Zfu : 50/ - OWI RFC/F/\/^Q °CT 1 0 1995 GCu, Government üttp^u^iy UNITED STATES REPORTS VOLUME 501 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1990 June 6 Through October 4, 1991 Together With Opinion of Individual Justice in Chambers End of Term FRANK D. WAGNER REPORTER OF DECISIONS WASHINGTON : 1995 Printed on Uncoated Permanent Printing Paper For sale by the U.S. Government Printing Office Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328 ISBN 0-16-048116-3 JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS* WILLIAM H. REHNQUIST, Chief Justice. BYRON R. WHITE, Associate Justice. THURGOOD MARSHALL, Associate Justice.1 HARRY A. BLACKMUN, Associate Justice. JOHN PAUL STEVENS, Associate Justice. SANDRA DAY O’CONNOR, Associate Justice. ANTONIN SCALIA, Associate Justice. ANTHONY M. KENNEDY, Associate Justice. DAVID H. SOUTER, Associate Justice. retired WARREN E. BURGER, Chief Justice. LEWIS F. POWELL, Jr., Associate Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. OFFICERS OF THE COURT RICHARD L. THORNBURGH, Attorney General.2 WILLIAM P. BARR, Acting Attorney General.3 KENNETH W. STARR, Solicitor General. WILLIAM K. SUTER, Clerk. FRANK D. WAGNER, Reporter of Decisions. ALFRED WONG, Marshal. SHELLEY L. DOWLING, Librarian. * Ill *For notes, see p. iv. Ill NOTES Justice Marshall announced his retirement on June 27, 1991, effective October 1, 1991. 2 Attorney General Thornburgh resigned effective August 16, 1991. 8 Mr. Barr became Acting Attorney General effective August 16, 1991. IV SUPREME COURT OF THE UNITED STATES Allotment of Justices It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42, and that such allotment be entered of record, effective October 9, 1990, viz.: For the District of Columbia Circuit, William H. Rehnquist, Chief Justice. For the First Circuit, David H. Souter, Associate Justice. For the Second Circuit, Thurgood Marshall, Associate Justice.* For the Third Circuit, David H. Souter, Associate Justice. For the Fourth Circuit, William H. Rehnquist, Chief Justice. For the Fifth Circuit, Antonin Scalia, Associate Justice. For the Sixth Circuit, John Paul Stevens, Associate Justice. For the Seventh Circuit, John Paul Stevens, Associate Justice. For the Eighth Circuit, Harry A. Blackmun, Associate Justice. For the Ninth Circuit, Sandra Day O’Connor, Associate Justice. For the Tenth Circuit, Byron R. White, Associate Justice. For the Eleventh Circuit, Anthony M. Kennedy, Associate Justice. For the Federal Circuit, William H. Rehnquist, Chief Justice. October 9, 1990. (For next previous allotment, and modifications, see 484 U. S., p. vn, and 497 U. S., p. iv.) *For order of October 1, 1991, assigning Justice Kennedy to the Second Circuit, see post, p. 1283. TABLE OF CASES REPORTED Note: All undesignated references herein to the United States Code are to the 1988 edition. Cases reported before page 1201 are those decided with opinions of the Court. Cases reported on page 1201 et seq. are those in which orders were entered. The opinion reported on page 1301 et seq. is that written in chambers by an individual Justice. Page Abramo v. Worcester Div., Super. Court Dept., Trial Court of Mass. 1226 Abu-Jamal v. Pennsylvania...................................... 1214 Adamita v. United States....................................... 1210 Adams v. United States......................................... 1257 Adefuye v. Carlson............................................. 1254 Agha v. Secretary of Army...................................... 165 Ahalt; Sindram v............................................... 1213 Air Line Pilots Assn. v. Eastern Air Lines, Inc............... 1283 Aispuro-Torres v. United States ............................... 1210 Akins; Snow v................................................. 1260 Alabama v. Brown.............................................. 1201 Alabama; Hooper v............................................. 1232 Alabama Dept, of Env. Mgmt. v. National Solid Wastes Mgmt. Assn. 1206 Alaska; Curiale v. ................. 1............;........... 1266 Alaska; Gargan v................................................ 1209 Alaska; United States v.................................... 1248,1275 Aldaz v. United States........................................ 1207 Alexander, In re............................................ 1203 Alexander v. Connecticut...................................... 1219 Allen v. Illinois............................................. 1202 Allen; Missouri v............................................. 1205 Allen v. United States .................................. 1210,1253 Alston, In re................................................. 1265 Alton & Southern R. Co. v. Grimming........................... 1218 American Eagle; Regional Airline Pilot Assn. v. ................. 1251 American National Red Cross; Parker v.................... 1255,1270 Amemational Industries, Inc. v. Electroexportimport........... 1233 Amoco Oil Co.; Heerdink v..................................... 1217 Anderman/Smith Operating Co.; Tennessee Gas Pipeline Co. v. ... 1206 VII VIII TABLE OF CASES REPORTED Page Anderson, In re............................................... 1268 Anderson v. Lehr.......................................... 1256,1280 Anderson v. Ohio.............................................. 1257 Andrews v. Ohio............................................... 1220 Ansonia Bd. of Ed.; Philbrook v............................... 1218 Appleton v. United States..................................... 1211 Aqua-Chem, Inc. v. National Labor Relations Bd................ 1238 Area Health Development Bd.; Littles v........................ 1250 Arevalo-Navarro v. United States.............................. 1210 Arizona v. Bartlett .......................................... 1246 Arizona; Hinchey v............................................ 1224 Arizona v. Kempton ........................................... 1212 Arizona; LaGrand v....................................... 1259,1277 Arizona; Schad v........................................... 624,1277 Arizona; Williams v. ......................................... 1265 Arkansas v. Oklahoma.......................................... 1229 Arkansas; Ray v............................................... 1222 Armontrout; Broyles v......................................... 1235 Armontrout; Clemons v......................................... 1235 Armstrong; Assa’ad-Faltas v................................... 1280 Artist M.; Suter v............................................ 1279 Ashcroft; Gregory v............................................ 452 Ashkenazy Property Management Corp. v. NLRB................... 1217 Assa’ad-Faltas v. Armstrong................................. 1280 Assembly of State of Cal.; Department of Commerce v.......'.. 1272 Astoria Federal Savings & Loan Assn. v. Solimino............... 104 Atkins v. South Carolina...................................... 1259 Atlanta; Williams v........................................... 1221 Attorney General of Ala.; Johnson v. ......................... 1237 Attorney General of Ark.; Rector v....................... 1239,1280 Attorney General of Cal. v. Trans World Airlines, Inc......... 1204 Attorney General of Ga.; McCleskey v. ................... 1281,1282 Attorney General of La., In re................................ 1229 Attorney General of Tex.; Houston Lawyers’ Assn. v............. 419 Attorney General of Tex.; League of United Latin Am. Citizens v. 419 Attorney General of Tex. v. Trans World Airlines, Inc......... 1204 Attorney General of Tex.; Wightman v.......................... 1256 Attorney General of Va.; Sindram v.......................... 1213 Attridge; Ward v. ............................................ 1225 Auriemma; Rice v.............................................. 1204 Austin; Hejl v. ............................................. 1244 Austin v. Washington.......................................... 1270 Avila-Cruz v. United States .................................. 1258 Ayers v. Mabus ..................................... 1229,1276,1279 TABLE OF CASES REPORTED IX Page Bairstow v. Bairstow........................................... 1231 Baker; Buelow v................................................ 1221 Ballantyne v. Illinois........................................ 1220 Bandali v. Maryland .......................................... 1258 Bank of Boston; Connell, u.................................... 1218 Barnes v. E-Systems, Inc. Group Hospital Med. & Surgical Ins. Plan 1301 Barnes v. Glen Theatre, Inc...C................................ 560 Barnes v. United States........................................ 1208 Barnett Bank of Pensacola; Jenkins v. ........................ 1204 Barry; Smith v..................................x............. 1249 Bartlett; Arizona v. .......................... ...... i. . 1246 Barton v. Smith............................................... 1217 Barton; Smith v............................................... 1217 Bass v. South Carolina........................................ 1246 Bausch & Lomb Inc. v. Hewlett-Packard Co...................... 1231 Baxter v. Clark............................................... 1255 Baxter Healthcare Corp.; Cada v.............................. 1261 Bay v. Louisiana.............................................. 1236 Bayerische Hypotheken-und Wechsel-Bank AG v. Gorg............. 1232 Beam Distilling Co. v. Georgia................................. 529 Beard; Davis v................................................ 1244 Beasley; Taylor v. ........................................... 1202 Beatty; Cosner v.............................................. 1236 Bedonie v. United States...................................... 1253 Belleville Shoe Mfg. Co.; Short v. .............................. 1250 Ben-Moshe v. Martinez......................................... 1244 Bennett, In re ......................................... x 1228,1273 Berger, In re................................................. 1227 Berger; Cohen v............................................... 1224 Bergmann, In re............................................... 1228 Bernal-Rodriguez v. United States............................. 1211 Best Buy Co.; Best Buy Warehouse v............................ 1252 Best Buy Warehouse v. Best Buy Co............................. 1252 BethEnergy Mines, Inc.; Pauley v............................... 680 Beverly v. United States...................................... 1237 Bhaya v. Westinghouse Electric Corp........................... 1217 Bibo-Rodriguez v. United States.............................. 1234 Billings v. Secretary of Labor................................ 1235 Bird v. Collins........................................ 1213,1224 Bird v. Shearson Lehman/American Express, Inc................. 1251 Bird v. Texas ................................................ 1223 Black; Paitsel v.............................................. 1253 Blatchford v. Native Village of Noatak......................... 775 Blevins; Germano v. .......................................... 1244 X TABLE OF CASES REPORTED Page Block; Mercado v.... ........................................ 1236 Board of Adjustments-Zoning for Denver; Heydt v. .............. 1254 Board of Adjustments-Zoning for Denver; Hite v................. 1254 Board of Admin., Public Employees’ Retirement System; Knight v. 1231 Board of Ed. of Memphis City Schools; Cook v................. 1257 Board of Governors, FRS v. MCorp Financial, Inc.............. 1276 Board of Governors, FRS; MCorp Financial, Inc. v............. 1276 Board of Public Ed. and Orphanage for Bibb County v. Lucas... 1226 Board of Regents of Univ, of Mich.; Le Blanc v. ............. 1225 Bocchicchio v. Freeman....................................... 1206 Bohanan v. United States .................................... 1222 Bolton, In re................................................ 1215 Bolton v. United States...................................... 1206 Bond v. Octagon Process, Inc................................. 1232 Bonilla v. United States..................................... 1259 Borg; McNamara v............................................. 1220 Borgert; Lester v............................................ 1232 Borough. See name of borough. Borroto v. United States................................ 1257,1281 Bostick; Florida v............................................ 429 Boudreaux v. United States .................................. 1237 Bout v. Kent County.......................................... 1254 Bowers; McCleskey v..................................... 1281,1282 Bowersox; Wickham v.......................................... 1254 Bowling v. Rhode Island ..................................... 1210 Bowman v. Yazzie............................................. 1207 Boxer, In re................................................. 1269 Boyd v. South Carolina....................................... 1236 Bozeman v. U. S. Parole Comm’n............................... 1257 Bradley v. Meachum........................................... 1221 Bramble v. United States................................... 1222 Braxton; Hardison v.......................................... 1234 Brazil, In re............................................... 1268 Brewer v. Lincoln National Life Ins. Co...................... 1238 Bridges v. Spiller-Bridges................................... 1265 Brill, In re................................................. 1274 Brim v. Peters.............................................. 1208 Brooks; Morrison v........................................... 1277 Brotherhood. For labor union, see name of trade. Broward County; Capeletti Bros., Inc. v. .................... 1238 Brown; Alabama v. ........................................... 1201 Brown; Chavous v............................................ 1202 Brown v. Grabowski........................................... 1218 Brown v. Illinois............................................ 1252 TABLE OF CASES REPORTED XI Page Brown v. Jolly............................................... 1235,1280 Brown; Roselle v.................................................. 1218 Brown v. United States............................................ 1237 Brown v. Wong..................................................... 1232 Broyles v. Armontrout............................................. 1235 Broyles; Director, Office of Workers’ Compensation Programs v. .. 1248 Bruce, In re...................................................... 1203 Bryant; Rector v............................................. 1239,1280 Budd Foods, Inc.; Levinson v...................................... 1252 Buelow v. Baker................................................... 1221 Bullard v. Madigan .............................................. . 1269 Bumgarner v. Lockhart............................................. 1254 Burke, In re................................................. 1228,1268 Bums v. Bums...................................................... 1244 Bums v. United States.............................................. 129 Busch v. Jeffes................................................... 1270 Bush; Hartness v. .............................................. 1251 Bush v. Water Pollution Control Authority for Waterford........... 1224 Business Exchange, Inc.; Kiskila v................................ 1244 Butler Hospital; D’Amario v. .................................. 1223 Byrd v. Delo...................................................... 1271 Cada v. Baxter Healthcare Corp.................................... 1261 Calgon Carbon Corp.; Smith v.................................:.. 1225 California; Douglas v............................................. 1220 California; Frank v.......................................... 1213,1270 California; Kelly v............................................... 1202 California; McCabe v.....................................;........ 1236 California; Moore v............................................... 1214 California; Sanders v............................................ 1269 California; Segovia v. ......................................... 1235 California; Taylor v.............................................. 1208 California; Verdugo v............................................. 1214 California; Whitt v. ........................................ 1213,1270 California; Williams v....................................... 1207,1233 California; Zatko v. ........................................ 1255,1256 Camden County Prosecutor’s Office; Gidney v....................... 1202 Camoscio v. Hodder........................................... 1224,1253 Campbell, In re .................................................. 1268 Campbell v. Shillinger............................................ 1214 Capeletti Bros., Inc. v. Broward County........................... 1238 Capoferi v. United States ........................................ 1211 Caracciolo v. Smith............................................... 1208 Cardilli v. United States......................................... 1217 Cardona-Martinez v. United States................................. 1258 XII TABLE OF CASES REPORTED Page Carlson; Adefuye v............................................ 1254 Carney v. Department of Veterans Affairs................. 1237,1280 Caronna, In re............................................ 1228,1273 Carr; Taylor v................................................ 1251 Carroll; Muth v............................................... 1255 Carter v. South Central Bell.................................. 1260 Castle v. Director, Office of Workers’ Compensation Programs .... 1253 Castor v. Clark............................................... 1270 Cathey v. Metropolitan Life Ins. Co........................... 1232 Caudle v. United States....................................... 1237 Celeste; Lundblad v........................................... 1250 Centel Cable Television Co. of Ohio, Inc.; Cook v. ........... 1247 Chambers v. NASCO, Inc..................................... 32,1269 Chambers v. Prudential Ins. Co. of America.................... 1269 Champion; Ziegler v........................................... 1277 Chapman v. United States..................................... 1270 Chase v. Davies.............................................. 1208 Chavira v. United States...................................... 1234 Chavous v. Brown.............................................. 1202 Cheney; Pavlos v.............................. t. . : 1208 Chicago; Saukstelis v. ......................................... 1278 Chicago; Smith v............................................... 1217 Chicago Teachers; Hudson v. .................................. 1230 Chicano v. Connecticut........................................ 1254 Chi-Sen Li v. Ruiz............................................. 1251 Chisom v. Roemer............................................... 380 Chun Wong; Ta-Chun Wang v. .! t ..... 1252 Church v. United States....................................... 1231 Cianciola v. United States..................................... 1219 Citizens for Abatement of Noise; Metro. Wash. Airports Auth. v. . 252 City. See name of city. Clark; Baxter v............................................... 1255 Clark; Castor v............................................... 1270 Clark v. Roemer.......................................... 1246,1278 Clarke v. Ross ............................................... 1247 Clarke v. Texas .............................................. 1272 Clarke v. West Virginia Bd. of Regents........................ 1248 Clay v. Exchange Mut. Ins. Co................................ 1253 Clemons v. Armontrout.......................................... 1235 Cleveland Pneumatic Co.; Gridley v............................. 1232 Clinchfield Coal Co. v. Director, OWCP......................... 680 Coastal Corp.; Willy v. . . . 1216 Cody v. Sullivan............................................... 1208 Cohen v. Berger................................................ 1224 TABLE OF CASES REPORTED XIII Page Cohen v. Cowles Media Co........................................ 663 Cohen v. Minneapolis Star & Tribune Co.......................... 663 Coiro v. United States......................................... 1217 Coke v. United States.......................................... 1221 Coleman, In re................................................. 1268 Coleman v. Indiana............................................ 1259 Coleman v. Pung............................................... 1257 Coleman v. Thompson....................................... 722,1277 Collins; Bird v........................................... 1213,1224 Collins; De la Cerda v......................................... 1277 Collins; Goodwin v. ........................................... 1253 Collins; Johnson v............................................. 1237 Collins; Lockhart v............................................ 1237 Collins; Palmer v.............................................. 1233 Collins; Russell v..................................... 1259,1277,1278 Collins; Thomas v.............................................. 1235 Collins; Webster v. ........................................... 1214 Collins v. Whitley............................................. 1207 Colorado; Fleming v... :....................................... 1244 Colorado v. Galimanis.......................................... 1238 Columbia Oldsmobile, Inc. v. Montgomery........................ 1231 Columbus Country Club v. United States..................... 1205 Commercial Ins. Co. of Newark; Lingerfelt v.................... 1251 Commissioner; Freytag v......................................... 868 Commissioner of Internal Revenue. See Commissioner. Commissioner of Revenue of Tenn. v. Newsweek, Inc.............. 1214 Commissioner of Revenue of Tenn. v. Southern Living, Inc, ..... 1214 Commissioner of Revenue Servs., Conn. v. SFA Folio Connections 1223 Commonwealth. See name of Commonwealth. Confederated Tribes, Yakima Indian Nation v. Yakima County.... 1275 Confederated Tribes, Yakima Indian Nation; Yakima County v. ... 1275 Connecticut; Alexander v. .................................... 1219 Connecticut; Chicano v. ....................................... 1254 Connecticut v. Doehr............................................. 1 Connecticut; Hickey v.......................................... 1252 Connell v. Bank of Boston...................................... 1218 Consolidation Coal Co. v. Director, OWCP........ ............... 680 Constant v. United States...................................... 1206 Contra Costa County; R. H. Macy & Co. v. ...................... 1245 Controller of Cal.; Lillebo v.................................. 1205 Cook v. Board of Ed. of Memphis City Schools .................. 1257 Cook v. Centel Cable Television Co. of Ohio, Inc............... 1247 Cook County Officers Electoral Bd. v. Reed................ 1249,1276 Cooney v. White................................................ 1201 XIV TABLE OF CASES REPORTED Page Corrections Commissioner. See name of commissioner. Cosner v. Beatty.............................................. 1236 Costello; Nunez v. ................................... 1259,1281 Council of New Orleans; New Orleans Public Service, Inc. v.... 1276 County. See name of county. Cowles Media Co.; Cohen v...................................... 663 Craig v. United States......................................... 1265 Crane, In re................................................... 1248 Crane v. Washington........................................... 1237 Creel v. Keene................................................ 1210 Cristina v. DeRamus........................................... 1278 Crosby v. United States........................................ 1222 Crosley, In re................................................ 1273 Cross v. Griffin.............................................. 1236 Crosson v. Ohio .............................................. 1253 Crowley, In re................................................ 1268 Cruz v. United States....................................... 1209 Curiale v. Alaska............................................. 1266 Cutler; Schmidt v. 1221 D’Agnillo v. Department of Housing and Urban Development...... 1254 Dale v. State, County & Municipal Employees................... 1231 D’Amario v. Butler Hospital................................... 1223 D’Amar io v. United States ................................... 1209 Daniel; White v............................................... 1260 Daniels v. United States...................................... 1222 Darboven v. Nickolopoulos..................................... 1233 Davenport v. Duckworth........................................ 1220 David L. Threlkeld & Co. v. Metallgesellschaft Ltd. (London).. 1267 Davie v. Muncy................................................ 1222 Davies; Chase v............................................... 1208 Davies; Grossmont Union High School Dist. v................... 1252 Davies; Martin v.............................................. 1208 Davis v. Beard................................................ 1244 Davis; Lillebo v. .............................................. 1205 Davis v. United States........................................ 1221 Davison, In re ............................................... 1202 Dayton; Fuhrman v. ........................................... 1257 Dayton Power & Light Co.; Prather v........................... 1250 Dean v. United States......................................... 1206 DeAnda; Gray v. .............................................. 1256 Dearborn Heights; Steeg v..................................... 1265 Deases v. United States....................................... 1233 DeBlanc v. Texas.............................................. 1259 DeCanzio v. Quinlan........................................... 1254 TABLE OF CASES REPORTED xv Page Deeds v. Johnson.............................................. 1252 De la Cerda v. Collins........................................ 1277 De la Cruz v. United States .................................. 1258 Delaware v. New York.......................................... 1228 Delaware; Riley v............................................. 1223 Delbridge v. New Jersey Division of Youth and Family Services 1224,1265 Della-Donna, In re............................................ 1248 Dellorfano, In re............................................. 1275 Delo; Byrd v.................................................. 1271 Delo; Scott v. ............................................... 1234 De Martini; Ferrin v. ........................................ 1204 Demos v. Supreme Court of Wash................................ 1237 Demos v. Washington........................................... 1221 Dempsey v. White......................................... 1208,1270 Denholm v. Houghton Mifflin Co................................ 1212 Dennison v. Frederick County.................................. 1218 Department of Agriculture; Hatch v. .......................... 1254 Department of Army; Pope v.................................... 1224 Department of Commerce v. Assembly of State of Cal............ 1272 Department of Housing and Urban Development; D’Agnillo v...... 1254 Department of Justice v. Rosenfeld............................ 1227 Department of Treasury; Hendricks v....................... 1234,1270 Department of Veterans Affairs; Carney v................... 1237,1280 DeRamuS; Cristina v........................................... 1278 DeTar v. United States ....................................... 1210 Dewsnup v. Timm............................................... 1275 Dias; Sky Chefs, Inc. v....................................... 1201 Director, OWCP v. Broyles.................................... 1248 Director, OWCP; Castle v. .................................... 1253 Director, OWCP; Clinchfield Coal Co. v......................... 680 Director, OWCP; Consolidation Coal Co. v..................... 680 Director, OWCP v. Robinette................................... 1246 Director of penal or correctional institution. See name or title of director. Director of Revenue of Mo.; Williams Cos. v................... 1260 District Court. See U. S. District Court. District Judge. See U. S. District Judge. District of Columbia; Sanders v.......................... 1234,1277 Dixie Ins. Co.; Polk v. ...................................... 1201 Dixon v. Hubert............................................... 1231 Dixon; McDougall v. .......................................... 1223 Doehr; Connecticut v............................................. 1 Donati v. Morris.............................................. 1235 Dougall v. United States...................................... 1234 XVI TABLE OF CASES REPORTED Page Douglas v. California........................................ 1220 Downers Grove; National Advertising Co. v. ................... 1261 Drivers; Yellow Bus Lines, Inc. v. ........................... 1222 Dube; Wharton v............................................... 1211 Duck; Read v.................................................. 1224 Duckworth; Davenport v........................................ 1220 Duckworth; Sceifers v......................................... 1224 Duenas-Zaragoza v. United States.............................. 1234 Duluth-Superior ILA Marine Assn. Pens. Plan v. Seaway Port Auth. 1218 Dunham; Frank’s Nursery & Crafts, Inc. v...................... 1205 Dunn v. New York.............................................. 1219 Dutridge v. Toledo Division of Building Inspection............ 1252 Duva, In re............................................... 1248,1273 Duyck v. New York.......................................... 1205 Eastern Air Lines, Inc.; Air Line Pilots Assn. v. ............ 1283 Eastman Kodak Co. v. Image Technical Services, Inc........ 1216,1279 Eastman Kodak Co.; Jones v............................... 1220,1270 EDAP, S. A. v. Richard Wolf GmbH.............................. 1283 Edgemon v. Lockhart........................................... 1256 El Centro v. United States.................................... 1230 Electroexportimport; Amemational Industries, Inc. v........... 1233 Elledge, In re................................................ 1229 Elliot v. Shabazz............................................. 1220 Emhart Corp.; Reichelt v...................................... 1231 Empire Blue Cross & Blue Shield; Mattia v..................... 1251 Encarnacion v. United States.................................. 1209 English v. United States................................. 1210,1211 EPA v. Oklahoma .............................................. 1229 EPA; Washington State Dept, of Transportation v. ............. 1230 Estelle; Savage v. ........................................... 1255 E-Systems, Inc. Group Hospital Med. & Surgical Ins. Plan; Barnes v. 1301 Etowah County Comm’n; Presley v.......................... 1275,1279 Evans v. United States........................................ 1229 Evatt; Gaskins v. ......................................... 1271,1272 Exchange Mut. Ins. Co.; Clay v...............,................ 1253 Fannin v. United States....................................... 1219 Fant v. Stephens.............................................. 1217 Farber; Massillon Bd. of Ed. v. ............................ 1230 Farrell v. O’Bannon........................................... 1270 Federal Bureau of Investigation; Miller v................ 1254,1277 Federal Deposit Ins. Corp.; Hall v............................ 1231 Federal .Deposit Ins. Corp.; Manatt v......................... 1250 Feinstein v. United States.................................... 1225 Fells v. United States........................................ 1219 TABLE OF CASES REPORTED XVII Page Feltrop v. Missouri............................................. 1262 Fernandez v. United States...................................... 1280 Ferreiro v. United States....................................... 1211 Ferrell v. West Virginia........................................ 1207 Ferrin v. De Martini..:......................................... 1204 Ferris Faculty Assn.; Lehnert v............................. 1244 Fidelcor, Inc.; Kehr Packages, Inc. v. ......................... 1222 Fierer v. Illinois.......................................... 1219 Figueroa v. United States................................... 1257 Fine; Main Hurdman v. .......................................... 1229 Fleming v. Colorado......................................... 1244 Fleming Landfill, Inc. v. Games............................. 1247 Florida v. Bostick .............................................. 429 Florida; Floyd v. .............................................. 1259 Florida; Freeman v. ............................................ 1259 Florida; Haliburton v....................................... 1259 Florida; Lewis v. .: 1259 Florida; Long v............................................. 1250 Florida; McGrew v.......................................... 1220,1280 Florida v. Trody............................................ 1226 Florida Bar; Herrick v. ........................................ 1205 Florida Bar; Levin v. .......................................... 1250 Flowers v. United States.................................... 1253 Floyd v. Florida............................................ 1259 Follett v. United States.................................... 1204 Foltz; Whigham v............................................ 1225 Food Chemical News, Inc.; Reuber v. ........................ 1212 Ft. Worth Independent School Dist.; Reed v................. 1255,1280 Foster v. United States..................................... 1257 Foucha v. Louisiana......................................... 1216 Frame; Slacum v............................................. 1214 Francis v. Singletary...................................... 1244,1245 Francis; Singletary v....................................... 1221 Frank v. California ....................................... 1213,1270 Franklin, In re............................................ 1203,1273 Franklin v. Gwinnett County Public Schools.................. 1204 Frank’s Nursery & Crafts, Inc. v. Dunham ..................... 1205 Frederick County; Dennison v. .. i.............................. 1218 Freeman; Bocchicchio v. . 1206 Freeman v. Florida............................................... 1259 Freytag v. Commissioner.......................................... 868 Frota Oceanica Brasileira, S. A. v. Pires....................... 1205 Fuhrman v. Dayton................................................ 1257 Fulani v. Hogsett................................................ 1206 XVIII TABLE OF CASES REPORTED Page Fulcomer; Veneri v. ....................................... 1255,1280 Fuller v. United States......................................... 1238 Fulton County v. S. J. Groves & Sons Co......................... 1252 Fuqua Industries, Inc. v. Jandrucko............................. 1252 Gade v. National Solid Wastes Management Assn................... 1229 Galimanis; Colorado v. ......................................... 1238 Gallagher, In re.............................7.................. 1269 Gamer, In re............................................... 1228,1273 Garcia v. United States ................................... 1210,1247 Gargan v. Alaska................................................ 1209 Games; Fleming Landfill, Inc. v................................. 1247 Garrett v. Ohio................................................. 1209 Gaskins v. Evatt........................................... 1271,1272 Gaskins v. McKellar............................................. 1269 Gay, In re...................................................... 1229 Geary; Renne v................................................... 312 Gedson v. United States......................................... 1222 Gelman, In re................................................... 1268 General Motors Corp. v. Romein.................................. 1276 Gentile v. State Bar of Nev. ................................... 1030 Georgia; James B. Beam Distilling Co. v. ................t...... 529 Georgia; Miller v................................................ 1259 Georgia; Moon v. . 1224 Georgia; Spencer v. ........................................... 1269 Germano v. Blevins............................................... 1244 Geurin, In re ................................................... 1204 Gibson v. United States.......................................... 1207 Giddens; Twyman v................................................ 1256 Gidney v. Camden County Prosecutor’s Office...................... 1202 Gilbertson; Lampf, Pleva, Lipkind, Prupis & Petigrow v. ...... 350,1277 Gillenwater; Parke v. ......................................... 1246 Gilley; Siegert v. .............................................. 1265 Gilman Paper Co.; Malone v....................................... 1219 Glanz; Zani v.................................................... 1220 Gleicher v. United States........................................ 1250 Glen Theatre, Inc.; Barnes v..................................... 560 GLK, Inc. v. United States....................................... 1205 Globus v. Skinner............................................. 1230 Goerlich, In re................................................. 1274 Gollust v. Mendell............................................... 115 Golochowicz v. Grayson .......................................... 1250 Golub v. University of Chicago.................................. 1214 Gonzales v. United States........................................ 1238 Good v. United States............................................ 1210 TABLE OF CASES REPORTED XIX Page Goodwin v. Collins............................................ 1253 Goodwin v. Texas.............................................. 1259 Gordon v. Illinois............................................ 1231 Gorg; Bayerische Hypotheken-und Wechsel-Bank AG v............. 1232 Governor of La.; Chisom v....................................... 380 Governor of La.; Clark v.................................. 1246,1278 Governor of La.; United States v............................... 380 Governor of Miss.; Ayers v.......................... 1229,1276,1279 Governor of Miss.; United States v. ................... 1229,1276,1279 Governor of Miss.; Watkins v................... j ............... 1270 Governor of Mo.; Gregory v. . 452 Governor of Va.; Republican Party of Va. v.................... 1278 Grabowski; Brown v............................................. 1218 Graham v. United States........................................ 1258 Gray v. DeAnda................................................. 1256 Grayer v. Puckett ............................................. 1254 Grayson; Golochowicz v......................................... 1250 Green v. United States......................................... 1217 Green, Ning, Lilly & Jones; Parnar v. ................... 1206,1280 Gregg Potato Sales, Inc. v. Landis Brothers.................... 1218 Gregory v. Ashcroft.......................................... 452 Gribble; Texas v............................................... 1232 Gridley v. Cleveland Pneumatic Co.............................. 1232 Griffin; Cross v............................................... 1236 Griffin v. Missouri............................................ 1259 Grimming; Alton & Southern R. Co. v. ......................... 1218 Grossmont Union High School Dist. v. Davies................... 1252 Grover v. Rocheleau........................................... 1280 Groves & Sons Co.; Fulton County v............................ 1252 Guardsmark, Inc. v. Pinkerton’s, Inc.......................... 1252 Guerinot v. Rockwell International Corp....................... 1206 Guerrero v. United States..................................... 1244 Guller, In re................................................. 1274 Gunter; Timm v................................................ 1209 Guste, In re................................................ 1229 Gwinnett County Public Schools; Franklin v. .... ,^,1............. 1204 Hafer v. Melo................................................. 1215 Haliburton v. Florida......................................... 1259 Hall v. Federal Deposit Ins. Corp............................. 1231 Hall v. United States ........................................ 1233 Hamilton; Hodory v............................................ 1232 Hammond v. Texas.............................................. 1259 Hardison v. Braxton......................................... 1234 Harmelin v. Michigan........................................... 957 XX TABLE OF CASES REPORTED Page Harper v. Virginia Dept, of Taxation......................... 1247 Hartley Marine Corp.; Meaige v............................... 1217 Hartness v. Bush............................................. 1251 Harvey v. United States ................................... 1214 Hatch v. Department of Agriculture.......................... 1254 Hatchett v. United States.................................... 1223 Hatfield; Vemon v. .......................................... 1236 Hayden, In re........................................... 1228,1273 HBA East Ltd. v. JEA Boxing Co............................... 1218 Heerdink v. Amoco Oil Co..................................... 1217 Heinemeyer v. O’Donnell...................................... 1214 Hejl v. Austin............................................... 1244 Henderson, In re............................................. 1227 Henderson v. Nevada Entertainment Industries, Inc............ 1202 Henderson v. United States .................................. 1211 Henderson v. U. S. District Court............................ 1202 Hendricks v. Department of Treasury..................... 1234,1270 Henson-El v. Rogers.......................................... 1235 Hernandez v. United States .................................. 1209 Hernandez v. Wooten..................................... 1253,1280 Herrick v. Florida Bar....................................... 1205 Hewlett-Packard Co.; Bausch & Lomb Inc. v. .................. 1231 Heydt v. Board of Adjustments-Zoning for Denver.............. 1254 Hickey v. Connecticut........................................ 1252 Hickey v. United States.................................... 1234 Hill; Reese v. .............................................. 