and Court
of Appeals assumed that past actions of the Board had a
22 There is substantial discussion in the District Court's opinion about
various groups that gave the Columbus School Board notice that certain
decisions would have a segregative rather than integrative impact. Id.,
at 255--256. But notice in and of itself .only goes so far as to establish
foreseeability, and foreseeability itself is not the ultimate fact in issue if
we continue to adhere to Davis and Arlington Heights.
520 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
continuing effect on the school system, and the facility and
doctrinal confusion with which they went from these actions
to announce a "systemwide violation" undermine the basic
limitations on the federal courts' authority. If those violations
are not the product of a careful inquiry of the impact on
the current school system, if they are reaction to taint or
atmosphere rather than identifiable conditions that would not
exist now "but for" the constitutional violation, there are
effectively no limits on the ability of federal courts to supplant
local authority. Only two Terms ago, in Dayton I,
supra, at 420, we set out the basic line of inquiry that should
govern school desegregation litigation:
"The duty of both the District Court and the Court
of Appeals in a case such as this, where mandatory segregation
by law of the races in the schools has long since
ceased, is to first determine whether there was any action
in the conduct of the business of the school board which
was intended to, and did in fact, discriminate against
minority pupils, teachers, or staff. Washington v. Davis,
supra. All parties should be free to introduce such additional
testimony and other evidence as the District Court
may deem appropriate. If such violations are found, the
District Court in the first instance, subject to review by
the Court of Appeals, must determine how much incremental
segregative effect these violations had on the
racial distribution of the Dayton school population as
presently constituted, when that distribution is compared
to what it would have been in the absence of such constitutional
violations. The remedy must be designed to
redress that difference, and only if there has been a systemwide
impact may there be a systemwide remedy.
Keyes, 413 U. S., at 213."
See also School Dist. of Omaha v. United States, 433 U. S.
667 (1977); Brennan v. Armstrong, 433 U. S. 672 (1977).
COLUMBUS BOARD OF EDUCATION v. PENICK 521
449 REHNQUIST, J., dissenting
The District Court made no attempt to determine the
incremental segregative effects of identified violations; given
the absence of causality considerations in the court's findings,
it was simply not in a position to do so.23 To distinguish
Dayton I, the majority relies on the District Court's conclusion
that its "finding of liability in this case concerns the
Columbus school district as a whole." 429 F. Supp., at 266.
But incantation is not a substitute for analysis and the District
Court's findings and analysis do not support its conclusion.
But the majority's opinion takes on its most delusive
23 Dayton I was handed down after the liability phase of this case. It
was brought to the District Court's attention while it was considering the
remedy, and the District Court dismissed it as simply reiterating the
maxim that "the nature of the violation determines the scope of the
remedy." Certainly Dayton I was a much more precise articulation of
what implementing that maxim entailed than is found in this Court's prior
cases. And the Court of Appeals' explanation of "incremental segregative
effect" in this case communicates no clear conception of the type of inquiry
into causation that Dayton I requires.
"It is clear to us that the phrases 'incremental segregative effect' and
'systemwide impact' employed in the Dayton case require that the question
of systemwide impact be determined by judging segregative intent and
impact as to each isolated practice, or episode. Each such practice or
episode inevitably adds its own 'increment' to the totality of the impact
of segregation. Dayton does not, however, require each of fifty segregative
practices or episodes to be judged solely upon its separate impact on
the system. The question posed concerns the impact of the total amount
of segregation found-after each separate practice or episode has added its
'increment' to the whole. It was not just the last wave which breached
the dike and caused the flood." 583 F. 2d, at 813-814 (emphasis in
original).
In Brinkman v. Gilligrm, 583 F. 2d 243, 257 (CAB 1978), the court's
description becomes metaphysical:
"The word 'incremental' merely describes the manner in which segregative
impact occurs in a northern school case where each act, even if minor in
itself, adds incrementally to the ultimate condition of segregated schools.
The impact is 'incremental' in that it occurs gradually over the years
instead of all at once as in a case where segregation was mandated by a
state statute or a provision of a state,constitution."
522 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
air when the Court suggests that the scope of the remedy is
the Board's own fault.
"[T]he Board was given ample opportunity to counter
the evidence of segregative purpose and current, systemwide
impact, and the findings of the courts below were
against it in both respects." Ante, at 468.
Specifically, the Court is alluding to the Board's purported
failure to show that the violation was not systemwide under
Keyes or that a more limited remedy should have been applied
under Swann. In fact, the logic of the District Court, apparently
endorsed by the Court today, turns the Swann and
Keyes showings into chimeras.
Once a showing is made that the District Court believes
satisfies the Keyes requirement of purposeful discrimination
in a substantial part of the school system, the School Board
will almost invariably rely on its neighborhood school policy
and residential segregation to show that it is not responsible
for the existence of certain predominantly black and white
schools in other parts of the school system. Under the District
Court's reasoning, as I have noted, not only is that evidence
not probative on the Board's lack of responsibility, it
itself supports an inference of a constitutional violation. In
addition, the District Court relied on a general proposition that
"there is often a substantial reciprocal effect between the color
of the school and the color of the neighborhood it serves" to
block any inquiry into whether racially identifiable schools
were the product of racially identifiable neighborhoods or
whether past discriminatory acts bore a "but for" relationship
to current segregative conditions.24
"It is not now possible to isolate these factors and draw
24 This empirical observation was not the product of evidence about
Columbus, but general opinions expressed by two experts, Dr. Karl
Taeuber and Martin Sloane; the latter testified on federal housing policy
in the United States. As Mn. JUSTICE POWELL has noted, experts have
found that residential segregation exists "'regardless of the character of
449
COLUMBUS BOARD OF EDUCATION v. PENICK 523
REHNQUIST, J., dissenting
a picture of what Columbus schools or housing would
have looked like today without the other's influence. I
do not believe that such an attempt i,s required.
"I do not suggest that any reasonable action by the
school authorities could have fully cured the evils of residential
segregation. The Court could not and would not
impose such a duty upon the defendants. I do believe,
however, that the Columbus defendants could and should
have acted to break the segregative snowball created by
their interaction with housing. That is, they could and
should have acted with an integrative rather than a segregative
influence upon housing; they could and should
have been cautious concerning the segregation influences
that are exerted upon the schools by housing. They certainly
should not have aggravated racial imbalance in the
schools by their official actions." 429 F. Supp., at 259
(emphasis added).
But, as the District Court recognized, other factors play an
important role in determining segregated residential patterns.
"Housing segregation has been caused in part by federal
agencies which deal with financing of housing, local
housing authorities, financing institutions, developers,
landlords, personal preferences of blacks and whites, real
estate brokers and salespersons, restrictive covenants,
local laws and policies, and regardless of the extent of other forms of segregation
or discrimination.'" Keyes v. School Dist. No. 1, Denver, Colo.,
413 U. S., at 223 n. 9 (concurring in part and dissenting in part) (quoting
Dr. Tacuber).
Dr. Taeuber credited residential segregation to economics, choice, and
discrimination. In the latter category be included racially motivated
site selection in public housing and urban renewal programs, restrictive
covenants in housing deeds, lending policies of financial institutions, practices
of the real estate industry, and zoning policies. Entering into all of
this in some unsperified manner is the influence of school attendance zones.
Testimony of Dr. Karl Taeuber, App. 280-311.
524 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
zoning and annexation, and income of blacks as compared
to whites." Ibid.
The Swann Court cautioned that "[t]he elimination of racial
discrimination in public schools is a large task and one that
should not be retarded by efforts to achieve broader purposes
lying beyond the jurisdiction of school authorities. One vehicle
can carry only a limited amount of baggage." 402 U. S.,
at 22. Yet today the School Board is called to task for all the
forces beyond its control that shaped residential segregation
in Columbus. There is thus no room for Keyes or Swann
rebuttal either with respect to the school system today or
that of 30 years ago.
IV
I do not suggest that the inquiry required by Dayton I and
Keyes is a simple one, and reviewing courts must defer to the
findings of district court judges. But appellate courts also
must ensure that these judges are asking themselves the right
questions: it is clear in the instant case that critical questions
regarding causality and purpose were not asked at all. The
city of Columbus has changed enormously in the last 25 years
and with it the racial character of many neighborhoods. Incidents
related here may have been paved over by years of
private choice as well as undesirable influences beyond the
control of school authorities, influences such as poverty and
housing discrimination, both public and private. Expert testimony
should play an important role in putting together the
demographic history of a city and the role of a school board
in it. I do not question that there were constitutional violations
on the part of the Columbus School Board in the past,
but there are no deterrence or retribution components of the
rationale for a school desegregation remedy. The fundamental
mission of such remedies is to restore those integrated
educational opportunities that would now exist but for purposefully
discriminatory school board conduct. Because critically
important questions were neither asked nor answered
COLUMBUS BOARD OF EDUCATION v. PENICK 525
449 REHNQUIST, J., dissenting
by the lower courts, the record before us simply cannot inform
as to whether so sweeping a remedy as that imposed is
justified.
At the beginning of this dissent, far too many pages ago,
I suggested that the Court's opinion may only communicatB
a "hands-off" attitude in school desegregation cases and that
my concerns should therefore be institutional rather than
doctrinal. School desegregation cases, however, will certainly
be with this Court as long as any of its current Members, and
I doubt the Court can for long, like Pilate, wash its hands of
disparate results in cases throughout the country.
It is most unfortunate that the Court chooses not to speak
clearly today. Dayton I and Keyes are not overruled, yet
their essential messages are ignored. The Court does not
intimate that it has fathomed the full implications of the
analysis it has sanctioned-an approach that would certainly
make school desegregation litigation a "loaded game board,"
Swann, 402 U. S., at 28, but one at which a school board could
never win. A school system's only hope of avoiding a judicial
receivership would be a voluntary dismantling of its neighborhood
school program. If that is the Court's intent today, it
has indeed accepted the role of Judge Learned Hand's feared
"Platonic Guardians," zs and intellectual integrity-if not the
Constitution or the interests of our beleaguered urban school
systems and their students of all races-would be better served
by discarding the pretextual distinction between de facto and
de jure segregation. Whether the Court's result be reached
by the approach of Pilate or Plato, I cannot subscribe to it.
25 L. Hand, The Bill of Rights 73 (The Oliver Wendell Holmes Lectures,
1958) :
"For myself it would be most irksome to be ruled by a bevy of Platonic
Guardians, even if I knew how to choose them, which I assuredly do not.
If they were in charge, I should miss the stimulus of living in a society
where I have, at least theoretically, some part in the direction of public
affairs."
526 OCTOBER TERM, 1978
Syllabus 443 U.S.
DAYTON BOARD OF EDUCATION ET AL. v.
BRINKMAN ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT
No. 78-627. Argued April 24, 1979-Decided July 2, 1979
A number of students in the Dayton, Ohio, sohool system, through their
parents, brought this action in District Court in 1972, alleging that the
Dayton Board of Education, the State Board of Education, and various
local and state officials were operating a racially sf'gregated school system
in violation of the Equal Protrction Clause of the Fourteenth Amendment.
After protracted litigation at both the trial and appellate levels,
the District Court dismissed the complaint, ruling that, although t,he
Dayton Schools concededly were highly segregated, the Dayton Board's
failure to alleviate this condition was not actionable absent sufficient
evidence that the racial separation had been caused by the Board's own
purposeful discriminatory conduct. In the District Court's view, plaintiffs
had failed to show either discriminatory purpose or segregative
effect, or both, with respect to the Board's challenged practices and
policies, which included faculty hiring and assignments, the use of
optional attendance zones and transfer policies, the location and construction
of new and expanded school facilities, and the rescission of
certain prior resolutions recognizing the Board's responsibility to eradicate
racial separation in the public schools. The Court of Appeals
reversed, holding that at the time of Brown v. Board of Education, 347
U. S. 483 (Brown I), in 1954, the Dayton Board had operated a racially
segregated, dual school system, that it was constitutionally required to
disestablish that. system and its effects, that it had failed to discharge
this duty, and that the consequences of the dual system together with
tho intentionally segregative impact of various practices since 1954, were
of systemwide import and an appropriate basis for a systemwide remedy.
Held:
1. On the record, there is no basis for disturbing the Court of Appeals'
holding that at the time of Brown I the Dayton Board was intentionally
operating a dual school system in violation of the Equal Protection
Clause. Pp. 534-537.
2. Given the fact that a dual system existed in 1954, the Court of
Appeals also properly held that the Dayton Board was t-hereaftcr under
a continuing duty to eradicate the effects of that system, and that the
DAYTON BOARD OF EDUCATION 11. BRINKMAN 527
526 Syllabus
systemwide nature of the violation furnished prima facie proof that
current segregation in the Dayton schools was caused at least in part
by prior intentionally segregative official acts. Part of the affirmative
duty imposed on a school board is the obligation not to take any action
that would impede the procrss of disestablishing the dual system and
its effects, Wright v. Council of City of Emporia, 407 U. S. 451, and here
the Dayton Board had engaged in many post-Brown I actions that had
the effect of increasing or perpetuating segregation. The measure of a
school board's post-Rrown I conduct under an unsatisfied duty to
liquidate a dual system is the effectiveness, not the purpose, of the
actions in decreasing or increasing the segregation caused by the dual
system. The Dayton Board had to do more than abandon its prior
discriminatory purpose, Keyes v. School Dist. No. I, Denver, Colo., 413
U. S. 189; Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1.
The Board has had an affirmative responsibility to see that pupil assignment
policies and school construction and abandonment practices were
not used and did not serve to perpetuate or re-establish the dual system,
and has a "heavy burden" of showing that actions that increased or continued
the effects of the dual system serve important and legitimate
ends. Pp. 537-540.
3. Nor is there any reason to fault the Court of Appeals' finding,
after the remand of this case in Dayton Board of Education v. Brinkman,
433 U. S. 406, that a sufficient case of current, systemwide effect
had been established. This was not a misuse of Keyes, supra, where
it was held that "purposeful discrimination in a substantial part of a
school system furnishes a sufficient basis for an inferential finding of a
systemwide discriminatory intent unless otherwise rebutted" and that
"given the purpose to operate a dual school system one could infer a
connection between such a purpose and racial separation in other parts
of the school system." Columbus Board of Education v. Penick, ante,
at 467-468. The Court of Appeals was also justified in utilizing the
Dayton Board's failure to fulfill its affirmative duty and its conduct
perpetuating or increasing segregation to trace the current, systemwide
segregation back to the purposefully dual system of the 1950's and the
subsequent acts of intentional discrimination. Pp. 540-542.
583 F. 2d 243, affirmed.
WHITE, J., delivered the opmron of the Court, in which BRENNAN,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. STEWART, J., filed a dissenting
opinion, in which BURGER, C. J., joined, ante, p. 469. PowELL, J.,
filed a dissenting opinion, ante, p. 479. REHNQUIST, J., filed a dissenting
opinion, in which PowELL, J., joined, post, p. 542.
528 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
David C. Greer argued the cause for petitioners. With
him on the brief was Leo F. Krebs.
William E. Caldwell argued the cause for respondents.
With him on the brief were Nathaniel R. Jones, Paul R.
Dimond, Louis R. Lucas, Robert A. Murphy, Norman J.
Chachkin, and Richard Austin. Armistead W. Gilliam, Jr.,
and Charles J. Faruki filed a brief for the Ohio State Board
of Education et al. as respondents under this Court's Rule
21 (4).
Assistant Attorney General Days argued the cause for the
United States as amicus curiae urging affirmance. With him
on the brief were Acting Solicitor General Wallace, Sara Sun
Beale, Brian K. Landsberg, and Robert J. Reinstein.*
MR. JUSTICE WHITE delivered the opinion of the Court.
This litigation has a protracted history in the courts below
and has already resulted in one judgment and opinion by this
Court. Dayton Board of Education v. Brinkman, 433 U. S.
406 (1977) (Dayton I). In its most recent opinion, the
*Richard S. Gebelein, Attorney General of Delaware, Regina M. Small,
Deputy Attorney General, Mason E. Turner, Jr., James T. McKinstry,
and Philip B. Kurland filed a brief for the Delaware State Board of
Education et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Burt N euborne,
E. Richard Larson, Robert Allen Sedler, Winn Newman, and Carole W.
Wilson for the American Civil Liberties Union et al.; by Arthur J. Lesemann
for the Fair Housing Council of Bergen County, N. J.; by Jack
Greenberg, James M. Nebrit Ill, Bill Lann Lee, Joseph L. Rauh, Jr.,
John Silard, Elliott C. Lichtman, and John Fillion for the NAACP Legal
Defense and Educational Fund, Inc., et al.; and by Stephen J. Pollak,
Richard M. Sharp, Wendy S. White, and David Rubin for the National
Education Association et al.
Briefs of amici curiae were filed by Harriet P. Pilpel, Nathan Z. Dershowitz,
and Joseph B. Robison for the American Jewish Congress; by
Ronald A. Zumbrun and John H. Findley for the Pacific Legal Foundation;
and by Duane W. Krohnke for Special School District No. 1, Minneapolis,
Minn.
DAYTON BOARD OF EDUCATION v. BRINKMAN 529
526 Opinion of the Court
United States Court of Appeals for the Sixth Circuit approved
a systemwide plan for desegregating the public schools of
Dayton, Ohio. Brinkman v. Gilligan, 583 F. 2d 243 (1978).
The Court of Appeals found that the Dayton Board of Education
had operated a racially segregated, dual school system
at the time of Brown v. Board of Education, 347 U. S. 483
(1954) (Brown/), and that "[t]he evidence of record demonstrates
convincingly that defendants have failed to eliminate
the continuing systemwide effects of their prior discrimination"
and "actually have exacerbated the racial separation
existing at the time of Brown I." 583 F. 2d, at 253. We
granted certiorari, 439 U.S. 1066 (1979), and heard argument
in this case in tandem with Columbus Board of Education v.
Penick, ante, p, 449. We now affirm the judgment of the
Court of Appeals.
I
The public schools of Dayton are highly segregated by race.
In the year the complaint was filed, 43% of the students in
the Dayton system were black, but 51 of the 69 schools in the
system were virtually all white or all black.1 Brinkman v.
1 The Court of Appeals set out the undisputed statistics:
" 'Enrollment data from the Dayton system reveals the substantial lack
of progress that has been ma.de over the past 23 years in integrating the
Dayton school system. In 1951-52, of 47 schools, 38 had student enrollments
90 per cent or more one race (4 black, 34 white). Of the 35,000
pupils in the district, 19 per cent were black. Yet over half of all black
pupils were enrolled in the four all black schools; and 77 .6 per cent of all
pupils were assigned to virtual one race schools. "Virtual one race schools"
refers to schools with student enrollments of 90 per cent or more one race.
In 1963-64, of 64 schools, 57 had student enrollments 90 per cent or more
one race (13 black, 44 white). Of the 57,400 pupils in the district, 27.8
per cent were black. Yet 79.2 per cent of all black pupils were enrolled
in the 13 black schools; and 88.8 per cent of all pupils were enrolled in
such one race schools.
'"In 1971-72 (the year the complaint was filed), of 69 schools, 49 had
student enrollments 90 per cent or more one race (21 black, 28 white).
Of the 54,000 pupils 42.7 per cent were black; and 75.9 per cent of all
530 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
Gilligan, 446 F. Supp. 1232, 1237 (SD Ohio 1977). A number
of students in the Dayton system, through their parents,
brought this action on April 17, 1972, alleging that the Dayton
Board of Education, the State Board of Education, and the
appropriate local and state officials 2 were operating a racially
segregated school system in violation of the Equal Protection
Clause of the Fourteenth Amendment. The plaintiffs sought
a court order compelling desegregation. The District Court
sustained their cha1lenge, determining that certain actions by
the Dayton Board amounted to a "cumulative" violation of
the Fourteenth Amendment. Id., at 1259.3 The District
Court also approved a plan having limited remedial objectives.
The District Court's judgment that the Board had violated
the Fourteenth Amendment was affirmed by the Court of
Appeals; but after twice being reversed on the ground that the
prescribed remedy was inadequate to eliminate all vestiges of
state-imposed segregation, the District Court ordered the
black students were assigned to the 21 black schools. In 1972-73 (the year
the hearing was held) of 68 schools, 47 were virtually one race (22 black,
25 white); fully 80 per cent of all classrooms were virtually one race.
(Of the 50,000 pupils in the district, 44.6 per cent were black).
"'Every school which was 90 per cent or more black in 1951-52 or
1963-64 or 1971-72 and which is still in use today remains 90 per cent or
more black. Of the 25 white schools in 1972-73, al,l opened 90 per cent
or more white and, if open, were 90 per cent or more white in 1971-72,
1963-64 and 1951-52.'" Brinkman v. Gilligan, 583 F. 2d 243, 254 (CA6
1978) ( emphasis in original), quoting Brinkman v. Gilligan, 503 F. 2d 684,
694-695 (CA6 1974).
2 In the last stages of this litigation, respondents did not press their
claims against t,he state officials. Only the Dayton Board and local officials
petitioned for writ of certiorari.
3 The violation found by the District Court had three major components:
first, the marked racial separation of students, which the Board had made
no significant effort to alter; second, the utilization of optional attendance
zones, in some cases racially motivated and having significant segregative
effect in two high school zones ; and third, the Board's rescission of previously
adopted resolutions recognizing the Board's role in racial segregation
and its responsibility to eradicate the existing pattern.
DAYTON BOARD OF EDUCATION v. BRINKMAN 531
526 Opinion of the Court
Board to take the necessary steps to assure that each school
in the system would roughly reflect the systemwide ratio of
black and white students. App. to Pet. for Cert. 103a." The
Court of Appeals then affirmed. Brinkman v. Gilligan, 539 F.
2d 1084 (1976).
We reversed the judgment of the Court of Appeals and
ordered the case remanded to the District Court for further
proceedings. Dayton I, supra. In light of the District
Court's limited findings regarding liability,5 we concluded that
there was no warrant for imposing a systemwide remedy.
Rather, the District Court should have "determine[d] how
much incremental segregative effect these violations had on
the racial distribution of the Dayton school population as
presently constituted, when that distribution is compared to
what it would have been in the absence of such constitutional
violations. The remedy must be designed to redress that dif-
4 To preserve continuity, the court exempted enrolled high school students
for two academic years. And the court noted that it would evaluate on
a case-by-case basis any deviations from the target percentage. The court,
moreover, set down certain guidelines to be followed in aohieving the
redistribution: ( 1) students would be permitted to attend neighborhood
walk-in schools in those neighborhoods where the schools were already
within the approved ratios; (2) students would be transported to the
nearest available school; and (3) no student would be transported further
than two miles or, if trnveling that distance would take more time, for
longer than 20 minutes. The District Court appointed a master to
supervise the logistics of the plan. Ct'rtain other particulars were worked
out when the master's report was filed. The plan has now been in effect
for three school years.
5 The three parts of the violation found by the District Court are discussed
in n. 3, supra. Racial imbalance, we noted in Dayton I, is not
per se a constitutional violation, and rescission of prior resolutions proposing
desegregation is unconstitutional only if the resolutions were required
in the first place by the Fourteenth Amendment. 433 U. 8., at
413-414. Thus, the scope of liability extended no further than the use
of some optional zones, which :ipparently had a present effect only as to
certain high schools, and the rescission of the resolutions so far as they
pertained to these high schools. See id., at 412.
532 OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
ference, and only if there has been a systemwide impact may
there be a systemwide remedy." 433 U. S., at 420. In view
of the confusion evidenced at various stages of the proceedings
regarding the scope of the violation established, we remanded
the case to permit supplementation of the record and specific
findings addressed to the scope of the remedy, id., at 418-419,
but allowed the existing remedy to remain in effect on remand
subject to further orders of the District Court, id., at 420-421.
The District Court held a supplemental evidentiary hearing,
undertook to review the entire record anew, and entered
findings of fact and conclusions of law and a judgment dismissing
the complaint. In support of its judgment, the District
Court observed that, although various instances of purposeful
segregation in the past evidenced "an inexcusable
history of mistreatment of black students," 446 F. Supp., at
1237, plaintiffs had failed to prove that acts of intentional
segregation over 20 years old had any current incremental
segregative effects.6 The District Court conceded that the
Dayton schools were highly segregated but ruled that the
Board's failure to alleviate this condition was not actionable
absent sufficient evidence that the racial separation had been
caused by the Board's own purposeful discriminatory conduct.
In the District Court's eyes, plaintiffs had failed to show either
discriminatory purpose or segregative effect, or both, with
respect to the challenged practices and policies of the Board,
which included faculty hiring and assignments, the use of
optional attendance zones and tra.nsf er policies, the location
and construction of new and expanded school facilities, and
6 The District Court observed that "[m]any of those practices, if they
existed today, would violate the Equal Protection Clause." 446 F. Supp.,
at 1236. The court identified certain Board policies as being "among"
such practices: until at lea.st 1934, black elementary students were kept
separate from white students; until approximately 1950, high school
athletics were deliberately segregated by race; and until about the same
time, black students at one high school were ordered or induced to sit at
the rear of classrooms and suffered other indignities.
DAYTON BOARD OF EDUCATION v. BRINKMAN 533
526 Opinion of the Court
the rescission of certain prior resolutions recogmzmg the
Board's responsibility to eradicate racial separation in the
public schoo1s.7
7 Reviewing the faculty assignment and hiring practices, the District
Court found that until at least 1951 the Board's policies had been intentionally
segregative. But in that year the Board instituted a policy of
"dynamic gradualism" and "by 1969 all traces of segregation were virtually
eliminated." Id., at 1238-1239. Reasoning that the predominant factor
in the racial identifiability of schools is the pupil population and not the
faculty, the court ruled that plaintiffs had not established that past discrimination
in faculty assignments had an incremental segregative effect.
Similarly, the court ruled that the plaintiff children had not shown
that the Board's use of attendance zones and transfers denied equal protection.
In certain instances, segregative intent had not been satisfactorily
demonstrated. In fact, the District Court reversed itself with respect to
the high school optional zones it had earlier held unconstitutional. In
other instances, current segregative effect had not been proved. Though
another high school, Dunbar, had been created and maintained until 1962
as a citywide black high school, the District Court found that because of
the increasing black population in that area Dunbar would have been
virtually all black by 1960 anyway. And though until the early 1950's
black orphanE had been bused past nearby white schools to all-black
schools, this "arguably" discriminatory conduct had not been shown by
"objective proof" to have any continued segregative effect. Id., at 1241.
The court also looked to school construction and siting practices.
Although 22 of 24 new schools, 78 of 95 additions, and all 26 portable
schools built or utilized by the Board between 1950 and 1972 opened
virtually all black or all white, and though many of the accompanying
decisions appeared to be so without any rationale as to be "haphazard,"
the District Court found that the plaintiffs had not shown purposeful
segregation. The court also refused to investigate whether the Board
had any legitimate grounds for the failure to close some schools and consolidate
others when enrollment declined in recent years. Though such a
course would have decreased racial separation and saved money, the court
found no evidence of discriminatory purpose in those facts. Nor did the
court see any hint of impermissible purpose in the Board's decisions in
the 1940's to supply school services for legally segregated housing projects
and to rent elementary school space in such projects.
Finally, the court held that the Board's rescission of its earlier resolutions
was not violative of the Fourteenth Amendment since, in light of
534 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
The Court of Appeals reversed. The basic ingredients of
the Court of Appeals' judgment were that at the time of
Brown I, the Dayton Board was operating a dual school system,
that it was constitutionally required to disestablish that
system and its effects, that it had failed to discharge this duty,
and that the consequences of the dual system, together with
the intentionally segregative impact of various practices since
1954, were of systemwide import and a.n appropriate basis for
a systemwide remedy. In arriving at these conclusions, the
Court of Appeals found that in some instances the findings of
the District Court were clearly erroneous and that in other
respects the District Court had made errors of law. 583 F. 2d,
at 247. Petitioners contend that the District Court, not the
Court of Appeals, correctly understood both the facts and the
law.
II
A
The Court of Appeals expressly held that, "at the time of
Brown I, defendants were intentionally operating a dual
school system in violation of the Equal Protection Clause of
the fourteenth amendment," and that the "finding of the
district court to the contrary is clearly erroneous." 583 F.
2d, at 247 (footnote omitted). On the record before us, we
perceive no basis for petitioners' challenge to this holding of
the Court of Appeals.8
the court's finding that the current segrfgation had no unconstitutwnal
origin, the Board had no constitutional obligation to adopt the resolutions
in the first place.
8 We have no quarrel with our Brother STEWART's general conclusion
that there is great value in appellate courts showing deference to the factfinding
of local trial judges. Ante, at 470-471. The clearly-erroneous
standard serves that purpose well. But under that standard, the role and
duty of the Court of Appeals are clear: it must determine whether the
trial court's findings are clearly erroneous, sustain them if they are not, but
set them aside if they are. The Court of Appeals performed its unavoidable
duty in this case and concluded that the District Court had erred.
DAYTON BOARD OF EDUCATION v. BRINKMAN 535
526 Opinion of the Court
Concededly, in the early 1950's, "77.6 percent of all students
attended schools in which one race accounted for 90 percent
or more of the students and 54.3 percent of the black students
were assigned to four schools that were 100 percent black."
Id., at 248-249. One of these schools was Dunbar High
School, which, the District Court found, had been established
as a districtwide black high school with an all-black faculty
and a black principal, and remained so at the time of Brown I
and up until 1962. 446 F. Supp., at 1245. The District Court
also found that "among" the early and relatively undisputed
acts of purposeful segregation was the establishment of Garfield
as a black elementary school. Id., at 1236-1237. The
Court of Appeals found that two other elementary schools
were, through a similar process of optional attendance zones
and the creation and maintenance of all-black faculties, intentionally
designated and operated as all-black schools in the
1930's, in the 1940's, and at the time of Brown I. 583 F. 2d, at
249, 250-251. Additionally, the District Court had specifically
found that in 1950 the faculty at 100% black schools was
100% black and that the faculty at all other schools was 100%
white. 446 F. Supp., at 1238.
These facts, the Court of Appeals held, made clear that the
Board was purposefully operating segregated schools in a substantial
part of the district, which warranted an inference and
a finding that segregation in other parts of the system was
also purposeful absent evidence sufficient to support a finding
that the segregative actions "were not taken in effectuation of
a policy to create or maintain segregation" or were not among
the "factors ... causing the existing condition of segregation
in these schools." Keyes v. School Dist. No. 1, Denver, Colo.,
413 U.S. 189, 214 (1973); see id., at 203; Columbus Board of
Education v. Penick, ante, at 467-468. The District Court
had therefore ignored the legal significance of the intentional
Differing with our di&'3enting Brothers, we see no reason on the record
before us to upset the judgment of the Court of Appeals in this respect.
536 OCTOBER TERM, 1978
Opinion of the Court 443 u. s.
maintenance of a substantial number of black schools in the
system at the time of Brown I. It had also ignored, contrary
to Swann v. Charlotte-Mecklenburg Board of Education, 402
U. S. 1, 18 ( 1971), the significance of purposeful segregation
in faculty assignments in establishing the existence of a dual
school system; 9 here the "purposeful segregation of faculty
by race was inextricably tied to racially motivated student assignment
practices." 583 F. 2d, at 248. Based on its review
of the entire record, the Court of Apneals conclnded that the
Boa.rd had not responded with sufficient evidence to counter
the inference that a dual system was in existence in Dayton in
1954. Thus, it concluded that the Board's "intBntional seg-
9 We do not deprecate the relevance of segregated faculty assignments
as one of the factors in proving the existence of a school system that is dual
for teachers and students: but to the extent that the Court of Annenls
understood Swann v. Charlotte-Mecklenburg Board of Education as holding
that faculty segregation makes out a prima facie case not only of
intentionally discriminatory faculty assignments contrary to the Fourteenth
Amendment but also of purposeful racial assignment of students,
this is an overreading of Swann.
The Court of Appeals also held that the District Court had not given
proper weight to Oliver v. Michigan State Board of Education, 508 F. 2d
178, 182 (CA6 1974), cert. denied, 421 U.S. 963 (1975), where the Court
of Appeals had held that "[a] presumption of segregative purpose arises
when plaintiffs establish that the natural, probable, and foreseeable result of
public officials' action or inaction was an increase or perpetuation of public
school segregation," and that "[t]he presumption becomes proof unless
defendants affirmatively establish that their action or inaction was a
consistent and resolute application of racially neutral policies." We have
never held that as a general proposition the foreseeability of segregative
consequences makes out a prima facie case of purposeful racial discrimination
and shifts the burden of producing evidence to the defendants if they
are to escape judgment; and even more clearly there is no warrant in our
cases for holding that such foreseeability routinely shifts the burden of
persuasion to the defendants. Of course, as we hold in Columbus today,
ante, at 464-465, proof of foreseeable consequences is one type of quite
relevant evidence of racially discriminatory purpose, and it may itself
show a failure to fulfill the duty to eradicate the consequences of prior
purposefully discriminatory conduct. See supra, at 535.
.....
DAYTON BOARD OF EDUCATION v. BRlNKMAN 537
526 Opinion of the Court
regative practices cannot be confined in one distinct area";
they "infected the entire Dayton public school system." Id.,
at 252.
B
Petitioners next contend that, even if a dual system did
exist a quarter of a century ago, the Court of Appeals erred
in finding any widespread violations of constitutional duty
since that time.
Given intentionally segregated schools in 1954, however,
the Court of Appeals was quite right in holding that the Board
was thereafter under a continuing duty to eradicate the effects
of that system, Columbus, ante, at 458, and that the systemwide
nature of the violation furnished prima facie proof
that current segregation in the Dayton schools was caused at
least in part by prior intentionally s~gregative official acts.
Thus, judgment for the plaintiffs was authorized and required
absent sufficient countervailing evidence by the defendant
school officials. Keyes, supra, at 211; Swann, supra, at 26.
At the time of trial, Dunbar High School and the three black
elementary schools, or the schools that succeeded them, remained
black schools; and most of the schools in Dayton were
virtually one-race schools, as were 80% of the classrooms.
"'Every school which was 90 percent or more black in 1951-52
or 1963-64 or 1971-72 and which is still in use today remains
90 percent or more black. Of the 25 white schools in 1972-73,
all opened 90 percent or more white and, if open, were 90
percent or more white in 1971-72, 1963-64 and 1951-52.' "
583 F. 2d, at 254 (emphasis in original), quoting Brinkman v.
Gilligan, 503 F. 2d 684, 694-695 (CA6 1974). Against this
background, the Court of Appeals held that "[t]he evidence
of record demonstrates convincingly that defendants have
failed to eliminate the continuing systemwide effects of their
prior discrimination and have intentionally maintained a
segregated school system down to the time the complaint
was filed in the present case." 583 F. 2d, at 253. At the very
I
538 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
least, def end an ts had failed to come forward with evidence to
deny "that the current racial composition of the school population
reflects the systemwide impact" of the Board's prior
discriminatory conduct. Id., at 258.
Part of the affirmative duty imposed by our cases, as we
decided in Wright v. Council of City of Emporia, 407 U. S.
451 (1972), is the obligation not to take any action that would
impede the process of disestablishing the dual system and its
effects. See also United States v. Scotland Neck Board of
Education, 407 U. S. 484 (1972). The Dayton Board, however,
had engaged in many post-Brown I actions that had
the effect of increasing or perpetuating segregation. The District
Court ignored this compounding of the original constitutional
breach on the ground that there was no direct evidence
of continued discriminatory purpose. But the measure of the
post-Brown I conduct of a school board under an unsatisfied
duty to liquidate a dual system is the effectiveness, not the
purpose, of the actions in decreasing or increasing the segregation
caused by the dual system. Wright, supra, at 460,
462; Davis v. School Comm'rs of Mobile County, 402 U.S.
33, 37 ( 1971); see W a.shington v. Davis, 426 U. S. 229, 243
(1976). As was clearly established in Keyes and Swann, the
Board had to do more than abandon its prior discriminatory
purpose. 413 U. S., at 200-201, n. 11; 402 U. S., at 28. The
Board has had an affirmative responsibility to see that pupil
assignment policies and school construction and abandonment
practices "are not used and do not serve to perpetuate or
re-establish the dual school system," Columbus, ante, at 460,
and the Board has a " 'heavy burden' " of showing that actions
that increased or continued the effects of the dual system
serve important and legitimate ends. Wright, supra, at 467,
quoting Green v. County School Board, 391 U. S. 430, 439
(1968).
The Board has never seriously contended that it fulfilled its
affirmative duty or the heavy burden of explaining its failure
DAYTON BOARD OF EDUCATION v. BRINKMAN 539
526 Opinion of the Court
to do so. Though the Board was often put on notice of the
effects of its acts or omissions,1° the District Court found that
"with one [counterproductive] exception ... no attempt was
made to alter the racial characteristics of any of the schools."
446 F. Supp., at 1237. The Court of Appeals held that far
from performing its constitutional duty, the Board had engaged
in "post-1954 actions which actually have exacerbated
the racial separation existing at the time of Brown I." 583
F. 2d, at 253. The court reversed as clearly erroneous the
District Court's finding that intentional faculty segregation
had ended in 1951; the Court of Appeals found that it had
effectively continued into the 1970's.11 This was a systemwidc
practice and strong evidence that the Board was continuing
its efforts to segregate students. Dunbar High School remained
as a black high school until 1962, when a new Dunbar
High School opened with a virtually all black faculty and
student body. The old Dunbar was converted into an ele-
10 The Board heard from the local National Association for the Advancement
of Colored People and other community groups, the Department
of Health, Education, and Welfare, the Ohio State Department of
Education, and a citizens advisory group the Board had appointed; at
times the Board itself expressed its recognition of the problem and of
its responsibility, though ultimately it did nothing. 446 F. Supp., at
1251-1252.
11 Under the policy of "dynamic gradualism" instituted in 1951, seen. 7,
supra, black teachers were assigned to white or mixed schools when the
surrounding communities were ready to accept black teachers, and white
tl'arhers who agreed werC' assignrd to black schools. App. 1S2-Ex. By
1969, each school in the system had at least one black teacher. The District
Court apparent!~· did not think the post-1951 poliry was purposeful
disrrimination. 446 F. Supp., at 1238-1239. We think the Court of
Appeals was completely justified in finding that condusion to be clearly
Prroncous on the undisputed facts. As late as the 1968-1969 school year,
the Board a&'iigned 72% of all black tearhers to schools t.l1at were 90%
or more black, and only 9% of white tea.chers to such schools. And faculty
segregation disappeared completely only after efforts of the Department
of Health. Education, and ,:velfarc under Title YI of the Civil Rights Act
of 1964. See 446 F. Supp., at 1238.
1,
1
' !
I
540 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
mentary school to which children from two black grade schools
were assigned. Furthermore, the Court of Appeals held that
since 1954 the Board had used some "optional attendance
zones for racially discriminatory purposes in clear violation
of the Equal Protection Clause." Id., at 255. The District
Court's finding to the contrary was clearly erroneous.12 At
the very least, the use of such zones amounted to a perpetuation
of the existing dual school system. Likewise, the Board
failed in its duty and perpetuated racial separation in the
schools by its pattern of school construction and site selection,
recited by the District Court, see n. 7, supra, that resulted in
22 of the 24 new schools built between 1950 and the filing of
the complaint opening 90% black or white. The same pattern
appeared with respect to additions of classroom space
made to existing schools. Seventy-eight of a total of 86 additions
were made to schools that were 90% of one race. We
see no reason to disturb these factual determinations, which
conclusively show the breach of duty found by the Court of
Appeals.
C
Finally, petitioners contend that the District Court correctly
interpreted our earlier decision in this litigation as
requiring respondents to prove with respect to each individual
act of discrimination precisely what effect it has had on current
patterns of segregation.13 This argument results from a
misunderstanding of Dayton I, where the violation that had
12 The Court of Appeals found that the District Court had committed
clear error in reversing its earlier findings of purpose as to certain optional
zones, which the Court of Appeals had earlier affirmed and this Court
had not set aside. 583 F. 2d, at 255.
13 Petitioners also contend that the respondent children have failed to
establish their standing to bring this action. This challenge is dependent
on petitioners' major contentions, for if the Court of Appeals was correct
that the current, systemwide segregation is a result of pa.st unlawful conduct
then respondents, as students in the system, clearly have standing.
---
DAYTON BOARD OF EDUCATION v. BRINKMAN 541
526 Opinion of the Court
then been established included at most a few high schools.
See Columbus, ante, at 458 n. 7 and 465-466; nn. 3 and 5,
supra. We have found no reason to fault the Court of Appeals'
findings after our remand that a sufficient case of
current, systemwide effect had been established. In reliance
on its decision in Columbus, the Court of Appeals held:
"First, the dual school system extant at the time of
Brown I embraced 'a systemwide program of segregation
affecting a substantial portion of the schools, teachers,
and facilities' of the Dayton schools, and, thus, clearly
had systemwide impact. . . . Secondly, the post-1954
failure of defendants to desegregate the school system in
contravention of their affirmative constitutional duty
obviously had systemwide impact. . . . The impact of
defendants' practices with respect to the assignment of
faculty and students, use of optional attendance zones,
school construction and site selection, and grade structure
and reorganization clearly was systemwide in that the
actions perpetuated and increased public school segregation
in Dayton." 583 F. 2d, at 258 (footnote omitted),
quoting Keyes, 413 U. S., at 201.
As we note in Columbus today, this is not a misuse of
Keyes, "where we held that purposeful discrimination in a
substantial part of a school system furnishes a sufficient basis
for an inferential finding of a systemwide discriminatory intent
unless otherwise rebutted, and that given the purpose to
operate a dual school system one could infer a connection
between such a purpose and racial separation in other parts
of the school system." Columbus, ante, at 467-468. See also
Swann, 402 U. S., at 26. The Court of Appeals was also quite
justified in utilizing the Board's total failure to fulfill its
affirmative duty-and indeed its conduct resulting in increased
segregation-to trace the current, systemwide segregation
back to the purposefully dual system of the 1950's and to
the subsequent acts of intentional discrimination. See
542 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
supra, at 537; Columbus, ante, at 464-465; Keyes, gupra, at
211; Swann, supra, at 21, 26-27.
Because the Court of Appeals committed no prejudicial
errors of fact or law, the judgment appealed from must be
affirmed.
So ordered.
[For dissenting opinion of MR. JusTICE STEWART, see ante,
p. 469.]
[For dissenting opinion of MR. JusTICE PowELL, see ante,
p. 479.]
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE POWELL
joins, dissenting.
For the reasons set out in my dissent in Columbus Board
of Education v. Penick, ante, p. 489, I cannot join the Court's
opinion in this case. Both the Court of Appeals for the
Sixth Circuit and this Court used their respective Columbus
opinions as a roadmap, and for the reasons I could not
subscribe to the affirmative duty, the foreseeability test, the
cavalier treatment of causality, and the false hope of Keyes
and Swann rebuttal in Columbus, I cannot subscribe to them
here. Little would be gained by another "blow-by-blow"
recitation in dissent of how the Court's cascade of presumptions
in this case sweeps away the distinction between de
facto and de jure segregation.
In its haste to affirm the Court of Appeals, the Court barely
breaks stride to note that there was some "overreading of
Swann" in the Court of Appeals' conclusion that there was a
"dual" school system at the time of Brown I, and that the
court had the wrong conception of segregative intent, i. e., the
mysterious Oliver standard which this Court thinks the Court
of Appeals talks a lot about but never really applies. Ante,
at 536 n. 9. But as the Court more candidly recognizes in this
case, the affirmative duty renders any discussion of segregaDAYTON
BOARD OF EDUCATION v. BRINKMAN 543
526 REHNQUIST, J., dissenting
tive intent after 1954 gratuitous anyway. The Court is also
more honest about the stringency of the standard by which
all post-1954 conduct is to be judged: "[T]he Board has a
' "heavy burden" ' of showing that actions that increased
or continued the effects of the dual [school] system serve
important and legitimate ends." Ante, at 538 ( emphasis
added).
I think that the Columbus and Dayton District Court
opinions point out. the limitation of my Brother STEWART'S
perception of the proper roles of the trial judge and reviewing
courts. That this and other appellate courts must defer to
the factfindings of trial courts is unexceptionable. With the
aid of this observation, he concludes that the Court of Appeals
should be affirmed in Columbus, insofar as it agreed
with the District Court there, and should be reversed here
because it upset the District Court's conclusion that there was
no warrant for a desegregation remedy. But even a casual
reading of the District Court opinions makes it very clear
that the primary determinants of the different results in these
two cases were two totally different conceptions of the law
and methodology that govern school desegregation litigation.
The District Judge in Dayton did not employ a post-1954
"affirmative duty" test. Violations he did identify were
found not to have any causal relationship to existing conditions
of segregation in the Dayton school system. He did
not employ a foreseeability test for intent, hold the school
system responsible for residential segregation, or impugn the
neighborhood school policy as an explanation for some existing
one-race schools. In short, the Dayton and Columbus
District Judges had completely different ideas of what the law
required. As I am sure my Brother STEWART agrees, it is for
reviewing courts to make those requirements clear.
Thus, the District Court opinions in these two cases demonstrate
dramatically the hazards presented by the laissez-faire
theory of appellate review in school desegregation cases. And
544 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443U.S.
I have no doubt that the Court of Appeals' heavyhanded
approach in this case is to some degree explained by the perceived
inequity of imposing a systemwide racial-balance
remedy on Columbus while finding no violation in Dayton.*
The simple meting out of equal remedies, however, is not by
any means "equal justice under law."
*The Court of Appeals did not even remand to allow the Dayton school
authorities the opportunity to show that a more limited remedy was warranted,
even though the Court of Appeals made findings of fact with respect
to liability that had never been made before by any court in this
long litigation, and therefore were never part of a remedy hearing. This
doubtlessly reflects the Court of Appeals' honest appraisal of the futility of
attempts at Swmin rebuttal by the school board.
ROSE v. MITCHELL 545
Syllabus
ROSE, WARDEN v. MITCHELL ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT
No. 77-1701. Argued January 16, 1979-Decided July 2, 1979
Respondents, who are Negroes, were indicted by a county grand jury in
Tennessee for murder. They filed a plea in abatement seeking dismissal
of the indictment on the ground, inter alia, that the foreman of
the grand jury had been selected in a racially discriminatory .fashion.
At a hearing on this plea, respondents called as witnesses 3 jury
commissioners who testified only as to the selection of the grand jury
venire; 2 former foremen who testified that they ha.d never known
of a Negro foreman but were not questioned as to how long they had
resided in the county; the current foreman who stated he had no
knowledge as to whether any Negro had ever served; and 11 of the 12
grand jurors (other than the foreman) who served when respondents
were indicted, none of whom testified relative to selection of the foreman
or the race of past foremen. The trial court denied the plea. Subsequently,
respondents were convicted, and the Tennessee Court of
Criminal Appeals affirmed. Respondents then filed a habeas corpus
petition in Federal District Court, which dismissed the petition, finding
that respondents' prima facie case of discrimination in selecting the
grand jury foreman was rebutted by the State. The Court of Appeals
reversed.
Held:
1. Claims of racial discrimination in the selection of members of a
state grand jury are cognizable in federal habeas corpus and will support
issuance of a writ setting aside a conviction and ordering the indictment
quashed, notwithstanding that no constitutional impropriety tainted the
selection of the petit jury and guilt was established beyond a reasonable
doubt at a trial free from constitutional error. Pp. 550--564.
(a) Because discrimination on the basis of race in the selection of
members of a grand jury strikes at fundamental values of our judicial
system and our society as a whole, a criminal defendant's right to
equal protection of the laws is denied when he is indicted by a grand
jury from which members of a racial group have been purposefully
excluded. Pp. 551-557.
(b) Such costs as exist in permitting a federal court to hear claims
of racial discrimination in the selection of a grand jury when reviewing
546 OCTOBER TERM, 1978
SyUabus 443 U.S.
a state conviction, are outweighed by the recognized policy of combatting
racial discrimination in the administration of justice. Even
though there are alternative remedies to vindicate the rights of those
members of the class denied the chance to serve on grand juries, the
fact is that permitting challenges to unconstitutional state action by
defendants has been, and is, the main avenue by which Fourteenth
Amendment rights are vindicated in this context. Pp. 557-559.
(c) The rationale of Stone v. Powell, 428 U. S. 465, in which it was
held that where the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim at trial and on direct review,
a state prisoner may not be granted federal habeas corpus relief on the
ground that evidence obtained through an unconstitutional search and
seizure was introduced at his trial, will not be extended to a claim of
discrimination in the selection of the grand jury that indicts the habea~
petitioner. This latter claim differs fundamentally from application on
habeas of the Fourth Amendment exclusionary rule. Such a claim concerns
allegations that the trial court itself violated the Fourteenth
Amendment in the operation of the grand jury system, whereas in
Fourth Amendment cases, courts are called upon to evaluate the actions
of the police in seizing evidence. Moreover, a claim of grand jury discrimination
involves charges that state officials are violating the direct
command of the Equal Protection Clause of the Fourteenth Amendment,
and federal statutes passed thereunder, that "[n]o State shall ...
deny to any person within its jurisdiction the equal protection of the
Jaws." Federal habeas review is necessary to ensure that constitutional
defects in the state judiciary's grand jury selection procedure are not
overlooked by the very state judges who operate that system. Pp.
559-564.
2. As a matter of law, respondents failed to make out a prima facie
case of discrimination in violation of the Equal Protection Clause with
regard to the selection of the grand jury foreman. Respondents' case
rested entirely on the testimony of the two former foremen and the current
foreman, since they were the only ones who testified at all about the
selection of a foreman, and their testimony was insufficient to establish
respondents' case. Absent evidence as to the total number of foremen
appointed by the judges in the county during the critical period of time,
it is difficult to say that the number of Negroes appointed foreman, even
if zero, is statistically so significant as to make out a case of discrimination
under the "rule of exclusion." Pp. 564-574.
570 F. 2d 129, reversed and :remanded.
ROSE v. MITCHELL 547
545 Opinion of the Court
BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN
and MARSHALL, JJ., joined; in Parts I, III, and IV of which BURGER, C. J.,
and REHNQUIST, J., joined; and in Parts I and II of which WHITE and
STEVENS, JJ., joined. REHNQUIST, J., filed a statement concurring in part,
post, p. 574. STEWART, J., post, p. 574, and PowELL, J., post, p. 579,
filed opinions concurring in the judgment, in which REHNQUIST, J., joined.
WHITE, J., filed a dissenting opinion, in which STEVENS, J., joined, post,
p. 588. STEVENS, J., filed an opinion dissenting in part, post, p. 593.
William M. Leech, Jr., Attorney General of Tennessee,
argued the cause for petitioner. With him on the brief was
Michael E. Terry, Assistant Attorney General.
Walter Kurtz argued the cause and filed a brief for
respondents.*
MR. JusTICE BLACKMUN delivered the opinion of the Court.t
In this federal habeas corpus case, respondents claim they
were the victims of racial discrimination, in violation of the
Equal Protection Clause of the Fourteenth Amendment, in
the selection of the foreman of the Tennessee grand jury that
indicted them for murders in the first degree. As the case
comes to this Court, no issue of discrimination in the selection
of the venire is presented; we are concerned only with
the selection of the foreman.
I
In November 1972, respondents James E. Mitchell and
James Nichols, Jr., and two other men were jointly indicted
by the grand jury of Tipton County, Tenn. The four were
charged in two counts of first-degree murder in connection
with the shooting deaths of patrons during the robbery of
*Solicitor General McCree, Assistant Attorney General Days, Walter W.
Barnett, and Mildred M. Matesich filed a memorandum for the United
States as amicus curiae urging a.ffirmance.
tMR. CHIEF JUSTICE BURGER and MR. JUSTICE REHNQUIST join only
Parts I, III, and IV of the opinion, and MR. JusTICE WHITE and MR.
JUSTICE STEVENS join only Parts I and II.
548 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
a place known as White's Cafe.1· Prior to trial, respondents
filed with the trial court a written pro se motion in
the nature of a plea in abatement. App. 1. They sought
thereby, together with other relief, the dismissal of the indictment
on the grounds that the grand jury array, and the
foreman, had been selected in a racially discriminatory
fashion.2 Each respondent is a Negro.
1 The Constitution of Tennessee requires that any prosecution for the
crimes with which respondPnts were charged be instituted by presentment
or indictment by a grand jury. Tenn. Const., Art. I,§ 14.
2 In Tennessee, the grand jury is composed of 12 grand jurors, Tenn.
Code Ann. § 40---1501 (1975), and a foreman or forewoman who "shall be
the thirteenth member of each grand jury organized during his term of
office, having equal power and authority in all matters coming before the
grand jury with the other members thereof." § 40--1506 (Supp. 1978).
The foreman or forewoman is appointed for a term of two years by the
judge of the court having criminal jurisdiction in the county. Ibi.d.
There is no limitation on reappointment. The foreman or forewoman
must be at least 25 years of age, "shall be a good and lawful man or
woman," and possess all the other qualifications required of Tennessee
jurors. § 40--1507 (Supp. 1978). See§ 22--101 (Supp. 1978).
The members of the grand jury, other than the foreman or forewoman,
are selected through the operation of the "key man" system, whereby
three jury commissioners compile a list of qualified potential jurors from
which the grand jurors are selected at random. See §§ 22--223 to 22-228
(Supp. 1978); §§ 40--1501 and 40--1502 (1975). Twelve members of the
grand jury must concur in order to return an indictment. § 40--1706 ( 1975).
Tho foreman or forewoman may be 1 of the 12. Bolen v. State, 554 S. W.
2d 918, 920 (Tenn. Crim. App. 1976). The foreman or forewoman acts
rui chairman or "presiding officer." State v. Collins, 65 Tenn. 151, 153
(1873). He or she is charged with the duty of assisting the district
attorney in investigating crime, may order the issuance of subpoenas for
witnesses before the grand jury, may administer oaths to grand jury
witnesses, must endorse every bill returned by the grand jury, and must
present any indictment to the court in the presence of the grand jury.
Tenn. Code Ann. §§ 40--1510, 40--1622, 40--1706, and 40--1709 (1975 and
Supp. 1978). The absence of the foreman's endorsement makes an indictment
"fatally defective." Bird v. State, 103 Tenn. 343, 344, 52 S. W.
1076 (1899).
'
'
I
ROSE v. MITCHELL 549
545 Opinion of the Court
The court appointed counsel to represent respondents and
in due course conducted an evidentiary hearing on the plea
in abatement. At that hearing, testimony on behalf of the
respondents was taken from the 3 Tipton County jury commissioners;
from 2 former Tipton County grand jury foremen;
from the foreman of the grand jury serving at the time
respondents were indicted; and from 11 of the 12 other members
of that grand jury. The court clerk was a witness on
behalf of the State. Id., at 3-35.
At the close of this evidence, the court denied the plea in
abatement, first orally, and then by written order, without
comment. Id., at 35 and 36.
Respondents were then tried jointly to a jury. A verdict
of guilty of first-degree murder on each count was returned.
Respondents received sentences of 60 years on each count,
the sentences to run consecutively with credit allowed for
time spent in jail awaiting trial.
On appeal, the Court of Criminal Appeals of Tennessee
affirmed the convictions, finding, with respect to an assignment
of error relating to the plea in abatBment, that the
"facts here do not demonstrate a systematic exclusion of
Negroes upon racial grounds." Id., at 38-39. The Supreme
Court of Tennessee denied certiorari. Id., at 42.
Respondents each then filed a pro se petition for a writ
of habeas corpus in the United States District Court for the
Western District of Tennessee, id., at 43-52, 62-73, renewing,
among other things, the allegation of discrimination in the
selection of the Tipton County grand jury and its foreman.
The District Court referred the petitions to a magistrate who,
after reviewing the evidence introduced in the state court at
the hearing on the plea in abatement and studying the
method of selection, recommended that the court hold an
evidentiary hearing on the grand jury and jury foreman
selection issues. Specifically, the magistrate concluded that
respondents had presented an unrebutted prima facie case
550 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
with respect to the selection of the foreman. Id., at 84, 90,
97. The District Court disagreed with the magistrate as to
the grand jury, and concluded that the state judge had ruled
correctly on that issue. On the foreman question, the District
Court went along with the magistrate, and ordered the
State to make further response. Id., at 98. The State then
submitted affidavits from the acting foreman of the grand
jury that indicted respondents and from the state trial judge
who appointed the foreman. Id., at 102-106, 108-113. On
the basis of these affidavits, the petitions were ordered dismissed.
Id., at 121-122.
The District Judge, however, granted the certificate of
probable cause required by Fed. Rule App. Proc. 22 (b), App.
126--127, and respondents appealed to the United States Court
of Appeals for the Sixth Circuit.
The Court of Appeals reversed. 570 F. 2d 129 (1978).
That court deemed it unnecessary to resolve respondents'
contentions concerning discrimination in the selection of the
grand jury venire, id., at 134, since it found sufficient grounds
to reverse with respect to the selection of the foreman. It
remanded the case with instructions for the entry of an order
that respondents' murder convictions be set aside and that
respondents be reindicted within 60 days or be released. Id.,
at 137.
We granted certiorari to consider the foreman issue. 439
U. S. 816 (1978).
II
We initially address two arguments that, aside from the
specific facts of this particular case, go to the question whether
a federal court, as a matter of policy, should hear claims of
racial discrimination in the selection of a grand jury when reviewing
a state conviction. First, we consider whether claims
of grand jury discrimination should be considered harmless
error when raised, on direct review or in a habeas corpus proceeding,
by a defendant who has been found guilty beyond a
ROSE v. MITCHELL 551
545 Opinion of the Court
reasonable doubt by a properly constituted petit jury at a
trial on the merits that was free from other constitutional
error. Second, we consider the related question whether such
claims should be cognizable any longer on federal habeas
corpus in light of the decision in Stone v. Powell, 428 U. S.