1265 Hill v. United States........................................ 1226 Hinchey v. Arizona........................................... 1224 Hite v. Board of Adjustments-Zoning for Denver............... 1254 H & M Construction Co. v. Tell City Chair Co................. 1225 Hodder; Camoscio v..............:.. Í.................... 1224,1253 Hodory v. Hamilton........................................... 1232 Hogsett; Fulani v............................................ 1206 Holbrook v. Hurt............................................. 1235 Hollingsworth v. Texas..................................... 1269 Holywell Corp. v. Smith...................................... 1279 Holzendorf v. United States.................................. 1210 Home State Bank v. Johnson................................. 1216 Home State Bank; Johnson v..................................... 78 Hooper v. Alabama............................................ 1232 Hope v. Illinois........................................ 1202,1269 Hope v. United States ....................................... 1224 Hopkins v. Otey.............................................. 1266 Horton v. United States............s.................. 1234,1270 TABLE OF CASES REPORTED xxi Page Houghton Mifflin Co.; Denholm v.................................... 1212 House v. United States............................................. 1259 Houston Lawyers’ Assn. v. Attorney General of Tex................... 419 Howell; Roden v.................................................... 1236 Howell v. United States............................................ 1221 itoy v. Reed....................................................... 1250 Hubert; Dixon v. .................................................. 1231 Hudson v. Chicago Teachers......................................... 1230 Hudson v. McMillian.............................................. 1279 Hull v. Shuck..................................................... 1261 Humphrey v. Tate.............................................. 1256,1280 Hunter v. McKeithen.............................................. 1245 Hunter v. United States............................................ 1258 Hurt; Holbrook v. ................................................. 1235 Hwang Jung Joo v. Immigration and Naturalization Service.......... 1231 Idaho; Paz v....................................................... 1259 Illinois; Allen v. ................................................ 1202 Illinois; Ballantyne v. ........................................... 1220 Illinois; Brown v.............................................. 1252 Illinois; Fierer v. ............................................... 1219 Illinois; Gordon v............................................. 1231 Illinois; Hope v. ............................................ 1202,1269 Illinois; Jackson v............................................ 1233 Illinois; Janssen v............................................ 1233 Illinois; Layton v............................................. 1219 Illinois; Matuska v. ............................................. 1252 Illinois; Mink v................................ ,.t M............. 1235 Illinois; Sequoia Books, Inc. v. .............................. 1205 Illinois; White v.. 1249 Illinois Dept, of Public Health; Nichols v. , 1265 Image Technical Services, Inc.; Eastman Kodak Co. v........... 1216,1279 Immigration and Naturalization Service; Hwang Jung Joo v.......... 1231 Immigration and Naturalization Service; Koh v...................... 1256 Immigration and Naturalization Service; Tarassoum v. ........... 1230 Indiana; Coleman v................................................. 1259 Indiana; Woods v. ................................................. 1259 In re. See name of party. Internal Revenue Service; McGarry v................. 1221,1280 Internal Revenue Service; Ohio Dept, of Taxation v. ............... 1212 International. For labor union, see name of trade. Iowa; Iowa District Court for Winneshiek County v.................. 1232 Iowa District Court for Winneshiek County v. Iowa.................. 1232 Ivy v. Myers....................................................... 1217 Izquierdo v. United States......................................... 1258 XXII TABLE OF CASES REPORTED Page Jackson v. Illinois.............................................. 1233 Jacobs; Owens v. ................................................ 1256 Jacobson v. United States........................................ 1248 James; Norwest Bank Duluth, N. A. v. ......................... 1246 James v. Texas .................................................. 1259 James B. Beam Distilling Co. v. Georgia........................... 529 Jandrucko; Fuqua Industries, Inc. v. ............................ 1252 Janssen v. Illinois.............................................. 1233 Jarrett v. United States......................................... 1258 Jarvis; Moore v.................................................. 1226 JE A Boxing Co.; HBA East Ltd. v................................. 1218 Jeffes; Busch v........ ......................................... 1270 Jenkins v. Barnett Bank of Pensacola............................. 1204 Jenkins; Schmidt v............................................... 1219 Jimison v. Nevada................................................ 1214 Johnson v. Attorney General of Ala............................. 1237 Johnson v. Collins .............................................. 1237 Johnson; Deeds v. .............................................. 1252 Johnson v. Home State Bank ........................................ 78 Johnson; Home State Bank v....................................... 1216 Johnson v. Longview Independent School Dist................. 1256,1281 Johnson v. Texas................................................. 1259 Johnson v. United States......................................... 1209 Jolly; Brown v.............................................. 1235,1280 Jolly; Matthews v........................................... 1235,1280 Jon v. United States............................................. 1221 Jones v. Eastman Kodak Co................................... 1220,1270 Jones; Teter v................................................... 1244 Jones v. United States...................................... 1211,1219 Jones v. Whitley............................................ 1266,1267 Joo v. Immigration and Naturalization Service.................... 1231 Jordan v. United States.......................................... 1210 Jost v. Oregon.............................................. 1256,1280 Judge, Circuit Court of Henry County; Cosner v. ................ 1236 Judge, District Court for Seventh Judicial Dist. of Okla.; Germano v. 1244 Judge, Eleventh Judicial Circuit of Fla.; Caracciolo v........... 1208 Judge, Municipal Court of East Los Angeles; Chi-Sen Li v........ 1251 Jung Joo v. Immigration and Naturalization Service............... 1231 Juvenile Male #2 v. United States................................ 1207 Kansas; Wesson v................................................. 1236 Kansas Dept, of Social & Rehab. Services; Wolfenberger v. ... 1256,1277 Kansas Gas & Electric Co. v. Kansas State Corporation Comm’n .. 1216 Kansas State Corporation Comm’n; Kansas Gas & Electric Co. v. . 1216 Karapinka, In re................................................. 1226 TABLE OF CASES REPORTED XXIII Page Kavanagh v. United States..................................... 1234 Keane; Pinkney v. ..........>................................ 1217 Keck; Smith v. ............................................... 1207 Keene; Creel v................................................ 1210 Kehr Packages, Inc. v. Fidelcor, Inc.......................... 1222 Keller Industries, Inc.; Moore v.............................. 1214 Kelly, In re.................................................. 1203 Kelly v. California........................................... 1202 Kelly; Laboy v................................................ 1255 Kemp v. State Bd. of Agriculture.............................. 1205 Kempton; Arizona v............................................ 1212 Kent County; Bout v........................................... 1254 Kerr v. United States......................................... 1222 Kessler, In re................................................ 1274 Kidder, Peabody & Co. v. Maxus Energy Corp.................... 1218 Kile v. North Pacific Construction Co......................... 1232 Kills on Top v. Montana....................................... 1259 Kiskila v. Business Exchange, Inc............................. 1244 Kiskila v. Superior Court of Cal., Riverside County........... 1244 Knight v. Board of Admin., Public Employees’ Retirement System 1231 Koh v. Immigration and Naturalization Service................. 1256 Kozak; Lockwood v.. 1205 Kramer; Rollins v............................................. 1238 Kuns v. Ohio.................................................. 1221 Kuntz v. Shawmut Bank of Boston............................... 1252 Labor Union. See name of trade. Laboy v. Kelly................................................ 1255 Lackey, In re...........................;.................... 1227 Laff v. United States ........................................ 1233 LaGrand v. Arizona...................................... 1259,1277 Lakeview Development Corp. v. South Lake Tahoe................ 1251 Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson..... 350,1277 Landis Brothers; Gregg Potato Sales, Inc. v. . 1218 Larsen v. United States...................................... 1206 Laurelez v. United States..................................... 1259 Layton v. Illinois............................................ 1219 Leach v. United States........................................ 1207 League of United Latin Am. Citizens v. Attorney General of Tex. 419 Le Blanc v. Board of Regents of Univ, of Mich................. 1225 LeBlanc v. United States...................................... 1270 Le Blanc v. University of Mich.............................. 1225 Lee, In re.................................................... 1249 Lee; Morrison v.............................................. 1265 Lee v. Weisman................................................ 1215 XXIV TABLE OF CASES REPORTED Page LeFevre; Ortiz v................................................ 1238 Lehnert v. Ferris Faculty Assn.................................. 1244 Lehr; Anderson v........................................... 1256,1280 LeLouis, In re.................................................. 1268 Lemrick v. Oregon Court System.................................. 1220 Leonard v. Scully............................................... 1235 L’Ermitage Hotel v. National Labor Relations Bd................. 1217 Lester v. Borgert............................................... 1232 Levin v. Florida Bar............................................ 1250 Levinson v. Budd Foods, Inc..................................... 1252 Lewis, In re.................................................... 1204 Lewis v. Florida................................................ 1259 Lewy v. Virginia Dept, of Taxation.............................. 1247 Li v. Ruiz..................................................... 1251 Lillebo v. Davis ............................................... 1205 Lincoln v. United States........................................ 1222 Lincoln National Life Ins. Co.; Brewer v........................ 1238 Lingerfelt v. Commercial Ins. Co. of Newark..................... 1251 Little v. United States......................................... 1258 Little Rock v. Reynolds......................................... 1204 Littles v. Area Health Development Bd........................... 1250 Litton Financial Printing Division v. NLRB....................... 190 Local. For labor union, see name of trade. Lockhart; Bumgarner v.. 1254 Lockhart v. Collins ............................................ 1237 Lockhart; Edgemon v. ........................................... 1256 Lockhart; McKinnon v....................................... 1208 Lockhart; Pitts v.......................................... 1253 Lockhart; Porter v......................................... 1256 Lockhart; Ricketts v. ......................................... 1255 Lockwood v. Kozak.......................................... 1205 Lomax v. Wood ................................................. 1238 Long v. Florida ................................................ 1250 Longview Independent School Dist.; Johnson v............... 1256,1281 Looney, In re.............................................. 1273 Lopez-Pena v. United States.................................... 1249 Lorain; Rosenberg v........................................ 1249 Louisiana; Bay v........................................... 1236 Louisiana; Foucha v........................................ 1216 Louisiana ex rel. Guste, In re............................. 1229 Loving, In re.............................................. 1215 Lozano v. United States.................................... 1258 Lucas; Board of Public Ed. and Orphanage for Bibb County v. .... 1226 Lukas, In re............................................... 1215,1273 TABLE OF CASES REPORTED xxv Page Lundblad v. Celeste........................................... 1250 Lytle v. United States........................................ 1211 M.; Suter v................................................... 1279 Mabus; Ayers v...................................... 1229,1276,1279 Mabus; United States v.. . 1229,1276,1279 Mabus; Watkins v.............................................. 1270 Mach, In re................................................... 1273 Mack v. Russell County Comm’n............................ 1275,1279 Macy & Co. v. Contra Costa County............................. 1245 Madigan; Bullard v............................................ 1269 Maine Public Utilities Comm’n v. Maine Yankee Atomic Power Co. 1230 Maine Yankee Atomic Power Co.; Maine Public Utilities Comm’n v. 1230 Main Hurdman v. Fine.......................................... 1229 Makah Indian Tribe v. United States .......................... 1250 Malbrough v. United States.................................... 1258 Maldonado-Rivera v. United States............................. 1233 Malone v. Gilman Paper Co..................................... 1219 Malone v. Missouri............................................ 1225 Manatt v. Federal Deposit Ins. Corp.......................... 1250 Manning v. United States .................................... 1234 Mannino v. United States..................................... 1206 Marcus, In re................................................. 1274 Marsh; Pletten v........................................ 1221,1280 Marshall v. United States .................................... 1205 Marshall; Zatko v........................................ 1208,1255 Marteny v. Murray............................................. 1236 Martin v. Davies.............................................. 1208 Martin; Peabody Coal Co. v.....................'.............. 1245 Martin v. Thompson ........................................... 1220 Martin v. U. S. Postal Service ............................... 1265 Martinez; Ben-Moshe v. ........................................ 1244 Martinez v. Sullivan.......................................... 1220 Martinez v. United States..................................... 1249 Maryland; Bandali v........................................... 1258 Maryland; Windle v. .......................................... 1270 Mason v. United States ....................................... 1257 Massillon Bd. of Ed. v. Farber................................ 1230 Masson v. New Yorker Magazine, Inc............................. 496 Mathis v. Wayne County Friend of Court........................ 1224 Matney, In re................................................. 1268 Matthews v. Jolly........................................ 1235,1280 Mattia v. Empire Blue Cross & Blue Shield..................... 1251 Matuska v. Illinois........................................... 1252 Maxus Energy Corp.; Kidder, Peabody & Co. v................... 1218 XXVI TABLE OF CASES REPORTED Page Maynard v. U. S. District Court............................... 1250 Maze; Parker v. ............................................ 1226 McCabe v. California.......................................... 1236 McCann; Schaefer v............................................ 1218 McCleskey v. Bowers...................................... 1281,1282 McCleskey v. Zant............................................. 1224 McCone v. Sagebrush Properties, Inc.......................... 1265 McDonald; Pruessman v. ....................................... 1233 McDougall v. Dixon............................................ 1223 McEvoy v. New York............................................ 1230 McGann v. Barnett Bank of Pensacola........................... 1204 McGarry v. Internal Revenue Service...................... 1221,1280 McGrew v. Florida........................................ 1220,1280 McKaskle; Smith v........................................ 1221,1280 McKeithen; Hunter v........................................... 1245 McKellar; Gaskins v........................................... 1269 McKinney v. United States..................................... 1205 McKinnon v. Lockhart ......................................... 1208 McMahan & Co.; Wherehouse Entertainment, Inc. v.............. 1249 McMillian; Hudson v........................................... 1279 McNamara v. Borg.............................................. 1220 McNeil v. Wisconsin.......................................... 171 MCorp Financial, Inc. v. Board of Governors, FRS.............. 1276 MCorp Financial, Inc.; Board of Governors, FRS v.............. 1276 Meachum; Bradley v............................................ 1221 Meaige v. Hartley Marine Corp................................. 1217 Meehan v. Metro Nashville Police Dept......................... 1277 Melkonyan v. Sullivan........................................... 89 Melo; Hafer v.............................................. 1215 Mendell; Gollust v............................................. 115 Meno v. United States......................................... 1234 Mercado v. Block.............................................. 1236 Mescher; Murphy v. ........................................... 1254 Metallgesellschaft Ltd. (London); David L. Threlkeld & Co. v. .... 1267 Metro Nashville Police Dept.; Meehan v........................ 1277 Metropolitan Life Ins. Co.; Cathey v.......................... 1232 Metropolitan Wash. Airports Auth; v. Noise Abatement Citizens .. 252 Michigan; Harmelin v........................................... 957 Michigan v. Nash.............................................. 1260 Michigan; Perry v............................................. 1236 Michigan; Wilson v............................................ 1236 Micolta-Bravo v. United States................................ 1258 Middlesex County Probation Dept.; Vinik v....................... 1265 Milford v. Professional Lawn Care Assn........................ 1246 TABLE OF CASES REPORTED XXVII Page Miller, In re ................................... k.. 1203,1215,1273 Miller v. Federal Bureau of Investigation................. 1254,1277 Miller v. Georgia.............................................. 1259 Miller v. Toombs ............................................. 1236 Miller; Young v................................................ 1249 Mink v. Illinois............................................... 1235 Minneapolis Star & Tribune Co.; Cohen v. ....................... 663 Minnesota Comm’r of Revenue; Norwest Bank Duluth, N. A. v. ... 1246 Minnesota Mining & Mfg. Co.; Szoke v........................... 1266 Minton v. Sheet Metal Workers.................................. 1208 Miramar Hotel Corp. v. Santa Monica Culinary Welfare Fund...... 1232 Mirzoeff v. Namdar............................................. 1251 Mississippi; Paitsel v. ....................................... 1234 Mississippi; Whitney v......................................... 1253 Missouri v. Allen.............................................. 1205 Missouri; Feltrop v............................................ 1262 Missouri; Griffin v............................................ 1259 Missouri; Malone v............................................. 1225 Missouri; Powell v. ........................................... 1259 Montana; Kills on Top v. ...................................... 1259 Montgomery; Columbia Oldsmobile, Inc. v........................ 1231 Moon v. Georgia................................................ 1224 Moorcones, In re............................................... 1268 Moore, In re................................................... 1216 Moore v. California............................................ 1214 Moore v. Jarvis................................................ 1226 Moore v. Keller Industries, Inc................................ 1214 Morales v. Trans World Airlines, Inc........................... 1204 Morales; Wightman v............................................ 1256 Morgan v. United States........................................ 1207 Morris; Donati v............................................... 1235 Morris v. Orman................................................ 1206 Morrison v. Brooks............................................. 1277 Morrison v. Lee................................................ 1265 Mortier; Wisconsin Public Intervenor v.......................... 597 Moscony v. United States.................................. 1211,1270 Movie 1 & 2; Paramount Pictures Corp. v. ...................... 1230 Muhammad v. Shabazz............................................ 1220 Mu’Min v. Virginia............................................. 1269 Muncy; Davie v................................................. 1222 Murphy v. Mescher.............................................. 1254 Murphy v. United States........................................ 1237 Murray; Marteny v.............................................. 1236 Murray; Peterson v. ........................................... 1271 XXVIII TABLE OF CASES REPORTED Page Musacchia v. United States................................... 1250 Musslewhite v. State Bar of Tex.............................. 1251 Muth v. Carroll.............................................. 1255 Myers; Ivy v. ............................................... 1217 Nabkey v. United States................................. 1207,1277 Nabors Trailers, Inc.; National Labor Relations Bd. v........ 1266 Naccarato v. United States................................... 1205 Namdar; Mirzoeff v. ......................................... 1251 NASCO, Inc.; Chambers v................................... 32,1269 Nash; Michigan v. ........................................... 1260 National Advertising Co. v. Downers Grove.................... 1261 NLRB; Aqua-Chem, Inc. v...................................... 1238 NLRB; Ashkenazy Property Management Corp. v. ................ 1217 ' NLRB; L’Ermitage Hotel v................................... 1217 NLRB; Litton Financial Printing Division v. .................. 190 NLRB v. Nabors Trailers, Inc................................. 1266 NLRB v. Steego Transportation Equipment Centers, Inc......... 1266 NLRB; Yellow Freight System, Inc. v.......................... 1267 National Private Truck Council, Inc. v. Oklahoma Tax Comm’n ... 1247 National Solid Wastes Mgmt. Assn. ; Alabama Dept, of Env. Mgmt. v. 1206 National Solid Wastes Mgmt. Assn.; Gade v. ... ;............. 1229 Nationwide Mut. Ins. Co.; Stebbins v......................... 1209 NCNB National Bank of N. C.; Shows v. .................. 1236,1270 Nebraska; Otey v............................................. 1201 Nebraska; Thomas v........................................... 1270 Needier v. Valley National Bank of Ariz...................... 1216 Nevada; Jimison v............................................ 1214 Nevada v. Watkins ........................................... 1225 Nevada Entertainment Industries, Inc.; Henderson v........... 1202 New Jersey Division of Youth and Family Services; Delbridge v. 1224,1265 Newman v. United States...................................... 1277 New Mexico; Oklahoma v................................... 221,1277 New Orleans Public Service, Inc. v. Council of New Orleans... 1276 Newsted v. Oklahoma.......................................... 1259 Newsweek, Inc.; Commissioner of Revenue of Tenn. v........... 1214 New York; Delaware v........................................ 1228 New York; Dunn v. ........................................... 1219 New York; Duyck v............................................ 1205 New York; McEvoy v. ......................................... 1230 New York; Sachs v............................................ 1231 New York City; Puerto Rican Legal Defense and Ed. Fund, Inc. v. 1247 New Yorker Magazine, Inc.; Masson v........................... 496 New York State Workers’ Compensation Bd.; Smith v............ 1225 Niceville; Warner Cable Communications, Inc. v. ............. 1222 TABLE OF CASES REPORTED XXIX Page Nichols v. Illinois Dept, of Public Health.................... 1265 Nichols v. Nichols ........................................... 1232 Nicholson v. United States ................................... 1211 Nickolopoulos; Darboven v. ................................... 1233 Noatak; Blatchford v. .:....................................... 775 Nolan, In re.................................................. 1275 Nordic Village, Inc.; United States v......................... 1216 Norman v. Reed........................................... 1249,1276 North Carolina; Phillips v.................................... 1208 North Carolina v. Smith....................................... 1229 North Pacific Construction Co.; Kile v........................ 1232 Northwest Savings Bank, PaSA v. Welch......................... 1247 Norwest Bank Duluth, N. A. v. James........................... 1246 Nor-West Cable Communications Partnership v. St. Paul........ 1231 Novey v. United States........................................ 1234 NRC; Shoreham-Wading River Central School Dist. v............ 12ß>l Nunez v. Costello........................................ 1259,1281 Nunnemaker; Ylst v............................................. 797 O’Bannon; Farrell v........................................... 1270 Octagon Process, Inc.; Bond v................................. 1232 O’Donnell; Heinemeyer v. ................................... 1214 Oduloye v. United States...................................... 1211 Ohio; Anderson v. ............................................ 1257 Ohio; Andrews v............................................... 1220 Ohio; Crosson v............................................... 1253 Ohio; Garrett v. ............................................. 1209 Ohio; Kuns u ................................................. 1221 Ohio v. Williams.............................................. 1238 Ohio; Wrenn v. . 1251,1277 Ohio Dept, of Taxation v. Internal Revenue Service............ 1212 Oklahoma; Arkansas v.......................................... 1229 Oklahoma; Environmental Protection Agency v. ................. 1229 Oklahoma v. New Mexico.................................... 221,1277 Oklahoma; Newsted v. ......................................... 1259 Oklahoma; Turner v............................................ 1233 Oklahoma; Wyoming v........................................... 1215 Oklahoma ex rel. Oklahoma Tax Comm’n; Wyandotte Tribe, Okla. v. 1219 Oklahoma Tax Comm’n; National Private Truck Council, Inc. v. ... 1247 Oklahoma Tax Comm’n; Wyandotte Tribe of Okla. v............... 1219 Omer v. United States......................................... 1222 Ordway v. United States.................................. 1261,1277 Oregon; Jost v. . 1256,1280 Oregon; Troen v. ............................................. 1232 Oregon; Walters v............................................. 1209 XXX TABLE OF CASES REPORTED Page Oregon Court System; Lemrick v................................ 1220 Oregonian Publishing Co.; Wolsky v. ........................... 1210 Orman; Morris v............................................... 1206 Ortiz v. LeFevre.............................................. 1238 Oshatz v. United States....................................... 1224 Ostrowe, hire................................................. 1274 Otey; Hopkins v. ............................................. 1266 Otey v. Nebraska.............................................. 1201 Owens v. Jacobs............................................... 1256 Owens v. United States........................................ 1258 Paitsel v. Black............................................. 1253 Paitsel v. Mississippi........................................ 1234 Palmer v. Collins............................................. 1233 Paramount Pictures Corp. v. Movie 1&2......................... 1230 Parke v. Gillenwater.......................................... 1246 Parke v. U. S. Postal Service............................ 1209,1280 Parker v. American National Red Cross.................... 1255,1270 Parker v. Maze................................................ 1226 Parke State Bank; Penn v...................................... 1244 Parks v. United States........................................ 1208 Pamar v. Green, Ning, Lilly & Jones...................... 1206,1280 Passos v. United States...................................... 1209 Pauley v. BethEnergy Mines, Inc................................ 680 Pavlos v. Cheney.............................................. 1208 Payne v. Tennessee........................................ 808,1277 Payne v. United States........................................ 1219 Paz v. Idaho ................................................. 1259 Peabody Coal Co. v. Martin.................................... 1245 Pearson, In re ............................................... 1268 Pena v. United States......................................... 1207 Penn v. Parke State Bank...................................... 1244 Pennsylvania; Abu-Jamal v...................................... 1214 Pennsylvania; Trojan Technologies, Inc. v. ................... 1212 Peretz v. United States........................................ 923 Perez v. United States......................................... 1223 Perry v. Michigan ............................................ 1236 Peters; Brim v.. , t.......................................... 1208 Peterson v. Murray............................................ 1271 Philbrook v. Ansonia Bd. of Ed................................ 1218 Phillips v. North Carolina ................................... 1208 Pinehurst; Pinehurst Area Realty, Inc. v. ....................... 1251 Pinehurst Area Realty, Inc. v. Pinehurst...................... 1251 Pinkerton’s, Inc.; Guardsmark, Inc. v. .......................... 1252 Pinkney v. Keane.............................................. 1217 TABLE OF CASES REPORTED XXXI Page Pinochet v. United States ..................................... 1222 Pires; Frota Oceanica Brasileira, S. A. v. .................... 1205 Pitts v. Lockhart.............................................. 1253 Pletten v. Marsh.......................................... 1221,1280 Polk v. Dixie Ins. Co.......................................... 1201 Pope v. Department of Army..................................... 1224 Porter v. Lockhart............................................. 1256 Powell v. Missouri............................................. 1259 Powell v. Roberts......................................... 1208,1270 Prather v. Dayton Power & Light Co............................. 1250 President of U. S.; Hartness v. . 1251 Presley v. Etowah County Comm’n........................... 1275,1279 Preuss, In re.................................................. 1265 Price v. United States ........................................ 1258 Price v. Willis................................................ 1234 Professional Lawn Care Assn.; Milford v........................ 1246 Prudential Ins. Co. of America; Chambers v..................... 1269 Pruessman v. McDonald.......................................... 1233 Puckett; Grayer v.............................................. 1254 Puckett; Watson v. ....................................... 1208,1270 Puerto Rican Legal Defense and Ed. Fund, Inc. v. New York City 1247 Pung; Coleman v................................................ 1257 Quinlan; DeCanzio v............................................ 1254 Radloff; Toibb v................................................ 157 Ramirez-Carvajal v. United States.............................. 1209 Ramirez-Talavera v. United States.............................. 1211 Ramos v. York.................................................. 1235 Rasmussen; Rosnow v.............................. ............. 1220 R. A. V. v. St. Paul .......................................... 1204 Ray v. Arkansas................................................ 1222 Read v. Duck ................................................ 1224 Rector v. Bryant.......................................... 1239,1280 Reed; Cook County Officers Electoral Bd. v. .............. 1249,1276 Reed v. Ft. Worth Independent School Dist................. 1255,1280 Reed; Hoy v.................................................... 1250 Reed; Norman v............................................ 1249,1276 Reese v. Hill.................................................. 1265 Regional Airline Pilot Assn. v. American Eagle................. 1251 Regional Airline Pilot Assn. v. Wings West Airlines, Inc....... 1251 Reichlet v. Emhart Corp........................................ 1231 Reidt, In re................................................... 1229 Renne v. Geary.................................................. 312 Republican Party of Va. v. Wilder.............................. 1278 Reuber v. Food Chemical News, Inc............................. 1212 XXXII TABLE OF CASES REPORTED Page Reuvelta v. United States..................................... 1237 Reyes-Vasquez v. United States ............................... 1237 Reynolds; Little Rock v....................................... 1204 R. H. Macy & Co. v. Contra Costa County...................... 1245 Rhode Island; Bowling v....................................... 1210 Rice v. Auriemma.............................................. 1204 Rice v. United States......................................... 1272 Richard Wolf GmbH; EDAP, S. A. v.............................. 1283 Ricketts v. Lockhart.......................................... 1255 Riley v. Delaware ............................................ 1223 Rivers, In re............................................ 1203,1273 Rivieccio v. United States.................................... 1230 R. L. C.; United States v................................ 1230,1276 Robbins, In re................................................ 1274 Roberts; Powell v........................................ 1208,1270 Robertson v. Seattle Audubon Society.......................... 1249 Robinette; Director, Office of Workers’ Compensation Programs v. 1246 Robinson, In re.............................................. 1249 Robinson v. Stiftel.......................................... 1235 Rocheleau; Grover v........................................... 1280 Rockwell International Corp.; Guerinot v...................... 1206 Rockwell International Corp.; Spear v. ....................... 1253 Roden v. Howell............................................... 1236 Rodgers v. United States...................................... 1221 Roemer; Chisom v. ............................................. 380 Roemer; Clark v............................................1246,1278 Roemer; United States v....................................... 380 Rogers, In re................................................ 1268 Rogers; Henson-El v........................................... 1235 Rogers v. United States....................................... 1211 Roggio v. United States....................................... 1214 Rolfs v. Russell.............................................. 1260 Rollins, In re ............................................... 1204 Rollins v. Kramer............................................. 1238 Romein; General Motors Corp. v. .............................. 1276 Roselle v. Brown.............................................. 1218 Rosenberg v. Lorain........................................... 1249 Rosenfeld; Department of Justice v............................ 1227 Rosnow v. Rasmussen........................................... 1220 Ross; Clarke v................................................ 1247 Ruiz; Chi-Sen Li v. .......................................... 1251 Ruiz-Valdez v. United States.................................. 1237 Russell v. Collins.................................. 1259,1277,1278 Russell; Rolfs v.............................................. 1260 TABLE OF CASES REPORTED XXXIII Page Russell; Salve Regina College v. ............................... 1203 Russell County Comm’n; Mack v.............................. 1275,1279 Rutherford v. United States..................................... 1244 Sachs v. New York............................................... 1231 Sagebrush Properties, Inc.; McCone v............................ 1265 Sagen, In re.................................................... 1269 St. Paul; Nor-West Cable Communications Partnership v. ......... 1231 St. Paul; R. A. V. v............................................ 1204 Salve Regina College v. Russell................................. 1203 Sandberg; Virginia Bankshares, Inc. v. ......................... 1083 Sanders v. California........................................... 1269 Sanders v. District of Columbia............................ 1234,1277 Santa Monica Culinary Welfare Fund; Miramar Hotel Corp. v. .... 1232 Santiago-Rivera v. United States................................ 1219 Saukstelis v. Chicago........................................... 1278 Savage v. Estelle............................................... 1255 Sawyers v. United States........................................ 1253 Sceifers v. Duckworth........................................... 1224 Schad v. Arizona............................................ 624,1277 Schaefer v. McCann.............................................. 1218 Schaefer v. Superior Court of San Diego County.................. 1218 Schiff v. United States......................................... 1238 Schmidt, In re.................................................. 1216 Schmidt v. Cutler.............................................. 1221 Schmidt v. Jenkins............................................. 1219 Schmidt v. Utah........................................... 1221,1277 Scott v. Delo................................................... 1234 Scully; Leonard v............................................... 1235 Scully; Stephens v............................................. 1255 Seattle Audubon Society; Robertson v............................ 1249 Seaway Port Auth. of Duluth; Duluth-Superior ILA Pens. Plan v. . 1218 Secretary of Agriculture; Bullard v. ............................ 1269 Secretary of Army; Agha v. ................................... 1265 Secretary of Army; Pletten v............................. 1221,1280 Secretary of Defense; Pavlos v. ................................ 1208 Secretary of Dept, of Energy, Minerals, and Nat. Res. v. Kozak .. 1205 Secretary of Energy; Nevada v................................... 1225 Secretary of Health and Human Services; Melkonyan v............... 89 Secretary of Health and Human Services; Young v. .......... 1206,1269 Secretary of Labor; Billings v.................................. 1235 Secretary of State of Ind.; Fulani v............................ 1206 Secretary of State of La.; Hunter v............................. 1245 Secretary of Transportation; Globus v........................... 1230 Seely; Wagner v. . i. 1219,1277 XXXIV TABLE OF CASES REPORTED Page Segarra-Palmer v. United States................................. 1233 Segovia v. California........................................... 1235 Seiter; Wilson v................................................ 294 Sequoia Books, Inc. v. Illinois................................. 1205 SFA Folio Connections; Commissioner of Revenue Servs., Conn. v. 1223 Shabazz; Elliot v.............................................. 1220 Shabazz; Muhammad v............................................. 1220 Shawmut Bank of Boston; Kuntz v.............................. 1252 Shearson Lehman/American Express, Inc.; Bird v................. 1251 Sheet Metal Workers; Minton v.................................. 1208 Shillinger; Campbell v......................................... 1214 Shoreham-Wading River Central School Dist. v. NRC.............. 1267 Short v. Belleville Shoe Mfg. Co............................... 1250 Shows v. NCNB National Bank of N. C....................... 1236,1270 Shuck; Hull v.................................................. 1261 Siegert v. Gilley.............................................. 1265 Simpson v. Simpson............................................. 1244 Sindram v. Ahalt............................................... 1213 Sindram v. Terry............................................... 1213 Singletary v. Francis.......................................... 1227 Singletary; Francis v..................................... 1244,1245 Singletary; Stafford v......................................... 1207 S. J. Groves & Sons Co.; Fulton County v...................... 1252 Skinner; Globus v. . .■... 1230 Sky Chefs, Inc. v. Dias........................................ 1201 Slacum v. Frame................................................ 1214 Smallwood v. United States..................................... 1238 Smerdon v. Smerdon............................................. 1267 Smith v. Barry................................................. 1249 Smith v. Barton................................................ 1217 Smith; Barton v................................................ 1217 Smith v. Calgon Carbon Corp.................................... 1225 Smith; Caracciolo v............................................ 1208 Smith v. Chicago............................................... 