465 ( 1976).
A
For nearly a century, this Court in an unbroken line of
cases has held that "a criminal conviction of a Negro cannot
stand under the Equal Protection Clause of the Fourteenth
Amendment if it is based on an indictment of a grand jury
from which Negroes were excluded by reason of their race."
Alexander v. Louisiana, 405 U. S. 625, 628 ( 1972); Bush v.
Kentucky, 107 U. S. 110, 119 (1883); Neal v. Delaware, 103
U. S. 370, 394 (1881). See Castaneda v. Partida, 430 U. S.
482, 492-495, and n. 12 ( 1977) .3 A criminal defendant "is
entitled to require that the State not deliberately and systematically
deny to members of his race the right to participate
as jurors in the administration of justice." Alexander v.
Louisiana, 405 U. S., at 628-629. Accordingly, where sufficient
proof of discrimination in violation of the Fourteenth
Amendment has been made out and not rebutted, this Court
uniformly has required that the conviction be set aside and
the indictment returned by the unconstitutionally constituted
grand jury be quashed. E. g., Hill v. Texas, 316 U. S. 400,
406 (1942).4
3 In Castaneda v. Partida, we noted that among the cases in which the
Court had applied this principle in circumstances involving grand jury
discrimination were Bush v. Kentucky; Carter v. Texa.s, 177 U. S. 442
(1900); Rogers v. Alabama, 192 U. S. 226 (1904); Pierre v. Louisiana,
306 U. 8. 354 (1939); Smith v. Texas, 311 U.S. 128 (1940); Hill v. Texas,
316 U. S. 400 (1942); Cassell v. Texas, 339 U. S. 282 (1950); Reece v.
Georgia, 350 U.S. 85 (1955); Eubanks v. Louisiana, 356 U. S. 584 (1958);
Arnold v. North Carolina, 376 U. S. 773 (1964); and Alexander v.
Louisicma.
4 In view of the disposition of this case on the merits, we may assume
552 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
Until today, only one Justice among those who have served
on this Court in the 100 years since Strauder v. West Virginia,
100 U. S. 303 ( 1880), has departed from this line of decisions.
In his dissent in Cassell v. Texas, 339 U. S. 282, 298 (1950),
Mr. Justice Jackson voiced this lone objection by arguing that
federal courts should not set aside criminal convictions solely
on the ground that discrimination occurred in the selection of
the grand jury, so long as no constitutional impropriety tainted
the selection of the petit jury, and guilt was established beyond
a reasonable doubt at a trial free from constitutional
error. The Cassell dissent noted that discrimination in the
selection of the grand jury had nothing to do with the fairness
of the trial or the guilt or innocence of the defendant, and
that reversal based on such discrimination conflicted "with
another principle important to our law, viz., that no ,conviction
should be set aside for errors not affecting substantial rights
of the accused." Id., at 299.
Mr. Justice Jackson could discern no reason to permit this
conflict. In the first place, he noted, the convicted defendant
suffered no possible prejudice. Unlike the petit jury, the
grand jury sat only to determine probable cause to hold the
defendant for trial. It did not consider the ultimate issue of
guilt or innocence. Once a trial court heard all the evidence
and determined it was sufficient to submit the case to the trier
of fact, and once that trier determined that the defendant was
guilty beyond a reasonable doubt, Mr. Justice Jackson believed
that it "hal'dly lies in the mouth of a defendant ... to say
that his indictment is attributable to prejudice." Id., at 302.
"Under such circumstances," he concluded, "it is frivolous to
contend that any grand jury, however constituted, could have
done its duty in any way other than to indict." Ibid.
without deciding that discrimination with regard to the selection of only
the foreman requires that a subsequent conviction be set aside, just as if
the discrimination proved had tainted the selection of the entire grand
jury venire. See Carter v. Jury Comm'n, 396 U.S. 320, 338 (1970).
ROSE v. MITCHELL 553
545 Opinion of the Court
Nor did Mr. Justice Jackson believe the Strauder line of cases
to be justified by a need to enforce the rights of those discriminated
against to sit on grand juries without regard to
their race. He pointed out that Congress had made it a
crime to discriminate in this manner, 18 U. S. C. § 243,5 and
that civil remedies at law and equity were available to members
of the class discriminated against. Accordingly, Mr. Justice
Jackson would have held that "discrimination in selection
of the grand jury ... , however great the wrong toward qualified
Negroes of the community, was harmless to this defendant,''
339 U. S., at 304, and would have left enforcement of
Fourteenth Amendment interests to criminal prosecutions
under § 243 and civil actions instituted by such "qualified
Negroes."
This position for the first time has attracted the support
of additional Members of the Court, as expressed in the
separate opinion of MR. JusTICE STEWART in this case. Echoing
the Cassell dissent, this separate opinion asserts that "the
time has come to acknowledge that Mr. Justice Jackson's
[position] is unanswerable, and to hold that a defendant may
not rely on a claim of grand jury discrimination to overturn
an otherwise valid conviction." Post, at 575. It argues that
the conviction of the defendant should be a break in the chain
of events that preceded it, and notes that where Fourth or
Fifth Amendment rights are violated, the evidence illegally
obtained is suppressed, but "the prosecution is not barred altngether."
Post, at 576-577, n. 4. The separate opinion be-
5 Title 18 U.S. C. § 243 provides:
"No citizen possessing all other qualifications which are or may be
prescribed by law shall be disqualified for service as grand or petit juror
in any court of the United States, or of any State on account of race, color,
or previous condition of servitude; and whoever, being an officer or other
person charged with any duty in the selection or summoning of jurors,
excludes or fails to summon any citizen for such cause, shall be fined not
more than $5,000."
554 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
lieves that any other interests that are harmed by grand jury
discrimination may be protected adequately by prosecutions.
civil actions, or pretrial remedies available to defendants. In
such circumstances, it finds the heavy social cost entailed in a
reversal unjustified, especially in light of the fact the defendant
himself has suffered no prejudice.· Accordingly, the separate
opinion would not recognize, either on direct review or
on an application for a writ of habeas corpus, a claim of grand
jury discrimination as a valid ground for setting aside a criminal
conviction.6
This Court, of course, consistently has rejected this argument.
It has done so implicitly in those cases in which it
has reaffirmed the Strauder principle in the context of grand
jury discrimination. E. g., Reece v. Georgia, 350 U. S. 85,
87 (1955); Alexander v. Louisiana, 405 U.S., at 628. And it
has done so expressly, where the argument was pressed in the
guise of the claim that the constitutional rights of the defendant
are not violated by grand jury discrimination since
an indictment only brings that defendant before the petit jury
for trial. Pierre v. Louisiana, 306 U.S. 354, 356-358 (1939).
See Cassell v. Texas, 339 U. S., at 290 (Frankfurter, J., concurring);
id., at 296 (Clark, J., concurring). We decline now
to depart from this longstanding consistent practice, and we
adhere to the Court's previous decisions.
Discrimination on account of race was the primary evil at
which the Amendments adopted after the War Between the
States, including the Fourteenth Amendment, were aimed.
The Equal Protection Clause was central to the Fourteenth
Amendment's prohibition of discriminatory action by the
6 The State makes a variation of this argument by contending that any
constitutional error that occurred in the selection of the foreman of t he
grand jury is "now moot procedural error which had no effect on t he
integrity of the trial," Brief for Petitioner 29, and so was harmless beyond
a reasonable doubt in light of the subsequent conviction by a properly
constituted petit jury.
ROSE v. MITCHELL 555
545 Opinion of the Court
State: it banned most types of purposeful discrimination by
the State on the basis of race in an attempt to lift the burdens
placed on Negroes by our society. It is clear from the earliest
cases applying the Equal Protection Clause in the context
of racial discrimination in the selection of a grand jury, that
the Court from the first was concerned with the broad aspects
of racial discrimination that the Equal Protection Clause was
designed to eradicate, and ·with the fundamental social values
the Fourteenth Amendment was adopted to protect, even
though it addressed the issue in the context of reviewing an
individual criminal conviction. Thus, in the first case establishing
the principles that have guided the Court's decisions
these 100 years, the Court framed the issue in terms of the
larger concerns with racial discrimination in general that it
understood as being at the core of the Fourteenth Amendment:
"The very fact that colored people are singled out and
expressly denied by a statute all right to participate in
the administration of the law, as jurors, because of their
color, though they are citizens, and may be in other respects
fully qualified, is practically a brand upon them,
affixed by the law, an assertion of their inferiority, and a
stimulant to that race prejudice which is an impediment
to securing to individuals of the race that equal justice
which the law aims to secure to all others. . . . [T]he apprehension
that through prejudice [such persons] might
be denied that equal protection, that is, that there might be
discrimination against them, was the inducement to bestow
upon the national government the power to enforce
the provision that no State shall deny to them the equal
protection of the laws." Strauder v. West Virginia, 100
U. S., at 308, 309.
Discrimination on the basis of race, odious in all aspects,
is especially pernicious in the administration of justice.
Selection of members of a grand jury because they are of one
race and not another destroys the appearance of justice and
556 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
thereby casts doubt on the integrity of the judicial process.
The exclusion from grand jury service of Negroes, or any
group otherwise qualified to serve, impairs the confidence of
the public in the administration of justice. As this Court
repeatedly has emphasized, such discrimination "not only violates
our Constitution and the laws enacted under it but is
at war with our basic concepts of a democratic society and
a representative government." Smith v. Texas, 311 U. S.
128, 130 (1940) (footnote omitted). The harm is not only
to the accused, indicted as he is by a jury from which a segment
of the community has been excluded. It is to society as
a whole. "The injury is not limited to the defendant-there
is injury to the jury system, to the law as an institution, to
the community at large, and to the democratic ideal reflected
in the processes of our courts." Ballard v. United States, 329
U.S. 187, 195 (1946).
Because discrimination on the basis of race in the selection
of members of a grand jury thus strikes at the fundamental
values of our judicial system and our society as a whole, the
Court has recognized that a criminal defendant's right to
equal protection of the laws has been denied when he is indicted
by a grand jury from which members of a racial group
purposefully have been excluded. E. g., Neal v. Delaware,
103 U.S., at 394; Reece v. Georgi,a, 350 U.S., at 87. For this
same reason, the Court also has reversed the conviction and
ordered the indictment quashed in such cases without inquiry
into whether the defendant was prejudiced in fact by the discrimination
at the grand jury stage. Since the beginning, the
Court has held that where discrimination in violation of the
Fourteenth Amendment is proved, "'[t]he court will correct
the wrong, will quash the indictment[,] or the panel[;] or, if
not, the error will be corrected in a superior court,' and ultimately
in this court upon review," and all without regard to
prejudice. Neal v. Delaware, 103 U. S., at 394, quoting Virginia
v. Rives, 100 U. S. 313, 322 (1880). See Bush v. Ken-
I
I
I
I
ROSE v. MITCHELL 557
545 Opinion of the Court
tucky, 107 U. S., at 119. The Court in Hill v. Texas, 316
U.S., at 406, stated:
"[NJ o State is at liberty to impose upon one charged
with crime a discrimination in its trial procedure which
the Constitution, and an Act of Congress passed pursuant
to the Constitution, alike forbid. Nor is this Court at
liberty to grant or withhold the benefits of equal protection,
which the Constitution commands for all, merely as
we may deem the defendant innocent or guilty. Tumey
v. Ohio, 273 U. S. 510, 535. It is the State's function,
not ours, to assess the evidence against a defendant. But
it is our duty as well as the State's to see to it that
throughout the procedure for bringing him to justice he
shall enjoy the protection which the Constitution guarantees.
Where, as in this case, timely objection has laid
bare a discrimination in the selection of grand jurors, the
conviction cannot stand, because the Constitution prohibits
the procedure by which it was obtained. Equal
protection of the laws is something more than an abstract
right. It is a command which the State must
respect, the benefits of which every person may demand.
Not the least merit of our constitutional system is that
its safeguards extend to all-the least deserving as well
as the most virtuous." 1
We do not deny that there are costs associated with this
approach. But the remedy here is in many ways less drastic
than in situations where other constitutional rights have
been violated. In the case of a Fourth or Fifth Amendment
violation, the violation often results in the suppression of
evidence that is highly probative on the issue of guilt. Here,
7 The fact that there is no constitutional requirement that States institute
prosecutions by means of an indictment returned by a grand jury, see
Hurtado v. California, 110 U. S. 516 (1884), does not relieve those States
that do employ grand juries from complying with the rommanris of the
Fourteenth Amendment in the operation of those juries.
558 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
hO\vever, reversal does not render a defendant "immune from
prosecution," nor is a subsequent reindictment and reprosecution
"barred altogether," as MR. JUSTICE STEWART'S opinion
suggests. Post, at 576---577. n. 4. "A prisoner whose conviction
is reversed by this Court need not go free if he is in fact
guilty, for [the State] may indict and try him again by the
procedure which conforms to constitutional requirements."
Hill v. Texas, 316 U. S., at 406. And in that subsequent
prosecution, the State remains free to use all the proof it introduced
to obtain the conviction in the first trial.
In any event, we believe such costs as do exist are outweighed
by the strong policy the Court consistently has recognized
of combating racial discrimination in the administration
of justice. And regardless of the fact that alternative
remedies remain to vindicate the rights of those members of
the class denied the chance to serve on grand juries, the fact
is that permitting challenges to unconstitutional state action
by defendants has been, and is, the main avenue by which
Fourteenth Amendment rights are vindicated in this context.
Prosecutions under 18 U. S. C. § 243 have been rare, and they
are not under the control of the class members and the courts.
Civil actions, expensive to maintain and lengthy, have not
often been used. And even assuming that some type of pretrial
procedure would be open to a defendant, e.g., petitioning
for a writ of habeas corpus in federa.l court, under such a procedure
the vindication of federal constitutional rights would
turn on a race to obtain a writ before the State could commence
the trial.
We think the better view is to leave open the route that
over time has been the main one by which Fourteenth Amendment
rights in the context of grand jury discrimination have
been vindicated. For we also cannot deny that, 114 years after
the close of the War Between the States and nearly 100 years
after Strauder, racial and other forms of discrimination still
remain a fact of life, in the administration of justice as in our
ROSE v. MITCHELL 559
545 Opinion of the Court
society as a whole. Perhaps today that discrimination takes
a form more subtle than before. But it is not less real or
pernicious. We therefore decline "to reverse a course of decisions
of long standing directed against racial discrimination in
the administration of justice," Cassell v. Texas, 339 U. S., at
290 (Frankfurter, J., concurring), and we adhere to our position
that discrimination in the selection of the grand jury remains
a valid ground for setting aside a criminal conviction.8
B
The State makes the additional argument that the decision
in Stone v. Powell, 428 U. S. 465 (1976), should be extended
so as to foreclose a grant of federal habeas corpus relief to a
state prisoner on the ground of discrimination in the selection
of the grand jury. MR. JUSTICE POWELL, dissenting in CMtaneda
v. Partida, 430 U. S., at 508 n. 1, joined by THE CHIEF
JusTICE and MR. JusTICE REHNQUIST, and at least inferentially
by MR. JUSTICE STEWART, id., at 507, specifically observed
that a "strong case may be made that claims of grand
jury discrimination are not cognizable on federal habeas corpus
after Stone v. Powell." In this connection, MR. JusTICE
PowELL noted that a claim by a convicted prisoner of grand
jury discrimination goes only to the "moot determination by
the grand jury that there was sufficient cause to proceed to
trial [and not to any] flaw in the trial itself." Id., at 508 n. 1.
He concluded that, as in Stone, "the incremental benefit of
extending habeas corpus as a means of correcting unconstitutional
grand jury selection procedures might be viewed as
'outweighed by the acknowledged costs to other values vital to
a rational system of criminal justice.'" 430 U. S., at 508 n. 1,
quoting Stone, 428 U. S., at 494.
8 There is no contention in this case that respondents sought to press
their challenge to the grand jury without complying with state procedural
rules as to when such claims may be raised. See Franci:3 v. Henderson,
425 U. S. 536 (1976). Nor do they seek to press this challenge after
pleading guilty. See Tollett v. Henderson, 411 U.S. 258 (1973).
560 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
The State echoes these arguments. It contends that habeas
corpus relief should be granted only where the error alleged
in support of that relief affected the determination of guilt.
In this case, as in Stone v. Powell, it argues, no error affected
the trial on the merits. Moreover, only a relatively minor
error, involving the nonvoting foreman of the grand jury and
not the entire venire, is at issue. Accordingly, following its
interpretation of Stone, the State contends that the benefits
derived from extending habeas relief in this case are outweighed
by the costs associated with reversing a state conviction
entered upon a finding of guilt beyond a reasonable doubt
at a trial free from constitutional error.9
In Stone v. Powell, however, the Court carefully limited
the reach of its opinion. It stressed that its decision to limit
review was "not concerned with the scope of the habeas corpus
statute as authority for litigating constitutional claims generally."
428 U. S., at 495 n. 37 (emphasis in original).
Rather, the Court made it clear that it was confining its ruling
to cases involving the judicially created exclusionary rule,
which had minimal utility when applied in a habeas corpus
proceeding. "In sum," the Court concluded, it was holding
"only that a federal court need not apply the exclusionary
rule on habeas review of a Fourth Amendment claim absent
a showing that the state prisoner was denied an opportunity
for a full and fair litigation of that claim at trial and on direct
review." Ibid.
Mindful of this limited reach of Stone, we conclude that
a claim of discrimination in the selection of the grand jury
differs so fundamentally from application on habeas of the
9 The Stone v. Powell issue was raised by petition for rehearing in the
Court of Appeals. App. 142. In denying that petition, the court stated
"that the issues raised therein were fully considered upon the original
submission and decision of this case." Id., at 151. In its opinion denying
respondents' motion for amendment of judgment, the District Court found
that its original ruling denying the writ was bolstered by the decision in
Stone. App. 125.
.....
ROSE v. MITCHELL 561
545 Opinion of the Court
Fourth Amendment exclusionary rule that the reasoning
of Stone v. Powell should not be extended to foreclose habeas
review of such claims in federal court.
In the first place, claims such as those pressed by respondents
in this case concern allegations that the trial court itself
violated the Fourteenth Amendment in the operation of the
grand jury system. In most such cases, as in this one, this
same trial court will be the court that initially must decide
the merits of such a claim, finding facts and applying the law
to those facts. This leads us to doubt that claims that the
operation of the grand jury system violates the Fourteenth
Amendment in general will receive the type of full and fair
hearing deemed essential to the holding of Stone. See, e. g.,
428 U. S., at 494, 495 n. 37. In Fourth Amendment cases,
courts are called upon to evaluate the actions of the police in
seizing evidence, and this Court believed that state courts
were as capable of performing this task as federal habeas
courts. Id., at 493-494, n. 35. But claims that the state
judiciary itself has purposely violated the Equal Protection
Clause are different. There is a need in such cases to ensure
that an independent means of obtaining review by a federal
court is available on a broader basis than review only by this
Court will permit. A federal forum must be available if a full
and fair hearing of such claims is to be had.
Beyond this, there are fundamental differences between the
claim here at issue and the claim at issue in Stone v. Powell.
Allegations of grand jury discrimination involve charges that
state officials are violating the direct command of the Fourteenth
Amendment, and federal statutes passed under that
Amendment, that "[n]o State shall ... deny to any person
within its jurisdiction the equal protection of the laws."
Since the first days after adoption of the Amendment, the
Court has recognized that by its direct operation the Equal
Protection Clause forbids the States to discriminate in the
selection of members of a grand jury. This contrasts with
I
i
Ii
562 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
the situation in Stone, where the Court considered application
of "a judicially created remedy rather than a personal constitutional
right." 428 U. S., at 495 n. 37. Indeed, whereas
the Fourteenth Amendment by its terms always has been
directly applicable to the States, the Fourth Amendment and
its attendant exclusionary rule only recently have been
applied fully to the States.
1n this context, the federalism concerns that motivated the
Court to adopt the rule of Stone v. PoweU are not present.
Federal courts have granted relief to state prisoners upon
proof of the proscribed discrimination for nearly a century.
See, e. g., Virginia v. Rives, 100 U. S., at 322. The confirmation
that habeas corpus remains an appropriate vehicle
by which federal courts are to exercise their Fourteenth
Amendment responsibilities is not likely further to increase
"'friction between our federal and state systems of justice,
[ or impair] the maintenance of the constitutional balance
upon which the doctrine of federalism is founded.' " Stone
v. Powell, 428 U. S., at 491 n. 31, quoting Schneckloth v. Bustamante,
412 U.S. 218, 259 (1973) (POWELL, J., concurring).
Further, Stone rested to a large extent on the Court's perception
that the exclusionary rule is of minimal value when
applied in a federal habeas proceeding. The Court there
found that the deterrent value of the exclusionary rule was
not enhanced by the possibility that a "conviction obtained
in state court and affirmed on direct review might be overturned
in collateral proceedings often occurring years after the
incarceration of the defendant." 428 U. S., at 493. Nor did
the Court believe that the "overall educative effect of the
exclusionary rule would be appreciably diminished if searchand-
seizure claims could not be raised in federal habeas corpus
review of state convictions." Ibid. And it could not find any
basis to say that federal review would reveal flaws in the
search or seizure that had gone undetected at trial or on
appeal. Ibid. In these circumstances, the Court concluded
ROSE v. MITCHELL 563
545 Opinion of the Court
that the benefits of applying the Fourth Amendment exclusionary
rule on federal habeas did not outweigh the costs
associated with it.
None of this reasoning has force here. Federal habeas review
is necessary to ensure that constitutional defects in the
state judiciary's grand jury selection procedure are not overlooked
by the very state judges who operate that system.
There is strong reason to believe that federal review would
indeed reveal flaws not appreciated by state judges perhaps
too close to the day-to-day operation of their system to be
able properly to evaluate claims that the system is defective.
The educative and deterrent effect of federal review is likely
to be great, since the state officials who operate the system,
judges or employees of the judiciary, may be expected to take
note of a federal court's determination that their procedures
are unconstitutional and must be changed.
We note also that Stone rested to an extent on the Court's
feeling that state courts were as capable of adjudicating
Fourth Amendment claims as were federal courts. But where
the allegation is that the state judiciary itself engages in discrimination
in violation of the Fourteenth Amendment, there
is a need to preserve independent federal habeas review of
the allegation that federal rights have been transgressed. As
noted above, in this case, the very judge whose conduct respondents
challenged decided the validity of that challenge.
It is also true that the concern with judicial integrity, deprecated
by the Court in Stone in the context of habeas review
of exclusionary rule issues, is of much greater concern
in grand jury discrimination cases. The claim that the court
has discriminated on the basis of race in a given case brings
the integrity of the judicial system into direct question. The
force of this justification for extending federal habeas review
cannot be said to be minimal where allegations of improper
judicial conduct are made.
As pointed out in our discussion of the Cassell dissent, it
I
I
I
564 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
is tempting to exaggerate the costs associated with quashing
an indictment returned by an improperly constituted grand
jury. In fact, the costs associated with quashing an indictment
are significantly less than those associated with suppressing
evidence. Evidence suppressed under the Fourth
Amendment may not be used by the State in any new trial,
though it be highly probative on the issue of guilt. In contrast,
after a federal court quashes an indictment, the State
remains free to use at a second trial any and all evidence it
employed at the first proceeding. A prisoner who is guilty in
fact is less likely to go free, therefore, than in cases involving
the exclusionary rule. Hill v. Texas, 316 U. S., at 406. Providing
federal habeas corpus relief is, as a consequence, less
of an intrusion on the State's system of criminal justice than
was the case in Stone.
Finally, we note that the constitutional interests that a
federal court adjudicating a claim on habeas of grand jury
discrimination seeks to vindicate are substantially more compelling
than those at issue in Stone. As noted above, discrimination
on account of race in the administration of justice
strikes at the core concerns of the Fourteenth Amendment
and at fundamental values of our society and our legal system.
Where discrimination that is "at war with our basic concepts
of a democratic society and a representative government,"
Smith v. Texas, 311 U. S., at 130, infects the legal system,
the strong interest in making available federal habeas corpus
relief outweighs the costs associated with such relief.
We therefore decline to extend the rationale of Stone v.
Powell to a claim of discrimination in the selection of the
grand jury that indicts the habeas petitioner. And we hold
that federal habeas corpus relief remains available to provide
a federal forum for such claims.
III
Notwithstanding these holdings that claims of discrimination
in the selection of members of the grand jury are cogniza......
ROSE v. MITCHELL 565
545 Opinion of the Court
ble on federal habeas corpus, and will support issuance of a
writ setting aside a state conviction and ordering the indictment
quashed, it remains true that to be entitled to habeas
relief the present respondents were required to prove discrimination
under the standards set out in this Court's cases.
That is, "in order to show that an equal protection violation
has occurred in the context of grand jury [foreman] selection,
the defendant must show that the procedure employed resulted
in substantial underrepresentation of his race or of the
identifiable group to which he belongs." Castaneda v. Partida,
430 U. S., at 494. Specifically, respondents were required
to prove their prima facie case with regard to the foreman
as follo,vs:
"The first step is to establish that the group is one that
is a recognizable, distinct class, singled out for different
treatment under the laws, as written or as applied ....
Next, the degree of underrepresentation must be proved,
by comparing the proportion of the group in the total
population to the proportion called to serve as [foreman],
over a significant period of time. . . . This method of
proof, sometimes called the 'rule of exclusion,' has been
held to be available as a method of proving discrimination
in jury selection against a delineated class . . . .
Finally ... a selection procedure that is susceptible of
abuse or is not rncially neutral supports the presumption
of discrimination raised by the statistical showing."
Ibid.
Only if respondents established a prima facie case of discrimination
in the selection of the foreman in accord with
this approach, did the burden shift to the State to rebut
that prima fa.cie case. / d., at 495.
There is no question, of course, that respondents, as
Negroes, are members of a group recognizable as a distinct
class capable of being singled out for different treatment under
the laws. Id., at 494; Hernandez v. Texas, 347 U. S. 475,
566 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
478-479 (1954). And one may assume for purposes of this
case that the Tennessee method of selecting a grand jury
foreman is susceptible of abuse. Accordingly, we turn to a
consideration of the evidence offered by respondents in their
attempt to prove sufficient underrepresentation to make out a
prima facie case.
Respondents' case at the hearing on the plea in abatement
consisted in its entirety of the following:
Respondents first called as witnesses the three Tipton
County jury commissioners. These commissioners, all white,
testified only as to the selection of the grand jury venire. In
view of the Tennessee method of foreman selection, n. 2,
supra, they did not testify, and could hardly be expected to
have testified, as to the method of selection of foremen;
neither did any of them refer to the race of any past foremen.
Respondents next called two former foremen and the
current foreman of the Tipton County grand jury. The first,
Frank McBride, testified that he was a lifelong resident of
the county, but there was no evidence as to his age and thus
as to the years he lived in the county. McBride stated that
he had served as foreman, "ten or twelve years ago ... for
five or six years ... and then about two or three times since
then, just for one session of Court." App. 17. In answer to
respondents' inquiry whether he had "ever known of any
foreman that was a black man," McBride said "No, sir." Id.,
at 18. The second past foreman, Peyton J. Smith, stated
that he had resided in Tipton County all his life but, again,
no inquiry was made to as to how long that had been. Smith
testified that he had served as foreman "for several years back
in the early '50's, and ... several times since then on occasion
of the illness of the foreman at that time." Id., at 20.
Like McBride, Smith answered "No" when asked whether
he had ever known of a Negro foreman. Ibid. Jimmy
Naifeh, the current foreman, testified that he had served for
approximately two years and that he did not know "if there
was or if there wasn't" ever a Negro foreman of the county
ROSE v. MITCHELL 567
545 Opinion of the Court
grand jury. Id., at 25. No inquiry was made of Naifeh
as to the length of time he had lived in the county.
Respondents then called 11 of the 12 grand jurors "0 ( other
than the foreman) who were serving when respondents were
indicted. Not one testified relative to the selection of the
foreman or the race of past foremen. Their testimony, individually
and collectively, was to the effect that one among
their number was a Negro; that they had heard only one
witness, a deputy sheriff, on respondents' case; that no one
voiced any prejudice or hostility toward respondents because
of their race; and that there ,vas no consideration of the fact
that respondents were Negroes. Indeed, when some were
asked whether they knew whether respondents were Negroes,
they answered in the negative. Id., at 26--32.
This was all the evidence respondents presented in support
of their case. In rebuttal, the State called only the clerk
of the trial court. He was asked no question relating to
grand jury foremen, and respondents made no inquiry of him
on cross-examination on that or on any other topic. Id., at
34-35.
Two additional facts were stressed by the State at the later
federal habeas proceeding. The first was the recruitment, at
the 1972 term, of temporary (and former) foreman Smith in
place of regular foreman Naifeh. Smith had testified at the
hearing on the plea in abatement that Naifeh "could not be
here and I was asked to come and appear before this Court
and the judge asked me to serve." ld., at 21. The State
argued that Smith had been selected only because the judge
believed Smith, in view of his experience, would be a capable
temporary replacement for the regular foreman. This proper
motive, the State said, negated any claim that racial discrimination
played a role in the selection of Smith to be
10 The record indicates that one grand juror was in Florida at the time
of the hearing. App. 27.
568 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
temporary foreman. The second fact was that the temporary
foreman did not vote on the indictment returned against
respondents, see id., at 105; this was because the other 12
had all voted to indict and the temporary foreman's vote
therefore was unnecessary. Thus, the State argued, any
possible error in the selection of the foreman was harmless
and of no consequence to respondents.
In support of its argument to the federal habeas court,
the State submitted the affidavit of the judge who had selected
the temporary foreman and the permanent foreman,
and who had presided at the hearing on the plea in abatement
as well as at respondents' trial. The judge, who had served
since 1966, id., at 5, a period of seven years, stated that Naifeh
"was unable to serve because he was going to be out of the
County at the November 1972 term." Id., at 112. The
judge went on to say that he had appointed Smith temporary
foreman because Smith had had experience "and does a good
job as such foreman." The affidavit concluded:
"In my five counties, I do not have a black grand jury
foreman, although I have a black member of my Jury
Commission in one county. Most all of my Grand
Juries and Petit Juries have sizeable numbers of blacks
on them, both men and women. I don't appoint Grand
Jury Foreman very often because when their two year
term expires, I usually reappoint them, thus they serve
a long time and the problem doesn't come up very often.
I don't think that I have really given any thought to
appointing a black foreman but I have no feeling against
doing so." Id., at 113.
It was on the basis of this material in rebuttal that the
District Court declined to issue the writs of habeas corpus.
It found that no racial discrimination had been proved, since
the foreman had been "selected for other than racial reasons,
and . . . did not vote at the time the indictment was
rendered." Id., at 122.
ROSE v. MITCHELL 569
54.5 Opinion of the Court
The Court of Appeals, in reversing, conceded: "The facts
elicited at the pretrial hearing were meager." 570 F. 2d, at
132. It went on, however, to note : "There has never been a
black foreman or fore,;voman of a grand jury in Tipton
County according to the recollections of the trial judge,
three jury commissioners, and three former foremen." Id.,
at 134-135. This fact, the court concluded, coupled with
the opportunity for discrimination found to be inherent- in
the selection system, was sufficient to make out a prima facie
case of discrimination in the selection of the foreman. And
the Court of Appeals held that the State had failed to
rebut that case. The exculpatory affidavit of the judge
asserting a benign reason for the selection of the foreman, in
the court's view, could not serve to rebut respondents' case
in the absence of proof that there were no qualified Negroes
to serve as foreman. The fact the foreman did not vote,
the court held, similarly did not support the District Court's
judgment, since the broad powers exercised by the foreman
in conducting the grand jury's proceedings meant that
respondents could have been prejudiced even though the foreman
had not cast a vote aga:inst them.
IV
In reaching our conclusion in disagreement with the Court
of Appeals, we note first that that court seems to have overemphasized
and exaggerated the evidence in support of its
conclusion that there had "never been a black foreman or
forewoman of a grand jury in Tipton County." The Court
of Appeals believed this conclusion had been proved by the
recollections of the trial judge, the testimony of three jury
commissioners, and the testimony of three former foremen.
Ibid. But recollections of the trial judge-by which the
Court of Appeals presumably meant the affidavit filed in
Federal District Court by the trial judge-formed no part
of the case put on by respondents·. (Indeed, the Court of
570 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
Appeals seems to have recognized this in another portion
of its opinion, where it considered the state trial judge's affidavit
to have been offered in rebuttal of the respondents' asserted
prima facie case.) And the jury commissioners gave
no testimony whatsoever relating to foremen of the grand
jury, to the method of selecting foremen, or to the race of past
foremen. Thus, respondents' prima facie case as to discrimination
in the selection of grand jury foremen rested entirely
and only on the testimony of the three foremen. On the
record of this case, it is that testimony alone upon which
respondents' allegations of discrimination must stand or fall.
The testimony of the three foremen, however, did not
establish respondents' case. First, it cannot be said that the
testimony covered any significant period of time. Smith
testified that he served in the early 1950's and occasionally
thereafter, but except for the fact that Smith was resident in
the county, and for his negative answer to the question
whether he had "known of any foreman that has been black,"
there is nothing in the record to show that Smith knew who
had served as foremen in the interim years when he was not
serving. Similarly, McBride testified that he had served for
5 or 6 years some 10 or 12 years prior to the 1973 hearing,
and on two or three occasions since then, and had not known
of any Negro's having acted as foreman of the grand jury, but
he gave no indication that he was knowledgeable as to the
years not covered by this service. Naifeh's testimony was the
weakest from respondents' point of view. He had served as
foreman for only two years prior to the hearing, and he did
not know one way or the other whether a Negro had served
as foreman of the county grand jury. Thus, even assuming
that the period 1951-1973 is the significant one for purposes of
this case, respondents' evidence covered only portions of that
time and left a number of years during that period about
which no evidence whatsoever was offered.
Moreover, such evidence as was provided by the testifying
ROSE v. MITCHELL 571
545 Opinion of the Court
foremen was of little force. McBride and Smith simply said
"No" in response to the question whether either had ever
known of any Negro foreman. Naifeh could give no information
on the point. There thus was no positive testimony
that no Negro had ever served during the critical period of
time; the only testimony was that three foremen who served
for parts of that period had no knowledge of any. And there
is no indication in the record that Smith, McBride, and Naifeh
necessarily would have been aware had a Negro ever served
as foreman.·
Most important, there was no evidence as to the total number
of foremen appointed by the judges in Tipton County during
the critical period of time. Absent such evidence, it is
difficult to say that the number of Negroes appointed foreman,
even i.f zero, is statistically so significant as to make out
a case of discrimination under the. "rule of exclusion." The
only testimony in the record concerning Negro population of
the county was to the effect that it was approximately 30%.11
App. 11. Given the fact that any foreman was not limited in
the number of 2-year terms he could serve, and given the
inclination on the part of the judge to reappoint, it is likely
that during the period in question only a few persons in actual
number served as foremen of the grand jury. If the number
was small enough, the disparity between the ratio of Negroes
chosen to be foreman to the total number of foremen, and
the ratio of Negroes to the total population of the county,
might not be "sufficiently large [that] it is unlikely that [this
disparity] is due solely to chance or accident." Castaneda
v. Partida, 430 U. S., at 494 n. 13. Inasmuch as there is no
evidence in the record of the number of foremen appointed,
it is not possible to perform the calculations and comparisons
needed to permit a court to conclude that a statistical case of
11 The 1970 census figure was 32.44%. Bureau of the Census, 1970 Census
of Population, Characteristics of the Population, Part 44 Tennessee,
Table 35, p. 124.
572 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
discrimination had been made out, id., at 496-497, n. 17, and
proof under the "rule of exclusion" fails. Id., at 494 n. 13;
see Hernandez v. Texas, 347 U.S., at480.12
Comparison of the proof introduced by respondents in this
case with the proof offered by defendants in cases where this
Court has found that a prima facie case was made out is most
instructive. In N orri'8 v. Alabama, 294 U. S. 587 ( 1935), for
example, the defendant proved his case by witnesses who
testified as to the number of Negroes called for jury duty.
The evidence in support of the prima facie case was summarized
by the Court:
"It appeared that no negro had served on any grand or
petit jury in that county within the memory of witnesses
who had lived there all their lives. Testimony to that
effect was given by men whose ages ran from fifty to
seventy-six years. Their testimony was uncontradicted.
It was supported by the testimony of officials. The clerk
of the jury commission and the clerk of the circuit court
had never known of a negro serving on a grand jury in
Jackson County. The court reporter, who had not missed
a session in that county in twenty-four years, and two
jury commissioners testified to the same effect. One of
the latter, who was a member of the commission which
made up the jury roll for the grand jury which found
the indictment, testified that he had 'never known of a
single instance where any negro sat on any grand or
12 Respondents urge us to fill the gap in their proof by reference to the
history of race relations in Tennessee and the fact that the State in past
years practiced de jure discrimination against Negroes in many ways. We
decline to do this. Reference to history texts in a case of this kind does
not supply what respondents failed to prove. If it were othenvise, one
alleging discrimination always would be able to prove his case simply by
referring to the history of discrimination within the State. The Court's
cases, however, make it clear that more is required to establish a violation
of the Equal Protection Clause of the Fourteenth Amendment.
545
ROSE v. MITCHELL 573
Opinion of the Court
petit jury in the entire history of that county.'" Id., at
591.
See Castaneda v. Partida, 430 U. S., at 495--496; Eubanks v.
Louisiana, 356 U. S. 584, 586-587 (1958); Reece v. Georgia,
350 U. S., at 87-88; Hill v. Texas, 316 U. S., at 402-404.
The comparison of the evidence in Norris and in the other
cited cases stands in stark contrast with the evidence in the
present case. All that we have here to establish the prima
facie case is testimony from two former foremen and from a
briefly serving present foreman that they had no knowledge of
a Negro's having served. There is no evidence that these
foremen were knowledgeable about years other than the ones
in which they themselves served. And there is no evidence to
fill in the gaps for the years they did not serve. In contrast to
Norris, there is no direct assertion that for long periods of time
no Negro had ever served, or that officials with access to county
records could state that none had ever served. And there
is no basis in the record upon which to determine that, even
assuming no Negro had ever served as foreman, that fact statistically
was so significant as to support an inference that the
disparity between the Negroes serving and t,he Negro population
in the county was the result of discrimination in violation
of the Fourteenth Amendment.
It thus was error for the District Court to have concluded
initially that respondents made out a prima facie case. And
it was error, as well, for the Court of Appeals to have reached
the same final conclusion. The State, however, under questioning
at oral argument, tended to concede that the finding
that a prima facie case had been established was correct ("we
did not contest that"), Tr. of Oral Arg. 6- 7, and did the same
in its brief, although there it described the proof as "very
questionable." Brief for Petitioner 26.
Normally, a flat concession by the State might be given
effect. But the inadequacy of respondents' proof is plain.
And the error of the Court of Appeals in exaggerating the
574 OCTOBER TERM, 1978
STEWART, J., concurring in judgment 443 U.S.
extent of that proof is equally plain. We decline to overlook
so fundamental a defect in respondents' case.13
Accordingly, we hold that, as a matter of law, respondents
failed to make out a prima facie case of discrimination in
violation of the Equal Protection Clause of the Fourteenth
Amendment with regard to the selection of the grand jury
foreman. The judgment of the Court of Appeals is therefore
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
MR. JUSTICE REHNQUIST, concurring in part.
I fully agree with, and have joined, the separate opinions
of my Brothers STEWART and PowELL concurring in the judgment
in this case. For the separate reasons they state, neither
of them would reach the merits of the claim of grand jury
discrimination which the Court decides. Since, however, a
majority of the Court rejects these views, I join Parts I, III,
and IV of the Court's opinion.
MR. JusTICE STEWART, with whom MR. JusTrCE REHNQUIST
joins, concurring in the judgment.
The respondents were found guilty beyond a reasonable
doubt after a fair and wholly constitutional jury trial. Why
should such persons be entitled to have their convictions set
aside on the ground that the grand jury that indicted them was
13 The State in this case apparently places no reliance on 28 U. S. C.
§ 2254 (d), which provides in relevant part:
"[A] determination after a hearing on the merits of a factual issue,
made by a State court of competent jurisdiction ... evidenced by a written
finding, written opinion, or other reliable and adequate written indicia,
shall be presumed to be correct, unless the applicant shall establish or it
shall othenvise appear ...-
" ( 1) that the merits of the factual dispute were not resolved in the
State court hearing . . .. "
See LaVallee v. Delle Rose, 410 U.S. 690 (1973).
ROSE v. MITCHELL 575
545 STEWART, J., concurring in judgment
improperly constituted? That question was asked more than
25 years ago by Mr. Justice .Jackson in Cassell v. Texa.s, 339
U. S. 282, 298 ( dissenting opinion). It has never been
answered.1 I think the time has come to acknowledge that
Mr. Justice Jackson's question is unanswerable, and to hold
that a defendant may not rely on a claim of grand jury discrimination
to overturn an otherwise valid conviction.
I
A grand jury proceeding "is an ex parte investigation to
determine whether a crime has been committed and whether
criminal proceedings should be instituted against any person."
United States v. Calandra, 414 U. S. 338, 343-344. It
is not a proceeding in which the guilt or innocence of a defendant
is determined, but merely one to decide whether there is
a prima facic case against him. Any possible prejudice to the
defendant resulting from an indictment returned by an invalid
grand jury thus disappears when a constitutionally valid trial
jury later finds him guilty beyond a reasonable doubt.2 In
short, a convicted defendant who alleges that he was indicted
by a discriminatorily selected grand jury is complaining of an
1 In proffering an answer today, the Court relies on (1) historical
precedents and (2) the duty of the courts to apply the Equal Protection
Clause with special vigor in the area of racial discrimination.
As to the first ground, I can only recall what Mr. Justice Frankfurter
once said: "Wisdom too often never comes, and so one ought not to reject
it merely because it comes late." Henslee v. Union Planters Bank, 335
U. S. 595, 600 ( dissenting opinion). As to the second ground, I agree wholeheartedly
with the Court's general view of the Equal Protection Clause,
but believe, as explained in this opinion, that that constitutional guarantee
protects the victims of discrimination rather than defendants who have
been convicted after fair trials by lawfully constituted juries.
2 There is no constitutional requirement that a state criminal prosecution
even be initiated by a grand jury. A State is free to bring a criminal
charge through information filed by a prosecutor. Hurtado v. California,
110 U. S. 516. And the Court has held that a defendant is not entitled
"to judicial oversight or review of the decision to prosecute." Gerstein v.
Pugh, 420 U. S. 103, 119.
576 OCTOBER TERM, 1978
STEWART, J., concurring in judgment 443 U.S.
antecedent constitutional violation that could have had no
conceivable impact on the fairness of the trial that resulted in
his conviction.
It is well settled that deprivations of constitutional rights
that occur before trial are no bar to conviction unless there
has been an impact upon the trial itself.3 A conviction after
trial, like a guilty plea, "represents a break in the chain of
events which has preceded it in the criminal process." Tollett
v. Henderson, 411 U. S. 258, 267. See United States v. Blue,
384 U.S. 251, 255; cf. Stroble v. California, 343 U.S. 181, 197
("illegal acts of state officials prior to trial are relevant only
as they bear on petitioner's contention that he has been
deprived of a fair trial").
The cases in this Court dealing with unlawful arrest are
particularly instructive. Unconstitutional arrests are unreasonable
seizures of the person that violate the Fourth and
Fourteenth Amendments. E. g., Terry v. Ohio, 392 U. S. L
Yet, an "illegal arrest or detention does not void a subsequent
conviction." Gerst.ein v. Pugh, 420 U. S. 103, 119. In Frisbie
v. Collins, 342 U. S. 519, for example, a defendant had been
forcibly abducted from one State and brought to another to
stand trial, but the trial itself was fair, and the Court upheld
his conviction. See also Mahon v. Justice, 127 U. S. 700;
Ker v. Illinois, 119 U. S. 436.4
3 In Coleman v. Alabama., 399 U. S. 1, the Court vacated a conviction
in a situation where a State had failed to provide a defendant with appointed
counsel at the preliminary hearing. The Court's holding was
premised on the opportunity of defense counsel at a preliminary hearing
to develop a record that could be useful for impeachment purposes at the
trial. Favorable testimony of a witness who did not appear at trial could
also be preserved. In addition, the Court emphasized the ability of
counsel at a preliminary hearing to discover the substance of the prosecution's
case and thus to prepare an effective trial defense. Id., at 9.
4 Similarly, a defendant is not immune from prosecution under an outstanding
indictment if he is searched in violation of his Fourth Amendment
rights or interrogated in violation of his "Miranda" rights. Illegally
ROSE v. MITCHELL 577
545 STEWART, J., concurring in judgment
The cases in this Court specifically dealing with grand jury
proceedings are equally instructive. In Costello v. United
States, 350 U. S. 359, the Court sustained the conviction of a
defendant who had sought to dismiss the charges against him
on the ground that the indictment had been based exclusively
upon inadmissible hearsay evidence. See also Holt v. United
States, 218 U. S. 245. In Lawn v. United States, 355 U. S.
339, the Court held that a defendant could not avoid trial and
conviction on the ground that the indictment had been procured
by evidence obtained in violation of the Fifth Amendment.
"[A] n indictment valid on its face is not subject to
challenge on the ground that the grand jury acted on the
basis of inadequate or incompetent evidence, ... or even on
the basis of information obtained in violation of a defendant's
Fifth Amendment privilege against self-incrimination."
United States v. Calandra, supra, at 345. Cf. Gelbard v.
United States, 408 U. S. 41, 60 ("The 'general rule' ... is that
a defendant is not entitled to have his indictment dismissed
before trial simply because the Government 'acquire[d] incriminating
evidence in violation of the [rule],' even if the
'tainted evidence was presented to the grand jury' "); United
States v. Blue, supra, at 255 n. 3.
II
A person who has been indicted on the basis of incompetent
or illegal evidence has suffered demonstrable prejudice. By
contrast, the prejudice suffered by a defendant who has been
indicted by an unconstitutionally chosen grand jury is speculative
at best, and more likely nonexistent. But there are, of
course, other interests implicated when a State systematically
excludes qualified Negroes from grand jury service. Such
obtained evidence may be excluded from the trial, but the prosecution is
not barred altogether. "So drastic a step might advance marginally some
of the ends served by the exclusionary rules, but it would also increase
to an intolerable degree interference with the public interest in having
the guilty brought to book." United States v. Blue, 384 U. S. 251, 255.
578 OCTOBER TERM, 1978
STEWART, J., concurring in judgment 443 u. s.
discrimination denies Negroes the right to participate equally
in the responsibilities of citizenship. The compelling constitutional
interest of our Nation in eliminating all forms of
racial discrimination requires that no group of qualified citizens
be excluded from participation as either grand or petit
jurors in the administration of justice.
These interests can be fully vindicated, however, by means
other than setting aside valid criminal convictions. This
Court has held, for example, that Negroes can obtain injunctive
relief to remedy unconstitutional exclusion from grand
or petit jury service. Carter v. Jury Comm'n of Greene
County, 396 U.S. 320; Turner v. Fouche, 396 U.S. 346. That
remedy has the advantage of allowing the members of the
class actually injured by grand jury discrimination to vindicate
their rights without the heavy societal cost entailed when
valid criminal convictions are overturned.5 Moreover, Congress
has made it a criminal offense for a public official to exclude
any person from a grand or petit jury on the basis of his
or her race. 18 U. S. C. § 243.6 Defendants may also have
pretrial remedies against unlawful indictments. But, as Mr.
Justice Jackson stated in the Cassell case, "[i]t hardly lies in
5 Tha.t Negroes are the class most directly affected by grand jury discrimination
was first recognized by this Court in the landmark case of
Strauder v. West Virginia, 100 U. S. 303. The Court stated:
"The very fact that colored people are singled out and expressly denied by
a statute a.JI right to participate in the administration of the law, as jurors,
because of their color, though they are citizens, and may be in other respects
fully qualified, is practically a brand upon them, affixed by the law,
an assertion of their inferiority, and a stimulant to that race prejudice
which is an impediment to securing to individuals of the race that equal
justice which the la.w a.ims to secure to all others." Id., at 308.
Since qualified Negroes can now vindicate their right,; directly, the rationale
for allowing a defendant who has been convicted by a constitutional
petit jury to assert the rights of Negroes who were excluded from the
grand jury has been undermined.
6 The constitutionality of this statute was upheld in Ex parte Virginia,
100 u. s. 339.
ROSE v. MITCHELL 579
545 PowELL, J., concurring in judgment
the mouth of a defendant whom a fairly chosen trial jury has
found guilty beyond reasonable doubt, to say that his indictment
is attributable to prejudice." 339 U. S., at 302.
For all these reasons, I believe that a claim of discrimination
in the selection of a grand jury or its foreman is not a
ground for setting aside a valid criminal conviction. Accordingly,
I concur only in the judgment.
MR. JUSTICE POWELL, with whom Ma. JUSTICE REHNQUIST
joins, concurring in the judgment.
I agree that respondents' convictions should not be overturned.
As the Court holds, respondents failed to show a
prima facie case of discrimination in the selection of the foreman
of the grand jury that indicted them. A more fundamental
reason exists, however, for reversing the judgment of
the Court of Appeals. Respondents were found guilty of
murder beyond a reasonable doubt by a petit jury whose composition
is not questioned, following a trial that was fair in
every respect. Furthermore, respondents were given a full
and fair opportunity to litigate in the state courts their claim
of discrimination. In these circumstances, allowing an attack
on the selection of the grand jury in this case is an abuse of
federal habeas corpus.
Whenever a federal court is called upon by a state prisoner
to issue a writ of habeas corpus, it is asked to do two things
that should be undertaken only with restraint and respect for
the way our system of justice is structured. First, as one
court of general jurisdiction, it is requested to entertain a collateral
attack upon the final judgment of another court of
general jurisdiction. Second, contrary to principles of federalism,
a lower federal court is asked to review not only a
state trial court's judgment, but almost invariably the judgment
of the highest court of the State as wel1.1 These con-
1 Both advocates and opponents of broad federal habeas corpus relief
have recognized the unusual role the Great Writ plays in our federal sys580
OCTOBER TERM, 1978
POWELL, J., concurring in judgment 443U. S.
siderations prompt one to inquire, more critically than this
Court ever has, whether it is appropriate to allow the use of
habeas corpus by state prisoners who do not seek to protect
their personal interest in the justness of their convictions.
I
The history and purpose of the writ of habeas corpus do not
support the application of the writ suggested by five Members
of the Court today. Originally, this writ was granted only
when the criminal trial court had been without jurisdiction to
entertain the action. See, e.g., Ex parte Watkins, 3 Pet. 193,
202 (1830); Schechtman v. Foster, 172 F. 2d 339 (CA2 1949),
cert. denied, 339 U.S. 924 (1950); Schneckloth v. Bustamante,
412 U. S. 218, 254 (1973) (POWELL, J., concurring); Oaks,
Legal History in the High Court-Habeas Corpus, 64 Mich. L.
Rev. 451, 468 (1966); Bator, Finality in Criminal Law and
Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev.
441, 466 (1963) (hereinafter Bator). Subsequently, the scope
of the writ was modestly expanded to encompass those cases
where the defendant's federal constitutional claims had not
been considered in the state-court proceeding. See Frank v.
Mangum, 237 U. S. 309 (1915). In recent years, this Court
has extended habeas corpus far beyond the historical uses to
which the writ was put. Today, federal habeas is granted in
a variety of situations where, although the trial court plainly
had jurisdiction over the case, and the defendant's constitutional
claims were fully and fairly considered by the state
courts, some sort of constitutional error is found to have been
committed. E. g., Brown v. Allen, 344 U. S. 443 (1953); see
Fay v. Now, 372 U. S. 391, 449-463 (1963) (Harlan, J.,
dissenting).
tern. See Bator, Finality in Criminal Law and Federal Habeas Corpus for
State Prisoners, 76 Harv. L. Rev. 441, 463 (1963); Reitz, Federal Habeas
Corpus: Impact of an Abortive State Proceeding, 74 Harv. L. Rev. 1315,
1330-1331 (1961).
ROSE v. MITCHELL 581
545 PowELL, J., concurring in judgment
I do not suggest that we should revert to the 19th-century
conception of the writ and limit habeas corpus to those circumstances
where the trial court lacked jurisdiction to ent€r
a competent judgment. In expanding the scope of habeas
corpus, however, the Court seems to have lost sight entirely
of the historical purpose of the writ. It has come to accept
review by federal district courts of stare-court judgments in
criminal cases as the rule, rather than the exception that it
should be. Federal constitutional challenges are raised in
almost every state criminal case, in part because every lawyer
knows that such claims will provide nearly automatic federal
habeas corpus review. If we now extend habeas corpus to
encompass constitutional claims unrelated to the fairness of
the trial in which the claimant was convicted, we will take
another long step toward the creation of a dual syst€m of
review under which a defendant convicted of crime in a state
court, having exhausted his remedies in the state system, repeats
the process through the federal system. The extent to
which this duplication already exists in this country is without
parallel in any other system of justice in the world.2
We simply have not heeded the admonition of thoughtful
scholars that federal habeas corpus should not be "made the
instrument for re-determining the merits of all cases in the
legal system that have ended in detention." P. Bator, P.
Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's
The Federal Courts and the Federal System 1428 (2d ed.
1973); see Bator 446---448. Today's case is an extreme example
of this loss of historical perspective. In exrending
use of the writ to circumstances wholly unrelated to its purpose,
the Court would move beyond anything heretofore
2 Not only may the state claimant have a "rerun" of his conviction in
the federal courts, but also there is no limit to the number of habeas corpus
petitions such a claimant may file. The jailhouse lawyers in the prisons
of this country conduct a flourishing business in repetitive habeas corpus
petitions. It is not unusual to see, at this Court, a score or more of
petitions filed over a period of years by the same claimant.
582 OCTOBER TERM, 1978
PowELL, J., concurring in judgment 443 u. s.
decided in our cases. It is true that on a number of occasions
this Court has considered state grand jury discrimination, but
no prior decision fairly can be viewed as authority for federal
habeas corpus review in the absence of a challenge to the fairness
of the trial itself. Strauder v. West Virgini,a, 100 U. S.
303 (1880), and all of its progeny, involved cases in which
the composition of both the grand and petit juries was challenged,
so that the integrity of the trial itself was at issue.
In cases such as Pierre v. Louiswna, 306 U.S. 354 (1939), and
Hill v. Texas, 316.U. S. 400 (1942), the question of discrimination
in selection of the grand jury was presented on direct
appeal, and there was no occasion to consider the propriety of
federal collateral attack. Finally, in Castaneda v. Partida,
430 U. S. 482 (1977), the charge of grand jury discrimination
was before the Court on habeas corpus, but the propriety of
the use of habeas corpus to assert the claim was not raised,
and hence was not decided. Id., at 508 n. 1 (PowELL, J., dissenting).
Until today, therefore, it has been an open question
whether federal habeas corpus could be granted a state
prisoner solely because the prisoner's grand jury was discriminatorily
chosen.3
II
The Court makes no pretense of arguing that either the
history or purpose of the writ of habeas corpus supports its
extension to a case such as this, where the claimant concededly
was found guilty after a fair trial. Rather, the
Court looks to the policies of the Fourteenth Amendment for
justification, noting that the Amendment's purpose was to
eliminate racial discrimination such as respondents here al-
3 Although the opinion of the Court discusses the extension of habeas
corpus to claims of grand jury discrimination, this discussion is unnecessary
in view of the Court's conclusion that no prima facie case of discrimination
was made out by respondents. Indeed, it may fairly be questioned
whether Part II of the opinion is part of the holding of the Court, for not
all of the four Members who join it support even the Court's judgment.
ROSE v. MITCHELL 583
545 PowELL, J., concurring in judgment
lege.4 Apart from the fact that other, more appropriate
means are available for attacking discrimination in the selection
of grand juries,5 the Fourteenth Amendment is irrelevant
to a principled determination of when the writ of habeas
corpus is a proper remedy. I know of nothing in the language
or history of the Fourteenth Amendment, or the civil rights
statutes implementing it, that suggests some special use of the
writ of habeas corpus. If, however, we are to assume that it
is open to this Court to extend the writ to cases in which the
guilt of the incarcerated claimant is n'ot an issue, at least we
should weigh thoughtfully the societal costs that may be involved.
As some of these were fully addressed in my concurring
opinion in Schneckloth v. Bustamante, 412 U. S. 218
( 1972), I now mention the principal costs only briefly.
A
Because habeas corpus is a unique remedy which allows
one court of general jurisdiction to review the correctness of
the judgment of another court of general jurisdiction, its
exercise entails certain costs inherent whenever there is dual
4 The Court explicitly bases its extension of habeas corpus in this
case upon its conclusion that the constitutional interests involved in a r.him
of grand jury discrimination are "more compelling" than those involved
in other constitutional claims. See ante, at 564. It is not clear, however,
that it would be possible to cabin the Court's rule to cases where racial
discrimination is alleged. There are, of course, numerous constitutional
challenges to grand jury indictments that have nothing to do with racial
discrimination. The logic of the Court's position may lead to the extension
of habeas corpus to every conceivable constitutional defect in
indictments.
5 As Mn. JUSTICE STEWART points out, a federal statute makes it a crime
to discriminate on the basis of race in the selection of jurors, 18 U. S. C.
§ 243, and both Government and private actions may be brought by those
improperly excluded from jury service. See Carter v. Jury Comm'n
of Greene County, 396 U. S. 320 (1970). Furthermore, in the past this
Court has allowed a claim of grand jury discrimination to be made on
direct appeal from a conviction. See Cassell v. Texas, 339 U. S. 282
( 1950). But see n. 9, infra.
584 OCTOBER TERM, 1978
POWELL, J ., concurring in judgment 443U.S.
review. It is common knowledge that prisoner actions occupy
a disproportionate amount of the time and energy of the
federal judiciary. In the year ending June 30, 1978, almost
9,000 of the prisoner actions filed were habeas corpus petitions.
See 1978 Annual Report of the Director of the Administrative
Office of the United States Courts 76. Apart
from the burden of these petitions, many of which are frivolous,
collateral review can have a particularly deleterious effect
upon both the deterrent and rehabilitative functions of the
criminal justice system. See Wainwright v. Sykes, 433 U. S.
72, 90 (1977); Sanders v. United States, 373 U. S. 1, 24-25
( 1963) (Harlan, J., dissenting); Bator 452, Friendly, Is
Innocence Irrelevant? Collateral Attack on Criminal Judgments,
38 U. Chi. L. Rev. 142, 146 (1970).
Perhaps the most serious cost of extending federal habeas
corpus review of state judgments is the effect upon the federal
structure of our government.0 Mr. Justice Black has
emphasized the importance of
"a proper respect for state functions, a recognition of the
fact that the entire country is made up of a Union of
separate state governments, and a continuance of the
belief that the National Government will fare best if the
6 The Court suggests that "federalism concerns . . . are not present"
when the fairness of an indictment is challenged on federal habeas, because
"[f]ederal courts have granted relief t-0 state prisoners upon proof of the
proscribed discrimination for nearly a century. See, e. g., Virginia v.
Rives, 100 U.S. [313,] 322 [(1880)]." Ante, at 562. There is no logic
to this reasoning. The mere fact that federal courts have reviewed some
state-court decisions for nearly a century hardiy supports a conclusion
that no federalism concerns exist. Nor does Virginia v. Rives support the
Court's argument. In that case, the petitioner challenged the composi•
tion of his petit jury, as well as that of the grand jury that had indicted
him. Whenever the fairness of the petit jury is brought into question
doubts are raised as to the integrity of the process that found the prisoner
guilty. See Cas8ell v. Texas, supra, at 301- 302 (Jackson, J., dissenting).
Collateral relief therefore may be justified even though it entails some
damages to our federal fabric. See infra, at 586.
545
ROSE v. MITCHELL 585
POWELL, J., concurring in judgment
States and their institutions are left free to perform their
separate functions in their separate ways." Younger v.
Harris, 401 U.S. 37, 44 (1971).
See also National League of Cities v. Usery, 426 U.S. 833,844
(1976); Schneckloth v. Bustamante, supra, at 264-265
(POWELL, J., concurring). Nowhere has a "proper respect for
state functions" been more essential to our federal system
than in the administration of criminal justice. This Court
repeatedly has recognized that criminal law is primarily the
business of the States, and that absent the most extraordinary
circumstances the federal courts should not interfere with the
States' administration of that law. See, e. g., Younger v.
Harris, supra; Perez v. Ledesma, 401 U.S. 82 (1971).
The overextension of habeas corpus by federal courts does
more than simply threaten the essential role of the States in
our federal system. It runs afoul of the very principle of primary
state jurisdiction over the criminal laws that the Court
repeatedly has asserted. This interference with state operations
is not merely academic. The review by a single federal
district court judge of the considered judgment of a state trial
court, an intermediate appellate court, a.nd the highest court
of the State, necessarily denigrates those institutions."
B
The Court's expansion of our dual system of review therefore
inflicts substantial costs on society, our system of justice,
7 The Court implies that state trial judges cannot be trusted to rule
fairly on the issue here presented, because they are involved administratively
in the selection of the grand jury. Ante, a.t 561, 563. This is a view
I find wholly unacceptable. In numerous circumstances, trial judges are
called upon to rule on the validity of their own judicial and administrative
action. I know of no general constitutional rule requiring disqualification
in such cases. I certainly would not accept an assumption at this point
in our history that state judges in particular cannot be trusted fairly to
consider claims of racial discrimination. See Schneckloth v. Bustamante,
412 U. S. 218, 263-264, n. 20 (1973) (POWELL, J., concurring).
586 OCTOBER TERM, 1978
PoWELL, J., concurring in judgment 443U. S.
and our federal fabric. When the claim being vindicated on
federal habeas corpus is that the individual claimant is being
unjustly incarcerated, these costs are justified, for the very
purpose of the Great Writ is to provide some means by which
the legality of an individual's incarceration may be tested.
See Preiser v. Rodriguez, 411 U. S. 475 (1973); McNally v.
Hill, 293 U. S. 131, 136-137 (1934); Schneckloth v. Bustamante,
412 U. S., at 252--256 (POWELL, J., concurring). Indeed,
it is only by providing a means of releasing prisoners
from custody that we can assure that no innocent person will
be incarcerated, a pre-eminent objective of our criminal justice
system. See Jackson v. Virginia, ante, at 315-316; In re
Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring).
Preventing discrimination in the selection of grand juries
also is a goal of high priority in our system.8 But the question
is not simply, as the Court seems to think, whether
the goal and the interests it serves are important. Habeas
corpus is not a general writ meant to promote the social good
or vindicate all societal interests of even the highest priority.
The question rather is whether this ancient writ, developed
by the law to serve a precise and particular purpose, properly
may be employed for the furthering of the general societal
goal of grand jury integrity. For the provision of indictment
by grand jury does not protect innocent defendants from
unjust convictions. Rather, it helps to assure that innocent
persons will not be made unjustly to stand trial at all. Once
8 The Court also would justify collateral review of claims of grand
jury discrimination because of the damage that such discrimination can do
to the perceived integrity of the judicial system as a whole. But it ignores
the damage done to society's perception of the criminal justice system by
allowing valid convictions to be reversed on collateral attack on the basis
of claims having nothing to do with the defendant's guilt or innocence.
Moreover, any discriminatory action so notorious as to undermine the public's
faith in the fairness of the judiciary is likely to be remedied on direct
review by tho state courts and by this Court.
ROSE v. MITCHELL 587
545 POWELL, J., concurring in judgment
a defendant is found guilty beyond a reasonable doubt by a
fairly drawn petit jury, following a fair trial, he hardly can
claim that it was unjust to have made him stand trial.° Because
the need to protect the innocent from incarceration is
not implicated in cases such as this, the writ of habeas corpus
is not an appropriate remedy. Other remedies can be, and
have been, provided to protect society's interest in eliminating
racial discrimination in the selection of those who are to serve
on grand juries. Seen. 5, supra.10
0 Although I need not reach the question in this case, I find much of
what MR. JusTICE STEWART says persuasive on the question whether complaints
concerning the fairness of indictment should survive conviction
even for purposes of direct appeal. See ante, p. 574. In his dissenting
opinion in Cassell v. Texas, Mr. Justice Jackson suggested that "any
discrimination in selection of the grand jury in this case, however great
the wrong toward qualified Negroes of the community, was harmless to this
defendant." 339 U. S., at 304. Until today this Court never has undertaken
to answer Mr. Justice Jackson's arguments in Cassell. Nor am I
completely satisfied with today's attempt. For purpooes of this opinion,
however, I shall assume that direct review of respondents' claims was
appropriate.
1° Finding no support in our prior decisions for today's extension of
habeas corpus, the Court considers only whether our decision in Stone
v. Powell, 428 U. S. 465 ( 1976), forbids federal courts to grant habeas
corpus in cases such as this. Stone, of course, did not address the proper
method for presenting claims of grand jury discrimination, as it involved
only claims under the Fourth Amendment exclusionary rule. Nonetheless,
the Court overstates the differences between Stone and the present case.
See ante, at 560-564. To be sure, in Stone v. Powell, supra, at 495 n. 37,
we emphasized that the Fourth Amendment exclusionary rule was a "judicially
created remedy rather than a personal constitutional right." We
did so, however, only in rejecting the suggestion of the dissent that our
decision would lead to a "drastic withdrawal of federal habeas jurisdiction,"
428 U. S., at 517, the extent of which might be unlimited. Stone
recognized that the Fourth Amendment exclusionary rule was not designed
to protect the right of an individual to be free from unjust conviction.
Thus, the justification for undermining the finality of state-court judgments
that exists in many habeas corpus actions was absent. Properly
understood, therefore, the rationale of our decision in Stone is not only
588 OCTOBER TERM, 1978
WHITE, J., dissenting 443U.S.
III
In sum, I view the Court's extension today of federal
habeas corpus to be wholly at odds with the history and purpose
of the writ. Furthermore, any careful analysis of the
costs and benefits of the Court's approach plainly shows
that habeas corpus should not be available for the vindication
of claims, such as respondents' grand jury discrimination
claim, that have nothing to do with the fairness of the claimant's
conviction. Courts often are tempted to reach for any
available remedy when they have before them a claim of
intrinsic importance. In my view, however, this is an unprincipled
way in which to administer the judicial process,
especially when other remedies are available to protect the
interests at stake. I therefore would hold that a challenge
to the composition of a state prisoner's grand jury cannot be
raised in a collateral federal challenge to his incarceration,
provided that a full and fair opportunity was provided in the
state courts for the consideration of the federal claim.
MR. JUSTICE WHITE, with whom MR. JusTICE STEVENS joins,
dissenting.
Although I agree with Parts I and II of the Court's opinion,
I believe that a prima facie case of purposeful discrimination
was made out and was not rebutted by the State. I therefore
dissent from Parts III and IV and from the judgment.
On the basis of the evidence presented at the evidentia.ry
hearing in state court, the District Court concluded that respondents
"appear[ed]" to have made out a prima facie case
of discrimination in the selection of the foreman of the grand
consistent with denying collateral relief for claims of unfair indictment,
but actually presages such a limitation on habeas corpus. For, as I have
stated in the text above, the right not to be indicted by a discriminatorily
selected grand jury, Iike the right not to have improperly obtained, but
highly probative, evidence introduced at trial, has nothing to do with the
guilt or innocence of the prisoner.
ROSE v. MITCHELL 589
545 WRITE, J., dissenting
jury that indicted them. App. 99. However, upon the affidavits
submitted by the State in response, the court concluded
that in fact the foreman had been chosen for other than racial
reasons, that he had not voted on the indictment, and thus
that there had not been a violation of the Equal Protection
Clause. Id., at 122. The Court of Appeals agreed that a
prima facie case was shown, interpreting the record testimony
to the effect that the recollections of those testifying were that
there had never been a black chosen as foreman of a grand
jury in Tipton County, and pointing out the potential for discrimination
in a system which leaves the selection of the foreman
to the discretion of a single judge who has not "really
given any thought to appointing" a black, id., at 113. See 570
F. 2d 129, 134-135 (1978). The Court of Appeals disagreed,
however, that this prima facie case had been rebutted by the
testimony of the selecting judge that he had "no feeling
against" appointing a black to be foreman, and found irrelevant
that the foreman did not vote on respondents' indictment.
Id., at 131. Because we do not sit to redetermine
the factfindings of lower courts, and because the Court of
Appeals correctly enunciated and applied the law governing
proof of discrimination in the context of grand jury selection,
I dissent.
The only difference between this case and our previous
cases voiding a conviction due to discriminatory selection of
members of the grand jury is that in this case it has been
shown only that the grand jury foreman, who did not vote on
the indictment, was chosen in a manner prohibited by the
Equal Protection Clause. I agree with the Court of Appeals
that given the vital importance of the foreman in the functioning
of grand juries in Tennessee,1 a conviction based on an
1 See 570 F. 2d 129, 136 (1978):
"The foreman or forewoman is vitally important to the functioning of
grand juries in Tennessee, being 'the thirteenth member of each grand
jury organized during his term of office, having equal power and author590
OCTOBER TERM, 1978
WHITE, J., dissenting 443 U.S.
indictment where the foreman was chosen in a discriminatory
fashion is void just as would be a conviction where the entire
grand jury is discriminatorily selected, whether or not there
is a showing of actual prejudice, see Castaneda v. Partida, 430
U. S. 482 (1977); Alexander v. Louisiana, 405 U. S. 625
(1972); Arnold v. North Carolina, 376 U. S. 773 (1964);
Eubanks v. Louisiana, 356 U. S. 584 ( 1958); Cassell v. Texas,
339 U. S. 282 (1950); Patton v. Mississippi, 332 U. S. 463
(1947); Hill v. Texas, 316 U.S. 400 (1942); Pierre v. Louisiana,
306 U. S. 354 (1939); Bush v. Kentucky, 107 U. S. 110
(1883).
That this case involves only the foreman, rather than the
entire grand jury, dces have implications for the manner in
which respondents may meet their burden of proving discrimination.
In the context of racial discrimination in the
selection of juries, "the systematic exclusion of Negroes is
itself such an 'unequal application of the law ... as to show
intentional discrimination,'" a necessary component of any
equal protection violation. Washington v. Davis, 426 U. S.
229, 241 (1976). Generally, in those cases in which we have
found unconstitutional discrimination in jury selection, those
alleging discrimination have relied upon a significant statistical
discrepancy between the percentage of the underrepresented
group in the population and the percentage of this
group called to serve as jurors, combined with a selection procedure
"that is susceptible of abuse or is not racially neutral."
Castaneda v. Partida, SU'JYTa, at 494. See, e. g., Alexander
v. Louisiana, supra; Turner v. Fouche, 396 U. S. 346 (1970);
Carter v. Jury Comm'n, 396 U. S. 320 (1970). Once this
ity in all matters coming before the grand jury with the other members
thereof.' Tenn. Code Ann. § 40-1506. He or she is expected to assist
the district attorney in investigating crime, may administer oaths to all
witnesses, conduct the questioning of witnesses, must indorse and sign
all indictments, and like every other chairperson is in a position to guide,
whether properly or improperly, the decision-making process of the
body .... " (Footnote omitted.)
ROSE v. MITCHELL 591
545 WHITE, J., dissenting
showing is made, the burden shifts to the State to rebut
the inference of discriminatory purpose. Castaneda v. Partida,
supra, at 495. This method of proof, sometimes called
the "rule of exclusion," 430 U. S., at 494, may not be well
suited when the focus of inquiry is a single officeholder whose
term lasts two full years, as is true of the Tipton County
grand jury foreman. For instance, in Castaneda v. Partida,
we considered statistics relating to an 11-year period showing
that 39% of the 870 persons selected for grand jury duty were
Hispanic, from a general population that was over 79% Hispanic.
The likelihood that this statistical discrepancy could be
explained on the basis of chance alone was less than I in 10140
•
See id., at 495-496, and n. 17. The sample size necessarily
considered in a case of discrimination in the selection of a
foreman simply does not permit a statistical inference as
overwhelming as that in Castaneda. During any 11-year
period, there would be only five or six opportunities for selecting
jury foremen in Tipton County, assuming that every foreman
selected serves at least the full 2-year term.2
Despite the inherent difficulty of any statistical presentation
with respect to discrimination in filling a particular grand jury
spot, respondents nonetheless have made a strong showing of
underrepresentation supporting an inference of purposeful
discrimination. This Court is not in a position to reject the
finding, explicitly made by the Court of Appeals and implicitly
made by the District Court,3 that those who testified believed
2 The key numbers to compare are the number of blacks selected to be
foremen and the total number of opportunities to select a foreman. The
latter number may be greater than the number of different individuals
who serve if the appointing judge has an inclination to reappoint those
who have previously served.
3 The District Court did not make written findings of fact explaining the
basis of its conclusion that a prima facie case appeared to have been
established. However, the Court of Appeals was in a position to dispose
of the appeal, without the necessity of a remand to the District Court,
because the record and the District Court's conclusions of law clearly
592 OCTOBER TERM, 1978
WHITE, J., dissenting 443 U.S.
there had never been a black foreman during the period 1951-
1973. See Berenyi v. Immigration Director, 385 U. S. 630,
635 (1967); Graver Mfg. Co. v. Linde Air Products Co., 336
U. S. 271, 275 (1949). Assuming that 11 foreman selections
were made during this period,4 the expected number of black
foremen would be more than 3------and the likelihood of no blacks
being chosen would be less than 1 in 50-if blacks, who constituted
nearly a third of the county's population, and whites
had an equal. chance of being selected. I do not see how
respondents could be expected to make a stronger statistical
showing.5
In any event, any possible weakness in respondents' statistical
presentation was more than overcome by the additional
evidence before the District Court. First, the selection of a
foreman is left to the complete discretion of a single personthe
circuit judge. The potentialities for abuse in such a
system are obvious, cf. Castaneda v. Partida, supra, at 497;
Carter v. Jury Comm'n, supra; Hernandez v. Texas, 347 U.S.
475, 479 ( 1954) ("key man" system). Moreover, the particular
judge who chose the foreman of respondents' grand jury had
reveal the basis for its conclusion, see Pinney v. Arkansa.s Board of Correction,
505 F. 2d 194 (CAS 1974). This was the failure of any of the
foremen who teBtified at the state-court hearing to recoll,ect there having
been a black foreman, and the inference therefrom-not clearly erroneous,
see Fed. Rule Civ. Proc. 52 (a)-that these witnesses believed there had
never been a black foreman.
4 See n. 2, supra.
5 If there were any doubt that the evidence adduced in the state-court
hearing on respondents' plea in abatement was insufficien1:,--perhaps because
it did not unequivocally establish the race of every foreman chosen
since 1950-the appropriate course would be for the District Court to hold
an evidentiary hearing. See Townsend v. Sain, 372 U. S. 2-93, 313 (1963)
(evidentiary hearing must be held "unless the state-court trier of fact
has after a full hearing reliably found the relevant facts"); 28 U. S. C.
§ 2254 (d) (3) (determination of merits of factual issue by state court shall
be presumed to be correct unless it appears "that the material facts were
not adequately developed at the State court hearing").
RO.SE v. MITCHELL 593
545 STEVENS, J., dissenting in part
never chosen a black in any of the five counties for which he
appointed foremen over a 6-year period, App. 113. Finally,
the judge himself admitted that he had never even considered
appointing a black foreman. lbid.6 Although these facts are
not necessarily inconsistent with an ultimate conclusion that
respondents' foreman was not chosen on racial grounds, they
raise, in conj unction with the previously described statistical
presentation, a strong inference of intentional racial discrimination,
shifting the burden to the State. Clearly the Court of
Appeals is correct that the Circuit Judge's further self-serving
statement that he had "nothing against" appointing blacks is
not sufficient rebuttal, see Alexander v. Louisiana, 405 U. S., at
632; Turnerv. Fouclie, 396 U.S., at 361; Hernandezv. Texas,
supra, at 481--482. It can hardly be said that the judge, as the
official authorized by the State to appoint grand jury foremen,
performed his "constitutional duty ... not to pursue a course
of conduct in the administration of [his] office which would
operate to discriminate in the selection of jurors on racial
grounds." Hill v. Texas, 316 U. S., at 404.
MR. JUSTICE STEVENS, dissenting in part.
MR. JusTICE STEWART'S opinion prompts me to explain that
by joining Part II of the Court's opinion I do not necessarily
indicate that I would have rejected the arguments set forth
in Mr. Justice Jackson's dissenting opinion in Cassell v. Texas,
339 U. S. 282, 298, if I had been a Member of the Court when
the issue was first addressed. But there is surely enough force
to MR. JUSTICE BLACKMUN's reasoning to require adherence
6 Clearly, it is irrelevant that the admissions on the part of the selecting
judge that he had never given thought to appointing, and indeed had never
appointed, a black foreman came as part of the petitioner's written response
to respondents' petitions for writs of federal habeas corpus. In
ascertaining whether a plaintiff has carried his burden of proof, all the
evidence must be considered. It is not unusual that an affidavit or other
evidence submitted by one party to a lawsuit turns out to be of primary,
and perha.ps even determinative, aid to the other party.
I
:
I!
Ii
II
II
594 OCTOBER TERM, 1978
STEVENS, J., dissenting in part 443U.S.
to a course of decision that has been consistently followed by
this Court since 1880.
The doctrine of stare deC'isis is not a straitjacket that
forecloses re-examination of outmoded rules. The doctrine
does, however, provide busy judges with a valid reason for
refusing to remeasure a delicate balance that has tipped in the
same direction every time the conflicting interests have been
weighed.
The stare decisis considerations that weigh heavily in my
decision to join Part II of the Court's opinion also support
MR. JusTICE WHITE'S opinion dissenting from Parts III and
IV. Accordingly, I join his dissent.
JONES v. WOLF
Syllabus
JONES ET AL. V. WOLF ET AL.
CERTIORARI TO THE SUPREME COURT OF GEORGIA
No. 78-91. Argued January 16, 1979-Decided July 2, 1979
595
This ca.se involves a dispute over the ownership of church property following
a schism in a local church affiliated with a hierarchical church
organization. The property of the Vin~ville Presbyterian Church of
Macon, Ga. (local church), is held in the names of the local church or of
trustees for the local church. That church, however, was established
as a member of the Augusta-Macon Presbytery of the Presbyterian
Church in the United States (PCUS), which has a generally hierarchical
form of government. Under the polity of the PCUS, the government
of the local church is committed to its Session in the first instance, but
the actions of this "court" a.re subject to the review and control of the
higher church courts (the Presbytery, Synod, and General Assembly).
At a congregational meeting attended by a quorum of the local church's
members, 164 of them voted to separate from the PCUS, while 94
opposed the resolution. The majority then united with another denomination
and -has retained possession of the local church property. The
Augusta-Macon Presbytery appointed a commission to investigate the
dispute, and the commission eventually issued a ruling declaring that
the minority faction constituted the "true congregation" of the local
church, and withdrawing from the majority faction "all authority to
exercise office derived from the [PCUSJ ." Representatives of the
minority faction brought this class action in state court, seeking declaratory
and injunctive orders establishing t-heir right to exclusive possession
and use of the local church's property as a mPmbcr of the PCUS.
The trial court, purporting to apply Georgia's "neutral principles of
law" approach to church property disputes, granted judgment for the
majority. The Georgia Supreme Court affirmed, holding that the trial
court had correctiy stated and a.pplied Georgia law and rejecting the
minority's challenge based on the First and Fourteenth Amendments.
Held:
1. As a means of adjudicating a church property dispute, a State
is constitutionally entitled to adopt a "neutral principles of law" analysis
involving consideration of the deeds, state statutes governing the
holding of church property, the local church's charter, and the general
church's constitution. The First Amendment does not require the
States to adopt a rule of compulsory deference to religious authority in
!
:
!
596 OCTOBER TERM, 1978
Syllabus 443U.S.
resolving church property disputes, even where no issue of doctrinal
controversy is involved. Pp. 602-606.
2. Here, the case must be remanded since the grounds for the Georgia
courts' decision that the majority faction represents the local church
were not articulated, both the trial court and the Georgia Supreme Court
having applied Georgia's neutral-principles analysis as developed in
cases involving church property disputes between general churches and
entire local congregations, without alluding to the significant complicating
factor in the present case that the local congregation was itself
divided. If in fact Georgia has adopted a presumptive rule of majority
representation, defeasible upon a showing that the identity of the local
church is to be determined by some other means, this would be consistent
with both the neutral-principles analysis and the First Amendment.
However, there are at least some indications that under Georgia law the
process of identifying the faction that represents a local church involves
considerations of religious doctrine and polity, and thus if Georgia law
provides that the identity of the local church here is to be determined
according to the laws and regulations of the PCUS, then the First
Amendment requires that the Georgia courts give deference to the
presbyterial commission's determination that the minority faction represents
the "true congregation." Pp. 606--610.
241 Ga. 208, 243 S. E. 2d 860, vacated and remanded.
BLACKMUN, J., delivered t,he opinion of the Court, in which BRENNAN,
MARSHALL, REHNQUIST, and STEVENS, JJ., joined. POWELL, J., filed a
dissenting opinion, in which BURGER, C. J., and STEWART and WHITE, JJ.,
joined, post, p. 610.
E. Barrett Prettyman, Jr., argued the cause for petitioners.
With him on the briefs were Allen R. Snyder, Walter A. Smith,
Jr., John B. Harris, Jr., T. Reese Watkins, and H. T. O'Neal,
Jr.
Frank C. Jones argued the cause for respondents. With
him on the brief were Waliace Miller, Jr., W. Warren Plowden,
Jr., and Edward S. Sell, Jr.*
*Briefs of amici curiae urging reversal were filed by Samuel W. Witwer,
Sr., and Samuel W. Witwer, Jr., for the General Council on Fina.nee and
Administration of the United Methodist Church; by J. D. Todd, Jr., and
David A. Quattlebaum III for the Presbyterian Church in the United
JONES v. WOLF 597
595 Opinion of the Court
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This case involves a dispute over the ownership of church
property following a schism in a local church affiliated with a
hierarchical church organization. The question for decision is
whether civil courts, consistent with the First and Fourteenth
Amendments to the Constitution, may resolve the dispute on
the basis of "neutral principles of law," or whether they must
defer to the resolution of an authoritative tribunal of the
hierarchical church.
I
The Vineville Presbyterian Church of Macon, Ga., was
organized in 1904, and first incorporated in 1915. Its corporate
charter lapsed in 1935, but was revived and renewed in
1939, and continues in effect at the present time.
The property at issue and on which the church is located
was acquired in three transactions, and is evidenced by conveyances
to the "Trustees of [ or 'for'} Vineville Presbyterian
Church and their successors in office," App. 251, 253, or simply
to the "Vineville Presbyterian Church." Id., at 249. The
funds used to acquire the property were contributed entirely
by local church members. Pursuant to resolutions adopted
by the congregation, the church repeatedly has borrowed
money on the property. This indebtedness is evidenced by
security deeds variously issued in the name of the "Trustees
of the Vineville Presbyterian Church," e. g., id., at 278, or,
again, simply the "Vineville Presbyterian Church." Id., at
299.
In the same year it was organized, the Vineville church was
established as a member church of the Augusta-Macon Presbytery
of the Presbyterian Church in the United States
(PCUS). The PCUS has a generally hierarchical or connec-
States; and by George Wilson McKeag and Gregory M. Harvey for
William P. Thompson et al.
George E. Reed and Patrick F. Geary filed a brief for the United St.ates
Catholic Conference as amicus curiae.
I
598 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
tional form of government, as contrasted with a congregational
form. Under the polity of the PCUS, the government
of the local church is committed to its Session in the first
instance, but the actions of this assembly or "court" are subject
to the review and control of the higher church courts, the
Presbytery, Synod, and General Assembly, respectively. The
powers and duties of each level of the hierarchy are set forth
in the constitution of the PCUS, the Book of Church Order,
which is part of the record in the present case.
On May 27, 1973, at a congregational meeting of the Vineville
church attended by a quorum of its duly enrolled members,
164 of them, including the pastor, voted to separate
from the PCUS. Ninety-four members opposed the resolution.
The majority immediately informed the PCUS of the
action, and then united with another denomination, the
Presbyterian Church in America. Although the minority
remained on the church rolls for three years, they ceased to
participate in the affairs of the Vineville church and conducted
their religious activities elsewhere.
In response to the schism within the Vineville congregation,
the Augusta-Macon Presbytery appointed a commission to
investigate the dispute and, if possible, to resolve it. The
commission eventually issued a written ruling declaring that
the minority faction constituted "the true congregation of
Vineville Presbyterian Church," and withdrawing from the
majority faction "all authority to exercise office derived from
the [PCUS] .,, App. 235. The majority took no part in the
commission's inquiry, and did not appeal its ruling to a higher
PCUS tribunal.
Representatives of the minority faction sought relief in
federal court, but their complaint was dismissed for want of
jurisdiction. Lums v. Hope, 515 F. 2d 234 (CA5 1975), cert.
denied, 424 U. S. 967 (1976). They then brought this class
action in state court, seeking declaratory and injunctive orders
establishing their right to exclusive possession and use of the
--
JONES v. WOLF 599
595 Opinion of the Court
Vineville church property as a member congregation of the
PCUS. The trial court, purporting to apply Georgia's "neutral
principles of law" approach to church property disputes,
granted judgment for the majority. The Supreme Court of
Georgia, holding that the trial court had correctly stated and
applied Georgia law, and rejecting the minority's challenge
based on the First and Fourteenth Amendments, affirmed.
241 Ga. 208, 243 S. E. 2d 860 ( 1978). We granted certiorari.
439 U. S. 891 (1978).
II
Georgia's approach to church property litigation has
evolved in response to Presbyterian Church v. Hull Church,
393 U. S. 440 (1969") (Presbyterian Church I), rev'g Presbyterian
Church v. Eastern Heights Church, 224 Ga. 61, 159
S. E. 2d 690 (1968). That case was a property dispute between
the PCUS and two local Georgia churches that had
withdrawn from the PCUS. The Georgia Supreme Court
resolved the controversy by applying a theory of implied
trust, whereby the property of a local church affiliated with a
hierarchical church organization was deemed to be held in
trust for the general church, provided the general church had
not "substantially abandoned" the tenets of faith and practice
as they existed at the time of affiliation.1 This Court reversed,
holding that Georgia would have to find some other
way of resolving church property disputes that did not draw
the state courts into religious controversies. The Court did
not specify what that method should be, although it noted in
passing that "there are neutral principles of law, developed
for use in all property disputes, which can be applied without
'establishing' churches to which property is awarded." 393
U. S., at 449.
1 This is sometimes referred to as the "English approaoh" to resolving
property disputes in hierarchical churches. See Presbyterian Church I,
393 U.S., at 433, and n. 2; Watson v. Jones, 13 Wall. 679, 727-728 (1872).
600 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
On remand, the Georgia Supreme Court concluded that,
without the departure-from-doctrine element, the implied
trust theory would have to be abandoned in its entirety.
Presbyterian Church v. Eastern Heights Church, 225 Ga. 259,
167 S. E. 2d 658 (1969) (Presbyterian Church II). In its
place, the court adopted what is now known as the "neutral
principles of law" method for resolving church property
disputes. The court examined the deeds to the properties,
the state statutes dealing with implied trusts, Ga. Code
§§ 108--106, 108-107 (1978), and the Book of Church Order
to determine whether there was any basis for a trust in favor
of the general church. Finding nothing that would give rise
to a trust in any of these documents, the court awarded the
property on the basis of legal title, which was in the local
church, or in the names of trustees for the local church. 225
Ga., at 261, 167 S. E. 2d, at 660. Review was again sought in
this Court, but was denied. 396 U.S. 1041 (1970).
The neutral-principles analysis was further refined by the
Georgia Supreme Court in Carnes v. Smith, 236 Ga. 30, 222
S. E. 2d 322, cert. denied, 429 U. S. 868 (1976). That case
concerned a property dispute between The United Methodist
Church and a local congregation that had withdrawn
from that church. As in Presbytermn Church II, the court
found no basis for a trust in favor of the general church in the
deeds, the corporate charter, or the state statutes dealing with
implied trusts. The court observed, however, that the constitution
of The United Methodist Church, its Book of Discipline,
contained an express trust provision in favor of the
general church.2 On this basis, the church property was
2 The Book of Discipline of The United Methodist Church ,r 1537
(1968) requires tha.t
"title to all real property now owned or hereafter acquired by an unincorporated
local church ... shall be held by and/or conveyed a.nd transferred
to its duly elected trustees . . . and their successors in office . . .
in trust, nevertheless, for the use and benefit of such local church and of
JONES v. WOLF 601
595 Opinion of the Court
awarded to the denominational church. 236 Ga., at 39, 222
S. E. 2d, at 328.
In the present case, the Georgia courts sought to apply the
neutral-principles analysis of Presbyterian Church II and
Carnes to the facts presented by the Vineville church controversy.
Here, as in those two earlier cases, the deeds
conveyed the property to the local church. Here, as in the
earlier cases, neither the state statutes dealing with implied
trusts, nor the corporate charter of the Vineville church, indicated
that the general church had any interest in the property.
And here, as in Presbyterian Church II, but in contrast to
Carnes, the provisions of the constitution of the general
church, the Book of Church Order, concerning the ownership
and control of property failed to reveal any language of trust
in favor of the general church. The courts accordingly held
that legal title to the property of the Vineville church was
vested in the local congregation. Without further analysis
or elaboration, they further decreed that the local congregation
was represented by the majority faction, respondents
herein. App. to Pet. for Cert. 9a.; 241 Ga., at 212, 243 S. E.
2d, at 864.
The United Methodist Church. Every instrument of conveyance of real
estate shall contain the appropriate trust clause as set forth in the
Discipline (11503)" ( emphasis added).
Although in Carnes the deeds to the local church did not contain the required
trust clause, The Book of Discipline provided that in the absence
of a trust clause, a trust in favor of The United Methodist Church was to
be implied if (a) the conveyance was to the trustees of a local church or
agency of any predecessor to The United Methodist Church, or (b) the
local church used the name of any predecessor to The United Methodist
Church and was known to the community as a part of the denomination,
or (c) the local church accepted the pastorate of ministers appointed by
any predecessor to The United Methodist Church. The Book of Discipline
11503.5. The local church in Carnes satisfied all three of these
conditions. 236 Ga., at 39, 222 S. E. 2d, at 328.
602 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
III
The only question presented by this case is which faction
of the formerly united Vineville congregation is entitled to
possess and enjoy the property located at 2193 Vineville
Avenue in Macon, Ga. There can be little doubt about the
general authority of civil courts to resolve this question. The
State has an obvious and legitimate interest in the peaceful
resolution of property disputes, and in providing a civil forum
where the ownership of church property can be determined
conclusively. Presbyterian Church !, 393 U. S., at 445.
It is also clear, however, that "the First Amendment
severely circumscribes the role that civil courts may play in
resolving church property disputes." Id., at 449. Most importantly,
the First Amendment prohibits civil courts from
resolving church property disputes on the basis of religious
doctrine and practice. Serbian Orthodox Diocese v. Milivojevich,
426 U. S. 696, 710 (1976); Maryland & Va. Churches v.
Sharpsburg Church, 396 U. S. 367, 368 (1970); Presbyterian
Church I, 393 U. S., at 449. As a corollary to this commandment,
the Amendment requires that civil courts defer to the
resolution of issues of religious doctrine or polity by the
highest court of a hierarchical church organization. Serbian
Orthodox Diocese, 426 U.S., at 724-725; cf. Watson v. Jones,
13 Wall. 679, 733-734 ( 1872). Subject to these limitations,
however, the First Amendment does not dictate that a State
must follow a particular method of resolving church property
disputes. Indeed, "a State may adopt any one of various
approaches for settling church property disputes so long as it
involves no consideration of doctrinal matters, whether the
ritual and liturgy of worship or the tenets of faith." Maryland
& Va. Churches, 396 U. S., at 368 (BRENNAN, J., concurring)
( emphasis in original).
At least in general outline, we think the "neutral principles
of law" approach is consistent with the foregoing constitutional
principles. The neutral-principles approach was apJONES
v. WOLF 603
595 Opinion of the Court
proved in Maryland & Va. Churches, supra, an appeal from a
judgment of the Court of Appeals of Maryland settling a local
church property dispute on the basis of the language of the
deeds, the terms of the local church charters, the state statutes
governing the holding of church property, and the provisions
in the constitution of the general church concerning the
ownership and control of church property. Finding that this
analysis entailed "no inquiry into religious doctrine," the
Court dismissed the appeal for want of a substantial federal
question. 396 U. S., at 368. "Neutral principles of law"
also received approving reference in Presbyteri,an Church I,
393 U. S., at 449; in MR. JusTICE BRENNAN'S concurrence in
Maryland & Va. Churches, 396 U.S., at 370; and in Serbian
Orthodox Diocese, 426 U. S., at 723 n. 15.3
The primary advantages of the neutral-principles approach
are that it is completely secular in operation, and yet flexible
enough to accommodate all forms of religious organization and
polity. The method relies exclusively on objective, wellestablished
concepts of trust and property law familiar to
lawyers and judges. It thereby promises to free civil courts
completely from entanglement in questions of religious doctrine,
polity, and practice. Furthermore, the neutral-principles
analysis shares the peculiar genius of private-law systems
in general-flexibility in ordering private rights and obligations
to reflect the intentions of the parties. Through appropriate
reversionary clauses and trust provisions, religious
societies can specify what is to happen to church property in
the event of a particular contingency, or what religious body
will determine the ownership in the event of a schism or doctrinal
controversy. In this manner, a religious organization
3 Indeed, even in Watson v. Jones, a common-law decision heavily
relied upon by the dissent, Mr. Justice Miller, in speaking for the Court,
stated that, regardless of the form of church government, it would be the
"obvious duty" of a civil tribunal to enforce the "express terms" of a deed,
will, or other instrument of church property ownership. 13 Wall., at
722-723.
604 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
can ensure that a dispute over the ownership of church
property will be resolved in accord with the desires of the
members.
This is not to say that the application of the neutral-principles
approach is wholly free of difficulty. The neutral-principles
method, at least as it has evolved in Georgia, requires
a civil oourt to examine certain religious documents, such
as a church constitution, for language of trust in favor of the
general church. In undertaking such an examination, a civil
court must take special care to scrutinize the document in
purely secular terms, and not to rely on religious precepts in
determining whether the document indicates that the parties
have intended to create a trust. In addition, there may be
cases where the deed, the corporate charter, or the constitution
of the general church incorporates religious concepts in the
provisions relating to the ownership of property. If in such
a case the interpretation of the instruments of ownership
would require the civil court to resolve a religious controversy,
then the court must defer to the resolution of the doctrinal
issue by the authoritative ecclesiastical body. Serbian
Orthodox Diocese, 426 U. S., at 709.
On balance, however, the promise of nonentanglement and
neutrality inherent in the neutral-principles approach more
than compensates for what will be occasional problems in
application. These problems, in addition, should be gradually
eliminated as recognition is given to the obligation of "States,
religious organizations, and individuals [ to] structure relationships
involving church property so as not to require the
civil courts to resolve ecclesiastical questions." Presbyterian
Church I, 393 U. S., at 449. We therefore hold that a State
is constitutionally entitled to adopt neutral principles of law
as a means of adjudicating a church property dispute.
The dissent would require the States to abandon the neutralprinciples
method, and instead would insist as a matter of
constitutional law that whenever a dispute arises over the
JONES v. WOLF 605
595 Opinion of the Court
ownership of church property, civil courts must defer to the
"authoritative resolution of the dispute within the church
itself." Post, at 614. It would require, first, that civil courts
review ecclesiastical doctrine and polity to determine where
the church has "placed ultimate authority over the use of the
church property." Post, at 619. After answering this question,
the courts would be required to "determine whether the
dispute has been resolved within that structure of government
and, if so, what decision has been made." Post, at 619 n .. 6.
They would then be required to enforce that decision. We
cannot agree, however, that the First Amendment requires the
States to adopt a rule of compulsory deference to religious
authority in resolving church property disputes, even where
no issue of doctrinal controversy is involved.
The dissent suggests that a rule of compulsory deference
would somehow involve less entanglement of civil courts in
matters of religious doctrine, practice, and administration.
Under its approach, hov.rever, civil courts would always be
required to examine the polity and administration of a church
to determine which unit of government has ultimate control
over church property. In some cases, this task would not
prove to be difficult. But in others, the locus of control would
be ambiguous, and "[a] careful examination of the constitutions
of the general and local church, as well as other relevant
documents, [ would] be necessary to ascertain the form of
governance adopted by the members of the religious association."
Post, at 619-620. In such cases, the suggested rule
would appear to require "a searching and therefore impermissible
inquiry into church polity." Serbian Orthodox Diocese,
426 U. S., at 723. The neutral-principles approach, in contrast,
obviates entirely the need for an analysis or examination
of ecclesiastical polity or doctrine in settling church property
disputes.
The dissent also argues that a rule of compulsory deference
is necessary in order to protect the free exercise rights "of
606 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
those who have formed the association and submitted themselves
to its authority." Post, at 618. This argument assumes
that the neutral-principles method would somehow frustrate
the free-exercise rights of the members of a religious association.
Nothing could be further from the truth. The neutralprinciples
approach cannot be said to "inhibit" the free exercise
of religion, any more than do other neutral provisions of
state law governing the manner in which churches own property,
hire employees, or purchase goods. Under the neutralprinciples
approach, the outcome of a church property dispute
is not foreordained. At any time before the dispute erupts,
the parties can ensure, if they so desire, that the faction loyal
to the hierarchical church will retain the church property.
They can modify the deeds or the corporate charter to include
a right of reversion or trust in favor of the general church.
Alternatively, the constitution of the general church can be
made to recite an express trust in favor of the denominational
church. The burden involved in taking such steps will be
minimal. And the civil courts will be bound to give effect to
the result indicated by the parties, provided it is embodied in
some legally cognizable form.4
IV
It remains to be determined whether the Georgia neutralprinciples
analysis was constitutionally applied on the facts
of this case. Although both the trial court and the Supreme
Court of Georgia viewed the case as involving nothing more
than an application of the principles developed in Presbyterian
Church II and in Carnes, the present case contains a
significant complicating factor absent in each of those earlier
cases. Presbyterian Church II and Carnes each involved a
4 Given that the Georgia Supreme Court clearly enunciated its intent
to follow the neutral-principles analysis in Presbyterian Church II and
Carnes, this case does not involve a claim that retroactive application of
a neutral-principles approach infringes free-exercise rights.
JONE9 v. WOLF 607
595 Opinion of the Court
church property dispute between the general church and the
entire local congregation. Here, the local congregation was
itself divided between a majority of 164 members who sought
to withdraw from the PCUS, and a minority of 94 members
who wished to maintain the affiliation. Neither of the state
courts alluded to this problem, however; each concluded without
discussion or analysis that the title to the property was in
the local church and that the local church was represented
by the majority rather than the minority.
Petitioners earnestly submit that the question of which
faction is the true representative of the Vinevi11e church is
an ecclesiastical question that cannot be answered by a civil
court. At least, it is said, it cannot be answered by a civil
court in a case involving a hierarchical church, like the PCUS,
where a duly appointed church commission has determined
which of the two factions represents the "true congregation."
Respondents, in opposition, argue in effect that the Georgia
courts did no more than apply the ordinary presumption that,
absent some indication to the contrary, a voluntary religious
association is represented by a majority of its members.
If in fact Georgia has adopted a presumptive rule of majority
representation, defeasible upon a showing that the identity
of the local church is to be determined by some other means,
we think this would be consistent with both the neutral-principles
analysis and the First Amendment. Majority rule is
generally employed in the governance of religious societies.
See Bouldin v. Alexander, 15 Wall. 131 (1872). Furthermore,
the majority faction generally can be identified without resolving
any question of religious doctrine or polity. Certainly,
there was no dispute in the present case about the identity of
the duly enrolled members of the Vineville church when the
dispute arose, or about the fact that a quorum was present, or
about the final vote. Most importantly, any rule of majority
representation can always be overcome, under the neutralprinciples
approach, either by providing, in the corporate
. '
I
I
608 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
charter or the constitution of the general church, that the
identity of the local church is to be established in some other
way, or by providing that the church property is held in trust
for the general church and those who remain loyal t-0 it. Indeed,
the State may adopt any method of overcoming the
majoritarian presumption, so long as the use of that method
does not impair free-exercise rights or entangle the civil courts
in matters of religious controversy.5
Neither the trial court nor the Supreme Court of Georgia,
however, explicitly stated that it was adopting a presumptive
rule of majority representation.0 Moreover, there are at least
some indications that under Georgia law the process of identifying
the faction that represents the Vineville church involves
considerations of religious doctrine and polity. Georgia law requires
that "church property be held according to the terms
of the church government," and provides that a local church
affiliated with a hierarchical religious association "is part of
the whole body of the general church and is subject to the
higher authority of the organization and its laws and regulations."
Carnes v. Smith, 236 Ga., at 33, 38, 222 S. E. 2d, at
5 If the Georgia Supreme Court adopts a rule of presumptive majority
representation on remand, then it should also specify how, under Georgia
law, that presumption may be overcome. Because these critical issues of
state law remain undetermined, we, unlike the dissent, express no view
as to the ultimate outcome of the controversy if the Georgia Supreme
Court adopts a presumptive rule of majority representation.
6 The Georgia Code contains the following provision dealing with the
identity of a religious corporation:
"The majority of those who adhere to its organization and doctrines represent
the church. The withdrawal by one part of a congregation from the
original body, or uniting with another church or denomination, is a
relinquishment of all rights in the church abandoned." Ga. Code
§ 22-5504 (1978).
The trial court noted that the defendants (respondents here) did not
claim any right of possession of the Vineville church property under this
section. App. to Pet. for Cert. 6a. The Georgia Supreme Court did not
mention the provision.
JONE, v. WOLF 609
595 Opinion of the Court
325, 328; see Ga. Code§§ 22-5507, 22-5508 (1978). All this
may suggest that the identity of the "Vineville Presbyterian
Church" named in the deeds must be determined according to
terms of the Book of Church Order, which sets out the laws
and regulations of churches affiliated with the PCUS. Such
a determination, however, would appear to require a civil
court to pass on questions of religious doctrine,1 and to usurp
the function of the commission appointed by the Presbytery,
which already has determined that petitioners represent the
"true congregation" of the Vineville church. Therefore, if
Georgia law provides that the identity of the Vineville church
is to be determined according to the "laws and regulations" of
the PCUS, then the First Amendment requires that the
Georgia courts give deference to the presbyterial commission's
determination of that church's identity.8
This Court, of course, does not declare what the law of
Georgia is. Since the grounds for the decision that respond-
7 Issues of church doctrine and polity pervade the provisions of the Book
of Church Order of the Presbyterian Church (1972) dealing wit.h the identity
of the local congregation. The local church corporation consists of "aJJ the
communing members on the active roll" of the church. Id., § 6-2; App.
35. The "active roll," in turn, is composed "of those admitted to the
Lord's Table who are active in the church's life and work." § 8-7; App.
38. The Session is given the power "to suspend or exclude from the
Lord's Supper those found delinquent, according to the Rules of Discipline."
§ 15-6 (2); App. 51. See § 111-2; App. 124. The Session is
subject to "the review and control" of the Presbytery, § 14-5; App. 49,
as a part of the Presbytery's general authority to "order whatever pertains
to the spiritual welfare of the churches under its care." § 16-7 (19);
App. 56.
8 There is no suggestion in this case that the decision of the commission
was the product of "fraud" or "collusion." See Serbian Orthodox Diocese
v. Milivojevich, 426 U. S. 696, 713 (1976). In the absence of such circumstances,
"the First and Fourteenth Amendments mandate that civil
courts shall not disturb the decisions of the highest ecclesiastical tribunal
within a church of hierarchical polity, but must accept such decisions as
binding on them, in their application to the religious issues of doctrine or
polity before them." Id., at 709.
610 OCTOBER TERM, 1978
PowELL, J., dissenting 443 U.S.
ents represent the Vineville church remain unarticulated, the
judgment of the Supreme Court of Georgia is vacated, and the
case is remanded for further proceedings not inconsistent with
this opinion.
It is so ordered.
MR. JusTICE PowELL, with whom THE CHIEF JusTICE, MR.
JUSTICE STEWART, and MR. JusTICE WHITE join, dissenting.
This case presents again a dispute among church members
over the control of a local church's property. Although the
Court appears to accept established principles that I have
thought would resolve this case, it superimposes on these
principles a new structure of rules that will make the decision
of these cases by civil courts more difficult. The new analysis
also is more likely to invite intrusion into church polity forbidden
by the First Amendment.
I
The Court begins by stating that " [ t] his case involves a
dispute over the ownership of church property," ante, at 597,
suggesting that the concern is with legal or equitable ownership
in the real property sense. But the ownership of the
property of the Vineville church is not at issue. The deeds
place title in the Vineville Presbyterian Church, or in trustees
of that church, and none of the parties has questioned the
validity of those deeds. The question actually presented is
which of the factions within the local congregation has the
right to control the actions of the titleholder, and thereby to
control the use of the property, as the Court later acknowledges.
Ante, at 602.
Since 1872, disputes over control of church property usually
have been resolved under principles established by Watson v.
Jones, 13 Wall. 679 (1872). Under the new and complex,
two-stage analysis approved today, a court instead first must
apply newly defined "neutral principles of law" to determine
JONES v. WOLF 611
595 PowELL, J., dissenting
whether property titled to the local church is held in trust for
the general church organization with which the local church
is affiliated. If it is, then the court will grant control of the
property to the councils of the general church. If not, then
control by the local congregation will be recognized. In the
latter situation, if there is a schism in the local congregation,
as in this case, the second stage of the new analysis becomes
applicable. Again, the Court fragments the analysis into two
substeps for the purpose of determining which of the factions
should control the property.
As this new approach inevitably will increase the involvement
of civil courts in church controversies, and as it departs
from long-established precedents, I dissent.
A
The first stage in the "neutral principles of law" approach
operates as a restrictive rule of evidence. A court is required
to examine the deeds to the church property, the charter of
the local church (if there is one), the book of order or discipline
of the general church organization, and the state statutes
governing the holding of church property. The object of the
inquiry, where the title to the property is in the local church,
is "to determine whether there [is] any basis for a trust in
favor of the general church." Ante, at 600. The court's investigation
is to be "completely secular," "rel [ying] exclusively
on objective, well-established concepts of trust and
property law familiar to lawyers and judges." Ante, at 603.
Thus, where religious documents such as church constitutions
or books of order must be examined "for language of
trust in favor of the general church," "a civil court must take
special care to scrutinize the document in purely secular
terms, and not to rely on religious precepts in determining
whether the document indicates that the parties have intended
to create a trust." Ante, at 604. It follows that the civil courts
using this analysis may consider the form of religious govern612
OCTOBER TERM, 1978
POWELL, J., dissenting 443 u. s.
ment adopted by the church members for the resolution of
intrachurch disputes only if that polity has been stated, in
express relation to church property, in the language of trust
and property law.1
One effect of the Court's evidentiary rule is to deny to the
courts relevant evidence as to the religious polity-that is, the
form of governance-adopted by the church members. The
constitutional documents of churches tend to be drawn in
terms of religious precepts. Attempting to read them "in
purely secular terms" is more likely to promote confusion than
understanding. Moreover, whenever religious polity has not
been expressed in specific statements referring to the property
1 Despite the Court's assertion to the contrary, ante, at 602-603, this
"neutral principles" approach was not approved by the Court in dismissing
the appeal in Ma.ryland & Va. Eldership v. Sharpsburg Church, 254 Md.
162, 254 A. 2d 162 (1969). 396 U.S. 367 (1970). The stat<- court there
examined the constitution of the general church, the charters of the local
churches, the deeds to the property at issue, and the relevant state statutes.
But it did not restrict its inquiry to a search for statements exnressPd in
the language of trust and property law; see 254 Md., at 16!}-176, 254 A.
2d, at 168-170. Rather, the state court canvassed all of these sources, and
others, see Marywnd & Va. Eldership v. Sharpsburg Church, 249 Md.
650, 665-668, 241 A. 2d 691, 700-701 (1968), for information about the
basic polity of the Church of God. Having concluded that the local
congregations retained final authority over their property, it awarded
judgment accordingly. Contrary to the statement of the Court in the
present case that such an inquiry into church polity requires analysis of
"ecclesia...<:tical ... doctrine," ante, at, 605, "the Maryla.nd court's resolution
of the dispute involved no inquiry into religious doctrine." 396
U. S., at 368.
In Presbyterian Church v. Hull Church, 393 U.S. 440 (1969), "neutral
principles" were referred to in passing, but were never described. Id., at
449. What the Court refers to as an "approving reference" to "neutral
principles" in Serbian Orthodox Diocese v. Milivojevich, 426 U. S. 696
(1976), was only an acknowledgment in a footnote that "[n]o claim is
made that the 'formal title' doctrine by which church property disputes
may be decided in civil courts is to be applied in this ca...<:e." Id., at 723
n. 15. Nor can the Court find support for its position in Watson v. Jones,
13 Wall. 679, 724-729 (1872).
JONES v. WOLF 613
595 PowELL, J., dissenting
of a church, there will be no evidence of that polity cognizable
under the neutral-principles rule. Lacking such evidence,
presumably a court will impose some rule of church government
derived from state law. In the present case, for example,
the general and unqualified authority of the Presbytery
over the actions of the Vineville church had not been expressed
in secular terms of control of its property. As a consequence,
the Georgia courts could find no acceptable evidence of this
authoritative relationship, and they imposed instead a congregational
form of government determined from state law.
This limiting of the evidence relative to religious government
cannot be justified on the ground that it "free[s] civil
courts completely from entanglement in questions of religious
doctrine, polity, and practice." Ante, at 603. For unless the
body identified as authoritative under state law resolves the
underlying dispute in accord with the decision of the church's
own authority, the state court effectively will have reversed
the decisions of doctrine and practice made in accordance
with church law. The schism in the Vineville church, for
example, resulted from disagreements among the church members
over questions of doctrine and practice. App. 233.
Under the Book of Church Order, these questions were resolved
authoritatively by the higher church courts, which then
gave control of the local church to the faction loyal to that
resolution. The Georgia courts, as a matter of state ]aw,
granted control to the schismatic faction, and thereby effectively
reversed the doctrinal decision of the church courts.
This indirect interference by the civil courts with the resolution
of religious disputes within the church is no less proscribed
by the First Amendment than is the direct decision
of questions of doctrine and practice.2
2 The neutral-principles approach appears to assume that the requirements
of the Constitution will be satisfied if civil courts are forbidden to
consider certain types of evidence. The First Amendment's Religion
Clauses, however, a.re meant to protect churches and their members from
civil law interference, not to protect the courts from having to decide
614 OCTOBER TERM, 1978
PowELL, J., dissenting 443U.S.
When civil courts step in to resolve intrachurch disputes
over control of church property, they will either support or
overturn the authoritative resolution of the dispute within
the church itself. The new analysis, under the attractive
banner of "neutral principles," actually invites the civil courts
to do the latter. The proper rule of decision, that I thought
had been settled until today, requires a court to give effect in
all cases to the decisions of the church government agreed
upon by the members before the dispute arose.
B
The Court's basic neutral-principles approach, as a means
of isolating decisions concerning church property from other
decisions made within the church, relies on the concept of a
trust of local church property in favor of the general church.
Because of this central premise, the neutral-principles rule suffices
to settle only disputes between the central councils of
a church organization and a unanimous local congregation.
Where, as here, the neutral-principles inquiry reveals no trust
in favor of the general church, and the local congregation is split
into factions, the basic question remains unresolved: which
faction should have control of the local church?
difficult evidentiary questions. Thus, the evidentiary rules to be applied
in cases involving intruchurch disputes over church property should be
fashioned to avoid interference with the resolution of the dispute within
the accepted church government. The neutral-principles approach consists
instead of a rule of evidence that ensures that in some cases the courts
will impose a form of church government and a doctrinal resolution at odds
with that reached by the church's own authority.
The neutral-principles approach creates other difficulties. It imposes
on the organization of churches additional legal requirements which in
some cases might inhibit their formation by forcing the organizers to confront
issues that otherwise might never arise. It also could precipitate
church property disputes, for existing churches may deem it necessary, in
light of today's decision, to revise their constitutional documents, charters,
and deeds to include a specific statement of church polity in the
language of property and trust law.
....._
JONES v. WOLF 615
595 PowELL, J., dissenting
The Court acknowledges that the church law of the Presbyterian
Church in the United States ( PCUS), of which the
Vinevme church is a part, provides for the authoritative resolution
of this question by the Presbytery. Ante, at 608-609,
and n. 7. Indeed, the Court indicates that Georgia, consistently
with the First Amendment, may adopt the Watson v. Jones
rule of adherence to the resolution of the dispute according to
church law-a rule that would necessitate reversal of the
judgment for the respondents. Ante, at 609. But instead of
requiring the state courts to take this approach, the Court
approves as well an alternative rule of state law: the Georgia
courts are said to be free to "adop [ t] a presumptive rule of
majority representation, defeasible upon a showing that the
identity of the local church is to be determined by some other
means." Ante, at 607. This showing may be made by proving
that the church has "provid[ed], in the corporate charter or
the constitution of the general church, that the identity of
the local church is to be established in some other way."
Ante, at 607-608.
On its face, this rebuttable presumption also requires reversal
of the state court's judgment in favor of the schismatic
faction. The polity of the PCUS commits to the Presbytery
the resolution of the dispute within the local church. Having
shown this structure of church government for the determination
of the identity of the local congregation, the petitioners
have rebutted any presumption that this question has been
left to a majority vote of the local congregation.
The Court nevertheless declines to order reversal. Rather
than decide the case here in accordance with established First
Amendment principles, the Court leaves open the possibility
that the state courts might adopt some restrictive evidentiary
rule that would render the petitioners' evidence inadequate
to overcome the presumption of majority control.
Ante, at 608 n. 5. But, aside from a passing reference to the
use of the neutral-principles approach developed earlier in its
'
:'
I
'
i
616 OCTOBER TERM, 1978
PowELL, J., dissenting 443 U.S.
opinion,3 the Court affords no guidance as to the constitutional
limitations on such an evidentiary rule; the state courts, it
says, are free to adopt any rule that is constitutional.