1217 Smith; Holywell Corp. v........................................ 1279 Smith v. Keck.................................................. 1207 Smith v. McKaskle....................................... 1221,1280 Smith v. New York State Workers’ Compensation Bd............... 1225 Smith; North Carolina v. ,..................................... 1229 Smith v. United States................. 1221,1237,1255,1257,1259,1270 Smith; United States v. ....................................... 1279 Sneed, In re................................................... 1203 Snow v. Akins.................................................. 1260 Snow v. United States.......................................... 1222 TABLE OF CASES REPORTED xxxv Page Sobamowo v. United States....................................... 1210 Solimino; Astoria Federal Savings & Loan Assn. v................. 104 South Carolina; Atkins v........................................ 1259 South Carolina; Bass v.......................................... 1246 South Carolina; Boyd v. ....................................... 1236 South Central Bell; Carter v. . ............... 1260 Southern Living, Inc.; Commissioner of Revenue of Tenn. v....... 1214 South Lake Tahoe; Lakeview Development Corp. v. ............. 1251 Spear v. Rockwell International Corp............................ 1253 Spence v. Texas................................................. 1239 Spencer v. Georgia.............................................. 1269 Spiller-Bridges; Bridges v. .................................... 1265 Spokane v. United States........................................ 1250 Stafford v. Singletary.......................................... 1207 Staples v. United States........................................ 1207 State. See also name of State. State Bar of Nev.; Gentile v.. 1030 State Bar of Tex.; Musslewhite v................................ 1251 State Bd. of Agriculture; Kemp v................................ 1205 State, County & Municipal Employees; Dale v. ................... 1231 Stebbins v. Nationwide Mut. Ins. Co............................. 1209 Steeg v. Dearborn Heights................................... 1265 Steego Transportation Equipment Centers, Inc.; NLRB v......... 1266 Stephens; Fant v.. 1217 Stephens v. Scully.......................................... 1255 Sterling v. Texas........................................... 1213 Stewart v. United States.................................... 1254 Stiftel; Robinson v. ................................... .... 1235 Stitt, In re................................................ 1227 Sturdy v. United States..................................... 1222 Sturman v. United States ..................................... 1212 Sullivan; Cody v. .............................................. 1208 Sullivan; Martinez v............................................ 1220 Sullivan; Melkonyan v............................................. 89 Sullivan; Young v.......................................... 1206,1269 Superintendent of penal or correctional institution. See name or title of superintendent. Superior Court of Cal., Riverside County; Kiskila v. ........... 1244 Superior Court of San Diego County; Schaefer v.................. 1218 Supreme Court of Wash.; Demos v................................. 1237 Susskind, In re................................................. 1268 Suter v. Artist M............................................... 1279 Sutter v. United States ........................................ 1258 Swint v. Zimmerman.............................................. 1210 XXXVI TABLE OF CASES REPORTED Page Sy der v. United States..................................... 1259 Szoke v. Minnesota Mining & Mfg. Co.......................... 1266 Ta-Chung Wang v. Chun Wong.................................. .1252 Tarassoum v. Immigration and Naturalization Service...... 1230 Tate; Humphrey v. ...................................... 1256,1280 Taylor v. Beasley........................................... 1202 Taylor v. California..................................... 1208 Taylor v. Carr........................................... 1251 Teamsters v. United States............................... 1229 Tell City Chair Co.; H & M Construction Co. v. .............. 1225 Tennard v. Texas......................................... 1259 Tennessee; Payne v. ..................................... 808,1277 Tennessee Gas Pipeline Co. v. Anderman/Smith Operating Co.... 1206 Terlecky v. United States................................ 1258 Terpak v. United States.................................. 1258 Terry; Sindram v. ........................................... 1213 Teter v. Jones........................................... 1244 Texas; Bird v............................................ 1223 Texas; Clarke v. ............................................ 1272 Texas; DeBlanc v. ............;.............................. 1259 Texas; Goodwin v......................................... 1259 Texas v. Gribble......................................... 1232 Texas; Hammond v............................................. 1259 Texas; Hollingsworth v................................... 1269 Texas; James v. ............................................. 1259 Texas; Johnson v......................................... 1259 Texas; Spence v.: '...................................... 1239 Texas; Sterling v.. 1213 Texas; Tennard v. ........................................... 1259 Texas; Williams v. .......................................... 1239 Thomas, In re............................................ 1204 Thomas v. Collins........................................ 1235 Thomas v. Nebraska....................................... 1270 Thomas v. United States............................ 1222,1238,1257 Thompson, In re ........................................ 1215,1273 Thompson; Coleman v..................................... 722,1277 Thompson; Martin v....................................... 1220 Thompson v. Wigginton.................................... 1221 Threlkeld & Co. v. Metallgesellschaft Ltd. (London)...... 1267 Timm; Dewsnup v.7Ÿ .... ;i............. 1275 Timm v. Gunter........................................... 1209 Tobias, In re........................................... 1203,1273 Toibb v. Radloff.............................................. 157 Toledo Division of Building Inspection; Dutridge v. ......... 1252 TABLE OF CASES REPORTED XXXVII Page Toombs; Miller v. . 1236 Town. See name of town. Townsend, In re................................................. 1279 Tracy, In re ................................................... 1273 Trailer Marine Transport Corp. v. Zapata........................ 1262 Trans World Airlines, Inc.; Attorney General of Cal. v.......... 1204 Trans World Airlines, Inc.; Morales v....................... 1204 Trody; Florida v................................................ 1226 Troen v. Oregon................................................. 1232 Trojan Technologies, Inc. v. Pennsylvania....................... 1212 Tucker, In re................................................... 1273 Turner, In re................................................... 1228 Turner v. Oklahoma.............................................. 1233 Twyman v. Giddens............................................... 1256 Union. For labor union, see name of trade. Union Bank v. Wolas............................................. 1280 United States. See name of other party. U. S. District Court; Henderson v. ............................. 1202 U. S. District Court; Maynard v................................ 1250 U. S. District Court; Zatko v............................. 1220,1236 U. S. District Judge; Gray v................................... 1256 U. S. Parole Comm’n; Bozeman v............................... 1257 U. S. Postal Service; Martin v................................. 1265 U. S. Postal Service; Parke v. ........................... 1209,1280 University of Chicago; Golub v................................... 1214 • University of Mich.; Le Blanc v. ............................... 1225 Utah; Schmidt v. ......................................... 1221,1277 Valley National Bank of Ariz.; Needier v........................ 1216 Vasquez v. United States........................................ 1217 Veneri v. Fulcomer......................................... 1255,1280 Venkatesan v. White............................................. 1244 Verdugo v. California........................................... 1214 Vernon v. Hatfield.............................................. 1236 Village. See name of village. Vinik v. Middlesex County Probation Dept........................ 1265 Virginia; Mu’Min v. . . 1269 Virginia Bankshares, Inc. v. Sandberg........................... 1083 Virginia Dept, of Taxation; Harper v............................ 1247 Virginia Dept, of Taxation; Lewy v.............................. 1247 Wade, In re................................................... 1274 Wagner v. Seely............................................ 1219,1277 Wagstaff-El v. United States.................................... 1209 Wallace v. United States................................... 1209,1233 Walters v. Oregon............................................... 1209 XXXVIII TABLE OF CASES REPORTED Page Wang V. Chun Wong........................................... 1252 Ward V. Attridge............................................ 1225 Warden. See name of warden. Warner Cable Communications, Inc. v. Niceville.............. 1222 Washington; Austin v........................................ 1270 Washington; Crane v......................................... 1237 Washington; Demos v. ....................................... 1221 Washingtons. United States............................. 1219,1238 Washington State Dept, of Transportation v. EPA............. 1230 Water Pollution Control Authority for Waterford; Bush v. . ‘...... 1224 Watkins v. Mabus ........................................... 1270 Watkins; Nevada v. ........................................ 1225 Watkins v. Weiss ... ..................................... 1244 Watson v. Puckett...................................... 1208,1270 Watson v. United States .................................... 1253 Wayne County Friend of Court; Mathis v...................... 1224 Weber, In re................................................ 1269 Webster v. Collins.......................................... 1214 Weisman; Lee v.............................................. 1215 Weiss; Watkins v. .......................................... 1244 Welch; Northwest Savings Bank, PaSA v....................... 1247 Wesson v. Kansas ........................................... 1236 Westinghouse Electric Corp.; Bhaya v........................ 1217 West Virginia; Ferrell v................................... 1207 West Virginia Bd. of Regents; Clarke v...................... 1248 Weyerhaeuser Corp. ; Whitcombe v............................ 1214 Wharton v. Dube............................................. 1211 Wheeler v. Wheeler.......................................... 1218 Wherehouse Entertainment, Inc. v. McMahan & Co.............. 1249 Whigham v. Foltz............................................ 1225 Whitcombe v. Weyerhaeuser Corp.......................,...... 1214 White; Cooney v............................................. 1201 White v. Daniel............................................. 1260 White; Dempsey v. ..................................... 1208,1270 White v. Illinois.......................................... 1249 White v. United States...................................... 1207 White; Venkatesan v......................................... 1244 Whitley; Collins v.......................................... 1207 Whitley; Jones v. ......................................... 1266,1267 Whitney v. Mississippi..................................... 1253 Whitt v. California..........................<......... 1213,1270 Whitten v. United States.................................... 1257 Wickham v. Bowersox......................................... 1254 Wigginton; Thompson v....................................... 1221 TABLE OF CASES REPORTED xxxix Page Wightman v. Morales....................................... 1256 Wilder; Republican Party of Va. v......................... 1278 Wilkinson v. United States................................ 1211 Will v. Will ............................................. 1233 Williams v. Arizona ...................................... 1265 Williams v. Atlanta....................................... 1221 Williams v. California............................... 1207,1233 Williams; Ohio v. ........................................ 1238 Williams v. Texas......................................... 1239 Williams v. United States ................................ 1226 Williams Cos. v. Director of Revenue of Mo................ 1260 Willis; Price v. ......................................... 1234 Willy v. Coastal Corp..................................... 1216 Wilson v. Michigan........................................ 1236 Wilson v. Seiter........................................... 294 Wilson v. United States......................... 1217,1235,1257 Windle v. Maryland........................................ 1270 Wings West Airlines, Inc.; Regional Airline Pilot Assn. v.. 1251 Winston v. United States.................................. 1257 Wisconsin; McNeil v....................................... 171 Wisconsin Public Intervenor v. Mortier..................... 597 Wolak v. United States.................................... 1217 Wolas; Union Bank v....................................... 1280 Wolfenbarger v. Kansas Dept, of Social & Rehab. Services ... 1256,1277 Wolf GmbH; EDAP, S. A. v. ................................ 1283 Wolsky v. Oregonian Publishing Co......................... 1210 Wong; Brown v........................................... 1232 Wong; Ta-Chun Wang v. .................................... 1252 Wood; Lomax v. .............................................. 1238 Woods v. Indiana.......................................... 1259 Wooten; Hernandez v.r......... . 1253,1280 Worcester Div., Super. Court Dept., Trial Court of Mass. ; Abramo v. 1226 Wrenn v. Ohio........................................ 1251,1277 Wright v. United States................................... 1207 Wyandotte Tribe, Okla. v. Oklahoma ex rel. Oklahoma Tax Comm’n 1219 Wyoming v. Oklahoma....................................... 1215 Yakima County v. Confederated Tribes, Yakima Indian Nation.... 1275 Yakima County; Confederated Tribes, Yakima Indian Nation v. ... 1275 Yazzie; Bowman v.......................................... 1207 Yellow Bus Lines, Inc. v. Drivers.......................... 1222 Yellow Freight System, Inc. v. National Labor Relations Bd. 1267 Ylst v. Nunnemaker......................................... 797 York; Ramos v............................................. 1235 Youmans, In re .............................................. 1268 XL TABLE OF CASES REPORTED Page Young v. Miller........................................... 1249 Young v. Sullivan...................................... 1206,1269 Zaharia, In re.............................................. 1227 Zani v. Glanz............................................... 1220 Zant; McCleskey v. ......................................... 1224 Zapata; Trailer Marine Transport Corp. v.................... 1262 Zatko v. California.................................... 1255,1256 Zatko v. Marshall...................................... 1208,1255 Zatko v. U. S. District Court.......................... 1220,1236 Ziegler v. Champion......................................... 1277 Zimmerman; Swint v.......................................... 1210 TABLE OF CASES CITED Page Abie State Bank v. Bryan, 282 U.S. 765 736, 761 Adams v. Adams, 249 Ga. 477 534 Adams v. United States Distributing Corp., 184 Va. 134 1108 Adams Fruit Co. v. Barrett, 494 U.S. 638 696 Adims v. State, 461 N. E. 2d 740 574 Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128 358 Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143 355- 357, 364, 367, 368 Aguilar v. Felton, 473 U.S. 402 852 Aguilar v. Texas, 378 U.S. 108 829 Ake v. Oklahoma, 470 U.S. 68 741, 758 Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 848 Alabama v. Smith, 490 U.S. 794 829 Alabama v. White, 496 U.S. 325 1212 Alabama Farm Bureau Mut. Casualty Co. v. American Fidelity Life Ins. Co., 606 F. 2d 602 1107 Alabama State Federation of Labor v. McAdory, 325 U.S. 450 322 A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 956 Aldridge v. Commonwealth, 4 Va. 447 983 Alexander v. Gardner-Denver Co., 415 U.S. 36 110 Page Alioto v. Cowles Communications, Inc., 623 F. 2d 616 517 Allen v. McCurry, 449 U.S. 90 109, 110 Allen v. State Bd. of Elections, 393 U.S. 544 403,413, 545 Allen v. Wright, 468 U.S. 737 264, 319, 336 Aluminum Co. of America v. Central Lincoln Peoples’ Utility Dist., 467 U.S. 380 697 Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 45-47, 51,52,59, 61, 74 Ambach v. Norwick, 441 U.S. 68 463, 469 American Fire & Casualty Co. v. Finn, 341 U.S. 6 896 American Hospital Assn. v. NLRB, 499 U.S. 606 396 American Insurance Co. v. Canter, 1 Pet. 511 889, 890, 909, 913 American Party of Tex. v. White, 415 U.S. 767 333 American Power & Light Co. v. SEC, 329 U.S. 90 138 American Tobacco Co. v. Patterson, 456 U.S. 63 280 American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266 539 American Trucking Assns., Inc. v. Smith, 496 U.S. 167 372, 373, 535-538, 541, 542, 546, 550-552, 557 Andersen v. United States, 170 U.S. 481 631 Anderson v. Celebrezze, 460 U.S. 780 340 Anderson v. Dunn, 6 Wheat. 204 43 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 508, 520 XLI XLII TABLE OF CASES CITED Page Anderson v. Nedovich, 19 Conn. App. 85 13 Anthony v. United States, 331 F. 2d 687 993 Antoine v. Washington, 420 U.S. 194 792 Apodaca v. Oregon, 406 U.S. 404 630, 634 Appeal of Concerned Corporators of Portsmouth Savings Bank, 129 N. H. 183 849 Ardery v. State, 56 Ind. 328 568 Arizona v. California, 292 U.S. 341 235, 237 Arizona v. California, 373 U.S. 546 241, 247 Arizona v. Fulminante, 499 U.S. 279 954 Arizona v. Roberson, 486 U.S. 675 177, 182-184 Arizona v. Rumsey, 467 U.S. 203 842, 849 Arizona v. San Carlos Apache Tribe, 463 U.S. 545 793 Arkansas v. Sanders, 442 U.S. 753 830 ASARCO Inc. v. Kadish, 490 U.S. 605 319, 331 Ashley v. State, 530 So. 2d 1181 1016 Ashton v. Cory, 780 F. 2d 816 1303 Ashwander v. TVA, 297 U.S. 288 278, 288, 949 Associated Press v. NLRB, 301 U.S. 103 669, 670, 674 Associated Press v. United States, 326 U.S. 1 669, 674 Astoria Federal Savings & Loan Assn. v. Solimino, 501 U.S. 104 145 Atascadero State Hospital v. Scanlon, 473 U.S. 234 108, 411, 458, 460, 476, 779, 789-791, 795, 1304 AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643 208, 209 Austin v. Michigan Chamber of Commerce, 494 U.S. 652 348, 349 Page Automobile Workers v. Hoosier Cardinal Corp., 383 U.S. 696 355 Automobile Workers v. Johnson Controls/Inc., 499 U.S. 187 877 Avery v. State, 555 So. 2d 351 433 Babbitt v. Farm Workers, 442 U.S. 289 323, 332 Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 532, 533, 538- 542, 544, 545, 549-559 Badders v. United States, 240 U.S. 391 992 Bailey v. Glover, 21 Wall. 342 363 Bailey v. United States, 284 F. 126 992 Bailey v. United States, 74 F. 2d 451 993 Bain, Ex parte, 121 U.S. 1 829 Bakelite Corp., Ex parte, 279 U.S. 438 911 Baker v. Carr, 369 U.S. 186 126 Baker v. Los Angeles Herald Examiner, 42 Cal. 3d 254 510, 512 Baldwin v. Iowa State Traveling Men’s Assn., 283 U.S. 522 542 Bank of Nova Scotia v. United States, 487 U.S. 250 51, 60, 65, 66 Barefoot v. Estelle, 463 U.S. 880 823 Barker v. People, 20 Johns. *457 982, 983 Barker v. State, 75 Neb. 289 1242 Barnes v. Glen Theatre, Inc., 501 U.S. 560 1034 Bartlett v. Williams, 464 U.S. 801 27 Basic Inc. v. Levinson, 485 U.S. 224 376, 1118 Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299 376 Bates v. State Bar of Ariz., 433 U.S. 350 1052, 1054, 1073 TABLE OF CASES CITED xliii Page Bath v. Bushkin, Gaims, Gaines and Jonas, 913 F. 2d 817 354 Batson v. Kentucky, 476 U.S. 79 829 Batter Building Materials Co. v. Kirschner, 142 Conn. 1 208 Battle v. Anderson, 564 F. 2d 388 311 Bayard, In re, 25 Hun. 546 984 Beam Distilling Co. v. Georgia, 501 U.S. 529 373 Beck v. Alabama, 447 U.S. 625 627, 629, 645-648, 660, 662, 994 Beier Radio, Inc. v. Black Gold Marine, Inc., 449 So. 2d 1014 54 Bell v. Wolfish, 441 U.S. 520 300 Bender v. Williamsport Area School Dist., 475 U.S. 534 316, 320, 325 Benner v. Porter, 9 How. 235 914 Berg v. First American Bankshares, Inc., 254 U.S. App. D. C. 198 1098 Berkemer v. McCarty, 468 U.S. 420 18, 19 Bernal v. Fainter, 467 U.S. 216 462, 463, 476 Berra v. United States, 351 U.S. 131 661 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 1103 Blake v. Levy, 191 Conn. 257 21 Blanton v. State, 533 N. E. 2d 190 574 Blau v. Lehman, 368 U.S. 403 118 Blau v. Mission Corp., 212 F. 2d 77 123 Block v. Rutherford, 468 U.S. 576 300 Blockburger v. United States, 284 U.S. 299 187 Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U.S. 313 108 Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 358, 1091, 1092, 1096, 1104, 1105, 1115, 1117 Page Blum v. Stenson, 465 U.S. 886 162, 235 Blum v. Yaretsky, 457 U.S. 991 332 Blystone v. Pennsylvania, 494 U.S. 299 824 Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 345 Board of Trustees of State Univ, of N. Y. v. Fox, 492 U.S. 469 324, 344, 346, 1077 Bond v. State, 515 N. E. 2d 856 574 Book Known as “Fanny Hill” v. Attorney General of Mass., 383 U.S. 413 828 Booth v. Maryland, 482 U.S. 496 811, 816-819, 821-823, 825-828, 830, 832-842, 844-851, 854- 856, 858, 859, 862-366 Borum v. United States, 284 U.S. 596 631 Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 509, 514, 518, 519, 1038 Bowen v. Georgetown Univ. Hospital, 488 U.S. 204 485, 494, 495, 698 Bowers v. Hardwick, 478 U.S. 186 569, 575, 580, 589 Bowsher v. Synar, 478 U.S. 714 255, 265, 269, 270, 274-276, 283, 287, 289, 291, 292, 911, 912 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 460 Boyd v. United States, 116 U.S. 616 440 Branzburg v. Hayes, 408 U.S. 665 669, 673, 674 Bridges v. California, 314 U.S. 252 1035, 1037, 1069, 1070, 1080 Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673 372, 373 Briscoe v. LaHue, 460 U.S. 325 108 XLIV TABLE OF CASES CITED Page Broadrick v. Oklahoma, 413 U.S. 601 323, 345 Broad River Power Co. v. South Carolina ex rel. Daniel, 281 U.S. 537 761 Brockett v. Spokane Arcades, Inc., 472 U.S. 491 324 Browder v. Director, Ill. Dept, of Corrections, 434 U.S. 257 751 Brown v. Allen, 344 U.S. 443 744, 760, 765, 766 Brown v. Felsen, 442 U.S. 127 110 Brown v. Herald Co., 464 U.S. 928 1216 Brown v. Louisiana, 383 U.S. 131 577 Brown v. State, 473 So. 2d 1260 642 Brown v. Texas, 443 U.S. 47 437 Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 979, 1014, 1015 Bryan v. Itasca County, 426 U.S. 373 795 Buchanan v. Warley, 245 U.S. 60 12 Buckley v. Valeo, 424 U.S. 1 290, 332, 334, 335, 339-341, 536, 545, 576, 880, 881, 883, 884, 890, 902-904 Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 605, 614 Burger v. Kemp, 483 U.S. 776 837 Burnap v. United States, 252 U.S. 512 881, 886, 915-917 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 827, 828, 842, 848, 849 Bums v. Richardson, 384 U.S. 73 414 Burns v. United States, 501 U.S. 129 719 Burr, Ex parte, 9 Wheat. 529 43, 64 Page Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533 47, 53, 66, 67 Butterworth v. Smith, 494 U.S. 624 1035, 1053 Cabaniss v. Cunningham, 206 Va. 330 742, 743 Cabell v. Chavez-Salido, 454 U.S. 432 463, 469 Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 10, 147 Caldwell v. Mississippi, 472 U.S. 320 733, 734, 736, 757, 763 California v. Acevedo, 500 U.S. 565 373, 830 California v. Brown, 479 U.S. 538 836, 861 California v. Carney, 471 U.S. 386 1212 California v. Grace Brethren Church, 457 U.S. 393 1303, 1304 California v. Hodari D., 499 U.S. 621 434, 437 California v. LaRue, 409 U.S. 109 584, 594 California v. Ramos, 463 U.S. 992 824 California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 554-556 Cameron v. Wemick, 251 Cal. App. 2d 890 510 Caminetti v. United States, 242 U.S. 470 404 Campbell v. Haverhill, 155 U.S. 610 355 Cannon v. University of Chicago, 441 U.S. 677 86, 365 Canton v. Harris, 489 U.S. 378 300 Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 554-556 Capron v. Van Noorden, 2 Cranch 126 896 Carlucci v. Doe, 488 U.S. 93 288 Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 495 TABLE OF CASES CITED XLV Page Carozza v. United States Steel Corp., 727 F. 2d 74 690 Carroll v. United States, 267 U.S. 132 980 Case Co. v. Borak, 377 U.S. 426 376, 1086, 1095, 1099, 1102-1104, 1114, 1115, 1118 Castille v. Peoples, 489 U.S. 346 731, 805 CBS, Inc. v. FCC, 453 U.S. 367 678 Central Maine Power Co. v. Lebanon, 571 A. 2d 1189 604 Ceres Partners v. GEL Associates, 918 F. 2d 349 362 Chambers v. NASCO, Inc., 501 U.S. 32 101 Chandler v. Roudebush, 426 U.S. 840 113, 114 Chapman v. United States, 500 U.S. 453 995, 1006 Chauffeurs, Teamsters and Helpers, Local Union 238 v. C. R. S. T. Inc., 795 F. 2d 1400 198 Cherokee Nation v. Georgia, 5 Pet. 1 794 Chevron Oil Co. v. Huson, 404 U.S. 97 368, 371-373, 533, 536, 538-540, 543, 545, 546, 550-553, 558, 559 Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 493, 696, 697, 699, 706-708, 716, 719, 720 Chicago Council of Lawyers v. Bauer, 522 F. 2d 242 1056 Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 108, 536, 541, 545 Chisolm v. Georgia, 2 Dall. 419 787 Chisom v. Edwards, 839 F. 2d 1056 384-387 Chisom v. Edwards, 659 F. Supp. 183 385 Chisom v. Roemer, 501 U.S. 380 421, 424, 425, 428 Page Choate v. Trapp, 224 U.S. 665 795 Cipriano v. City of Houma, 395 U.S. 701 545 Citizen Publishing Co. v. United States, 394 U.S. 131 669, 674 City. See name of city. Civil Service Comm’n v. Letter Carriers, 413 U.S. 548 333 Clapp v. Commissioner, 875 F. 2d 1396 897 Clark v. Community for Cre- ative Non-Violence, 468 U.S. 288 566, 578, 586, 591 Clark v. Roemer, 500 U.S. 646 390, 403 Clay v. Miller, 626 F. 2d 345 305 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 470 Clemons v. Mississippi, 494 U.S. 738 540, 855, 1262-1264 Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 146, 154 Clowers v. State, 522 So. 2d 762 1015 Coffey v. United States, 116 U.S. 436 829 Coffin Brothers & Co. v. Ben- nett, 277 U.S. 29 29 Cohen, In re, 7 N. Y. 2d 488 1074 Cohen v. California, 403 U.S. 15 594 Cohen v. Cowles Media Co., 501 U.S. 663 1099 Cohen v. Hurley, 366 U.S. 117 1074 Coker v. Georgia, 433 U.S. 584 992, 994, 997, 1000, 1001, 1013, 1015, 1017, 1019-1021, 1027 Coleman v. Saffle, 869 F. 2d 1377 836 Coleman v. Thompson, 501 U.S. 722 802, 803, 807 Collins v. Youngblood, 497 U.S. 37 829 Colorado v. Kansas, 320 U.S-383 241 XLVI TABLE OF CASES CITED Page Colten v. Kentucky, 407 U.S. 104 1078 Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 897-899, 929, 936, 937, 949-952 Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343 163 Commonwealth. See also name of Commonwealth. Commonwealth v. Devlin, 335 Mass. 555 641 Commonwealth v. Hitchings, 71 Mass. 482 983 Commonwealth Edison Co. v. Montana, 453 U.S. 609 829 Community for Creative Non-Violence v. Watt, 227 U.S. App. D. C. 19 578, 595 Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 829 Conley v. Gibson, 355 U.S. 41 344 Connally v. General Construction Co., 269 U.S. 385 632 Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102 162 Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 737, 843 Cooper v. Aaron, 358 U.S. 1 855 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 47, 55, 56, 68, 69 Cort v. Ash, 422 U.S. 66 1093, 1103 Cortes-Quinones v. Jimenez- Nettleship, 842 F. 2d 556 303 Cottage Savings Assn. v. Commissioner, 499 U.S. 554 86 County. See name of county. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 678 Craftmatic Securities Litigation v. Kraftsow, 890 F. 2d 628 1093 Craig v. Boren, 429 U.S. 190 556, 829 Craig v. Harney, 331 U.S. 367 1069 Page Crowell v. Benson, 285 U.S. 22 126, 278 Cummins v. People, 42 Mich. 142 984 Curtis Publishing Co. v. Butts, 388 U.S. 130 677 Dallas v. Stanglin, 490 U.S. 19 570, 577, 581, 588 Dandridge v. Williams, 397 U.S. 471 473 Daniel v. Louisiana, 420 U.S. 31 537 Daniels v. Allen, 344 U.S. 443 744 Daniels v. Williams, 474 U.S. 327 829 Darden v. Wainwright, 477 U.S. 168 825, 836 Data Access Systems Securities Litigation, In re, 843 F. 2d 1537 354,362,367,368,377 Davidson v. Board of Governors of State Colleges and Universities, 920 F. 2d 441 476 Davis v. Bandemer, 478 U.S. 109 413,414 Davis v. Birr, Wilson & Co., 839 F. 2d 1369 370 Davis v. Michigan Dept, of Treasury, 489 U.S. 803 540 Davis v. United States, 411 U.S. 233 745, 746 Day v. Avery, 179 U.S. App. D. C. 63 1091, 1093, 1094 DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568 138, 145, 269, 280, 288, 949 DelCostello v. Teamsters, 462 U.S. 151 356, 359, 367, 368, 374, 375, 378 Dellmuth v. Muth, 491 U.S. 223 467, 786-788, 1304 Demarest v. Manspeaker, 498 U.S. 184 404, 873 Dennis v. Higgins, 498 U.S. 439 284 Dennis M., In re, 70 Cal. 2d 444 799 Department of Revenue of Wash. v. Association of Wash. Stevedoring Cos., 435 U.S. 734 829 TABLE OF CASES CITED XLVII Page Derrico v. Sheehan Emergency Hosp., 844 F. 2d 22 206 DeShaney v. Winnebago Cty. Dept, of Social Services, 489 U.S. 189 311 Desist v. United States, 394 U.S. 244 538, 547, 767 Deukmejian v. County of Mendocino, 36 Cal. 3d 476 604 District of Columbia v. John R. Thompson Co., 346 U.S. 100 279 Dixon v. Love, 431 U.S. 105 155 Dobson v. Commissioner, 320 U.S. 489 912 Dole v. Steelworkers, 494 U.S. 26 487 Doran v. Salem Inn, Inc., 422 U.S. 922 565 Dottenheim v. Murchison, 227 F. 2d 737 123 Douglas v. California, 372 U.S. 353 742, 755, 756 Douglas v. Jeannette, 319 U.S. 157 182 Douglass v. Glenn E. Hinton Investments, Inc., 440 F. 2d 912 370 Dove v. Indiana, 449 U.S. 806 564 Dowell v. Commonwealth, 3 Va. App. 555 755 Dowling v. United States, 493 U.S. 342 637 Dows v. City of Chicago, 11 Wall. 108 1304 Dronenburg v. Zech, 239 U.S. App. D. C. 229 575 Duckworth v. Eagan, 492 U.S. 195 802 Duckworth v. Franzen, 780 F. 2d 645 300 Dudley v. Stubbs, 489 U.S. 1034 302 Duggan v. Board of Ed. of East Chicago Heights, Dist. No. 169, Cook County, Ill., 818 F. 2d 1291 107, 110, 112 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 667 Page Dunn v. Blumstein, 405 U.S. 330 828 Eash v. Riggins Trucking, Inc., 757 F. 2d 557 47 Eddings v. Oklahoma, 455 U.S. 104 822, 833, 839, 858, 994, 995 Edelman v. Jordan, 415 U.S. 651 12, 828 Edward J. DeBartolo Corp, v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 138, 145, 269, 280, 288, 949 Edwards v. Aguillard, 482 U.S. 578 583 Edwards v. Arizona, 451 U.S. 477 176-180, 183, 188 Ekstrom v. Justice Court, 136 Ariz. 1 442 Ellis v. Lynaugh, 873 F. 2d 830 803, 805 Employees v. Department of Public Health and Welfare of Mo., 411 U.S. 279 779 Employment Div. Dept, of Human Resources of Ore. v. Smith, 494 U.S. 872 579, 589, 596, 677 England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411 536, 545 Engle v. Isaac, 456 U.S. 107 732, 747, 748, 751 Enmund v. Florida, 458 U.S. 782 643, 658, 818, 845, 858, 861, 994, 997, 1013, 1017, 1019, 1020, 1023 Enrst & Ernst v. Hochfelder, 425 U.S. 185 358, 361, 377 EEOC v. Arabian American Oil Co., 499 U.S. 244 108 EEOC v. Board of Trustees of Wayne Cty. Community College, 723 F. 2d 509 483 EEOC v. Commercial Office Products Co., 486 U.S. 107 493, 702, 703 EEOC v. Illinois, 721 F. Supp. 156 482, 494 EEOC v. Massachusetts, 858 F. 2d 52 482, 485, 487, 494 XL VIII TABLE OF CASES CITED Page EEOC v. Reno, 758 F. 2d 581 483 EEOC v. Vermont, 904 F. 2d 794 482, 487-489, 494 EEOC v. Wyoming, 460 U.S. 226 464, 468, 470, 475, 478, 480 Erhardt v. State, 468 N. E. 2d 224 564 Erie R. Co. v. Tompkins, 304 U.S. 64 52, 55, 74, 75 Escobedo v. Illinois, 387 U.S. 478 537 Espinoza v. Fairman, 813 F. 2d 117 189 Estelle v. Gamble, 429 U.S. 97 297-299, 302, 303, 309 Eu v. San Francisco Cty. Democratic Central Comm., 489 U.S. 214 325, 332, 334-336, 339, 341, 342, 346-348, 678 Evans v. Thompson, 881 F. 2d 117 803, 805 Evitts v. Lucey, 469 U.S. 387 658, 754, 755 Ex parte. See name of party. Exxon Corp. v. Eagerton, 462 U.S. 176 540 Fair Assessment in Real Es- tate Assn., Inc. v. McNary, 454 U.S. 100 795 Fall River Dyeing & Finish- ing Corp. v. NLRB, 482 U.S. 27 200, 201 Farrey v. Sanderfoot, 500 U.S. 291 83 Fay v. Noia, 372 U.S. 391 730, 744, 745, 747, 749-751 F. D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116 45, 46 Federal Firefighters Assn., Local 1 v. United States, 723 F. Supp. 825 291 FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411 578 Federated Department Stores, Inc. v. Moitie, 452 U.S. 394 542 Federated Metals Corp. v. United Steelworkers of America, 648 F. 2d 856 197 Page Fermont Division, Dynamics Corp, of America v. Smith, 178 Conn. 393 9, 15, 16 Fidelity Federal Sav. & Loan Assn. v. De la Cuesta, 458 U.S. 141 475 First National Bank of Boston v. Bellotti, 435 U.S. 765 340, 678 First Western Govt. Securities, Inc. v. Commissioner, 94 T. C. 549 881 Fisher v. Pace, 336 U.S. 155 1071 Fitzgerald v. Codex Corp., 882 F. 2d 586 344 Fitzpatrick v. Bitzer, 427 U.S. 445 480, 760, 788 Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 45, 74 Flood v. Kuhn, 407 U.S. 258 834 Florida v. Kerwick, 512 So. 2d 347 442, 443 Florida v. Rodriguez, 469 U.S. 1 434, 435, 439 Florida v. Royer, 460 U.S. 491 434, 435, 437-439, 441, 447, 1003 Florida Bar v. B. J. F., 491 U.S. 524 669-671, 679 Florida Dept, of Health and Rehab. Services v. Florida Nursing Home Assn., 450 U.S. 147 850, 853 Florida Free Beaches, Inc. v. Miami, 734 F. 2d 608 576 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 605, 614 Foley v. Connelie, 435 U.S. 291 462, 469, 477 Ford v. Wainwright, 477 U.S. 399 851, 1027, 1239-1243 Foremost-McKesson, Inc. v. Provident Securities Co., 423 U.S. 232 117, 121, 122 Forrestal Village, Inc. v. Graham, 179 U.S. App. D. C. 225 354 Fortson v. Dorsey, 379 U.S. 433 414 TABLE OF CASES CITED XLIX Page Foulds v. Corley, 833 F. 2d 52 310 Fox Film Corp. v. Muller, 296 U.S. 207 729 Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1 1303 Francis v. Henderson, 425 U.S. 536 745-747, 751 Francis v. Resweber, 329 U.S. 459 297, 309, 976 Frank L. Beier Radio, Inc. v. Black Gold Marine, Inc., 449 So. 2d 1014 54 Franks v. Delaware, 438 U.S. 154 667 Fratt v. Robinson, 203 F. 2d 627 370 Free v. Bland, 369 U.S. 663 475 Freeman v. People, 4 Denio (N. Y.) 9 1242 French v. Owens, 777 F. 2d 1250 299, 310 Freytag v. Commissioner, 501 U.S. 868 953 Frisby v. Schultz, 487 U.S. 474 594 Fuentes v. Shevin, 407 U.S. 67 9, 11, 15, 16, 20, 21, 27 Fullilove v. Klutznick, 448 U.S. 448 281 Furman v. Georgia, 408 U.S. 238 968, 974, 996,1000,1028 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 458, 464, 477, 479, 760, 829, 852 Garcia v. Territory, 1 N. M. 415 983 Gardner v. Florida, 430 U.S. 349 146, 849, 858 Garrison v. Louisiana, 379 U.S. 64 510 Garvey v. Whitaker, 48 La. 527 984 Gates v. Collier, 501 F. 2d 1291 311 Gateway Coal Co. v. Mine Workers, 414 U.S. 368 200 Page G. D. Searle & Co. v. Cohn, 455 U.S. 404 899 Geer v. Connecticut, 161 U.S. 519 829 General Motors Corp. v. California Bd. of Equalization, 815 F. 2d 1305 1303 General Motors Corp. v. United States, 496 U.S. 530 143 Genesee Chief, The v. Fitzhugh, 12 How. 443 828 Gerstle v. Gamble-Skogmo, Inc., 478 F. 2d 1281 1097 Gertz v. Robert Welch, Inc., 418 U.S. 323 516, 517, 676 Gholson v. Estelle, 675 F. 2d 734 836 Gibbons v. Ogden, 9 Wheat. 1 604 Gillespie v. Crawford, 833 F. 2d 47 309 Givens v. Jones, 900 F. 2d 1229 303 Glidden Co. v. Zdanok, 370 U.S. 530 842, 878, 879, 888, 898, 899, 902, 954 Go-Bart Importing Co. v. United States, 282 U.S. 344 881 Godfrey v. Georgia, 446 U.S. 420 861, 1263, 1264 Goesaert v. Cleary, 335 U.S. 464 829 Gomez v. United States, 490 U.S. 858 876 924-933, 935, 940-955 Gomillion v. Lightfoot, 364 U.S. 339 390, 427 Goodwin v. Collins, 910 F. 2d 185 802 Gore v. United States, 357 U.S. 386 998 Government of Virgin Islands v. Williams, 892 F. 2d 305 928, 929, 933-935, 940 Grady v. Corbin, 495 U.S. 508 851, 1023 Graham v. Connor, 490 U.S. 386 299 Graham v. Richardson, 403 U.S. 365 468, 476 Graham v. West Virginia, 224 U.S. 616 992, 1000 L TABLE OF CASES CITED Page Gray v. Mississippi, 481 U.S. 648 852 Gray v. Sanders, 372 U.S. 368 402 Grayned v. City of Rockford, 408 U.S. 104 1048, 1077 Great American Fed. Sav. & Loan Assn. v. Novotny, 442 U.S. 366 1261 Great American Fed. Sav. & Loan Assn. v. Novotny, 584 F. 2d 1235 1261 Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358 535 Green v. Bock Laundry Machine Co., 490 U.S. 504 137, 235, 417 Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6 510 Greene v. McElroy, 360 U.S. 474 138 Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1 146, 148, 155, 156 Gregg v. Georgia, 428 U.S. 153 297, 821, 822, 845, 861, 863, 864, 1012, 1013, 1015, 1027, 1201, 1213, 1223, 1224, 1227, 1239, 1243, 1245, 1260, 1265-1267, 1271, 1272, 1278, 1281, 1282 Gregory v. Ashcroft, 501 U.S. 452 399, 411, 412, 767 Griffith v. Kentucky, 479 U.S. 314 538, 540, 545, 547 Griggs v. Duke Power Co., 401 U.S. 424 493 Grosso v. United States, 390 U.S. 62 878, 954 Guaranty Trust Co. v. York, 326 U.S. 99 52 Guardians Assn. v. Civil Service Comm’n of New York City, 463 U.S. 582 834 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 44 Hadley v. Junior College Dist. of Metropolitan Kansas City, 397 U.S. 50 402 Page Haith v. United States, 342 F. 2d 158 928 Hall v. Cole, 412 U.S. 1 46, 48, 53, 75 Hallstrom v. Tillamook County, 493 U.S. 20 363, 874 Hampton, Jr., & Co. v. United States, 276 U.S. 394 274 Hanna v. Plumer, 380 U.S. 460 52, 55, 69, 74 Hans v. Louisiana, 134 U.S. 1 779, 780, 789 Hardeman v. Anderson, 4 How. 640 1302 Harmon v. Barton, 894 F. 2d 1268 803, 805 Harris v. Reed, 489 U.S. 255 728, 730, 734-740, 749, 750, 757, 762-764, 801-803, 807 Harris v. United States, 331 U.S. 145 440 Harrison v. PPG Industries, Inc., 446 U.S. 578 396, 406 Hart v. Coiner, 483 F. 2d 136 963, 993 Hart v. Commonwealth, 131 Va. 726 993 Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 511 Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 44 Head v. New Mexico Bd. of Examiners of Optometry, 374 U.S. 424 896 Healey v. Catalyst Recovery of Pennsylvania, Inc., 616 F. 2d 641 1107 Healy v. Beer Institute, 491 U.S. 324 829 Hecht v. Harris, Upham & Co., 430 F. 2d 1202 370 Heckman v. United States, 224 U.S. 413 794 Heiar v. Crawford County, 716 F. 2d 1190 480 Heisler v. Thomas Colliery Co., 260 U.S. 245 829 TABLE OF CASES CITED LI Page Helvering v. Hallock, 309 U.S. 106 828 Hennen, In re, 13 Pet. 230 890, 892, 914 Hepburn & Dundas v.. Ellzey, 2 Cranch 445 278 Herb v. Pitcairn, 324 U.S. 117 729 Herbert v. Lando, 781 F. 2d 298 509 Herman & MacLean v. Huddleston, 459 U.S. 375 369, 376 Herndon v. Georgia, 295 U.S. 441 729 Heublein v. South Carolina Tax Comm’n, 409 U.S. 275 555 Heublein, Inc. v. Georgia, Civ. Action No. 87-3542-6 (De- Kalb Super. Ct.) 558 Heublein, Inc. v. State, 256 Ga. 578 534 Heuer v. Kee, 15 Cal. App. 2d 710 517 Hileman v. Northwest Engineering Co., 346 F. 2d 668 512 Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707 478, 605 Hinds, In re, 90 N. J. 604 1037, 1074 Hines v. Davidowitz, 312 U.S. 52 605 Hitchcock v. Dugger, 481 U.S. 393 995 Hobbs v. State, 133 Ind. 404 984, 993 Hobbs Trailers v. J. T. Arnett Grain Co., 560 S. W. 2d 85 247 Hodge v. Muscatine County, 196 U.S. 276 12, 29 Hodges v. Humkin, 2 Bulst. 139 967 Holmberg v. Armbrecht, 327 U.S. 392 363, 378 Hooper v. California, 155 U.S. 648 288 Hopper v. Evans, 456 U.S. 605 647 Hopt v. Utah, 110 U.S. 574 943 Page Hoptowit v. Ray, 682 F. 2d 1237 304 Hoptowit v. Spellman, 753 F. 2d 779 310 Hormel v. Helvering, 312 U.S. 552 878, 954 Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324 554-556 Houston v. Hill, 482 U.S. 451 345 Houston Lawyers’ Assn. v. Attorney General of Tex., 501 U.S. 419 413 Hoyt v. Florida, 368 U.S. 57 828 Hughes v. Oklahoma, 441 U.S. 322 829 Humphrey’s Executor v. United States, 295 U.S. 602 921 Hunter v. Pittsburgh, 207 U.S. 161 608 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 671, 674, 675, 677 Hutto v. Davis, 454 U.S. 370 855, 962-965, 988, 997, 998, 1004, 1005, 1017 Hutto v. Finney, 437 U.S. 678 45, 46, 53, 301, 306, 307, 998 Hydro Air of Conn., Inc. v. Versa Technologies, Inc., 99 F. R. D. Ill 21 Illinois v. Allen, 397 U.S. 337 44 Illinois v. Gates, 462 U.S. 213 829 Illinois Dept, of Public Aid v. Schweiker, 707 F. 2d 273 136 INS v. Chadha, 462 U.S. 919 255, 269, 271, 274-276, 286, 290-292, 880, 911 INS v. Delgado, 466 U.S. 210 435-437, 439, 449 Indianapolis Brewing Co. v. Liquor Control Comm’n, 305 U.S. 391 556, 557 Ingersoll-Rand Co. v. Mc- Clendon, 498 U.S. 133 604 Ingraham v. Wright, 430 U.S. 651 148, 968, 974, 993, 998 In re. See name of party or proceeding. LU TABLE OF CASES CITED Page Insurance Corp, of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 897 Interface Group, Inc. v. Massachusetts Port Authority, 816 F. 2d 9 899 International Harvester Credit Corp. v. Seale, 518 So. 2d 1039 75 Irvin v. Dowd, 366 U.S. 717 1080 Irvine v. California, 347 U.S. 128 638 Irwin v. Department of Veterans Affairs, 498 U.S. 89 363, 753 Isbrandtsen Co. v. Johnson, 343 U.S. 779 108 Iselin v. United States, 270 U.S. 245 139 Jackman v. Rosenbaum Co., 260 U.S. 22 642 Jackson v. United States, 102 F. 473 985 James v. Illinois, 493 U.S. 307 852 James v. State, 637 P. 2d 862 642 James v. United States, 366 U.S. 213 537 James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 373 Japanese Immigrant Case, 189 U.S. 86 138 Jenkins v. Georgia, 418 U.S. 153 667 Jenness v. Fortson, 403 U.S. 431 333 J. I. Case Co. v. Borak, 377 U.S. 426 376, 1086, 1095, 1099, 1102-1104, 1114, 1115, 1118 Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U.S. 378 899 Johnson v. Glick, 481 F. 2d 1028 300, 302 Johnson v. Louisiana, 406 U.S. 356 630, 634 Johnson v. New Jersey, 384 U.S. 719 537 Johnson v. Zerbst, 304 U.S. 458 894 Page Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 14 Jones v. Rath Packing Co., 430 U.S. 519 605 Jones v. State, 559 So. 2d 1096 433 Jones v. United States, 362 U.S. 257 829 Jonnet v. Dollar Savings Bank of New York City, 530 F. 2d 1123 17 Joseph E. Seagram & Sons, Inc. v. Georgia, Civ. Action No. 87-7070-8 (DeKalb Super. Ct.) 558 Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35 555, 829 J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 274 Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827 61 Kansas v. United States, 204 U.S. 331 782 Kansas Indians, 5 Wall. 737 791, 795 Kardon v. National Gypsum Co., 69 F. Supp. 512 358, 366 Katz v. United States, 389 U.S. 347 537 Keeble v. United States, 412 U.S. 205 662 Kemmler, In re, 136 U.S. 436 976 Kent v. United States, 383 U.S. 541 138 Kentucky v. Indiana, 281 U.S. 163 241 Kerby v. Hal Roach Studios, Inc., 53 Cal. App. 2d 207 510 Kern County Land Co. v. Occidental Petroleum Corp., 411 U.S. 582 117, 121, 122 Kesler v. Department of Public Safety of Utah, 369 U.S. 153 828, 843 Key v. Doyle, 434 U.S. 59 279 King Bridge Co. v. Otoe County, 120 U.S. 225 316 TABLE OF CASES CITED LIII Page Kirby v. Illinois, 406 U.S. 682 175 Kistler v. State, 190 Ind. 149 993 Kleindienst v. Mandel, 408 U.S. 753 330 Klinger v. Missouri, 13 Wall. 257 729 Kolender v. Lawson, 461 U.S. 352 1051 Konigsberg v. State Bar of Cal., 366 U.S. 36 677 Kremer v. Chemical Constr. Corp., 456 U.S. 461 109-112 Kring v. Missouri, 107 U.S. 221 830 Kuhn v. Fairmont Coal Co., 215 U.S. 349 535 Kunstler, In re, 914 F. 2d 505 55 Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539 198, 207 LaFaut v. Smith, 834 F. 2d 389 302, 303 Lancaster v. Petroleum Corp. of Delaware, 491 So. 2d 768 54 Landmark Communications, Inc. v. Virginia, 435 U.S. 829 669, 1035-1037, 1039 Lane County v. Oregon, 7 Wall. 71 457 Lanzetta v. New Jersey, 306 U.S. 451 68, 632 Lasko v. State, 409 N. E. 2d 1124 574 Lau v. Nichols, 414 U.S. 563 281 Lawrence County v. Lead- Deadwood School Dist., No. 40-1, 469 U.S. 256 284 League of United Latin American Citizens Council No. 4434 v. Clements, 914 F. 2d 620 388-390, 395, 396, 398, 400, 402 Leathers v. Medlock, 499 U.S. 439 1034 Ledgebrook Condominium Assn. v. Lusk Corp., 172 Conn. 577 13 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 828 Page Lemon v. Kurtzman, 411 U.S. 192 536, 544 Le Roy v. Sidley, 1 Sid. 168 568 Lesko v. Lehman, 925 F. 2d 1527 836 Levine v. United States, 362 U.S. 610 894, 896, 936 Levinson, In re, 444 N. E. 2d 1175 574 Lewis v. United States, 146 U.S. 370 943 Liberty Lobby, Inc. v. Anderson, 241 U.S. App. D. C. 246 523 Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737 265 Liggett Co. v. Baldridge, 278 U.S. 105 828 Link v. Wabash R. Co., 370 U.S. 626 43-45, 47, 49, 55, 59, 66, 753 Linkletter v. Walker, 381 U.S. 618 535, 536 Little Creek Development Co., In re, 779 F. 2d 1068 160 Liverpool, N. Y. & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33 330 Local Bd. of Las Vegas Culinary Workers Union, Local 226 v. Royal Center, Inc., 796 F. 2d 1159 197 Local 703, Int’l Brotherhood of Teamsters v. Kennicott Bros. Co., 771 F. 2d 300 198 Local Union 1395, Int’l Brotherhood of Electrical Workers v. NLRB, 254 U.S. App. D. C. 360 203 Lochner v. New York, 198 U.S. 45 1000 Lockett v. Ohio, 438 U.S. 586 833, 839, 857-859, 995, 996 Long v. Bullard, 117 U.S. 617 83,84 Longshoremen v. Boyd, 347 U.S. 222 323 Lopez v. Robinson, 914 F. 2d 486 303 LIV TABLE OF CASES CITED Page Lorillard v. Pons, 434 U.S. 575 109, 489 Los Angeles v. Lyons, 461 U.S. 95 321 Louis K. Liggett Co. v. Baldridge, 278 U.S. 105 828 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 297, 309, 976 Lovell v. Griffin, 303 U.S. 444 673 Low v. Austin, 13 Wall. 29 828 Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 579 Mack v. South Bay Beer Distributors, Inc., 798 F. 2d 1279 107 Mackey v. United States, 401 U.S. 667 535, 542, 547 Magida v. Continental Can Co., 231 F. 2d 843 123 Magnum Import Co. v. Coty, 262 U.S. 159 1302, 1305 Maheu v. Hughes Tool Co., 569 F. 2d 459 517 Mahnich v. Southern S. S. Co., 321 U.S. 96 548 Maine v. Moulton, 474 U.S. 159 176, 852 Mallory v. Eyrich, 839 F. 2d 275 386 Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379 896 Manson v. State, 101 Wis. 2d 413 635 Mapp v. Ohio, 367 U.S. 643 850 Marbury v. Madison, 1 Cranch 137 549, 1017 Marek v. Chesny, 473 U.S. 1 74 Marsh v. Chambers, 463 U.S. 783 980 Martin v. Allain, 658 F. Supp. 1183 387 Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144 697, 707 Martin v. Ohio, 480 U.S. 228 638, 640, 642 Maryland v. Wirtz, 392 U.S. 183 829 Page Maryland Pest Control Assn. v. Montgomery County, 822 F. 2d 55 604, 612 Massachusetts v. Morash, 490 U.S. 107 487, 488 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 470, 472, 473 Massachusetts Union of Public Housing Tenants, Inc. v. Pierce, 244 U.S. App. D. C. 34 96 Mathews v. Eldridge, 424 U.S. 319 8, 10, 11, 31, 147, 148, 150 Maynard v. Cartwright, 486 U.S. 356 1263, 1264 McAllister v. Magnolia Petroleum Co., 357 U.S. 221 356 McBride v. State, 554 So. 2d 1160 433 McCarthy v. Bronson, 500 U.S. 136 301, 928 McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164 792 McCleskey v. Kemp, 481 U.S. 279 824, 866, 1019, 1281 McCleskey v. Zant, 499 U.S. 467 750, 765, 999, 1282 McCulloch v. Maryland, 4 Wheat. 316 902, 980 McDonald v. Schweiker, 726 F. 2d 311 96 McGautha v. California, 402 U.S. 183 648 McGowan v. Maryland, 366 U.S. 420 582 McIntire v. Wood, 7 Cranch 504 61 McKesson Corp. v. Division of Alcoholic Beverages and Tobacco of Fla., 496 U.S. 18 535, 539, 544 McKoy v. North Carolina, 494 U.S. 433 632 McMillan v. Pennsylvania, 477 U.S 79 639, 642, 644 McQuiston v. Marsh, 707 F. 2d 1082 96 Mears v. Mears, 206 Va. 444 740 Mendez v. State, 554 So. 2d 1161 433 TABLE OF CASES CITED LV Page Mendez v. Trustees of Boston Univ., 362 Mass. 353 208 Mercury Investment Co. v. F. W. Woolworth Co., 706 P. 2d 523 247 Metro Broadcasting v. FCC, 497 U.S. 547 851 Metz, In re, 820 F. 2d 1495 81 Michael H. v. Gerald D., 491 U.S. 110 650 Michelin Tire Corp. v. Wages, 423 U.S. 276 828 Michigan v. Bladel, 421 Mich. 39 180 Michigan v. Chesternut, 486 U.S. 567 435, 437, 438, 446, 448 Michigan v. Harvey, 494 U.S. 344 177 Michigan v. Jackson, 475 U.S. 625 175, 179, 180, 184, 185, 188 Michigan v. Long, 463 U.S. 1032 732- 737, 757, 758, 762, 763, 765, 766, 768, 769, 771 Michigan v. Thomas, 458 U.S. 259 1212 Michigan Dept, of State Police v. Sitz, 496 U.S. 444 1023 Milkovich v. Lorain Journal Co., 497 U.S. 1 516, 1097 Miller v. California, 413 U.S. 15 828 Mills v. Electric Auto-Lite Co., 396 U.S. 375 1089, 1099, 1100, 1102, 1104, 1106, 1110-1112, 1114-1118, 1122 Mills v. Maryland, 486 U.S. 367 667, 822, 830, 839, 850, 851 Milwaukee R. Co., Ex parte, 5 Wall. 188 1302 Miner v. Atlass, 363 U.S. 641 67 Minersville School Dist. v. Gobitis, 310 U.S. 586 579 Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 669, 673 Minnick v. Mississippi, 498 U.S. 146 177 Page Miranda v. Arizona, 384 U.S. 436 173, 174, 176-182, 537, 799-801, 805, 806 Missouri v. Fiske, 290 U.S. 18 785 Mistretta v. United States, 488 U.S. 361 132, 267, 268, 281, 289, 290, 292, 878, 890, 999, 1006 Mitchell v. W. T. Grant Co., 416 U.S. 600 8-10, 12, 14-17, 19-22, 27, 850, 854, 965 Mitchum v. Foster, 407 U.S. 225 760 Mobile v. Bolden, 446 U.S. 55 390, 392- 395, 403-405, 413, 414 Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 783-786, 793 Monaco v. Mississippi, 292 U.S. 313 780-782 Montgomery Mailers’ Union No. 127 v. The Advertiser Co., 827 F. 2d 709 201 Moog, In re, 774 F. 2d 1073 160 Moore v. Ogilvie, 394 U.S. 814 320, 340, 413 Moragne v. States Marine Lines, 398 U.S. 375 844, 852 Moran v. Burbine, 475 U.S. 412 176, 181, 189 Morey v. Doud, 354 U.S. 457 829 Morgan v. District of Columbia, 263 U.S. App. D. C. 69 304 Morrison v. Olson, 487 U.S. 654 273, 883, 1036 Morrissey v. Brewer, 408 U.S. 471 147 Morton v. Mancari, 417 U.S. 535 109, 791 Mosser v. Darrow, 341 U.S. 267 536 Motor Vehicle Mfrs. Assn. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29 891 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 136 Mullaney v. Wilbur, 421 U.S. 684 636, 638, 640, 658 LVI TABLE OF CASES CITED Page Mullins Coal Co. v. Director, OWCP, Dept, of Labor, 484 U.S. 135 684, 700, 702 Mu’Min v. Virginia, 500 U.S. 415 1039 Murdock v. City of Memphis, 20 Wall. 590 637 Murdock v. Pennsylvania, 319 U.S. 105 669 Murphy v. Florida, 421 U.S. 794 1080 Murray v. Carrier, 477 U.S. 478 748- 754, 772, 774, 801, 806 Murray v. Giarratano, 492 U.S. 1 752, 755 Murray v. The Charming Betsy, 2 Cranch 64 280 Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 910, 911 Myers v. United States, 272 U.S. 52 60, 287, 288 Nabors v. United States, 568 F. 2d 657 113 Naovarath v. State, 105 Nev. 525 1016 NAACP v. Claiborne Hardware Co., 458 U.S. 886 668 NLRB v. C & C Plywood Corp., 385 U.S. 421 202 NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775 200 NLRB v. J. Weingarten, Inc., 420 U.S. 251 202 NLRB v. Katz, 369 U.S. 736 198- 200, 206, 207 NLRB v. New England Newspapers, Inc., 856 F. 2d 409 201 NLRB v. Strong, 393 U.S. 357 202 National League of Cities v. Usery, 426 U.S. 833 829 Nebraska v. Wyoming, 325 U.S. 589 241 Nebraska Press Assn. v. Stu- art, 427 U.S. 539 1035, 1053, 1065, 1069, 1074, 1081 Nesbit v. McNeil, 896 F. 2d 380 354 Page Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 46 New Orleans v. Dukes, 427 U.S. 297 829 Newport v. Fact Concerts, Inc., 453 U.S. 247 1099 New State Ice Co. v. Liebmann, 285 U.S. 262 1009 New York v. United States, 326 U.S. 572 986 New York State Liquor Authority v. Bellanca, 452 U.S. 714 594 New York Times Co. v. Sullivan, 376 U.S. 254 510, 514, 517, 526, 527, 668, 675, 676, 678, 1038 New York Trust Co. v. Eisner, 256 U.S. 345 792 Nolde Brothers, Inc. v. Bakery Workers, 430 U.S. 243 193, 195-198, 202-206, 208, 210-214, 217, 219 North Carolina v. Pearce, 395 U.S. 711 829 North Dakota Pharmacy Bd. v. Snyder’s Drug Stores, Inc., 414 U.S. 156 828 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U;S. 50 536, 545, 890, 907, 912, 914, 949, 950 Northern Securities Co. v. United States, 193 U.S. 197 867 North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 10, 19, 20, 22, 27, 993 Northwest Airlines v. Minnesota, 322 U.S. 292 614 Nyquist v. Mauclet, 432 U.S. 1 462 O’Brien v. Socony Mobil Oil Co., 207 Va. 707 743 O’Callahan v. Parker, 395 U.S. 258 829 Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 355, 356 Office Employees Ins. Trust v. Laborers Funds Admin. Office of No. Cal., 783 F. 2d 919 206 TABLE OF CASES CITED LVII Page Ogea v. Loffland Brothers Co., 622 F. 2d 186 75 O’Hara v. Kovens, 625 F. 2d 15 354 Ohio v. Kovacs, 469 U.S. 274 83 Ohralik v. Ohio State Bar Assn., 436 U.S. 447 1052, 1073 Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 669, 673 Oklahoma Tax Comm’n v. Citizen Band of Potawatomi Tribe of Okla., 498 U.S. 505 780, 782 Old Colony Trust Co. v. Commissioner, 279 U.S. 716 911 Oliver, In re, 333 U.S. 257 1035 O’Neil v. Baine, 568 S. W. 2d 761 471 O’Neil v. Vermont, 144 U.S. 323 992, 997, 1012 Opdyke Investment Co. v. Detroit, 833 F. 2d 1265 899 Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363 828 Orr v. Orr, 440 U.S. 268 630, 667 Oscar Mayer & Co. v. Evans, 441 U.S. 750 111-113, 489, 493 O’Shea v. Littleton, 414 U.S. 488 321, 332, 340 Ottawa County v. Jaklinski, 423 Mich. 1 198 Owen v. Owen, 500 U.S. 305 83 Ownbey v. Morgan, 256 U.S. 94 12, 16, 20 Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Dev. Comm’n, 461 U.S. 190 475, 605 Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 30, 643, 650, 1082 Page v. United States, 462 F. 2d 932 993 Panama Refining Co. v. Ryan, 293 U.S. 388 956 Parden v. Terminal Railway of Ala. Docks Dept., 377 U.S. 184 787, 788, 829 Page Parham v. J. R., 442 U.S. 584 147 Paris Adult Theatre I v. Slaton, 413 U.S. 49 569,575,580 Parklane Hoisery Co. v. Shore, 439 U.S. 322 108 Parratt v. Taylor, 451 U.S. 527 829 Patrich v. Old Ben Coal Co. 926 F. 2d 1482 695, 701 Patterson v. Board of Supervisors of City and County of San Francisco, 202 Cal. App. 3d 22 328, 346 Patterson v. Colorado ex rel. Attorney General of Colo., 205 U.S. 454 1070, 1080 Patterson v. McLean Credit Union, 491 U.S. 164 842, 843, 848-850 Patterson v. New York, 432 U.S. 197 638-640, 642, 657 Patton v. United States, 281 U.S. 276 894 Patton v. Yount, 467 U.S. 1025 1044 Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120 53, 67 Payne v. Tennessee, 498 U.S. 1076 867 Payne v. Tennessee, 501 U.S. 808 965, 999 Pearson v. Williams, 202 U.S. 281 110 Peel v. Attorney Registration and Disciplinary Comm’n of Ill., 496 U.S. 91 852, 1052, 1073 Pennekamp v. Florida, 328 U.S. 331 1038, 1069, 1079, 1080 Pennell v. San Jose, 485 U.S. 1 471 Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 469, 470, 480 Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 411, 779, 789, 829 Pennoyer v. Neff, 95 U.S. 714 829 Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546 45, 48 LVIII TABLE OF CASES CITED Page Pennsylvania v. Finley, 481 U.S. 551 752, 755, 756, 772, 773 Pennsylvania v. Muniz, 496 U.S. 582 182 Pennsylvania v. Union Gas Co., 491 U.S. 1 412, 789 Pennsylvania v. West Virginia, 262 U.S. 553 332, 341 Pennsylvania Dept, of Public Welfare v. Davenport, 495 U.S. 552 83, 84, 86, 404, 877 Penry v. Lynaugh, 492 U.S. 302 836, 838, 1242 People v. Abrego, 72 Mich. App. 176 1025 People v. Bennett, 60 Cal. App. 3d 112 799 People v. Embree, 70 Mich. App. 382 641 People v. Geary, 298 Ill. 236 1242 People v. Kirchoff, 74 Mich. App. 641 1025 People v. Milan, 9 Cal. 3d 185 641 People v. Morris, 80 Mich. 634 984 People v. Sullivan, 173 N. Y. 122 641, 649 People v. Travis, 170 Ill. App. 3d 873 641 People ex rel. Deukmejian v. County of Mendocino, 36 Cal. 3d 476 604 Peralta v. Heights Medical Center, Inc., 485 U.S. 80 12, 29 Peretz v. United States, 501 U.S. 923 894, 901 Perez v. Campbell, 402 U.S. 637 828 Perry v. United States, 294 U.S. 330 979 Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37 345 Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 517, 668 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 125 Pierce v. Underwood, 487 U.S. 552 235 Page Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 488 Piper v. Chris-Craft Industries, Inc., 430 U.S. 1 280 Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 676 Pittston Coal Group v. Sebben, 488 U.S. 105 684, 686, 687, 691, 693, 695, 697, 699-701, 707, 713, 720 Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 829 Pope v. Williams, 193 U.S. 621 828 Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299 779 Portnoy v. Kawecki Berylco Industries, Inc., 607 F. 2d 765 120 Portnoy v. Revlon, Inc., 650 F. 2d 895 123 Powers v. Ohio, 499 U.S. 400 320 Preston v. State, 259 Ind. 353 574 Prihoda v. McCaughtry, 910 F. 2d 1379 802, 803, 805 Primus, In re, 436 U.S. 412 1054 Principality of Monaco v. Mis- sissippi, 292 U.S. 313 780-782 Procunier v. Martinez, 416 U.S. 396 829, 1054 Professional Lawn Care Assn. v. Milford, 909 F. 2d 929 604, 609, 612 Public Affairs Associates, Inc. v. Rickover, 369 U.S. Ill 322, 342 Public Citizen v. Department of Justice, 491 U.S. 440 126, 404, 417 Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158 486 Puget Sound Stevedoring Co. v. State Tax Comm’n, 302 U.S. 90 829 Pulliam v. Allen, 466 U.S. 522 852 Quaker City Cab Co. v. Penn- sylvania, 277 U.S. 389 828 TABLE OF CASES CITED LIX Page Rachmiel, In re, 90 N. J. 646 1074 Radol v. Thomas, 534 F. Supp. 1302 1097 Ramirez v. Puerto Rico Fire Service, 715 F. 2d 694 480 Ramos v. Lamm, 639 F. 2d 559 311 Randall v. Loftsgaarden, 478 U.S. 647 377 Randolph, Ex parte, 20 F. Cas. (No. 11,558) 242 911 Ranger Fuel Corp. v. Lilly, 165 W. Va. 98 208 Rankin v. McPherson, 483 U.S. 378 852 Redfield v. Ystalyfera Iron Co., 110 U.S. 174 59 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 330, 678 Reed v. Ross, 468 U.S. 1 760, 774 Reed v. United Transportation Union, 488 U.S. 319 356, 365, 375 Regional Rail Reorganization Act Cases, 419 U.S. 102 320, 339-341 Reitz v. Leasing Consultants Associates, 895 F. 2d 1418 354 Reliance Electric Co. v. Emerson Electric Co., 404 U.S. 418 118, 121, 122 Rener v. Beto, 447 F. 2d 20 993 Renolds v. Sims, 377 U.S. 533 398 Renton v. Playtime Theatres, Inc., 475 U.S. 41 566, 583-586, 593, 594 Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549 322, 342 Reves v. Ernst & Young, 494 U.S. 56 123 Reynolds v. Sims, 377 U.S. 533 608 Rhode Island v. Innis, 446 U.S. 291 182 Rhodes v. Chapman, 452 U.S. 337 298, 301, 303-305, 307, 309, 311 Ricard v. State, 390 So. 2d 882 75 Page Rice v. Santa Fe Elevator Corp., 331 U.S. 218 605, 607, 610, 613 Rice v. State, 311 Md. 116 635 Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116 45, 46 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 678,1035 Roadway Express, Inc. v. Piper, 447 U.S. 752 43- 45, 48-50, 59, 63-65 Roberts v. Louisiana, 428 U.S. 325 648, 855 Robinette v. Director, Office of Workers’ Compensation Programs, Dept, of Labor, 902 F. 2d 1566 694 Robinson, Ex parte, 19 Wall. 505 43, 44, 47, 65 Robinson v. California, 370 U.S. 660 297, 962, 993, 1012, 1017, 1023 Robuck v. Dean Witter & Co., 649 F. 2d 641 353, 370 Rock v. Arkansas, 483 U.S. 44 852 Roe v. Wade, 410 U.S. 113 852 Rogers v. Lodge, 458 U.S. 613 413 Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 829 Rome v. United States, 446 U.S. 156 403, 412, 468, 480 Rosario v. Rockefeller, 410 U.S 752 333 Rose v. Lundy, 455 U.S. 509 731, 765, 766, 800 Rosenfeld v. Department of Army, 769 F. 2d 237 113 Rosewell v. LaSalle National Bank, 450 U.S. 503 1303 Ross v. Moffitt, 417 U.S. 600 756, 773 Rostker v. Goldberg, 448 U.S. 1306 1305 Rostker v. Goldberg, 453 U.S. 57 638 Roth v. United States, 354 U.S. 476 580 LX TABLE OF CASES CITED Page Rothenberg v. United Brands Co., CCH Fed. Sec. L. Rep. 1196,045 120 Rouss, In re, 221 N. Y. 81 1066 Royal Air Properties, Inc. v. Smith, 312 F. 2d 210 370 Royall, Ex parte, 117 U.S. 241 731, 766 Ruckelshaus v. Monsanto Co., 467 U.S. 986 601, 613 Rummel v. Estelle, 445 U.S. 263 962- 965, 990, 992, 994, 995, 997-1001, 1004, 1005, 1007, 1009, 1013, 1014, 1016-1018, 1020, 1025 Rushing v. Butler, 868 F. 2d 800 837 Rust v. Sullivan, 500 U.S. 173 867, 930 Rutan v. Republican Party of Ill., 497 U.S. 62 852 Rutherford v. Impson, 366 So. 2d 944 54, 75 Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 593 Sabo v. Casey, 757 F. Supp. 587 482 Sacher v. United States, 343 U.S. 1 1071 Saia v. New York, 334 U.S. 558 576 Sailors v. Board of Ed. of Kent County, 387 U.S. 105 608 St. Agnes Hospital v. Sullivan, 284 U.S. App. D. C. 396 486 St. Amant v. Thompson, 390 U.S. 727 510 St. Clair v. United States, 154 U.S. 134 631 Saint Francis College v. Al- Khazraji, 481 U.S. 604 371-373 St. Louis v. Praprotnik, 485 U.S. 112 1099 Salem Inn, Inc. v. Frank, 501 F. 2d 18 594 Samuels, Kramer & Co. v. Commissioner, 930 F. 2d 975 881, 888, 912 Sandstrom v. Montana, 442 U.S. 510 636, 655, 657 Page San Francisco Democratic Central Committee v. Eu, 826 F. 2d 814 336, 337 Sansone v. Zerbst, 73 F. 2d 670 993 Sante Fe Industries, Inc. v. Green, 430 U.S. 462 376, 1093 Sawyer, In re, 360 U.S. 622 1053, 1071, 1072, 1074, 1082 Saylors, In re, 869 F. 2d 1434 81 Schad v. Mount Ephraim, 452 U.S. 61 565, 592 Schechter Poultry Corp. v. United States, 295 U.S. 495 956 Schlick v. Penn-Dixie Cement Corp., 507 F. 2d 374 1100 Schlitz v. Virginia, 681F. Supp. 330 482 Schmuck v. United States, 489 U.S. 705 661, 662 Schneckloth v. Bustamonte, 412 U.S. 218 449 Schneider v. State (Town of Irvington), 308 U.S. 147 576 School Bd. of Lynchburg v. Scott, 237 Va. 550 740 Schreiber v. Burlington North- ern, Inc., 472 U.S. 1 487 Scott v. Georgia, 187 Ga. 702 557 Scott v. State, 187 Ga. 702 533 Seafarers Int’l Union of North America v. National Marine Servs., Inc., 820 F. 2d 148 198 Seagram & Sons, Inc. v. Georgia, Civ. Action No. 87-7070-8 (DeKalb Super. Ct.) 558 Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35 555, 829 Searle & Co. v. Cohn, 455 U.S. 404 899 Seattle Times Co. v. Rhinehart, 467 U.S. 20 1052, 1054, 1073, 1075 Second Trial of Titus Oates, 10 How. St. Tr. 1227 970, 971 Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947 343 SEC v. Seaboard Corp., 677 F. 2d 1301 370 TABLE OF CASES CITED LXI Page Securities Industry Assn. v. Board of Governors, FRS, 468 U.S. 207 487 Sedima, S. P. R. L. v. Imrex Co., 473 U.S. 479 406 Segtirola v. United States, 275 U.S. 106 936 Selleck v. Globe International, Inc., 166 Cal. App. 3d 1123 510 Semegen v. Weidner, 780 F. 2d 727 370 Serpa v. State, 555 So. 2d 1210 433 Shaffer v. Heitner, 433 U.S. 186 829 Shapiro v. Thompson, 394 U.S 618 828 Shaw v. State, 555 So. 2d 351 433 Shearson/American Express Inc. v. McMahon, 482 U.S. 220 369 Shell v. Mississippi, 498 U.S. 1 1263, 1264 Shepard v. NLRB, 459 U.S. 344 202 Sheppard v. Maxwell, 384 U.S. 333 1035, 1053, 1065- 1068, 1072, 1074-1076 Short v. Belleville Shoe Mfg. Co., 908 F. 2d 1385 354, 362 Sibbach v. Wilson & Co., 312 U.S. 1 61 Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26 319, 331, 338 Simpson v. Director, OWCP, Dept, of Labor, 681 F. 2d 81 543 Simpson v. Rice, 395 U.S. 711 829 Simpson v. Union Oil Co., 377 U.S. 13 545 Sioux County v. National .Surety Co., 276 U.S. 238 52 Skipper v. South Carolina, 476 U.S. 1 822 Smith, In re, 25 N. M. 48 1242 Smith v. Allwright, 321 U.S. 649 827, 965 Smith v. Daily Mail Publishing Co., 443 U.S. 97 669, 670, 672, 673, 676 Page Smith v. Goguen, 415 U.S. 566 1051, 1078 Smith v. Sullivan, 611 F. 2d 1039 311 Sniadach v. Family Finance Corp, of Bay View, 395 U.S. 337 8, 9, 12, 16, 21, 27 Snyder v. Massachusetts, 291 U.S. 97 633, 642, 827 Socialist Labor Party v. Gilligan, 406 U.S. 583 322, 342 Société Int’l pour Participations Industrielles et Commerciales, S. A. v. Rogers, 357 U.S. 197 49, 64, 65 Solem v. Helm, 463 U.S. 277 964-968, 985-990, 993, 997-1002, 1004-1006, 1009, 1013, 1015, 1016, 1018-1021, 1024-1027 Solem v. Stumes, 465 U.S. 638 188 Solesbee v. Balkcom, 339 U.S. 9 1242 Solorio v. United States, 483 U.S. 435 829 South Carolina v. Baker, 485 U.S. 505 477, 479, 829 South Carolina v. Gathers, 490 U.S. 805 811, 816- 819, 823, 825-828, 830- 832, 835, 839, 844-851, 853-856, 858, 862, 863 South Carolina v. Katzenbach, 383 U.S. 301 403 South Dakota v. Dole, 483 U.S. 203 270, 271, 283-285 South Dakota v. North Caro- lina, 192 U.S. 286 782 Southwestern Steel & Supply, Inc. v. NLRB, 257 U.S. App. D. C. 19 199 Spain v. Procunier, 600 F. 2d 189 304 Spaziano v. Florida, 468 U.S. 447 646, 661 Spector Motor Service, Inc. v. O’Connor, 340 U.S. 602 829 Speiser v. Randall, 357 U.S. 513 633, 642 LXII TABLE OF CASES CITED Page Spence v. Washington, 418 U.S. 405 577 Spielman-Fond, Inc. v. Hanson’s, Inc., 417 U.S. 901 12, 27, 28 Spielman-Fond, Inc. v. Hanson’s, Inc., 379 F. Supp. 997 12,27 Sprague v. Ticonic National Bank, 307 U.S. 161 45 Springer v. Philippine Islands, 277 U.S. 189 255, 274, 287, 289, 290 Standard Oil Co. of N. J. v. United States, 221 U.S. 1 910 Stanford v. Kentucky, 492 U.S. 361 976, 1015, 1019, 1027, 1242 Stanley v. Georgia, 394 U.S. 557 331, 589 State. See also name of State. State v. Arias, 131 Ariz. 441 660 State v. Baldwin, 101 Wis. 2d 441 635 State v. Baysinger, 272 Ind. 236 564, 574, 590 State v. Becker, 3 S. D. 29 985, 992 State v. Blake, 157 N. C. 608 984, 993 State v. Buckman, 237 Neb. 936 642 State v. Clayton, 109 Ariz. 587 660 State v. Driver, 78 N. C. 423 984 State v. Elbert, 125 N. H. 1 1016 State v. Elliott, 435 N. E. 2d 302 574 State v. Encinas, 132 Ariz. 493 656 State v. Fuhrmann, 257 N. W. 2d 619 641 State v. Gilham, 48 Ohio App. 3d 293 1016 State v. Helm, 69 Ark. 167 1242 State v. Hogan, 63 Ohio St. 202 984 State v. Huertas, 51 Ohio St. 3d 22 850 Page State v. Kruchten, 101 Ariz. 186 660 State v. LaGrand, 153 Ariz. 21 661 State v. McLoughlin, 139 Ariz. 481 654 State v. Murray, 308 Ore. 496 642 State v. Preston, 673 S. W. 2d 1 1263 State v. Sema, 69 Ariz. 181 632 State v. Smith, 160 Ariz. 507 645, 655, 659 State v. Stewart, 113 Wash. 2d 462 179 State v. Tillman, 750 P. 2d 546 642 State v. White, 44 Kan. 514 984 State v. Williams, 77 Mo. 310 984 State v. Wilson, 220 Kan. 341 641 State Bd. of Equalization of Cal. v. Young’s Market Co., 299 U.S. 59 554-557 State Dept, of Health & Rehabilitative Services of Fla. v. Zarate, 407 U.S. 918 828 State ex rel. Ekstrom v. Jus-tice Court, 136 Ariz. 1 442 State ex rel. Garvey v. Whitaker, 48 La. 527 984 State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363 828 Stathos v. Bowden, 728 F. 2d 15 1261 Stedman v. Storer, 308 F. Supp. 881 1096 Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 200, 209, 215, 217 Steffel v. Thompson, 415 U.S. 452 332 Sterrett v. Mothers’ & Children’s Rights Organization, 409 U.S. 809 828 Stevens v. Department of Treasury, 500 U.S. 1 1099 Stevenson v. United States, 162 U.S. 313 662 Steward Machine Co. v. Davis, 301 U.S. 548 281, 285 TABLE OF CASES CITED LXIII Page Stillians v. Iowa, 843 F. 2d 276 107 Stokes v. Peyton, 207 Va. 1 742, 743 Stone v. Powell, 428 U.S. 465 802 Storer v. Brown, 416 U.S. 724 333, 340 Stout, In re, 521 Pa. 571 482, 487 Stovall v. Denno, 388 U.S. 293 537 Strickland v. Washington, 466 U.S. 668 753, 774 Stroble v. California, 343 U.S. 181 1044 Stromberg v. California, 283 U.S. 359 577 Sugarman v. Dougall, 413 U.S. 634 461-463, 468, 469, 476, 477 Sullivan v. Finkelstein, 496 U.S. 617 95, 97-99 Sullivan v. Hudson, 490 U.S. 877 96, 97 Summit Valley Industries, Inc. v. Carpenters, 456 U.S. 717 45 Sumner v. Shuman, 483 U.S. 66 995 Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 404 U.S. 6 359 Swaggart Ministries v. Board of Equalization of Cal., 493 U.S. 378 899 Swain, In re, 34 Cal. 2d 300 800, 805 Swain v. Alabama, 380 U.S. 202 829 Swanson v. American Con- sumers Industries, Inc., 475 F. 2d 516 1107 Sweeney v. State, 486 N. E. 2d 651 574 Swift & Co. v. Wickham, 382 U.S. Ill 828, 843 Tafflin v. Levitt, 493 U.S. 455 457 Tashjian v. Republican Party of Conn., 479 U.S. 208 332, 334, 335, 339, 341 Taylor v. Beckham, 178 U.S. 548 460 Page Taylor v. Louisiana, 419 U.S. 522 828 Teague v. Lane, 489 U.S. 288 540, 735, 767 Teamsters Local Union 688 v. John J. Meier Co., 718 F. 2d 286 201 Terrebonne v. Butler, 848 F. 2d 500 1003 Territory. See name of Territory. Territory v. Ketchum, 10 N. M. 718 985 Terry v. Ohio, 392 U.S. 1 434, 439, 441 Texas v. Johnson, 491 U.S. 397 577, 578, 593 Texas v. New Mexico, 462 U.S. 554 235, 245, 247 Texas v. New Mexico, 482 U.S. 124 235, 245 Texas v. White, 7 Wall. 700 457 Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33 366 Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448 203 Thacker v. Peyton, 206 Va. 771 742, 743 Tharp v. Commonwealth, 211 Va. 1 741, 742 Theard v. United States, 354 U.S. 278 1066 Thomas v. Capital Security Services, Inc., 836 F. 2d 866 55, 56 Thomas v. State, 238 Ind. 658 574 Thompson v. State, 482 N. E. 2d 1372 574 Thompson v. Thompson, 484 U.S. 174 365, 1110 Thompson v. Utah, 170 U.S. 343 830 Thornburg v. Gingles, 478 U.S. 30 387, 394, 403, 407, 408, 410, 413, 418 Thornburgh v. Abbott, 490 U.S. 401 829 Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 849, 851 LXIV TABLE OF CASES CITED Page Tillery v. Owens, 907 F. 2d 418 310 Time, Inc. v. Pape, 401 U.S. 279 518, 519 Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301 1302 Tincher v. United States, 11 F. 2d 18 992 Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 577 Tison v. Arizona, 481 U.S. 137 643, 644, 659, 819, 861, 862, 997 Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399 45, 57 Touche Ross & Co. v. Redington, 442 U.S. 560 1102-1104 Toussaint v. McCarthy, 801 F. 2d 1080 299 Town. See name of town. Trans World Airlines, Inc. v. Thurston, 469 U.S. Ill 18, 489 Treasury Employees v. Von Raab, 489 U.S. 656 1002 Trop v. Dulles, 356 U.S. 86 1014, 1015, 1019, 1242 Trujillo v. CS Cattle Co., 109 N. M. 705 247 TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438 1090, 1095, 1097, 1117 Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 11 Turner v. California, 498 U.S. 1053 1027 Turner v. Louisiana, 379 U.S. 466 1075 Turner v. Murray, 476 U.S. 28 994 Turner v. United States, 396 U.S. 398 1024 Ulster County Court v. Allen, 442 U.S. 140 730 Unger v. Superior Court of City and County of San Francisco, 37 Cal. 3d 612 318, 343 Page Unger v. Superior Court of Marin County, 102 Cal. App. 3d 681 318, 344 United Food & Commercial Workers Local 7 v. Gold Star Sausage Co., 897 F. 2d 1022 198 United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 413 United Parcel Service, Inc. v. Mitchell, 451 U.S. 56 359, 375 United States, Ex parte, 242 U.S. 27 1006 United States v. Albertini, 472 U.S. 675 578 United States v. Alexander, 755 F. Supp. 448 444 United States v. Alston, 742 F. Supp. 13 444 United States v. Alvarado, 923 F. 2d 253 940 United States v. Arnold, Schwinn & Co., 388 U.S. 365 843, 844 United States v. Bascaro, 742 F. 2d 1335 894, 936 United States v. Bass, 404 U.S. 336 109 United States v. Benefield, 889 F. 2d 1061 1016 United States v. Beros, 833 F. 2d 455 634 United States v. Chandler, 744 F. Supp. 333 441, 442, 444 United States v. Chester, 919 F. 2d 896 151 United States v. Coleman, 707 F. 2d 374 936 United States v. Collins, 25 F. Cas. 545 (No. 14,836) 976 United States v. Cothran, 729 F. Supp. 153 444, 447 United States v. Dean, 908 F. 2d 1491 151 United States v. DeFiore, 720 F. 2d 757 928, 940 United States v. Diaz-Villafane, 874 F. 2d 43 151 United States v. DiFrancesco, 449 U.S. 117 822 TABLE OF CASES CITED LXV Page United States v. Doerr, 886 F. 2d 944 584 United States v. Donnelly’s Estate, 397 U.S. 286 535, 540, 544 United States v. Doremus, 888 F. 2d 630 899 United States v. Duncan, 850 F. 2d 1104 634 United States v. Eichman, 496 U.S. 310 577 United States v. Felder, 732 F. Supp. 204 444, 447 United States v. Fields, 909 F. 2d 470 442 United States v. Figueroa, 818 F. 2d 1020 936 United States v. Fisher, 2 Cranch 358 611 United States v. Flowers, 912 F. 2d 707 440-442 United States v. Ford, 824 F. 2d 1430 928, 940, 950 United States v. Frady, 456 U.S. 152 954 United States v. France, 495 U.S. 903; 498 U.S. 335 927 United States v. France, 886 F. 2d 223 940 United States v. Frankfort Distilleries, Inc., 324 U.S. 293 555 United States v. Gagnon, 470 U.S. 522 936 United States v. Garcia, 848 F. 2d 1324 954 United States v. Germaine, 99 U.S. 508 881, 886, 917, 918 United States v. Gipson, 553 F. 2d 453 634, 635 United States v. Gouveia, 467 U.S. 180 175, 178 United States v. Grace, 461 U.S. 171 593 United States v. Grayson, 438 U.S. 41 999, 1006 United States v. Hensley, 469 U.S. 221 1212 United States v. Hudson, 7 Cranch 32 43, 58, 975 Page United States v. International Boxing Club of N. Y., Inc., 348 U.S. 236 834 United States v. Jenkins, 420 U.S. 358 829 United States v. Johnson, 457 U.S. 537 536 United States v. Jones, 336 U.S. 641 101 United States v. Kagama, 118 U.S. 375 791 United States v. Lara, 905 F. 2d 599 151 United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33 898 United States v. Lewis, 287 U.S. App. D. C. 306 440-442 United States v. Lewis, 728 F. Supp. 784 444 United States v. Madison, 936 F. 2d 90 440, 441 United States v. Madison, 744 F. Supp. 490 444 United States v. Maragh, 282 U.S. App. D. C. 256 446 United States v. Mark, 742 F. Supp. 17 444 United States v. Marren, 890 F. 2d 924 584 United States v. Martinez- Torres, 912 F. 2d 1552 940 United States v. Menasche, 348 U.S. 528 112 United States v. Mendenhall, 446 U.S. 544 435, 446, 448, 1003 United States v. Miller, 471 U.S. 130 829 United States v. Minnesota, 270 U.S. 181 783, 793 United States v. Mouat, 124 U.S. 303 902 United States v. Munsingwear, Inc., 340 U.S. 36 1247 United States v. Murillo, 902 F. 2d 1169 151 United States v. Musacchia, 900 F. 2d 493 925, 926, 933 United States v. National Dairy Products Corp., 372 U.S. 29 1079 LXVI TABLE OF CASES CITED Page United States v. Nuno-Para, 877 F. 2d 1409 132 United States v. O’Brien, 391 U.S. 367 566, 567, 570, 571, 576, 577, 579, 582, 583, 585-591, 596 United States v. One Assort- ment of 89 Firearms, 465 U.S. 354 829 United States v. Otero, 868 F. 2d 1412 132 United States v. Palta, 880 F. 2d 636 132 United States v. Paradise, 480 U.S. 149 851 United States v. Peacock, 761 F. 2d 1313 934, 939 United States v. Peterson, 768 F. 2d 64 634 United States v. Public Utili- ties Comm’n of Cal., 345 U.S. 295 622 United States v. Raddatz, 447 U.S. 667 937, 939, 951, 952 United States v. Raines, 362 U.S. 17 330 United States v. Rembert, 694 F. Supp. 163 442 United States v. Rivera-Sola, 713 F. 2d 866 928, 940 United States v. Rodriguez, 882 F. 2d 1059 151 United States v. Ron Pair Enterprises, Inc., 489 U.S. 235 404 United States v. Russell, 917 F. 2d 512 151 United States v. Ryan, 866 F. 2d 604 151 United States v. Salvucci, 448 U.S. 83 829 United States v. Savage, 888 F. 2d 528 1016 United States v. Scott, 437 U.S. 82 829 United States v. Serhant, 740 F. 2d 548 836 United States v. Singleton, 917 F. 2d 411 151 United States v. Smith, 499 U.S. 160 87, 100 Page United States v. Socony-Vacuum Oil Co., 310 U.S. 150 894 United States v. Sullivan, 895 F. 2d 1030 1016 United States v. Texas, 143 U.S. 621 780, 782, 793 United States v. Title Ins. & Trust Co., 265 U.S. 472 828 United States v. Trans- Missouri Freight Assn., 166 U.S. 290 622 United States v. Trice, 864 F. 2d 1421 950 United States v. Tucker, 404 U.S. 443 153, 821 United States v. Tully, 28 F. Cas. 226 (No. 16,545) 981 United States v. Turley, 352 U.S. 407 108 United States v. UCO Oil Co., 546 F. 2d 833 633, 636 United States v. United States Gypsum Co., 333 U.S. 364 1080 United States v. Utah Constr. & Mining Co., 384 U.S. 394 107, 114 United States v. Utah, Nev. & Cal. Storage Co., 199 U.S. 414 246 United States v. Wey, 895 F. 2d 429 933, 940, 953 United States v. Whitehorse, 909 F. 2d 316 151 United States v. Whitten, 706 F. 2d 1000 894 United States v. Will, 449 U.S. 200 950 United States v. Williams, 901 F. 2d 1394 151 United States v. Williams, No. l:89CR0135 (ND Ohio) 441 United States v. Young, 470 U.S. 1 954 United States ex rel. Espinoza v. Fairman, 813 F. 2d 117 189 United States Parole Comm’n v. Geraghty, 445 U.S. 388 126 TABLE OF CASES CITED LXVII Page U. S. Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114 333 United States Trust Co. of N. Y. v. New Jersey, 431 U.S. 1 979 United Steelworkers of America v. Fort Pitt Steel Casting, Div. of Conval-Penn, 598 F. 2d 1273 208 Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575 44, 46 University of Pa. v. EEOC, 493 U.S. 182 670 University of Tenn. v. Elliott, 478 U.S. 788 108-110, 112 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 700 Valentine v. Chrestensen, 316 U.S. 52 828 Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464 126, 955 Vance v. Bradley, 440 U.S. 93 470-473 Vandersluis v. Weil, 176 Conn. 353 21 Vasquez v. Hillery, 474 U.S. 254 827, 853 Vaughn v. Vaughn, 215 Va. 328 740 Village. See name of village. Virginia, Ex parte, 100 U.S. 339 760, 767 Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083 894 Virginia Electric & Power Co. v. NLRB, 319 U.S. 533 202 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 319, 326, 330, 337, 347, 828 Virgin Islands v. Williams, 892 F. 2d 305 928, 929, 933-935, 940 Volk v. D. A. Davidson & Co., 816 F. 2d 1406 370 Vulcan Metals Co. v. Simmons Mfg. Co., 248 F. 853 1094, 1110 Page Wainwright v. Sykes, 433 U.S. 72 730, 746, 747, 749, 751, 765, 801, 895 Wainwright v. Toma, 455 U.S. 586 752 Walker v. Mitchell, 224 Va. 568 755 Walker v. Sauvinet, 92 U.S. 90 652 Wallace v. Parker, 6 Pet. 680 612, 622 Walters v. National Assn, of Radiation Survivors, 473 U.S. 305 152 Walton v. Arizona, 497 U.S. 639 833, 978, 1263, 1264 Waltreus, In re, 62 Cal. 2d 218 800, 805, 806 Wamsganz v. Boatmen’s Bank of De Soto, 804 F. 2d 503 159, 161 Ward v. Board of Comm’rs of Love County, 253 U.S. 17 761 Ward v. Rock Against Racism, 491 U.S. 781 566 Warren Brothers Co. v. Cardi Corp., 471 F. 2d 1304 208 Warth v. Seldin, 422 U.S. 490 126, 264, 316 Washbum v. Wright, 261 Cal. App. 2d 789 510 Wasman v. United States, 468 U.S. 559 153 Webster v. Doe, 486 U.S. 592 955 Webster v. Reproductive Health Services, 492 U.S. 490 323, 346 Weems v. United States, 217 U.S. 349 963, 964, 990-993, 997, 999-1001, 1005, 1012, 1015, 1019 Wehling v. Columbia Broadcasting System, 721 F. 2d 506 517 Weinberger v. Romero- Barcelo, 456 U.S. 305 47, 63 Welch v. Texas Dept, of Highways and Public Transportation, 483 U.S. 468 779, 789, 829, 842 LX Vili TABLE OF CASES CITED Page Wellman v. Faulkner, 715 F. 2d 269 304, 311 Wells v. Edwards, 409 U.S. 1095 390, 402, 403 Wells v. Edwards, 347 F. Supp. 453 389, 411, 415 Western Air Lines, Inc. v. Criswell, 472 U.S. 400 475 West Virginia ex rei. Ranger Fuel Corp. v. Lilly, 165 W. Va. 98 208 West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83 139, 404 Whitcomb v. Chavis, 403 U.S. 124 397, 398, 412, 414 White v. General Motors Corp., 908 F. 2d 675 55 White v. Regester, 412 U.S. 755 390, 394, 395, 397, 398, 403, 412, 414 Whitley v. Albers, 475 U.S. 312 298, 302, 303, 305, 309, 310 Whitney v. California, 274 U.S. 357 1039 Whitten v. Georgia, 47 Ga. 297 984 Will v. Michigan Dept, of State Police, 491 U.S. 58 411, 461, 476, 785 Williams v. Florida, 399 U.S. 78 821 Williams v. Illinois, 399 U.S. 235 643 Williams v. New York, 337 U.S. 241 821, 857, 858, 999 Williams v. Rhodes, 393 U.S. 23 347 Williams v. Sinclair, 529 F. 2d 1383 370 Williams v. United States, 289 U.S. 553 889, 890, 913 Williams v. United States, 458 U.S. 279 407 Williams v. Vermont, 472 U.S. 14 539 Wilson v. Garcia, 471 U.S. 261 355, 357, 375, 378 Page Wilson v. Iseminger, 185 U.S. 55 372, 373 Winshall Settlor’s Trust, In re, 758 F. 2d 1136 160 Winship, In re, 397 U.S. 358 636, 638, 639, 652, 656, 658, 860 Winters v. New York, 333 U.S. 507 568, 573 Wolff v. McDonnell, 418 U.S. 539 146 Wong Sun v. United States, 371 U.S. 471 447 Wong Yang Sung v. McGrath, 339 U.S. 33 138 Wood v. Georgia, 370 U.S. 375 1037, 1069, 1073 Woodson v. North Carolina, 428 U.S. 280 818, 822, 837, 847, 855, 975, 995 Worcester v. Georgia, 6 Pet. 515 791, 792, 795 Wright v. Rushen, 642 F. 2d 1129 304 Yakus v. United States, 321 U.S. 414 751, 894, 936 Ylst v. Nunnemaker, 501 U.S. 797 769-771 Youghiogheny & Ohio Coal Co. v. Milliken, 866 F. 2d 195 694, 695 Young v. American Mini Theatres, Inc., 427 U.S. 50 584, 587 Young v. Margiotta, 136 Conn. 429 7 Young v. Miller, 883 F. 2d 1276 1024 Young v. United States ex rel. Vuitton et Fils, S. A., 481 U.S. 787 44, 57, 60, 64 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 276, 890 Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 669, 674, 677 Zaldivar v. Los Angeles, 780 F. 2d 823 49, 50 TABLE OF CASES CITED LXIX Page Page Zant v. Stephens, 462 U.S. 862 818, 845, 858 Ziffrin, Inc. v. Reeves, 308 U.S. 132 555 Zimmer v. McKeithen, 485 F. 2d 1297 427 Zinermon v. Burch, 494 U.S. 113 852 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1990 CONNECTICUT et al. v. DOEHR CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 90-143. Argued January 7, 1991—Decided June 6, 1991 A Connecticut statute authorizes a judge to allow the prejudgment attachment of real estate without prior notice or hearing upon the plaintiff’s verification that there is probable cause to sustain the validity of his or her claim. Petitioner DiGiovanni applied to the State Superior Court for such an attachment on respondent Doehr’s home in conjunction with a civil action for assault and battery that he was seeking to institute against Doehr in the same court. The application was supported by an affidavit in which DiGiovanni, in five one-sentence paragraphs, stated that the facts set forth in his previously submitted complaint were true; declared that the assault by Doehr resulted in particular injuries requiring expenditures for medical care; and stated his “opinion” that the foregoing facts were sufficient to establish probable cause. On the strength of these submissions, the judge found probable cause and ordered the attachment. Only after the sheriff attached the property did Doehr receive notice of the attachment, which informed him of his right to a postattachment hearing. Rather than pursue this option, he filed a suit in the Federal District Court, claiming that the statute violated the Due Process Clause of the Fourteenth Amendment. That court upheld the statute, but the Court of Appeals reversed, concluding that the statute violated due process because, inter alia, it permitted ex parte attachment absent a showing of extraordinary circumstances, see, e. g., Mitchell n. W. T. Grant Co., 416 U. S. 600, and the nature of the issues at stake in this case increased the risk that attachment was wrongfully 1 2 OCTOBER TERM, 1990 Syllabus 501 U. S. granted, since the fact-specific event of a fist fight and the question of assault are complicated matters that do not easily lend themselves to documentary proof, see id., at 609-610. Held: The judgment is affirmed. 898 *F. 2d 852, affirmed. Justice White delivered the opinion of the Court with respect to Parts I, II, and III, concluding that: 1. Determining what process must be afforded by a state statute enabling an individual to enlist the State’s aid to deprive another of his or her property by means of a prejudgment attachment or similar procedure requires (1) consideration of the private interest that will be affected by the prejudgment measure; (2) an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and (3) principal attention to the interest of the party seeking the prejudgment remedy, with due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections. Cf. Mathews v. Eldridge, 424 U. S. 319, 335. Pp. 9-11. 