"Indeed, the state may adopt any method of overcoming
the majoritarian presumption, so long as the use of that
method does not impair free-exercise rights or entangle
the civil courts in matters of religious controversy."
Ante, at 608.
In essence, the Court's instructions on remand therefore allow
the state courts the choice of following the long-settled rule
of Watson v. Jones or of adopting some other rule-unspecified
by the Court-that the state courts view as consistent
with the First Amendment. Not only questions of state law
but also important issues of federal constitutional law thus are
left to the state courts for their decision, and, if they depart
from Wat son v. Jones, they will travel a course left totally
uncharted by this Court.
II
Disputes among church members over the control of church
property arise almost invariably out of disagreements regarding
doctrine and practice. Because of the religious nature
of these disputes, civil courts should decide them according to
principles that do not interfere with the free exercise of religion
in accordance with church polity and doctrine. Serbian
3 Ante, at 607-608. Such a use would be an extension of this restrictive
rule of evidence, and one likely to exacerbate further the interference with
free religious exercise. See supra, at 612--614. Not only will a local congregation
of a general hierarchical church be treated as an independent
congregational church unless the rules of church government hav,e been
expressed in specified documents with explicit reference to church property,
in addition, aU local congregations will be regarded as having a rule of
majority control unless they have related their general voting rules explicitly
to disputes about church property. As a consequence, the resolution of
doctrinal disputes within the polity chosen by the church members often
will be overturned by tl1e civil courts, an interference with religious exercise
that cannot be squared with the First AmP-nnment.
JONES v. WOLF 617
595 PowELL, J ., dissenting
Orthodox Diocese v. Milivojevich, 426 U. S. 696, 709, 720
(1976); Presbyterian Church v. Hull Church, 393 U. S. 440,
445-446, 449 (1969); Kedroff v. Saint Nicholas Cathedral, 344
U. S. 94, 107 (1952); id., at 121-122 (Frankfurter, J., concurring).
See also Kreshik v. Saint Nicholas Cathedral, 363 U.S.
190 (1960); Maryland & Va. Eldership v. Sharpsburg Church,
254 Md. 162, 254 A. 2d 162 (1969), appeal dismissed for
want of substantial federal question, 396 U. S. 367 ( 1970).
The only course that achieves this constitutional requir.ement
is acceptance by civil courts of the decisions reached within
the polity chosen by the church members themselves. The
classic statement of this view is found in Watson v. Jones,
13 Wall., at 728--729: 4
"The right to organize voluntary religious associations to
assist in the expression and dissemination of any religious
doctrine, and to create tribunals for the decision of controverted
questions of faith within the association, and
for the ecclesiastical government of all the individual
members, congregations, and officers within the general
association, is unquestioned. All who unite themselves
to such a body do so with an implied consent to this government,
and are bound to submit to it. But it would
be a vain consent and would lead to the total subversion
of such religious bodies, if any one aggrieved by one of
their decisions could appeal to the secular courts and have
them reversed. It is of the essence of these religious
4 Watson v. Jones was decided at a time when the First Amendment was
not considered to be applicable to the States through the Fourteenth
Amendment, and before Erie R. Co. v. Tompkins, 304 U. S. 64 (1938),
made state law applicable in diversity cases. But beginning with KedrofJ
v. Saint Nicholas Cathedral, 344 U. S., at 116, this Court has indicated
repeatedly that the principles of general federal law announced in Watson
v. Jones are now regarded as rooted in the First Amendment, and are
applicable to the States through the Fourteenth Amendment. Presbyterian
Church v. Hull Church, 393 U. S., at 447-448; Serbian Orthodox Diocese
v. Milivojevich, 426 U.S., at 710-711.
618 OCTOBER TERM, 1978
PowELL, J., dissenting 443 U.S.
unions, and of their right to establish tribunals for the
decision of questions arising among themselves, that those
decisions should be binding in all cases of ecclesiastical
cognizance, subject only to such appeals as the organism
itself provides for."
Accordingly, in each case involving an intrachurch dispute-
including disputes over church property-the civil court
must focus directly on ascertaining, and then following, the
decision made within the structure of church governance. By
doing so, the court avoids two equally unacceptable departures
from the genuine neutrality mandated by the First Amendment.
First, it refrains from direct review and revision of
decisions of the church on matters of religious doctrine and
practice that underlie the church's determination of intrachurch
controversies, including those that relate to control
of church property.5 Equally important, by recognizing the
authoritative resolution reached within the religious association,
the civil court avoids interfering indirectly with the
religious governance of those who have formed the association
and submitted themselves to its authority. See supra, at 612-
614; Watson v. Jones, supra, at 728- 729; Kedroff v. Saint
Nicholas Cathedral, supra, at 107- 110.
III
Until today, and under the foregoing authorities, the first
question presented in a case involving an intrachurch dispute
over church property was where within the religious associa-
5 Thus, in Presbyterian Church v. Hull Church, supra, the Court forbade
the use of the "English approach" in the resolution of church property
disputes because it requires the civil courts to determine whether authoritative
decisions of doctrine and practice are consistent with the longstanding
tenets of faith of a particular church. 393 U. S., at 449-450; accord,
Watson v. Jones, 13 Wall., a.t 727-729. Similarly, in Serbian Orthodox
Diocese v. Milivojevich, supra, the control of church property turned on
the resolution of questions of doctrine and practice, "which under our
cases is [only] for ecclesiastical and not civil tribunals." 426 U. S., at
709; see id., at 720.
JONES v. WOLF 619
595 PowELL, J., dissenting
tion the rules of polity, accepted by its members before the
schism, had placed ultimate authority over the use of the
church property.6 The courts, in answering this question
have recognized two broad categories of church government.
One is congregational, in which authority over questions of
church doctrine, practice, and administration rests entirely
in the local congregation or some body within it. In disputes
over the control and use of the property of such a church, the
civil courts enforce the authoritative resolution of the controversy
within the local church itself. Watson v. Jones,
supra, at 724-726. The second is hierarchical, in which the
local church is but an integral and subordinate part of a larger
church and is under the authority of the general church.
Since the decisions of the local congregation are subject to
review by the tribunals of the church hierarchy, this Court
has held tha.t the civil courts must give effect to the duly made
decisions of the highest body within the hierarchy that has
considered the dispute. As we stated in Serb'ian Orthodox
Diocese v. Milivojevich:
"[T]he First and Fourteenth Amendments permit hierarchical
religious organizations to establish their own rules
and regulations for internal discipline and government,
and to create tribunals for adjudicating disputes over
these matters. When this choice is exercised and ecclesiastical
tribunals are created to decide disputes over the
government and direction of subordinate bodies, the Constitution
requires that civil courts accept their decisions
as binding upon them." 426 U.S., at 724--725 (emphasis
added).1
A careful examination of the constitutions of the general
0 After answering this question, of course, the civil court must determine
whether the dispute has been resolved within that structure of government
and, if so, what decision has been made.
1 Accord, Kedroff v. Saint Nicholas Cathedral, supra, at 113-114;
Watson v. Jones, supra, at 7'1:7.
620 OCTOBER TERM, 1978
PowELL, J., dissenting 443 U.S.
and local church, as well as other relevant documents, may be
necessary to ascertain the form of governance adopted by the
members of the religious association. But there is no reason
to restrict the courts to statements of polity related directly
to church property. For the constitutionally necessary limitations
are imposed not on the evidence to be considered but
instead on the object of the inquiry, which is both limited and
clear: the civil court must determine whether the local church
remains autonomous, so that its members have unreviewable
authority to withdraw it (and its property) from the general
church, or whether the local church is inseparably integrated
into and subordinate to the general church.8
IV
The principles developed in prior decisions thus afford clear
guidance in the case before us. The Vineville church is presbyterian,
a part of the PCUS. The presbyterian form of
church government, adopted by the PCUS, is "a hierarchical
structure of tribunals which consists of, in ascending order,
(1) the Church Session, composed of the elders of the local
church; (2) the Presbytery, composed of several churches in
a geographicaI area; (3) the Synod, generally composed of all
Presbyteries within a State; and ( 4) the General Assembly,
the highest governing body." Presbyterian Church v. Hull
8 See Kauper, Church Autonomy and the First Amendment: the Presbyterian
Church Case, in Church and State: The Supreme Court and the
First Amendment 90-92, 97-98 (P. Kurland ed. 1975). The Court suggests
that the careful consideration of church constitutions and other
relevant documents as a prerequisite to deciding basic questions of church
polity may be impermissible if it requires a "searching . . . inquiry into
church polity." Ante, at 605, quoting Serbian Orthodox Diocese v. Milivojevich,
426 U.S., at 723. The i&Sue in Serbian Orthodox Diocese, however,
was quite different. There, the hierarchical polity of the church was clear.
Id., at 715-717. What the Court held impermissible was the state court's
further inquiry into the faithfulness of the church hierarchy's decisions to
the detailed provisions of church law. Id., at 712-713, 718, 721-723;
id., at 725 (WHITE, J., concurring).
JONES v. WOLF 621
595 PowELL, J., dissenting
Church, 393 U. S., at 442. The Book of Church Order subjects
the Session to "review and control" by the Presbytery in all
matters, even authorizing the Presbytery to repl~e the leadership
of the local congregation, to winnow its membership, and
to take control of it. No provision of the Book of Church
Order gives the Session the authority to withdraw the local
church from the PCUS; similarly, no section exempts such a
decision by the local church from review by the Presbytery.
Thus, while many matters, including the management of
the church property, are committed in the first instance to the
Session and congregation of the local church, their actions are
subject to review by the Presbytery. Here, the Presbytery
exercised its authority over the local church, removing the
dissidents from church office, asserting direct control over the
government of the church, and recognizing the petitioners as
the legitimate congregation and Session of the church. It is
undisputed that under the established government of the
Presbyterian Church-accepted by the members of the church
before the schism-the use and control of the church property
have been determined authoritatively to be in the petitioners.
Accordingly, under the principles I have thought were settled,
there is no occasion for the further examination of the law of
Georgia that the Court directs. On remand, the Georgia
courts should be directed to enter judgment for the petitioners.
622 OCTOBER TERM, 1978
Syllabus 443U.S.
BELLOTTI, ATTORNEY GENERAL OF MASSACHUSETTS,
ET AL. v. BAIRD ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS
No. 78-329. Argued February 27, 1979-Decided July 2, 1979•
A Massachusetts statute requires parental consent before an abortion can
be performed on an unmarried woman under the age of 18. If one or
both parents refuse such consent, however, the abortion may be obtained
by order of a judge of the superior court "for good cause shown." In
appellees' class action challenging the constitutionality of the statute,
a three-judge District Court held it unconstitutional. Subsequently, this
Court vacated the District Court's judgment, Bellotti v. Baird, 428 U. S.
132, holding that the District Court should have abstained and certified
to the Massachusetts Supreme Judicial Court appropriate questions concerning
the meaning of the statute. On remand, the District Court certified
several questions to the Supreme Judicial Court. Among the
questions certified was whether the statute permits any minors-mature
or immature-to obtain judicial consent to an abortion without any
parental consultation whatsoever. The Supreme Judicial Court answered
that, in general, it does not; that consent must be obtained
for every nonemergency abortion unless no parent is available; and
that an available parent must be given notice of any judicial proceedings
brought by a minor to obtain consent for an abortion. Another question
certified was whether, if the superior court finds that the minor is
capable of making, and has, in fact, made and adhered to, an informed
and reasonable decision to have an abortion, the court may refuse its
consent on a finding that a parent's, or its own, contrary decision is a
better one. The Supreme Judicial Court answered in the affirmative.
Following the Supreme Judicial Court's judgment, the District Court
again declared the statute unconstitutional and enjoined its enforcement.
Held: The judgment is affirmed. Pp. 633-651; 652-656.
450 F. Supp. 997, affirmed.
MR. JUSTICE POWELL, joined by MR. CHIEF JUSTICE BURGER, MR.
JUSTICE STEWART, and MR. JUSTICE REHNQUIST, concluded that:
1. There are three reasons justifying the conclusion that the consti-
*Together with No. 78- 330, Hunerwadel v. Baird et al., also on appeal
from the same court.
BELLOTTI v. BAIRD 623
622 Syllabus
tutional rights of children cannot be equated with those of adults: the
peculiar vulnerability of children; their inability to make critical decisions
in an informed, mature manner; and the importance of the guiding
role of parents in the upbringing of their children. Pp. 633-639.
2. The abortion decision differs in important ways from other decisions
facing minors, and the State is required to act with particular
sensitivity when it legislates to foster parental involvement in this
matter. Pp. 639-642.
3. If a State decides to require a pregnant minor t-0 obtain one or
both parents' consent to an abortion, it also must provide an alternative
procedure whereby authorization for the abortion can be obtained. A
pregnant minor is entitled in such a proceeding to show either that she
is mature enough and well enough informed to make her abortion
decision, in consultation with her physician, independently of her parents'
wishes, or that even if she is not able to make this decision independently,
the desired abortion would be in her best interests. Such a
procedure must ensure that the provision requiring parental consent does
not in fact amount to an impermissible "absolute, and possibly arbitrary,
veto." Pl,anned Parenthood of Central Missouri v. Danforth, 428 U. S.
52, 74. Pp. 642--644.
4. The Massachusetts statute, as authoritatively interpreted by the
Supreme Judicial Court, unduly burdens the right to seek an abortion.
The statute falls short of constitutional standards in two respects. First,
it permits judicial authorization for an abortion to be withheld from a
minor who is found by the superior court to be mature and fully competent
to make this decision independently. Second, it requires parental
consultation or notification in every instance, whether or not in the
pregnant minor's best interests, without affording her an opportunity to
receive an independent judicial determination that she is mature enough to
consent or that an abortion would be in her best interests. Pp. 644-651.
MR. JUSTICE STEVENS, joined by MR. JUSTICE BRENNAN, MR. JUSTICE
MARSHALL, and l\fR. JUSTICE BLACKMUN, concluded that the Massachusetts
statute is unconstitutional because under the statute, as written and
as construed by the Massachusetts Supreme Judicial Court, no minor,
no matter how mature and capable of informed decisionmaking, may
receive an abortion without the consent of either both parents or a
superior court judge, thus making the minor's abortion decision subject
in every instance to an absolute third-party veto. Planned Parenthood
of Central, Missouri v. Danforth, 428 U.S. 52, controlling. Pp. 652,...656.
PowELL, J ., announced the judgment of the Court and delivered an
opinion, in which BURGER, C. J., and STEWART and REHNQUIST, JJ., joined.
624 OCTOBER TERM, 1978
Opinion of PowELL, J. 443U.S.
REHNQUIST, J., filed a concurring opinion, post, p. 651. STEVENS, J., filed
an opinion concurring in the judgment, in which BRENNAN, MARSHALL,
and BLACKMUN, JJ., joined, post, p. 652. WHITE, J., filed a dissenting
opinion, post, p. 656.
Garrick F. Cole, Assistant Attorney General of Massachusetts,
argued the cause for appellants in No. 78-329. With
him on the briefs were Francis X. Bellotti, Attorney General,
pro se, and Michael B. Meyer and Thomas R. Kiley, Assistant
Attorneys General. Brian A. Riley argued the cause for
appellant in No. 78-330. With him on the brief was Thomas
P. Russell.
Joseph J. Balliro argued the cause for appellees in both
cases. With him on the brief was Joan C. Schmidt. John H.
Henn also argued the cause for appellees in both cases. With
him on the brief were Scott C. M oriearty, Sandra L. Lynch,
Loyd M. Starrett, and John Reinstein.+
MR. JusTICE PowELL announced the judgment of the Court
and delivered an opinion, in which THE CHIEF JUSTICE,
MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST joined.
These appeals present a challenge to the constitutionality
of a state statute regulating the access of minors to abortions.
They require us to continue the inquiry we began in Planned
Parenthood of Central Mi.ssouri v. Danforth, 428 U. S. 52
(1976), and Bellotti v. Baird, 428 U.S. 132 (1976).
tStuart D. Hubbell and Robert A. Destro filed a brief for the Catholic
League for Religious and Civil Rights et al. as amici curiae urging reversal
in No. 78-329.
Eve W. Paul, Harriet F. Pilpel, and Sylvia A. Law filed a brief for
the Planned Parenthood Federation of America, Inc., et al. as amici
curiae urging affirmance in both cases.
Briefs of amici curiae were filed by Victor G. Rosenblum, Dennis J.
Horan, and John D. Gorby in both cases for Americans United for Life,
Inc., et al.; and by George E. Reed and Patrick F. Geary in No. 78-329
for the United States Catholic Conference.
622
BELLOTTI v. BAIRD
Opinion of PowELL, J.
I
A
625
On August 2, 1974, the Legislature of the Commonwealth of
Massachusetts passed, over the Governor's veto, an Act pertaining
to abortions performed within the State. 1974 Mass.
Acts, ch. 706. According to its title, the statute was intended
to regulate abortions "within present constitutional limits."
Shortly before the Act was to go into effect, the class action
from which these appeals arise was commenced in the District
Court 1 to enjoin, as unconstitutional, the provision of the
Act now codified as Mass. Gen. Laws Ann., ch. 112, § 12S
(West Supp. 1979).2
Section 12S provides in part:
"If the mother is less than eighteen years of age and
has not married, the consent of both the mother and
her parents [to an abortion to be performed on the
mother] is required. If one or both of the mother's
parents refuse such consent, consent may be obtained by
order of a judge of the superior court for good cause
shown, after such hearing as he deems necessary. Such a
hearing ,vill not require the appointment of a guardian for
the mother. If one of the parents has died or has deserted
his or her family, consent by the remaining parent
is sufficient. If both parents have died or have deserted
their family, consent of the mother's guardian or other
1 Tho court promptly issued a restraining order which remained in effect
until its decision on the merits. Subsequent stays of enforcement were
issued during the complex course of this litigation, with the result that
Mass. Gen. Laws Ann., ch. 112, § 12S (West Supp. 1979), never has been
enforced by Massachusetts.
2 As originally enacted, § 12S was designated as § 12P of chapter 112.
In 1977, the provision was renumbered as § 12S, and the numbering of
subdivisions within the section was eliminated. No changes of substance
were made. We shall refer to the section as § 128 throughout this
opinion.
626 OCTOBER TERM, 1978
Opinion of PoWELL, J. 443 U.S.
person having duties similar to a guardian, or any person
who had assumed the care and custody of the mother is
sufficient. The commissioner of public health shall prescribe
a written form for such consent. Such form shall
be signed by the proper person or persons and given to
the physician performing the abortion who shall maintain
it in his permanent files."
Physicians performing abortions in the absence of the consent
required by § 12S are subject to injunctions and criminal penalties.
See Mass. Gen. Laws Ann., ch. 112, §§ 12Q, 12T, and
12U (West Supp. 1979).
A three-judge District Court was convened to hear the case
pursuant to 28 U.S. C. § 2281 (1970 ed.), repealed by Pub. L.
94-381, § 1, 90 Stat. 1119.3 Plaintiffs in the suit, appellees
in both the cases before us now, were William Baird; Parents
Aid Society, Inc. (Parents Aid), of which Baird is founder and
director; Gerald Zupnick, M. D., who regularly performs abortions
at the Parents Aid clinic; and an unmarried minor, identified
by the pseudonym "Mary Moe," who, at the commencement
of the suit, was pregnant, residing at home with her
parents, and desirous of obtaining an abortion without informing
them.4
Mary Moe was permitted to represent the "class of unmarried
minors in Massachusetts who have adequate capacity to
give a valid and informed consent [to abortion], and who do
not wish to involve their parents." Baird v. Bellotti, 393 F.
Supp. 847, 850 (Mass. 1975) (Baird I). Initially there was
some confusion whether the rights of minors who wish abortions
without parental involvement but who lack "adequate
capacity" to give such consent also could be adjudicated in
3 The proceedings before the court and the substance of its opinion
are described in detail in Bellotti v. Baird, 428 U.S. 132, 136-143 (1976).
• Three other minors in similar circumstances were named in the complaint,
but the complaint was dismissed as to them for want of proof of
standing. That decision has not been challenged on appeal.
BELLOTTI v. BAIRD 627
622 Opinion of PowELL, J.
the suit. The District Court ultimately determined that
Dr. Zupnick was entitled to assert the rights of these minors.
See Baird v. Bellotti, 450 F. Supp. 997, 1001, and n. 6 (Mass.
1978).5
Planned Parenthood League of Massachusetts and Crit--
tenton Hastings House & Clinic, both organizations that
provide counseling to pregnant adolescents, and Phillip Stubblefield,
M. D. (intervenors),6 appeared as amici curiae on behalf
of the plaintiffs. The District Court "accepted [ this
group] in a status something more than amici because of
reservations about the adequacy of plaintiffs' representation
[of the plaintiff classes in the suit]." Id., at 999 n. 3.
Defendants in the suit, appellants here in No. 78-329, were
the Attorney General of Massachusetts and the District Attorneys
of all counties in the State. Jane Hunerwadel was permitted
to intervene as a defendant and representative of the
class of Massachusetts parents having unmarried minor
daughters who then were, or might become, pregnant. She
and the class she represents are appellants in No. 78-330.7
Following three days of testimony, the District Court issued
an opinion invalidating § 12S. Baird I, supra. The court
rejected appe11ees' argument that all minors capable of becoming
pregnant also are capable of giving informed consent
5 Appellants argue that these ''immature" minors never were before
the District Court and that the court's remedy should have been tailored
to grant relief only to the class of "mature" minors. It is apparent from
the District Court's opinions, however, that it considered the constitutionality
of § 12S as applied to all pregnant minors who might be affected by
it. We accept that the rights of this entire category of minors properly
were subject to adjudication.
6 In 1978, the District Court permitted postjudgment intervention by
these parties, who now appear jointly before this Court as intervenorappellees.
7 As their positions are closely aligned, if not identical, appellants in
Nos. 78-329 and 78-330 are hereinafter referred to collectively as
appellants.
628 OCTOBER TERM, 1978
Opinion of PowELL, J. 443 U.S.
to an abortion, or that it always is in the best interests of a
minor who desires an abortion to have one. See 393 F. Supp.,
at 854. But the court was convinced that "a substantial
number of females under the age of 18 are capable of forming
a valid consent," id., at 855, and "that a significant number
of [ these J are unwilling to tell their parents." Id., at 853.
In its analysis of the relevant constitutional principles, the
court stated that "there can be no doubt but that a female's
constitutional right to an abortion in the first trimester does not
depend upon her calendar age." Id., at 855-856. The court
found no justification for the parental consent limitation
placed on that right by § 12S, since it concluded that the
statute was "cast not in terms of protecting the minor, ...
but in recognizing independent rights of parents." Id., at
856. The "independent" parental rights protected by § 12S,
as the court understood them, were wholly distinct from the
best interests of the minor.8
B
Appellants sought review in this Court, and we noted probable
jurisdiction. Bellotti v. Baird, 423 U. S. 982 (1975).
After briefing and ora.l argument, it became apparent that
§ 12S was susceptible of a construction that "would avoid or
substantially modify the federal constitutional challenge to the
statute." Bellotti v. Baird, 428 U. S. 132, 148 (1976) (Bellotti
I). We therefore vacated the judgment of the District
Court, concluding that it should have abstained and certified
to the Supreme Judicial Court of Massachusetts appropriate
questions concerning the meaning of § 12S, pursuant to exist-
8 One member of the th.l'ee-judge court dissented, arguing that the
decision of the majority to allow Mary Moe to proceed in the case without
notice to her parents denied them their parental rights without due
process of law, and that § 12S was consistent with the decisions of this
Court recognizing the propriety of parental control over the conduct
of children. See 393 F. Supp., at 857-865.
BELLOTTI v. BAIRD 629
622 Opinion of PowELL, J.
ing procedure in that State. See Mass. Sup. Jud. Ct. Rule
3:21.
On remand, the District Court certified nine questions to
the Supreme Judicial Court.9 These were answered in an
0 The nine questions certified by the District Court, with footnotes
omitted, are as follows:
"l. What standards, if any, docs the statute establish for a parent to
apply when considering whether or not to grant consent?
"a) Is the parent to consider 'exclusively . . . what will serve the
child's best interest'?
"b) If the parent is not limited to considering exclusively the minor's
best interests, can the parent take into consideration the 'long-term
consequences to the family and her parents' marriage relationship'?
"c) Other?
"2. What standard or standards is the superior court to apply?
"a) Is the superior court to disregard all parent~l objections that are
not based exclusively on what would serve the minor's best interests?
"b) If the superior court finds that the minor is capable, and has, in
fact, made and adhered to, an informed and reasonable decision to have
an abortion, may the court refuse its consent based on a finding that a
parent's, or its own, contrary decision is a better one?
"c) Other?
"3. Does the Massachusetts law permit a minor (a) 'capa.ble of giving
informed consent,' or (b) 'incapable of giving informed consent.,' 'to obtain
[a court] order without parental consultat,ion'?
"4. If the court answers any of question 3 in the affirmative, may the
superior court, for good cause shown, enter an order authorizing an abortion,
(a), without prior notification to the parents, and (b), without
subsequent notification?
"5. Will the Supreme Judicial Court prescribe a set of procedures to
implement c. 112, [§ 12S] which will expedite the application, hearing,
and decision phases of the superior court proceeding provided thereunder?
Appeal?
"6. To what degree do the standards and procedures set forth in c. 112,
§ 12F (Stat. 1975, c. 564), authorizing minors to give consent to medical
and dental care in specified circumstances, parallel the grounds and procedures
for showing good cause under c. 112, [§ 12S]?
"7. May a minor, upon a showing of indigency, have court-appointed
counsel?
"8. Is it a defense to his criminal prosecution if a physician performs an
abortion solely with the minor's own, valid, consent, that he reasonably,
630 OCTOBER TERM, 1978
Opinion of PowELL, J. 443 U.S.
opinion styled Baird v. Attorney Generai, 371 Mass. 741, 360
N. E. 2d 288 (1977) (Attorney General). Among the more
important aspects of § 12S, as authoritatively construed by the
Supreme Judicial Court, are the following:
1. In deciding whether to grant consent to their daughter's
abortion, parents are required by § 12S to consider exclusively
what will serve her best interests. See id., at 746--747, 360
N. E. 2d, at 292-293.
2. The provision in § 12S that judicial consent for an abortion
shall be granted, parental objections notwithstanding,
"for good cause shown" means that such consent shall be
granted if found to be in the minor's best interests. The judge
"must disregard all parental objections, and other considerations,
which are not based exclusively" on that standard.
Id., at 748, 360 N. E. 2d, at 293.
3. Even if the judge in a § 12S proceeding finds "that the
minor is capable of making, and has made, an informed and
reasonable decision to have an abortion," he is entitled to
withhold consent "in circumstances where he determines that
the best interests of the minor will not be served by an
abortion." Ibid., 360 N. E. 2d, at 293.
4. As a general rule, a minor who desires an abortion may
not obtain judicial consent without first seeking both parents'
consent. Exceptions to the rule exist when a parent is not
available or when the need for the abortion constitutes " 'an
emergency requiring immediate action.'" 10 Id., at 750, 360
N. E. 2d, at 294. Unless a parent is not available, he must
be notified of any judicial proceedings brought under § 12S.
Id., at 755- 756, 360 N. E. 2d, at 297.
and in good faith, though erroneously, believed that she was eighteen or
more years old or had been married?
"9. Will the Court make any other comments about the statute which,
in its opinion, might assist us in determining whether it infringes the
United States Constitution?"
10 Section 12S itself dispenses with the need for the consent of any
parent who "has died or has deserted his or her family."
BELLOTTI v. BAIRD 631
622 Opinion of Po WELL, J.
5. The resolution of § 12S cases and any appeals that follow
can be expected to be prompt. The name of the minor and
her parents may be held in confidence. If need be, the
Supreme Judicial Court and the superior courts can promulgate
rules or issue orders to ensure that such proceedings are
handled expeditiously. Id., at 756-758, 360 N. E. 2d, at
297-298.
6. Massachusetts Gen. Laws Ann., ch. 112, § 12F (West
Supp. 1979), which provides, inter alia, that certain classes of
minors may consent to most kinds of medical care without
parental approval, does not apply to abortions, except as to
minors who are married, widowed, or divorced. See 371 Mass.,
at 758-762, 360 N. E. 2d, at 298-300. Nor does the State's
common-law "mature minor rule" create an exception to
§ 12S. Id., at 749-750, 360 N. E. 2d, at 294. See n. 27,
infra.
C
Following the judgment of the Supreme Judicial Court,
appellees returned to the District Court and obtained a stay
of the enforcement of § 12S until its constitutionality could
be determined. Baird v. Bellotti, 428 F. Supp. 854 (Mass.
1977) (Baird II). After permitting discovery by both sides,
holding a pretrial conference, and conducting further hearings,
the District Court again declared § 12S unconstitutional and
enjoined its enforcement. Baird v. Bellotti, 450 F. Supp. 997
(Mass. 1978) (Baird III). The court identified three particular
aspects of the statui:€ which, in its view, rendered it
unconstitutional.
First, as construed by the Supreme Judicial Court, § 12S requires
parental notice in virtually every case where the parent is
available. The court believed that the evidence warrant€d
a finding "that many, perhaps a large majority of 17-year olds
are capable of informed consent, as are a not insubstantial
number of 16-year olds, and some even younger." Id., at
1001. In addition, the court concluded that it would not be in
632 OCTOBER TERM, 1978
Opinion of PowELL, J. 443 U.S.
the best interests of some "immature" minors-those incapable
of giving informed consent-even to inform their pa.rents
of their intended abortions. Although the court declined to
decide whether the burden of requiring a minor to take her
parents to court was, per se, an impermissible burden on her
right to seek an abortion, it concluded that Massachusetts
could not constitutionally insist that parental permission be
sought or notice given "in those cases where a court, if given
free rein, would find that it was to the minor's best interests
that one or both of her parents not be informed .... " Id., at
1002.
Second, the District Court held that § 12S was defective in
permitting a judge to veto the abortion decision of a minor
found to be capable of giving informed consent. The court
reasoned that upon a finding of maturity and informed consent,
the State no longer was entitled to impose legal restrictions
upon this decision. Id., at 1003. Given such a finding,
the court could see "no reasonable basis" for distinguishing
between a minor and an adult, and it therefore concluded that
§ 12S was not only "an undue burden in the due process
sense, [but] a discriminatory denial of equal protection [as
well]." Id., at 1004.
Finally, the court decided that § 12S suffered from what it
termed "formal overbreadth," ibid., because the statute failed
explicitly to inform parents that they must consider only the
minor's best interests in deciding whether to grant consent.
The court believed that, despite the Supreme Judicial Court's
construction of § 12S, parents naturally would infer from the
statute that they were entitled to withhold consent for other,
impermissible reasons. This was thought to create a "~hilling
effect" by enhancing the possibility that parental consent
would be denied wrongfully and that the minor would have
to proceed in court.
Having identified these flaws in § 12S, the District Court
considered whether it should engage in "judicial repair."
Id., at 1005. It declined either to sever the statute or to give
BELLOTTI v. BAIRD 633
622 Opinion of PowELL, J.
it a construction different from that set out by the Supreme
Judicial Court, as that tribunal arguably had invited it to do.
See Attorney General, 371 Mass., at 745-746, 360 N. E. 2d,
at 292. The District Court therefore adhered to its previous
position, declaring § 12S unconstitutional and permanently
enjoining its enforcement.11 Appellants sought review in this
Court a second time, and we again noted probable jurisdiction.
439 U. S. 925 (1978).
II
A child, merely on account of his minority, is not beyond
the protection of the Constitution. As the Court said in In
re Gault, 387 U.S. 1, 13 (1967), "whatever may be their precise
impact, neither the Fourteenth Amendment nor the Bill
of Rights is for adults alone." 12 This observation, of course,
is but the beginning of the analysis. The Court long has recognized
that the status of minors under the law is unique in many
respects. As Mr. Justice Frankfurter aptly put it: "Children
have a very special place in life which law should reflect.
Legal theories and their phrasing in other cases readily lead to
fallacious reasoning if uncritically transferred to determination
11 The dissenting judge agreed that the State could not permit a judge
to override the decision of a minor found to be mature and capable of
giving informed consent to an abortion. He disagreed with the remainder
of the court's conclusions: the best-interests limitation on the withholding
of parental consent in the Supreme Judicial Court's opinion,
he argued, must be treated as if part of the statutory language itself; and
he read the evidentiary record as proving that only rarely would a pregnant
minor's interests be disserved by consulting with her parents about
a desired abortion. He also noted the value to a judge in a § 12S proceeding
of having tho parents before him as a source of evidence as to the
minor's maturity and what course would serve her best interests. See
Baird III, 450 F. Supp., at 1006-1020.
12 Similarly, the Court said in Planned Parenthood of Central Missouri
v. Danforth, 428 U.S. 52, 74 (1976):
"Constitutional rights do not mature and come into being magically
only when one attains the state-defined age of majority. Minors, as well as
adults, are protected by the Constitution and possess constitutional rights."
634 OCTOBER TERM, 1978
Opinion of PowELL, J. 443 U.S.
of a State's duty towards children." May v. Anderson, 345
U. S. 528, 536 (1953) (concurring opinion). The unique
role in our society of the family, the institution by which
"we inculcate and pass down many. of our most cherished
values, moral and cultural," Moore v. East Cleveland, 431
U. S. 494, 503-504 ( 1977) (plurality opinion), requires that
constitutional principles be applied with sensitivity and flexibility
to the special needs of parents and children. We have
recognized three reasons justifying the conclusion that the
constitutional rights of children cannot be equated with those
of adults: the peculiar vulnerability of children; their inability
to make critical decisions in an informed, mature manner; and
the importance of the parental role in child rearing.
A
The Court's concern for the vulnerability of children is
demonstrated in its decisions dealing with minors' claims to
constitutional protection against deprivations of liberty or
property interests by the State. With respect to many of
these claims, we have concluded that the child's right is
virtually coextensive with that of an adult. For example,
the Court has held that the Fourteenth Amendment's guarantee
against the deprivation of liberty without due process of
law is applicable to children in juvenile delinquency proceedings.
In re Gault, supra. In particular, minors involved in
such proceedings are entitled to adequate notice, the assistance
of counsel1 and the opportunity to confront their accusers.
They can be found guilty only upon proof beyond a reasonable
doubt, and they may assert the privilege against compulsory
self-incrimination. In re Winship, 397 U.S. 358 (1970);
In re Gault, supra. See also Ingraham v. Wright, 430 U. S.
651, 674 ( 1977) ( corporal punishment of schoolchildren implicates
constitutionally protected liberty interest); cf. Breed v.
Jones, 421 U.S. 519 (1975) (Double Jeopardy Clause prohibits
prosecuting juvenile as an adult after an adjudicatory finding
in juvenile court that he had violated a criminal statute).
BELLOTTI v. BAJRD 635
622 Opinion of POWELL, J,
Similarly, in Goss v. Lopez, 419 U. S. 565 (1975), the Court
held that children may not be deprived of certain property
interests without due process.
These rulings have not been made on the uncritical assumption
that the constitutional rights of children are indistinguishable
from those of adults. Indeed, our acceptance of
juvenile courts distinct from the adult criminal justice system
assumes that juvenile offenders constitutionally may be
treated differently from adults. In order to preserve this separate
avenue for dealing with minors, the Court has said that
hearings in juvenile delinquency cases need not necessarily
"'conform with a11 of the requirements of a criminal trial or
even of the usual administrative hearing.'" In re Gauit,
supra, at 30, quoting Kent v. United States, 383 U.S. 541, 562
(1966). Thus, juveniles are not constitutionally entitled to
trial by jury in delinquency adjudications. McKeiver v.
Pennsylvania, 403 U. S. 528 (1971). Viewed together, our
cases show that although children generally are protected by
the same constitutional guarantees against governmental
deprivations as are adults, the State is entitled to adjust its
legal system to account for children's vulnerability and their
needs for "concern, ... sympathy, and ... paternal attention."
Id., at 550 (plurality opinion).
B
Second, the Court has held that the States validly may
limit the freedom of children to choose for themselves in the
making of important, affirmative choices with potentially
serious consequences. These rulings have been grounded in
the recognition that, during the formative years of childhood
and adolescence, minors often lack the experience, perspective,
and judgment to recognize and avoid choices that could be
detrimental to them.13
13 As MR. JUSTICE STEWART wrote of the exercise by minors of the
First Amendment rights that "secur[e] .. . the liberty of each man to
636 OCTOBER TERM, 1978
Opinion of PowELL, J. 443 U.S.
Ginsberg v. New Yorlc, 390 U.S. 629 (1968), illustrates well
the Court's concern over the inability of children to make
mature choices, as the First Amendment rights involved are
clear examples of constitutionally protected freedoms of choice.
At issue was a criminal conviction for selling sexually oriented
magazines to a minor under the age of 17 in violation of a
New York state law. It was conceded that the conviction
could not have stood under the First Amendment if based
upon a sale of the same material to an adult. Id., at 634.
Notwithstanding the importance the Court always has attached
to First Amendment rights, it concluded that "even where
there is an invasion of protected freedoms 'the power of the
state to control the conduct of children reaches beyond the
scope of its authority over adults ... ,' " id., at 638, quoting
Prince v. Massachusetts, 321 U. S. 158, 170 (1944).14 The
Court was convinced that the New York Legislature rationally
could conclude that the sale to children of the magazines in
question presented a danger against which they should be
guarded. Ginsberg, supra, at 641. It therefore rejected the
decide for himself what he will read and to what he will listen," Ginsberg
v. New York, 390 U. S. 629, 649 (1968) (concurring in result):
"[A]t least in some precisely delineated areas, a child-like someone in a
captive audienc&--is not possessed of that full capacity for individual choice
which is the presupposition of First Amendment guarantees. It is only
upon such a premise, I should suppose, that a State may deprive children
of other rights-the right to marry, for example, or the right to vote--
deprivations that would be constitutionally intolerable for adults." Id., at
649-650 (footnotes omitted).
14 In Prince an adult had permitted a child in her custody to sell religious
literature on a public street in violation of a state child-labor statute.
The child had been permitted to engage in this activity upon her own
sincere request. 321 U. S., at 162. In upholding the adult's convict.ion
under the statute, we found that "the interests of society to protect the
welfare of children" and to give them "opportunities for growth into free
and independent well-developed men and citizens," id., at 165, permitted
the State to enforce its statute, which "[c]oncededly ... would be invalid,"
id., at 167, if made applicable to adults.
BELLOTTI v. BAIRD 637
622 Opinion of POWELL, J.
argument that the New York law violated the constitutional
rights of minors.15
C
Third, the guiding role of parents in the upbringing of their
children justifies limitations on the freedoms of minors. The
State commonly protects its youth from adverse governmental
action and from their own immaturity by requiring parental
consent to or involvement in important decisions by minors.10
But an additional and more important justification for state
deference to parental control over children is that " [ t] he child
is not the mere creature of the State; those who nurture him
and direct his destiny have the right, coupled with the high
duty, to recognize and prepare him for additional obligations."
Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). "The
duty to prepare the child for 'additional obligations' . . .
15 Although the State has considerable latitude in enacting laws affecting
minors on the basis of their lesser capacity for mature, affirmative choice,
Tinker v. Des Moines School Dist., 393 U.S. 503 (1969), illustrates that
it may not arbitrarily deprive them of their freedom of action altogether.
The Court held in Tinker that a schoolchild's First Amendment freedom
of expression entitled him, contrary to school policy, to attend school
wearing a black armband as a silent protest against American involvement
in the hostilities in Vietnam. The Court acknowledged that the State was
permitted to prohibit conduct otherwise shielded by the Constitution that
"for any reason-whether it stems from time, place, or type of behaviormaterially
disrupts classwork or involves substantial disorder or invasion
of the rights of others." Id., at 513. It upheld the First Amendment
right of the schoolchildren in that case, however, not only because it found
no evidence in the record that their wearing of black armbands threatened
any substantial interference with the proper objectives of the school district,
but also because it appeared that the challenged policy was intended
primarily to stifle any debate whatsoever-even nondisruptive discussions-
on important political and moral issues. See id., at 510.
16 See, e. g., Mass. Gen. Laws Ann., ch. 207, §§ 7, 24, 25, 33, 33A (West
1958 and Supp. 1979) (parental consent required for marriage of person
under 18); Mass. Gen. Laws Ann., ch. 119, § 55A (West Supp. 1979)
(waiver of counsel by minor in juvenile delinquency proceedings must be
made through parent or guardian).
638 OCTOBER TERM, 1978
Opinion of PowELL, J. 443 U.S.
must be read to include the inculcation of moral standards,
religious beliefs, and elements of good citizenship." Wisconsin
v. Yoder, 406 U. S. 205, 233 (1972). This affirmative
process of teaching, guiding, and inspiring by precept and
example is essential to the growth of young people into
mature, socially responsible citizens.
We have believed in this country that this process, in large
part, is beyond the competence of impersonal political institutions.
Indeed, affirmative sponsorship of particular ethical,
religious, or political beliefs is something we expect the State
not to attempt in a society constitutionally committed to the
ideal of individual liberty and freedom of choice. Thus,
"[i]t is cardinal with us that the custody, care and nurture
of the child reside first in the parents, whose primary function
and freedom include preparation for obligations the state can
neither supply nor hinder." Prince v. Massachusetts, supra,
at 166 (emphasis added).
Unquestionably, there are many competing theories about
the most effective way for parents to fulfill their central role
in assisting their children on the way to responsible adulthood.
While we do not pretend any special wisdom on this
subject, we cannot ignore that central to many of these
theories, and deeply rooted in our Nation's history and tradition,
is the belief that the parental role implies a substantial
measure of authority over one's children. Indeed, "constitutional
interpretation has consistently recognized tha.t the
parents' claim to authority in their own household to direct
the rearing of their children is basic in the structure of our
society." Ginsberg v. New York, supra, at 639.
Properly understood, then, the tradition of parental authority
is not inconsistent with our tradition of individual liberty;
rather, the former is one of the basic presuppositions of the
latter. Legal restrictions on minors, especially those supportive
of the parental role, may be important to the child's
chances for the full growth and maturity that make eventual
BELLOTTI v. BAIRD 639
622 Opinion of PowELL, J.
participation in a free society meaningful and rewarding.11
Under the Constitution, the State can "properly conclude
that parents and others, teachers for example, who have [the]
primary responsibility for children's well-being are entitled to
the support of laws designed to aid discharge of that responsibility."
Ginsberg v. New York, 390 U.S., at 639.18
III
With these principles in mind, we consider the specific constitutional
questions presented by these appeals. In § 12S,
Massachusetts has attempted to reconcile the constitutional
right of a woman, in consultation with her physician, to choose
to terminate her pregnancy as established by Roe v. Wade, 410
U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973),
with the special interest of the State in encouraging an unmarried
pregnant minor to seek the advice of her parents in making
the important decision whether or not to bear a child. As
noted above, § 12S was before us in Bellotti I, 428 U. S. 132
( 1976), where we remanded the case for interpretation of its
provisions by the Supreme Judicial Court of Massachusetts.
We previously had held in Planned Parenthood of Central
Missouri v. Danforth, 428 U. S. 52 (1976), that a State could
not lawfully authorize an absolute parental veto over the decision
of a minor to terminate her pregnancy. Id., at 74. In
17 See Hafen, Children's Liberation and the New Egalitarianism: Some
Reservations About Abandoning Children to Their "Rights," 1976
B. Y. U. L. Rev. 605.
18 The Court's opinions discussed in the text above-Pierce, Yoder,
Prince, and Ginsberg-all have contributed to a line of decisions suggesting
the exist~mce of a constitutional parental right against undue, adverse
interference by the State. See also Smith v. Organization of Foster Families,
431 U. S. 816, 842-844 (1977); Carey v. Popul,ation Services Internatirmal,
431 U. S. 678, 708 (1977) (opinion of PowELL, J.); Moore v.
East Cleveland, 431 U. S. 494 (1977) (plurality opinion); Stamey v.
Illinois, 405 U.S. 645, 651 (1972); Meyer v. Nebraska, 262 U.S. 390, 399
(1923). Cf. Parham v. J. R., 442 U.S. 584 (1979); id., at 621 (STEWART,
J., concurring in result).
640 OCTOBER TERM, 1978
Opinion of PowELL, J. 443 U.S.
Bellotti I, supra, we recognized that § 128 could be read as
"fundamentally different from a statute that creates a 'parental
veto,'" 428 U.S., at 145, thus "avoid[ing] or substantially
modify[ing] the federal constitutional challenge to the statute."
Id., at 148. The question before us-in light of what
we have said in the prior cases- is whether § 12S, as authoritatively
interpreted by the Supreme Judicial Court, provides
for parental notice and consent in a manner that does not
unduly burden the right to seek an abortion. See id., at 147.
Appellees and intervenors contend that even as interpreted
by the Supreme Judicial Court of Massachusetts § 128 does
unduly burden this right. They suggest, for example, that the
mere requirement of parental notice constitutes such a burden.
As stated in Part II above, however, parental notice and consent
are qualifications that typically may be imposed by the
State on a minor's right to make important decisions. As
immature minors often lack the ability to make fully informed
choices that take account of both immediate and long-range
consequences, a State reasonably may determine that parental
consultation often is desirable and in the best interest of the
minor.19 It may further determine, as a general proposition,
that such consultation is particularly desirable with respect to
the abortion decision-one that for some people raises profound
moral and religious concerns.20 As MR. JusTICE STEWART
wrote in concurrence in Planned Parenthood of Central Missouri
v. Danforth, supra, at 91:
"There can be little doubt that the State furthers a
constitutionally permissible end by encouraging an unmar-
19 In Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at
75, "[w]e emphasize[d] that our holding ... [did] not suggest that
every minor, regardless of age or maturity, may give effective consent for
termination of her pregnancy."
20 The expert testimony at the hearings in the District Court uniformly
was to the effect that parental involvement in a minor's abortion decision,
if compassionate and supportive, was highly desirable. The findings of
the court reflect this consensus. See Baird I, 393 F. Supp., at 853.
622
BELLOTTI v. BAIRD 641
Opinion of PowELL, J.
ried pregnant minor to seek the help and advice of her
parents in making the very important decision whether
or not to bear a child. That is a grave decision, and a
girl of tender years, under emotional stress, may be illequipped
to make it without mature advice and emotional
support. It seems unlikely that she will obtain adequate
counsel and support from the attending physician at an
abortion clinic, where abortions for pregnant minors frequently
take place." (Footnote omitted.) 21
21 MR. JUSTICE STEWART's concurring opinion in Danforth underscored
the need for parental involvement in minors' abortion decisions by describing
the procedures followed at the clinic operated by the Parents Aid
Society and Dr. Gerald Zupnick:
"The counseling . . . occurs entirely on the day the abortion is to be
performed . . . . It lasts for two hours and takes place in groups that
include both minors and adults who are strangers to one another... . The
physician takes no part in this counseling process . . . . Counseling is
typically limited to a description of abortion procedures, possible complications,
and birth control techniques ....
"The abortion itself takes five to seven minutes . . . . The physician has
no prior contact with the minor, and on the days that abortions are being
performed at the [ clinic J, the physician ... may be performing abortions
on many other adults and minors . . . . On busy days patients are scheduled
in separate groups, consisting usually of five patients . . . . After
the abortion [the physician} spends a brief period with the minor and
others in the group in the recovery room .... " 428 U. S., at 91-92,
n. 2, quoting Brief for Appellants in Bellotti I, 0. T. 1975, No. 75-73,
pp. 43-44.
In Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179
(1973), we emphasized the importance of the role of the attending physician.
Those cases involved adult women presumably capable of selecting
and obtaining a competent physician. In this case, however, we are concerned
only with minors who, according to the record, may range in age
from children of 12 years to 17-year-old teenagers. Even the latter are less
likely than adult.-, to know or be able to recognize ethical, qualified physicians,
or to have the means to engage such professionals. Many minors
who bypass their parents probably will resort to an abortion clinic, without
being able to distinguish the competent and ethical from those that
are incompetent or unethical.
642 OCTOBER TERM, 1978
Opinion of PowELL, J. 443 U.S.
But we are concerned here with a constitutional right to
seek an abortion. The abortion decision differs in important
ways from other decisions that may be made during minority.
The need to preserve the constitutional right and the unique
nature of the abortion decision, especially when made by a
minor, require a State to act with particular sensitivity when
it legislates to foster parental involvement in this matter.
A
The pregnant minor's options are much different from those
facing a minor in other situations, such as deciding whether to
marry. A minor not permitted to marry before the age of
majority is required simply to postpone her decision. She
and her intended spouse may preserve the opportunity for
later marriage should they continue to desire it. A pregnant
adolescent, however, cannot preserve for long the possibilty
of aborting, which effectively expires in a matter of weeks
from the onset of pregnancy.
Moreover, the potentially severe detriment facing a pregnant
woman, see Roe v. Wade, 410 U.S., at 153, is not mitigated
by her minority. Indeed, considering her probable
education, employment skills, financial resources, and emotional
maturity, unwanted motherhood may be exceptionally
burdensome for a minor. In addition, the fact of having a
child brings with it adult legal responsibility, for parenthood,
like attainment of the age of majority, is one of the traditional
criteria for the termination of the legal disabilities of minority.
In sum, there are few situations in which denying a minor the
right to make an important decision will have consequences so
grave and indelible.
Yet, an abortion may not be the best choice for the minor.
The circumstances in which this issue arises will vary widely.
In a given case, alternatives to abortion, such as marriage to
the father of the child, arranging for its adoption, or assuming
the responsibilities of motherhood with the assured support of
BELLOTTI v. BAIRD 643
622 Opinion of PowELL, J.
family, may be feasible and relevant to the minor's best
interests. Nonetheless, the abortion decision is one that simply
cannot be postponed, or it will be made by default with
far-reaching consequences.
For these reasons, as we held in Planned Parenthood of
Central Missouri v. Danforth, 428 U.S., at 74, "the State may
not ill).pose a blanket provision ... requiring the consent of a
parent or person in loco parentis as a condition for abortion
of an unmarried minor during the first ·12 weeks of her pregnancy."
Although, as stated in Part II, supra, such deference
to parents may be permissible with respect to other choices
facing a minor, the unique nature and consequences of the
abortion decision make it inappropriate "to give a third party
an absolute, and possibly arbitrary, veto over the decision of
the physician and his patient to terminate the patient's pregnancy,
regardless of the reason for withholding the consent."
428 U. S., at 74. We therefore conclude that if the State
decides to require a pregnant minor to obtain one or both
parents' consent to an abortion, it also must provide an alternative
procedure 22 whereby authorization for the abortion can
be obtained.
A pregnant minor is entitled in such a proceeding to show
either: (1) that she is mature enough and well enough informed
to make her abortion decision, in consultation with
her physician, independently of her parents' wishes; 23 or
22 As § 12S provides for involvement of the state superior court in
minors' abortion decisions, we discuss the alternative procedure described
in the text in terms of judicial proceedings. We do not suggest, however,
that a State choosing to require parental consent could not delegate the
alternative procedure to a juvenile court or an administrative agency or
officer. Indeed, much can be said for employing procedures and a forum
less formal than those associated with a court of general jurisdiction.
23 The nature of both the Sta.te's interest in fostering parental authority
and the problem of determining "maturity" makes clear why the State generally
may resort to objective, though inevitably arbitrary, criteria such
as age limits, marital status, or membership in the Armed Forces for lifting
some or all of the legal disabilities of minority. Not only is it difficult to
644 OCTOBER TERM, 1978
Opinion of PowELL, J. 443 U.S.
(2) that even if she is not able to make this decision independently,
the desired abortion would be in her best interests.
The proceeding in which this showing is made must assure
that a resolution of the issue, and any appeals that may follow,
will be completed with anonymity and sufficient expedition
to provide an effective opportunity for an abortion to be
obtained. In sum, the procedure must ensure that the provision
requiring parental consent does not in fact amount to
the "absolute; and possibly arbitrary, veto" that was found
impermissible in Danforth. Ibid.
B
It is against these requirements that § 12S must be tested.
We observe foitially that as authoritatively construed by the
highest court of the State, the statute satisfies some of the
concerns that require special treatment of a minor's abortion
decision. It provides that if parental consent is refused, authorization
may be "obtained by order of a judge of the
superior court for good cause shown, after such hearing as he
deems necessary." A superior court judge presiding over a
§ 12S proceeding "must disregard all parental objections, and
other considerations, which are not based exclusively on what
would serve the minor's best interests." 24 Attorney General,
define, let alone determine, maturity, but also the fact that a minor may be
very much an adult in some respects does not mean that his or her need
and opportunity for growth under parental guidance and discipline have
ended. As discussed in the text, however, the peculiar nature of the abortion
decision requires the opportunity for case-by-case evaluations of the
maturity of pregnant minors.
24 The Supreme Judicial Court held that § 12S imposed this standard on
the superior court in large part because it construed the statute as containing
the same restriction on parents. See supra, at 630. The court
concluded that the judge should not be entitled "to exercise his authority
on a standard broader than that to which a parent must adhere." Attorney
General, 371 Mass., at 748, 360 N. E. 2d, at 293.
Intervenors argue that, assuming state-supported parental involvement
in the minor's abortion decision is permissible, the State may not endorse the
BELLOTTI v. BAIRD 645
622 Opinion of PowELL, J.
371 Mass., at 748, 360 N. E. 2d, at 293. The Supreme Judicial
Court also stated: "Prompt resolution of a [ § 12S] proceeding
may be expected. . . . The proceeding need not be brought in
the minor's name and steps may be taken, by impoundment
or otherwise, to preserve confidentiality as to the minor and
her parents. . . . [W]e believe that an early hearing and decision.
on appeal from a judgment of a Superior Court judge
may also be achieved." Id., at 757-758, 360 N. E. 2d, at
298. The court added that if these expectations were not met,
either the superior court, in the exercise of its rulemaking
power, or the Supreme Judicial Court would be willing to
eliminate any undue burdens by rule or order. lbid.25
Despite these safeguards, which avoid much of what was
objectionable in the statute successfully challenged in Danforth,
§ 12S falls short of constitutional standards in certain
respects. \Ve now consider these.
withholding of parental consent for any reason not believed to be in the
minor's best interests. They agree with the District Court that, even
though § 12S was construed by the highest state court to impose this
restriction, the statute is flawed because the restriction is not apparent on
its face. Intervrnors thus concur in the District Court's assumption that
the statute will encourage parents to withhold consent for impermissible
reasons. See Baird Ill, 450 F. Supp., at 1004-1005; Baird II, 428 F.
Supp. 854, 855-856 (Mass. 1977).
There is no basis for this assertion. As a general rule, the interpretation
of a state statute by the State's highest court "is as though written into
the ordinance itself," Poul,os v. New Hampshire, 345 U.S. 395, 402 (1953),
and we are obliged to view the restriction on the parental-consent requirement
"as if [§ 12SJ had been so amended by the [Massachusetts] legislature."
Winters v. New York, 333 U. S. 507,514 (1948).
2 5 Intervenors take issue with the Supreme Judicial Court's assurances
that judicial proceedings will provide the necessary confidentiality, lack of
procedural burden, and speed of resolution. In the absence of any evidence
as to the operation of judicial proceedings under § 128- and there is
none, since appellees successfully sought to enjoin Massachusetts from putting
it into effect-we must assume that the Supreme Judicial Court's
judgment is correct.
646 OCTOBER TERM, 1978
Opinion of PowELL, J. 443 U.S.
(1)
Among the questions certified to the Supreme Judicial Court
was whether § 12S permits any minors-mature or immature-
to obtain judicial consent to an abortion without any
parental consultation whatsoever. See n. 9, supra. The
state court answered that, in general, ·it does not. "[T] he
consent required by [§ 12S must] be obtained for every none~
ergency abortion where the mother is less than eighteen
years of age and unmarried." Attorney General, supra, at 750,
360 N. E. 2d, at 294. The text of§ 12S itself states an exception
to this rule, making consent unnecessary from any parent
who has "died or has deserted his or her family." 26 The
Supreme Judicial Court construed the statute as containing an
additional exception: Consent need not be obtained "where no
parent ( or statutory substitute) is available." 371 Mass., at
750, 360 N. E. 2d, at 294. The court also ruled that an available
parent must be given notice of any judicial proceedings
brought by a minor to obtain consent for an abortion.21 Id.,
at 755-756, 360 N. E. 2d, at 297.
26 The statute also provides that "[i]f both parents have died or have
deserted their family, consent of the mother's guardian or other person
having duties similar to a guardian, or any person who had assumed the
care and custody of the mother is sufficient."
27 This reading of the statute requires parental consultation and consent
more strictly than appellants themselves previously oolieved wa.s necessary.
In their first argument before this Court, and again before the
Supreme Judicial Court, appellants argued that § 128 was not intended
to abrogate Massachusetts' common-law "mature minor" rule as it applies
to abortions. See 428 U. S., at 144. They also suggested that, under
some circumstances, § 128 might permit even immature minors to obtain
judicial approval for an abortion without any parental consultation.