2. Application of the Mathews factors demonstrates that the Connecticut statute, as applied to this case, violates due process by authorizing prejudgment attachment without prior notice and a hearing. Pp. 11-18. (a) The interests affected are significant for a property owner like Doehr, since attachment ordinarily clouds title; impairs the ability to sell or otherwise alienate the property; taints any credit rating; reduces the chance of obtaining a home equity loan or additional mortgage; and can even place an existing mortgage in technical default where there is an insecurity clause. That these effects do not amount to a complete, physical, or permanent deprivation of real property is irrelevant, since even the temporary or partial impairments to property rights that such encumbrances entail are sufficient to merit due process protection. See, e. g., Peralta v. Heights Medical Center, Inc., 485 U. S. 80, 85. Pp. 11-12. (b) Without preattachment notice and a hearing, the risk of erroneous deprivation that the State permits here is too great to satisfy due process under any of the interpretations of the statutory “probable cause” requirement offered by the parties. If the statute merely demands inquiry into the sufficiency of the complaint, or, still less, the plaintiff’s good-faith belief that the complaint is sufficient, the judge could authorize deprivation of the defendant’s property when the claim would fail to convince a jury, when it rested on factual allegations that were sufficient to state a cause of action but which the defendant would dispute, or in the case of a good-faith standard, even when the complaint failed to state a claim upon which relief could be granted. Even if the CONNECTICUT v. DOEHR 3 1 Syllabus provision requires a finding of probable cause to believe that judgment will be rendered in the plaintiff’s favor, the reviewing judge in a case like this could make no realistic assessment based on the plaintiff’s one-sided, self-serving, and conclusory affidavit and complaint, particularly since the issue does not concern ordinarily uncomplicated matters like the existence of a debt or delinquent payments that lend themselves to documentary proof. See Mitchell, supra, at 609. Moreover, the safeguards that the State does afford—an “expeditious” postattachment notice and an adversary hearing, judicial review of an adverse decision, and a double damages action if the original suit is commenced without probable cause—do not adequately reduce the risk of erroneous deprivation under Mitchell, since none of the additional factors that diminished the need for a predeprivation hearing in that case—that the plaintiff had a vendor’s lien to protect, that the likelihood of recovery involved uncomplicated, documentable matters, and that the plaintiff was required to post a bond—is present here. Although a later hearing might negate the presence of probable cause, this would not cure the temporary deprivation that an earlier hearing might have prevented. Pp. 12-15. (c) The interests in favor of an ex parte attachment, particularly DiGiovanni’s interests, are too minimal to justify the burdening of Doehr’s ownership rights without a hearing to determine the likelihood of recovery. Although DiGiovanni had no existing interest in Doehr’s real estate when he sought the attachment, and his only interest was to ensure the availability of assets to satisfy his judgment if he prevailed on the merits of his action, there were no allegations that Doehr was about to transfer or encumber his real estate or take any other action during the pendency of the suit that would render his property unavailable to satisfy a judgment. Absent such allegations, there was no exigent circumstance permitting the postponement of notice or hearing until after the attachment was effected. Moreover, the State’s substantive interest in protecting DiGiovanni’s de minimis rights cannot be any more weighty than those rights themselves, and the State cannot seriously plead additional financial or administrative burdens involving predeprivation hearings when it already claims to provide an immediate postdeprivation hearing. P. 16. 3. Historical and contemporary practices support the foregoing analysis. Attachment measures in both England and this country have traditionally had several limitations that reduced the risk of erroneous deprivation, including requirements that the defendant had taken or threatened some action that would place satisfaction of the plaintiff’s potential award in jeopardy, that the plaintiff be a creditor, as opposed to the victim of a tort, and that the plaintiff post a bond. Moreover, a survey of current state attachment provisions reveals that nearly every 4 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. State requires either a preattachment hearing, a showing of some exigent circumstance, or both, before permitting an attachment to take place. Although the States for the most part no longer confine attachments to creditor claims, this development only increases the importance of the other limitations. Pp. 16-18. White, J., delivered the opinion for a unanimous Court with respect to Parts I and III, the opinion of the Court with respect to Part II, in which Rehnquist, C. J., and Marshall, Blackmun, Stevens, O’Connor, Kennedy, and Souter, JJ., joined, and an opinion with respect to Parts IV and V, in which Marshall, Stevens, and O’Connor, JJ., joined. Rehnquist, C. J., filed an opinion concurring in part and concurring in the judgment, in which Blackmun, J., joined, post, p. 26. Scalia, J., filed an opinion concurring in part and concurring in the judgment, post, p. 30. Henry S. Cohn, Assistant Attorney General of Connecticut, argued the cause for petitioners. With him on the briefs were Clarine Nardi Riddle, Attorney General, Arnold B. Feigin and Carolyn K. Querijero, Assistant Attorneys General, and Andrew M. Calamari. Joanne S. Faulkner argued the cause for respondent. With her on the brief were Brian Wolfman and Alan B. Morrison. * Justice White delivered an opinion, Parts I, II, and III of which are the opinion of the Court.! This case requires us to determine whether a state statute that authorizes prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances, and without a requirement that the person seeking the attachment post a bond, satisfies the Due Process Clause of the Fourteenth Amendment. We hold that, as applied to this case, it does not. * Allan B. Taylor, James J. Tancredi, and Kirk D. Tavtigian, Jr., filed a brief for the Connecticut Bankers Association et al. as amici curiae urging reversal. IThe Chief Justice, Justice Blackmun, Justice Kennedy, and Justice Souter join Parts I, II, and III of this opinion, and Justice Scalia joins Parts I and III. CONNECTICUT v. DOEHR 5 1 Opinion of the Court I On March 15, 1988, petitioner John F. DiGiovanni submitted an application to the Connecticut Superior Court for an attachment in the amount of $75,000 on respondent Brian K. Doehr’s home in Meriden, Connecticut. DiGiovanni took this step in conjunction with a civil action for assault and battery that he was seeking to institute against Doehr in the same court. The suit did not involve Doehr’s real estate, nor did DiGiovanni have any pre-existing interest either in Doehr’s home or any of his other property. Connecticut law authorizes prejudgment attachment of real estate without affording prior notice or the opportunity for a prior hearing to the individual whose property is subject to the attachment. The State’s prejudgment remedy statute provides, in relevant part: “The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff’s claims and (1) that the prejudgment remedy requested is for an attachment of real property . ...” Conn. Gen. Stat. §52-278e (1991).1 1 The complete text of § 52-278e reads: “Allowance of prejudgment remedy without hearing. Notice to defendant. Subsequent hearing and order. Attachment of real property of municipal officers, (a) The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff’s claim and (1) that the prejudgment remedy requested is for an attachment of real property; or (2) that there is reasonable likelihood that the defendant (A) neither resides in nor maintains an office or place of business in this state and is not otherwise subject to jurisdiction over his person by the court, or (B) has hidden or will hide himself so that process cannot be served on him or (C) is about to remove himself or his property from this state or (D) is about to fraudulently dispose of 6 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. The statute does not require the plaintiff to post a bond to insure the payment of damages that the defendant may suffer should the attachment prove wrongfully issued or the claim prove unsuccessful. As required, DiGiovanni submitted an affidavit in support of his application. In five one-sentence paragraphs, DiGiovanni stated that the facts set forth in his previously submitted complaint were true; that “I was willfully, wantonly and maliciously assaulted by the defendant, Brian K. Doehr”; that “[s]aid assault and battery broke my left wrist and further caused an ecchymosis to my right eye, as well as other injuries”; and that “I have further expended sums of money or has fraudulently disposed of any of his property with intent to hinder, delay or defraud his creditors or (E) has fraudulently hidden or withheld money, property or effects which should be liable to the satisfaction of his debts or (F) has stated he is insolvent or has stated he is unable to pay his debts as they mature. “(b) If a prejudgment remedy is granted pursuant to this section, the plaintiff shall include in the process served on the defendant the following notice prepared by the plaintiff: YOU HAVE RIGHTS SPECIFIED IN THE CONNECTICUT GENERAL STATUTES, INCLUDING CHAPTER 903a, WHICH YOU MAY WISH TO EXERCISE CONCERNING THIS PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE: (1) THE RIGHT TO A HEARING TO OBJECT TO THE PREJUDGMENT REMEDY FOR LACK OF PROBABLE CAUSE TO SUSTAIN THE CLAIM; (2) THE RIGHT TO A HEARING TO REQUEST THAT THE PREJUDGMENT REMEDY BE MODIFIED, VACATED OR DISMISSED OR THAT A BOND BE SUBSTITUTED; AND (3) THE RIGHT TO A HEARING AS TO ANY PORTION OF THE PROPERTY ATTACHED WHICH YOU CLAIM IS EXEMPT FROM EXECUTION. “(c) The defendant appearing in such action may move to dissolve or modify the prejudgment remedy granted pursuant to this section in which event the court shall proceed to hear and determine such motion expeditiously. If the court determines at such hearing requested by the defendant that there is probable cause to sustain the validity of the plaintiff’s claim, then the prejudgment remedy granted shall remain in effect. If the court determines there is no such probable cause, the prejudgment remedy shall be dissolved. An order shall be issued by the court setting forth the action it has taken.” CONNECTICUT v. DOEHR 7 1 Opinion of the Court for medical care and treatment.” App. 24A. The affidavit concluded with the statement, “In my opinion, the foregoing facts are sufficient to show that there is probable cause that judgment will be rendered for the plaintiff.” Ibid. On the strength of these submissions the Superior Court Judge, by an order dated March 17, found “probable cause to sustain the validity of the plaintiff’s claim” and ordered the attachment on Doehr’s home “to the value of $75,000.” The sheriff attached the property four days later, on March 21. Only after this did Doehr receive notice of the attachment. He also had yet to be served with the complaint, which is ordinarily necessary for an action to commence in Connecticut. Young n. Margiotta, 136 Conn. 429, 433, 71 A. 2d 924, 926 (1950). As the statute further required, the attachment notice informed Doehr that he had the right to a hearing: (1) to claim that no probable cause existed to sustain the claim; (2) to request that the attachment be vacated, modified, or dismissed or that a bond be substituted; or (3) to claim that some portion of the property was exempt from execution. Conn. Gen. Stat. §52-278e(b) (1991). Rather than pursue these options, Doehr filed suit against DiGiovanni in Federal District Court, claiming that § 52-278e (a)(1) was unconstitutional under the Due Process Clause of the Fourteenth Amendment.2 The District Court upheld the statute and granted summary judgment in favor of DiGiovanni. Pinsky v. Duncan, 716 F. Supp. 58 (Conn. 1989). On appeal, a divided panel of the United States Court of Appeals for the Second Circuit reversed. Pinsky v. Duncan, 898 F. 2d 852 (1990).3 Judge Pratt, who wrote the opinion 2 Three other plaintiffs joined Doehr, challenging § 52-278e(a)(l) out of separate instances of attachment by different defendants. These other plaintiffs and defendants did not participate in the Court of Appeals and are no longer parties in this case. 8 The Court of Appeals invited Connecticut to intervene pursuant to 28 U. S. C. § 2403(b) after oral argument. The State elected to intervene in the appeal and has fully participated in the proceedings before this Court. 8 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. for the court, concluded that the Connecticut statute violated due process in permitting ex parte attachment absent a showing of extraordinary circumstances. “The rule to be derived from Sniadach n. Family Finance Corp, of Bay View, 395 U. S. 337 (1969), and its progeny, therefore, is not that postattachment hearings are generally acceptable provided that plaintiff files a factual affidavit and that a judicial officer supervises the process, but that a prior hearing may be postponed where exceptional circumstances justify such a delay, and where sufficient additional safeguards are present.” Id., at 855. This conclusion was deemed to be consistent with our decision in Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974), because the absence of a preattachment hearing was approved in that case based on the presence of extraordinary circumstances. A further reason to invalidate the statute, the court ruled, was the highly factual nature of the issues in this case. In Mitchell, there were “uncomplicated matters that len[t] themselves to documentary proof” and “[t]he nature of the issues at stake minimize[d] the risk that the writ [would] be wrongfully issued by a judge.” Id., at 609-610. Similarly, in Mathews v. Eldridge, 424 U. S. 319, 343-344 (1976), where an evidentiary hearing was not required prior to the termination of disability benefits, the determination of disability was “sharply focused and easily documented.” Judge Pratt observed that in contrast the present case involved the factspecific event of a fist fight and the issue of assault. He doubted that the judge could reliably determine probable cause when presented with only the plaintiff’s version of the altercation. “Because the risk of a wrongful attachment is considerable under these circumstances, we conclude that dispensing with notice and opportunity for a hearing until after the attachment, without a showing of extraordinary circumstances, violates the requirements of due process.” 898 F. 2d, at 856. Judge Pratt went on to conclude that in his view, the statute was also constitutionally infirm for its fail CONNECTICUT v. DOEHR 9 1 Opinion of the Court ure to require the plaintiff to post a bond for the protection of the defendant in the event the attachment was ultimately found to have been improvident. Judge Mahoney was also of the opinion that the statutory provision for attaching real property in civil actions, without a prior hearing and in the absence of extraordinary circumstances, was unconstitutional. He disagreed with Judge Pratt’s opinion that a bond was constitutionally required. Judge Newman dissented from the holding that a hearing prior to attachment was constitutionally required and, like Judge Mahoney, disagreed with Judge Pratt on the necessity for a bond. The dissent’s conclusion accorded with the views of the Connecticut Supreme Court, which had previously upheld §52-278e(b) in Fermont Division, Dynamics Corp, of America v. Smith, 178 Conn. 393, 423 A. 2d 80 (1979). We granted certiorari to resolve the conflict of authority. 498 U. S. 809 (1990). II With this case we return to the question of what process must be afforded by a state statute enabling an individual to enlist the aid of the State to deprive another of his or her property by means of the prejudgment attachment or similar procedure. Our cases reflect the numerous variations this type of remedy can entail. In Sniadach v. Family Finance Corp, of Bay View, 395 U. S. 337 (1969), the Court struck down a Wisconsin statute that permitted a creditor to effect prejudgment garnishment of wages without notice and prior hearing to the wage earner. In Fuentes v. Shevin, 407 U. S. 67 (1972), the Court likewise found a due process violation in state replevin provisions that permitted vendors to have goods seized through an ex parte application to a court clerk and the posting of a bond. Conversely, the Court upheld a Louisiana ex parte procedure allowing a lienholder to have disputed goods sequestered in Mitchell v. W. T. Grant Co., supra. Mitchell, however, carefully noted that Fuentes was 10 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. decided against “a factual and legal background sufficiently different. . . that it does not require the invalidation of the Louisiana sequestration statute.” Id., at 615. Those differences included Louisiana’s provision of an immediate postdeprivation hearing along with the option of damages; the requirement that a judge rather than a clerk determine that there is a clear showing of entitlement to the writ; the necessity for a detailed affidavit; and an emphasis on the lienholder’s interest in preventing waste or alienation of the encumbered property. Id., at 615-618. In North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975), the Court again invalidated an ex parte garnishment statute that not only failed to provide for notice and prior hearing but also failed to require a bond, a detailed affidavit setting out the claim, the determination of a neutral magistrate, or a prompt postdeprivation hearing. Id., at 606-608. These cases “underscore the truism that ‘“[d]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’” Mathews v. Eldridge, supra, at 334 (quoting Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 895 (1961)). In Mathews, we drew upon our prejudgment remedy decisions to determine what process is due when the government itself seeks to effect a deprivation on its own initiative. 424 U. S., at 334. That analysis resulted in the now familiar threefold inquiry requiring consideration of “the private interest that will be affected by the official action”; “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards”; and lastly “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id., at 335. Here the inquiry is similar, but the focus is different. Prejudgment remedy statutes ordinarily apply to disputes between private parties rather than between an individual and CONNECTICUT v. DOEHR 11 1 Opinion of the Court the government. Such enactments are designed to enable one of the parties to “make use of state procedures with the overt, significant assistance of state officials,” and they undoubtedly involve state action “substantial enough to implicate the Due Process Clause.” Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478, 486 (1988). Nonetheless, any burden that increasing procedural safeguards entails primarily affects not the government, but the party seeking control of the other’s property. See Fuentes v. Shevin, supra, at 99-101 (White, J., dissenting). For this type of case, therefore, the relevant inquiry requires, as in Mathews, first, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and third, in contrast to Mathews, principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections. We now consider the Mathews factors in determining the adequacy of the procedures before us, first with regard to the safeguards of notice and a prior hearing, and then in relation to the protection of a bond. Ill We agree with the Court of Appeals that the property interests that attachment affects are significant. For a property owner like Doehr, attachment ordinarily clouds title; impairs the ability to sell or otherwise alienate the property; taints any credit rating; reduces the chance of obtaining a home equity loan or additional mortgage; and can even place an existing mortgage in technical default where there is an insecurity clause. Nor does Connecticut deny that any of these consequences occurs. 12 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Instead, the State correctly points out that these effects do not amount to a complete, physical, or permanent deprivation of real property; their impact is less than the perhaps temporary total deprivation of household goods or wages. See Sniadach, supra, at 340; Mitchell, 416 U. S., at 613. But the Court has never held that only such extreme deprivations trigger due process concern. See Buchanan n. War ley, 245 U. S. 60, 74 (1917). To the contrary, our cases show that even the temporary or partial impairments to property rights that attachments, liens, and similar encumbrances entail are sufficient to merit due process protection. Without doubt, state procedures for creating and enforcing attachments, as with liens, “are subject to the strictures of due process.” Peralta v. Heights Medical Center, Inc., 485 U. S. 80, 85 (1988) (citing Mitchell, supra, at 604; Hodge v. Muscatine County, 196 U. S. 276, 281 (1905)).4 We also agree with the Court of Appeals that the risk of erroneous deprivation that the State permits here is substantial. By definition, attachment statutes premise a deprivation of property on one ultimate factual contingency—the award of damages to the plaintiff which the defendant may not be able to satisfy. See Ownbey v. Morgan, 256 U. S. 94, 104-105 (1921); R. Thompson & J. Sebert, Remedies: Damages, Equity and Restitution § 5.01 (1983). For attachments 4Our summary affirmance in Spielman-Fond, Inc. v. Hanson’s, Inc., 417 U. S. 901 (1974), does not control. In Spielman-Fond, the District Court held that the filing of a mechanic’s lien did not amount to the taking of a significant property interest. 379 F. Supp. 997, 999 (Ariz. 1973) (three-judge court) (per curiam). A summary disposition does not enjoy the full precedential value of a case argued on the merits and disposed of by a written opinion. Edelman v. Jordan, 415 U. S. 651, 671 (1974). The facts of Spielman-Fond presented an alternative basis for affirmance in any event. Unlike the case before us, the mechanic’s lien statute in Spielman-Fond required the creditor to have a pre-existing interest in the property at issue. 379 F. Supp., at 997. As we explain below, a heightened plaintiff interest in certain circumstances can provide a ground for upholding procedures that are otherwise suspect. Infra, at 15. CONNECTICUT v. DOEHR 13 1 Opinion of the Court before judgment, Connecticut mandates that this determination be made by means of a procedural inquiry that asks whether “there is probable cause to sustain the validity of the plaintiff’s claim.” Conn. Gen. Stat. §52-278e(a) (1991). The statute elsewhere defines the validity of the claim in terms of the likelihood “that judgment will be rendered in the matter in favor of the plaintiff.” Conn. Gen. Stat. §52-278c(a)(2) (1991); Ledgebrook Condominium Assn. v. Lusk Corp., 172 Conn. 577, 584, 376 A. 2d 60, 63-64 (1977). What probable cause means in this context, however, remains obscure. The State initially took the position, as did the dissent below, that the statute requires a plaintiff to show the objective likelihood of the suit’s success. Brief for Petitioners 12; Pinsky, 898 F. 2d, at 861-862 (Newman, J., dissenting). Doehr, citing ambiguous state cases, reads the provision as requiring no more than that a plaintiff demonstrate a subjective good-faith belief that the suit will succeed. Brief for Respondent 25-26. Ledgebrook Condominium Assn., supra, at 584, 376 A. 2d, at 63-64; Anderson v. Nedovich, 19 Conn. App. 85, 88, 561 A. 2d 948, 949 (1989). At oral argument, the State shifted its position to argue that the statute requires something akin to the plaintiff stating a claim with sufficient facts to survive a motion to dismiss. We need not resolve this confusion since the statute presents too great a risk of erroneous deprivation under any of these interpretations. If the statute demands inquiry into the sufficiency of the complaint, or, still less, the plaintiff’s good-faith belief that the complaint is sufficient, requirement of a complaint and a factual affidavit would permit a court to make these minimal determinations. But neither inquiry adequately reduces the risk of erroneous deprivation. Permitting a court to authorize attachment merely because the plaintiff believes the defendant is liable, or because the plaintiff can make out a facially valid complaint, would permit the deprivation of the defendant’s property when the claim would fail to convince a jury, when it rested on factual allegations 14 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. that were sufficient to state a cause of action but which the defendant would dispute, or in the case of a mere good-faith standard, even when the complaint failed to state a claim upon which relief could be granted. The potential for unwarranted attachment in these situations is self-evident and too great to satisfy the requirements of due process absent any countervailing consideration. Even if the provision requires the plaintiff to demonstrate, and the judge to find, probable cause to believe that judgment will be rendered in favor of the plaintiff, the risk of error was substantial in this case. As the record shows, and as the State concedes, only a skeletal affidavit need be, and was, filed. The State urges that the reviewing judge normally reviews the complaint as well, but concedes that the complaint may also be conclusory. It is self-evident that the judge could make no realistic assessment concerning the likelihood of an action’s success based upon these one-sided, selfserving, and conclusory submissions. And as the Court of Appeals said, in a case like this involving an alleged assault, even a detailed affidavit would give only the plaintiff’s version of the confrontation. Unlike determining the existence of a debt or delinquent payments, the issue does not concern “ordinarily uncomplicated matters that lend themselves to documentary proof.” Mitchell, 416 U. S., at 609. The likelihood of error that results illustrates that “fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights .... [And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 170-172 (1951) (Frankfurter, J., concurring). What safeguards the State does afford do not adequately reduce this risk. Connecticut points out that the statute also provides an “expeditiou[s]” postattachment adversary hear- CONNECTICUT v. DOEHR 15 Opinion of the Court ing, § 52-278e(c);5 notice for such a hearing, §52-278e(b); judicial review of an adverse decision, § 52-2781(a); and a double damages action if the original suit is commenced without probable cause, § 52-568(a)(l). Similar considerations were present in Mitchell, where we upheld Louisiana’s sequestration statute despite the lack of predeprivation notice and hearing. But in Mitchell, the plaintiff had a vendor’s lien to protect, the risk of error was minimal because the likelihood of recovery involved uncomplicated matters that lent themselves to documentary proof, 416 U. S., at 609-610, and the plaintiff was required to put up a bond. None of these factors diminishing the need for a predeprivation hearing is present in this case. It is true that a later hearing might negate the presence of probable cause, but this would not cure the temporary deprivation that an earlier hearing might have prevented. “The Fourteenth Amendment draws no bright lines around three-day, 10-day or 50-day deprivations of property. Any significant taking of property by the State is within the purview of the Due Process Clause.” Fuentes, 407 U. S., at 86. 5 The parties vigorously dispute whether a defendant can in fact receive a prompt hearing. Doehr contends that the State’s rules of practice prevent the filing of any motion—including a motion for the mandated postattachment hearing—until the return date on the complaint, which in this case was 30 days after service. Connecticut Practice Book § 114 (1988). Under state law at least 12 days must elapse between service on the defendant and the return date. Conn. Gen. Stat. § 52-46 (1991). The State counters that the postattachment hearing is available upon request. See Fermont Division, Dynamics Corp, of America v. Smith, 178 Conn. 393, 397-398, 423 A. 2d 80, 83 (1979) (“Most important, the statute affords to the defendant whose property has been attached the opportunity to obtain an immediate postseizure hearing at which the prejudgment remedy will be dissolved unless the moving party proves probable cause to sustain the validity of his claim”). We assume, without deciding, that the hearing is prompt. Even on this assumption, the State’s procedures fail to provide adequate safeguards against the erroneous deprivation of the property interest at stake. 16 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Finally, we conclude that the interests in favor of an ex parte attachment, particularly the interests of the plaintiff, are too minimal to supply such a consideration here. The plaintiff had no existing interest in Doehr’s real estate when he sought the attachment. His only interest in attaching the property was to ensure the availability of assets to satisfy his judgment if he prevailed on the merits of his action. Yet there was no allegation that Doehr was about to transfer or encumber his real estate or take any other action during the pendency of the action that would render his real estate unavailable to satisfy a judgment. Our cases have recognized such a properly supported claim would be an exigent circumstance permitting postponing any notice or hearing until after the attachment is effected. See Mitchell, supra, at 609; Fuentes, supra, at 90-92; Sniadach, 395 U. S., at 339. Absent such allegations, however, the plaintiff’s interest in attaching the property does not justify the burdening of Doehr’s ownership rights without a hearing to determine the likelihood of recovery. No interest the government may have affects the analysis. The State’s substantive interest in protecting any rights of the plaintiff cannot be any more weighty than those rights themselves. Here the plaintiff’s interest is de minimis. Moreover, the State cannot seriously plead additional financial or administrative burdens involving predeprivation hearings when it already claims to provide an immediate postdeprivation hearing. Conn. Gen. Stat. §§ 52-278e(b) and (c) (1991); Ferment, 178 Conn., at 397-398, 423 A. 2d, at 83. Historical and contemporary practices support our analysis. Prejudgment attachment is a remedy unknown at common law. Instead, “it traces its origin to the Custom of London, under which a creditor might attach money or goods of the defendant either in the plaintiff’s own hands or in the custody of a third person, by proceedings in the mayor’s court or in the sheriff’s court.” Ownbey, 256 U. S., at 104. Generally speaking, attachment measures in both England and this CONNECTICUT v. DOEHR 17 1 Opinion of the Court country had several limitations that reduced the risk of erroneous deprivation which Connecticut permits. Although attachments ordinarily did not require prior notice or a hearing, they were usually authorized only where the defendant had taken or threatened to take some action that would place the satisfaction of the plaintiff’s potential award in jeopardy. See C. Drake, Law of Suits by Attachment, §§40-82 (1866) (hereinafter Drake); 1 R. Shinn, Attachment and Garnishment §86 (1896) (hereinafter Shinn). Attachments, moreover, were generally confined to claims by creditors. Drake §§ 9-10; Shinn § 12. As we and the Court of Appeals have noted, disputes between debtors and creditors more readily lend themselves to accurate ex parte assessments of the merits. Tort actions, like the assault and battery claim at issue here, do not. See Mitchell, supra, at 609-610. Finally, as we will discuss below, attachment statutes historically required that the plaintiff post a bond. Drake §§114-183; Shinn § 153. Connecticut’s statute appears even more suspect in light of current practice. A survey of state attachment provisions reveals that nearly every State requires either a preattachment hearing, a showing of some exigent circumstance, or both, before permitting an attachment to take place. See Appendix to this opinion. Twenty-seven States, as well as the District of Columbia, permit attachments only when some extraordinary circumstance is present. In such cases, preattachment hearings are not required but postattachment hearings are provided. Ten States permit attachment without the presence of such factors but require prewrit hearings unless one of those factors is shown. Six States limit attachments to extraordinary circumstance cases, but the writ will not issue prior to a hearing unless there is a showing of some even more compelling condition.6 Three States always require a 6 One State, Pennsylvania, has not had an attachment statute or rule since the decision in Jonnet v. Dollar Savings Bank of New York City, 530 F. 2d 1123 (CA3 1976). 18 OCTOBER TERM, 1990 Opinion of White, J. 501 U. S. preattachment hearing. Only Washington, Connecticut, and Rhode Island authorize attachments without a prior hearing in situations that do not involve any purportedly heightened threat to the plaintiff’s interests. Even those States permit ex parte deprivations only in certain types of cases: Rhode Island does so only when the claim is equitable; Connecticut and Washington do so only when real estate is to be attached, and even Washington requires a bond. Conversely, the States for the most part no longer confine attachments to creditor claims. This development, however, only increases the importance of the other limitations. We do not mean to imply that any given exigency requirement protects an attachment from constitutional attack. Nor do we suggest that the statutory measures we have surveyed are necessarily free of due process problems or other constitutional infirmities in general. We do believe, however, that the procedures of almost all the States confirm our view that the Connecticut provision before us, by failing to provide a preattachment hearing without at least requiring a showing of some exigent circumstance, clearly falls short of the demands of due process. IV A Although a majority of the Court does not reach the issue, Justices Marshall, Stevens, O’Connor, and I deem it appropriate to consider whether due process also requires the plaintiff to post a bond or other security in addition to requiring a hearing or showing of some exigency.7 7 Ordinarily we will not address a contention advanced by a respondent that would enlarge his or her rights under a judgment, without the respondent filing a cross-petition for certiorari. E. g., Trans World Airlines, Inc. v. Thurston, 469 U. S. Ill, 119, n. 14 (1985). Here the Court of Appeals rejected Doehr’s argument that § 52-278e(a)(l) violates due process in failing to mandate a preattachment bond. Nonetheless, this case involves considerations that in the past have prompted us “to consider the question highlighted by respondent.” Berkemer v. McCarty, 468 CONNECTICUT v. DOEHR 19 1 Opinion of White, J. As noted, the impairments to property rights that attachments effect merit due process protection. Several consequences can be severe, such as the default of a homeowner’s mortgage. In the present context, it need only be added that we have repeatedly recognized the utility of a bond in protecting property rights affected by the mistaken award of prejudgment remedies. Di-Chem, 419 U. S., at 610, 611 (Powell, J., concurring in judgment); id., at 619 (Black-mun, J., dissenting); Mitchell, 416 U. S., at 606, n. 8. Without a bond, at the time of attachment, the danger that these property rights may be wrongfully deprived remains unacceptably high even with such safeguards as a hearing or exigency requirement. The need for a bond is especially apparent where extraordinary circumstances justify an attachment with no more than the plaintiff’s ex parte assertion of a claim. We have already discussed how due process tolerates, and the States generally permit, the otherwise impermissible chance of erroneously depriving the defendant in such situations in light of the heightened interest of the plaintiff. Until a postattachment hearing, however, a defendant has no protection against damages sustained where no extraordinary circumstance in fact existed or the plaintiff’s likelihood of recovery was nil. Such protection is what a bond can supply. Both the Court and its individual Members have repeatedly found the requirement of a bond to play an essential role in reducing what would have been too great a degree of risk in precisely this type of circumstance. Mitchell, U. S. 420, 435-436, n. 23 (1984). First, as our cases have shown, the notice and hearing question and the bond question are intertwined and can fairly be considered facets of the same general issue. Thus, “[w]ithout undue strain, the position taken by respondent before this Court. . . might be characterized as an argument in support of the judgment below” insofar as a discussion of notice and a hearing cannot be divorced from consideration of a bond. Ibid. Second, this aspect of prejudgment attachment “plainly warrants our attention, and with regard to which the lower courts are in need of guidance.” Ibid. Third, “and perhaps most importantly, both parties have briefed and argued the question.” Ibid. 20 OCTOBER TERM, 1990 Opinion of White, J. 501 U. S. supra, at 610, 619; Di-Chem, 419 U. S., at 613 (Powell, J., concurring in judgment); id., at 619 (Blackmun, J., dissenting); Fuentes, 407 U. S., at 101 (White, J., dissenting). But the need for a bond does not end here. A defendant’s property rights remain at undue risk even when there has been an adversarial hearing to determine the plaintiff’s likelihood of recovery. At best, a court’s initial assessment of each party’s case cannot produce more than an educated prediction as to who will win. This is especially true when, as here, the nature of the claim makes any accurate prediction elusive. See Mitchell, supra, at 609-610. In consequence, even a full hearing under a proper probable-cause standard would not prevent many defendants from having title to their homes impaired during the pendency of suits that never result in the contingency that ultimately justifies such impairment, namely, an award to the plaintiff. Attachment measures currently on the books reflect this concern. All but a handful of States require a plaintiff’s bond despite also affording a hearing either before, or (for the vast majority, only under extraordinary circumstances) soon after, an attachment takes place. See Appendix to this opinion. Bonds have been a similarly common feature of other prejudgment remedy procedures that we have considered, whether or not these procedures also included a hearing. See Ownbey, 256 U. S., at 101-102, n. 1; Fuentes, supra, at 73, n. 6, 75-76, n. 7, 81-82; Mitchell, supra, at 606, and n. 6; Di-Chem, supra, at 602-603, n. 1, 608. The State stresses its double damages remedy for suits that are commenced without probable cause. Conn. Gen. Stat. § 52-568(a)(l).8 This remedy, however, fails to make 8 Section 52-568(a)(l) provides: “Any person who commences and prosecutes any civil action or complaint against another, in his own name, or the name of others, or asserts'a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double dam CONNECTICUT v. DOEHR 21 1 Opinion of White, J. up for the lack of a bond. As an initial matter, the meaning of “probable cause” in this provision is no more clear here than it was in the attachment provision itself. Should the term mean the plaintiff’s good faith or the facial adequacy of the complaint, the remedy is clearly insufficient. A defendant who was deprived where there was little or no likelihood that the plaintiff would obtain a judgment could nonetheless recover only by proving some type of fraud or malice or by showing that the plaintiff had failed to state a claim. Problems persist even if the plaintiff’s ultimate failure permits recovery. At best a defendant must await a decision on the merits of the plaintiff’s complaint, even assuming that a § 52-568(a)(1) action may be brought as a counterclaim. Hydro Air of Connecticut, Inc. v. Versa Technologies, Inc., 99 F. R. D. Ill, 113 (Conn. 1983). Settlement, under Connecticut law, precludes seeking the damages remedy, a fact that encourages the use of attachments as a tactical device to pressure an opponent to capitulate. Blake n. Levy, 191 Conn. 257, 464 A. 2d 52 (1983). An attorney’s advice that there is probable cause to commence an action constitutes a complete defense, even if the advice was unsound or erroneous. Vandersluis n. Weil, 176 Conn. 353, 361, 407 A. 2d 982, 987 (1978). Finally, there is no guarantee that the original plaintiff will have adequate assets to satisfy an award that the defendant may win. Nor is there any appreciable interest against a bond requirement. Section 52-278e(a)(l) does not require a plaintiff to show exigent circumstances nor any pre-existing interest in the property facing attachment. A party must show more than the mere existence of a claim before subjecting an opponent to prejudgment proceedings that carry a significant risk of erroneous deprivation. See Mitchell, supra, at 604-609; Fuentes, supra, at 90-92; Sniadach, 395 U. S., at 339. ages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.” 22 OCTOBER TERM, 1990 Opinion of White, J. 501 U. S. B Our foregoing discussion compels the four of us to consider whether a bond excuses the need for a hearing or other safeguards altogether. If a bond is needed to augment the protections afforded by preattachment and postattachment hearings, it arguably follows that a bond renders these safeguards unnecessary. That conclusion is unconvincing, however, for it ignores certain harms that bonds could not undo but that hearings would prevent. The law concerning attachments has rarely, if ever, required defendants to suffer an encumbered title until the case is concluded without any prior opportunity to show that the attachment was unwarranted. Our cases have repeatedly emphasized the importance of providing a prompt postdeprivation hearing at the very least. Mitchell, 416 U. S., at 606; Di-Chem, 419 U. S., at 606-607. Every State but one, moreover, expressly requires a preattachment or postattachment hearing to determine the propriety of an attachment. The necessity for at least a prompt postattachment hearing is self-evident because the right to be compensated at the end of the case, if the plaintiff loses, for all provable injuries caused by the attachment is inadequate to redress the harm inflicted, harm that could have been avoided had an early hearing been held. An individual with an immediate need or opportunity to sell a property can neither do so, nor otherwise satisfy that need or recreate the opportunity. The same applies to a parent in need of a home equity loan for a child’s education, an entrepreneur seeking to start a business on the strength of an otherwise strong credit rating, or simply a homeowner who might face the disruption of having a mortgage placed in technical default. The extent of these harms, moreover, grows with the length of the suit. Here, oral argument indicated that civil suits in Connecticut commonly take up to four to seven years for completion. Tr. of Oral Arg. 44. Many state attachment statutes require CONNECTICUT v. DOEHR 23 1 Opinion of White, J. that the amount of a bond be anywhere from the equivalent to twice the amount the plaintiff seeks. See, e. g., Utah Rule of Civ. Proc. 64C(b). These amounts bear no relation to the harm the defendant might suffer even assuming that money damages can make up for the foregoing disruptions. It should be clear, however, that such an assumption is fundamentally flawed. Reliance on a bond does not sufficiently account for the harms that flow from an erroneous attachment to excuse a State from reducing that risk by means of a timely hearing. If a bond cannot serve to dispense with a hearing immediately after attachment, neither is it sufficient basis for not providing a preattachment hearing in the absence of exigent circumstances even if in any event a hearing would be provided a few days later. The reasons are the same: a wrongful attachment can inflict injury that will not fully be redressed by recovery on the bond after a prompt postattachment hearing determines that the attachment was invalid. Once more, history and contemporary practices support our conclusion. Historically, attachments would not issue without a showing of extraordinary circumstances even though a plaintiff bond was almost invariably required in addition. Drake §§ 4, 114; Shinn §§86, 153. . Likewise, all but eight States currently require the posting of a bond. Out of this 42-State majority, all but one requires a preattachment hearing, a showing of some exigency, or both, and all but one expressly require a postattachment hearing when an attachment has been issued ex parte. See Appendix to this opinion. This testimony underscores the point that neither a hearing nor an extraordinary circumstance limitation eliminates the need for a bond, no more than a bond allows waiver of these other protections. To reconcile the interests of the defendant and the plaintiff accurately, due process generally requires all of the above. 