See 428 U. S., at 145; Attorney General, supra, at 751, 360 N. E. 2d, at
294. The Supreme Judicial Court sketched the outlines of the mature
minor rule that would apply in the absence of § 128: "The mature minor
rule calls for an analysis of t-hc nature of the operation, its likely benefit,
and the capacity of the particular minor to understand fully what the
medical procedure involves. . . . Judicial intervention is not required. If
BELLOTTI v. BAIRD 647
622 Opinion of PowELL, J.
We think that, construed in this manner, § 12S would impose
an undue burden upon the exercise by minors of the
right to seek an abortion. As the District Court recognized,
"there are parents who would obstruct, and perhaps altogether
prevent, the minor's right to go to court." Baird Ill, 450 F.
Supp., at 1001. There is no reason to believe that this would
be so in the majority of cases where consent is withheld. But
many parents hold strong views on the subject of abortion, and
young pregnant minors, especially those living at home, are
particularly vulnerable to their parents' efforts to obstruct
both an abortion and their access to court. It would be unrealistic,
therefore, to assume that the mere existence of a legal
right to seek relief in superior court provides an effective
avenue of relief for some of those who need it the most.
We conclude, therefore, that under state regulation such as
that undertaken by Massachusetts, every minor must have the
opportunity-if she so desires-to go directly to a court without
first consulting or notifying her parents. If she satisfies
the court that she is mature and well enough informed to
make intelligently the abortion decision on her own, the
court must authorize her to act without parental consultation
or consent. If she fails to satisfy the court that she is competent
to make this decision independently, she must be permitted
to show that an abortion nevertheless would be in her
judicial approval is obtained, however, the doctor is protected from a
subsequent claim that the circumstances did not warrant his reliance on
the mature minor rule, a.nd, of course, the minor patient is afforded advance
protection against a misapplication of the rule." Id., at 752, 360
N. E. 2d, at 295. "We conclude that, apart from statutory limitations
which are constitutional, where the best interests of a minor will be
served by not notifying his or her parents of intended medical treatment
and where the minor is capable of giving informed consent to that treatment,
the mature minor rule applies in this Commonwealth." Id., at 754,
360 N. E. 2d, at 296. The Supreme Judicial Court held that the ~nmmonlaw
mature minor rule was inapplicable to abortions because it had been
legislatively superseded by § 12S.
648 OCTOBER TERM, 1978
Opinion of PowELL, J. 443 U.S.
best interests. If the court is persuaded that it is, the court
must authorize the abortion. If, however, the court is not
persuaded by the minor that she is mature or that the abortion
would be in her best interests, it may decline to sanction
the operation.
There is, however, an important state interest in encouraging
a family rather than a judicial resolution of a minor's
abortion decision. Also, as we have observed above, parents
naturally take an interest in the welfare of their childrenan
interest that is particularly strong where a normal family
relationship exists and where the child is living with one or
both parents. These factors properly may be taken into
account by a court called upon to determine whether an abortion
in fact is in a minor's best interests. If, all things considered,
the court determines that an abortion is in the minor's
best interests, she is entitled to court authorization without
any parental involvement. On the other hand, the court may
deny the abortion request of an immature minor in the absence
of parental consultation if it concludes that her best interests
would be served thereby, or the court may in such a case defer
decision until there is parental consultation in which the court
may participate. But this is the full extent to which parental
involvement may be required.28 For the reasons stated above,
the constitutional right to seek an abortion may not be unduly
burdened by state-imposed conditions upon initial access to
court.
(2)
.Section 12S requires that both parents consent to a minor's
abortion. The District Court found it to be "custom" to perform
other medical and surgical procedures on minors with
the consent of only one parent, and it concluded that "nothing
about abortions ... requires the minor's interest to be treated
28 Of course, if the minor consults with her parents voluntarily and they
withhold consent, she is free to seek judicial authorization for the abortion
immediately.
BELLOTTI v. BAIRD 649
622 Opinion of PowELL, J.
differently." Baird I, 393 F. Supp., at 852. See Baird III,
mpra, at 1004 n. 9.
We are not persuaded that, as a general rule, the requirement
of obtaining both parents' consent unconstitutionally
burdens a minor's right to seek an abortion. The abortion
decision has implications far broader than those associated
with most other kinds of medical treatment. At least when
the parents are together and the pregnant minor is living at
home, both the father and mother have an interest-one
normally supportive-in helping to determine the course that
is in the best interests of a daughter. Consent a.nd involvement
by parents in important decisions by minors long have
been recognized as protective of their immaturity. In the
case of the abortion decision, for reasons we have stated, the
focus of the parents' inquiry should be the best interests of
their daughter. As every pregnant minor is entitled in the
first instance to go directly to the court for a judicial determination
without prior parental notice, consultation, or consent,
the general rule with respect to parental consent does not
unduly burden the constitutional right. Moreover, where
the pregnant minor goes to her parents and consent is denied,
she still must have recourse to a prompt judicial determination
of her maturity or best interests.29
(3)
Another of the questions certified by the District Court to
the Supreme Judicial Court was the following: "If the superior
court finds that the minor is capable [ of making], and has,
in fact, made and adhered to, an informed and reasonable decision
to have an abortion, may the court refuse its consent
based on a finding that a parent's, or its own, contrary deci-
29 There will be cases where the pregnant minor has received approval
of the abortion decision by one parent. In that event, the parent can
support the daughter's request for a prompt judicial determination, and
the parent's support should be given great, if not dispositive, weight.
650 OCTOBER TERM, 1978
Opinion of PowELL, J. 443 U.S.
sion is a better one?" Attorney General, 371 Mass., at 747
n. 5, 360 N. E. 2d, at 293 n. 5. To this the state court
answered:
"[WJ e do not view the judge's role as limited to a determination
that the minor is capable of making, and has
made, an informed and reasonable decision to have an
abortion. Certainly the judge must make a determination
of those circumstances, but, if the statutory role of
the judge to determine the best interests of the minor is
to be carried out, he must make a finding on the basis of
all relevant views presented to him. We suspect that the
judge will give great weight to the minor's determination,
if informed and reasonable, but in circumstances where
he determines that the best interests of the minor will
not be served by an abortion, the judge's determination
should prevail, assuming that his conclusion is supported
by the evidence and adequate findings of fact." / d., at
748, 360 N. E. 2d, at 293.
The Supreme Judicial Court's statement reflects the general
rule that a State may require a minor to wait until the age of
majority before being permitted to exercise legal rights independently.
See n. 23, supra. But we are concerned here
with the exercise of a constitutional right of unique character.
See supra, at 642---643. As stated above, if the minor satisfies
a court that she has attained sufficient maturity to make a
fully informed decision, she then is entitled to make her abortion
decision independently. We therefore agree with the District
Court that § 12S cannot constitutionally permit judicial
disregard of the abortion decision of a minor who has been
determined to be mature and fully competent to assess the
implications of the choice she has made.30
30 Appellees and intervenors have argued that § 12S violates the Eq,rnl
Protection Clause of the Fourteenth Amendment. As we have concluded
that the statute is constitutionally infirm for other reasons, there is no need
to consider this question.
BELLOTTI v. BAIRD 651
622 REHNQUIST, J., concurring
IV
Although it satisfies constitutional standards in large part,
§ 12S falls short of them in two respects: First, it permits
judicial authorization for an abortion to be withheld from a
minor who is found by the superior court to be mature and
fully competent to make this decision independently. Second,
it requires parental consultation or notification in every instance,
without affording the pregnant minor an opportunity
to receive an independent judicial determination that she is
mature enough to consent or that an abortion would be in
her best interests.31 Accordingly, we affirm the judgment of
the District Court insofar as it invalidates this statute and
enjoins its enforcement.82
Affirmed.
MR. JusTICE REHNQUIST, concurring.
I join the opinion of MR. JUSTICE POWELL and the judgment
of the Court. At such time as this Court is willing to
31 Section 12S evidently applies to all nonemergency abortions performed
on minors, without regard to the period in pregnancy during
which the procedure occurs. As the court below recognized, most abortions
are performed during the early stages of pregnancy, before the end of the
first trimester. See Baird III, 450 F. Supp., at 1001; Baird I, 393 F.
Supp., at 853. This coincides approximately with the pre-viability period
during which a pregnant woman's right to decide, in consultation with her
physician, to have an abortion is most immune to state intervention. See
Roe v. Wade, 410 U.S., at 164-165.
The propriety of parental involvement in a minor's abortion decision
does not diminish as the pregnancy progresses and legitimate concerns for
the pregnant minor's health increase. Furthermore, the opportunity for
direct access to court which we have described is adequate to safeguard
throughout pregnancy the constitutionally protected interests of a minor in
the abortion decision. Thus, although a significant number of abortions
within the scope of § 12S might be performed during the later stages of
pregnancy, we do not believe a different analysis of the statute is required
for them.
32 The opinion of l\iR. JusncE STEVENS, concurring in the judgment,
joined by three Members of the Court, characterizes this opinion as "ad652
OCTOBER TERM, 1978
STEVENS, J., concurring in judgment 443 U.S.
reconsider its earlier decision in Planned Parenthood of
Central Missouri v. Da.nforth, 428 U.S. 52 (1976), in which I
joined the opinion of MR. JUSTICE WHITE, dissenting in part,
I shall be more than willing to participate in that task. But
unless and until that time comes, literally thousands of judges
cannot be left with nothing more than the guidance offered by
a truly fragmented holding of this Court.
MR. JUSTICE STEVENS, with whom MR. JusTICE BRENNAN,
MR. JusTICE MARSHALL, and MR. JUSTICE BLACKMUN join,
concurring in the judgment.
In Roe v. Wade, 410 U. S. 113, the Court held that a
woman's right to decide whether to terminate a pregnancy is
visory" and the questions it addresses as "hypothetical." Apparently, this
is criticism of our attempt to provide some guidance as to how a Sta.te
constitutionally may provide for adult involvement-either by parentg or
a state official such as a judge-in the abortion decisions of minors. In
view of the importance of the issue raised, and the protracted litigation to
which these parties already have been subjected, we think it would be
irresponsible simply to invalidate § 12S without stating our views as to the
controlling principles.
The statute before us today is the same one that was here in Bellotti I .
The issues it presents were not then deemed "hypothetical." In a unanimous
opinion, we remanded the case with directions that appropriate
questions be certified to the Supreme Judicial Court of Massachusetts
"concerning the mea.ning of [§ 12SJ and the procedure it imposes." 428
U.S., at 151. We directed that this be done because, as stated in the opinion,
we thought the construction of § 128 urged by appellants would "avoid
or substantially modify the federal constitutional challenge to the statute."
Id., at 148. The central feature of § 12S was its provision that a statecourt
judge could make the ultimate decision, when necessary, as to the
exercise by a minor of the right to an abortion. See id., at 145. We held
that this "would be fundamentally different from a statute that creates a
'parental veto' [of the kind rejected in Danforth.]" Ibid. (foot.note
omitted). Thus, all Members of the Court agreed that providing for decisionmaking
authority in a judge was not the kind of veto power held
invalid in Danforth. The basic issues that were before us in Bellotti I
remain in the case, sharpened by the construction of § 12S by the Supreme
Judicial Court.
BELLOTTI v. BAIRD 653
622 STEVENS, J., concurring in judgment
entitled to constitutional protection. In Planned Parenthood
of Central Missouri v. Danforth, 428 U.S. 52, 72-75, the Court
held that a pregnant minor's right to make the abortion decision
may not be conditioned on the consent of one parent. I
am persuaded that these decisions require affirmance of the
District Court's holding that the Massachusetts statute is
unconstitutional.
The Massachusetts statute is, on its face, simple and
straightforward. It provides that every woman under 18
who has not married must secure the consent of both her
parents before receiving an abortion. "If one or both of the
mother's parents refuse such consent, consent may be obtained
by order of a judge of the superior court for good cause
shown." Mass. Gen. Laws Ann., ch. 112, § 12S (West Supp.
1979).
Whatever confusion or uncertainty might have existed as
to how this statute was to operate, see Bellotti v. Baird, 428
U. S. 132, has been eliminated by the authoritative construction
of its provisions by the Massachusetts Supreme Judicial
Court. See Baird v. Attorney General, 371 Mass. 741, 360
N. E. 2d 288 (1977). The statute was construed to require
that every minor who wishes an abortion must first seek the
consent of both parents, unless a parent is not available or
unless the need for the abortion constitutes "'an emergency
requiring immediate action.'" Id., at 750, 360 N. E. 2d, at
294. Both parents, so long as they are available, must also
receive notice of judicial proceedings brought under the statute
by the minor. In those proceedings, the task of the judge is
to determine whether the best interests of the minor will be
served by an abortion. The decision is his to make, even if
he finds "that the minor is capable of making, and has made,
an informed and reasonable decision to have an abortion."
Id., at 748, 360 N. E. 2d, at 293. Thus, no minor in Massachusetts,
no matter how mature and capable of informed
decisionmaking, may receive an abortion without the consent
'
I
I
I
:
I,
II
I ,
I
654 OCTOBER TERM, 1978
STEVENS, J., concurring in judgment 443 U.S.
of either both her parents or a superior court judge. In every
instance, the minor's decision to secure an abortion is subject
to an absolute third-party veto.1
In Planned Parenthood of Central Missouri v. Danforth,
supra, this Court invalidated statutory provisions requiring the
consent of the husband of a married woman and of one parent of
a pregnant minor to an abortion. As to the spousal consent,
the Court concluded that "we cannot hold that the State has
the constitutional authority to give the spouse unilaterally
the ability to prohibit the wife from terminating her pregnancy,
when the State itself lacks that right." 428 U. S., at
70. And as to the parental consent, the Court held that
"[j] ust as with the requirement of consent from the spouse,
so here, the State does not have the constitutional authority
to give a third party an absolute, and possibly arbitrary, veto
over the decision of the physician and his patient to terminate
the patient's pregnancy, regardless of the reason for withholding
the consent." Id., at 74. These holdings, I think,
equally apply to the Massachusetts statute. The differences
between the two statutes are few. Unlike the Missouri
statute, Massachusetts requires the consent of both of the
woman's parents. It does, of course, provide an alternative
in the form of a suit initiated by the woman in superior
court. But in that proceeding, the judge is afforded an
absolute veto over the minor's decisions, based on his judgment
of her best interests. In Massachusetts, then, as in
Missouri, the State has imposed an "absolute limitation on the
minor's right to obtain an abortion," id., at 90 (STEWART, J.,
concurring), applicable to every pregnant minor in the State
who has not married.
1 By affording such a veto, the Massachusetts statute does far more
than simply provide for notice to the parrnts. See post, at 657 (WHITE, J.,
dissenting). Neither Danforth nor this case determines the constitutionality
of a statute which does no more than require notice to the parents,
without affording them or any other third party an absolute veto.
BELLOTTI v. BAIRD 655
622 STEVENS, J., concurring in judgment
The provision of an absolute veto to a judge-or, potentially,
to an appointed administrator 2-is to me particularly
troubling. The constitutional right to make the abortion decision
affords protection to both of the privacy interests recognized
in this Court's cases: "One is the individual interest
in avoiding disclosure of personal matters, and another is the
interest in independence in making certain kinds of important
decisions." Whalen v. Roe, 429 U. S. 589, 599-600 (footnotes
omitted). It is inherent in the right to make the abortion
decision that the right may be exercised without public scrutiny
and in defiance of the contrary opinion of the sovereign or
other third parties. In Massachusetts, however, every minor
who cannot secure the consent of both her parents-which
under Danforth cannot be an absolute prerequisite to an abortion-
is required to secure the consent of the sovereign. As a
practical matter, I would suppose that the need to commence
judicial proceedings in order to obtain a legal abortion would
impose a burden at least as great as, and probably greater
than, that imposed on the minor child by the need to obtain
the consent of a parent.3 Moreover, once this burden is met,
the only standard provided for the judge's decision is the
best interest of the minor. That standard provides little real
guidance to the judge, and his decision must necessarily reflect
personal and societal values and mores whose enforcement
upon the minor-particularly when contrary to her own informed
and reasonable decision-is fundamentally at odds
2 See ante, at 643 n. 22.
3 A minor may secure the assistance of counsel in filing and prosecuting
her suit, but that is not guaranteed. The Massachusetts Supreme Judicial
Court in response to the question whether a minor, upon a showing of
indigency, may have court-appointed counsel, "construe[d] the statutes
of the Commonwealth to authorize the appointment of counsel or a
guardian ad !item for an indigent minor at public expense, if necessary,
if the judge, in his discretion, concludes that the best interests of the minor
would be served by such an appointment." Baird v. Attorney General,
371 Mass. 741, 764, 360 N. E. 2d 288, 301 (1977) (emphasis added).
656 OCTOBER TERM, 1978
WHITE, J., dissenting 443 U.S.
with privacy interests underlying the constitutional protection
afforded to her decision.
In short, it seems to me that this litigation is governed by
Danforth; to the extent this statute differs from that in Danforth,
it is potentially even more restrictive of the constitutional
right to decide whether or not to terminate a pregnancy.
Because the statute has been once authoritatively construed
by the Massachusetts Supreme Judicial Court, and because it
is clear that the statute as written and construed is not constitutional,
I agree with MR. JusTICE PowELL that the District
Court's judgment should be affirmed. Because his opinion
goes further, however, and addresses the constitutionality of
an abortion statute that Massachusetts has not enacted, I
decline to join his opinion.4
MR. JUSTICE WHITE, dissenting.
I was in dissent in Planned Parenthood of Central Missouri
v. Danforth, 428 U. S. 52, 94---95 ( 1976), on the issue of the
validity of requiring the consent of a parent when an unmarried
woman under 18 years of age seeks an abortion. I continue
to have the views I expressed there and also agree with
much of what MR. JUSTICE STEVENS said in dissent in that
4 Until and unless Massachusetts or another State enacts a less restrictive
statutory scheme, this Court has no occasion to render an advisory
opinion on the constitutionality of such a scheme. A real statute-rather
than a mere outline of a possible statute-and a real case or controversy
may well present questions that appear quite different from the hypothetical
questions MR. JUSTICE PowELL has elected to address. Indeed, there
is a certain irony in his suggestion that a statute that is intended to vindicate
"the special interest of the State in encouraging an unmarried pregnant
minor to seek the advice of her parents in making the important
decision whether or not to bear a child," see ante, at 639, need not require
notice to the parents of the minor's intended decision. That irony makes
me wonder whether any legislature concerned with parental consultation
would, in the absence of today's advisory opinion, have enacted a statute
comparable to the one my Brethren have discussed.
i
'
I
i
I
I
II
....
BELLOTTI v. BAIRD 657
622 WHITE, J., dissenting
case. Id., at 101-105. I would not, therefore, strike down
this Massachusetts law.
But even if a parental consent requirement of the kind
involved in Danforth must be deemed invalid, that does not
condemn the Massachusetts law, which, when the parents
object, authorizes a judge to permit an abortion if he concludes
that an abortion is in the best interests of the child.
Going beyond Danforth, the Court now holds it unconstitutional
for a State to require that in all cases parents receive
notice that their daughter seeks an abortion and, if they
object to the abortion, an opportunity to participate in a
hearing that will determine whether it is in the "best interests"
of the child to undergo the surgery. Until now, I would have
thought inconceivable a holding that the United States Constitution
forbids even notice to parents when their minor child
who seeks surgery objects to such notice and is able to convince
a judge that the parents should be denied participation
in the decision.
With all due respect, I dissent.
:
I
I
I
658 OCTOBER TERM, 1978
Syllabus 443 U.S.
WASHINGTON ET AL. v. WASHINGTON STATE
COMMERCIAL PASSENGER FISHING
VESSEL ASSOCIATION ET AL.
CERTIORARI TO THE SUPREME COURT OF WASHINGTON
No. 77-983. Argued February 28, 1979-Decided July 2, 1979*
In 1854 and 1855, the United States entered into a series of treaties with
oertain Indian tribes whereby the Indians relinquished their interest in
certain lands in what is now the State of Washington in exchange for
monetary payments, certain relatively small parcels of land reserved for
their exclusive use, and other guarantees, including protection of their
"right of taking fish at usual and accustomed grounds and stations ...
in common with all citizens of the Territory." The principal question
in this extensive litigation concerns the character of the treaty right to
take fish. In 1970, the United States, on its own behalf and as trustee
for seven Indian tribes, brought suit against the State of Washington in
Federal District Court, seeking an interpretation of the treaties and an
injunction requiring the State to protect the Indians' share of runs of
anadromous fish. At various stages of the proceedings, additional tribes,
the State Departments of Fisheries and Game, and a commercial fishing
group were joined as parties. The District Court held that under the
treaties, the Indians are currently entitled to a 45% to 50% share of
the harvestable fish passing through their J:1ecognized tribal fishing
grounds in the case area, to be calculated on a river-by-river, run-by-run
basis, subject to certain adjustments. With a slight modification of one
of the adjustments, the Court of Appeals affirmed, and this Court denied
certiorari. Pursuant to the District Court's injunction, the Department
of Fisheries promulgated regulations protecting the Indians' treaty rights,
but the State Supreme Court, in two cases ( consolidated here in No.
77- 983), ruled that the Fisheries Department could not comply with the
federal injunction, holding, inter alia, that, as a matter of federal law,
the treaties did not give the Indians a right to a share of the fish runs.
*Together with Washington et al. v. Puget Sound Gillnetters Assn. et al.,
also on certiorari to the same court (see this Court's Rule 23 (5)); and
No. 78-119, Washington et al. v. United States et al., and No. 78--139, Puget
Sound Gillnetters Assn. et al. v. United States District Court for the Western
District of Washington (United States et al., Real Parties in Interest),
on certiorari to the United States Court of Appeals for the Ninth Circuit.
-
WASHINGTON v. FISHING VESSEL ASSN. 659
658 Syllabus
The District Court then entered a series of orders enabling it directly
to supervise those aspects of the State's fisheries necessary to the preservation
of treaty fishing rights. The District Court's power to take such
direct action and, in doing so, to enjoin persons who were not parties to
the proceedings was affirmed by the Court of Appeals. That court,
in a separate opinion, also held that regulations of the International
Pacific Salmon Fisheries Commission (IPSFC) posed no impediment to
the District Court's interpretation of the treaty language and to its
enfor.cement of that interpretation.
Held:
1. The language of the treaties securing a "right of taking fish ... in
r,ommon with all citizens of the Territory" was not intended merely to
guarantee the Indians access to usual and accustomed fishing sites and
an "equal opportunity" for individual Indians, along with non-Indians,
to try to catch fish, but instead secures to the Indian tribes a right to
harvest a share of each run of anadromous fish that passes through
tribal fishing areas. This conclusion is mandated by a fair appraisal of
the purpose of the treaty negotiations, the language of the treaties, and,
particularly, this Court's prior decisions construing the treaties. United
State v. Winans, 198 U. S. 371; Puyallup Tribe v. Washington Game
Dept., 391 U. S. 392 (Puyallup I); Washington Game De-pt. v. Puyallup
Tribe, 414 U. S. 44 (Puyallup II); Puyallup Tribe v. Washington
Game Dept., 433 U.S. 165 (Puyallup Ill). Pp. 674--685.
2. An equitable measure of the common right to take fish should
initially divide the harvestable portion of each run that passes through
a "usual and accustomed" place into approximately equal treaty and
nontreaty shares, and should then reduce the treaty share if tribal needs
may be satisfied by a lesser amount. Cf. PuyaUup III, supra. Although
the District Court's exercise of its discretion, as slightly modified by the
Court of Appeals, is in most respects unobjectionable, the District Court
erred in excluding fish taken by the Indians on their reservations from
their share of the runs, and in excluding fish caught for the Indians'
ceremonial and subsistence needs. Pp. 685-689.
3. The Convention of May 26, 1930, whereby Canada and the United
States agreed that the catch of Fraser River sahnon should be equally
divided between Canadian and American fishermen, subject to regulations
proposed by the IPSFC for approval by both countries, does not
pre-empt the Indians' fishing rights under the treaties with respect to
Fraser River salmon runs passing through certain "usual and accustomed"
places of treaty tribes. Pp. 689-692.
4. Any state-law prohibition against complianoe with the District
Court's decree cannot survive the command of the Supremacy Clause,
I
i
660 OCTOBER TERM, 1978
Syllabus 443 U.S.
and the State Game and Fisheries Departments, as parties to this litigation,
may be ordered to prepare a set of rules that will implement the
court's interpretation of the parties' rights even if state law withholds
from them the power to do so. Cf. Puyallup Ill, supra. Whether or
not the Game and Fisheries Departments may be ordered actually to
promulgate regulations having effect as a matter of state law, the District
Court may assume direct supervision of the fisheries if state recalcitrance
or state-law barriers should be continued. If the spirit of cooperation
motivating the State Attorney General's representation to this
Court that definitive resolution of the basic federal question of construction
of the treaties will allow state compliance with federal-court orders
is not confirmed by the conduct of state officials, the District Court has
the power to undertake the necessary remedial steps and to enlist the
aid of appropriate federal law enforcement agents in carrying out those
steps. Pp. 692-696.
No. 78-119, 573 F. 2d 1118, affirmed, and 573 F. 2d 1123, vacated and
remanded; No. 77- 983, 88 Wash. 2d 677, 565 P. 2d 1151 (first case),
and 89 Wash. 2d 276, 571 P. 2d 1373 (second case), vacated and remanded;
No. 78-139, 573 F. 2d 1123, vacated and remanded.
STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J.,
and BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined and in
Parts I, II, and III of which STEWART, PowELL, and REHNQUIST, JJ.,
joined. PoWELL, J., filed an opinion dissenting in part, in which STEWART
and REHNQUIST, JJ., joined, post, p. 696.
Slade Gorton, Attorney General of Washington, argued the
cause for the State of Washington. With him on the briefs
were Edward B. Mackie, Deputy Attorney General, James M.
Johnson, Senior Assistant Attorney General, and Timothy R.
Malone, Assistant Attorney General. Philip A. Lacovara
argued the cause for the Puget Sound Gillnetters Association
et al. With him on the briefs were Charles E. Yates, Douglas
Fryer, Joseph T. Mijich, and Gerald Goldman. Richard W.
Pierson filed a brief for the Washington State Commercial
Passenger Fishing Vessel Association in all cases.
Louis F. Claiborne argued the cause for the United States.
With him on the brief were Solicitor General M cCree, Assistant
Attorney General Moorman, Deputy Solicitor General
WASHINGTON v. FISHING VESSEL ASSN. 661
658 Opinion of the Court
Barnett, and Kathryn A. Oberly. Mason D. Morisset argued
the cause for the Lummi Indian Tribe et al. With him on the
brief were Steven S. Anderson, Thomas P. Schlosser, Alan C.
Stay, Robert Pelcyger, Daniel A. Raas, William H. Rodgers, Jr.,
and John Clinebell. Michael Taylor filed a brief for the
Quinault Indian Nation. James B. Hovis filed a brief for the
Yakim.a Nation, respondent in Nos. 78-119 and 78-139.
Dennis C. Karnopp and Douglas Nash filed a brief for the
Confederated Tribes of the Warm Springs Reservation Oregon
et al., respondents in Nos. 78-119 and 78-139.t
MR. JusncE STEVENS delivered the opinion of the Court.
To extinguish the last group of conflicting claims to lands
lying west of the Cascade Mountains and north of the Columbia
River in what is now the Sta~e of Washington,1 the
United States entered into a series of treaties with Indian
tBriefs of amici curiae urging reversal in No. 77-983 and aflirmance in
Nos. 78-119 and 78-139 were filed by David H. Getch~, Burt Neuborne,
and Stephen L. Pevar for the American Civil Liberties Union et al.; and
by Arthur Lazarus, Jr., for the Nez Perce Tribe of Idaho.
Briefs of amici curiae were filed by Frederick L. Noland for the American
Friends Service Committee et al.; by J. Carl Mundt and Henry H.
Happel Ill for the American Institute of Fishery Research Biologists;
by Don S. Willner for the Northwest Steelhead and Salmon Council of
Trout Unlimited; by Ronald A. Zumbrun and John H. Findley for the
Pacific Legal Foundation; and by Paul W. Steere for the Pacific Seafood
Processors Association.
1 By three earlier treaties the United States had extinguished the conflicting
claims of Spain in 1820 and Russia in 1824, 8 Stat. 252, 302, and
Great Britain in 1846, 9 Stat. 869. In 1848, Congress established the
Oregon Territory, 9 Stat. 323; that statute provided that nothing contained
therein "shall be construed to impair the rights of perrnn or property now
pertaining to the Indians and said Territory, so long as such rights shall
remain unextinguished by treaty between the United States and such
Indians." In 1850, Congress authorized the negotiation of treaties to
extinguish the Indian claims to land lying west of the Cascade Mountains,
9 Stat. 437. In 1853, the Washington Territory, which includes the present
State of Washington, was organized out of the Oregon Territory.
Ch. 90, 10 Stat. 172.
662 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
tribes in 1854 and 1855.2 The Indians relinquished their
interest in most of the Territory in exchange for monetary
payments. In addition, certain relatively small parcels of
land were reserved for their exclusive use, and they were
afforded other guarantees, including protection of their "right
of taking fish, at all usual and accustomed grounds and stations
... in common with all citizens of the Territory." 10
Stat. 1133.
The principal question presented by this litigation concerns
the character of that treaty right to take fish. Various other
issues are presented, but their disposition depends on the
answer to the principal question. Before answering any of
these questions, or even stating the issues with more precision,
we shall briefly describe the anadromous fisheries of the Pacific
Northwest, the treaty negotiations, and the principal components
of the litigation complex that led us to grant these
three related petitions for certiorari.
I
Anadromous fish hatch in fresh water, migrate to the ocean
where they are reared and reach mature size, and eventually
complete their life cycle by returning to the fresh-water place
of their origin to spawn. Different species have different life
cycles, some spending several years and traveling great distances
in the ocean before returning to spawn and some even
returning to spawn on more than one occasion before dying.
2 Treaty of Medicine Creek (10 Stat. 1132); Treaty of Point Elliott
(12 Stat. 927); Treaty of Point No Point (12 Stat. 933); Treaty of
Neah Bay (12 Stat. 939); Treaty with the Yakamas (12 Stat. 951); and
Treaty of Olympia (12 Stat. 971). The parties to the treaties and to
this litigation include these Indian tribes: Hoh; Lower Elwha Band of
Clallam Indians; Lummi; Makah; Muckleshoot; Nisqually; Nooksack;
Port Gamble Band of Clallam Indians; Puyallup; Quileute; Quinault;
Sauk-Suiattle; Skokomish; Squaxin Island; Stillaguamish; .Suquamish;
Swinomish; Tulalip; Upper Skagit; and Yakima Nation. 384 F. Supp.
312, 349; 459 F. Supp. 1020, 1028.
WASHINGTON v. FISHING VESSEL ASSN. 663
658 Opinion of the Court
384 F. Supp. 312, 384, 405. See Comment, State Power and
the Indian Treaty Right to Fish, 59 Calif. L. Rev. 485, 501,
and n. 99 ( 1971). The regular habits of these fish make their
"runs" predictable; this predictability in turn makes it possible
for both fishermen and regulators to forecast and to control
the number of fish that will be caught or "harvested." Indeed,
as the terminology associated with it suggests, the management
of anadromous fisheries is in many ways more akin to the
cultivation of "crops"-with its relatively high degree of predictability
and productive stability, subject mainly to sudden
changes in climatic patterns-than is the management of most
other commercial and sport fisheries. 384 F. Supp., at 351,
384.
Regulation of the anadromous fisheries of the Northwest is
nonetheless complicated by the different habits of the various
species of salmon and trout involved, by the variety of methods
of taking the fish, and by the fact that a run of fish may
pass through a series of different jurisdictions.3 Another complexity
arises from the fact that the State of Washington has
attempted to reserve one species, steelhead trout, for sport fishing
and therefore conferred regulatory jurisdiction over that
species upon its Department of Game, whereas the various
species of salmon are primarily harvested by commercial
fishermen and are managed by the State's Department of
Fisheries. Id., at 383-385, 389-399. Moreover, adequate
regulation not only must take into account the potentially
3 For example, pink and sockeyr salmon hatched in Canada's Fraser
River pass through the Strait of Juan de Fuca in the State of Washington,
swim out into international waters on the open sea, and return
through the strait to the river, passing on the way the usual and accustomed
fishing grounds of the Makah Indian Tribe once again in Washington.
384 F. Supp., at 392. During much of the return run during
which they pass through international, state, and Canadian waters, the
fish are in optimum harvest.able condition. See also id., at 386-387,
regarding the Puget Sound and Olympic Peninsula origin chinook salmon
tha.t pass through international waters, as well as those of Washington,
Cana.cl.a., and Alaska.
1
I
664 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
conflicting interests of sport and commercial fishermen, as
well as those of Indian and nontreaty fishermen, but also must
recognize that the fish runs may be harmed by harvesting
either too many or too few of the fish returning to spawn.
Id., at 384, 390.
The anadromous fish constitute a natural resource of great
economic value to the State of Washington. Millions of
salmon, with an average weight of from 4 or 5 to about
20 pounds, depending on the species, are harvested each year.
Over 6,600 nontreaty fishermen and about 800 Indians make
their livelihood by commercial fishing; moreover, some 280,000
individuals are licensed to engage in sport fishing in the
State.' Id., at 387. See id., at 399.
II
One hundred and twenty-five years ago when the relevant
treaties were signed, anadromous fish were even more important
to most of the population of western Washington than
they are today. At that time, about three-fourths of the
approximately 10,000 inhabitants of the area were Indians.
Although in some respects the cultures of the different tribes
varied-some bands of India~, for example, had little or no
tribal organization 5 while others, such as the Makah and the
Yakima, were highly organized-all of them shared a vital
and unifying dependence on anadromous fish. Id., at 350.
See Puyallup Tribe v. Washington Game Dept., 433 U. S. 165,
179 (BRENNAN, J., dissenting in part).
4 Although in terms of the number and weight of the fish involved, the
commercial salmon catch is far more substantial than the 11ecreational
steelhead catch, the latter apparently provides the State with more
revenue than the former, involves more people, and has accordingly been
a more controversial political issue within the State. See id., at 399.
5 lndeed, the record shows that the territorial officials who negotiated
the treaties on behalf of the United States took the initiative in aggregating
certain loose bands into designated tribes and even appointed many
of the chiefs who signed the treaties. Id., at 354-355, 366.
WASHINGTON v. FISHING VESSEL ASSN. 665
658 Opinion of the Court
Religious rites were intended to insure the continual return
of the salmon and the trout; the seasonal and geographic variations
in the runs of the different species determined the
movements of the largely nomadic tribes. 384 F. Supp., at
343, 351,382; 459 F. Supp. 1020, 1079; 520 F. 2d 676, 682. Fish
constituted a major part of the Indian diet, was used for commercial
purposes,6 and indeed was traded in substantial volume.'
The Indians developed food-preservation techniques
6 "From the earliest known times, up to and beyond the time of the ...
treaties, the Indians comprising each of the treating tribes and bands
were primarily a fishing, hunting and gathering people dependent almost
entirely upon the natural animal and vegetative resources of the region
for their subsistence and culture. They were heavily dependent upon
anadromous fish for their subsistence and for trade with other tribes and
later with the settlers. Anadromous fish was the great staple of their
diet and livelihood. They cured and dried large quantities for year
around use, both for themselves and for others through sale, trade, barter
and employment." Id., at 406. See also 520 F. 2d 676, 682 ("The
Indians west of the Cascade Mountains were known as 'fish-eaters'; their
diets, social customs, and religious pructices centered on the capture of
fish").
7 "At the time of the treaties, trade was carried on among the Indian
groups throughout a wide geographic area. Fish was a basic element of
the trade. There is some evidence that the volume of this intra-tribal
trade was substantial, but it is not possible to compare it with the
volume of present day commercial trading in salmon. Such trading was,
however, important to the Indians at the time of the treaties. In addition
to pot.latching, which is a system of exchange between communities
in a social context often typified by competit.ive gifting, there was a considerable
amount of outright sale and trade beyond the local community
and sometimes over great distances. In the decade immediately preceding
the treaties, Indian fishing increased in order to accommodate increased
demand for l~al non-Indian consumption and for ,export, as well as to
provide money for purchase of introduced commodities and to obtain substitute
non-Indian goods for native products which were no longer available
because of the non-Indian movement into the area. Those involved
in negotiating the treaties recognized the contribution that Indian fishermen
made to the territorial economy because Indians caught most of the
non-Indians' fish for them, plus clams and oysters." 384 F. Supp., at
666 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
that enabled them to store fish throughout the year and to
transport it over great distances. 384 F. Supp., at 351.8
They used a wide variety of methods to catch fish, including
the precursors of all modern netting techniques. Id., at 351,
352, 362, 368, 380. Their usual and accustomed fishing places
were numerous and were scattered throughout the area, and
included marine as well as fresh-water areas. Id., at 353, 360,
368-369.
All of the treaties were negotiated by Isaac Stevens, the
first Governor and first Superintendent of Indian Affairs of
the Washington Territory, and a small group of advisers. Contemporaneous
documents make it clear that these people
recognized the vital importance of the fisheries to the Indians
and wanted to protect them from the risk that non-Indian
settlers might seek to monopolize their fisheries. Id., at 355,
363.9 There is no evidence of the precise understanding the
351-352 ( citations to record omitted). See also id., at 364 (Makah Tribe
"maintained from time immemorial a thriving economy based on commerce"
in "ma.rine resources").
8 In late December 1854, one territorial official wrote the Commissioner
of Indian Affairs that "[tJhe Indians on Puget Sound ... form a very
considerable portion of the trade of the Sound. . . . They catch most of
our fish, supplying not only our people with clams and oysters, but salmon
to those who cure and export it." App. 329.
9 Governor Stevens in discussing the policy that he intended to pursue
during negotiations with the tribes, in a letter dated September 16, 1854,
to the Commissioner of Indian Affairs, said:
"The subject of the right of fisheries is one upon which legislation is demanded.
It never could have been the intention of Congress that Indians
should be excluded from their ancient fisheries; but, as no condition
to this effect was inserted in the donation act, the question has been raised
whother persons taking claims, including such fisheries, do not possess
the right of monopolizing. It is therefore desirable that this question
should be set at rest by law." Id., at 327. See also id., at 332.
The Governor's concern with protecting the Indians' continued exploitation
of their accustomed fisheries was reflected in his assurances to the
Indians during the treaty negotiations that under tho treaties they would
be able to go outside of reservation areas for the purpose of harvesting
WASHINGTON v. FISHING VESSEL ASSN. 667
658 Opinion of the Court
Indians had of any of the specific English terms and phrases
in the treaty.10 Id., at 356. It is perfectly clear, however,
that the Indians were vitally interested in protecting their
right to take fish at usual and accustomed places, whether on
or off the reservations, id., at 355, and that they were invited
by the white negotiators to rely and in fact did rely heavily on
the good faith of the United States to protect that right.11
Referring to the negotiations with the Yakima Nation, by
far the largest of the Indian tribes, the District Court found:
"At the treaty council the United States negotiators
promised, and the Indians understood, that the Yakimas
would forever be able to continue the same off-reservation
food gathering and fishing practices as to time, place,
method, species and extent as they had or were exercising.
The Y akimas relied on these promises and they formed
a material and basic part of the treaty and of the Indians'
fish. His statement at the signing of the Treaty of Point Elliott on
Monday, January 22, 1855, was characteristic:
"We want to place you in homes where you can cultivate the soil, using
potatoes and other articles of food, and where you will be able to pass in
canoes over the waters of the Sound and catch fish and back to the mountains
to get roots and berries." Id., a.t 329-330.
10 Indeed, the translation of the English words was difficult because the
interpre1:€r used a. "Chinook jargon" to explain treaty terms, and tha.t
jargon not only was imperfectly (and often not) understood by many of
the Indians but also was composed of a simple 300-word commercial
vocabulary that did not include words corresponding to many of the
treaty terms. 384 F. Supp., at 330, 355-356, 364, 381; 520 F. 2d, at 683.
11 For example, Governor Stevens made the following statement to the
Indians gathered at Point-No-Point to negotiate the treaty bearing that
name:
"Are you not my children and also children of t.he Great Father? What
will I not do for my children, and what will you not for yours? Would
you not die for them? This paper is such as a man would give to his
children and I will tell you why. This paper gives you a home. Does
not a father give his children a home? . . . This paper secures your fish?
Does not a father give food to his children?" App. 330-331.
668 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
understanding of the meaning of the treaty." Id., at 381
( record citations omitted).
See also id., at 363 (similar finding regarding negotiations with
the Makah Tribe).
The Indians understood that non-Indians would also have
the right to fish at their off-reservation fishing sites. But this
was not understood as a significant limitation on their right
to take fish.12 Because of the great abundance of fish and
the limited population of the area, it simply was not contemplated
that either party would interfere with the other's
fishing rights. The parties accordingly did not see the need
and did not intend to regulate the taking of fish by either
Indians or non-Indians, nor was future regulation foreseen.
Id., at 334, 355, 357.
Indeed, for several decades after the treaties were signed,
Indians continued to harvest most of the fish taken from
the waters of Washington, and they moved freely about the
Territory and later the State in search of that resource. Id.,
at 334. The size of the fishery resource continued to obviate
the need during the period to regulate the taking of fish by
either Indians or non-Indians. Id., at 352. Not until major
economic developments in canning and processing occurred
in the last few years of the 19th century did a significant non-
Indian fishery develop.13 It was as a consequence of these
12 "There is nothing in the written records of the treaty councils or other
accounts of discussions with the Indians to indicate that the Indians were
told that their existing fishing activities or tribal control over them would
in any way be restricted or impaired by the treaty. The most that
could be implied from the treaty context is that the Indians may have
been told or understood that non-Indians would be allowed to take fish
at the Indian fishing locations along with the Indians." 384 F. Supp.,
at 357.
13 "Tho non-Indian commercial fishing industry did not fully develop in
the case area until after the invention and perfection of the canning process.
The first salmon cannery in Puget Sound began in 1877 with a small
operation at Mukilteo. Large-scale development of the commercial fishWASHINGTON
v. FISHING VESSEL ASSN. 669
658 Opinion of the Court
developments, rather than of the treaty, that non-Indians
began to dominate the fisheries and eventually to exclude
most Indians from participating in it-a trend that was encouraged
by the onset of of ten discriminatory state regulation
in the early decades of the 20th century. Id., at 358, 394,
404, 407; 459 F. Supp., at 1032.14
In sum, it is fair to conclude that when the treaties were
negotiated, neither party realized or intended that their agreement
would determine whether, and if so how, a resource that
had always been thought inexhaustible would be allocated
between the native Indians and the incoming settlers when it
later became scarce.
III
Unfortunately, that resource has now become scarce, and
the meaning of the Indians' treaty right to take fish has accordingly
become critical. The United States Court of
Appeals for the Ninth Cir.cuit and the Supreme Court of the
State of Washington have issued conflicting decisions on its
meaning. In addition, their holdings raise important ancillary
questions that will appear from a brief review of this
extensive litigation.
The federal litigation was commenced in the United States
District Court for the Western District of Washington in 1970.
The United States, on its own behalf and as trustee for seven
Indian tribes, brought suit against the State of Washington
eries did not commence in Puget Sound until the mid-1890's. The largescale
development of the commercial fishing industry in the last decades
of the Nineteenth Century brought about the need for regulation of fish
harvests." Id., at 352 (record citations omitted). See also id., at 406.
14 The impact of illegal regulation, see Tulee v. Wa.shington, 315 U. S.
681, and of illegal exclusionary tactics by non-Indians, see United States
v. Winans, 198 U. S. 371, in large measure accounts for the decline of the
Indian fisheries during this century and renders that decline irrelevant
to a det-Ormination of the fishing rights the Indians assumed they were
securing by initialing the treaties in the middle of the last century.
670 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
seeking an interpretation of the treaties and an injunction
requiring the State to protect the Indians' share of the anadromous
fish runs. Additional Indian tribes, the State's Fisheries
and Game Departments, and one commercial fishing group,
were joined as parties at various stages of the proceedings,
while various other agencies and groups, including all of the
commercial fishing associations that are parties here, participated
as amici curiae. 384 F. Supp., at 327, 328, and n. 4;
459 F. Supp., at 1028.
During the extensive pretrial proceedings, four different
interpretations of the critical treaty language were advanced.
Of those, three proceeded from the assumption that the language
required some allocation to the Indians of a share of the
runs of fish passing through their traditional fishing areas
each year. The tribes themselves contended that the treaties
had reserved a pre-existing right to as many fish as their
commercial and subsistence needs dictated. The United
States argued that the Indians were entitled either to a 50%
share of the "harvestable" fish that originated in and returned
to the "case area" and passed through their fishing places,15
or to their needs, whichever was less. The Department of
Fisheries agreed that the Indians were entitled to "a fair and
equitable share" stated in terms of a percentage of the harvestable
salmon in the area; ultimately it proposed a share
of "one-third."
Only the Game Department thought the treaties provided
no assurance to the Indians that they could take some portion
15 The "harvestable" amount of fish is determined by subtracting from
the total number of fish in each run the number that must be allowed to
escape for conservation purposes.
The "case area" was defined by the District Court as
"that portion of the State of Washington west of the Cascade Mountains
and north of the Columbia River drainage area, and includes the American
portion of the Puget Sound watershed, the watersheds of the Olympic
Peninsula north of the Grays Harbor watershed, and the offshore waters
adjacent to those areas." 384 F. Supp., at 328.
WASHINGTON v. FISHING VESSEL ASSN. 671
658 Opinion of the Court
of each run of fish. That agency instead argued that the
treaties gave the Indians no fishing rights not enjoyed by nontreaty
fishermen except the two rights previously recognized
by decisions of this Court-the right of access over private
lands to their usual and accustomed fishing grounds, see
Seufert Bros. Co. v. United St.ates, 249 U. S. 194; United
States v. _Winans, 198 U. S. 371, and an exemption from the
payment of license fees. See Tulee v. Washington, 315 U. S.
681.
The District Court agreed with the parties who advocated
an allocation to the Indians, and it essentially agreed with the
United States as to what that allocation should be. It held
that the Indians were then entitled to a 45% to 50% share
of the harvestable fish that will at some point pass through
recognized tribal fishing grounds in the case area.16 The
share was to be calculated on a river-by-river, run-by-run
basis, subject to certain adjustments. Fish caught by Indians
for ceremonial and subsistence purposes as well as fish caught
within a reservation were excluded from the calculation of
the tribes' share.11 In addition, in order to compensate for
fish caught outside of the case area, i. e., beyond the State's
jurisdiction, the court made an "equitable adjustment" to
increase the allocation to the Indians. The court left it to
the individual tribes involved to agree among themselves on
how best to divide the Indian share of runs that pass through
the usual and accustomed grounds of more than one tribe, and
it postponed until a later date the proper accounting for
hatchery-bred fish. 384 F. Supp., at 416-417; 459 F. Supp.,
16 A factual dispute exists on the question of what percentage of the fish
in the case area actually passes through Indian fishing areas and is therefore
subject to the District Court's allocations. In the absence of any
relevant findings by the courts below, we are unable to express any view
on the matter.
17 Moreover, fish caught by individual Indians at off-reservation locations
that are not "usual and accustomed" sites, were treated as if they
had been caught by nontrea.ty fishermen. 384 F. Supp., at 410.
672 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
at 1129. With a slight modification,18 the Court of Appeals
for the Ninth Circuit affirmed, 520 F. 2d 676, and we denied
certiorari, 423 U. S. 1086.19
The injunction entered by the District Court required the
Department of Fisheries (Fisheries) to adopt regulations
protecting the Indians' treaty rights. 384 F. Supp., at 416-
417. After the new regulations were promulgated, however,
they were immediately challenged by private citizens in suits
commenced in the Washington state courts. The State Supreme
Court, in two cases that are here in consolidated form
in No. 77-983, ultimately held that Fisheries could not comply
with the federal injunction. Puget Sound Gillnetters Assn.
v. Moos, 88 Wash. 2d 677, 565 P. 2d 1151 (1977); Fishing
Vessel Assn. v. Tolle! son, 89 Wash. 2d 276, 571 P. 2d 1373
(1977).
As a matter of federal law, the state court first accepted the
Game Department's and rejected the District Court's interpretation
of the treaties and held that they did not give the Indians
a right to a share of the fish runs, and second concluded
that recognizing special rights for the Indians would violate
the Equal Protection Clause of the Fourteenth Amendment.
The opinions might also be read to hold, as a matter of state
18 The Court of Appeals held that fish caught by nonresidents of Washington
should be eliminated from the equitable adjustment for fish caught
beyond the State's jurisdiction. 520 F. 2d, at 689.
19 Despite our earlier denial of certiorari on the treaty interpretation
issue, we decline the Government's invitation to treat the matter as having
been finally adjudicated. Our earlier denial came a.t an interlocutory stage
in the proceedings-the District Court has retained continuing enforcement
jurisdiction over the case-so that we certainly are not required to treat
the earlier disposition as final for our purposes. Reece v. Georgia, 350
U. S. 85, 87. Moreover, the reason for our recent grant of certiorari on
the question remains because the state courts are-and, at least since the
State Supreme Court's decision in Department of Game v. Puyallup Tribe,
86 Wash. 2d 664, 548 P. 2d 10.58 (1976) , have been-on record as interpreting
the treaties involved differently from the federal courts. Accordingly,
there is strong reason not to treat it as final as a discretionary
matter.
WASHINGTON v. FISHING VESSEL ASSN. 673
658 Opinion of the Court
law, that Fisheries had no authority to issue the regulations
because they had a purpose other than conservation of the resource.
In this Court, however, the Attorney General of the
State disclaims the adequacy and independence of the statelaw
ground and argues that the state-law authority of Fisheries
is dependent on the answers to the two federal-law questions
discussed above. Brief for State of Washington 99.
See n. 34, infra. We defer to that interpretation, subject, of
course, to later clarification by the State Supreme Court. Because
we are also satisfied that the constitutional holding is
without merit,20 our review of the state court's judgment will
be limited to the treaty issue.
When Fisheries was ordered by the state courts to abandon
its attempt to promulgate and enforce regulations in compliance
with the federal court's decree-and when the Game
Department simply refused to comply-the District Court
entered a series of orders enabling it, with the aid of the
United States Attorney for the Western District of Washington
and various federal law enforcement agencies, directly to
supervise those aspects of the State's fisheries necessary to
the preservation of treaty fishing rights. 459 F. Supp. 1020.
The District Court's power to take such direct action and, in
doing so, to enjoin persons who were not parties to the proceeding
was affirmed by the United States Court of Appeals
20 The Washington Supreme Court held that the treaties would violate
equal protection principles if they provided fishing rights to Indians that
were not also available to non-Indians. The simplest answer to this
argument is that this Court has already held that these treaties confer
enforceable special benefits on signatory Indian tribes, e. g., Tulee v.
Washington, 315 U.S. 681; United States v. Winan.s, 198 U.S. 317, and
has repeatedly held that the peculiar semisovereign and constitutionally
recognized status of Indians justifies special treatment on their behalf
when rationally related to the Government's "unique obligation toward the
Indians." Morton v. Mancari, 417 U. S. 535, 555. See United States v.
Antelope, 430 U.S. 641; Antoine v. Washington, 420 U.S. 194. See also
Fishing Vessel Assn. v. Tollefson, 89 Wash. 2d 276, 287-288, 571 P. 2d
1373, 1379-1380 (1977) (Utter, J., dissenting).
674 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
for the Ninth Circuit. 573 F. 2d 1123. That court, in a
separate opinion, 573 F. 2d 1118, also held that regulations of
the International Pacific Salmon Fisheries Commission posed
no impediment to the District Court's interpretation of the
treaty language and to its enforcement- of that interpretation.
Subsequently, the District Court entered an enforcement
order regarding the salmon fisheries for the 1978 and subsequent
seasons, which, prior to our issuance of a writ of certiorari
to review the case, was pending on appeal in the Court
of Appeals. App. 486--490.
Because of the widespread defiance of the District Court's
orders, this litigation has assumed unusual significance. We
granted certiorari in the state and federal cases to interpret
this important treaty provision and thereby to resolve the
conflict between the state and federal courts regarding what,
if any, right the Indians have to a share of the fish, to address
the implications of international regulation of the fisheries in
the area, and t-0 remove any doubts about the federal court's
power to enforce its orders. 439 U. S. 909.
IV
The treaties secure a "right of taking fish." The pertinent
articles provide:
"The right of taking fish, at all usual and accustomed
grounds and stations, is further secured to said Indians, in
common with all citizens of the Territory, and of erecting
temporary houses for the purpose of curing, together with
the privilege of hunting, gathering roots and berries, and
pasturing their horses on open and unclaimed lands: Provided,
however, That they shall not take shell fish from
any beds staked or cultivated by citizens." 21
21 The language is quoted from Art. III of the Treaty of Medicine
Creek, 10 Stat. 1133. Identical, or almost identical, language is included
in each of the other treaties.
'
WASHINGTON v. FISHING VESSEL ASSN. 675
658 Opinion of the Court
At the time the treaties were executed there was a great
abundance of fish and a relative scarcity of people. No one
had any doubt about the Indians' capacity to take as many
fish as they might need. Their right to take fish could therefore
be adequately protected by guaranteeing them access to
usual and accustomed fishing sites which could be-and which
for decades after the treaties were signed were-comfortably
shared with the incoming settlers.
Because the sparse contemporaneous written materials refer
primarily to assuring access to fishing sites "in common with
all citizens of the Territory," the State of Washington and the
commercial fishing associations, having all adopted the Game
Department's original position, argue that it was merely access
that the negotiators guaranteed. It is equally plausible to
conclude, hmvever, that the specific provision for access was
intended to secure a greater right--a right to harvest a share
of the runs of anadromous fish that at the time the treaties
were signed were so plentiful that no one could question the
Indians' capacity to take whatever quantity they needed.
Indeed, a fair appraisal of the purpose of the treaty negotiations,
the language of the treaties, and this Court's prior construction
of the treaties, mandates that conclusion.
A treaty, including one between the United States and an
Indian tribe, is essentially a contract between two sovereign
nations. E.g., Lone Wolf v. Hitchcock, 187 U.S. 553. When
the signatory nations have not been at war and neither is the
vanquished, it is reasonable to assume that they negotiated as
equals at arm's length. There is no reason to doubt that this
assumption applies to the treaties at issue here. See 520 F.
2d, at 684.
Accordingly, it is the intention of the parties, and not solely
that of the superior side, tha.t must control any attempt to
interpret the treaties. When Indians are involved, this Court
has long given special meaning to this rule. It has held that
the United States, as the party with the presumptively su676
OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
perior negotiating skills and superior knowledge of the language
in which the treaty is recorded, has a responsibility to
avoid taking advantage of the other side. "[TJ he treaty
must therefore be construed, not according to the technical
meaning of its words to learned lawyers, but in the sense in
which they would naturally be understood by the Indians."
Jones v. Meehan, 175 U.S. 1, 11. This rule, in fact, has thrice
been explicitly relied on by the Court in broadly interpreting
these very treaties in the Indians' favor. Tulee v. Washington,
315 U. S. 681; Seufert Bros. Co. v. United States, 249
U. S. 194; United States v. Winans, 198 U. S. 371. See also
Washington v. Yakima Indian Nation, 439 U.S. 463,484.
Governor Stevens and his associates were well aware of the
"sense" in which the Indians were likely to view assurances
regarding their fishing rights. During the negotiations, the
vital importance of the fish to the Indians was repeatedly
emphasized by both sides, and the Governor's promises that
the treaties would protect that source of food and commerce
were crucial in obtaining the Indians' assent. See supra, at 666-
668. It is absolutely clear, as Governor Stevens himself said,
that neither he nor the Indians intended that the latter "should
be excluded from their ancient fisheries," see n. 9, supra, and
it is accordingly inconceivable that either party deliberately
agreed to authorize future settlers to crowd the Indians out of
any meaningful use of their accustomed places to fish. That
each individual Indian would share an "equal opportunity"
with thousands of newly arrived individual settlers is totally
foreign to the spirit of the negotiations.22 Such a "right,"
22 The State characterizes its interpretation of the treaty language as
assuring Indians and non-Indians an "equal opportunity" to take fish
from the State's waters. This appellation is misleading. In the first
place, even the State recognizes that the treaties provide Indians with
certain rights-i. e., the right to fish without a license and to cross private
lands-that non-Indians do not have. See Tulee v. Washington, 315 U.S.
681; Seufert Bros. Co. v. United States, 249 U. S. 194; United States v.
Winans, 198 U. 8. 371. See also Puyallup Tribe v. Wa.shington Game
WASHINGTON v. FISHING VESSEL ASSN. 677
658 Opinion of the Court
along with the $207,500 paid the Indians, would hardly have
been sufficient to compensate them for the millions of acres
they ceded to the Territory.
It is true that the words "in common with" may be read
either as nothing more than a guarantee that individual
Indians would have the same right as individual non-Indians
or as securing an interest in the fish runs themselves. If we
were to construe these words by reference to 19th-century
property concepts, we might accept the former interpretation,
although even "learned lawyers" of the day would probably
have offered differing interpretations of the three words.23
Dept., 433 U. S. 165. Whatever opportunities the treaties assure Indians
with respect to fish are admittedly not "equal" to, but are to some extent
greater than, those afforded other citizens. It is therefore simply
erroneous to suggest that the treaty language "confers upon non-Indians
precisely the same right to fish that it confers upon Indians." PowELL, J.,
dissenting, post, at 698.
Moreover, in light of the far superior numbers, capital resources, and
technology of the non-Indians, the concept of the Indians' "equal opportunity"
to take advantage of a scarce resource is likely in practice to
mean that the Indians' "right of taking fish" will net them virtually no
catch at all. For the "opportunity" is at best theoretical. Indeed, in
1974, before the District Court's injunction took effect, and while the
Indians were still operating under the ''equal opportunity" doctrine, their
take amounted to a.pproximately 2% of the total harvest of salmon and
trout in the treaty area. 459 F. Supp., at 1032.
23 The State argues that at common law a "common fishery" was
merely a nonexclusive right of access, see 3 J. Kent, Commentaries 412
(5th ed. 1844), and that the right of a fishery was appurtenant to specific
parcels of real property. The Stat,e does not suggest, however, that these
concepts were understood by, or explained to, the Indians. Indeed, there
is no evidence that Governor Stevens understood them, although one of
his advisers, George Gibbs, was a lawyer.
But even if we indulge in the highly dubious assumption that Gibbs was
learned in the intricacies of water law, that he incorporated them in the
treaties, and that he explained them fully to the Indians, the treaty
language would still be subject to the different interpretations presented
by the parties to this litigation. For in addition to "common fisheries,"
the "in common with" language was used in two other relevant senses
678 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
But we think greater importance should be given to the Indians'
likely understanding of the other words in the treaties
and especially the reference to the "right of taking fish"-a
right that had no special meaning at common law but that
must have had obvious significance to the tribes relinquishing
a portion of their pre-existing rights to the United States in
return for this promise. This language is particularly meaningful
in the context of anadromous fisheries-which were not
the focus of. the common law-because of the relative predictability
of the "harvest." In this context, it makes sense to
say that a party has a right to "take"-rather than merely the
"opportunity" to try to catch-some of the large quantities
of fish that will almost certainly be available at a given place
at a given time.
This interpretation is confirmed _by additional language in
the treaties. The fishing clause speaks of "securing" certain
fishing rights, a term the Court has previously interpreted as
synonymous with "reserving" rights previously exercised.
Winans, 198 U. S., at 381. See also New York ex rel. Kennedy
v. Becker, 241 U.S. 556, 563-564. Because the Indians had alduring
the period. First, a "common of fishery" meant a limited right,
acquired from the previously exclusive owner of certain fishing rights
(in this case the Indians), "of taking fish in common with certain others in
waters flowing through [the grantor's] land." J. Gould, Laws of Waters
§ 183 (3d ed. 1900) (emphasis added); see 3 Kent, supra, at 410. Under
that understanding of the language, it would hardly make sense that the
Indians effectively relinquished all of their fishing rights by granting a
merely nonexclusive right.
Even more to the point, the United States had previously used the "in
common with" language in two treaties with Britain, including one signed
in 1854, that dealt with fishing rights in certain waters adjoining the
United States and Canada. Treaty of Oct. 20, 1818, 8 Stat. 248; Treaty
of June 5, 1854, 10 Stat. 1089. As interpreted by the Department of
State during the 19th century, these treaties ga.ve each signatory country
an "equal" and apportionable "share" of the take of fish in the treaty
areas. See H. R. Ex. Doc. No. 84, 46th Cong., 2d Sess., 7 (1880); 5
American State Papers (For. Rel.) 528-529 (1823); J. Q. Adams, The
Duplicate Letters, The Fisheries and the Mississippi 184-185 (1822).
11
WASHINGTON v. FISHING VESSEL ASSN. 679
658 Opinion of the Court
ways exercised the right to meet their subsistence and commercial
needs by taking fish from treaty area waters, they would
be unlikely to perceive a "reservation" of that right as merely
the chance, shared with millions of other citizens, occasionally
to dip their nets into the territorial waters. Moreover, the
phrasing of the clause quite clearly avoids placing each individual
Ind,ian on an equal footing with each individual citizen
of the State. The referent of the "said Indians" who are
to share the right of taking fish with "all citizens of the Territory"
is not the individual Indians but the various signatory
"tribes and bands of Indians" listed in the opening article of
each treaty. Because it was the tribes that were given a right
in common with non-Indian citizens, it is especially likely that
a class right to a share of fish, rather than a personal right to
attempt to land fish, was intended.
In our view, the purpose and language of the treaties a.re
unambiguous; they secure the Indians' right to take a share
of each run of fish that passes through tribal fishing areas.
But our prior decisions provide an even more persuasive reason
why this interpretation is not open to question. For notwithstanding
the bitterness that this litigation has engendered,
the principal issue involved is virtually a "matter decided"
by our previous holdings.
The Court has interpreted the fishing clause in these
treaties on six prior occasions. In all of these cases the
Court placed a relatively broad gloss on the Indians' fishing
rights and-more or less explicitly-rejected the State's "equal
opportunity" approach; in the earliest and the three most
recent cases, moreover, we adopted essentially the interpretation
that the United States is reiterating here.
In United States v. Winans, supra, the respondent, having
acquired title to property on the Columbia River and
having obtained a license to use a "fish wheel"-a device capable
of catching salmon by the ton and totally destroying a
run of fish-asserted the right to exclude the Yakimas from
one of their "usual and accustomed" places. The Circuit
I
1:
11
680 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
Court for the District of Washington sustained respondent,
but this Court reversed. The Court initially rejected an argument
that is analogous to the "equal opportunity" claim now
made by the State:
"[I] t was decided [below] that the Indians acquired
no rights but what any inhabitant of the Territory or
State would have. Indeed, acquired no rights but such
as they would have without the treaty. This is certainly
an impotent outcome to negotiations and a convention;
which seemed to promise more and give the word of the
Nation for more. . . . How the treaty in question was
understood may be gathered from the circumstances.
"The right to resort to the fishing places in controversy
was a part of larger rights possessed by the Indians, upon
the exercise of which there was not a shadow of impediment,
and which were not much less necessary to the
existence of the Indians than the atmosphere they
breathed. New conditions came into existence, to which
those rights had to be accommodated. Only a limitation
of them, however, was necessary and intended, not a
taking away. In other words, the treaty was not a grant
of rights to the Indians, but a grant of rights from thema
reservation of those not granted. And the form of the
instrument and its language was adapted to that purpose.
. . . There was an exclusive right to fishing reserved
within certain boundaries. There was a right
outside of those boundaries reserved 'in common with
citizens of the Territory.' As a mere right, it was not
exclusive in the Indians. Citizens might share it, but the
Indians were secured in its enjoyment by a special provision
of means for its exercise. They were given 'the
right of taking fish at all usual and accustomed places,'
and the right 'of erecting temporary buildings for curing
them.' The contingency of the future ownership of the
lands, therefore, was foreseen and provided for-in other
658
WASHINGTON v. FISHING VFBSEL ASSN. 681
Opinion of the Court
words, the Indians were given a right in the land-the
right of crossing it to the river-the right to occupy it
to the extent and for the purpose mentioned. No other
conclusion would give effect to the treaty." 198 U. S., at
380-381.
See also Seufert Bros., 249 U. S., at 198, and Tulee, 315 U.S.,
at 684, both· of which repeated this analysis, in holding that
treaty Indians had rights, "beyond those which other citizens
may enjoy," to fish without paying license fees in ceded areas
and even in accustomed fishing places lying outside of the
lands ceded by the Indians. See n. 22, supra.
But even more significant than the language in Winans is
its actual disposition. The Court not only upheld the Indians'
right of access to respondent's private property but also ordered
the Circuit Court on remand to devise some "adjustment
and accommodation" that would protect them from total exclusion
from the fishery. 198 U. S., at 384. Although the
accommodation it suggested by reference to the Solicitor General's
brief in the case is subject to interpretation, it clearly
included removal of enough of the fishing wheels to enable
some fish to escape and be available to Indian fishermen upstream.
Brief for United States, 0. T. 1904, No. 180, pp.
54-56. In short, it assured the Indians a share of the fish.
In the more recent litigation over this treaty language
between the Puyallup Tribe and the Washington Department
of Game/• the Court in the context of a dispute over rights to
the run of steelhead trout on the Puyallup River reaffirmed
both of the holdings that may be drawn from Winans-the
treaty guarantees the Indians more than simply the "equal
opportunity" along with all of the citizens of the State to
catch fish, and it in fact assures them some portion of each
24 Puyallup Tribe v. Washington Game Dept., 391 U. S. 392 (Puyallup
I); Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44 (Puyallup
II); and Puyallup Tribe v. Washington Game Dept., 433 U. S. 165
(Puyallup Ill).
682 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
relevant run. But the three Puyallup cases are even more
explicit; they clearly establish the principle that neither party
to the treaties may rely on the State's regulatory powers or
on property law concepts to defeat the other's right to a
"fairly apportioned" share of each covered run of harvestable
anadromous fish.
In Puyallup I, the Court sustained the State's power to
impose nondiscriminatory regulations on treaty fishermen so
long as they were "necessary" for the conservation of the
various species. In so holding, the Court again explicitly
rejected the equal-opportunity theory. Although nontreaty
fishermen might be subjected to any reasonable state fishing
regulation serving any legitimate purpose, treaty fishermen
are immune from all regulation save that required for
conservation. 25
When the Department of Game sought to impose a total
ban on commercial net fishing for steelhead, the Court held
in Puyallup II that such regulation was not a "reasonable and
necessary conservation measure" and would deny the Indians
25 Mr. Justice Douglas wrote for the Court:
"The right to fish 'at all usual and accustomed' places may, of course,
not be qualified by the State . . . . But the manner of fishing, the size of
the take, the restriction of commercial fishing, and the like may be regulated
by the State in the interest of conservation, provided the regulation
meets appropriate standards and does not discriminate against the Indians."
391 U. S., at 398.
In describing the "appropriate standards'' referred to, Mr. Justice
Douglas continued:
"As to a 'regulation' concerning the time and manner of fishing ... ,
the power of the State [is] measured by whether [the regulation is] 'necessary
for the conservation of fish.' [Tulee,J 315 U. S., at 684.
• "The measure of the legal propriety of those kinds of conservation measures
is therefore distinct from the federal constitutional standard concerning
the scope of the police power of a State. See Ferguson v. Skrupa,
372 U. S. 726 .... " Id., at 402 n. 14.
See also Antoine v. Washington, 420 U.S., at 207-208; Tulee, 315 U. S., at
684; Winans, 198 U.S., a.t 384; Ward v. Race Horse, 163 U.S. 504.
WASHINGTON v. FISHING VESSEL ASSN. 683
658 Opinion of the Court
their "fairly apportioned" share of the Puyallup River run.
414 U. S. 44, 45, 48. Although under the challenged regulation
every individual fisherman would have had an equal opportunity
to use a hook and line to land the steelhead, most
of the fish would obviously have been caught by the 145,000
nontreaty licensees rather than by the handful of treaty fishermen.
This Court vindicated the Indians' treaty right to
"take fish" by invalidating the ban on Indian net fishing and
remanding the case with instructions to the state courts to
determine the portion of harvestable steelhead that should be
allocated to net fishing by members of the tribe. Id., at 48-49.
Even if Winans had not already done so, this unanimous holding
foreclosed the basic argument that the State is now
advancing.
On remand, the Washington state courts held that 45% of
the steelhead run was allocable to commercial net fishing by
the Indians. We shall later discuss how that specific percentage
was determined; what is material for present purposes
is the recognition, upheld by this Court in Puyallup III, that
the treaty secured the Tribe's right to a substantial portion
of the run, and not merely a right to compete with nontreaty
fishermen on an individual basis.26
Puyallup III also made it clear that the Indians could not
rely on their treaty right to exclude others from access to
certain fishing sites to deprive other citizens of the State of
a "fair apportionment" of the runs. For although it is clear
that the Tribe may exclude non-Indians from access to fishing
26 Although some members of the Washington Supreme Court in their
opinions in Puyallup III expressed the view that the treaties could not be
interpreted as affording treaty fishermen an allocable share of the fish,
Department of Game v. Puyallup Tribe, 86 Wash. 2d, at 674-681, 548 P.
2d, at 1066-1070; see id., at 69()-698, 548 P. 2d, at 1075- 1080 (Rosellini,
J., concurring); but see id., at 688-690, 548 P. 2d, at 1074-1075 (Stafford,
C. J., concurring in result), they recognized that any other interpretation
would be inconsistent with "the express language on the face of [this
Court's decision in] Puyallup II .... "
684 OCTOBER TERM, 1978
Opinion of the Court 443U. S.
within the reservation, we unequivocally rejected the Tribe's
claim to an untrammeled right to take as many of the steelhead
running through its reservation as it chose. In support
of our holding that the State has regulatory jurisdiction
over on-reservation fishing, we reiterated Mr. Justice
Douglas' statement for the Court in Puyallup II that the
"Treaty does not give the Indians a federal right to pursue the
last living steelhea<l until it enters their nets." 414 U. S., at
49. It is in this sense that treaty and nontreaty fishermen
hold "equal" rights. For neither party may deprive the
other of a "fair share" of the runs.
Not only all six of our cases interpreting the relevant treaty
language but all federal courts that have interpreted the
treaties in recent times have reached the foregoing conclusions,
see Sohappy v. Smith, 302 F. Supp. 899, 908, 911 (Ore. 1969)
(citing cases), as did the Washington Supreme Court itself
prior to the present litigation. State v. Satiacum, 50 Wash. 2d
513, 523-524, 314 P. 2d 400, 406 (1957). A like interpretation,
moreover, has been followed by the Court with respect
to hunting rights explicitly secured by treaty to Indians "'in
common with all other persons,' " Antoine v. Washington, 420
U. S. 194, 205-206, and to water rights that were merely implicitly
secured to the Indians by treaties reserving landtreaties
that the Court enforced by ordering an apportionment
to the Indians of enough water to meet their subsistence
and cultivation needs. Arizona v. California, 373 U. S. 546,
598--601, following United States v. Powers, 305 U. S. 527,
528--533; Winters v. United States, 207 U. S. 564, 576.
The purport of our cases is clear. Nontreaty fishermen
may not rely on property law concepts, devices such as the
fish wheel, license fees, or general regulations to deprive the
Indians of a fair share of the relevant runs of anadromous fish
in the case area. Nor may treaty fishermen rely on their
exclusive right of access to the reservations to destroy the
rights of other "citizens of the Territory." Both sides have
WASHINGTON v. FISHING VESSEL ASSN. 685
658 Opinion of the Court
a right, secured by treaty, to take a fair share of the available
fish. That, we think, is what the parties to the treaty intended
when they secured to the Indians the right of taking
fish in common with other citizens.
V
We also agree with the Government that an equitable measure
of the common right should initially divide the harvestable
portion of each run that passes through a "usual and
accustomed" place into approximately equal treaty and nontreaty
shares, and should then reduce the treaty share if tribal
needs may be satisfied by a lesser amount. Although this
method of dividing the resource, unlike the right to some division,
is not mandated by our prior cases, it is consistent with
the 45%-55% division arrived at by the Washington state
courts, and affirmed by this Court, in Puyallup III with respect
to the steelhead run on the Puyallup River. The trial
court in the Puyallup litigation reached those figures essentially
by starting with a 50% allocation based on the Indians'
reliance on the fish for their livelihoods and then adjusting
slightly downward due to other relevant factors. App. to Pet.
for Cert. in Puyallup III, 0. T. 1976, No. 76-423, pp. C-56 to
C-57. The District Court took a similar tack in this case, i.e.,
by starting with a 50-50 division and adjusting slightly downward
on the Indians' side when it became clear that they did
not need a full 50%. 384 F. Supp., at 402, 416-417; 459 F.
Supp., at 1101; 573 F. 2d, at 1129.
The division arrived at by the District Court is also consistent
with our earlier decisions concerning Indian treaty
rights to scarce natural resources. In those cases, after determining
that at the time of the treaties the resource
involved was necessary to the Indians' welfare, the Court
typically ordered a trial judge or special master, in his discretion,
to devise some apportionment that assured that the
Indians' reasonable livelihood needs would be met. Arizona
I
686 OCTOBER TERM, 1978
Opinion of the Court 443 U.S.
v. California, supra, at 600; Winters, supra. See Winans, 198
U. S., at 384. This is precisely what the District Court did
here, except that it realized that some ceiling should be placed
on the Indians' apportionment to prevent their needs from
exhausting the entire resource and thereby frustrating the
treaty right of "all [other] citizens of the Territory."
Thus, it first concluded that at the time the treaties were
signed, the Indians, who comprised three-fourths of the territorial
population, depended heavily on anadromous fish as a
source of food, commerce, and cultural cohesion. Indeed, it
found that the non-Indian population depended on Indians to
catch the fish that the former consumed. See supra, at 664---669,
and n. 7. Only then did it determine that the Indians' present-
day subsistence and commercial needs should be met, subject,
of course, to the 50% ceiling. 384 F. Supp., at 342-343.
It bears repeating, however, that the 50% figure imposes
a maximum but not a minimum allocation. As in Arizona v.
California and its predecessor cases, the central principle here
must be that Indian treaty rights to a natural resource that
once was thoroughly and exclusively exploited by the Indians
secures so much as, but no more than, is necessary to provide
the Indians with a livelihood-that is to say, a moderate living.
Accordingly, while the maximum possible allocation to
the Indians is fixed at 50%,21 the minimum is not; the latter
27 Because the 50% figure is only a ceiling, it is not correct to characterize
our holding "as guaranteeing the Indians a specified percentage" of
the fish. See PowELL, J., dissenting, post, at 697.
The logic of the 50% ceiling is manifest. For an equal divisionespecially
between parties who presumptively treated with each other as
equals-is suggested, if not necessarily dictated, by the word "common"
as it appears in the treaties. Since the days of Solomon, such a division
has been accepted as a fair apportionment of a common asset, and Anglo-
American common law has presumed that division when, as here, no other
percent.age is suggested by the language of the agreement or the surrounding
circumstances. E. g., 2 American Law of Property § 6.5, p. 19 (A. Casner
ed. 1952); E. Hopkins, Handbook on the Law of Real Property § 209, p.
336 (1896).
WASHINGTON v. FISHING VF.sSEL ASSN. 687
658 Opinion of the Court
will, upon proper submissions to the District Court, be modified
in response to changing circumstances. If, for example,
a tribe should dwindle to just a few members, or if it should
find other sources of support that lead it to abandon its fisheries,
a 45% or 50% allocation of an entire run that passes
through its customary fishing grounds would be manifestly
inappropriate because the livelihood of the tribe under those
circumstances could not reasonably require an allotment of a
large number of fish.
Although the District Court's exercise of its discretion, as
slightly modified by the Court of Appeals, see n. 18, supra, is
in most respects unobjectionable, we are not satisfied that
all of the adjustments it made to its division are consistent
with the preceding analysis.
The District Court determined that the fish taken by the
Indians on their reservations should not be counted against
their share. It based this determination on the fact tha.t Indians
have the exclusive right under the treaties to fish on
their reservations. But this fact seems to us to have no
greater significance than the fact that some nontreaty fishermen
may have exclusive access to fishing sites that are not
"usual and accustomed" places. Shares in the fish runs
should not be affected by the place where the fish are taken.
Cf. Puyallup Ill, 433 U.S., at 173- 177.28 We therefore disagree
with the District Court's exclusion of the Indians' onreservation
catch from their portion of the runs.29
28 This Court's decision in Puyal,lup III, which approved state regulation
of on-resi>rvation fishing in the interest of conservation, was issued
after the District Court. excluded the Indians' on-reservation take and the
Court of Appeals affirmed. See 520 F. 2d, at 690.
20 A like reasoning requires the fish taken by treaty fishermen off
the reservations and at locations other than "usual and accustomed" sites,
see n. 17, supra, to be counted as part of the Indians' share. Of course,
the District Court, in its discretion, may determine that so few fish fit into
this, or any other, category (e. g., "take-home" fish caught by nontreaty
commercial fishermen for personal use) that accounting for them individ688
OCTOBER TERM, 1978
Opinion of the Court 44,3 u. s.
This same rationale, however, validates the Court-of-
Appeals-modified equitable adjustment for fish caught outside
the jurisdiction of the State by nontreaty fishermen from
the State of Washington. Seen. 18, SUJYT'a, and accompanying
text. So long as they take fish from identifiable runs that
are destined for traditional tribal fishing grounds, such persons
may not rely on the location of their take to justify excluding
it from their share. Although it is true that the fish involved
are caught in waters subject to the jurisdiction of the United
States, rather than of the State, see 16 U.S. C. §§ 1811, 1812,
the persons catching them are nonetheless "citizens of the
Territory" and as such the beneficiaries of the Indians' reciprocal
grant of land in the treaties as well as the persons expressly
named in the treaties as sharing fishing rights with the
Indians. Accordingly, they may justifiably be treated differently
from nontreaty fishermen who are not citizens of
Washington. The statutory provisions just cited are therefore
important in this context only because they clearly place
.a responsibility on the United States, rather than the State, to
police the take of fish in the relevant waters by Washington
citizens insofar as is necessary to assure compliance with the
treaties.
On the other hand, as long as there are enough fish to satisfy
the Indians' ceremonial and subsistence needs, we see no justification
for the District Court's exclusion from the treaty share
of fish caught for these purposes. We need not now decide
whether priority for such uses would be required in a period
of short supply in order to carry out the purposes of the
treaty. See 384 F. Supp., at 343. For present purposes, we
merely hold that the total catch-rather than the commercial
catch-is the measure of each party's right.30
ually is unnecessary, and that an estimated figure may be relied on in
making the annual computation. Indeed, if the amount is truly de
minimis, no accounting at all may be :required.
30 The Government suggests that the District Court's exclusion of the
"take-home" catch of nontreaty fishermen from the nontreaty share
WASHINGTON v. FISHING VESSEL ASSN. 689
658 Opinion of the Court
Accordingly, any fish (1) taken in Washington waters or
in United States waters off the coast of Washington,
(2) taken from runs of fish that pass through the Indians'
usual and accustomed fishing grounds, and (3) taken by either
members of the Indian tribes that are parties to this litigation,
on the one ~and, or by non-Indian citizens of Washington, on
the other hand, shall count against that party's respective
share of the fish.
VI
Regardless of the Indians' other fishing rights under -the
treaties, the State argues that an agreement between Canada
and the United States pre-empts their rights with respect to
the sockeye and pink salmon runs on the Fraser River.
In 1930, the United States and Canada agreed that the catch
of Fraser River salmon should be equa1ly divided between
Canadian and American fishermen. Convention of May 26,
1930, 50 Stat. 1355, as amended by [1957] 8 U. S. T. 1058.
To implement this agreement, the two Governments established
the International Pacific Salmon Fisheries Commission
(IPSFC). Each year that Commission proposes regulations
to govern the time, manner, and number of the catch by the
fishermen of the two countries; those regulations become eff ective
upon approval of both countries.
In the United States, pursuant to statute and Presidential
designation, enforcement of those regulations is vested in the
makes up for any losses to those fishermen occasioned by the exclusion
of the Indians' ceremonial and subsistence take. We see nothing in the
District Court's findings to verify this allegation, see 384 F. Supp., at 343,
although the District Court may wish to address the issue in this light on
remand.
Although there is some discussion in the briefs concerning whether the
treaties give Indians the same right to take hatchery-bred fish as they do
to take native fish, the District Court has not yet reached a final decision
on this issue, see 459 F. Supp., at 1072- 1085, and it is not therefore
fairly subsumed within our grant of certiorari. See Puyallup III, 433
U.S., at 177 n. 17.
690 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
National Marine Fisheries Service, which, in turn, may authorize
the State of Washington to act as the enforcing agent.
Sockeye Salmon or Pink Salmon Fishing Act of 1947, 61 Stat.
511, as amended, 16 U. S. C. § 776 et seq. (hereinafter Sockeye
Act). For many years Washington has accepted this
responsibility and enacted IPSFC regulations into state statutory
law.
The Fraser River salmon run passes through certain "usual
and accustomed" places of treaty tribes. The Indians have
therefore claimed a share of these runs. Consistently with its
basic interpretation of the Indian treaties, the District Court
in its original decision held that the tribes are entitled to up to
one-half of the American share of any run that passes through
their "usual and accustomed" places. To implement that
holding, the District Court also entered an order authorizing
the use by Indians of certain gear prohibited by IPSFC regulations
then in force. 384 F. Supp., at 392-393, 411. The
Court of Appeals affirmed, 520 F. 2d, at 689-690, and we
denied certiorari. 423 U.S. 1086.
In later proceedings commenced in 1975, the State of Washington
contended in the District Court that any Indian rights
to Fraser River salmon were extinguished either implicitly
by the later agreement with Canada or more directly by the
IPSFC regulations promulgated pursuant to those agreements
insofar as they are inconsistent with the District Court's
order. The State's claim was rejected by the District Court
and the Court of Appeals. 459 F. Supp., at 1050-1056; 573
F. 2d, at 1120-1121.
First, we agree with the Court of Appeals that the Convention
itself does not implicitly extinguish the Indians' treaty
rights. Absent explicit statutory language, we have been extremely
reluctant to find congressional abrogation of treaty
rights, e. g., Menominee Tribe v. United States, 391 U.S. 404,
and there is no reason to do so here. Indeed, the Canadian
Government has long exempted Canadian Indians from reguWASHINGTON
v. FISHING VESSEL ASSN. 691
658 Opinion of the Court
lations promulgated under the Convention and afforded them
special fishing rights.
We also agree with the United States that the conflict between
the District Court's order and IPSFC does not present
us with a justiciable issue. The initial conflict occasioned by
the regulations for the 1975 season has been mooted by the
passage of time, and there is little prospect that a similar
conflict will revive and yet evade review. See DeFunis v.
Odegaard, 416 U. S. 312, 316. Since 1975, the United States,
in order to protect the Indian rights, has exercised its power
under Art. VI of the Convention and refused to give the necessary
approval to those portions of the IPSFC regulations
that affected Indian fishing rights. Those regulations have
accordingly not gone into effect in the United States. The
Indians' fishing rights and responsibilities have instead been
the subject of separate regulations promulgated by the Interior
Department, under its general Indian powers, 25 U. S. C.
§§ 2, 9; see 25 CFR § 256.11 et seq. (1978); 50 CFR § 371.1
et seq. (1978); 25 CFR § 256.11 et seq. (1979), and enforced
by the National Marine Fisheries Service directly, rather than
by delegation to the State. The District Court's order is
fully consistent with those regula.tions.31 To the extent that
any Washington State statute imposes any conflicting obligations,
the statute is without effect under the Sockeye Act and
31 Although the IPSFC has refused to accede to the suggestions of the
United States that special regulations be promulgated to cover the Indian
fisheries, we are informed by the Solicitor General that the Canadian
Government has no objection to those suggestions, has unilaterally implemented
similar rules on behalf of its own Indians, and has expressed no
dissatisfaction with the unilateral actions taken by the United States in
this regard. Brief for United States 40 n. 26.
Because the Department of the Interior regulations assure that no disproportion
will occur, the equitable adjustment ordered by the District
Court to cover the possibility that IPSFC regulations would result in a
disproportionate nontreaty take will not be effectuated. We accordingly
have no issue before us concerning the validity of that adjustment.
692 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
must give way to the federal treaties, regulations, and decrees.
E. g., M-issouri v. Holland, 252 U. S. 416, 432.
VII
In addition to their challenges to the District Court's basic
construction of the treaties, and to the scope of its allocation
of fish to treaty fishermen, the State and the commercial fishing
associations have advanced two objections to various remedial
orders entered by, the District Court.32 It is claimed that
32 The associations advance a third objection as well-that the District
Court had no power to enjoin individual nontreaty fishermen, who were
not parties to its decisions, from violating the allocations that it has
ordered. The reason this issue has arisen is that state officials were
either unwilling or unable to enforce the District Court's orders against
nontreaty fishermen by way of state regulations and state law enforcement
efforts. Accordingly, nontreaty fishermen were openly violating
Indian fishing rights, and, in order to give federal law enforcement officials
the power via contempt to end those violations, the District Court
was forced to enjoin them. 459 F. Supp., at 1043, 1098-1099, 1113-1117.
The commercial fishing organizations, on behalf of their individual members,
argue that they should not be bound by these orders because they
were not parties to (although the associations all did participate as amici
curiae in) the proceedings that led to their issuance.
If all state officials stand by the Attorney General's representations
that the State wiH implement the decision of this Court, see nn. 34 and 35,
infra, this issue will be rendered moot because the District Court no
longer will be forced to enforce its own decisions. Nonetheless, the issue
is still live since state implementation efforts are now at a standstill and
the orders are still in effect. Accordingly, we must decide it.
In our view, the commercial fishing associations and their members are
probably subject to injunction under either the rule that nonparties who
interfere with the implementation of court orders establishing public rights
may be enjoined, e. g., United States v. Hall, 472 F. 2d 261 (CA5 1972),
cited approvingly in Golden State Bottling Co. v. NLRB, 414 U. S. 168,
180, or the rule that a court possessed of the res in a proceeding in rem,
such as one to apportion a fishery, may enjoin those who would interfere
with that custody. See Venda Co. v. Lektro-Vend Corp., 433 U.S. 623,641.
But in any case, these individuals and groups are citizens of the State of
Washington, which was a party to the relevant proceedings, and "they,
in their common public rights as citizens of the State, were represented by
WASHINGTON v. FISHING VESSEL ASSN. 693
658 Opinion of the Court
the District Court has ordered a state agency to take action
that it has no authority to take as a matter of state law and
that its own assumption of the authority to manage the fisheries
in the State after the state agencies refused or were
unable to do so was unlawful.33
These objections are difficult to evaluate in view of the
representations to this Court by the Attorney General of the
State that definitive resolution of the basic federal question
of construction of the treaties will both remove any state-law
impediment to enforcement of the State's obligations under
the treaties,3• and enable the State and Fisheries to carry
the State in those proceedings, and, like it, were bound by the judgment."
Tacoma v. Taxpayers, 357 U. S. 320, 340-341. Moreover, a court clearly
may order them to obey that judgment. See Golden State Bottling,
supra, at 179-180.
33 The Stat~ has also argued that absent congressional legislation the
treaties involved here are not enforceable. This argument flies directly
in the face of Art. XIII of the treaties which states that they "shall be
obligatory on the contracting parties as soon as [they are] ratified by the
President and Senate of the United States." Moreover, the argument was
implicitly rejected in Winans and our ensuing decisions regarding these
treaties, all of which assumed that the treaties are self-enforcing. E. g.,
Puyallup I, 391 U.S., at 397-398.
Significantly, Congress thrice rejected efforts in the early 1960's to
terminate the Indians' fishing rights under these treaties. See S. J. Res.
170 and 171, 88th Cong., 2d Sess. (1964); H. J. Res. 48, 88th Cong., 1st
Sess. (1963); H. J. Res. 698, 87th Cong., 2d Sess. (1962).
34 In his brief, the Attorney General represented:
"If this Court now concludes that Indian treaty fishermen and all other
fishermen are not members of the same class with respect to an allocation
of fishery, it will thereby lay the foundation for the validity under state
law of a separate classification of treaty Indian fishermen for the purpose
uf allocation. We would respectfully submit that if the Court rejects our
earlier argument and finds that treaty Indian fishermen are a special class
for allocation purposes, such a conclusion would remove the impediment
found by the Washington Supreme Court to the exercise of necessary regulatory
power by the Department of Fisheries to allocate between Tndian
and non-Indian fishermen.
"Fisheries will be able to comply with the Court's decision in this
694 OCTOBER TERM, 1978
Opinion of the Court 443U.S.
out those obligations.35 Once the state agencies comply, of
course, there would be no issue relating to federal authority
to order them to do so or any need for the District Court to
continue its own direct supervision of enforcement efforts.
The representations of the Attorney General are not binding
on the courts and legislature of the State, although we assume
they are authoritative within its executive branch.
Moreover, the State continues to argue that the District
Court exceeded its authority when it assumed control of the
fisheries in the State, and the commercial fishing groups
case even if it requires some type of allocation of the fishery." Brief for
State of Washington 99.
See also Department of Game v. Puyallup Tribe, 86 Wa.,;h. 2d 664, 681,
684-688, 548 P. 2d 1058, 1070, 1072-1074 (1976), in which the Washington
Supreme Court held that the Department of Game had authority to allocate
a certain portion of the steelhead trout run on the Puyallup River to
treaty fishermen.
35 According to the Attorney General:
"The St.ate of Washington and its Department of Fisheries cannot
emphasize too strongly that they do not propose to inhibit the enforcement
of proper federal court orders. . . .
"Whatever the decision of this Court, the state will implement it. The
state believes that after a decision by this Court it will be in a position
to comply with District Court orders, if the same are necessary to comply
with this Court's decision. We do not believe the state courts could or
would take a different point of view: We are confident that they will accede
to this Court's interpretation of the treaties in the future just as they
have in the past, as this Court expressly found in Puyal,lup III, [ 433
U. S.,J at 177." Brief for State of Washington 95, 96.
We note the omission of the same firm representation on behalf of the
Game Department. Although the history of tha.t agency is not nearly as
favorable as that of Fisheries with respect to attempting to comply with
the District Court's order, e. g., 384 F. Supp., at 395, 398; 459 F. Supp.,
a.t 1043, 1045, 1099, we assume that this omission stems from the fact that
only Fisheries was named as a party in the litigation in the state courts
regarding the state agencies' authority to comply with the District Court's
order. See 88 Wash. 2d, at 679, 565 P. 2d, at 1152. See also Department
of Game v. Puyallup Tribe, discussed inn. 34, supra.
WASHINGTON v. FISHING VEs.SEL ASSN. 695
658 Opinion of the Court
continue to argue that the District Court may not order the
state agencies to comply with its orders when they have no
state-law authority to do so. Accordingly, although adherence
to the Attorney General's representations by the executive,
legislative, and judicial officials in the State would moot
these two issues, a brief discussion should foreclose the possibility
that· they will not be respected. State-law prohibition
against compliance with the District Court's decree
cannot survive the command of the Supremacy Clause of the
United States Constitution. Cooper v. Aaron, 358 U. S. 1;
Ableman v. Booth, 21 How. 506. It is also clear that
Game and Fisheries, as parties to this litigation, may be
ordered to prepare a set of rules that will implement the
Court's interpretation of the rights of the parties even if state
law withholds from them the power to do so. E. g., North
Ca.rolina Board of Education v. Swann, 402 U. S. 43; Griffin
v. County School Board, 377 U.S. 218; Tacoma v. Taxpayers,
357 U. S. 320. Once again the answer to a question raised by
this litigation is largely dictated by our Puyallup trilogy.
There, this Court mandated that state officers make precisely
the same type of allocation of fish as the District Court ordered
in this case. See Puyallup Ill, 433 U.S., at 177.
"Whether Game and Fisheries may be ordered actually to
promulgate regulations having effect as a matter of state law
may well be doubtful. But the District Court may prescind
that problem by assuming direct supervision of the fisheries
if state recalcitrance or state-law barriers should be continued.
It is therefore absurd to argue, as do the fishing associations,
both that the state agencies may not be ordered to implement
the decree and also that the District Court may not itself
issue detailed remedial orders as a substitute for state supervision.
The federal court unquestionably has the power to
enter the various orders that state official and private parties
have chosen to ignore, and even to displace local enforcement
of those orders if necessary to remedy the violations of
696 OCTOBER TERM, 1978
PowELL, J., dissenting 443 U.S.
federal law found by the court. E. g., Hutto v. Finney,
437 U. S. 678; Milliken v. Bradley, 433 U. S. 267, 280-281,
290; Swann v. Charlotte-Mecklenburg Board of Education,
402 U. S. 1, 15. Even if those orders may have been erroneous
in some respects, all parties have an unequivocal obligation
to obey them while they remain in effect.
In short, we trust that the spirit of cooperation motivating
the Attorney General's representation will be confirmed by the
conduct of state officials. But if it is not, the District Court
has the power to undertake the necessary remedial steps and
to enlist the aid of the appropriate federal law enforcement
agents in carrying out those steps. Moreover, the comments
by the Court of Appeals strongly imply that it is prepared to
uphold the use of stern measures to require respect for federalcourt
orders. 36
The judgments of the Court of Appeals for the Ninth Circuit
and the Supreme Court of the State of Washington are
vacated and the respective causes are remanded to those courts
for further proceedings not inconsistent with this opinion, except
that the judgment in United States v. Washington, 573
F. 2d 1118 ( the International Fisheries case) is affirmed.
So ordered.
MR. JUSTICE PowELL, with whom MR. JusTICE STEWART
and MR. JUSTICE REHNQUIST join, dissenting in part.
I join Parts I-III of the Court's opinion. I am not in agreement,
however, with the Court's interpretation of the treaties
36 "The state's extra.ordinary machinations in resisting the [1974]
decree have forood the district court to take over a large share of the
management of the state's fishery in order to enforce its decrees. Except
for some desegregation cases ... , the district court has faced the most
concerted official and private efforts to frustrate a decree of a federal
court witnessed in this century. The challenged orders in this appeal
must be reviewed by this court in the context of events forced by litigants
who offered the court no reasonable choice." 573 F. 2d 1123, 1126 (CA9
1978).
WASHINGTON v. FISHING VESSEL ASSN. 697
658 PowELL, J., dissenting
negotiated in 1854 and 1855 with the Indians of the Washington
Territory. The Court's opinion, as I read it, construes
the treaties' provision "of taking fish ... in common" as guaranteeing
the Indians a specified percentage of the runs of the
anadromous fish passing land upon which the Indians traditionally
have fished. Indeed, it takes as a starting point for
determining fishing rights an equal division of these fish between
Indians and non-Indians. Ante, at 685 et seq. As I do
not believe that the language and history of the treaties can
be construed to support the Court's interpretation, I dissent.
I
At issue in these cases is the meaning of language found in
six similar Indian treaties negotiated and signed in 1854 and
1855.1 Each of the treaties provides substantially that "[t]he
right of taking fish, at all usual and accustomed grounds and
stations, is further secured to said Indians, in common with all
citizens of the Territory, and of erecting temporary houses for
the purpose of curing." 2 The question before us is whether
this "common" fishing right is a right only of access to usual
and accustomed fishing sites for the purpose of fishing there,
or includes the greater right to exclude others from taking a
particular portion of the fish that pass through the sites. As
the Court observes, at the time the treaties were signed there
was no need to address this question, for the surfeit of fish
made lack of access to fishing areas the only constraint upon
supply. Nonetheless, I believe that the compelling inference
to be drawn from the language and history of the treaties is
that the Indians sought and retained only the right to go to
1 Treaty of Medicine Creek, 10 Stat. 1132; Treaty of Point Elliott, 12
Stat. 927; Treaty of Point No Point, 12 Stat. 933; Treaty with the
Makahs, 12 Stat. 939; Treaty with the Yakamas, 12 Stat. 951; Treaty of
Olympia, 12 Stat. 971.
2 Treaty of Medicine Creek, 10 Stat. 1133 (emphasis supplied). There
were some slight, immaterial variations in the language used. See, e. g.,
Treaty with the Yakamas, quoted infra, at 698.
698 OCTOBER TERM, 1978
PowELL, J., dissenting 443 U.S.
their accustomed fishing places and there to fish along with
non-Indians. In addition, the Indians retained the exclusive
right to take fish on their reservations, a right not involved in
this litigation. In short, they have a right of access to fish.
Nothing in the language of the treaties indicates that any
party understood that constraints would be placed on the
amount of fish that anyone could take, or that the Indians
would be guaranteed a percentage of the catch. Quite to
the contrary, the language confers upon non-Indians precisely
the same right to fish that it confers upon Indians, even in
those areas where the Indians traditionally had fished.
United States v. Winans, 198 U. S. 371 (1905). As it cannot
be argued that Congress intended to guarantee non-Indians
any specified percentage of the available fish, there is neither
force nor logic to the argument that the same languagethe
"right of taking fish"-does guarantee such a percentage
to Indians.
This conclusion is confirmed by the language used in the
treaty negotiated with the Yakima Tribe, which explicitly
includes what apparently is implicit in each of the treaties:
the Indians' right to take fish on their reservations is exclusive.
Thus, the Yakima Treaty provides that "[t]he exclusive
right of taking fish in all the streams, where running through
or bordering said reservation, is further secured to said confederated
tribes and bands of Indians, as also the right of
taking fish at all usual and accustomed places, in common
with citizens of the Territory .... " 12 Stat. 953. There is
no reason apparent from the language used in the treaties why
the "right of taking fish" should mean one thing for purposes
of the exclusive right of reservation fishing and quite another
for purposes of the "common" right of fishing at usual and
accustomed places. Since the Court interprets the right of
taking fish in common to be an entitlement to half of the
entire catch taken from fisheries passing the Indians' traditional
fishing grounds, it therefore should follow that the
WASHINGTON v. FISHING ~EL ASSN. 699
658 PowELL, J ., dissenting
Court would interpret the exclusive right of taking fish to be
an entitlement to all of the fish taken from fisheries passing
the Indians' reservations. But the Court apparently concedes
that this exclusive right is not of such Draconian
proportions. Indeed, the Court would reduce the Indians'
50% portion by those fish caught on the reservation. The
more reasonable conclusion, therefore, is that when the Indians
and Governor Stevens agreed upon a "right of taking fish,"
they understood this right to be one of access to fish-exclusive
access with respect to fishing places on the reservation,
and common access with respect to fishing places off the
reservation.3
In addition to the language of the treaties, the historical
setting in which they were negotiat€d supports the inference
that the fishing rights secured for the Indians were rights of
access alone. The primary purpose of the six treaties negotiated
by Governor Stevens was to resolve growing disputes
between the settlers claiming title to land in the Washington
Territory under the Land Donation Act of 1850, 9 Stat. 437,
and the Indians who had occupied the land for generations.
Under the bargain struck in the treaties, the Indians ceded
their claims to vast tracts of land, retaining only certain specified
areas as reservations, where they would have exclusive
rights of possession and use. In exchange, the Indian tribes
were given substantial sums of money and were promised
various forms of aid. See, e. g., Treaty of Medicine Creek,
'10 Stat. 1132. By thus separating the Indians from the settlers
it was hoped that friction could be minimized.
3 Indeed, if the Court's interpretation of the treaties were correct, then
the exclusive right with respect to reservation fishing would be largely
superfluous. If the Indians had the right to 50%, and no more, of the
fish irrespective of where they are caught, then it hardly would be of any
great value to them that they could keep others from taking fish from
locations on the reservation. The most reasonable way to interpret the
exclusive right of reservation fishing so that it was of value, therefore, is
as a special right of access.
700 OCTOBER TERM, 1978
PowELL, J., dissenting 443U.S.
The negotiators apparently realized, however, that restricting
the Indians to relatively small tracts of land might interfere
with their securing food. See letter of George Gibbs
to Captain M'Clellan, App. 326 (" [The Indians] require the
liberty of motion for the purpose of seeking, in their proper
season, roots, berries, and fish"). This necessary "liberty of
motion" was jeopardized by the title claims of the settlers
whose land abutted-or would abut-the waterways from
which fish traditionally had been caught. Thus, in Governor
Stevens' report to the Commissioner of Indian A.ff airs, he
noted the tension between the land rights afforded settlers
under the 1850 Land Donation Act and the Indians' need to
have some access to the fisheries. Although he expressed the
view that "[i]t never could have been the intention of Congress
that Indians should be excluded from their ancient
fisheries," he noted that "no condition to this effect was inserted
in the donation act," and therefore recommended the
question "should be set at rest by law." Report of Governor
Stevens to the Commissioner of Indian Affairs, App. 327.
Viewed within this historical context, the common fishing right
reserved to the Indians by the treaties of 1854 and 1855 could
only have been the right, over and above their exclusive fishing
right on their reservations, to roam off the reservations
in order to reach fish at the locations traditionally used by
the Indians for this purpose. On the other hand, there is no
historical indication that any of the parties to the treaties
understood that the Indians would be specifically guaranteed
some set portion of the fisheries to which they traditionally
had had access.
II
Prior decisions of this Court have prevented the dilution of
these treaty rights, but none has addressed the issue now before
us. I read these decisions as supporting the interpretation
set forth above. This is particularly true of United
States v. Winans, supra, the case most directly relevant. In
I!
I i
11
WASHINGTON v. FISHING VESSEL ASSN. 701
658 PowELL, J., dissenting
that case a settler had constructed several fish wheels in the
Columbia River. These fish wheels were built at locations
where the Indians traditionally had fished, and " 'necessitate
[ d] the exclusive possession of the space occupied by
the wheels,' " 198 U. S., at 380, thereby interfering with the
Indians' treaty right of access to fish. This Court reviewed
in some detail the precise nature of the Indians' fishing rights
under the Yakima Treaty, and concluded:
"[The treaties] reserved rights ... to every individual
Indian, as though named therein. They imposed a servitude
upon every piece of land as though described
therein. There was an exclusive right of fishing reserved
within certain boundaries. There was a right outside
of those boundaries reserved 'in common with citizens
of the Territory.' As a mere right, it was not exclusive
in the Indians. Citizens might share it, but the Indians
were secured in its enjoyment by a special provision of
means for its exercise. They were given 'the right of
taking fish at all usual and accustomed places,' and the
right 'of erecting temporary buildings for curing them.'
The contingency of the future ownership of the lands,
therefore, was foreseen and provided for-in other words,
the Indians were given a right in the land- the right of
crossing it to the river-the right to occupy it to the
extent and for the purpose mentioned. No other conclusion
would give effect to the treaty." Id., at 381
( emphasis added).
The Court thus viewed these treaties as intended to "giv[e]
a right in the land"-a "servitude" upon all non-Indian
land-to enable Indians to fish "in common with citizens of
the Territory.'' The focus was on access to the traditional
fishing areas for the purpose of enjoying the "right of fishing."
Ibid. The Winans Court concluded, on the facts
before it, that the right of access to fish in these areas had
been abridged. It stated that "[i] n the actual taking of
702 OCTOBER TERM, 1978
PowELL, J., dissenting 443U.S.
fish white men may not be confined to a spear or crude net,
but it does not follow that they may construct and use a device
which gives them exclusive possession of the fishing
places, as it is admitted a fish wheel does." Id., at 382
(emphasis added). Thus, Winans was decided solely upon
the basis of a treaty-secured right of access to fish. Moreover,
the Court's analysis of the treaty right at issue in Winans
strongly indicates that nothing more than a right of access
fairly could be inferred from the treaty!
Nor do the Puyallup cases interpret the treaties to require
that any specified proportion of the catch be reserved for Indians.
Indeed, Puyallup Tribe v. Washington Game Dept.,
391 U. S. 392 ( 1968) (Puyallup I), consistently with Winans,
described the right of Indians under the treaties as "the right
to fish 'at all usual and accustomed places.'" 391 U. S., at
398.5 The issue before the Court in Puyallup I was the extent
to which the State could regulate fishing. It held:
"[TJ he 'right' to fish outside the reservation was a treaty
4 The Government's brief in Winans, cited approvingly by the Court in
that case, indicates that the Government also understood the treaty to
guarantee nothing more than access rights to traditional fishing locations.
In that brief, the Government advocated only "a way of easy access, free
ingress and egress to and from the fishing grounds." Brief for Appellants,
0. T. 1904, No. 180, p. 56.
This interpretation of Winans was unequivocally affirmed by the Court
a short time later in Seufert Bros. Co. v. United States, 249 U. S. 194
(1919). At issue in that case was whether Indians from the Yakima
Nation had the right under their treaty to cross the Columbia River a.nd
fish from the south bank, which admittedly had belonged to other tribes
at the time of the treaty. The Court viewed Seufert, a case unquestionably
involving only the right of access, to be squarely controlled by its
earlier decision in Winans. 249 U. S., at 198. Moreover, the Court
reaffirmed its view that the effect of the reservation of r.ornrnon fishing
rights to the Indians amounted to a servitude. Id., at 199.
5 The treaty right was repeatedly referred to in Puyallup I as a "right
to fish." This phrase was used no less than seven times in the course
of the opinion, with no distinction being made between the right "to fish"
and the right "of taking fish." 391 U. S., at 397-399.
-
658
WASHINGTON v. FISHING VESSEL ASSN. 703
POWELL, J., dissenting
'right' that could not be qualified or conditioned by the
State. But 'the time and manner of fishing ... necessary
for the conservation of fish,' not being defined or
established by the treaty, were within the reach of state
power." Id., at 399.
The Court today finds support for its views in Puyallup I
because the Court there recognized that, apart from conservation
measures, the State could not impose restrictive regulations
on the treaty rights of Indians. But it does not follow
from this that an affirmative right to a specified percentage
of the catch is guaranteed by the treaties to Indians or to non-
Indians, for the Court misapprehends the nature of the basic
right sought to be preserved by Congress. This, as noted
above, was a right of the Indians to reach their usual and accustomed
fishing areas. Put differently, this right, described
in Winans as a servitude or right over land not owned by the
Indians, entitles the Indians to trespass on any land when
necessary to reach their traditional fishing areas, and is a right
not enjoyed by non-Indian residents of the area.
In permitting the State to place limitations on the Indians'
access rights when conservation so requires, the Court went
further in Puyallup I and suggested that even regulations thus
justified would have to satisfy the requirements of "equal protection
implicit in the phrase 'in common with.' " 391 U. S.,
at 403. Accordingly, in Washington Game Dept. v. Puyallup
Tribe, 414 U. S. 44 (1973) (Puyallup II), we considered
whether the conservation measures taken by the State
had been evenhanded in the treatment of the Indians. At
issue was a Washington State ban on all net fishing-by both
Indians and non-Indians-for steelhead trout in the Puyallup
River. According to testimony before the trial court, the
annual run of steelhead trout in the Puyallup River was between
16,000 and 18,000, while unlimited sport fishing would
result in the taking of between 12,000 and 14,000 steelhead
annually. Because the escape of at least 25% of the entire
704 OCTOBER TERM, 1978
PowELL, J., dissenting 443 U.S.
run was required for hatcheries and spawning, the sport fishing
totally pre-empred all commercial fishing by Indians. The
State therefore imposed a ban on all net fishing. The Indians
claimed that this ban amounred to an improper subordination
of their treaty rights to the privilege of recreational fishing
enjoyed by non-Indians.
We held in Puyallup II that the ban on net fishing, as
it applied to Indians covered by treaty, was an infringement
of their rights. The State in the name of conservation was
discriminating against the Indians "because all Indian net
fishing is barred and only hook-and-line fishing entirely preempted
by non-Indians, is allowed." Id., at 48. Because
" [ o] nly an expert could fairly estimate what degree of net
fishing plus fishing by hook and line would allow the escapement
of fish necessary for perpetuation of the species," ibid.,
we remanded to the Washington courts for a fair apportionment
of the steelhead run between Indian net fishing and
non-Indian sport fishing.
Relying upon the reference in Puyallup II to "apportionment,"
the Court expansively reads the decision in that case
as strongly implying, if not holding, that the catch at Indians'
"accustomed" fishing sires must be apportioned between Indian
and non-Indian fishermen. This view certainly is not a
necessary reading of Puyallup I I. Indeed, I view it as a
quire unjustified extension of that case. Puyallup II addressed
an extremely narrow situation: where there had been
"discrimination" by state regulations under which "all Indian
net fishing [ was] barred and only hook-and-line fishing entirely
pre-empted by non-Indians, [was] allowed." Ibid.
In any event, to the extent language in Puyallup II may be
read as supporting some general apportionment of the catch,
it is dictum that is plainly incompatible with the language and
historical understanding of these treaties.6
6 Having decided that some regulation was required, but that the treaty
forbade the State to choose to regulate only Indian fishing for conservation
WASHINGTON v. FISHING VES,gEL ASSN. 705
658 PowELL, J., dissenting
Emerging from our decisions in Winans, Puyallup I, and
Puyallup II, therefore, is the proper approach to interpretation
of the Indians' common fishing rights at the present
time, when demand outstrips supply. The Indians have the
right to go to their traditional fishing grounds to fish. Once
there, they cannot be restricted in their methods or in the
size of their take, save insofar as restrictions are required for
conserving the fisheries from which they draw. Even in situations
where such regulations are required, however, the State
must be evenhanded in limiting Indian and non-Indian fishing
activity. It is not free to make the determination-apparently
made by Washington with respect to the ban on net fishing
in the Puyallup River-that Indian fishing rights will be
totally subordinated to the interests of non-Indians.7
III
In my view, the District Court below-and now this
Court-has formulated an apportionment doctrine that cannot
be squared with the language or history of the treaties, or
indeed with the prior decisions of this Court. The application
of this doctrine, and particularly the construction of the
term "in common" as requiring a basic 50-50 apportionment,
is likely to result in an extraordinary economic windfall to
purposes, we remanded for an apportionment between net fishing and sport
fishing. Puyallup Tribe v. Washington Game Dept., 433 U. S. 165 (1977)
(Puyallup III), is of little assistance in deciding the issue in the present
cases. The Court in that case decided only that the regulations permitted
in Puyallup I could be applied against Indian fishing on the reservations,
as well as off them.
7 Because it is admitted that the Indians at all times have taken substantial
numbers of fish at their traditional fishing places, I do not consider
whether a monopolization of all of the fish by the non-Indians would
violate the spirit of the Indians' treaty right of access. Of course, if state
conservation regulations were to operate discriminatorily to deny fish to
Inclians, the Court's decision in Puyallup II would apply.
706 OCTOBER TERM, 1978
PowELL, J., dissenting 443 U.S.
Indian fishermen in the commercial fish market by giving
them a substantial position in the market wholly protected
from competition from non-Indian fishermen.8 Indeed, non-
Indian fishermen apparently will be required from time to
time to stay out of fishing areas completely while Indians
catch their court-decreed allotment. In sum, the District
Court's decision will discriminate quite unfairly against non-
Indians.9
8 The Court apparently sees this windfall as being necessary for
the Indians, for it concludes that "in light of the far superior numbers,
capital resources, and technology of the non-Indians, the concept of the
Indians' 'equal opportunity' to take advantage of a scarce resource is likely
in practice to mean that the Indians' 'right of taking fish' will net them
virt,ually no catch at all." Ante, at 677 n. 22. But if the situation of the
Indians in the Pacific Northwest requires that special provisions be made
for their livelihood, this Court should not enact these provisions by
reforming a bargain struck more than 100 years ago. Nor should the
cost of compensating for any disadvantage the Indians may suffer, or
have suffered, be borne solely by the commercial fishermen of the State of
Washington-a fraction of the people who have benefited from the population
imbalance. This is a problem for resolution by Congress. It has
the basic responsibility for making sure that Indians are not discriminated
against, and that their rights are fully protected. In the exercise of this
responsibility, Congress could pursue various avenues for relief of any
perceived discrimination or disadvantage. It could, for example, provide
for Indian fishermen the modern technology and capital resources that they
lack, thereby enabling them to compete on an equal basis with non-Indian
fishermen. Moreover, a legislation of this problem can protect the interests
of Indians without imposing substantially the entire cost upon non-
Indian fishermen of the State of Washington.
9 In addition to the burdens placed upon non-Indian fishermen, the
Court's decision is likely to prove difficult to enforce fairly and effectively.
To date, the District Court has had to resort to the outer limits
of its equitable powers in order to enforce its decree. This has included
taking over supervision of all of the commercial fishing in the Puget
Sound area, ordering the creation of a telephone "hot line" that fishermen
can use to determine when and where they may legally fish, and ordering
United States Marshals to board fishing craft and inspect for violations
WASHINGTON v. FISHING VESSEL ASSN. 707
658 POWELL, J., dissenting
To be sure, if it were necessary to construe the treaties
to produce these results, it would be our duty so to construe
them. But for the reasons stated above, I think the Court's
construction virtually ignores the historical setting and purposes
of the treaties, considerations that bea.r compellingly
upon a proper reading of their language. Nor do the prior
decisions of this Court support or justify what seems to me to
be a substantial reformation of the bargain struck with the
Indians in 1854---1855.
I would hold that the treaties give to the Indians several significant
rights that should be respected. As made clear in
Winans, the purpose of the treaties was to assure to Indians
the right of access over private lands so that they could continue
to fish at their usual and accustomed fishing grounds.
Indians also have the exclusive right to fish on their reservations,
and a.re guaranteed enough fish to satisfy their ceremonial
and subsistence needs. Moreover, as subsequently
construed, the treaties exempt Indians from state regulation
(including the payment of license fees) except as necessary
of the court's preliminary injunction. Indeed, in his response to the petition
for certiorari in the present case, the Solicitor General set forth in
some detail the extraordinary difficulty the Government has had in enforcing
the District Court's decrees, sa.ying:
"fT]he default of the state govC'rnment has required the United States to
concentrate a disproportionate amount of its limited fisheries enforcement
personnel on what is essentially a local enforcement problem. Agents of
the National Marine Fisheries Service, the United States Fish and Wildlife
Service, the United States Marshals Service, and the Coast Guard
have been diverted from their regular duties to assist the district court in
implementing the Indians' treaty rights. This has resulted in a reduction
in the federal fisheries services available for the rest of the country and for
the enforcement of the ocean fisheries programs governed by the Fishery
Conservation and Managrment Act of 1976." Brief for United States on
Petition for Certiorari in Nos. 78-119 and 78-139, p. 20.
These problems, it seems to me, will be exacerbated by a formula apportionment
such as that ordered by the Court.
708 OCTOBER TERM, 1978
PowELL, J., dissenting 443U.S.
for conservation in the interest of all fishermen. Finally,
under Puyallup II, it is settled that even a facially neutral
conservation regulation is invalid if its effect is to discriminate
against Indian fishermen. These rights, privileges, and exemptions-
possessed only by Indians-are quite substantial.