24 OCTOBER TERM, 1990 Appendix to opinion of the Court 501 U. S. V Because Connecticut’s prejudgment remedy provision, Conn. Gen. Stat. § 52-278e(a)(l), violates the requirements of due process by authorizing prejudgment attachment without prior notice or a hearing, the judgment of the Court of Appeals is affirmed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT Prejudgment Attachment Statutes Attachment Preattach. Only in Exi- Preattach. Hrg. Required gent Circs.; Hrg. Even in Unless Exi- No Preattach. Most Exi- Bond Postattach. gent Circs. Hrg. Required gent Circs. Required Hrg. Required Alabama X X X Alaska Preattachment hrg. always required. X Arizona X X X Arkansas X X X California X X X Colorado X X X Connecticut X (or unless attachment of real estate) X Delaware X X X DC X X X Florida X X X Georgia X X X Hawaii Preattachment hrg. always required. X X Idaho X X X Illinois X X X Indiana X X X Iowa X X X Kansas X X X Kentucky X X Louisiana X X X CONNECTICUT v. DOEHR 25 1 Appendix to opinion of the Court Prejudgment Attachment Statutes—Continued Attachment Bond Required Postattach. Hrg. Required Preattach. Only in Exi- Preattach. Hrg. Required gent Circs.; Hrg. Even in Unless Exi- No Preattach. Most Exi- gent Circs. Hrg. Required gent Circs. Maine x x Maryland x x x Massachusetts x x/o1 x Michigan x x Minnesota x x x Mississippi x xx Missouri x xx Montana x x x Nebraska x x x Nevada x x x New Hampshire x x New Jersey x x/o x New Mexico x x x New York x x x North Carolina x x x North Dakota x x x Ohio xxx Oklahoma x x x Oregon Preattachment hrg. always required. X Pennsylvania Rescinded in light of 530 F. 2d 1123 (CA3 1976). Rhode Island X (but not if equitable claim). South Carolina x South Dakota x Tennessee x Texas x Utah x Vermont x x/o X X X X X X X X1 2 X X X 1 An “x/o” in the “Bond Required” column indicates that a bond may be required at the discretion of the court. 2 The court may, under certain circumstances, quash the attachment at the defendant’s request without a hearing. 26 OCTOBER TERM, 1990 Opinion of Rehnquist, C. J. 501 U. S. Prejudgment Attachment Statutes—Continued Preattach. Hrg. Required Unless Exigent Circs. Attachment Only in Exigent Circs.; No Preattach. Hrg. Required Preattach. Hrg. Even in Most Exigent Circs. Bond Required Postattach. Hrg. Required Virginia X X X Washington X X3 X (except for real estate on a contract claim) West Virginia X X X Wisconsin X X X Wyoming X X X 8 A bond is required except in situations in which the plaintiff seeks to attach the real property of a defendant who, after diligent efforts, cannot be served. Chief Justice Rehnquist, with whom Justice Black-mun joins, concurring in part and concurring in the judgment. I agree with the Court that the Connecticut attachment statute, “as applied to this case,” ante, at 4, fails to satisfy the Due Process Clause of the Fourteenth Amendment. I therefore join Parts I, II, and III of its opinion. Unfortunately, the remainder of the opinion does not confine itself to the facts of this case, but enters upon a lengthy disquisition as to what combination of safeguards are required to satisfy due process in hypothetical cases not before the Court. I therefore do not join Part IV. As the Court’s opinion points out, the Connecticut statute allows attachment not merely for a creditor’s claim, but for a tort claim of assault and battery; it affords no opportunity for a predeprivation hearing; it contains no requirement that there be “exigent circumstances,” such as an effort on the part of the defendant to conceal assets; no bond is required from the plaintiff; and the property attached is one in which the plaintiff has no pre-existing interest. The Court’s opin CONNECTICUT v. DOEHR 27 1 Opinion of Rehnquist, C. J. ion is, in my view, ultimately correct when it bases its holding of unconstitutionality of the Connecticut statute as applied here on our cases of Sniadach v. Family Finance Corp, of Bay View, 395 U. S. 337 (1969); Fuentes v. Shevin, 407 U. S. 67 (1972), Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974), and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975). But I do not believe that the result follows so inexorably as the Court’s opinion suggests. All of the cited cases dealt with personalty—bank deposits or chattels—and each involved the physical seizure of the property itself, so that the defendant was deprived of its use. These cases, which represented something of a revolution in the jurisprudence of procedural due process, placed substantial limits on the methods by which creditors could obtain a lien on the assets of a debtor prior to judgment. But in all of them the debtor was deprived of the use and possession of the property. In the present case, on the other hand, Connecticut’s prejudgment attachment on real property statute, which secures an incipient lien for the plaintiff, does not deprive the defendant of the use or possession of the property. The Court’s opinion therefore breaks new ground, and I would point out, more emphatically than the Court does, the limits of today’s holding. In Spielman-Fond, Inc. v. Hanson’s, Inc., 379 F. Supp. 997, 999 (Ariz. 1973), the District Court held that the filing of a mechanics’ lien did not cause the deprivation of a significant property interest of the owner. We summarily affirmed that decision. 417 U. S. 901 (1974). Other courts have read this summary affirmance to mean that the mere imposition of a hen on real property, which does not disturb the owner’s use or enjoyment of the property, is not a deprivation of property calling for procedural due process safeguards. I agree with the Court, however, that upon analysis the deprivation here is a significant one, even though the owner remains in undisturbed possession. “For a property owner like Doehr, attachment ordinarily clouds title; impairs the ability to sell or otherwise 28 OCTOBER TERM, 1990 Opinion of Rehnquist, C. J. 501 U. S. alienate the property; taints any credit rating; reduces the chance of obtaining a home equity loan or additional mortgage; and can even place an existing mortgage in technical default where there is an insecurity clause.” Ante, at 11. Given the elaborate system of title records relating to real property which prevails in all of our States, a lienor need not obtain possession or use of real property belonging to a debtor in order to significantly impair its value to him. But in Spielman-Fond, Inc., supra, there was, as the Court points out, ante, at 12, n. 4, an alternative basis available to this Court for affirmance of that decision. Arizona recognized a pre-existing lien in favor of unpaid mechanics and materialmen who had contributed labor or supplies which were incorporated in improvements to real property. The existence of such a lien upon the very property ultimately posted or noticed distinguishes those cases from the present one, where the plaintiff had no pre-existing interest in the real property which he sought to attach. Materialman’s and mechanic’s lien statutes award an interest in real property to workers who have contributed their labor, and to suppliers who have furnished material, for the improvement of the real property. Since neither the labor nor the material can be reclaimed once it has become a part of the realty, this is the only method by which workmen or small businessmen who have contributed to the improvement of the property may be given a remedy against a property owner who has defaulted on his promise to pay for the labor and the materials. To require any sort of a contested court hearing or bond before the notice of lien takes effect would largely defeat the purpose of these statutes. Petitioners in their brief rely in part on our summary affirmance in Bartlett n. Williams, 464 U. S. 801 (1983). That case involved a lis pendens, in which the question presented to this Court was whether such a procedure could be valid when the only protection afforded to 'the owner of land affected by the lis pendens was a postsequestration hearing. CONNECTICUT v. DOEHR 29 1 Opinion of Rehnquist, C. J. A notice of lis pendens is a well-established, traditional remedy whereby a plaintiff (usually a judgment creditor) who brings an action to enforce an interest in property to which the defendant has title gives notice of the pendency of such action to third parties; the notice causes the interest which he establishes, if successful, to relate back to the date of the filing of the lis pendens. The filing of such notice will have an effect upon the defendant’s ability to alienate the property, or to obtain additional security on the basis of title to the property, but the effect of the lis pendens is simply to give notice to the world of the remedy being sought in the lawsuit itself. The lis pendens itself creates no additional right in the property on the part of the plaintiff, but simply allows third parties to know that a lawsuit is pending in which the plaintiff is seeking to establish such a right. Here, too, the fact that the plaintiff already claims an interest in the property which he seeks to enforce by a lawsuit distinguishes this class of cases from the Connecticut attachment employed in the present case. Today’s holding is a significant development in the law; the only cases dealing with real property cited in the Court’s opinion, Peralta v. Heights Medical Center, Inc., 485 U. S. 80, 85 (1988), and Hodge v. Muscatine County, 196 U. S. 276, 281 (1905), arose out of lien foreclosure sales in which the question was whether the owner was entitled to proper notice. The change is dramatically reflected when we compare today’s decision with the almost casual statement of Justice Holmes, writing for a unanimous Court in Coffin Brothers & Co. v. Bennett, 277 U. S. 29, 31 (1928): “[N]othing is more common than to allow parties alleging themselves to be creditors to establish in advance by attachment a lien dependent for its effect upon the result of the suit.” The only protection accorded to the debtor in that case was the right to contest his liability in a postdeprivation proceeding. 30 OCTOBER TERM, 1990 Opinion of Scalia, J. 501 U. S. It is both unwise and unnecessary, I believe, for the plurality to proceed, as it does in Part IV, from its decision of the case before it to discuss abstract and hypothetical situations not before it. This is especially so where we are dealing with the Due Process Clause which, as the Court recognizes, “ ‘ “unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances,’”” ante, at 10. And it is even more true in a case involving constitutional limits on the methods by which the States may transfer or create interests in real property; in other areas of the law, dicta may do little damage, but those who insure titles or write title opinions often do not enjoy the luxury of distinguishing detween dicta and holding. The two elements of due process with which the Court concerns itself in Part IV—the requirements of a bond and of “exigent circumstances”—prove to be upon analysis so vague that the discussion is not only unnecessary, but not particularly useful. Unless one knows what the terms and conditions of a bond are to be, the requirement of a “bond” in the abstract means little. The amount to be secured by the bond and the conditions of the bond are left unaddressed—is there to be liability on the part of a plaintiff if he is ultimately unsuccessful in the underlying lawsuit, or is it instead to be conditioned on some sort of good-faith test? The “exigent circumstances” referred to by the Court are admittedly equally vague; nonresidency appears to be enough in some States, an attempt to conceal assets is required in others, an effort to flee the jurisdiction in still others. We should await concrete cases which present questions involving bonds and exigent circumstances before we attempt to decide when and if the Due Process Clause of the Fourteenth Amendment requires them as prerequisites for a lawful attachment. Justice Scalia, concurring in part and concurring in the judgment. Since the manner of attachment here was not a recognized procedure at common law, cf. Pacific Mut. Life Ins. Co. v. CONNECTICUT v. DOEHR 31 1 Opinion of Scalia, J. Haslip, 499 U. S. 1, 24 (1991) (Scalia, J., concurring in judgment), I agree that its validity under the Due Process Clause should be determined by applying the test we set forth in Mathews v. Eldridge, 424 U. S. 319 (1976); and I agree that it fails that test. I join Parts I and III of the Court’s opinion, and concur in the judgment of the Court. 32 OCTOBER TERM, 1990 501 U. S. Syllabus CHAMBERS v. NASCO, INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 90-256. Argued February 27, 1991—Decided June 6, 1991 Petitioner Chambers, the sole shareholder and director of a company that operated a television station in Louisiana, agreed to sell the station’s facilities and broadcast license to respondent NASCO, Inc. Chambers soon changed his mind and, both before and after NASCO filed this diversity action for specific performance in the District Court, engaged in a series of actions within and without that court and in proceedings before the Federal Communications Commission, the Court of Appeals, and this Court, which were designed to frustrate the sale’s consummation. On remand following the Court of Appeals’ affirmance of judgment on the merits for NASCO, the District Court, on NASCO’s motion and following full briefing and a hearing, imposed sanctions against Chambers in the form of attorney’s fees and expenses totaling almost $1 million, representing the entire amount of NASCO’s litigation costs paid to its attorneys. The court noted that the alleged sanctionable conduct was that Chambers had (1) attempted to deprive the court of jurisdiction by acts of fraud, nearly all of which were performed outside the confines of the court, (2) filed false and frivolous pleadings, and (3) “attempted, by other tactics of delay, oppression, harassment and massive expense to reduce [NASCO] to exhausted compliance.” The court deemed Federal Rule of Civil Procedure 11—which provides for the imposition of attorney’s fees as a sanction for the improper filing of papers with a court — insufficient to support the sanction against Chambers, since the Rule does not reach conduct in the foregoing first and third categories, and since it would have been impossible to assess sanctions at the time the papers in the second category were filed because their falsity did not become apparent until after the trial on the merits. The court likewise declined to impose sanctions under 28 U. S. C. § 1927, both because the statute’s authorization of an attorney’s fees sanction applies only to attorneys who unreasonably and vexatiously multiply proceedings, and therefore would not reach Chambers, and because the statute was not broad enough to reach “acts which degrade the judicial system.” The court therefore relied on its inherent power in imposing sanctions. In affirming, the Court of Appeals, inter alia, rejected Chambers’ argument that a federal court sitting in diversity must look to state law, not CHAMBERS v. NASCO, INC. 33 32 Syllabus the court’s inherent power, to assess attorney’s fees as a sanction for bad-faith conduct in litigation. Held: The District Court properly invoked its inherent power in assessing as a sanction for Chambers’ bad-faith conduct the attorney’s fees and related expenses paid by NASCO. Pp. 42-58. (a) Federal courts have the inherent power to manage their own proceedings and to control the conduct of those who appear before them. In invoking the inherent power to punish conduct which abuses the judicial process, a court must exercise discretion in fashioning an appropriate sanction, which may range from dismissal of a lawsuit to an assessment of attorney’s fees. Although the “American Rule” prohibits the shifting of attorney’s fees in most cases, see Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 259, an exception allows federal courts to exercise their inherent power to assess such fees as a sanction when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, id., at 258-259, 260, as when the party practices a fraud upon the court, Universal Oil Products Co. v. Root Refining Co., 328 U. S. 575, 580, or delays or disrupts the litigation or hampers a court order’s enforcement, Hutto v. Finney, 437 U. S. 678, 689, n. 14. Pp. 43-46. (b) There is nothing in § 1927, Rule 11, or other Federal Rules of Civil Procedure authorizing attorney’s fees as a sanction, or in this Court’s decisions interpreting those other sanctioning mechanisms, that warrants a conclusion that, taken alone or together, the other mechanisms displace courts’ inherent power to impose attorney’s fees as a sanction for bad-faith conduct. Although a court ordinarily should rely on such rules when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the rules, the court may safely rely on its inherent power if, in its informed discretion, neither the statutes nor the rules are up to the task. The District Court did not abuse its discretion in resorting to the inherent power in the circumstances of this case. Although some of Chambers’ conduct might have been reached through the other sanctioning mechanisms, all of that conduct was sanctionable. Requiring the court to apply the other mechanisms to discrete occurrences before invoking the inherent power to address remaining instances of sanctionable conduct would serve only to foster extensive and needless satellite litigation, which is contrary to the aim of the rules themselves. Nor did the court’s reliance on the inherent power thwart the mandatory terms of Rules 11 and 26(g). Those Rules merely require that “an appropriate sanction” be imposed, without specifying which sanction is required. Bank of Nova Scotia v. United States, 487 U. S. 250, distinguished. Pp. 46-51. 34 OCTOBER TERM, 1990 Syllabus 501 U. S. (c) There is no merit to Chambers’ assertion that a federal court sitting in diversity cannot use its inherent power to assess attorney’s fees as a sanction unless the applicable state law recognizes the “bad-faith” exception to the general American Rule against fee shifting. Although footnote 31 in Alyeska tied a diversity court’s inherent power to award fees to the existence of a state law giving a right thereto, that limitation applies only to fee-shifting rules that embody a substantive policy, such as a statute which permits a prevailing party in certain classes of litigation to recover fees. Here the District Court did not attempt to sanction Chambers for breach of contract, but rather imposed sanctions for the fraud he perpetrated on the court and the bad faith he displayed toward both NASCO and the court throughout the litigation. The inherent power to tax fees for such conduct cannot be made subservient to any state policy without transgressing the boundaries set out in Erie R. Co. n. Tompkins, 304 U. S. 64, Guaranty Trust Co. v. York, 326 U. S. 99, and Hanna v. Plumer, 380 U. S. 460, for fee shifting here is not a matter of substantive remedy, but is a matter of vindicating judicial authority. Thus, although Louisiana law prohibits punitive damages for a bad-faith breach of contract, this substantive state policy is not implicated. Pp. 51-55. (d) Based on the circumstances of this case, the District Court acted within its discretion in assessing as a sanction for Chambers’ bad-faith conduct the entire amount of NASCO’s attorney’s fees. Chambers’ arguments to the contrary are without merit. First, although the sanction was not assessed until the conclusion of the litigation, the court’s reliance on its inherent power did not represent an end run around Rule H’s notice requirements, since Chambers received repeated timely warnings both from NASCO and the court that his conduct was sanctionable. Second, the fact that the entire amount of fees was awarded does not mean that the court failed to tailor the sanction to the particular wrong, in light of the frequency and severity of Chambers’ abuses of the judicial system and the resulting need to ensure that such abuses were not repeated. Third, the court did not abuse its discretion by failing to require NASCO to mitigate its expenses, since Chambers himself made a swift conclusion to the litigation by means of summary judgment impossible by continuing to assert that material factual disputes existed. Fourth, the court did not err in imposing sanctions for conduct before other tribunals, since, as long as Chambers received an appropriate hearing, he may be sanctioned for abuses of process beyond the Courtroom. Finally, the claim that the award is not “personalized” as to Chambers’ responsibility for the challenged conduct is flatly contradicted CHAMBERS v. NASCO, INC. 35 32 Opinion of the Court by the court’s detailed factual findings concerning Chambers’ involvement in the sequence of events at issue. Pp. 55-58. 894 F. 2d 696, affirmed. White, J., delivered the opinion of the Court, in which Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Scalia, J., filed a dissenting opinion, post, p. 58. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., and Souter, J., joined, post, p. 60. Mack E. Barham argued the cause for petitioner. With him on the briefs were Robert E. Arceneaux and Russell T. Tritico. Joel I. Klein argued the cause for respondent. With him on the brief were Christopher D. Cerf, David A. Bono, Aubrey B. Harwell, Jr., Jon D. Ross, John B. Scofield, and David L. Hoskins. Justice White delivered the opinion of the Court. This case requires us to explore the scope of the inherent power of a federal court to sanction a litigant for bad-faith conduct. Specifically, we are asked to determine whether the District Court, sitting in diversity, properly invoked its inherent power in assessing as a sanction for a party’s bad-faith conduct attorney’s fees and related expenses paid by the party’s opponent to its attorneys. We hold that the District Court acted within its discretion, and we therefore affirm the judgment of the Court of Appeals. I This case began as a simple action for specific performance of a contract, but it did not remain so.1 Petitioner G. Russell Chambers was the sole shareholder and director of Calcasieu Television and Radio, Inc. (CTR), which operated television station KPLC-TV in Lake Charles, Louisiana. On August 9, 1983, Chambers, acting both in his individual capacity and on behalf of CTR, entered into a purchase agree 1 The facts recited here are taken from the findings of the District Court, which were not disturbed by the Court of Appeals. 36 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. ment to sell the station’s facilities and broadcast license to respondent NASCO, Inc., for a purchase price of $18 million. The agreement was not recorded in the parishes in which the two properties housing the station’s facilities were located. Consummation of the agreement was subject to the approval of the Federal Communications Commission (FCC); both parties were obligated to file the necessary documents with the FCC no later than September 23, 1983. By late August, however, Chambers had changed his mind and tried to talk NASCO out of consummating the sale. NASCO refused. On September 23, Chambers, through counsel, informed NASCO that he would not file the necessary papers with the FCC. NASCO decided to take legal action. On Friday, October 14, 1983, NASCO’s counsel informed counsel for Chambers and CTR that NASCO would file suit the following Monday in the United States District Court for the Western District of Louisiana, seeking specific performance of the agreement, as well as a temporary restraining order (TRO) to prevent the alienation or encumbrance of the properties at issue. NASCO provided this notice in accordance with Federal Rule of Civil Procedure 65 and Rule 11 of the District Court’s Local Rules (now Rule 10), both of which are designed to give a defendant in a TRO application notice of the hearing and an opportunity to be heard. The reaction of Chambers and his attorney, A. J. Gray III, was later described by the District Court as having “emasculated and frustrated the purposes of these rules and the powers of [the District] Court by utilizing this notice to prevent NASCO’s access to the remedy of specific performance.” NASCO, Inc. v. Calcasieu Television & Radio, Inc., 623 F. Supp. 1372, 1383 (1985). On Sunday, October 16, 1983, the pair acted to place the properties at issue beyond the reach of the District Court by means of the Louisiana Public Records Doctrine. Because the purchase agreement had never been recorded, they determined that if the prop CHAMBERS v. NASCO, INC. 37 32 Opinion of the Court erties were sold to a third party, and if the deeds were recorded before the issuance of a TRO, the District Court would lack jurisdiction over the properties. To this end, Chambers and Gray created a trust, with Chambers’ sister as trustee and Chambers’ three adult children as beneficiaries. The pair then directed the president of CTR, who later became Chambers’ wife, to execute warranty deeds conveying the two tracts at issue to the trust for a recited consideration of $1.4 million dollars. Early Monday morning, the deeds were recorded. The trustee, as purchaser, had not signed the deeds; none of the consideration had been paid; and CTR remained in possession of the properties. Later that morning, NASCO’s counsel appeared in the District Court to file the complaint and seek the TRO. With NASCO’s counsel present, the District Judge telephoned Gray. Despite the judge’s queries concerning the possibility that CTR was negotiating to sell the properties to a third person, Gray made no mention of the recordation of the deeds earlier that morning. NASCO, Inc. v. Calcasieu Television & Radio, Inc., 124 F. R. D. 120, 126, n. 8 (1989). That afternoon, Chambers met with his sister and had her sign the trust documents and a $1.4 million note to CTR. The next morning, Gray informed the District Court by letter of the recordation of the deeds the day before and admitted that he had intentionally withheld the information from the court. Within the next few days, Chambers’ attorneys prepared a leaseback agreement from the trustee to CTR, so that CTR could remain in possession of the properties and continue to operate the station. The following week, the District Court granted a preliminary injunction against Chambers and CTR and entered a second TRO to prevent the trustee from alienating or encumbering the properties. At that hearing, the District Judge warned that Gray’s and Chambers’ conduct had been unethical. 38 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Despite this early warning, Chambers, often acting through his attorneys, continued to abuse the judicial process. In November 1983, in defiance of the preliminary injunction, he refused to allow NASCO to inspect CTR’s corporate records. The ensuing civil contempt proceedings resulted in the assessment of a $25,000 fine against Chambers personally. NASCO, Inc. v. Calcasieu Television & Radio, Inc., 583 F. Supp. 115 (1984). Two subsequent appeals from the contempt order were dismissed for lack of a final judgment. See NASCO, Inc. v. Calcasieu Television & Radio, Inc., No. 84-9037 (CA5, May 29, 1984); NASCO, Inc. n. Calcasieu Television & Radio, Inc., 752 F. 2d 157 (CA5 1985). Undeterred, Chambers proceeded with “a series of meritless motions and pleadings and delaying actions.” 124 F. R. D., at 127. These actions triggered further warnings from the court. At one point, acting sua sponte, the District Judge called a status conference to find out why bankers were being deposed. When informed by Chambers’ counsel that the purpose was to learn whether NASCO could afford to pay for the station, the court canceled the depositions consistent with its authority under Federal Rule of Civil Procedure 26(g). At the status conference nine days before the April 1985 trial date,2 the District Judge again warned counsel that further misconduct would not be tolerated.3 Finally, on the eve of trial, Chambers and CTR stipulated that the purchase agreement was enforceable and that Chambers had breached the agreement on September 23, 1983, by failing to file the 2 The trial date itself reflected delaying tactics. Trial had been set for February 1985, but in January, Gray, on behalf of Chambers, filed a motion to recuse the judge. The motion was denied, as was the subsequent writ of mandamus filed in the Court of Appeals. 3 To make his point clear, the District Judge gave counsel copies of Judge Schwarzer’s then-recent article, Sanctions Under the New Federal Rule 11-A Closer Look, 104 F. R. D. 181 (1985). CHAMBERS v. NASCO, INC. 39 32 Opinion of the Court necessary papers with the FCC. At trial, the only defense presented by Chambers was the Public Records Doctrine. In the interlude between the trial and the entry of judgment during which the District Court prepared its opinion, Chambers sought to render the purchase agreement meaningless by seeking permission from the FCC to build a new transmission tower for the station and to relocate the transmission facilities to that site, which was not covered by the agreement. Only after NASCO sought contempt sanctions did Chambers withdraw the application. The District Court entered judgment on the merits in NASCO’s favor, finding that the transfer of the properties to the trust was a simulated sale and that the deeds purporting to convey the property were “null, void, and of no effect.” 623 F. Supp., at 1385. Chambers’ motions, filed in the District Court, the Court of Appeals, and this Court, to stay the judgment pending appeal were denied. Undeterred, Chambers convinced CTR officials to file formal oppositions to NASCO’s pending application for FCC approval of the transfer of the station’s license, in contravention of both the District Court’s injunctive orders and its judgment on the merits. NASCO then sought contempt sanctions for a third time, and the oppositions were withdrawn. When Chambers refused to prepare to close the sale, NASCO again sought the court’s help. A hearing was set for July 16, 1986, to determine whether certain equipment was to be included in the sale. At the beginning of the hearing, the court informed Chambers’ new attorney, Edwin A. McCabe,4 that further sanctionable conduct would not be tolerated. When the hearing was recessed for several days, Chambers, without notice to the court or NASCO, removed from service at the station all of the equipment at issue, forcing the District Court to order that the equipment be returned to service. 4 Gray had resigned as counsel for Chambers and CTR several months previously. 40 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Immediately following oral argument on Chambers’ appeal from the District Court’s judgment on the merits, the Court of Appeals, ruling from the bench, found the appeal frivolous. The court imposed appellate sanctions in the form of attorney’s fees and double costs, pursuant to Federal Rule of Appellate Procedure 38, and remanded the case to the District Court with orders to fix the amount of appellate sanctions and to determine whether further sanctions should be imposed for the manner in which the litigation had been conducted. NASCO, Inc. v. Calcasieu Television & Radio, Inc., 797 F. 2d 975 (CA5 1986) (per curiam) (unpublished order). On remand, NASCO moved for sanctions, invoking the District Court’s inherent power, Fed. Rule Civ. Proc. 11, and 28 U. S. C. § 1927. After full briefing and a hearing, see 124 F. R. D., at 141, n. 11, the District Court determined that sanctions were appropriate “for the manner in which this proceeding was conducted in the district court from October 14, 1983, the time that plaintiff gave notice of its intention to file suit to this date.” Id., at 123. At the end of an extensive opinion recounting what it deemed to have been sanctionable conduct during this period, the court imposed sanctions against Chambers in the form of attorney’s fees and expenses totaling $996,644.65, which represented the entire amount of NASCO’s litigation costs paid to its attorneys.5 3 In calculating the award, the District Court deducted the amounts previously awarded as compensatory damages for contempt, as well as the amount awarded as appellate sanctions. 124 F. R. D., at 133-134. The court also sanctioned other individuals, who are not parties to the action in this Court. Chambers’ sister, the trustee, was sanctioned by a reprimand; attorney Gray was disbarred and prohibited from seeking readmission for three years; attorney Richard A. Curry, who represented the trustee, was suspended from practice before the court for six months; and attorney McCabe was suspended for five years. Id., at 144-146. Although these sanctions did not affect the bank accounts of these individuals, they were nevertheless substantial sanctions and were as proportionate to the conduct at issue as was the monetary sanction imposed on CHAMBERS v. NASCO, INC. 41 32 Opinion of the Court In so doing, the court rejected Chambers’ argument that he had merely followed the advice of counsel, labeling him “the strategist,” id., at 132, behind a scheme devised “first, to deprive this Court of jurisdiction and, second, to devise a plan of obstruction, delay, harassment, and expense sufficient to reduce NASCO to a condition of exhausted compliance,” id., at 136. In imposing the sanctions, the District Court first considered Federal Rule of Civil Procedure 11. It noted that the alleged sanctionable conduct was that Chambers and the other defendants had “(1) attempted to deprive this Court of jurisdiction by acts of fraud, nearly all of which were performed outside the confines of this Court, (2) filed false and frivolous pleadings, and (3) attempted, by other tactics of delay, oppression, harassment and massive expense to reduce plaintiff to exhausted compliance.” 124 F. R. D., at 138. The court recognized that the conduct in the first and third categories could not be reached by Rule 11, which governs only papers filed with a court. As for the second category, the court explained that the falsity of the pleadings at issue did not become apparent until after the trial on the merits, so that it would have been impossible to assess sanctions at the time the papers were filed. Id., at 138-139. Consequently, the District Court deemed Rule 11 “insufficient” for its purposes. Id., at 139. The court likewise declined to impose sanctions under § 1927,6 both because the statute applies only to attorneys, and therefore would not reach Chambers, and because the statute was not broad enough to reach “acts Chambers. Indeed, in the case of the disbarment of attorney Gray, the court recognized that the penalty was among the harshest possible sanctions and one which derived from its authority to supervise those admitted to practice before it. See id., at 140-141. fiThat statute provides: “Any attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U. S. C. § 1927. 42 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. which degrade the judicial system,” including “attempts to deprive the Court of jurisdiction, fraud, misleading and lying to the Court.” Ibid. The court therefore relied on its inherent power in imposing sanctions, stressing that “[t]he wielding of that inherent power is particularly appropriate when the offending parties have practiced a fraud upon the court.” Ibid. The Court of Appeals affirmed. NASCO, Inc. v. Calcasieu Television & Radio, Inc., 894 F. 2d 696 (CA5 1990). The court rejected Chambers’ argument that a federal court sitting in diversity must look to state law, not the court’s inherent power, to assess attorney’s fees as a sanction for bad-faith conduct in litigation. The court further found that neither 28 U. S. C. § 1927 nor Federal Rule of Civil Procedure 11 limits a court’s inherent authority to sanction bad-faith conduct “when the party’s conduct is not within the reach of the rule or the statute.”7 894 F. 2d, at 702-703. Although observing that the inherent power “is not a broad reservoir of power, ready at an imperial hand, but a limited source; an implied power squeezed from the need to make the court function,” id., at 702, the court also concluded that the District Court did not abuse its discretion in awarding to NASCO the fees and litigation costs paid to its attorneys. Because of the importance of these issues, we granted certiorari, 498 U. S. 807 (1990). II Chambers maintains that 28 U. S. C. § 1927 and the various sanctioning provisions in the Federal Rules of Civil Procedure8 reflect a legislative intent to displace the inherent 7 The court remanded for a reconsideration of the proper sanction for attorney McCabe. 894 F. 2d, at 708. 8 A number of the Rules provide for the imposition of attorney’s fees as a sanction. See Fed. Rules Civ. Proc. 11 (certification requirement for papers), 16(f) (pretrial conferences), 26(g) (certification requirement for discovery requests), 30(g) (oral depositions), 37 (sanctions for failure to cooperate with discovery), 56(g) (affidavits accompanying summary judg CHAMBERS v. NASCO, INC. 43 32 Opinion of the Court power. At least, he argues that they obviate or foreclose resort to the inherent power in this case. We agree with the Court of Appeals that neither proposition is persuasive. A It has long been understood that “[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution,” powers “which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.” United States v. Hudson, 7 Cranch 32, 34 (1812); see also Roadway Express, Inc. n. Piper, 447 U. S. 752, 764 (1980) (citing Hudson). For this reason, “Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.” Anderson n. Dunn, 6 Wheat. 204, 227 (1821); see also Ex parte Robinson, 19 Wall. 505, 510 (1874). These powers are “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link n. Wabash R. Co., 370 U. S. 626, 630-631 (1962). Prior cases have outlined the scope of the inherent power of the federal courts. For example, the Court has held that a federal court has the power to control admission to its bar and to discipline attorneys who appear before it. See Ex parte Burr, 9 Wheat. 529, 531 (1824). While this power “ought to be exercised with great caution,” it is nevertheless “incidental to all Courts.” Ibid. ment motions). In some instances, the assessment of fees is one of a range of possible sanctions, see, e. g., Fed. Rule Civ. Proc. 11, while in others, the court must award fees, see, e. g., Fed. Rule Civ. Proc. 16(f). In each case, the fees that may be assessed are limited to those incurred as a result of the Rule violation. In the case of Rule 11, however, a violation could conceivably warrant an imposition of fees covering the entire litigation, if, for example, a complaint or answer was filed in violation of the Rule. The court generally may act sua sponte in imposing sanctions under the Rules. 44 OCTOBER TERM, 1990 501 U. S. Opinion of the Court In addition, it is firmly established that “[tjhe power to punish for contempts is inherent in all courts.” Robinson, supra, at 510. This power reaches both conduct before the court and that beyond the court’s confines, for “[t]he underlying concern that gave rise to the contempt power was not. . . merely the disruption of court proceedings. Rather, it was disobedience to the orders of the Judiciary, regardless of whether such disobedience interfered with the conduct of trial.” Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787, 798 (1987) (citations omitted). Of particular relevance here, the inherent power also allows a federal court to vacate its own judgment upon proof that a fraud has been perpetrated upon the court. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238 (1944); Universal Oil Products Co. v. Root Refining Co., 328 U. S. 575, 580 (1946). This “historic power of equity to set aside fraudulently begotten judgments,” Hazel-Atlas, 322 U. S., at 245, is necessary to the integrity of the courts, for “tampering with the administration of justice in [this] manner . . . involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public.” Id., at 246. Moreover, a court has the power to conduct an independent investigation in order to determine whether it has been the victim of fraud. Universal Oil, supra, at 580. There are other facets to a federal court’s inherent power. The court may bar from the courtroom a criminal defendant who disrupts a trial. Illinois v. Allen, 397 U. S. 337 (1970). It may dismiss an action on grounds offorum non conveniens, Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 507-508 (1947); and it may act sua sponte to dismiss a suit for failure to prosecute, Link, supra, at 630-631. Because of their very potency, inherent powers must be exercised with restraint and discretion. See Roadway Express, supra, at 764. A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct CHAMBERS v. NASCO, INC. 45 32 Opinion of the Court which abuses the judicial process. As we recognized in Roadway Express, outright dismissal of a lawsuit, which we had upheld in Link, is a particularly severe sanction, yet is within the court’s discretion. 