I find no basis for according them additional advantages.
II
II
II
1,
'
MORLAND v. SPRECHER 709
Per Curiam
MORLAND ET AL. v. SPRECHER, JUDGE, UNITED
STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT, ET AL.
ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF
MANDAMUS
No. 78-1904. Decided July 2, 1979
Held: Petitioners' motion for leave to file a petition for a writ of mandamus
to compel the Court of Appeals to expedite their appeal from
the District Court's preliminary injunction restraining petitioners from
publishing an article entitled "The H-Bomb Secret: How We Got It,
Why We're Telling It," is denied. Petitioners effectively relinquished
whatever right they might otherwise have had to expedited consideration
by choosing not to argue to the Court of Appeals for expedited review
based on an alleged unconstitutional prior restraint against publication
of information subject to First Amendment protection until long after
such argument had ripened, and until they had taken close to three
months to prepare their own brief on the merits under a briefing
schedule ordered by the Court of Appeals to which petitioners had not
objected.
PER CURIAM.
On March 26, 1979, the District Court for the Western District
of Wisconsin entered a preliminary injunction restraining
petitioners from publishing or otherwise disseminating an article
entitled "The H-Bomb Secret: How We Got It, Why
We're Telling It." On June 21, 1979, one judge of the Court
of Appeals for the Seventh Circuit denied in part petitioners'
motion for an expedited hearing of their appeal. That hearing
is currently set for September 10, 1979.
Petitioners seek a writ of mandamus to the Court of Appeals
ordering it to expedite their appeal. They claim that parties
who have been enjoined from engaging in constitutionally
protected speech have a right to prompt appellate review of
that injunction. See National Socialist Party v. Skokie, 432
U.S. 43 (1977). See also Nebraska Press Assn. v. Stuart, 423
710 OCTOBER TERM, 1978
Per Curiam 443 U.S.
U. S. 1319 (1975) (BLACKMUN, J., in chambers); Nebraska
Press Assn. v. Stuart, 423 U. S. 1327 ( 1975) (BLACKMUN, J.,
in chambers). In view of their conduct in prosecuting their
appeal before the Court of Appeals, however, we conclude that
petitioners have effectively relinquished whatever right they
might otherwise have had to expedited consideration.
The District Court's preliminary injunction was entered on
March 26, 1979, yet petitioners waited until June 15, 1979,
to file a meaningful motion for expedited review before the
Court of Appeals. Prior to that time, petitioners ( 1) waited
two weeks after the District Court entered its injunction before
filing a notice of appeal, and then waited another week before
proposing that the appeal be accorded special scheduling treatment;
(2) in that proposal, suggested an 89-day briefing schedule
that-as they knew- provided for oral argument in the
case, at the earliest, 10 days after the Court of Appeals' summer
recess was to begin; (3) at a subsequent prehearing conference
held by the Senior Staff Attorney of the Court of
Appeals, asked that the briefing and argument schedule they
had originally proposed be extended by an additional three
weeks, i. e., into the latter half of July; ( 4) participated in a
second prehearing conference in which a panel of the Court
of Appeals discussed scheduling with the parties, and did not
object either to the briefing schedule ordered by the court or
to the September 10 hearing date; and (5) pursuant to the
schedule discussed at the conference, took 81 days to file their
opening brief on the merits. It was only upon the filing of
that brief on June 15, 1979 (just four days before the Seventh
Circuit's scheduled recess was to begin), that they sought expedition.
Accordingly, as proposed by petitioners, the onus of
expedition would have fallen entirely on the Government,
which would have had a severely limited opportunity to respond
to petitioners' opening brief, and on the Court of Appeals,
whose conscientious attempts during the preceding two
months-by way of two prehearing conferences and numerous
I
,,
1:
111
'I
I
....
MORLAND v. SPRECHER 711
709 WHITE, J., dissenting
additional discussions with the parties-to manage its docket
in an orderly fashion, would have been frustrated.
It is true that between May 8, 1979, and June 15, 1979, petitioners
were unsuccessful1y seeking reconsideration by the District
Court based on newly discovered information. But that
information did not affect the essentials of petitioners' legal
argument in favor of expedited review of the District Court's
March 26 order-i. e., that ever since the order was issued,
petitioners had been operating under an allegedly unconstitutional
and irreparably injurious prior restraint against the
publication of information subject to First Amendment protection.
Because they chose not to make that argument to
the Court of Appeals until long after it had ripened, and until
they had taken close to three months to prepare their own
brief on the merits, petitioners forbore any right to expedition
that the Constitution might otherwise have afforded them.
The motion for leave to file a petition for writ of mandamus
IS
Denied.
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN
joins, dissenting.
It is my view that the Court of Appeals, by declining to
hear arguments until the conclusion of its summer recess, has
unduly delayed plenary consideration of this case. And I do
not agree with my Brothers that the petitioners have forfeited
whatever rights to an early hearing they might otherwise have
had. Our cases indicate that the proffered justification for an
injunction against publication should be considered and verified
or rejected by appellate courts without unnecessary delay.
See New York Times Co. v. United States, 403 U. S. 713
(1971); United States v. Thirty-seven Photographs, 402 U.S.
363 (1971); Freedman v. Maryland, 380 U. S. 51 (1965);
cf. National Socialist Party v. Skokie, 432 U. S. 43 (1977);
Nebraska Press Assn. v. Stuart, 423 U.S. 1319 (1975) (BLACK712
OCTOBER TERM, 1978
WHITE, J., dissenting 443 U.S.
MUN, J., in chambers); Nebraska Press Assn. v. Stuart, 423
U. S. 1327 (1975) (BLACKMUN, J., in chambers). As I see
it, the Court of Appeals should schedule a hearing herein at
the earliest date that is both practicable and consistent with
mature consideration of the questions involved. I would have
preferred the Court to have reached and stated this conclusion
and then, on the assumption that the Court of Appeals
would follow this Court's suggestion, to have withheld the
issuance of the writ of mandamus. See Connor v. Coleman,
440 U. S. 612, 613-614 (1979); Connor v. Coleman, 425 U. S.
675, 679 (1976); Bucolo v. Adkins, 424 U.S. 641, 644 (1976) ;
Deen v. Hickman, 358 U. S. 57, 58 (1958); cf. National
Socialist Party v. Skokie, supra, at 44; Nebraska Press Assn.
v. Stuart, supra, at 1325-1326. Of course, with or without
advancement of the hearing schedule in the Court of Appeals,
the petitioners, pursuant to 28 U. S. C. § 1254 (1), may request
this Court to grant certiorari prior to judgment in the
Court of Appeals.
MOORE v. DUCKWORTH 713
Per Curiam
MOORE v. DUCKWORTH, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 78-5795. Decided July 2, 1979
Petitioner, who, upon a plea of not guilty by reason of insanity, was
found guilty of second-degree murder by an Indiana jury, sought federal
habeas corpus relief after the Indiana Supreme Court affirmed the- conviction,
claiming, inter alia, that he had been denied due process because
he had been convicted upon evidence insufficient to prove beyond a
reasonable doubt that he was sane at the time of the killing. The
District Court denied the writ, and the Court of Appeals affirmed,
holding that a cha.llenge to the sufficiency of the evidence presents a
federal due process issue "only where a state court conviction is totally
devoid of evidentiary support."
Held: Although a state prisoner is entitled to a detennination whether
the record evidence could support a finding of guilt beyond a reasonable
doubt, Jackson v. Virginia, ante, p. 307, nevertheless a remand
for further consideration in light of Ja,ckson is inappropriate here. The
Court of Appeals properly deferred to a rule of Indiana law permitting
sanity to be established by either expert or lay testimony, and although
that court applied an improper legal standard in considering the due
process claim, it appears that such claim concerned the above Indiana
rule and that the evidence in support of the conviction was constitutionally
adequate under the Ja,ckson standard.
Certiorari granted; 581 F. 2d 639, affirmed.
PER CumAM.
Upon a plea of not guilty by reason of insanity, the petitioner
was found guilty by an Indiana jury of murder in the
second degree. The Indiana Supreme Court upon direct
appeal affirmed the conviction. Moore v. State, 260 Ind. 154,
293 N. E. 2d 28 ( 1973) . The petitioner then sought a writ
of habeas corpus in a Federal District Court pursuant to 28
U. S. C. § 2254. He claimed, inter alia, that he had been
denied due process of law because he had been convicted upon
evidence allegedly insufficient to prove beyond a reasonable
714 OCTOBER TERM, 1978
Per Curiam 443U.S.
doubt that he was sane at the time the victim was killed.*
The District Court denied the writ, and the Court of Appeals
for the Seventh Circuit affirmed. 581 F. 2d 639 (1978).
In holding that the District Court had been correct in rejecting
the petitioner's cha.Jlenge to the sufficiency of the evidence
supporting his conviction, the Court of Appeals stated
that such a challenge presents a federal due process issue
"only where a state court conviction is totally devoid of evidentiary
support." Id., at 642. The petitioner claims that
this was error, and he urges that under In re Winship, 397
U. S. 358 ( 1970), a state prisoner is entitled to a determination
whether the record evidence could support a finding of
guilt beyond a reasonable doubt. We agree. Jackson v. Virginia,
ante, p. 307. Nonetheless, under the circumstances of
this case we conclude that a remand for further consideration
in light of Jackson v. Virginia would be inappropriate.
The petitioner has contended that the prosecution failed to
meet its burden because it relied upon lay witnesses to prove
sanity without providing any expert testimony to rebut his
expert opinion testimony. But, as the Court of Appeals
noted, under Indiana law sanity may be established by either
expert or lay testimony. The state appellate court, in an
opinion thoroughly discussing the record evidence and the
petitioner's sufficiency challenge, concluded that the lay evidence
in this case could have been credited by the jury, and
it held that the State's evidence was fully sufficient to support
a jury finding beyond a reasonable doubt that the petitioner
was sane at the time of the killing.
The Court of Appeals properly deferred to the Indiana law
governing proof of sanity. Although that court applied an
improper legal standard when it considered the petitioner's
*The District Court found, and the Court of Appeals agreed, that the
petitioner had failed to exhaust his available state remedies on all but
his challenge to the sufficiency of the evidence. The petitioner takes issue
with this ruling, but we are satisfied that it was correct.
MOORE v. DUCKWORTH 715
713 Per Curiam
due process claim, it is clear from its opinion that the essence
of that challenge concerned the rule of state law that permits
the State to rely on lay proof of sanity. It is likewise clear
from the record that under the standard enunciated in Jackson
v. Virginia, the evidence in support of this conviction was
constitutionally adequate.
Accordingly, the writ of certiorari is granted, and the judgment
of the Court of Appeals is affirmed.
It is so ordered.
I
I
I
REPORTER'S NOTE
The next page is purposely numbered 901. The numbers between 715
and 901 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official citations
available upon publication of the preliminary prints of the United
States Reports.
ORDERS FROM JUNE 25 THROUGH
AUGUST 30, 1979
JUNE 25, 1979
Affimed on Appeal
No. 76-6718. FRENCH v. BLACKBURN. Affirmed on appeal
from D. C. M. D. N. C. Reported below: 428 F. Supp. 1351.
No. 78-449. CALIFANO, SECRETARY OF HEALTH, EDUCATION,
AND WELFARE v. STEVENS ET AL. Affirmed on appeal from
D. C. N. D. Ohio. Califano v. Westcott, ante, p. 76. Reported
below: 448 F. Supp. 1313.
No. 78-603. CALIFANO, SECRETARY OF HEALTH, EDUCATION,
AND WELFARE v. BROWNE ET AL. Appeal from D. C. E. D.
Pa. Motion of appellee Mary Browne for leave to proceed
in forma pauperis granted. Judgment affirmed. Califano v.
Westcott, ante, p. 76.
Appeals Dismissed
No. 78-1614. SCHOOL DISTRICT OF PITTSBURGH V. DEPARTMENT
OF EDUCATION OF PENNSYLVANIA ET AL.; and
No. 78-1620. PEQUEA VALLEY SCHOOL DISTRICT v. DEPARTMENT
OF EDUCATION OF PENNSYLVANIA ET AL. Appeals
from Sup. Ct. Pa. dismissed for want of substantial federal
question. MR. JusTICE BLACKMUN, MR. JusTICE POWELL,
and MR. JusTICE STEVENS would note probable jurisdiction
and set cases for oral argument. Reported below: 483 Pa.
539, 397 A. 2d 1154.
No. 78-5658. WILLIE v. LoursrANA. Appeal from Sup. Ct.
La. dismissed for want of jurisdiction. Treating the papers
whereon the appeal was taken as a petition for writ of certiorari,
certiorari denied. Reported below: 360 So. 2d 813.
901
902 OCTOBER TERM, 1978
June 25, 1979 443 U.S.
No. 78-1638. WOMACK v. CITY OF NORFOLK. Appeal from
Sup. Ct. Va. dismissed for want of jurisdiction. Treating
the papers whereon the appeal was taken as a petition for
writ of certiorari, certiorari denied. MR. JusTICE BRENNAN,
MR. JuSTICE STEWART, and MR. JUSTICE MARSHALL would
treat the appeal as a petition for certiorari, as does the Court,
and would grant certiorari and reverse the conviction.
Vacated and Remanded on Appeal
No. 78-5373. WASHINGTON v. TEXAS. Appeal from
County Ct. at Law No. 1, Travis County, Tex. Motion of
appellant for leave to proceed in forma pauperis granted,
judgment vacated, and case remanded for further consideration
in light of Brown v. Texas, ante, p. 47.
Certiorari Granted-Vacate.a and Remanded
No. 78-162. RGP, INc., ET AL. v. OMAHA INDIAN TRIBE
ET AL. C. A. 8th Cir. Certiorari granted, judgment vacated,
and case remanded for further consideration in light of Wilson
v. Omaha Indian Tribe, 442 U. S. 653 (1979). Reported
below: 575 F. 2d 620.
No. 78-600. PERCY, SECRETARY, DEPARTMENT OF HEALTH
AND SOCIAL SERVICES OF WISCONSIN v. TERRY. Sup. Ct. Wis.
Motion of respondent for leave to proceed in f orma pauperis
and certiorari granted. Judgment vacated and case remanded
for further consideration in light of Parham v. J. R.,
442 U. S. 584 (1979), a.nd Greenholtz v. Inmates of Nebraska
Penal Complex, 442 U.S. 1 (1979). Reported below: 84 Wis.
2d 693,267 N. W. 2d 380.
No. 78-1136. CALIFORNIA v. P. S. W. Ct. App. Cal., 2d
App. Dist. Certiorari granted, judgment vacated, and case
remanded for further consideration in light of Fare v. Michael
C., 442 U.S. 707 (1979). Reported below: 84 Cal. App. 3d
520, 148 Cal. Rptr. 735.
:,
i!
,i
,,
i
'....
ORDERS 903
443 U.S. June 25, 1979
No. 78-567. ROBBINS v. CALIFORNIA. Ct. App. Cal., 1st
App. Dist. Certiorari granted, judgment vacated, and case
remanded for further consideration in light of Arkansas v.
Sanders, 442 U.S. 753 (1979).
No. 78-1273. NATIONAL JEWISH HOSPITAL & RESEARCH
CENTER v. NATIONAL LABOR RELATIONS BOARD. C. A. 10th
Cir. Certiorari granted, judgment vacated, and case remanded
for further consideration in light of NLRB v. Baptist
Hospital, Inc., 442 U. S. 773 (1979). Reported below: 593
F. 2d 911.
No. 78-1398. SHrFFRIN ET AL. v. BRATTON ET AL. C. A.
7th Cir. Certiorari granted, judgment vacated, and case
remanded for further consideration in light of Touche Ross
& Co. v. Redington, 442 U. S. 560 (1979). Reported below:
585 F. 2d 223.
No. 78-5617. McKENZIE v. MONTANA. Sup. Ct. Mont.
Motion of petitioner for leave to proceed in forma pauperis
and certiorari granted. Judgment vacated and case remanded
for further consideration in light of Sandstrom v. Montana,
442 U. S. 510 (1979). Reported below: 177 Mont. 280, 581
P. 2d 1205.
No. 78- 6179. WHISENHUNT v. GEORGIA. Ct. App. Ga.
Motion of petitioner for leave to proceed in forma pauperis
and certiorari granted. Judgment vacated and case remanded
for further consideration in light of Sandstrom v. Montana,
442 U. S. 510 (1979), and Ulster County Court v. Allen, 442
U. S. 140 (1979). Reported below: 146 Ga. App . .571, 246
S. E. 2d 691.
Miscellaneous Orders
No. D-155. IN RE DISBARMENT OF REAVES. Disbarment
entered. [For earlier order herein, see 440 U. S. 932.]
II
II
904 OCTOBER TERM, 1978
June 25, 1979 443 U.S.
No. A-1021 (78-1749). BLAKLEY v. FLORIDA. Dist. Ct.
App. Fla., 4th Dist. Application for bail, addressed to
MR. JUSTICE MARSHALL and referred to the Court, denied.
Certiorari Granted
No. 78-1654. BRANTI v. FINKEL ET AL. C. A. 2d Cir.
Certiorari granted. Reported below: 598 F. 2d 609.
Certiorari Denied. (See also Nos. 78-1638 and 78-5658,
supra.)
No. 77-6956. CHANEY V. WAINWRIGHT, SECRETARY, DEPARTMENT
OF OFFENDER REHABILITATION OF FLORIDA. C. A.
5th Cir. Certiorari denied. Reported below: 570 F. 2d 1391.
No. 78--493. REDINGTON, TRUSTEE v. ToucHE Ross & Co.
ET AL.; and
No. 78-526. SECURITIES INVESTOR PROTECTION CORP. V.
ToucHE Ross & Co. ET AL. C. A. 2d Cir. Certiorari denied.
Reported below: 592 F. 2d 617.
No. 78-1081. DAWSON v. MARYLAND. Ct. Sp. App. Md.
Certiorari denied.
No. 78-1441. BANTA ET AL. V. FIREFIGHTERS INSTITUTE FOR
RACIAL EQUALITY ET AL. C. A. 8th Cir. Certiorari denied.
Reported below: 588 F. 2d 235.
N 0. 78-1765. SERBIAN EASTERN ORTHODOX DIOCESE FOR THE
UNITED STATES AND CANADA, AN ILLINOIS CORPORATION, ET AL.
V. SERBIAN EASTERN ORTHODOX DIOCESE FOR THE UNITED
STATES AND CAN ADA, A RELIGIOUS BooY, ET AL. Sup. Ct. Ill.
Certiorari denied. Reported below: 74 Ill. 2d 574, 387 N. E.
2d 285.
No. 78-5041. PHILLIPS v. Missouru. Sup. Ct. Mo. Certiorari
denied. Reported below: 563 S. W. 2d 47.
No. 78-5712. DE MARCO v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 586 F. 2d 845.
ORDERS 905
443 U.S. June 25, 1979
No. 78-6283. ADAMS v. ILLINOIS. App. Ct. Ill., 1st Dist.
Certiorari denied. Reported below: 62 Ill. App. 3d 1105, 382
N. E. 2d 889.
No. 78-6730. GUNTER v. KENTUCKY. Sup. Ct. Ky. Certiorari
denied. Reported below: 576 S. W. 2d 518.
No. 77-1032. CITY OF COLUMBUS ET AL. v. LEONARD ET AL.
C. A. 5th Cir. Certiorari denied. Reported below: 565 F. 2d
957.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE
and MR. JUSTICE BLACKMUN join, dissenting.
Respondents were dismissed from their positions with the
Columbus Police Department on May 31, 1971, for deliberately
removing the American flag emblem from their uniforms
during a public demonstration. Four days later, respondents
requested hearings before the Police Hearing Board, a statecreated
board to which officers could appeal their discharges.
Counsel for respondents informed city officials that respondents
"are anxious to have a hearing on these matters and
request that all efforts be made to give us an early hearing
date." The Deputy Chief of Police responded by promptly
notifying respondents that a "Police Hearing Board will be
scheduled in the near future to hear your appeal and you will
be notified of the time, date and place the hearing will be
conducted." Only a week after receiving the letter granting
their request for a Police Hearing Board, respondents, apparently
not satisfied to invoke only the state review process, also
filed the federal civil rights action now before us. Respondents
claimed, inter alia, that the failure to accord them a
hearing before they were discharged violated both their Fourteenth
Amendment right to due process and Columbus City
Ordinance No. 71-7 (1971) .1
1 The second prayer of the respondents' complaint asked:
"2. That, this Court exercise its pendent jurisdiction and Chief of Police,
B. F. McGuffey be preliminarily and permanent.ly enjoined from dis906
OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443U.S.
Hearings were initially scheduled before the Police Hearing
Board for June 28, 1971, but, at the request of respondents'
counsel, postponed until mid-July. The dismissals of respondents
Leonard and White were unanimously upheld by the
Board; the remaining dismissals were upheld on 4--2 votes.
Although review of the Board's decisions was clearly available
in state court, see Ball v. Police Committee of City of
Atlanta, 136 Ga. App. 144, 145, 220 S. E. 2d 479, 480 (1975),
respondents chose not to avail themselves of the further
state proceedings. Instead, having lost in the first stage
of the state remedial process, respondents decided to change
horses and pursue their action in federal court.
On April 17, 1975, the District Court for the Middle District
of Georgia dismissed respondents' federal action. The District
Court ruled that respondents could not pursue state remedies
part way and then switch in midstream to a federal forum;
having chosen initially to invoke state remedies, that route
must be exhausted.
"[Respondents] seek to reli tigate the same cause of
action, based on the same set of facts, merely by changing
legal theories and sovereignties. They do so despite the
availability of a state process of judicial review of decisions
of quasi-judicial tribunals such as the Police Hearing
Board."
Dismissal of respondents' complaint was also supported by
federal principles of abstention, since respondents claim for
relief relied in part
"on the alleged misapplication of a local ordinance which
charging plaintiffs ... on the grounds that he lacks the power or authority
under City of Columbus Ordinance 71-7 to discharge police officers
summarily as he did on May 31, 1971, and enjoin the Chief of Police, the
Police Department and all other defendants from refraining to reinstate
said plaintiffs and from withholding back pay from May 31, 1971."
Petitioners also claimed that their dismissals violated their First Amendment
rights of speech, association, and petition.
-
905
ORDERS 907
REHNQUIST, J., dissenting
[respondents] ask this Court to construe in their prayers
for relief. The present federal action seeking reinstatement
would have been obviated had the [respondents]
prevailed in their view before any of the four levels of
state tribunals available to them."
The Court of Appeals for the Fifth Circuit reversed, holding,
without detailed analysis, that the District Court should have
reached the merits of respondents' claims. 565 F. 2d 957.
Petitioners contend, among other arguments, that respondents
should be required to exhaust their state remedies before
filing an action under 42 U. S. C. § 1983 and that the District
Court therefore properly dismissed the action. In Monroe v.
Pape, 365 U. S. 167 (1961), this Court held that one seeking
redress for the deprivation of federal rights need not initi.ate
state proceedings before filing an action under § 1983. 365
U.S., at 183. Here, however, we are confronted by a quite different
and unanswered exhaustion issue--"that of the deference
to be accorded sta.te proceedings which have already been
initi.ated and which afford a competent tribunal for the resolution
of federal issues." Cf. Huffman v. Pursue, Ltd., 420 U. S.
592, 609-610, n. 21 (1975) (emphasis added). The District
Court held that dismissal was in order under a doctrine that is
best described as "they who invoke must also exhaust." Such
a rule is not precluded by our prior decisions and indeed would
seem to be supported by the logic of prior opinions. I would
therefore grant certiorari to consider whether the Court of
Appeals erred when it concluded that the District Court should
have reached the merits of respondents' action.
Principles of federal-state comity have given rise to a
number of limitations on the exercise of federal jurisdiction
over state laws and actions. The equitable restraint doctrine
enunciated in Younger v. Harris, 401 U. S. 37 (1971), holds
that, absent "exceptional circumstances," a federal court
should not interfere with pending state criminal or civil
908 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
proceedings in which the State has an important interest.2
See, e. g., Huffman v. Pursue, Ltd., supra; Juidice v. Vail, 430
U.S. 327 (1977); Trainor v. Hernandez, 431 U.S. 434 (1977);
Moore v. Sims, 442 U.S. 415 (1979).
The federal action must be dismissed not only where it
threatens to interfere with active state proceedings but also
where state proceedings have ended because of the failure of
the federal plaintiff to appeal an adverse state decision. In
Huffman v. Pursue, Ltd., supra, for example, a state trial court
ordered the respondent's theater closed and all personal property
used in its operation seized and sold. Rather than
appealing this decision, the respondent brought a § 1983 action
in federal court seeking to enjoin enforcement of the state
court's judgment. We held that the Federal District Court's
action in granting the injunction was improper under Younger.
Even though the state trial court judgment might have become
final, "a necessary concomitant of Younger is that a party ...
must exhaust his state appellate remedies before seeking relief
in the District Court." 420 U. S., at 608.
"Virtually all of the evils at which Younger is directed
would inhere in federal intervention prior to completion
of state appellate proceedings, just as surely as they would
if such intervention occurred at or before trial. Inter-
2 As noted in Huffman v. Pursue, Ltd., 420 U. S. 592, 6()()...601 (1975),
in Younger we recognized that the doctrine of equitable restraint "is
based in part on the traditional doctrine that a court of equity should
stay its hand when a movant has an anequate remedy at law, and that
it 'particularly should not act to restrain a criminal prosecution.' [401
U. S.,] at 43. But we went on to explain that this doctrine 'is reinforced
by an even more vital consideration,' an aspect of federalism which we
described as
"'the notion of "comity," that is, a proper respect for state functions, a
recognition of the fact that the entire country is made up of a Union of
separate state governments, and a continuance of the belief that the
National Government will fare best if the States and their institutions are
left free to perform their separate functions in their separate ways.'
Id., at 44."
II
Ii
I,
I'
II
905
ORDERS 909
REHNQUIST, J., dissenting
vention at the later stage is if anything more highly
duplicative, since an entire trial has already taken place,
and it is also a direct aspersion on the capabilities and
good faith of state appellate courts ....
"Federal post-trial intervention, in a fashion designed
to annul the results of a state trial, also deprives the
States of a function which quite legitimately is left to
them, that of overseeing trial court dispositions of constitutional
issues which arise in civil litigation over which
they have jurisdiction. We think this consideration to
be of some importance because it is typically a judicial
system's appellate courts which are by their nature a
litigant's most appropriate forum for the resolution of
constitutional contentions. Especially is this true when,
as here, the constitutional issue involves a statute which
is capable of judicial narrowing. In short, we do not
believe that a State's judicial system would be fairly
accorded the opportunity to resolve federal issues arising
in its courts if a federal district court were permitted to
substitute itself for the State's appellate courts." Id.,
at 608-609.
Here, the state proceedings were initiated by respondents
rather than by the State. But this only strengthens the
rationale for requiring respondents to exhaust their state
appellate remedies. Respondents invoked the resources of the
State to vindicate what they believed to have been illegal
dismissals. Having lost the first round of this contest, they
should not be allowed to abandon it and transfer the contest
to another arena. As in Huffman, such belated forum shifting
is "highly duplicative" and "a direct aspersion on the capabilities
and good faith of state appellate courts." Action by a
federal district court also would deprive the state appellate
courts "of a function which quite legitimately is left to them."
A requirement that respondents exhaust state remedies that
they have themselves initiated is particularly appropriate here
910 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
where respondents' claim for relief rests in part on state law.
On appeal, the Georgia courts may well have found that the
dismissal of respondents without a hearing was unlawful under
Columbus City Ordinance No. 71-7 (1971) , obviating much,
if not all, of respondents' federal claim for relief and avoiding
the federal constitutional issues that the District Court may
now have to decide. In Boehning v. Indiana Employees Assn.,
423 U. S. 6 (1975), a discharged employee brought suit in
federal court under § 1983 alleging procedural due process
violations even though "controlling state statutes, as yet
unconstrued by the state courts, might require the hearing
demanded ... and so obviate decision on the constitutional
issue." 423 U. S., at 6. We held that under these circumstances
the District Court properly decided to "abstai [n]
until construction of the Indiana statutes had been sought in
the state courts." Ibid. The similar abstention concerns
present here, in combination with respondents' invocation of
their state remedies, support the District Court's dismissal of
respondents' action because of their failure to exhaust state
appellate remedies.
As noted earlier, Monroe v. Pape is not to the contrary.
In Monroe, we merely held that a federal plaintiff need not
initiate state proceedings before filing a § 1983 action. According
to the Court, this conclusion flowed from the purpose
of the Civil Rights Act "to provide a federal remedy where
the state remedy, though adequate in theory, was not available
in practice." 365 U.S., at 174 (emphasis added). Here,
after deliberately invoking state review proceedings, respondents
should not be heard to challenge the state procedures as
either "not available in practice" or otherwise inadequate.
Nor indeed have respondents attempted to raise such a
challenge.
Quite a.part from this distinction, the time may now be ripe
for a reconsideration of the Court's conclusion in Monroe that
the "federal remedy is supplementary to the state remedy, and
-....
ORDERS 911
443 U. S, June 25, 1979
the latter need not be first sought and refused before the
federal one is invoked." Id., at 183. As noted earlier, the
Court believed that this conclusion followed from the purpose
of the Civil Rights Act "to provide a federal remedy
where the state remedy, though adequate in theory, was not
available in practice." Id., at 174 ( emphasis added). But
this purpose need not bar exhaustion where the State can
demonstrate that there is an available and adequate state
remedy. Indeed, scholarly commentators have soundly criticized
the Court for holding to the contra.ry. See, e. g.,
Note, Limiting the Section 1983 Action in the Wake of Monroe
v. Pape, 82 Harv. L. Rev. 1486 (1969). In Monell v.
New York City Dept. of Social Services, 436 U. S. 658, 663
(1978), the Court, in examining another section of Monroe v.
Pape, "overrule [ d] Monroe v. Pape ... insofar as it holds
that local governments are wholly immune from suit under
§ 1983." The Court having reopened that portion of Monroe
v. Pape, I would take the opportunity afforded by this case
to reconsider the Court's conclusion as to exhaustion of stat~
remedies. Not only is the Court's conclusion open to serious
question, as noted earlier, but the conclusion was reached in
an almost off-the-cuff manner, in distinct contrast to that
portion of Monroe overruled by the Court in Monell.
For all of these reasons, I dissent from the denial of
certiorari.
No. 77-1481. WEEKS ET AL. v. SIMPSON. C. A. 8th Cir.
Certiorari denied. THE CHIEF JusTICE, MR. JusTICE BLACKMUN,
and MR. JusTICE REHNQUIST would grant certiora.ri.
Reported below: 570 F. 2d 240.
No. 78-971. UNITED STATES v. STEVIE ET AL. C. A. 8th
Cir. Motion of respondent Robert C. Stevie for leave to proceed
in forma pauperis granted. Certiorari denied. MR.
JusTICE STEWART would grant certiorari. Reported below:
582 F. 2d 1175 .
912 OCTOBER TERM, 1978
June 25, 1979 443 U.S.
No. 78-699. CALIFANO, SECRETARY OF HEALTH, EnuCATION,
AND WELFARE v. MATTERN. C. A. 3d Cir. Motion of respondent
for leave to proceed in forma pauperis granted.
Certiorari denied. Reported below: 582 F. 2d 248.
No. 78-5504. TAMILIO v. NEW YoRK. App. Div., Sup.
Ct. N. Y., 2d Jud. Dept. Certiorari denied. MR. JUSTICE
BRENNAN and MR. JUSTICE MARSHALL would grant certiorari.
Reported below: 63 App. Div. 2d 744, 405 N. Y. S. 2d 284.
No. 78--6058. SINK v. UNITED STATES; and
No. 78-6088. GRIM v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. MR. JusTICE STEWART and MR. JusTICE
MARSHALL would grant certiorari. Reported below: 586 F.
2d 1041.
No. 78--6076. DESANTIS v. NEW YoRK. Ct. App. N. Y.
Certiorari denied. MR. JUSTICE STEWART would grant certiorari.
Reported below: 46 N. Y. 2d 82, 385 N. E. 2d 577.
No. 78-6150. MINER v. NEw YORK. Ct. App. N. Y. Certiorari
denied. MR. JusTICE BRENNAN and MR. JusTICE
BLACKMUN would grant certiorari. Reported below: 46 N. Y.
2d 181, 385 N. E. 2d 1046.
No. 78--6319. GuzMAN v. LouISIANA. Sup. Ct. La. Certiorari
denied. MR. JusTICE MARSHALL would grant certiorari.
Reported below: 362 So. 2d 744.
No. 78--6518. McKENZIE v. MONTANA. Sup. Ct. Mont.
Certiorari denied. Reported below: See 177 Mont. 280, 581
P. 2d 1205.
MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL,
dissenting.
Adhering to our views that the death penalty is in all circumstances
cruel and unusual punishment prohibited by the
Eighth and Fourteenth Amendments, Gre(Jg v. Georgia, 428
U. S. 153, 227, 231 (1976), we would grant certiorari and
vacate the death sentence in this case.
'
11
I:
I
:
I
ORDERS
443 U.S. June 26, 27, 28, July 2, 1979
JUNE 26, 1979
Dismissal Under Rule 60
913
No. 78-1436. UNION LIGHT, HEAT & PowER Co. ET AL. v.
RUBIN, U. S. DISTRICT JuDGE. C. A. 6th Cir. Certiorari
dismissed under this Court's Rule 60.
JUNE 27, 1979
Miscellaneous Orders
No. A-1084. GOI,DEN ET AL. v. BARR ET AL. Application
for stay of proceedings in the California state courts as to the
United Methodist Church, addressed to MR. JUSTICE BRENNAN
and referred to the Court, denied. MR. JUSTICE WHITE and
MR. JusTICE BLACKMUN took no part in the consideration or
decision of this application.
No. A-1089. WoE ET AL. v. NEBRASKA STATE DEPARTMENT
OF PUBLIC WELFARE ET AL. Application to vacate stay entered
May 25, 1979, by the United States Court of Appeals
for the Eighth Circuit, addressed to MR. JusTICE MARSHALL
and referred to the Court, denied. MR. JusTICE WHITE took
no part in the consideration or decision of this application.
JUNE 28, 1979
Dismissal Under Rule 60
No. 78-1646. STANDARD BRANDS, INc. v. GENERAL WAREHOUSEMEN
& HELPERS LOCAL 767, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS
OF AMERICA. C. A. 5th Cir. Certiorari dismissed under this
Court's Rule 60. Reported below: 579 F. 2d 1282.
JULY 2, 1979
Appeal Dismissed
11 No. 78-155. PHILADELPHIA NEWSPAPERS, INc., ET AL. v.
II JEROME, JUDGE; SOCIETY OF PROFESSIONAL JOURNALISTS ET AL.
II
-
914 OCTOBER TERM, 1978
July 2, 1979 443U.S.
v. BROWN, JuDGE; MONTGOMERY PUBLISHING Co. v. BROWN,
JUDGE; SOCIETY OF PROFESSIONAL JOURNALISTS ET AL. V.
HONEYMAN, JUDGE; and MONTGOMERY PUBLISHING Co. v.
HONEYMAN, JuDGE. Appeal from Sup. Ct. Pa. dismissed for
want of substantial federal question. Reported below: 478
Pa. 484, 387 A. 2d 425.
Certiorari Granted-Affirmed. (See No. 78-5795, ante, p.
713.)
Certiorari Granted-Vacated and Remanded
No. 78-973. HARRINGTON ET AL. V. UNITED STATES;
No. 78-987. DOLMAN ET AL. v. UNITED STATES; and
No. 78- 1212. MINNICH ET AL. v. UNITED STATES. C. A.
9th Cir. Certiorari granted, judgment vacated, and cases remanded
for further consideration in light of Washington v.
Washington State Commercial Passenger Fishing Vessel Assn.,
ante, p. 658. Reported below: 584 F. 2d 876.
No. 78-1015. BALDWIN ET AL. v. MILLS ET AL. Sup. Ct.
Fla. Certiorari granted, judgment vacated, and case remanded
for further consideration in light of Jones v. Wolf,
ante, p. 595. Reported below: 362 So. 2d 2.
No. 78-1144. LEONARD M. v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari granted, judgment vacated, and case
remanded for further consideration in light of Jackson v. Virginia,
ante, p. 307. MR. JUSTICE STEVENS dissents. Reported
below: 85 Cal. App. 3d 887, 149 Cal. Rptr. 791.
Probable Jurisdiction Noted
No. 78-1840. CITY OF ROME ET AL. V. UNITED STATES ET AL.
Appeal from D. C. D. C. Probable jurisdiction noted. Reported
below: 472 F. Supp. 221.
.....
443 U.S.
Certiorari Denied
ORDERS
July 2, 1979
915
No. 78-781. SPECIAL SCHOOL DISTRICT No. 1, MINNEAPOLIS,
MINNESOTA, ET AL. v. BooKER ET AL. C. A. 8th Cir.
Certiorari denied. Reported below: 585 F. 2d 347.
No. 78-795. EMPRESA LrNEAs MARITIMAS ARGENTINAS v.
SAMUELS. C. A. 5th Cir. Certiorari denied. Reported
below: 573 F. 2d 884.
No. 78-897. AUS.TIN INDEPENDENT SCHOOL DISTRICT V.
UNITED STATES ET AL. C. A. 5th Cir. Certiorari denied. Reported
below: 579 F. 2d 910.
No. 78-6127. ELEUTERIO v. WAINWRIGHT, SECRETARY, DEPARTMENT
OF OFFENDER REHABILITATION OF FLORIDA. C. A.
5th Cir. Certiorari denied. Reported below: 587 F. 2d 194.
No. 78-1041. HOPKINS, CORRECTIONS DIRECTOR V. FABRITZ.
C. A. 4th Cir. Motion of respondent for leave to proceed in
forma pauperis granted. Certiorari denied. Reported below:
583 F. 2d 697.
No. 78- 1131. BoARD OF EDUCATION oF JEFFERSON CouNTY,
KENTUCKY, ET AL. v. HAYCRAFT ET AL. C. A. 6th Cir. Certiorari
denied. MR. JUSTICE BLACKMUN, MR. JusTICE POWELL,
and MR. JUSTICE REHNQUIST would grant certiorari. Reported
below: 585 F. 2d 803.
No. 78-1922. AMERICAN FEDERATION OF LABOR & CONGRESS
OF INDUSTRIAL ORGANIZATIONS ET AL. V. KAHN, CHAIRMAN,
COUNCIL ON w AGE AND PRICE STABILITY, ET AL. C. A. D. C.
Cir. Motion to dispense with printing petition and to expedite
consideration granted. Certiorari denied. MR. JusTICE
BRENNAN, MR. JuSTICE WHITE, and MR. JUSTICE MARSHALL
would grant certiorari. Reported below: 199 U.S. App. D. C.
300, 618 F. 2d 784 .
916 OCTOBER TERM, 1978
July 28, August 8, 22, 1979
JULY 28, 1979
Miscellaneous Order
443 U.S.
No. A-89 (78-610). COLUMBUS BOARD OF EDUCATION ET AL.
v. PENICK ET AL., ante, p. 449. Motion to issue judgment, or
in the alternative to vacate stay, presented to MR. JUSTICE
WHITE, and by him referred to the Court. It is ordered that
the stay entered by MR. JUSTICE REHNQUIST on August 11,
1978 [ 439 U. S. 1348], be vacated. It is further ordered that
the judgment of this Court shall issue forthwith. MR. Jus-
TICE REHNQUIST took no part in the consideration or decision
of these orders.
AUGUST 8, 1979
Dismissal Under Rule 60
No. 79-14. PACIFIC FAR EAST LINE, INC. v. ZmPOLI, U.S.
DISTRICT JuoGE (R. J. REYNOLDS ToBAcco Co. ET AL., REAL
PARTIES IN INTEREST). C. A. 9th Cir. Certiorari dismissed
under this Court's Rule 60.
AUGUST 22, 1979
Miscellaneous Order
No. A-2 (79-145). CALIFORNIA v. MINJARES. Application
for recall and stay of mandate of the Supreme Court of California,
addressed to MR. JUSTICE BLACKMUN and referred to
the Court, denied. MR. JusTICE BLACKMUN would grant the
application.
MR. JusTICE REHNQUIST, with whom THE CHIEF JusTICE
joins, dissenting from denial of stay.
In the ordinary case, anything more than the most summary
statement of the reasons of an individual Justice for dissenting
from the disposition of an application for a stay by the full
Court would be both a useless and wasteful consumption of the
dissenter's time. I believe, though, that this is not the ordinary
case, but the culmination of a sport of fox and hound
which was begun by this Court's decision in Weeks v. United
-
ORDERS 917
916 REHNQursT, J., dissenting
States, 232 U.S. 383 (1914), 65 years ago. So many factors
material to that decision, and to Mapp v. Ohio, 367 U. S. 643
(1961), which applied it to the States, have occurred after the
rendition of these decisions that I think a re-evaluation of the
so-called "exclusionary rule" enunciated by Weeks is overdue.
Because of double jeopardy considerations, I am not prepared
to state flatly that this case would not be moot as a result of a
verdict of acquittal by the time this Court comes to pass on
the State's petition for certiorari, and I am therefore filing this
opinion as a dissent from the denial of a stay of the judgment
of the Supreme Court of California suppressing evidence, the
granting of which could prevent any possibility of mootness.
See Fare v. Michael C., 439 U.S. 1310 (1978) (REHNQUIST, J.,
in chambers).
The anomalous consequences of the exclusionary rule are
readily apparent from an examination of the police conduct in
this case. The officers who conducted the search were responding
to a report of a robbery that had recently been committed.
The robbery took place around 8:30 p. m. on December
19, 1975, at a Safeway Store in Fremont, Cal. It was
committed in the presence of several witnesses by two individuals
armed with handguns. One of the witnesses followed
the two men, observed them get into a car, and trailed the
car for several miles until he was able to identify it as a 1968
or 1969 Ford Fairlane and to write down the license number.
The witness then went directly to the police station and reported
what he had seen. At approximately 9 p. m., the
police department broadcast a description of the getaway vehicle
and its license number. Shortly thereafter, a Fremont
police officer spotted a vehicle matching the description, called
for backup units, and stopped the vehicle. The driver, respondent,
was ordered out of the car, searched, and advised he
was under arrest for robbery. He was the only person in the
vehicle and fit the description of one of the suspects. The
officers also searched the passenger compartment of the car,
918 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
but neither that search nor the search of respondent revealed
any evidence of the crime or the whereabouts of the second
robber. After an unavailing attempt to locate the key to the
car's trunk, the officers had the car towed to the city corporation
yard. Upon its arrival, the officers picked the lock to the
trunk and discovered it contained a red tote bag. They
opened the tote bag, which contained clothing similar to that
described by witnesses to the robbery, three guns, and a roll of
pennies in a wrapper from the bank used by Safeway.
When the officer who initially stopped the vehicle was asked
why he did not obtain a warrant while "making the decision
to search the car and the trunk," he stated: "Basically, I think,
time. In other words, by searching without the search warrant,
we would save a matter of hours." He was then asked
why time was a factor at this stage, and responded: "Well, we
were still looking for a second suspect." The trial court denied
respondent's motion to suppress the evidence discovered in the
tote bag. Respondent was convicted of two counts of first-degree
robbery and was found to have been armed at the time of
his arrest. The Supreme Court of California, however, reversed
the conviction. It concluded that although a warrantless
search of an automobile, if based on probable cause to believe
that the auto contains contraband or evidence of a crime,
is permissible when it takes place after the auto has been
towed to a police station, Chambers v. Maroney, 399 U. S. 42,
52 (1970), a search of a container in the automobile is invalid
unless the officers first obtain a warrant.
The foregoing discussion reveals that respondent was apprehended
as a result of conscientious police work, and that
the subsequent search of the trunk of his auto occurred in the
course of an ongoing investigation, while the second suspect
was still on the loose. The case is thus not one in which the
officers lacked probable cause to arrest respondent and t.o
search the trunk of his auto and the tote bag; it appears rather
that "the criminal is to go free" solely because of a good-faith
-
ORDERS 919
916 REHNQUIST, J ., dissenting
error in judgment on the part of the arresting officers, who
were not sufficiently prescient to realize that while it was constitutionally
permissible for them to search the trunk of an
automobile at the city corporation yard under the exigency
exception to the warrant requirement, courts would later draw
a distinction between searching the trunk and searching a tote
bag in the trunk. This distinction would obtain even though
it was equally likely that the tote bag contained the evidence
they were looking for, and they had no reason, prior to opening
the trunk, to anticipate that such evidence might be hidden
from their view because it was in the tote bag.
I do not claim to be an expert in comparative law, but I feel
morally certain that the United States is the only nation in
the world in which the most relevant, most competent evidence
as to the guilt or innocence of the accused is mechanically
excluded because of the manner in which it may have been
obtained. Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388, 415 (1971) (BURGER, C. J., dissenting); see also
Stone v. Powell, 428 U.S. 465,499 (1976) (BURGER, C. J., concurring).
This unique jurisprudential rule, as discussed in
Stone v. Powell, imposes tremendous costs on the judicial
process at criminal trials and on direct review:
"The costs of applying the exclusionary rule even at
trial and on direct review are well known: the focus of
the trial, and the attention of the participants therein,
are diverted from the ultimate question of guilt or innocence
that should be the central concern in a criminal
proceeding. Moreover, the physical evidence sought to
be excluded is typically reliable and often the most probative
information bearing on the guilt or innocence of
the defendant. As Mr. Justice Black emphasized in his
dissent in Kaufman:
" 'A claim of illegal search and seizure under the
Fourth Amendment is crucially different from many
other constitutional rights; ordinarily the evidence
920 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443U.S.
seized can in no way have been rendered untrustworthy
by the means of its seizure and indeed often
this evidence alone establishes beyond virtually any
shadow of a doubt that the defendant is guilty.'
394 U. S., at 237.
"Application of the rule thus deflects the truthfinding
process and often frees the guilty. The disparity in particular
cases between the error committed by the police
officer and the windfall afforded a guilty defendant by
application of the rule is contrary to the idea of proportionality
that is essential to the concept of justice. Thus,
although the rule is thought to deter unlawful police
activity in part through the nurturing of respect for
Fourth Amendment values, if applied indiscriminately it
may well have the opposite effect of generating disrespect
for the law and administration of justice." Id., at 489-
491 (footnotes omitted).
If I am correct in this belief, the Court has made a wrong turn
at some point between its decision in Weeks, 65 years ago, and
the present case. See Burger, Who Will Watch the Watchman?,
14 Am. Univ. L. Rev. 1 (1964).
In Weeks, the Court held, almost casually, that evidence
seized in violation of the Fourth Amendment was inadmissible
against the accused at a federal criminal trial. Weeks was
decided in 1914 when the federal Criminal Code was still a
rather slim volume. The villains of the 1914 federal Code, and
thus the beneficiaries of the Weeks rule, were smugglers, federal
income tax evaders, count€rfeiters, and the like. The defendant
in Weeks itself was charged with the unlawful use of
the mails to transport lottery tickets. It is quite conceivable
that society can tolerate an occasional counterfeiter or smuggler
going unwhipped of justice because of what seems to the
great majority of the citizens of the country to be a technical
violation of the rights secured to him by the Fourth Amendment
to the United States Constitution. The societal reaction
ORDERS 921
916 REHNQUIST, J., dissenting
could be expected to be quite different today, when Weeks
serves to free the perpetrators of crimes affecting life and property,
crimes which have traditionally been the principal responsibility
of the States to enforce and administer.
In Byars v. United States, 273 U. S. 28 (1927), the Court
held that "probable cause'' could only be measured by objective
facts known to the police officer prior to the search. The
search in Byars was conducted pursuant to a warrant supported
by the affiant's statement that he had "good reason"
to believe that the defendant had intoxicating liquors and
related articles in his possession. The search proved the
affiant correct, producing whiskey-bottle stamps. The Court
held that the search was conducted in violation of the Fourth
Amendment, because under Fourth Amendment standards, it
was not "material that the search was successful in revealing
evidence of a violation of a federal statute." Id., at 29.
This result, while taken for granted today, was not inevitable.
The Court certainly could have held that discovery of the articles
sought is compelling evidence that the search was justified,
or that any violation of the Fourth Amendment in such
a case was harmless error.
In Wolf v. Colorado, 338 U. S. 25 (1949), the Court held
that the Fourth Amendment was applicable to the States by
incorporation through the Fourteenth Amendment. This was,
and remains, a thoroughly defensible proposition. Equally defensible,
was the proposition established by Mr. Justice Frankfurter's
majority opinion that the exclusionary rule of Weeks
was not a necessary concomitant of the Fourth Amendment.
In a 6---3 decision, the Court held that although the Fourth
Amendment applied against the States, the States were free to
choose any number of means of enforcing the Fourth Amendment
and were not required to adopt the exclusionary rule.
Mr. Justice Frankfurter relied on Judge Cardozo's opinion in
People v. DeFore, 242 N. Y. 13, 150 N. E. 585 ( 1926), concluding
that the exclusionary rule would not be applied in New
922 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
York. Cardozo's reasoning was cogently summarized in his
conclusion that there was no reason why" [t]he criminal is to
go free because the constable has blundered." Id., at 21, 150
N. E., at 587.
Mr. Justice Murphy wrote a dissenting opinion in which
Mr. Justice Rutledge joined. (Mr. Justice Douglas dissented
separately.) Mr. Justice Murphy's dissent was premised on
the belief that the exclusionary rule was the only effective
sanction for violations of the Fourth Amendment. He therefore
concluded that application of the Fourth Amendment to
the States without application of the exclusionary rule was a
nullity.
Twelve years later, by a vote of 6-3 in the case of Mapp v.
Ohio, 367 U. S. 643 (1961), this Court overruled Wolf v.
Colorado (MR. JuSTICE STEWART concurred in the judgment
on independent grounds without reaching the Fourth Amendment
issues). The Court held that the Fourteenth Amendment
did incorporate the exclusionary rule and therefore adherence
to that rule by the States was mandatory. The Court
essentially adopted the reasoning of Mr. Justice Murphy's Wolf
dissent, concluding that the exclusionary rule represented the
only feasible means of enforcing the Fourth Amendment.
The Mapp majority opinion, written by Mr. Justice Clark,
adopted the view, espoused by Mr. Justice Murphy, that a
person injured by a Fourth Amendment infraction had no
effective redress available. Police officers were generally impecunious,
preventing the recovery of money damages, and
county prosecutors who secured the conviction through use of
the illegally seized evidence would be unlikely to prosecute the
police officers responsible for producing the evidence.
Mapp was decided only 18 years ago. Application of the
exclusionary rule to the States is not supported by a long
tradition of history in its favor. It should therefore be judged
freely by its reason. Moreover, one of the central themes
in the procession of cases from Weeks to the present day has
been a continuing re-evaluation of past assumptions. Thus,
.....
ORDERS 923
916 REHNQUIST, J., dissenting
Mapp reassessed the factual and conceptual underpinnings of
Wolf in light of intervening cases and empirical data. See
367 U. S., at 651-653. Events that have intervened in the
18 years since Mapp and the 65 years since Weeks lead me to
believe that another such reassessment is in order. The justifications
for a rule once found compelling may no longer withstand
scrutiny.
Weeks, the seminal case on the necessity for the exclusionary
rule, seemed grounded upon an interpretation of the
Fourth Amendment itself. In holding· that illegally seized
evidence must be excluded in federal prosecutions, this Court
reasoned that if illegally seized evidence were admissible, "the
protection of the Fourth Amendment declaring [a] right to be
secure against such searches and seizures is of no value,
and ... might as well be stricken from the Constitution. The
efforts of the courts and their officials to bring the guilty to
punishment, praiseworthy as they are, are not to be aided by
the sacrifice of those great principles established by years of
endeavor and suffering which have resulted in their embodiment
in the fundamental law of the land. . . . To sanction
such proceedings would be to affirm by judicial decision a
manifest neglect if not an open defiance of the prohibitions
of the Constitution, intended for the protection of the people
against such unauthorized action." 232 U. S., at 393-394. Despite
Weeks' linkage of the exclusionary rule with the fundamental
guarantees of the Fourth Amendment, this Court held
in Wolf that the protections of the rule were not fundamental
enough to merit incorporation through the Fourteenth Amendment.
In Mapp, which overruled that portion of Wolf, a
plurality of this Court implied that the exclusionary rule was
a necessary corollary of the Fourth Amendment. See 367
U. S., at 655--657. Mr. Justice Black, in a concurrence, indicated
that the Fourth Amendment had to be read in conjunction
with the Fifth in order to justify the exclusionary rule.
See id., at 661; see also Stone v. Powell, 428 U. S., at 484 n. 21.
More recently, however, we have rejected the argument that
924 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
the Fourth Amendment mandates exclusion of evidence as a
necessary corollary to its guarantees against unreasonable
searches. In Stone v. Powell, for example, we "reaffirm[ed]
that the exclusionary rule is a judicially created remedy rather
than a personal constitutional right . . . . " Id., at 495
n. 37. This distinction manifests itself in those cases where
we have permitted admission of illegally seized evidence because
its exclusion would serve no deterrent purpose. See,
e. g., United States v. Calandra, 414 U. S. 338 (1974) (exclusionary
rule not applicable to grand jury proceedings).
Clearly, proponents of the exclusionary rule must look beyond
the corners of the Fourth Amendment for support.
A direct descendant of the constitutional rationale for the
exclusionary rule is the argument that the rule somehow
maintains the integrity of the judiciary. This argument received
a full exposition in Elkins v. United States, 364 U. S.
206 (1960). There, this Court relied upon its "supervisory
power over the administration of criminal justice in the federal
courts," and rejected the "silver platter" doctrine under which
federal authorities prosecuted defendants with evidence seized
illegally by state authorities. This practice, according to
Elkins, made federal courts "accomplices in the willful disobedience
of a Constitution they are sworn to uphold." Id.,
at 223. In Mapp, this Court also relied upon the "judicial
integrity'' argument, even though we have no supervisory
powers over the conduct of state courts.
There are several answers to the assertion that courts should
exclude illegally seized evidence in order to preserve their
integrity. First, while it is quite true that courts are not to
be participants in "dirty business," neither are they to be
ethereal vestal virgins of another world, so determined to be
like Caesar's wife, Calpurnia, that they cease to be effective
forums in which both those charged with committing criminal
acts and the society which makes the charge may have a fair
trial in which relevant competent evidence is received in order
to determine whether or not the charge is true. As Mr. JusORDERS
925
916 REHNQUIST, J ., dissenting
tice Stone noted in McGuire v. United States, 273 U. S. 95,
99 (1927), "[a] criminal prosecution is more than a game in
which the Government may be checkmated and the game lost
merely because its officers have not played according to rule."
Moreover, the judicial-integrity justification has on more
than one occasion failed to persuade this Court. In United
States v. Pelt-ier, 422 U.S. 531 (1975), the Court observed that
it had consistently refused to apply newly announced doctrines
of search-and-seizure law retroactively. In such cases,
the Court has recognized that the introduction of evidence
which had been seized by law enforcement officials in goodfaith
compliance with then-prevailing constitutional norms
did not make the courts "accomplices in the willful disobedience
of a Constitution they are sworn to uphold." Similarly,
in Stone v. Powell, we asserted that " [ w ]hile courts, of
course, must ever be concerned with preserving the integrity
of the judicial process, this concern has limited force as a justification
for the exclusion of highly probative evidence." 428
U. S., at 485. Although someone undoubtedly should be disciplined
when a deliberate violation of the Fourth Amendment
occurs, that proposition does not require the conclusion
that the whole criminal prosecution must be aborted to preserve
judicial integrity.
Of course, the "primary" justification for the exclusionary
rule is the need for deteiTence of illegal police conduct. See
Stone v. Powell, 428 U. S., at 486. But since Mapp, various
changes in circumstances make redress more easily obtainable
by a defendant whose constitutional rights have been violated.
Four months prior to the decision in Mapp, this Court resurrected
a long-dormant statute, § 1 of the Ku Klux Act, 42
U. S. C. § 1983, which gave a private cause of action for
redress of constitutional violations by state officials. Monroe
v. Pape, 365 U. S. 167 ( 1961). The subsequent developments
in this area have, to say the least, expanded the reach of that
statute. Monell v. New York City Dept. of Social Services,
436 U.S. 658 (1978), made not only the individual police offiI
I
;
926 OCTOBER TERM, 1978
REHNQUIST, J., dissenting 443 U.S.
cer who may have committed the wrong, and who may have
been impecunious, but also the municipal corporation which
employed him, equally liable under many circumstances.
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388
(1971), made individual agents of the Federal Bureau of
Narcotics suable for damages resulting from violations of
Fourth Amendment guarantees. In addition, many States
have :;;et up courts of claims or other procedures so that an
individual can as a matter of state law obtain redress for a
wrongful violation of a constitutional right through the state
mechanism.
In his dissent in Wolf v. Colorado, Mr. Justice Murphy disparaged
civil actions as a remedy for illegal searches and
seizures. Some of his objections have been vitiated by Monroe's
provision of a federal forum for the dispute or by
M onell's provision of a deep state pocket. As for other concerns
voiced by Mr. Justice Murphy, I believe that modern
juries can be trusted to return fair awards in favor of injured
plaintiffs who allege constitutional deprivations. If, as this
Court announced in Rogers v. Missouri Pacific R. Co., 352
U. S. 500 (1957), juries are capable of awarding damages
as between injured railroad employees and railroads, they
surely are capable of awarding damages as between one whose
constitutional rights have been violated and either the agent
who or the government agency that violated those rights.
Thus, most of the arguments advanced as to why the exclusionary
rule was the only practicable means for enforcing the
Fourth Amendment, whether or not they were true in 1949 or
1961, are no longer correct.
The most comprehensive study on the exclusionary rule is
probably that done by Dallin Oaks for the American Bar
Foundation in 1970. See Oaks, Studying the Exclusionary
Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970).
According to this article, it is an open question whether the
exclusionary rule deters the police from violating Fourth
Amendment protections of individuals. Whether or not this
ORDERS 927
916 REHNQUIST, J., dissenting
be the case, the exclusionary rule certainly deters the police
and prosecuting authorities from convicting many guilty
defendants.
There is no question that the police are badly in need of
rules that may be relatively easily understood in carrying out
their work of apprehending and assisting in convicting those
guilty of conduct made criminal by the legislature. There is
equally no doubt that those who have been damaged by official
action infringing on rights guaranteed them by the Constitution
should have an avenue for redress of that damage.
But it does not at all follow from either of these statements
that the forum for redress of the individual's rights and the
forum in which the police officer learns of the limitations on
his authority should be one and the same. It would be quite
rational, I think, for the criminal trial to take place either
without any application of the exclusionary rule in either
federal or state cases, or at least without any application in
state cases. A difference in approach between state and federal
prosecutions could be justified on the basis of the different
roles that state and federal law enforcement officials play
in our society, even today. See, e. g., Cady v. Dombrowski,
413 U. S. 433, 440--441 (1973). Not only has the list of federal
criminal statutes greatly expanded since 1914, but also
crimes against person and property-the traditional commonlaw
crimes-have largely remained the preserve of the State.
Thus, Mapp v. Ohio brought to bear in favor of accused murderers
and armed robbers a rule which had previously largely
had an application to bootleggers and purveyors of stolen
lottery tickets through the mail. This difference is not without
force in any reasoned perception by the members of the
society of how well the system of administration of criminal
justice as a whole is working.
The reasons for applying the exclusionary rule in the
criminal trial, as opposed to giving the individual criminal
defendant redress in some other forum quite a.part from the
question whether he is guilty or not of the criminal charges,
928 OCTOBER TERM, 1978
August 22, 30, 1979 443 U.S.
are substantially weaker today than they were either in 1949,
when Wolf v. Colorado was decided, or in 1961, when Mapp v.
Ohio was decided. Given these changes, I would grant the
stay and request the parties and the Solicitor General to brief
the question of wh~ther, and to what extent, the so-called
"exclusionary rule" of Weeks v. United States should be
retained.
AUGUST 30, 1979
Dismissal Under Rule 60
No. 78-1695. ANGELA CoMPANIA NAVIERA, S. A. v. P UBLIC
ADMINISTRATOR OF THE CouNTY OF NEW YORK. C. A. 2d Cir.
Certiorari dismissed under this Court's Rule 60. Reported
below: 592 F. 2d 58.
REPORTER'S NOTE
The next page is purposely numbered 1301. The numbers between
928 and 1301 were intentionally omitted, in order to make it possible
to publish in-chambers opinions with permanent page numbers, thus
making the official citations available upon publication of the preliminary
prints of the United States Reports.
1: I,
I
OPINIONS OF INDIVIDUAL JUSTICES
IN CHAMBERS
PACIFIC TELEPHONE & TELEGRAPH CO. v. PUBLIC
UTILITIES COMMISSION OF CALIFORNIA ET AL.
ON APPLICATION FOR STAY
No. A-101. Decided August 13, 1979*
Applications to stay, pending disposition of applicants' petitions for certiorari,
the Court of Appeals' mandate issued upon affirming the District
Court's denial of declaratory and injunctive relief against enforcement
of a rate order earlier promulgated by respondent California
Public Utilities Commission which ordered applicants to refund certain
charges paid by subscribers and to reduce certain rates, are denied,
and a previously issued temporary stay is dissolved. This Court previously
denied applicants' petitions for certiorari (and rehearing) to
review the Commission's rate order after the California Supreme Court
had denied applicants' request for review, and the applicants simply
seek to relitigate federal tax issues that were determined adversely to
them in such earlier proceedings, there being no intervening events to
change that outcome.
MR. JUSTICE REHNQUIST, Circuit Justice.
Applicants request that I continue in effect a temporary
injunction issued by the Court of Appeals for the Ninth Circuit
on April 2, 1979, pending disposition by the full Court of
their petitions for certiorari to review the judgment of the
Court of Appeals. On July 18, that court, in a consolidated
case in which both applicants were appellants, affirmed the
judgment of the United States District Court for the Northern
District of California denying applicants injunctive relief
*Together with No. A-102, General Telephone Co. v. Public Utilities
Commission of CaJ,if ornia et al., also on application for stay of the same
mandate.
1301
1302 OCTOBER TERM, 1978
Opinion in Chambers 443U.S.
against the enforcement of a rate order earlier promulgated
by respondent California Public Utility Commission (PUC).
The PUC in September 1977 (Decision No. 87838), had ordered
applicants to refund charges paid by subscribers before
1978 and to reduce certain of their rates for that and future
years. The PUC, however, stayed implementation of its order
pending judicial review. 600 F. 2d 1309, 1310 (CA9 1979).
After the Supreme Court of California denied applicants'
request for review, applicants petitioned this Court for certiorari.
Applicants argued that this Court should review the
PUC rate order because it was premised on the PUC's interpretation
of an unsettled question of federal tax law. They
claimed that if this interpretation subsequently proved incorrect,
they would be subject to substantial liability in back
taxes. Applicant Pacific Telephone also challenged the
PUC's decision on the ground that it violated the Due Process
Clause of the Fourteenth Amendment. The petitions were
denied on December 11, 1978, 439 U. S. 1052, with MR. Jus-
TICE MARSHALL and MR. JUSTICE BLACKMUN dissenting from
the order of denial. Petitions for rehearing were thereafter
denied on February 21, 1979, 440 U. S. 931. On March 14,
1979, the PUC terminated the stay of its own order of September
13, 1977, stating in its order so doing that "the avenues
of judicial review have been exhausted." 600 F. 2d, .at 1311.
The following day, applicants filed a complaint for declaratory
and injunctive relief in the United States District Court for
the Northern District of California. That court denied relief,
but the Court of Appeals granted its own temporary injunction
on April 2, 1979, pending consideration of applicants'
appeal from the order of the District Court. Last month, as
previously noted in this opinion, the Court of Appeals affirmed
the judgment of the District Court, dissolved its own injunction,
and denied applicants' request for a stay of mandate in
order that they might petition this Court for certiorari.
With this sort of procedural history, one would expect
II
-
PACIFIC TEL. & TEL. CO. v. PUBLIC UTILITIES COMM'N 1303
1301 Opinion in Chambers
applicants' petitions for certiorari to deal principally with
questions arising under the United States Constitution or laws
governing the setting of rates by state utility commissions for
public utilities. But the questions which applicants seek to
have reviewed on certiorari pertain to the application of federal
tax statutes as they relate to depreciation which may be
claimed by public utilities. Since it is this type of question
which applicants seek to litigate if certiorari is granted, one
would likewise expect either an agency or officer of the United
States having some responsibility for administering these tax
statutes to be named as respondents, instead of the California
PUC or intervening California municipal corporations. Without
dwelling further on the anomalous nature of applicants'
petitions for certiorari, I have concluded that their actions in
the United States District Court for the Northern District of
California begun in March 1979, were simply an effort to
relitigate issues which had been determined adversely to them
by the administrative and judicial processes of the State of
California, and with regard to which this Court denied certiorari
and denied rehearing earlier this Term. These denials
took place notwithstanding the· fact that the Solicitor General
urged the Court to grant certiorari and decide the issues
presented by the petitions.
The PUC in its Decision No. 90094, rendered on March 14,
1979, after the proceedings in this Court, was doing no more
than formally stating that the conditions on which its stay had
been granted-exhaustion of judicial review-had occurred,
and therefore the stay expired by its own terms. The PUC
dissolved this stay despite applicants' contention that the
PUC's interpretation of federal tax law in Decision No. 87838
was incorrect and that the rate order would consequently result
in the Internal Revenue Service's assessment of substantial
tax deficiencies against applicants. In ,my opinion, the
determination of whether or not the PUC's rate order should
have been stayed pending resolution of the federal tax issues
I
I
1304 OCTOBER TERM, 1978
Opinion in Chambers 443 U.S.
was, at this late stage in the proceedings, entirely a matter for
the State to decide.
One need not question the assertion of applicants that very
large financial stakes hinge on the manner in which the IRS,
subject to whatever review of its action is provided by law,
treats the refund and rate reduction orders imposed by the
PUC's order of September 13, 1977. Nor need one doubt that
this Court had jurisdiction, under cases such as Zacchini v.
Scripps-Howard Broadcasting Co., 433 U. S. 562 (1977), to
review applicants' earlier petitions for certiorari in Nos. 78~
606 and 78-607, 0. T. 1978, on the ground that the PUC had
reached a decision based on a misapprehension of federal law
which it might not have reached had it correctly understood
federal law. But that is now water over the dam. This
Court denied those petitions earlier this Term, and denied
petitions for rehearing.
If I thought it necessary in passing upon this stay application
to determine the present-day correctness of this Court's
reading of California law in Napa Valley Co. v. Railroad
Comm'n, 251 U. S. 366 ( 1920), I would naturally defer to the
opinion of the Court of Appeals, which must deal with California
law more frequently than does this Court. But I do
not actually think it is necessary to make this determination;
a State may enunicate policy through an administrative
agency, as well as through its courts, and so long as there is an
opportunity for judicial review the fact that such review may
be denied on a discretionary basis does not make the agency's
action any less the voice of the State for purposes of this
Court's jurisdiction or for purposes of federal-state comity.
See United St.ates v. Utah Construction Co., 384 U. S. 394,
419-423 (1966). Nor is this a case where any claim of bias
is made against the agency, see Gibson v. Berryhill, 411 U. S.
564 (1973), or where an action of the federal courts in refusing
to allow applicants to relitigate the merits of their claim on
which this Court has previously denied certiorari amounted
i
I
Ii
PACIFIC TEL. & TEL. CO. v. PUBLIC UTILITIES COMM'N 1305
1301 Opinion in Chambers
to the imposition of a requirement of "exhaustion of administrative
remedies." Here, the administrative action was the
source of the claimed wrong, not a possible avenue for its
redress.
The net of it is that I believe applicants' federal-court litigation
is new wine in old bottles. When it was new wine in new
bottles, last Term, this Court denied certiorari, and I have no
reason to believe that any intervening events would change
that outcome. Accordingly, without considering the second
part of the requirement which applicants must meet in order
to obtain a stay-the so-called "stay equities"-the temporary
stay which I previously issued is dissolved forthwith, and applicants'
request for a stay of the mandate of the Court of
Appeals for the Ninth Circuit is hereby
Denied.
1306 OCTOBER TERM, 1978
Opinion in Chambers 443U.S.
LENHARD ET AL., CLARK COUNTY DEPUTY PUBLIC
DEFENDERS, INDIVIDUALLY AND AS NEXT FRIENDS
OF BISHOP V. WOLFF, w ARDEN, NEV ADA
STATE PRISON SYSTEM, ET AL.
ON APPLICATION FOR STAY OF EXECUTION
No. A-172. Decided September 7, 1979
A temporary stay of execution of a death sentence imposed by a Nevada
trial court and affirmed by the Nevada Supreme Court is continued
pending the full Court's consideration of an application by public defenders
as "next friends" of the defendant, who disclaimed any effort
to prevent his execution. Although there are doubts concerning the
applicants' standing, particularly in view of the record evidence and
lower-court findings as to the defendant's competency to waive the assertion
of any constitutional infirmities in his sentence, and although
the defendant has obtained full review of the death sentence and trial
proceedings by the Nevada Supreme Court, which upheld the constitutionality
of the Nevada capital punishment statute, doubts as to the
proper course of action are resolved in favor of continuing the stay
because the Circuit Justice acts as surrogate for the full Court, and
because the Court will have an opportunity to consider the application
at its regularly scheduled Conference the last week of the month.
MR. JusTICE REHNQUIST, Circuit Justice.
On August 25, 1979, I temporarily enjoined respQndents
from executing Jesse Bishop, upon whom a death sentence
was imposed by the State District Court for Clark County,
Nev., and affirmed by the Supreme Court of Nevada in July
1979. I issued the injunction so that I would be able to consider
the response of Nevada officials and additional information
of record which I requested from each of the parties.
In the exercise of what I find to be as difficult a task as must
be performed by any Member of this Court-the obligation
to act as surrogate for the entire Court in deciding whether
to grant or deny extraordinary relief pursuant to 28 U. S. C.
§ 1651 pending disposition of a petition for certiorari by the
LENHARD v. WOLFF 1307
1306 Opinion in Chambers
full Court-I have determined that it is appropriate to continue
the stay of execution pending consideration by the full
Court. Since the State of Nevada is entitled to have the
mandates of its courts enforced unless they off end the laws or
Constitution of the United States, and since Jesse Bishop has
concededly disclaimed any effort either by himself or by others
on his behalf to prevent his execution, I feel obliged to summarize
briefly the reasons which lead me to refer the application
to the full Court.
The defendant under sentence of death has wholly disclaimed
any effort to seek a stay from this Court or to seek
review of the decision of the Supreme Court of Nevada by
means of certiorari in this Court. The only two comparable
cases which have come before this Court are Gilmore v. Utah,
429 U.S. 1012 (1976), and Evans v. Bennett, 440 U.S. 1301,
in which I granted a stay of execution on April 5, 1979, in
order that the case might be considered by the full Court.
The full Court thereaft€r vacated the sta.y. Evans v. Bennett,
440 U. S. 987 (1979). In each of these cases, the defendant
under sentence of death had disassociated himself from
efforts to secure review of that sentence.* In Evans, I
entered the stay of execution in recognition of the fact that
four Members of the Court had dissented from the ultimate
denial of the stay in Gilmore, supra. While my Brothers
BRENNAN and MARSHALL'S view of the death sentence as
"cruel and unusual punishment" within the prohibition of the
Eighth Amendment under all circumstances might permit review
of any capital case by this Court, the dissenting opinions
of my Brothers WHITE and BLACKMUN seem more limited in
scope. Those opinions urged plenary consideration of the
application to resolve doubts about the standing of Gilmore's
*In Evans, the Court was informally advised after the date upon which
I granted the stay that Evans had authorized the prosecution of the
federal habeas corpus action in the United States District Court for the
Southern District of Alabama.
1308 OCTOBER TERM, 1978
Opinion in Chambers 443 u. s.
mother to prosecute the action without her son's consent when
substantial questions regarding the constitutionality of the
state statute remained unresolved. I therefore concluded in
Evans that a stay until the regularly scheduled Conference of
the Court the following week would be most consonant with
my obligations as Circuit Justice.
In my view, the initial barrier to be overcome in the present
case by applicants Lenhard and Franzen, who with commendable
fidelity to their assignment by the trial court have
sought this stay and petitioned for habeas relief in the federal
courts, is the finding of the courts which have passed on the
question that defendant Jesse Bishop is competent to waive
the assertion of any constitutional infirmities in the sentence
imposed upon him by the Nevada courts. A successful attack
on Bishop's competency is the requisite threshold for applicants'
standing. Even if standing were not a barrier, a view
some Members of the Court may well subscribe to, applicants
still would have the burden of demonstrating some constitutional
deficiency in the proceedings, as I read the views of my
Brother WHITE. For this reason, I have considered the
nature of the judicial review afforded on the merits thus far,
as well as the review afforded the determination of Bishop's
competency.
At the trial court level, both Evans and Bishop pleaded
guilty, whereas Gilmore was tried and sentenced by a jury.
Gilmore declined to seek any appellate review in the Supreme
Court of Utah, and was granted none. Evans' conviction and
sentence were reviewed pursuant to a requirement for mandatory
appeal in both the Alabama Court of Appeals and in the
Supreme Court of Alabama. Bishop's case was comprehensively
reviewed by the Supreme Court of Nevada. Evans
additionally unsuccessfully sought a writ of certiorari from this
Court to review the judgment of the Supreme Court of Alabama,
which writ was denied on February 20, 1979. 440
U. S. 930. Thus, each of the three cases had progressed to
I
LENHARD v. WOLFF 1309
1306 Opinion in Chambers
different levels of review within the judicial system: Gilmore
had neither sought nor obtained any appellate review of the
death sentence imposed upon him by the trial court; Bishop
has obtained full review by the Supreme Court of Nevada of
the death sentence and proceedings which led up to it in the
trial court; Evans not only obtained state appellate review,
but also petitioned this Court unsuccessfully for a writ of
certiorari challenging the a:ffirmance of his death sentence by
the Alabama courts.
In Gilmore, no state or federal court had reviewed the constitutionality
of the Utah statute. The Supreme Court of
Nevada in reviewing Bishop's case, however, expressly upheld
the constitutionality of the Nevada capital punishment statute.
The court reasoned:
"The Nevada statutes authorizing the imposition of the
death penalty are similar to the Florida statutes which
were found to be constitutional in Proffitt v. Florida, 428
U. S. 242 (1976). The Nevada statutes provide for a
consideration of any mitigating factor the defendant
may want to present. NRS 200.035 (7). Cf. Lockett v.
Ohio, [ 438 U. S. 586 (1978)]. The imposition of the
death penalty in this case offends neither the United
States Constitution nor the Nevada Constitution."
Bishop v. Nevada, 95 Nev. 511, 517-518, 597 P. 2d 273,
276-277 (1979).
Again, in my view, the substantive constitutional arguments
which might be made by defendant Bishop in this Court in
support of review of the judgment of the Supreme Court of
Nevada bear only tangentially on the merits of the application
for stay, since the contentions are not being made by Bishop,
but rather by the public defenders asserting that they act as
"next friends." But since MR. JusTICE WHITE, joined by MR.
JUSTICE BRENNAN and MR. JUSTICE MARSHALL in Gilmore,
stated that "f u]ntil the state courts have resolved the obvious,
serious doubts about the validity of the state statute, the
1310 OCTOBER TERM, 1978
Opinion in Chambers 443 U.S.
imposition of the death penalty in this case should be stayed,"
429 U. S., at 1018, and MR. JUSTICE BLACKMUN stated tha.t
"the question of Bessie Gilmore's standing and the constitutional
issue are not insubstantial," id., at 1020, it is apparent
that four Members of this Court do not consider the issue of
the "standing" of a relative to assert claims which the convicted
defendant refuses to assert and the merits of those
claims to be wholly disassociated from one another. The constitutionality
of Bishop's sentence has, in any event, been
subjected to substantially greater scrutiny than the sentence
imposed in Gilmore.
From my view of the controlling legal precepts, the record
evidence of competency is more important to the determination
of whether a stay is appropriate than is the merit of the
underlying application. While I do not purport to have extensive
knowledge of the concept of "next friend" in a legal
proceeding such as this, it strikes me that from a purely technical
standpoint a public defender may appear as "next friend"
with as much justification as the mother of John L. Evans or
of Gary Gilmore. But I do think the contrast between the
position of Bishop's family in this case and that of Gilmore's
mother and Evans' mother in those cases is worth noting.
Here Bishop's family has by no means repudiated him, but
they have at the same time declined to pursue or join in the
pursuit of any further judicial review of the death sentence.
While the familial relationship of the "next friend" to the
defendant may not be relevant to the technical question of
standing, it may provide some inferences as to the issue of
competence. The refusal of the family to seek relief may well
support the finding of the courts which have considered the
question that the defendant is competent to waive additional
proceedings.
Gilmore underwent competency proceedings both prior to
trial and after he announced his intention to waive appellate
review. With respect to the waiver of the latter right, the
LENHARD v. WOLFF 1311
1306 Opinion in Chambers
trial judge appointed a prison psychiatrist to examine Gilmore.
On the basis of a I-hour interview the psychiatrist submitted
a report to the court finding Gilmore competent to
waive appeals. Reports of two prison psychologists were submitted
as corroboration, and the trial judge entered a finding
of competency.
Bishop was found competent to plead guilty and represent
himself after an evidentiary hearing at which three examining
psychiatrists reported that Bishop was competent. There has
been no subsequent judicial determination of his competency
to waive further litigation. A state-appointed psychiatrist,
however-the only psychiatrist that Bishop would consent to
see-submitted a report based on a 4-hour interview, concluding
that Bishop is competent to waive further review.
The United States District Court for the District of Nevada,
in its opinion in the habeas proceeding dated August 23, 1979,
stated:
"The Court has reviewed the record of the proceedings
before the Nevada Supreme Court and the Eighth
Judicial District of the State of Nevada and, based
thereon, finds that Jesse Walter Bishop made a knowing
and intelligent waiver of any and all federal rights he
might have asserted both before and after the Eighth
Judicial District imposed sentence, and, specifically, that
the State of Nevada's determinations of his competence
knowingly and intelligently to waive any and all such
rights were firmly grounded." Application, App. B, p. 5.
On appeal to the Court of Appeals for the Ninth Circuit, a
panel of that court stated in its opinion:
"Bishop himself has steadfastly maintained that he does
not wish to seek relief in the federal courts and refuses
to authorize any petition for habeas corpus or stay of
execution to be filed on his behalf. Most recently he appeared
in open court at the hearing before the district
court on August 23, 1979 and declared that he believes
1312 OCTOBER TERM, 1978
Opinion in Chambers 443 u. s.
he has a constitutional right t:o waive any rights t:o a
federal appeal and desires t:o do so. He maintained he
was intelligently and competently exercising his right t:o
refrain from seeking relief from the federal courts." 603
F. 2d 91, 93 (1979).
The Court of Appeals went on to observe that following
the initial determination of competence to stand trial and
plead guilty:
"[T]here has been no showing of Bishop's incompetence
....
"Bishop was found t:o be competent at the time of trial
by three psychiatrists; he was observed by the pa.nel of
three judges during the penalty hearing; he was observed
in a subsequent proceeding before the trial court on July
25, 1979; he appeared personally before the United States
District Court on August 23, 1979; and he was examined
by a licensed psychiatrist on August 21, 1979. On none
of these occasions was there an indication to those responsible
persons that he was incompetent. We find that
there has been no evidence of incompetence sufficient t:o
warrant a hearing on the issue." Ibid.
I thus find myself in much the same position in which I
found myself in Evans v. Bennett. If I were casting my vote
on the application for a stay as a Member of the full Court, I
would vote to deny the stay. I am in full agreement with the
per curiam opinion of Judges Wright, Sneed, and Hug of the
United States Court of Appeals for the Ninth Circuit. I am
likewise in full agreement with the observations of Judge
Sneed in his concurring opinion suggesting that however
worthy and high minded the motives of "next friends'' may
be, they inevitably run the risk of making the actual defendant
a pawn to be manipulated on a chessboard larger than his
own case. The idea that the deliberate decision of one under
sentence of death to abandon possible additional legal avenues
of attack on that sentence cannot be a rational decision, reI
I!
-
LENHARD v. WOLFF 1313
1306 Opinion in Chambers
gardless of its motive, suggests that the preservation of one's
own life at whatever cost is the summum bonum, a proposition
with respect to which the greatest philosophers and theologians
have not agreed and with respect to which the United
States Constitution by its terms does not speak.
But because I am acting as surrogate for the full Court, and
because the Court will have an opportunity to consider this
application at its regularly scheduled Conference the last week
of this month, I have resolved doubts which greatly trouble
me as to my proper course of action in favor of continuing the
injunction which I previously issued to and including Monday,
October 1, 1979, unless previously modified or vacated by the
Court.
--,I&
STATEMENT SHOWING THE NUMBER OF CASES FILED, DISPOSED OF, AND REMAINING ON
DOCKE:TS AT CONCLUSION OF OCTOBER TERMS 1976, 1977, AND 1978 (AS OF JULY 2, 1979)
ORIGf:-iAL PAJD IN FORMA PAUPERIS TOTALS
Terms _________ ---- 1976 1977 1978 1976 1977 1978 1976 1977 1978 1976 1977 1978
Number of cases on dockets __________ 8 14 17 2,324 2,341 2,379 2,398 2,349 2,335 4,730 4,704 4,731
Number disposed of during terms ___ 2 3 0 1,852 1,911 1,954 2,064 1,953 1,985 3,918 3,867 3,939
Number remaining on dockets _________ 6 11 17 472 430 425 334 396, 350 812 837 792
TERMS
1976 1977 1978
Cases argull(l during tenn 176 172 168
Number disposed of by full opinions 154 153 l J53
Number disposed of by per curiarn opinions ____ 22 8 2g
Number set for reargument. ______________ 0 9 8
Cases granted review this term --- 169 162 163
Cases reviewed and decided without oral argument__ ------- 207 129 110
Total ca.ses to be availabl.e for argument at outset of followinr term 88 75 79
1 Includes No. 78 Orig.
' Includes No. 8 Orig. and No. 77-154
AUGUST 10, 1979
INDEX
ABORTIONS.
Parental, consent for minor's abortion,-V al,idity of statute.-District
Court's judgment which held that Constitution was violated by Massachusetts
statute providing that an abortion could be performed on an unmarried
woman under 18 only with parental consent or with a court order
if such consent was refused, is affirmed. Bellotti v. Baird, p. 622.
ACCESS OF ,PRESS AND PUBLIC TO CRIMINAL PROCEEDINGS.
See Constitutional Law, I, 3; V.
ACQUISITION OF CORPORATE STOCK. See Venue.
ACTUAL MALICE. See Constitutional Law, IV, 1, 2.
ADMIRALTY. See Longshoremen's and Harbor Workers' Compensation
Act.
AFFIRMATIVE-ACTION PROGRAMS. See Civil Rights Act of 1964.
AID TO FAMILIES WITH DEPENDENT CHILDREN-UNEMPLOYED
FATHERS. See Constitutional Law, I, 4.
ANADROMOUS FISH. See Constitutional Law, VIII; Indians.
ANONYMITY OF JUVENILE OFFENDERS. See Constitutional Law,
IV, 3.
APPEALS. See Mandamus.
ARRESTS. See Constitutional Law, I, l; VI, 1.
BASTARDS. See Constitutional Law, II, 3.
BREATH-ANALYSIS TEST FOR DRUNK DRIVING. See Constitutional
Law, I, 2,
CAPITAL PUNISHMENT. See Stays, 2.
CAUSES OF ACTION. See Constitutional Law, I, 1.
CHURCH PROPERTY. See Constitutional Law, III.
CIVIL RIGHTS ACT OF 1964.
Employment discrimination-Affirmative-action plan.-Title VII's prohibition
against racial discrimination in employment practices does not
condemn all private, voluntary, race-conscious affirmative-action plan~,
and thus Act is not violated by plan under collective-h11rg1tining agree-
1315
1316 INDEX
CIVIL RIGHTS ACT OF 1964-Continued.
ment whereby 50% of openings in employer's craft-training programs are
reserved for black employees until percentage of black craftworkers in
plant is commensurate with percentage of black; in local labor force (approximately
39%). Steelworkers v. Weber, p. 193.
CLOSING CRIMINAL PROCEEDINGS TO PRESS AND PUBLIC.
See Constitutional Law, I, 3; V.
COLLECTIVE-BARGAINING AGREEMENTS. See Civil Rights Act
of 1964.
COLUMBUS, OHIO, See Constitutional Law, II, 2.
COMPARATIVE NEGLIGENCE. See Longshoremen's and Harbor
Workers' Compensation Act.
CONFIDENTIAL COMMERCIAL INPORMATION. See Freedom of
Information Act.
CONGRESSMEN. See Constitutional Law, VII.
CONSTITUTIONAL LAW. See also Abortions; Habeas Corpus; Ma.ndamus.
I. Due Process.
1. Arrest-Mistaken identity-Cause of action.-In a federal-court action
against a sheriff and his surety arising from arrest and 3-day detention
of respondent on basis of an arrest warrant that mistakenly named
respondent rather than his brother, respondent had no claim cognizable
under 42 U. S. C. § 1983, because he failed to satisfy threshold requirement
that he be deprived of a right "secured by the Constitution and
laws"-respondent's detention not amounting to a deprivation of liberty
without due process of law since it was pursuant to an unchallenged warrant
conforming to Fourth Amendment's requirements. Baker v. McCollan,
p. 137.
2. Drunken driving-Breath-analysis test.-A Massachusetts statute
which mandates a 90-day suspension of a driver's license for refusing to
take a breath-analysis test upon arrest for operating a motor vehicle while
under the influence of intoxicating liquor, and which authorizes an imrnP.-
diate hearing after license is surrendered, is not void on its face as violative
of Due Process Clause of Fourteenth Amendment for failing to provide
for a presuspension hearing. Mackey v. Montrym, p. 1.
3. Right to fair trial-Exclusion of press from pretrial hearing .-Constitution
did not give a newspa.per publisher an affirmative right of access
to a pretrial hearing on a motion to suppress evidence in a criminal prosecution,
where all participants in litigation agreed that it should be closed
from press and public to protect defendants' fair trial rights, and where
-
INDEX 1317
CONSTITUTIONAL LAW-Continued.
trial court concluded that any First and Fourteenth Amendment right of
press and public to attend criminal trials was outweighed by defendants'
right to a falr trial. Gannett Co. v. DePasquale, p. 368.
4. Social Security Act-Sex discrimination.-Gender classification of Social
Security Act whereby benefits under Aid to Families with Dependent
Children, Unemployed Father program, are provided to families whose
dependent children have been deprived of parental support because of
unemployment of father but not to families when mother becomes unemployed,
violates Due Process Clause of Fifth Amendment, and District
Court's order directing extension of program to all families with needy
children where either parent is unemployed, rather than restricting benefits
to only those families where "principal wage-earner" is unemployed,
was proper. Califano v. Westcott, p. 76.
5. Suspension of horsetrainer's license-Hearing.-The Due Process
Clause is not violated by a New York statute merely because it authorizes
811mm:-i.ry administrative suspensions of licenses of horsetrainers participating
in harness race meets without a presuspension hearing, but statute,
which authorizes postsuspension hearing without specifying time within
which hearing must be held, was unconstitutionally applied as to trainer
whose license was suspended for 15 days on basis of test showing a drug
in system of horse tralned by him. Barry v. Barchi, p. 55.
II. Equal Protection of the Laws.
l. School desegregatian-Systemwide effect of discrimination.-In school
desegregation case, Court of Appeals properly held that at time of Brown
v. Board of Education, 347 U. S. 483, in 1954, Dayton Board of Education
was intentionally operating a dual school system in violation of Equal
Protection Clause; that Board was thereafter under a continuing duty to
eradicate effects of such system; that systemwide nature of violation furnished
prima facie proof that current segregation was caused at least in
part by prior intentionally segregative official acts; and that a sufficient
case of current, systemwide effect had been established. Dayton Board
of Education v. Brinkman, p. 526.
2. School desegregation-Systemwide remedy.-Record in school desegregation
case was sufficient to sustain District Court's conclusions that
conduct of Board of Education of Columbus, Ohio, at time of trial and
before not only was animated by an unconstitutional, segregative purpose,
but also had current segregative impact that was sufficiently systemwide
to warrant systemwide remedy. Columbus Board of Education v. Penick,
p. 449.
3. Social Security Act-Discrimination against unwed mothers.-Section
202 (g) ( 1) of Social Security Act, restricting "mother's insurance benefits"
to widows and divorced wives of wage earners, does not violate equal pro-
·--_,.,. " - A1 - 50 Ol. 3
1318 INDEX
CONSTITUTIONAL LAW-Continued.
tection component of Due Process Clause of Fifth Amendment by thus
denying such benefits to mother of an illegitimate child because she was
never married to wage earner who fathered child. Califano v. Boles, p.
282.
4. Suspension of horsetrainer's licen.se-Stay pending review.-New
York's prohibition of administrative stays of suspensions of licenses of
horsetrainers engaged in harness racing pending administrative review of
suspension, without a like prohibit.ion as to thoroughbred racing, does not
deny harness racing trainers equal protection of the laws. Barry v.
Barchi, p. 55.
Ill. Freedom of Religion.
Church property dispute-Judicial resolution.-In adjudicating a church
property dispute, such as instant one between factions of a local church
that is a member of a hierarchical general church, a St.ate is entitled to
adopt a "neutral principles of law" analysis involving consideration of
deeds, pertinent state statutes, local church's charter, and general church's
constitution, and is not required by First Amendment to adopt a rule of
compulsory deference to hierarchical religious authority. Jones v. Wolf,
p. 595.
IV. Freedom of Speech and Press.
1. Defamation-"Public figure."-In a defamation action against a
United States Senator and his legislative assistant arising from Senator's
awarding his "Golden Fleece of the Month Award" to federal agencies
that had funded plaintiff scientist's research, plaintiff was not a "public
figure" so as to make First Amendment's "actual malice" standard of
proof applicable. Hutchinson v. Proxmire, p. 111.
2. Defamation-"Public figure."-In a defamation action against author
and publishers of book that named petitioner as a Soviet agent and stated
that he had been "convicted of ... contempt charges following espionage
indictments," petitioner was not a "public figure," and thus was not required
to satisfy First Amendment's "actual malice" standard to recover
merely because he knew that media attention would be attracted when he
voluntarily chose not to appear before a grand jury, resulting in his contempt
conviction. Walston v. Reader's Digest Assn., Inc., p. 157.
3. Newspaper's publication of name of juvenile offender-Validity of
statutory prohibition.-Under a West Virginia statute which makes it a
crime for a newspaper to publish, without approval of juvenile court, the
name of any youth charged as a juvenile offender, State cannot, consistent
with First and Fourteenth Amendments, punish truthful publication of an
alleged juvenile delinquent's name lawfully obtained by a newspaper.
Smith v. Daily Mail Publishing Co., p. 97.
INDEX
CONSTITUTIONAL LAW-Continued.
V. Right to Public Trial.
1319
Rights of defendant and public.--Sixth Amendment's guarantee of a
public trial is for benefit of defendant alone, and members of public do not
have an enforceable right to a public trial that can be asserted independently
of part.ies in litigation. Gannett Co. v. DePasquale, p. 368.
VI. Searches and Seizures.
1. Requiring furnishing of identification to police-Unconstitutionality
of ordirumce.-Arrest for failure to provide identification, made in goodfaith
reliance on Detroit ordinance which provided that police may stop
and question an individual on basis of reasonable cause to believe that his
behavior warranted further investigation, and which made it unlawful for
a person so stopped to refuse to identify himself, was valid regardless of
subsequent judicial determination of ordinance's unconstitutionality, and
thus drugs obtained in search after arrest should not have been suppressed
in prosecution for drug offense. Michigan v. DeFillippo, p. 31.
2. Requiring furn~hing of identification to police-Validity of application
of statute.-Application to appellant of Texas statute making it a
crime for a person to refuse to give his name and address to an officer
who has lawfully stopped him and requested information, violates Fourth
Amendment where police, in detaining appellant and requiring him to
identify himself, lacked any reasonable suspicion to believe that he was
engaged or had engaged in criminal conduct. Brown v. Texas, p. 47.
VII. Speech or Debate Clause.
Press releases and newsletters of Members of Congress.--Speech or Debate
Clause does not protect transmittal of information by individual
Members of Congress by press releases and newsletters. Hutchinson v.
Proxmire, p. 111.
VIII. Supremacy Clause.
Indian fishing rights-State regulation.-Any state-law prohibition
against compliance with a District Court's decree fixing certain Indian
tribes' treaty shares in runs of anadromous fish passing through tribal fishing
areas violates Supremacy Clause, and District Court may order state
agencies to prepare implementing rules and may assume direct supervision
of fisheries if state recalcitrance or state-law barriers are continued.
Washington v. Washington Commercial Passenger Fishing Vessel Assn., p.
658.
CONTEMPT. See Constitutional Law, IV, 2.
CONVENTION ON CATCH OF FRASER RIVER SALMON. See Indians.
COURT APPROVAL OF MINOR'S ABORTION, See Abortions.
1320 INDEX
COURTS or APPEALS. See Constitutional Law, II, 1; Habeas Corpus,
3 ; Mandamus; Stays, 1.
CRAFT-TRAINING PROGRAMS. See Civil Rights Act of 1964.
CRIMINAL LAW. See Constitutional Law, I, 3; IV, 3 ; V ; VI; Habeas
Corpus ; Stays, 2.
DAMAGES. See Longshoremen ' s and Harbor Workers' Compensation
Act.
DAYTON, OHIO. See Constitutional Law, II, 1.
DEATH PENALTY. See Stays, 2.
DECLARATORY RELIEF. See Stays, 1.
DECREES. See Constitutional Law, VIII.
DEFAMATION. Sec Constitutional Law, I V, 1, 2; VII.
DEPENDENT CHILDREN. See Constitutiona.l Law, I , 4.
DESEGREGATION OF SCHOOLS. See Constitutional Law, II, 1, 2.
DETENTION BASED ON MISTAKEN IDENTITY. See Constitutional
Law, I, 1.
DETROIT. See Constitutional Law, VII, 1.
DISCLOSURE OF INFORMATION. See Freedom of Information Act.
DISCRIMINATION AGAINST BLACKS. See Constitutional La.w, II,
1, 2; Habeas Corpus, 1.
DISCRIMINATION AGAINST UNWED MOTHERS. See Constitutional
Law, II, 3.
DISCRIMINATION AGAINST WHITES. See Civil Rights Act of
1964.
DISCRIMINATION AGAINST WOMEN. See Constitutional Law; I, 4.
DISCRIMINATION IN EMPLOYMENT. See Civil Rights Act of 1964.
DISTRICT COURTS. See Constitutional Law, I, 4; II, 2; VIII; Venue.
DIVORCED WIVES' SOCIAL SECURITY BENEFITS. See Cons titutional
La.w, II, 3.
DOMESTIC POLICY DffiECTIVES OF FEDERAL RESERVE SYSTEM.
See Freedom of Information Act.
DRIVERS' LICENSES. See Constitutional Law, I , 2.
DRUGGING RACEHORSES. See Constitutional Law, I, 5.
DRUNKEN DRIVING. See Constitutional Law, I , 2.
DUAL SCHOOL SYSTEMS. See Constitutional Law, II, 1, 2.
INDEX 1321
DUE PROCESS. See Constitutional Law, I; II, 3; Habeas Corpus,
2, 3.
EMPLOYER AND EMPLOYEES. See Civil Rights Act of 1964.
EQUAL PROTECTION OF THE LAWS. Sec Constitutional Law, II;
Habeas Corpus, 1.
ESPIONAGE. See Constitutional Law, IV, 2.
EVIDENCE. See Constitutional Law, VI, 1; Habeas Corpus.
EXCLUDING PRESS AND PUBLIC FROM CRIMINAL PROCEEDINGS.
See Constitutional Law, I, 3; V.
EXECUTIONS. See Stays, 2.
EXEMPTION 5 OF FREEDOM OF INFORMATION ACT. See Freedom
of Information Act.
EXPEDITED APPEALS. Sec Mandamus.
EXPERT EVIDENCE. See Habeas Corpus, 3.
FAIR TRIALS. See Constitutional Law, I, 3.
FALSE IMPRISONMENT. See Constitutional Law, I, 1.
FEDERAL RESERVE SYSTEM. See Freedom of Information Act.
FEDERAL-STATE RELATIONS. See Constitutional Law, VIII; Habeas
Corpus.
FEDERAL TAXATION. See Stays, 1.
FIFTH AMENDMENT. See Constitutional Law, I, 4; II, 3.
FIRST AMENDMENT. See Constitutional Law, I, 3; III; IV; Manda.
mus.
FIRST-DEGREE MURDER. See Habeas Corpus, 2.
FISHING RIGHTS OF INDIANS. See Constitutional Law, VTTT; Indians.
FOREMAN OF STATE GRAND JURY. See Habeas Corpus, 1.
FOURTEENTH AMENDMENT. See Constitutional Law, I, 1-3, 5;
II, 1, 2, 4; III; IV, 3; VI; Habeas Corpus, 1, 2.
FOURTH AMENDMENT. See Constitutional Law, I, l; VI.
FRASER RIVER. See Indians.
FREEDOM OF INFORMATION ACT.
Exemption for intra-agency memorandums-Federal Reserve System-
Domestic Policy Directives.-Monthly "Domestic Policy Directives" of
Federal Open Market Committee of Federal Reserve System, embodying
I
1322 INDEX
FREEDOM OF INFORMATION ACT-Continued.
conclusions as to type of monetary policy Committee wishes to follow and
including specific tolerance ranges for growth in money supply and for
federal fund~ rate, are "intra-agency memorandums" within Act's Exemption
5, and thus 1-month delay in publishing Directives in Federal fugister
is permissible if they contain semdtive commercial information not
otherwise available and if immediate release would significantly harm Government's
monetary functions or commercial interests. Federal Open Market
Commit.tee of FRS v. Merrill, p. 340.
FREEDOM OF RELIGION. See Constitutional Law, III.
FREEDOM OF SPEECH. See Constitutional Law, IV; Mandamus.
FREEDOM OF THE PRESS. See Constitutional Law, I, 3; IV, 2, 3.
GENDER-BASED DISCRIMINATION. See Constitutional Law, I, 4.
GEORGIA. See Constitutional Law, III.
"GOLDEN FLEECE OF THE MONTH AWARD." See Constitutional
Law, IV, 1; VII.
GRAND JURY. See Habeas Corpus, 1.
HAJ3EAS CORPUS.
I. State-court conviction-Selection of grand jury-Federal habeas cor-
PW! relief .-Claims of racial discrimination in selection of a state grand
jury are cognizable in federal habeas corpus and will support issuance of
a writ setting aside a conviction and ordering quashing of indictment, notwithstanding
that no constitutional impropriety tainted selection of petit
jury and guilt was established beyond a reasonable doubt at a trial free
from constitutional error, but in instant case respondents failed to make
out a prima facie case of discrimination in violation of Equal Protection
Clause as to selection of foreman of grand jury that indicted respon.dents.
Rose v. Mitchell, p. 545.
2. State-court conviction-Sufficiency of evidence-Federal habeas corpus
proceedings.-In federal habeas corpus proceedings to review a stat.ecourt
conviction wherein it is contended that there was insufficient evidence
to sustain conviction, federal court must consider not merely whether
there was any evidence to support conviction, but whether there was sufficient
evidence to justify a rational trier of fact to find guilt beyond a
reasonable doubt, as required by Due Process Clause of Fourteenth Amendment.
Jackson v. Virginia, p. 307.
3, State-court conviction-Sufficiency of evidence-Federal habeas corpus
relief.-Although a state prisoner seeking federal habeas corpus relief
is entitled to a determination whether record evidence could support
a finding of guilt beyond a reasonable doubt, and although Court of ApINDEX
1323
HABEAS CORPUS-Continued.
peals, in affirming denial of relief here, applied an improper legal standard
in considering petitioner's due process claim as to sufficiency of evidence
for conviction in an Indiana murder prosecution, nevertheless case
will not be remanded, since prtitiom-r's claim concerned a state rule permit.
ting sanity to be established by either expert or lay testimony, to which
rule Court of Appeals properly deferred, and since evidence in support
of petitioner's conviction was constitutionally adequate. Moore v. Duckworth,
p. 713.
HARNESS RACEHORSE TRAINERS. See Constitutional Law, I, 5;
II, 4.
HIERARCHICAL CHURCHES. See Constitutional Law, III.
HORSETRAINERS REGULATIONS. See Constitutional Law, I, 5;
II, 4.
IDAHO. See Venue.
IDENTIFYING ONESELF TO POLICE. See Constitutional Law, VI.
ILLEGITIMATE CHILDREN. See Constitutional Law, II, 3.
IMMUNITY OF MEMBERS OF CONGRESS FROM LIABILITY. See
Constitutional Law, VIL
INCOMPETENT PERSONS. See Stays, 2.
INDIANA. See Habeas Corpus, 3.
INDIANS. See also Constitutional Law, VIII.
Treaty fishi'fl{I rights.-Under pertinent treaties, certain Indian tribes
have a right to harvest a share of runs of anadromous fish passing through
tribal fishing areas, and such right is not pre-empted by 1930 Convention
whereby catch of certain salmon is to be equally divided between Canadian
and American fishermen. Washington v. Washington CommP.rr.i11J Passenger
Fishing Vessel Assn., p. 658.
INDICTMENTS. See Habeas Corpus, 1.
''INFORMING FUNCTION'' OF MEMBERS OF CONGRESS. See
Constitutional Law, VII.
INJUNCTIONS. See Mandamus; Stays, 1.
INSANITY. See Habeas Corpus, 3.
INTOXICATION. See Constitutional Law, I, 2.
INTRA-AGENCY MEMORANDUMS. See Freedom of Information
Act.
JUDGMENTS. See Constitutional Law, I, 4; VIII.
I
1324 INDEX
JUVENILE DELINQUENTS. See Constitutional Law, IV, 3.
LABOR. See Civil Rights Act of 1964.
LAY TESTIMONY AS TO SANITY. See Habeas Corpus, 3.
LEGISLATIVE EMPLOYEES. See Constitutional Law, IV, 1; VII.
LEGISLATIVE PROCESS. See Constitutional Law, VIL
LIBEL. See Constitutional Law, IV, 1, 2; Vil.
LIBERTY RIGHTS. See Constitutional Law, I, 1.
LICENSES. See Constitutional Law, I, 2, 5; II, 4.
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT.
Longshoreman's injuries-Shipowner's liability-Proportionate fault .-
1972 Amendments t-0 Act do not change judicially created admiralty ruleunder
which, in negligence action by longshoreman injured while employed
by stevedore engaged to unload defendant-shipowner's vessel, shipowner is
liable for all damages not due t-0 longshoreman's own negligence-by imposing
a proportionate-fault rule whereby shipowner would not be liable
for portion of damages attributable to stevedore's negligence. Edmonds
v. Compagnie Generale Transatlantique, p. 256.
MANDAMUS.
Injunction against publication of article-Expedited appeal.-Petitioners'
motion for leave to file a petition for a writ of mandamus to compel
Court of Appeals to expedite their appeal from District Court's preliminary
injunction against petitioners' publishing an article entitled "The
H-Bomb Secret: How We Got It, Why We're Telling It," is denied.
Morland v. Sprecher, p. 709.
MARITIME LAW. See Longshoremen's and Harbor Workers' Compensation
Act.
MASSACHUSETTS. See Abortions; Constitutional Law, I, 2.
MEMBERS OF CONGRESS. See Constitutional Law, IV, 1; VII.
MINOR'S RIGHT TO HAVE AN ABORTION. See Abortions.
MISTAKEN IDENTITY. See Constitutional Law, I, 1.
MONETARY POLICY DIRECTIVES. See Freedom of Information
Act.
MOTHERS' SOCIAL SECURITY BENEFITS. See Constitutional
Law, 11, 3.
MOTORIST'S REFUSAL TO TAKE BREATH-ANALYSIS TEST.
See Constitutional Law, I, 2.
INDEX 1325
MURDER. See Constitutional Law; Habeas Corpus, 2, 3.
NATIONAL MONETARY POLICY. See Freedom of Information Act.
NEEDY CHILDREN. See Constitutional Law, I, 4.
NEGLIGENCE. See Longsboremen's and Harbor Workers' Compensation
Act.
NEVADA. See Stays, 2.
NEWSLETTERS OF MEMBERS OF CONGRESS. See Constitutional
Law, IV, 1; VII.
NEWSPAPERS. See Constitutional Law, I, 3; IV, 3.
NEW YORK. See Constitutional Law, I, 3, 5; II, 4.
NEW YORK TIMES RULE. See Constitutional Law, IV, 1, 2.
"NEXT FRIEND'S" APPLICATION FOR STAY OF DEATH SENTENCE.
See Stays, 2.
NONEMERGENCY ABORTIONS. See Abortions.
OPERATING VEHICLE WHILE INTOXICATED. See Constitutional
Law, I, 2.
PARENTAL CONSENT TO ABORTION. See Abortions.
POLICE ACTION UNDER PRESUMPTIVELY VALID ORDINANCE.
See Constitutional Law, VI, 1.
PRE-EMPTION OF INDIAN FISHING RIGHTS. See Indians.
PRE-EMPTION OF STATE LAWS AFFECTING INDIANS' TREATY
RIGHTS. See Constitutional Law, VIII.
PRELIMINARY INJUNCTIONS. See Mandamus.
PREMEDITATION. See Habeas Corpus, 2.
PRESBYTERIAN CHURCHES. See Constitutional Law, III.
PRESS AND PUBLIC'S RIGHT OF ACCESS TO CRIMINAL PROCEEDINGS.
See Constitutional Law, I, 3; V.
PRESS RELEASES OF MEMBERS OF CONGRESS. See Constitutional
Law, IV, 1; VII.
PRETRIAL PUBLICITY. See Constitutional Law, I, 3.
PRIOR RESTRAINTS. See Constitutional Law, IV, 3 ; Mandamus.
PRISONERS. See Habeas Corpus; Stays, 2.
PB.IV ACY. See Constitutional Law, VI, 2.
I
I
1326 INDEX
PRIVATE AFFIRMATIVE-ACTION PROGRAMS. See Civil Rights
Act of 1964.
PRIVILEGE AGAINST DISCLOSURE or CONFIDENTIAL COMMERCAL
INFORMATION. See Freedom of Information Act.
PRIVILEGED COMMUNICATIONS. See Constitutional Law, VIL
PROPERTY DISPUTE BETWEEN CHURCH FACTIONS. See Constitutional
Law, III.
PROPERTY INTERESTS. See Constitutional Law, I, 2, 5.
PROPORTIONATE FAULT. See Longshoremen's and Harbor Workers'
Compensation Act.
PUBLIC DEFENDERS. See Stays, 2.
PUBLIC FIGURES. See Constitutional Law, IV, 1, 2.
PUBLIC SCHOOLS. See Constitutional Law, II, 1, 2.
PUBLIC TRIALS. See Constitutional Law, I, 3; V.
PUBLIC UTILITY COMMISSIONS. See Stays, 1.
PUBLISHING NAME OF ALLEGED JUVENILE DELINQUENT. See
Constitutional Law, IV, 3.
QUASHING OF INDICTMENTS. See Habeas Corpus, 1.
RACIAL DISCRIMINATION. See Civil Rights Act of 1964; Constitutional
Law, II, 1, 2; Habeas Corpus, 1.
RATE ORDERS. See Stays, 1.
REASONABLE-DOUBT STANDARD. See Habeas Corpus, 2.
REDUCTION OF TELEPHONE RATES AND REFUND OF
CHARGES. See Stays, 1.
REFUND OF TELEPHONE CHARGES. See Stays, 1.
RIGHT TO HEARING BEFORE SUSPENSION OF DRIVER'S LICENSE.
See Constitutional Law, I, 2.
RIGHT TO HEARING BEFORE SUSPENSION OF HORSETRAINER'S
LICENSE. See Constitutional Law, I, 5.
SALMON FISHING. See Constitutional Law, VIII ; Indians.
SANITY. See Habeas Corpus, 3.
SCHOOL DESEGREGATION. See Constitutional Law, II, 1, 2.
SEA CHES AND SEIZURES. See Constitutional Law, I, 1; VI.
SECURITIES EXCHANGE ACT OF 1934. See Venue.
SEGREGATED SCHOOLS. See Constitutional Law, II, 1, 2.
r INDEX
SELECTION OF GRAND JURY. See Habeas Corpus, 1.
SENATORS. See Constitutional Law, IV, 1; VII.
SEX DISCRIMINATION. See Constitutional Law, I, 4.
1327
SHERIFF'S LIABILITY FOR MISTAKEN ARREST. See Constitutional
Law, I, 1.
SHIPOWNER'S LIABILITY FOR INJURIES TO STEVEDORE'S
EMPLOYEES. See Longshoremen's and Harbor Workers' Compensation
Act.
SIXTH AMENDMENT. See Constitutional Law, I, 3; V.
SLANDER. See Constitutional Law, IV, 1; VII.
SOCIAL SECURITY ACT. See Constitutional Law, I, 4; II, 3.
SPEECH OR DEBATE CLAUSE. See Constitutional Law, VII.
STANDING TO SUE. See Stays, 2.
STATE PRISONERS. See Habeas Corpus; Stays, 2.
STAYS.
1. Court of Appeak' 1nandate-Declaratory and injunctive relief-Rate
order of state cammission.-Applications to stay Court of Appeals' mH.ndate
issued upon affirming District Court's denial of declaratory and injunctive
relief against enforcement of California Public Utilities Commission's
rate order directing applicants to refund certain charges paid by
subscribers and to reduce certain rates, are denied, and a previously issued
temporary stay is dissolved. Pacific Tel. & Tel. Co. v. Public Utilities
Comm'n (REHNQUIST, J., in chambers), p. 1301.
2. Death penalty.-A temporary stay of execution of a death sentence
is continued pending full Court's consideration of public defenders' application
as "next friends" of defendant, who disclaimed any effort to prevent
his execution. Lenhard v. Wolff (REHNQUIST, J., in chambers), p. 1306.
STEVEDORES. See Longshoremen's and Harbor Workers' Compensation
Act.
SUFFICIENCY OF EVIDENCE. See Habeas Corpus.
SUPPRESSION HEARINGS. See Constitutional Law, I, 3.
SUPREMACY CLAUSE. See Constitutional Law, VIII.
SUPREME COURT.
Term statistics, p. 1314.
SUSPENSION OF DRIVER'S LICENSE. See Constitutional Law, I, 2.
SUSPENSION OF HORSETRAINER'S LICENSE. See Constitutional
Law, I, 5; II, 4.
I
I
I
I
1328 INDEX
SYSTEMWIDE REMEDIES FOR SCHOOL SEGREGATION. See
Constitutional Law, II, 1, 2.
TAKEOVER OF CORPORATION. See Venue.
TELEPHONE RATES. See Stays, 1.
TENDER OFFERS. See Venue.
TENNESSEE. See Habeas Corpus, 1.
TEXAS. See Constitutional Law, VI, 2; Venue.
THIRD PARTY'S LIABILITY FOR INJURY TO EMPLOYEE. See
Longshoremen's and Barbor Workers' Compensation Act.
TREATIES WITH INDIANS. See Constitutional Law, VIII; Indians.
TRIBAL FISHING GROUNDS. See Constitutional Law, VIII; Indians.
UNEMPLOYED FATHER PROGRAM. See Constitutional Law, I, 4.
UNIONS. See Civil Rights Act of 1964.
UNMARRIED MINOR'S ABORTION. See Abortions.
UNWED MOTHERS' RIGHT TO SOCIAL SECURITY BENEFITS.
See Constitutional Law, II, 3.
VAGUENESS. See Constitutional Law, VI, 1.
VENUE.
Tender offer-Federal, suit against state official,s.-Under § 27 of Securities
Exchange Act of 1934, venue was improper in a federal-court action
in Texas by a Texas-based corporation challenging validity of Idaho statute
under which defendants, state officials, had delayed date of plaintiff's
tender offer to purchase stock of company having substantial assets in
Idaho, plaintiff having filed documents in Idaho in an attempt to s11t.isfy
State's takeover statute; nor was venue available in Texas under 28
U. S. C. § 1391 (b), since District of Idaho, where actions fanning basis
for plaintiff's claim took place, is only one in which "claim arose" within
meaning of § 1391 (b). Leroy v. Great Western United Corp., p. 173.
VETO POWER OVER ABORTIONS. See Abortions.
VIRGINIA. See Habeas Corpus, 2.
VOLUNTARY AFFIRMATIVE-ACTION PROGRAMS. See Civil
Rights Act of 1964.
WARRANTLESS SEARCHES. See Constitutional Law, VI, 1.
WARRANTS. See Constitutional Law, I, 1.
WASHINGTON. See Constitutional Law, VIII; Indians.
.....
INDEX
WELFARE BENEFITS. See Constitutional Law, I, 4; II, 3.
WEST VIRGINIA. See Constitutional Law, IV, 3.
1329
WIDOW'S SOCIAL SECURITY BENEFITS. See Constitutional Law,
II, 3.
WILLIAMS ACT. See Venue.
WORDS AND PHRASES.
1. "Injury ... caused by the negligence of a vessel." § 5 (b), Longshoremen's
and Harbor Workers' Compensation Act, 33 U. S. C. § 905 (b).
Edmonds v. Compagnie Generale Transatlantique, p. 256.
2. "Injury ... caused by the negligence of perso-ns engaged in providing
stevedoring services to the vessel." § 5 (b), Longshoremen's and Harbor
Workers' Compensation Act, 33 U. S. C. § 905 (b). Edmonds v.
Compagnie Generale Transatlantique, p. 256.
3. "Intra-agency memorandums." Exemption 5, Freedom of Information
Act, 5 U. S. C. § 552 (b) (5). Federal Open Market Committee of
FRS v. Merrill, p. 340.
4. "Judicial district ... in which the claim arose." 28 U. S. C. § 1391
(b). Leroy v. G~eat Western United Corp., p. 173.
5. "Rights, privileges, or immunities secured by the Constitution and
laws." 42 U. S. C. § 1983. Baker v. McCollan, p. 137.
WORKERS' COMPENSATION. See Longshoremen's and Harbor
Workers' Compensation Act.
U.S. GOVEJ<NMml' PRINTING OITICE : 1981 0 - 297-184 : QL 3
I
I
I
i
I
/
I
I
•