447 U. S., at 765. Consequently, the “less severe sanction” of an assessment of attorney’s fees is undoubtedly within a court’s inherent power as well. Ibid. See also Hutto v. Finney, 437 U. S. 678, 689, n. 14 (1978). Indeed, “[t]here are ample grounds for recognizing . . . that in narrowly defined circumstances federal courts have inherent power to assess attorney’s fees against counsel,” Roadway Express, supra, at 765, even though the so-called “American Rule” prohibits fee shifting in most cases. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 259 (1975). As we explained in Alyeska, these exceptions fall into three categories.9 The first, known as the “common fund exception,” derives not from a court’s power to control litigants, but from its historic equity jurisdiction, see Sprague v. Ticonic National Bank, 307 U. S. 161, 164 (1939), and allows a court to award attorney’s fees to a party whose litigation efforts directly benefit others. Alyeska, 421 U. S., at 257-258. Second, a court may assess attorney’s fees as a sanction for the “‘willful disobedience of a court order.’” Id., at 258 (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 718 (1967)). Thus, a court’s discretion to determine “[t]he degree of punishment for contempt” permits the court to impose as part of the fine attorney’s fees representing the entire cost of the litigation. Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399, 428 (1923). Third, and most relevant here, a court may assess attorney’s fees when a party has “ ‘acted in bad faith, vexatiously, 9 See also Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546, 561-562, and n. 6 (1986); Summit Valley Industries, Inc. v. Carpenters, 456 U. S. 717, 721 (1982); F. D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U. S. 116, 129-130 (1974). 46 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. wantonly, or for oppressive reasons.’” Alyeska, supra, at 258-259 (quoting F. D. Rich Co. n. United States ex rel. Industrial Lumber Co., 417 U. S. 116, 129 (1974)). See also Hall v. Cole, 412 U. S. 1, 5 (1973); Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402, n. 4 (1968) (per curiam). In this regard, if a court finds “that fraud has been practiced upon it, or that the very temple of justice has been defiled,” it may assess attorney’s fees against the responsible party, Universal Oil, supra, at 580, as it may when a party “shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order,”10 Hutto, 437 U. S., at 689, n. 14. The imposition of sanctions in this instance transcends a court’s equitable power concerning relations between the parties and reaches a court’s inherent power to police itself, thus serving the dual purpose of “vindicat[ing] judicial authority without resort to the more drastic sanctions available for contempt of court and mak[ing] the prevailing party whole for expenses caused by his opponent’s obstinacy.” Ibid. B We discern no basis for holding that the sanctioning scheme of the statute and the rules displaces the inherent power to impose sanctions for the bad-faith conduct described above. These other mechanisms, taken alone or together, are not substitutes for the inherent power, for that power is both broader and narrower than other means of imposing sanctions. First, whereas each of the other mechanisms reaches only certain individuals or conduct, the inherent power extends to a full range of litigation abuses. At the very least, the inherent power must continue to exist to fill in the interstices. Even Justice Kennedy’s dissent so 10 In this regard, the bad-faith exception resembles the third prong of Rule Il’s certification requirement, which mandates that a signer of a paper filed with the court warrant that the paper “is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” CHAMBERS v. NASCO, INC. 47 32 Opinion of the Court concedes. See post, at 64. Second, while the narrow exceptions to the American Rule effectively limit a court’s inherent power to impose attorney’s fees as a sanction to cases in which a litigant has engaged in bad-faith conduct or willful disobedience of a court’s orders, many of the other mechanisms permit a court to impose attorney’s fees as a sanction for conduct which merely fails to meet a reasonableness standard. Rule 11, for example, imposes an objective standard of reasonable inquiry which does not mandate a finding of bad faith.11 See Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U. S. 533, 548-549 (1991). It is true that the exercise of the inherent power of lower federal courts can be limited by statute and rule, for “[t]hese courts were created by act of Congress.” Robinson, 19 Wall., at 511. Nevertheless, “we do not lightly assume that Congress has intended to depart from established principles” such as the scope of a court’s inherent power. Weinberger v. Romero-Barcelo, 456 U. S. 305, 313 (1982); see also Link, 370 U. S., at 631-632. In Alyeska we determined that “Congress ha[d] not repudiated the judicially fashioned exceptions” to the American Rule, which were founded in the inherent power of the courts. 421 U. S., at 260. Nothing since then has changed that assessment,11 12 and we have thus 11 Indeed, Rule 11 was amended in 1983 precisely because the subjective bad-faith standard was difficult to establish and courts were therefore reluctant to invoke it as a means of imposing sanctions. See Advisory Committee’s Notes on 1983 Amendment to Rule 11, 28 U. S. C. App., pp. 575-576. Consequently, there is little risk that courts will invoke their inherent power “to chill the advocacy of litigants attempting to vindicate all other important federal rights.” See post, at 68 (Kennedy, J., dissenting). To the extent that such a risk does exist, it is no less present when a court invokes Rule 11. See Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 393 (1990). 12 Chambers also asserts that all inherent powers are not created equal. Relying on Eash v. Riggins Trucking Inc., 757 F. 2d 557, 562-563 (CA3 1985) (en banc), he suggests that inherent powers fall into three tiers: (1) 48 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. reaffirmed the scope and the existence of the exceptions since the most recent amendments to § 1927 and Rule 11, the other sanctioning mechanisms invoked by NASCO here. See Pennsylvania n. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546, 561-562, and n. 6 (1986). As the Court of Appeals recognized, 894 F. 2d, at 702, the amendment to § 1927 allowing an assessment of fees against an attorney says nothing about a court’s power to assess fees against a party. Likewise, the Advisory Committee’s Notes on the 1983 Amendment to Rule 11, 28 U. S. C. App., p. 575, declare that the Rule “build[s] upon and expand[s] the equitable doctrine permitting the court to award expenses, including attorney’s fees, to a litigant whose opponent acts in bad faith in instituting or conducting litigation,” citing as support this Court’s decisions in Roadway Express and Hall.13 Thus, as the Court of Appeals for the Ninth Circuit has recognized, Rule 11 “does not repeal or modify existing authority of federal courts to deal with abuses . . . under the court’s irreducible powers derived from Article III, which exist despite contrary legislative direction; (2) essential powers that arise from the nature of the court, which can be legislatively regulated but not abrogated; and (3) powers that are necessary only in the sense of being useful, which exist absent legislation to the contrary. Brief for Petitioner 17. Chambers acknowledges that this Court has never so classified the inherent powers, and we have no need to do so now. Even assuming, arguendo, that the power to shift fees falls into the bottom tier of this alleged hierarchy of inherent powers, Chambers’ argument is unavailing, because we find no legislative intent to limit the scope of this power. 18 The Advisory Committee’s Notes on the 1983 Amendments to other Rules reflect a similar intent to preserve the scope of the inherent power. While the Notes to Rule 16, 28 U. S. C. App., p. 591, point out that the sanctioning provisions are designed “to obviate dependence upon Rule 41(b) or the court’s inherent power,” there is no indication of an intent to displace the inherent power, but rather simply to provide courts with an additional tool by which to control the judicial process. The Notes to Rule 26(g), 28 U. S. C. App., p. 622, point out that the rule “makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it. This authority derives from Rule 37, 28 U. S. C. § 1927, and the court’s inherent power.” (Citations omitted.) CHAMBERS v. NASCO, INC. 49 32 Opinion of the Court inherent power.” Zaldivar v. Los Angeles, 780 F. 2d 823, 830 (1986). The Court’s prior cases have indicated that the inherent power of a court can be invoked even if procedural rules exist which sanction the same conduct. In Link, it was recognized that a federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute, even though the language of Federal Rule of Civil Procedure 41(b) appeared to require a motion from a party: “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. That it has long gone unquestioned is apparent not only from the many state court decisions sustaining such dismissals, but even from language in this Court’s opinion in Redfield v. Ystalyfera Iron Co., 110 U. S. 174, 176. It also has the sanction of wide usage among the District Courts. It would require a much clearer expression of purpose than Rule 41(b) provides for us to assume that it was intended to abrogate so well-acknowledged a proposition.” 370 U. S., at 630-632 (footnotes omitted). In Roadway Express, a party failed to comply with discovery orders and a court order concerning the schedule for filing briefs. 447 U. S., at 755. After determining that § 1927, as it then existed, would not allow for the assessment of attorney’s fees, we remanded the case for a consideration of sanctions under both Federal Rule of Civil Procedure 37 and the court’s inherent power, while recognizing that invocation of the inherent power would require a finding of bad faith.14 Id., at 767. 14 The decision in Société Internationale pour Participations Industrielles et Commerciales, S. A. v. Rogers, 357 U. S. 197 (1958), is not to the 50 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. There is, therefore, nothing in the other sanctioning mechanisms or prior cases interpreting them that warrants a conclusion that a federal court may not, as a matter of law, resort to its inherent power to impose attorney’s fees as a sanction for bad-faith conduct. This is plainly the case where the conduct at issue is not covered by one of the other sanctioning provisions. But neither is a federal court forbidden to sanction bad-faith conduct by means of the inherent power simply because that conduct could also be sanctioned under the statute or the Rules. A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees, see Roadway Express, supra, at 767. Furthermore, when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules rather than the inherent power. But if in the informed discretion of the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power. Like the Court of Appeals, we find no abuse of discretion in resorting to the inherent power in the circumstances of this case. It is true that the District Court could have employed Rule 11 to sanction Chambers for filing “false and frivolous pleadings,” 124 F. R. D., at 138, and that some of the other conduct might have been reached through other Rules. Much of the bad-faith conduct by Chambers, however, was contrary. There it was held that the Court of Appeals had erred in relying on the District Court’s inherent power and Rule 41(b), rather than Federal Rule of Civil Procedure 37(b)(2)(iii), in dismissing a complaint for a plaintiff’s failure to comply with a discovery order. Because Rule 37 dealt specifically with discovery sanctions, id., at 207, there was “no need” to resort to Rule 41(b), which pertains to trials, or to the court’s inherent power, ibid. Moreover, because individual rules address specific problems, in many instances it might be improper to invoke one when another directly applies. Cf. Zaldivar v. Los Angeles, 780 F. 2d 823, 830 (CA9 1986). CHAMBERS v. NASCO, INC. 51 32 Opinion of the Court beyond the reach of the Rules; his entire course of conduct throughout the lawsuit evidenced bad faith and an attempt to perpetrate a fraud on the court, and the conduct sanctionable under the Rules was intertwined within conduct that only the inherent power could address. In circumstances such as these in which all of a litigant’s conduct is deemed sanctionable, requiring a court first to apply Rules and statutes containing sanctioning provisions to discrete occurrences before invoking inherent power to address remaining instances of sanctionable conduct would serve only to foster extensive and needless satellite litigation, which is contrary to the aim of the Rules themselves. See, e. g., Advisory Committee’s Notes on 1983 Amendment to Rule 11, 28 U. S. C. App., pp. 575-576. We likewise do not find that the District Court’s reliance on the inherent power thwarted the purposes of the other sanctioning mechanisms. Although Justice Kennedy’s dissent makes much of the fact that Rule 11 and Rule 26(g) “are cast in mandatory terms,” post, at 66, the mandate of these provisions extends only to whether a court must impose sanctions, not to which sanction it must impose. Indeed, the language of both Rules requires only that a court impose “an appropriate sanction.” Thus, this case is distinguishable from Bank of Nova Scotia v. United States, 487 U. S. 250 (1988), in which this Court held that a district court could not rely on its supervisory power as a means of circumventing the clear mandate of a procedural rule. Id., at 254-255. Ill Chambers asserts that even if federal courts can use their inherent power to assess attorney’s fees as a sanction in some cases, they are not free to do so when they sit in diversity, unless the applicable state law recognizes the “bad-faith” exception to the general rule against fee shifting. He relies on footnote 31 in Alyeska, in which we stated with regard to the exceptions to the American Rule that “[a] very different situ 52 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. ation is presented when a federal court sits in a diversity case. ‘[I]n an ordinary diversity case where the state law does not run counter to a valid federal statute or rule of court, and usually it will not, state law denying the right to attorney’s fees or giving a right thereto, which reflects a substantial policy of the state, should be followed.’ 6 J. Moore, Federal Practice U54.77[2], pp. 1712-1713 (2d ed. 1974) (footnotes omitted).” 421 U. S., at 259, n. 31. We agree with NASCO that Chambers has misinterpreted footnote 31. The limitation on a court’s inherent power described there applies only to fee-shifting rules that embody a substantive policy, such as a statute which permits a prevailing party in certain classes of litigation to recover fees. That was precisely the issue in Sioux County v. National Surety Co., 276 U. S. 238 (1928), the only case cited in footnote 31. There, a state statute mandated that in actions to enforce an insurance policy, the court was to award the plaintiff a reasonable attorney’s fee. See id., at 242, and n. 2. In enforcing the statute, the Court treated the provision as part of a statutory liability which created a substantive right. Id., at 241-242. Indeed, Alyeska itself concerned the substantive nature of the public policy choices involved in deciding whether vindication of the rights afforded by a particular statute is important enough to warrant the award of fees. See 421 U. S., at 260-263. Only when there is a conflict between state and federal substantive law are the concerns of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), at issue. As we explained in Hanna v. Plumer, 380 U. S. 460 (1965), the “outcome determinative” test of Erie and Guaranty Trust Co. v. York, 326 U. S. 99 (1945), “cannot be read without reference to the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.” 380 U. S., at 468. Despite Chambers’ protestations to the contrary, neither of these twin aims is implicated by the assessment of attorney’s fees as a sanction for bad-faith conduct before the CHAMBERS v. NASCO, INC. 53 32 Opinion of the Court court which involved disobedience of the court’s orders and the attempt to defraud the court itself. In our recent decision in Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U. S., at 553, we stated, “Rule 11 sanctions do not constitute the kind of fee shifting at issue in Alyeska [because they] are not tied to the outcome of litigation; the relevant inquiry is whether a specific filing was, if not successful, at least well founded.” Likewise, the imposition of sanctions under the bad-faith exception depends not on which party wins the lawsuit, but on how the parties conduct themselves during the litigation. Consequently, there is no risk that the exception will lead to forum-shopping. Nor is it inequitable to apply the exception to citizens and noncitizens alike, when the party, by controlling his or her conduct in litigation, has the power to determine whether sanctions will be assessed. As the Court of Appeals expressed it: “Erie guarantees a litigant that if he takes his state law cause of action to federal court, and abides by the rules of that court, the result in his case will be the same as if he had brought it in state court. It does not allow him to waste the court’s time and resources with cantankerous conduct, even in the unlikely event a state court would allow him to do so.” 894 F. 2d, at 706. As Chambers has recognized, see Brief for Petitioner 15, in the case of the bad-faith exception to the American Rule, “the underlying rationale of ‘fee shifting’ is, of course, punitive.” Hall, 412 U. S., at 4-5. Cf. Pavelic & LeFlore v. Marvel Entertainment Group, 493 U. S. 120, 126 (1989). “[T]he award of attorney’s fees for bad faith serve[s] the same purpose as a remedial fine imposed for civil contempt,” because “[i]t vindicate[s] the District Court’s authority over a recalcitrant litigant.” Hutto, 437 U. S., at 691. “That the award ha[s] a compensatory effect does not in any event distinguish it from a fine for civil contempt, which also compen 54 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. sates a private party for the consequences of a contemnor’s disobedience.”15 Id., at 691, n. 17. Chambers argues that because the primary purpose of the sanction is punitive, assessing attorney’s fees violates the State’s prohibition on punitive damages. Under Louisiana law, there can be no punitive damages for breach of contract, even when a party has acted in bad faith in breaching the agreement. Lancaster v. Petroleum Corp, of Delaware, 491 So. 2d 768, 779 (La. App. 1986). Cf. La. Civ. Code Ann., Art. 1995 (West 1987). Indeed, “as a general rule attorney’s fees are not allowed a successful litigant in Louisiana except where authorized by statute or by contract.” Rutherford v. Impson, 366 So. 2d 944, 947 (La. App. 1978). It is clear, though, that this general rule focuses on the award of attorney’s fees because of a party’s success on the underlying claim. Thus, in Frank L. Beier Radio, Inc. n. Black Gold Marine, Inc., 449 So. 2d 1014 (La. 1984), the state court considered the scope of a statute which permitted an award of attorney’s fees in a suit seeking to collect on an open account. Id., at 1015. This substantive state policy is not implicated here, where sanctions were imposed for conduct during the litigation. Here, the District Court did not attempt to sanction petitioner for breach of contract,16 but rather imposed sanctions for the fraud he perpetrated on the court and the bad faith he displayed toward both his adversary and the court throughout the course of the litigation.17 See 124 F. R. D., at 123, 15 Consequently, Chambers’ reformulated argument in his reply brief that the primary purpose of a fee shift under the bad-faith exception “has always been compensatory,” Reply Brief for Petitioner 15-16, fails utterly. 16 We therefore express no opinion as to whether the District Court would have had the inherent power to sanction Chambers for conduct relating to the underlying breach of contract, or whether such sanctions might implicate the concerns of Erie. 17 Contrary to Chambers’ assertion, the District Court did not sanction him for failing to file the requisite papers with the FCC in September 1983, although the District Court did find that this conduct was a deliberate CHAMBERS v. NASCO, INC. 55 32 Opinion of the Court 143. We agree with the Court of Appeals that “[w]e do not see how the district court’s inherent power to tax fees for that conduct can be made subservient to any state policy without transgressing the boundaries set out in Erie, Guaranty Trust Co., and Hanna,” for “[f]ee-shifting here is not a matter of substantive remedy, but of vindicating judicial authority.” 894 F. 2d, at 705. IV We review a court’s imposition of sanctions under its inherent power for abuse of discretion. Link, 370 U. S., at 633; see also Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 399-405 (1990) (Rule 11). Based on the circumstances of this case, we find that the District Court acted within its discretion in assessing as a sanction for Chambers’ bad-faith conduct the entire amount of NASCO’s attorney’s fees. Relying on cases imposing sanctions under Rule 11,18 Chambers proffers five criteria for imposing attorney’s fees as a sanction under a court’s inherent power, and argues that the District Court acted improperly with regard to each of violation of the agreement and was done “in absolute bad faith,” 124 F. R. D., at 125. As the court noted, “the allegedly sanctionable acts were committed in the conduct and trial of the very proceeding in which sanctions [were] sought,” id., at 141, n. 11, and thus the sanctions imposed “applied] only to sanctionable acts which occurred in connection with the proceedings in the trial Court,” id., at 143. Although the fraudulent transfer of assets took place before the suit was filed, it occurred after Chambers was given notice, pursuant to court rule, of the pending suit. Consequently, the sanctions imposed on Chambers were aimed at punishing not only the harm done to NASCO, but also the harm done to the court itself. Indeed, the District Court made clear that it was policing abuse of its own process when it imposed sanctions “for the manner in which this proceeding was conducted in the district court from October 14, 1983, the time that plaintiff gave notice of its intention to file suit.” Id., at 123. 18 See, e. g., In re Kunstler, 914 F. 2d 505 (CA4 1990), cert, denied, 499 U. S. 969 (1991); White v. General Motors Corp., 908 F. 2d 675 (CAIO 1990); Thomas n. Capital Security Services, Inc., 836 F. 2d 866 (CA5 1988) (en banc). 56 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. them. First, he asserts that sanctions must be timely in order to have the desired deterrent effect, and that the postjudgment sanction imposed here fails to achieve that aim. As NASCO points out, however, we have made clear that, even under Rule 11, sanctions may be imposed years after a judgment on the merits.19 Id., at 395-396. Interrupting the proceedings on the merits to conduct sanctions hearings may serve only to reward a party seeking delay. More importantly, while the sanction was not assessed until the conclusion of the litigation, Chambers received repeated timely warnings both from NASCO and the court that his conduct was sanctionable. Cf. Thomas v. Capital Security Services, Inc., 836 F. 2d 866, 879-881 (CA5 1988) (en banc). Consequently, the District Court’s reliance on the inherent power did not represent an end run around the notice requirements of Rule 11. The fact that Chambers obstinately refused to be deterred does not rehder the District Court’s action an abuse of discretion. Second, Chambers claims that the fact that the entire amount of fees was awarded means that the District Court failed to tailor the sanction to the particular wrong. As NASCO points out, however, the District Court concluded that full attorney’s fees were warranted due to the frequency and severity of Chambers’ abuses of the judicial system and the resulting need to ensure that such abuses were not repeated.20 Indeed, the court found Chambers’ actions were 19 Cf. Advisory Committee Notes on 1983 Amendment to Rule 11, 28 U. S. C. App., p. 576 (“The time when sanctions are to be imposed rests in the discretion of the trial judge. However, it is anticipated that in the case of pleadings the sanctions issue under Rule 11 normally will be determined at the end of the litigation, and in the case of motions at the time when the motion is decided or shortly thereafter”). 20 In particular, Chambers challenges the assessment of attorney’s fees in connection with NASCO’s claim for delay damages and with the closing of the sale. As NASCO points out, however, Chambers’ bad-faith conduct in the course of the litigation caused the delay for which damages were CHAMBERS v. NASCO, INC. 57 32 Opinion of the Court “part of [a] sordid scheme of deliberate misuse of the judicial process” designed “to defeat NASCO’s claim by harassment, repeated and endless delay, mountainous expense and waste of financial resources.” 124 F. R. D., at 128. It was within the court’s discretion to vindicate itself and compensate NASCO by requiring Chambers to pay for all attorney’s fees. Cf. Toledo Scale, 261 U. S., at 428. Third, Chambers maintains that the District Court abused its discretion by failing to require NASCO to mitigate its expenses. He asserts that had NASCO sought summary disposition of the case, the litigation could have been concluded much sooner. But, as NASCO notes, Chambers himself made a swift conclusion to the litigation by means of summary judgment impossible by continuing to assert that material factual disputes existed. Fourth, Chambers challenges the District Court’s imposition of sanctions for conduct before other tribunals, including the FCC, the Court of Appeals, and this Court, asserting that a court may sanction only conduct occurring in its presence. Our cases are to the contrary, however. As long as a party receives an appropriate hearing, as did Chambers, see 124 F. R. D., at 141, n. 11, the party may be sanctioned for abuses of process occurring beyond the courtroom, such as disobeying the court’s orders. See Young, 481 U. S., at 798; Toledo Scale, supra, at 426-428. Here, for example, Chambers’ attempt to gain the FCC’s permission to build a new transmission tower was in direct contravention of the District Court’s orders to maintain the status quo pending the outcome of the litigation and was therefore within the scope of the District Court’s sanctioning power. Finally, Chambers claims the award is not “personalized,” because the District Court failed to conduct any inquiry into whether he was personally responsible for the challenged conduct. This assertion is flatly contradicted by the District sought and greatly complicated the closing of the sale, through the cloud on the title caused by the fraudulent transfer. 58 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. Court’s detailed factual findings concerning Chambers’ involvement in the sequence of events at issue. Indeed, the court specifically held that “the extraordinary amount of costs and expenses expended in this proceeding were caused not by lack of diligence or any delays in the trial of this matter by NASCO, NASCO’s counsel or the Court, but solely by the relentless, repeated fraudulent and brazenly unethical efforts of Chambers” and the others. 124 F. R. D., at 136. The Court of Appeals saw no reason to disturb this finding. 894 F. 2d, at 706. Neither do we. For the foregoing reasons, the judgment of the Court of Appeals for the Fifth Circuit is Affirmed. Justice Scalia, dissenting. I agree with the Court that Article III courts, as an independent and coequal Branch of Government, derive from the Constitution itself, once they have been created and their jurisdiction established, the authority to do what courts have traditionally done in order to accomplish their assigned tasks. Some elements of that inherent authority are so essential to “[t]he judicial Power,” U. S. Const., Art. Ill, §1, that they are indefeasible, among which is a court’s ability to enter orders protecting the integrity of its proceedings. “Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. . . . To fine for contempt—imprison for contumacy—inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute . . . .” United States v. Hudson, 7 Cranch 32, 34 (1812). I think some explanation might be useful regarding the “bad-faith” limitation that the Court alludes to today, see ante, at 47. Since necessity does not depend upon a liti CHAMBERS v. NASCO, INC. 59 32 Scalia, J., dissenting gant’s state of mind, the inherent sanctioning power must extend to situations involving less than bad faith. For example, a court has the power to dismiss when counsel fails to appear for trial, even if this is a consequence of negligence rather than bad faith. “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U. S. 626, 630-631 (1962). However, a “bad-faith” limitation upon the particular sanction of attorney’s fees derives from our jurisprudence regarding the so-called American Rule, which provides that the prevailing party must bear his own attorney’s fees and cannot have them assessed against the loser. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975). That rule, “deeply rooted in our history and in congressional policy,” id., at 271, prevents a court (without statutory authorization) from engaging in what might be termed substantive fee shifting, that is, fee shifting as part of the merits award. It does not in principle bar fee shifting as a sanction for procedural abuse, see id., at 258-259. We have held, however—in my view as a means of preventing erosion or evasion of the American Rule—that even fee shifting as a sanction can only be imposed for litigation conduct characterized by bad faith. See Roadway Express, Inc. v. Piper, 447 U. S. 752, 766 (1980). But that in no way means that all sanctions imposed under the courts’ inherent authority require a finding of bad faith. They do not. See Redfield n. Ystalyfera Iron Co., 110 U. S. 174, 176 (1884) (dismissal appropriate for unexcused delay in prosecution); cf. Link, supra. Just as Congress may to some degree specify the manner in which the inherent or constitutionally assigned powers of 60 OCTOBER TERM, 1990 Kennedy, J., dissenting 501 U. S. the President will be exercised, so long as the effectiveness of those powers is not impaired, cf. Myers v. United States, 272 U. S. 52, 128 (1926), so also Congress may prescribe the means by which the courts may protect the integrity of their proceedings. A court must use the prescribed means unless for some reason they are inadequate. In the present case they undoubtedly were. Justice Kennedy concedes that some of the impairments of the District Court’s proceedings in the present case were not sanctionable under the Federal Rules. I have no doubt of a court’s authority to go beyond the Rules in such circumstances. And I agree with the Court that an overall sanction resting at least in substantial portion upon the court’s inherent power need not be broken down into its component parts, with the actions sustainable under the Rules separately computed. I do not read the Rules at issue here to require that, and it is unreasonable to import such needless complication by implication. I disagree, however, with the Court’s statement that a court’s inherent power reaches conduct “beyond the court’s confines” that does not “ ‘interfere] with the conduct of trial,’” ante, at 44 (quoting Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787, 798 (1987)). See id., at 819-822 (Scalia, J., concurring in judgment); Bank of Nova Scotia v. United States, 487 U. S. 250, 264 (1988) (Scalia, J., concurring). I emphatically agree with Justice Kennedy, therefore, that the District Court here had no power to impose any sanctions for petitioner’s flagrant, bad-faith breach of contract; and I agree with him that it appears to have done so. For that reason, I dissent. Justice Kennedy, with whom The Chief Justice and Justice Souter join, dissenting. Today’s decision effects a vast expansion of the power of federal courts, unauthorized by Rule or statute. I have no doubt petitioner engaged in sanctionable conduct that warrants severe corrective measures. But our outrage at his CHAMBERS v. NASCO, INC. 61 32 Kennedy, J., dissenting conduct should not obscure the boundaries of settled legal categories. With all respect, I submit the Court commits two fundamental errors. First, it permits the exercise of inherent sanctioning powers without prior recourse to controlling Rules and statutes, thereby arrogating to federal courts Congress’ power to regulate fees and costs. Second, the Court upholds the wholesale shift of respondent’s attorney’s fees to petitioner, even though the District Court opinion reveals that petitioner was sanctioned at least in part for his so-called bad-faith breach of contract. The extension of inherent authority to sanction a party’s prelitigation conduct subverts the American Rule and turns the Erie doctrine upside down by punishing petitioner’s primary conduct contrary to Louisiana law. Because I believe the proper exercise of inherent powers requires exhaustion of express sanctioning provisions and much greater caution in their application to redress prelitigation conduct, I dissent. I The Court’s first error lies in its failure to require reliance, when possible, on the panoply of express sanctioning provisions provided by Congress. A The American Rule prohibits federal courts from awarding attorney’s fees in the absence of a statute or contract providing for a fee award. Alyeska Pipeline Service Co. v. Wilderness Society, 421U. S. 240, 258-259 (1975). The Rule recognizes that Congress defines the procedural and remedial powers of federal courts, Sibbach v. Wilson & Co., 312 U. S. 1, 9-10 (1941); McIntire v. Wood, 7 Cranch 504, 505-506 (1813), and controls the costs, sanctions, and fines available there, Kaiser Aluminum & Chemical Corp. v. Bonjomo, 494 U. S. 827, 835 (1990) (“[T]he allocation of the costs accruing from litigation is a matter for the legislature, not the courts”); Alyeska Pipeline Co., supra, at 262 (“[T]he circum 62 OCTOBER TERM, 1990 Kennedy, J., dissenting 501 U. S. stances under which attorney’s fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine”). By direct action and delegation, Congress has exercised this constitutional prerogative to provide district courts with a comprehensive arsenal of Federal Rules and statutes to protect themselves from abuse. A district court can punish contempt of its authority, including disobedience of its process, by fine or imprisonment, 18 U. S. C. § 401; award costs, expenses, and attorney’s fees against attorneys who multiply proceedings vexatiously, 28 U. S. C. § 1927; sanction a party and/or the party’s attorney for filing groundless pleadings, motions, or other papers, Fed. Rule Civ. Proc. 11; sanction a party and/or his attorney for failure to abide by a pretrial order, Fed. Rule Civ. Proc. 16(f); sanction a party and/or his attorney for baseless discovery requests or objections, Fed. Rule Civ. Proc. 26(g); award expenses caused by a failure to attend a deposition or to serve a subpoena on a party to be deposed, Fed. Rule Civ. Proc. 30(g); award expenses when a party fails to respond to discovery requests or fails to participate in the framing of a discovery plan, Fed. Rules Civ. Proc. 37(d) and (g); dismiss an action or claim of a party that fails to prosecute, to comply with the Federal Rules, or to obey an order of the court, Fed. Rule Civ. Proc. 41(b); punish any person who fails to obey a subpoena, Fed. Rule Civ. Proc. 45(f); award expenses and/or contempt damages when a party presents an affidavit in a summary judgment motion in bad faith or for the purpose of delay, Fed. Rule Civ. Proc. 56(g); and make rules governing local practice that are not inconsistent with the Federal Rules, Fed. Rule Civ. Proc. 81. See also 28 U. S. C. § 1912 (power to award just damages and costs on affirmance); Fed. Rule App. Proc. 38 (power to award damages and costs for frivolous appeal). The Court holds nonetheless that a federal court may ignore these provisions and exercise inherent power to sanction bad-faith misconduct “even if procedural rules exist which CHAMBERS v. NASCO, INC. 63 32 Kennedy, J., dissenting sanction the same conduct.” Ante, at 49. The Court describes the relation between express sanctioning provisions and inherent power to shift fees as a sanction for bad-faith conduct in a number of ways. At one point it states that where “neither the statute nor the Rules are up to the task [i. e., cover all the sanctionable conduct], the court may safely rely on its inherent power.” Ante, at 50. At another it says that courts may place exclusive reliance on inherent authority whenever “conduct sanctionable under the Rules was intertwined within conduct that only the inherent power could address.” Ante, at 51. While the details of the Court’s rule remain obscure, its general approach is clear: When express Rules and statutes provided by Congress do not reach the entirety of a litigant’s bad-faith conduct, including conduct occurring before litigation commenced, a district court may disregard the requirements of otherwise applicable Rules and statutes and instead exercise inherent power to impose sanctions. The only limitation on this sanctioning authority appears to be a finding at some point of “bad faith,” a standard the Court fails to define. This explanation of the permitted sphere of inherent powers to shift fees as a sanction for bad-faith litigation conduct is as illegitimate as it is unprecedented. The American Rule recognizes that the Legislature, not the Judiciary, possesses constitutional responsibility for defining sanctions and fees; the bad-faith exception to the Rule allows courts to assess fees not provided for by Congress “in narrowly defined circumstances.” Roadway Express, Inc. n. Piper, 447 U. S. 752, 765 (1980). By allowing courts to ignore express Rules and statutes on point, however, the Court treats inherent powers as the norm and textual bases of authority as the exception. And although the Court recognizes that Congress in theory may channel inherent powers through passage of sanctioning Rules, it relies on Weinberger n. Romero-Barcelo, 456 U. S. 305 (1982), a decision that has nothing to do with 64 OCTOBER TERM, 1990 Kennedy, J., dissenting 501 U. S. inherent authority, to create a powerful presumption against congressional control of judicial sanctions. Ante, at 47. The Court has the presumption backwards. Inherent powers are the exception, not the rule, and their assertion requires special justification in each case. Like all applications of inherent power, the authority to sanction bad-faith litigation practices can be exercised only when necessary to preserve the authority of the court. See Roadway Express, Inc. v. Piper, supra, at 764 (inherent powers “are those which ‘are necessary to the exercise of all others’”); Young n. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787, 819-820 (1987) (Scalia, J., concurring in judgment) (inherent powers only those “necessary to permit the courts to function”). The necessity limitation, which the Court brushes aside almost without mention, ante, at 43, prescribes the rule for the correct application of inherent powers. Although this case does not require articulation of a comprehensive definition of the term “necessary,” at the very least a court need not exercise inherent power if Congress has provided a mechanism to achieve the same end. Consistent with our unaltered admonition that inherent powers must be exercised “with great caution,” Ex parte Burr, 9 Wheat. 529, 531 (1824), the necessity predicate limits the exercise of inherent powers to those exceptional instances in which congressionally authorized powers fail to protect the processes of the court. Inherent powers can be exercised only when necessary, and there is no necessity if a Rule or statute provides a basis for sanctions. It follows that a district court should rely on text-based authority derived from Congress rather than inherent power in every case where the text-based authority applies. Despite the Court’s suggestion to the contrary, ante, at 48-49, our cases recognize that Rules and statutes limit the exercise of inherent authority. In Societe Internationale pour Participations Industrielles et Commerciales, S. A. v. Rog- CHAMBERS v. NASCO, INC. 65 32 Kennedy, J., dissenting ers, 357 U. S. 197 (1958), we rejected the Court of Appeals’ reliance on inherent powers to uphold a dismissal of a complaint for failure to comply with a production order. Noting that “[r]eliance upon . . . ‘inherent power’ can only obscure analysis of the problem,” we held that “whether a court has power to dismiss a complaint because of non-compliance with a production order depends exclusively upon Rule 37.” Id., at 207. Similarly, in Bank of Nova Scotia v. United States, 487 U. S. 250, 254 (1988), we held that a federal court could not invoke its inherent supervisory power to circumvent the harmless-error inquiry prescribed by Federal Rule of Criminal Procedure 52(a). And Ex parte Robinson, 19 Wall. 505 (1874), the very case the Court cites for the proposition that “‘[t]he power to punish for contempts is inherent in all courts,’” ante, at 44, held that Congress had defined and limited this inherent power through enactment of the contempt statute. “The enactment is a limitation upon the manner in which the [contempt] power shall be exercised.” 19 Wall., at 512. The Court ignores these rulings and relies instead on two decisions which “indicat[e] that the inherent power of a court can be invoked even if procedural rules exist which sanction the same conduct.” Ante, at 49. The “indications” the Court discerns in these decisions do not withstand scrutiny. In Roadway Express, Inc. v. Piper, supra, we held that the costs recoverable under a prior version of 28 U. S. C. § 1927 for discovery abuse did not include attorney’s fees. In the remand instruction, the Court mentioned that the District Court might consider awarding attorney’s fees under either Federal Rule of Civil Procedure 37 or its inherent authority to sanction bad-faith litigation practices. 447 U.S., at 767-768. The decision did not discuss the relation between Rule 37 and the inherent power of federal courts, and certainly did not suggest that federal courts could rely on inherent powers to the exclusion of a Federal Rule on point. 66 OCTOBER TERM, 1990 Kennedy, J., dissenting 501 U. S. The Court also misreads Link v. Wabash R. Co., 370 U. S. 626 (1962). Link held that a Federal District Court possessed inherent power to dismiss a case sua sponte for failure to prosecute. The majority suggests that this holding contravened a prior version of Federal Rule of Civil Procedure 41(b), which the Court today states “appeared to require a motion from a party,” ante, at 49 (emphasis added). Contrary to the Court’s characterization, the holding in Link turned on a determination that Rule 41(b) contained “permissive language . . . which merely authorizes a motion by the defendant,” 370 U. S., at 630 (emphasis added). Link reasoned that “[n]either the permissive language of the Rule . . . nor its policy” meant that the Rule “abrogate[d]” the inherent power of federal courts to dismiss sua sponte. The permissive language at issue in Link distinguishes it from the present context, because some sanctioning provisions, such as Rules 11 and 26(g), are cast in mandatory terms. In addition to dismissing some of our precedents and misreading others, the Court ignores the commands of the Federal Rules of Civil Procedure, which support the conclusion that a court should rely on rules, and not inherent powers, whenever possible. Like the Federal Rules of Criminal Procedure, the Federal Rules of Civil Procedure are “as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard the Rule[s’] mandate than they do to disregard constitutional or statutory provisions.” Bank of Nova Scotia v. United States, supra, at 255. See also Fed. Rule Civ. Proc. 1 (Federal Rules “govern the procedure in the United States district courts in all suits of a civil nature”) (emphasis added). Two of the most prominent sanctioning provisions, Rules 11 and 26(g), mandate the imposition of sanctions when litigants violate the Rules’ certification standards. See Fed. Rule Civ. Proc. 11 (court “shall impose ... an appropriate sanction” for violation of certification standard); Fed. Rule Civ. Proc. 26(g) (same); see also Business Guides, Inc. v. Chromatic Communications Enter CHAMBERS v. NASCO, INC. 67 32 Kennedy, J., dissenting prises, Inc., 498 U. S. 533, 543 (1991) (Rule 11 “requires that sanctions be imposed where a signature is present but fails to satisfy the certification standard”). The Rules themselves thus reject the contention that they may be discarded in a court’s discretion. Disregard of applicable Rules also circumvents the rulemaking procedures in 28 U. S. C. §2071 et seq., which Congress designed to assure that procedural innovations like those announced today “shall be introduced only after mature consideration of informed opinion from all relevant quarters, with all the opportunities for comprehensive and integrated treatment which such consideration affords.” Miner v. Atlass, 363 U. S. 641, 650 (1960). B Upon a finding of bad faith, courts may now ignore any and all textual limitations on sanctioning power. By inviting district courts to rely on inherent authority as a substitute for attention to the careful distinctions contained in the Rules and statutes, today’s decision will render these sources of authority superfluous in many instances. A number of pernicious practical effects will follow. The Federal Rules establish explicit standards for, and explicit checks against, the exercise of judicial authority. Rule 11 provides a useful illustration. It requires a district court to impose reasonable sanctions, including attorney’s fees, when a party or attorney violates the certification standards that attach to the signing of certain legal papers. A district court must (rather than may) issue sanctions under Rule 11 when particular individuals (signers) file certain types (groundless, unwarranted, vexatious) of documents (pleadings, motions and papers). Rule Il’s certification requirements apply to all signers of documents, including represented parties, see Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., supra, but law firms are not responsible for the signatures of their attorneys, see Pav-elic & LeFlore v. Marvel Entertainment Group, 493 U. S. 68 OCTOBER TERM, 1990 Kennedy, J., dissenting 501 U. S. 120, 125-127 (1989), and the Rule does not apply to papers filed in fora other than district courts, see Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 405-409 (1990). These definite standards give litigants notice of proscribed conduct and make possible meaningful review for misuse of discretion— review which focuses on the misapplication of legal standards. See id., at 402 (misuse of discretion standard does “not preclude the appellate court’s correction of a district court’s legal errors”). By contrast, courts apply inherent powers without specific definitional or procedural limits. True, if a district court wishes to shift attorney’s fees as a sanction, it must make a finding of bad faith to circumvent the American Rule. But today’s decision demonstrates how little guidance or limitation the undefined bad-faith predicate provides. The Court states without elaboration that courts must “comply with the mandates of due process ... in determining that the requisite bad faith exists,” ante, at 50, but the Court’s bad-faith standard, at least without adequate definition, thwarts the first requirement of due process, namely, that “[a]ll are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). This standardless exercise of judicial power may appear innocuous in this litigation between commercial actors. But the same unchecked power also can be applied to chill the advocacy of litigants attempting to vindicate all other important federal rights. In addition, the scope of sanctionable conduct under the bad-faith rule appears unlimited. As the Court boasts, “whereas each of the other mechanisms [in Rules and statutes] reaches only certain individuals or conduct, the inherent power extends to a full range of litigation abuses.” Ante, at 46. By allowing exclusive resort to inherent authority whenever “conduct sanctionable under the Rules was intertwined within conduct that only the inherent power could address,” ante, at 51, the Court encourages all courts CHAMBERS v. NASCO, INC. 69 32 Kennedy, J., dissenting in the federal system to find bad-faith misconduct in order to eliminate the need to rely on specific textual provisions. This will ensure the uncertain development of the meaning and scope of these express sanctioning provisions by encouraging their disuse, and will defeat, at least in the area of sanctions, Congress’ central goal in enacting the Federal Rules—“‘uniformity in the federal courts.’” Hanna v. Plumer, 380 U. S. 460, 472 (1965). Finally, as Part IV of the Court’s opinion demonstrates, the lack of any legal requirement other than the talismanic recitation of the phrase “bad faith” will foreclose meaningful review of sanctions based on inherent authority. See Cooter & Gell v. Hart-marx Corp., supra, at 402. Despite these deficiencies, the Court insists that concern about collateral litigation requires courts to place exclusive reliance on inherent authority in cases, like this one, which involve conduct sanctionable under both express provisions and inherent authority: “In circumstances such as these in which all of a litigant’s conduct is deemed santionable, requiring a court first to apply Rules and statutes containing sanctioning provisions to discrete occurrences before invoking inherent power to address remaining instances of sanctionable conduct would serve only to foster extensive and needless satellite litigation, which is contrary to the aim of the Rules themselves.” Ante, at 51. We are bound, however, by the Rules themselves, not their “aim,” and the Rules require that they be applied, in accordance with their terms, to much of the conduct in this case. We should not let policy concerns about the litigation effects of following the Rules distort their clear commands. Nothing in the foregoing discussion suggests that the feeshifting and sanctioning provisions in the Federal Rules and Title 28 eliminate the inherent power to impose sanctions for certain conduct. Limitations on a power do not constitute its abrogation. Cases can arise in which a federal court must 70 OCTOBER TERM, 1990 Kennedy, J., dissenting 501 U. S. act to preserve its authority in a manner not provided for by the Federal Rules or Title 28. But as the number and scope of Rules and statutes governing litigation misconduct increase, the necessity to resort to inherent authority—a predicate to its proper application—lessens. Indeed, it is difficult to imagine a case in which a court can, as the District Court did here, rely on inherent authority as the exclusive basis for sanctions. C The District Court’s own findings concerning abuse of its processes demonstrate that the sanctionable conduct in this case implicated a number of Rules and statutes upon which it should have relied. Rule 11 is the principal provision on point. The District Court found that petitioner and his counsel filed a number of “frivolous pleadings” (including “baseless, affirmative defenses and counterclaims”) that contained “deliberate untruths and fabrications.” NASCO, Inc. v. Calcasieu Television & Radio, Inc., 124 F. R. D. 120, 127-128, 135 (WD La. 1989). Rule 11 sanctions extend to “the person who signed [a paper], a represented party, or both.” The court thus had a nondefeasible duty to impose sanctions under Rule 11. The Court concedes that Rule 11 applied to some of the conduct in this case, ante, at 50, and even hints that the Rule might have sufficed as a basis for all of the sanctions imposed, ante, at 42, n. 8. It fails to explain, however, why the District Court had the discretion to ignore Rule Il’s mandatory language and not impose sanctions under the Rule against Chambers. Nor does the Court inform us why Chambers’ attorneys were not sanctioned under Rule 11. Although the District Court referred to Chambers as the “strategist” for the abusive conduct, it made plain that petitioner’s attorneys as well as petitioner were responsible for the tactics. For example, the District Court stated: “[Petitioner’s] attorneys, without any investigation whatsoever, filed [the baseless charges and counter- CHAMBERS v. NASCO, INC. 71 32 Kennedy, J., dissenting claims]. We find . . . that these attorneys knew, at the time that they were filed, that they were false.” 124 F. R. D., at 128. The court further stressed that “Chambers, through his attorneys, filed answers and counterclaims . . . which both Chambers and his attorneys knew were false at the time they were filed.” Id., at 143. In light of Rule Il’s mandatory language, the District Court had a duty to impose at least some sanctions under Rule 11 against Chambers’ attorneys. The District Court should have relied as well upon other sources of authority to impose sanctions. The court found that Chambers and his attorneys requested “[absolutely needless depositions” as well as “continuances of trial dates, extensions of deadlines and deferments of scheduled discovery” that “were simply part of the sordid scheme of deliberate misuse of the judicial process ... to defeat NASCO’s claim by harassment, repeated and endless delay, mountainous expense and waste of financial resources.” Id., at 128. The intentional pretrial delays could have been sanctioned under Federal Rule of Civil Procedure 16(f), which enables courts to impose sanctions, including attorney’s fees, when a party or attorney “fails to participate in good faith” in certain pretrial proceedings; the multiple discovery abuses should have been redressed by “an appropriate sanction, . . . including a reasonable attorney’s fee,” under Federal Rule of Civil Procedure 26(g). The District Court also could have sanctioned Chambers and his attorneys for the various bad-faith affidavits they presented in their summary judgment motions, see 124 F. R. D., at 128, 135, under Federal Rule of Civil Procedure 56(g), a Rule that permits the award of expenses and attorney’s fees and the additional sanction of contempt. In addition, the District Court could have relied to a much greater extent on 18 U. S. C. §401 to punish the “contempt of its authority” and “[disobedience . . . to its . . . process” that petitioner and his counsel displayed throughout the proceedings. 72 OCTOBER TERM, 1990 Kennedy, J., dissenting 501 U. S. Finally, the District Court was too quick to dismiss reliance on 28 U. S. C. § 1927, which allows it to award costs and attorney’s fees against an “attorney . . . who . . . multiplies the proceedings in any case unreasonably and vexatiously.” The District Court refused to apply the provision because it did not reach petitioner’s conduct as a nonattorney. 124 F. R. D., at 138-139. While the District Court has discretion not to apply § 1927, it cannot disregard the statute in the face of attorney misconduct covered by that provision to rely instead on inherent powers which by definition can be invoked only when necessary. II When a District Court imposes sanctions so immense as here under a power so amorphous as inherent authority, it must ensure that its order is confined to conduct under its own authority and jurisdiction to regulate. The District Court failed to discharge this obligation, for it allowed sanctions to be awarded for petitioner’s prelitigation breach of contract. The majority, perhaps wary of the District Court’s authority to extend its inherent power to sanction prelitigation conduct, insists that “the District Court did not attempt to sanction petitioner for breach of contract, but rather imposed sanctions for the fraud he perpetrated on the court and the bad faith he displayed toward both his adversary and the court throughout the course of the litigation.” Ante, at 54 (footnote omitted). Based on this premise, the Court appears to disclaim that its holding reaches prelitigation conduct. Ante, at 54, and nn. 16-17. This does not make the opinion on this point correct, of course, for the District Court’s opinion, in my view, sanctioned petitioner’s prelitigation conduct in express terms. Because I disagree with the Court’s characterization of the District Court opinion, and because I believe the Court’s casual analysis of inherent authority portends a dangerous extension of that authority to prelitigation conduct, I explain why inherent CHAMBERS v. NASCO, INC. 73 32 Kennedy, J., dissenting authority should not be so extended and why the District Court’s order should be reversed. The District Court’s own candid and extensive opinion reveals that the bad faith for which petitioner was sanctioned extended beyond the litigation tactics and comprised as well what the District Court considered to be bad faith in refusing to perform the underlying contract three weeks before the lawsuit began. The court made explicit reference, for instance, to “this massive and absolutely unnecessary lawsuit forced on NASCO by Chambers’ arbitrary and arrogant refusal to honor and perform this perfectly legal and enforceable contract.” 124 F. R. D., at 136. See also id., at 143 (“Chambers arbitrarily and without legal cause refused to perform, forcing NASCO to bring its suit for specific performance”); ibid. (“Chambers, knowing that NASCO had a good and valid contract, hired Gray to find a defense and arbitrarily refused to perform, thereby forcing NASCO to bring its suit for specific performance and injunctive relief”); id., at 125 (petitioner’s “unjustified and arbitrary refusal to file” the FCC application “was in absolute bad faith”). The District Court makes the open and express concession that it is sanctioning petitioner for his breach of contract: “[T]he balance of . . . fees and expenses included in the sanctions, would not have been incurred by NASCO if Chambers had not defaulted and forced NASCO to bring this suit. There is absolutely no reason why Chambers should not reimburse in full all attorney’s fees and expenses that NASCO, by Chambers’ action, was forced to pay.” Id., at 143. The trial court also explained that “[tjhe attorney’s fees and expenses charged to NASCO by its attorneys . . . flowed from and were a direct result of this suit. We shall include them in the attorney’s fees sanctions.” Id., at 142 (emphasis added). 74 OCTOBER TERM, 1990 Kennedy, J., dissenting 501 U. S. Despite the Court’s equivocation on the subject, ante, at 54, n. 16, it is impermissible to allow a District Court acting pursuant to its inherent authority to sanction such prelitigation primary conduct. A court’s inherent authority extends only to remedy abuses of the judicial process. By contrast, awarding damages for a violation of a legal norm, here the binding obligation of a legal contract, is a matter of substantive law, see Marek v. Chesny, 473 U. S. 1, 35 (1985) (“right to attorney’s fees is ‘substantive’ under any reasonable definition of that term”); see also Alyeska, 421 U. S., at 260-261, and n. 33, which must be defined either by Congress (in cases involving federal law) or by the States (in diversity cases). The American Rule recognizes these principles. It bars a federal court from shifting fees as a matter of substantive policy, but its bad-faith exception permits fee shifting as a sanction to the extent necessary to protect the judicial process. The Rule protects each person’s right to go to federal court to define and to vindicate substantive rights. “[S]ince litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 718 (1967). When a federal court, through invocation of its inherent powers, sanctions a party for bad-faith prelitigation conduct, it goes well beyond the exception to the American Rule and violates the Rule’s careful balance between open access to the federal court system and penalties for the willful abuse of it. By exercising inherent power to sanction prelitigation conduct, the District Court exercised authority where Congress gave it none. The circumstance that this exercise of power occurred in a diversity case compounds the error. When a federal court sits in diversity jurisdiction, it lacks constitutional authority to fashion rules of decision governing primary contractual relations. See Erie R. Co. n. Tompkins, 304 U. S. 64, 78 (1938); Hanna v. Plumer, 380 U. S., at 471-472. See generally Ely, The Irrepressible Myth of Erie, CHAMBERS v. NASCO, INC. 75 32 Kennedy, J., dissenting 87 Harv. L. Rev. 693, 702-706 (1974). The Erie principle recognizes that “[e]xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any [diversity] case is the law of the State.” 304 U. S., at 78. The inherent power exercised here violates the fundamental tenet of federalism announced in Erie by regulating primary behavior that the Constitution leaves to the exclusive province of States. The full effect of the District Court’s encroachment on state prerogatives can be appreciated by recalling that the rationale for the bad-faith exception is punishment. Hall v. Cole, 412 U. S. 1, 5 (1973). To the extent that the District Court imposed sanctions by reason of the so-called bad-faith breach of contract, its decree is an award of punitive damages for the breach. Louisiana prohibits punitive damages “unless expressly authorized by statute,” International Harvester Credit Corp. v. Seale, 518 So. 2d 1039, 1041 (La. 1988); and no Louisiana statute authorizes attorney’s fees for breach of contract as a part of damages in an ordinary case, Ogea v. Loffland Brothers Co., 622 F. 2d 186, 190 (CA5 1980); Rutherford v. Impson, 366 So. 2d 944, 947 (La. App. 1978). One rationale for Louisiana’s policy is its determination that “an award of compensatory damages will serve the same deterrent purpose as an award of punitive damages.” Ricard v. State, 390 So. 2d 882, 886 (La. 1980). If respondent had brought this suit in state court it would not have recovered extra damages for breach of contract by reason of the so-called willful character of the breach. Respondent’s decision to bring this suit in federal rather than state court resulted in a significant expansion of the substantive scope of its remedy. This is the result prohibited by Erie and the principles that flow from it. As the Court notes, there are some passages in the District Court opinion suggesting its sanctions were confined to litigation conduct. See ante, at 55, n. 17. (“[T]he sanctions imposed ‘applied] only to sanctionable acts which occurred in 76 OCTOBER TERM, 1990 Kennedy, J., dissenting 501 U. S. connection with the proceedings in the trial Court’”). But these passages in no way contradict the other statements by the trial court which make express reference to prelitigation conduct. At most, these passages render the court’s order ambiguous, for the District Court appears to have adopted an expansive definition of “acts which occurred in connection with” the litigation. There is no question but that some sanctionable acts did occur in court. The problem is that the District Court opinion avoids any clear delineation of the acts being sanctioned and the power invoked to do so. This confusion in the premises of the District Court’s order highlights the mischief caused by reliance on undefined inherent powers rather than on Rules and statutes that proscribe particular behavior. The ambiguity of the scope of the sanctionable conduct cannot be resolved against petitioner alone, who, despite the conceded bad-faith conduct of his attorneys, has been slapped with all of respondent’s not inconsiderable attorney’s fees. At the very least, adherence to the rule of law requires the case to be remanded to the District Court for clarification on the scope of the sanctioned conduct. Ill My discussion should not be construed as approval of the behavior of petitioner and his attorneys in this case. Quite the opposite. Our Rules permit sanctions because much of the conduct of the sort encountered here degrades the profession and disserves justice. District courts must not permit this abuse and must not hesitate to give redress through the Rules and statutes prescribed. It may be that the District Court could have imposed the full million dollar sanction against petitioner through reliance on Federal Rules and statutes, as well as on a proper exercise of its inherent authority. But we should remand here because a federal court must decide cases based on legitimate sources of power. I would reverse the Court of Appeals with instructions to re- CHAMBERS v. NASCO, INC. 77 32 Kennedy, J., dissenting mand to the District Court for a reassessment of sanctions consistent with the principles here set forth. For these reasons, I dissent. 78 OCTOBER TERM, 1990 Syllabus 501 U. S. JOHNSON v. HOME STATE BANK CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 90-693. Argued April 16, 1991—Decided June 10, 1991 After petitioner Johnson defaulted on promissory notes secured with a mortgage on his farm, respondent Home State Bank (Bank) began foreclosure proceedings in state court. While foreclosure proceedings were pending, Johnson filed for liquidation under Chapter 7 of the Bankruptcy Code, and the Bankruptcy Court discharged him from personal liability on the notes. However, because the Bank’s right to proceed against him in rem survived the bankruptcy, see 11 U. S. C. § 522(c)(2); Long v. Bullard, 117 U. S. 617, the Bank reinitiated the foreclosure proceedings once the automatic stay protecting his estate was lifted. The state court entered judgment for the Bank, but before the foreclosure sale, Johnson filed for reorganization under Chapter 13, listing the mortgage as a claim against his estate. The Bankruptcy Court confirmed his plan to pay the Bank’s judgment in installments, but the District Court reversed, ruling that the Code does not allow a debtor to include in a Chapter 13 plan a mortgage used to secure an obligation for which personal liability has been discharged in Chapter 7 proceedings. The court did not reach the Bank’s alternative argument that the Bankruptcy Court erred in finding that Johnson had proposed his plan in good faith and that the plan was feasible. The Court of Appeals affirmed, reasoning that, since Johnson’s personal liability had been discharged, the Bank no longer had a “claim” against Johnson subject to rescheduling under Chapter 13. Held: 1. A mortgage lien securing an obligation for which a debtor’s personal liability has been discharged in a Chapter 7 liquidation is a “claim” within the meaning of § 101(5) and is subject to inclusion in an approved Chapter 13 reorganization Plan. Congress intended in § 101(5) to incorporate the broadest available definition of “claim,” see Pennsylvania Dept, of Public Welfare v. Davenport, 495 U. S. 552. As used in § 101(5), “right to payment” and “right to an equitable remedy” mean “nothing more nor less than an enforceable obligation.” Id., at 559. A surviving mortgage interest corresponds to an “enforceable obligation” of the debtor. Even after the debtor’s personal obligations have been extinguished, the creditor still retains a “right to payment” in the form of its right to the proceeds from the sale of the debtor’s property. Alternatively, the creditor’s surviving right to foreclose on the mortgage can JOHNSON v. HOME STATE BANK 79 78 Syllabus be viewed as a “right to an equitable remedy” for the debtor’s default on the underlying obligation. Thus, a bankruptcy discharge extinguishes only one mode of enforcing a claim—an in personam action—while leaving intact another—an in rem action. Indeed, the need to codify Long v. Bullard, supra, presupposes that a mortgage interest is a “claim,” because only “claims” are discharged. This conclusion is consistent with other parts of the Code—which contemplate circumstances in which a claim may consist of nothing more than a claim against the debtor’s property, § 502(b)(1), and establish that the phrase “ ‘claim against the debtor’ includes claim against” the debtor’s property, § 102(2)—and with the Code’s legislative background and history. The Bank’s contention that serial filings under Chapters 7 and 13 evade the limits that Congress intended to place on the Chapters’ remedies is unpersuasive, since Congress has expressly prohibited various forms of serial filings, see, e. g., § 727(a)(8), yet fashioned no similar prohibition with regard to Chapter 7 and 13 filings. In addition, the full range of Code provisions designed to protect Chapter 13 creditors, see, e. g., § 1325(a), combined with Congress’ intent that “claim” be construed broadly, makes it unlikely that Congress intended to use the Code’s definition of “claim” to police the Chapter 13 process for abuse. Pp. 82-88. 2. Because the lower courts never addressed the issues of Johnson’s good faith or the plan’s feasibility, this Court declines to address those issues and leaves them for consideration on remand. P. 88. 904 F. 2d 563, reversed and remanded. Marshall, J., delivered the opinion for a unanimous Court. . W. Thomas Gilman argued the cause for petitioner. With him on the briefs were Martin R. Ufford, Patricia A. Gilman, Edward J. Nazar, Laurie B. Williams, Mary Patricia Hesse, and Matthew C. Hesse. Calvin D. Rider argued the cause for respondent. With him on the brief were Patricia M. Dengler and Robert C. Brown. * *David A. Searles, Henry J. Sommer, Eric L. Frank, and Mitchell IF. Miller filed a brief for the Consumers Education and Protective Association, Inc., et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Bankers Association by John J. Gill III and Michael F. Crotty; and for the Kansas Bankers Association by Anne L. Baker and Charles N. Henson. 80 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Justice Marshall delivered the opinion of the Court. The issue in this case is whether a debtor can include a mortgage lien in a Chapter 13 bankruptcy reorganization plan once the personal obligation secured by the mortgaged property has been discharged in a Chapter 7 proceeding. We hold that the mortgage lien in such a circumstance remains a “claim” against the debtor that can be rescheduled under Chapter 13. I This case arises from the efforts of respondent Home State Bank (Bank) to foreclose a mortgage on the farm property of petitioner. Petitioner gave the mortgage to secure promissory notes to the Bank totaling approximately $470,000? When petitioner defaulted on these notes, the Bank initiated foreclosure proceedings in state court. During the pendency of these proceedings, petitioner filed for a liquidation under Chapter 7 of the Bankruptcy Code. Pursuant to 11 U. S. C. § 727, the Bankruptcy Court discharged petitioner from personal liability on his promissory notes to the Bank. Notwithstanding the discharge, the Bank’s right to proceed against petitioner in rem survived the Chapter 7 liquidation. After the Bankruptcy Court lifted the automatic stay protecting petitioner’s estate, see 11 U. S. C. §362, the Bank reinitiated the foreclosure proceedings.1 2 Ultimately, the state court entered an in rem judgment of approximately $200,000 for the Bank. Before the foreclosure sale was scheduled to take place, petitioner filed the Chapter 13 petition at issue here. In his 1 At the time at which the mortgage was executed, petitioner co-owned the property in question. However, by the time petitioner filed the Chapter 13 petition at issue in this case, he had acquired his wife’s interest in the property. In addition, although petitioner’s wife was a party in various of the proceedings surrounding disposition of the property, for simplicity we refer only to petitioner’s role in these proceedings. 2 During the course of the proceedings, the Bank acquired from another creditor a superior mortgage interest in petitioner’s property. JOHNSON V. HOME STATE BANK 81 78 Opinion of the Court Chapter 13 plan, petitioner listed the Bank’s mortgage in the farm property as a claim against his estate and proposed to pay the Bank four annual installments and a final “balloon payment” equal in total value to the Bank’s in rem judgment. Over the Bank’s objection, the Bankruptcy Court confirmed the Chapter 13 plan. The Bank appealed to the District Court, arguing that the Code does not allow a debtor to include in a Chapter 13 plan a mortgage used to secure an obligation for which personal liability has been discharged in Chapter 7 proceedings; the Bank argued in the alternative that the Bankruptcy Court had erred in finding that petitioner had proposed the plan in good faith and that the plan was feasible. The District Court accepted the first of these arguments and disposed of the case on that ground. See In re Johnson, 96 B. R. 326, 328-330 (Kan. 1989). The Court of Appeals affirmed. See 904 F. 2d 563 (CAIO 1990). Emphasizing that petitioner’s personal liability on the promissory notes secured by the mortgage had been discharged in the Chapter 7 proceedings, the court reasoned that the Bank no longer had a “claim” against petitioner subject to rescheduling under Chapter 13. See id., at 565, 566. Like the District Court, the Court of Appeals disposed of the case without considering the Bank’s contentions that Johnson’s plan was not in good faith and was not feasible. See id., at 566. In contrast to the decision of the Tenth Circuit in this case, two other Circuit Courts of Appeals have concluded that a debtor can include a mortgage lien in a Chapter 13 plan even after the debtor’s personal liability on the debt secured by the property has been discharged in a Chapter 7 liquidation. See In re Saylors, 869 F. 2d 1434, 1436 (CA11 1989); In re Metz, 820 F. 2d 1495, 1498 (CA9 1987). Having granted certiorari to resolve this conflict, see 498 U. S. 1066 (1991), we now reverse. 82 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. II Chapter 13 of the Bankruptcy Code provides a reorganization remedy for consumer debtors and proprietors with relatively small debts. See generally H. R. Rep. No. 95-595, pp. 116-119 (1977). So long as a debtor meets the eligibility requirements for relief under Chapter 13, see 11 U. S. C. § 109(e),3 he may submit for the bankruptcy court’s confirmation a plan that “modif[ies] the rights of holders of secured claims . . . or . . . unsecured claims,” § 1322(b)(2), and that “provide[s] for the payment of all or any part of any [allowed] claim,” § 1322(b)(6). The issue in this case is whether a mortgage lien that secures an obligation for which a debtor’s personal liability has been discharged in a Chapter 7 liquidation is a “claim” subject to inclusion in an approved Chapter 13 reorganization plan. To put this question in context, we must first say more about the nature of the mortgage interest that survives a Chapter 7 liquidation. A mortgage is an interest in real property that secures a creditor’s right to repayment. But unless the debtor and creditor have provided otherwise, the creditor ordinarily is not limited to foreclosure on the mortgaged property should the debtor default on his obligation; rather, the creditor may in addition sue to establish the debtor’s in personam liability for any deficiency on the debt and may enforce any judgment against the debtor’s assets generally. See 3 R. Powell, The Law of Real Property 11467 (1990). A defaulting debtor can protect himself from personal liability by obtaining a discharge in a Chapter 7 liquida- 8 Section 109(e) states: “Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 and noncontingent, liquidated, secured debts of less than $350,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $100,000 and noncontingent, liquidated, secured debts of less than $350,000 may be a debtor under chapter 13 of this title.” JOHNSON V. HOME STATE BANK 83 78 Opinion of the Court tion. See 11 U. S. C. § 727. However, such a discharge extinguishes only “the personal liability of the debtor.” 11 U. S. C. § 524(a)(1). Codifying the rule of Long v. Bullard, 117 U. S. 617 (1886), the Code provides that a creditor’s right to foreclose on the mortgage survives or passes through the bankruptcy. See 11 U. S. C. § 522(c)(2); Owen v. Owen, 500 U. S. 305, 308-309 (1991); Farrey n. Sanderfoot, 500 U. S. 291, 297 (1991); H. R. Rep. No. 95-595, supra, at 361. Whether this surviving mortgage interest is a “claim” subject to inclusion in a Chapter 13 reorganization plan is a straightforward issue of statutory construction to be resolved by reference to “the text, history, and purpose” of the Bankruptcy Code. Farrey v. Sandeifoot, supra, at 298. Under the Code, “ ‘[C]laim’ means — “(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or “(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.” 11 U. S. C. §101(5) (1988 ed., Supp. III). We have previously explained that Congress intended by this language to adopt the broadest available definition of “claim.” See Pennsylvania Dept, of Public Welfare n. Davenport, 495 U. S. 552, 558, 563-564 (1990); see also Ohio n. Kovacs, 469 U. S. 274, 279 (1985). In Davenport, we concluded that “ ‘right to payment’ [means] nothing more nor less than an enforceable obligation . . . .” 495 U. S., at 559.4 4 Using this definition, we held in Davenport that restitution orders imposed as a condition of probation in state criminal proceedings were “claims” dischargeable in a Chapter 13 reorganization. See 495 U. S., at 558-560. Congress subsequently overruled the result in Davenport. See 84 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Applying the teachings of Davenport, we have no trouble concluding that a mortgage interest that survives the discharge of a debtor’s personal liability is a “claim” within the terms of § 101(5). Even after the debtor’s personal obligations have been extinguished, the mortgage holder still retains a “right to payment” in the form of its right to the proceeds from the sale of the debtor’s property. Alternatively, the creditor’s surviving right to foreclose on the mortgage can be viewed as a “right to an equitable remedy” for the debtor’s default on the underlying obligation. Either way, there can be no doubt that the surviving mortgage interest corresponds to an “enforceable obligation” of the debtor. The Court of Appeals thus erred in concluding that the discharge of petitioner’s personal liability on his promissory notes constituted the complete termination of the Bank’s claim against petitioner. Rather, a bankruptcy discharge extinguishes only one mode of enforcing a claim—namely, an action against the debtor in personam—while leaving intact another—namely, an action against the debtor in rem. Indeed, but for the codification of the rule of Long v. Bullard, supra, there can be little question that a “discharge” under Chapter 7 would have the effect of extinguishing the in rem component as well as the in personam component of any claim against the debtor. And because only “claims” are discharged under the Code,* 6 the very need to codify Long v. Criminal Victims Protection Act of 1990, Pub. L. 101-581, § 3, 104 Stat. 2865. It did so, however, by expressly withdrawing the Bankruptcy Court’s power to discharge restitution orders under 11 U. S. C. § 1328(a), not by restricting the scope of, or otherwise amending, the definition of “claim” under § 101(5). Consequently, we do not view the Criminal Victims Protection Act as disturbing our general conclusions on the breadth of the definition of “claim” under the Code. 6 A bankruptcy discharge extinguishes “the personal liability of the debtor with respect to any debt.” 11U. S. C. § 524(a)(1) (emphasis added). As we explained in Davenport, “debt,” which is defined under the Code as “liability on a claim,” 11 U. S. C. § 101(12) (1988 ed., Supp. Ill), has a meaning coextensive with that of “claim” as defined in § 101(5). Pennsyl JOHNSON V. HOME STATE BANK 85 78 Opinion of the Court Bullard presupposes that a mortgage interest is otherwise a “claim.” The conclusion that a surviving mortgage interest is a “claim” under § 101(5) is consistent with other parts of the Code. Section 502(b)(1), for example, states that the bankruptcy court “shall determine the amount of [a disputed] claim . . . and shall allow such claim in such amount, except to the extent that. . . such claim is unenforceable against the debtor and property of the debtor” (emphasis added). In other words, the court must allow the claim if it is enforceable against either the debtor or his property. Thus, § 502(b)(1) contemplates circumstances in which a “claim,” like the mortgage lien that passes through a Chapter 7 proceeding, may consist of nothing more than an obligation enforceable against the debtor’s property. Similarly, § 102(2) establishes, as a “[r]ul[e] of construction,” that the phrase “ ‘claim against the debtor’ includes claim against property of the debtor.” A fair reading of § 102(2) is that a creditor who, like the Bank in this case, has a claim enforceable only against the debtor’s property nonetheless has a “claim against the debtor” for purposes of the Code. The legislative background and history of the Code confirm this construction of “claim.” Although the pre-1978 Bankruptcy Act contained no single definition of “claim,” the Act did define “claim” as “includ[ing] all claims of whatever character against a debtor or its property” for purposes of Chapter X corporate reorganizations. See 11 U. S. C. §506(1) (1976 ed.) (emphasis added). It is clear that Congress so defined “claim” in order to confirm that creditors with interests enforceable only against the property of the debtor had “claims” for purposes of Chapter X, see S. Rep. No. 1916, 75th Cong., 3d Sess., 25 (1938); H. R. Rep. No. 1409, 75th Cong., 1st Sess., 39 (1937), and such was the vania Dept, of Public Welfare v. Davenport, supra, at 558. Hence, a discharge under the Code extinguishes the debtor’s personal liability on his creditor’s claims. 86 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. established understanding of the lower courts. See generally 6 J. Moore & L. King, Collier on Bankruptcy T2.05, pp. 307-308 (14th ed. 1978) (“[I]t is to be noted that a claim against the debtor’s property alone is sufficient” for Chapter X). In fashioning a single definition of “claim” for the 1978 Bankruptcy Code, Congress intended to “adop[t] an even broader definition of claim than [was] found in the [pre-1978 Act’s] debtor rehabilitation chapters.” H. R. Rep. No. 95-595, at 309 (emphasis added); accord, S. Rep. No. 95-989, pp. 21-22 (1978); see also Pennsylvania Dept, of Public Welfare v. Davenport, supra, at 558, 563-564 (recognizing that Congress intended broadest available definition of claim). Presuming, as we must, that Congress was familiar with the prevailing understanding of “claim” under Chapter X of the Act, see Cottage Savings Assn. v. Commissioner, 499 U. S. 554, 562 (1991); Cannon v. University of Chicago, 441 U. S. 677, 698-699 (1979), we must infer that Congress fully expected that an obligation enforceable only against a debtor’s property would be a “claim” under § 101(5) of the Code. The legislative history surrounding § 102(2) directly corroborates this inference. The Committee Reports accompanying § 102(2) explain that this rule of construction contemplates, inter alia, “nonrecourse loan agreements where the creditor’s only rights are against property of the debtor, and not against the debtor personally.” H. R. Rep. No. 95-595, supra, at 315; accord, S. Rep. No. 95-989, supra, at 28. Insofar as the mortgage interest that passes through a Chapter 7 liquidation is enforceable only against the debtor’s property, this interest has the same properties as a nonrecourse loan. It is true, as the Court of Appeals noted, that the debtor and creditor in such a case did not conceive of their credit agreement as a nonrecourse loan when they entered it. See 904 F. 2d, at 566. However, insofar as Congress did not expressly limit § 102(2) to nonrecourse loans but rather chose general language broad enough to encompass such obliga- JOHNSON V. HOME STATE BANK 87 78 Opinion of the Court tions, we understand Congress’ intent to be that § 102(2) extend to all interests having the relevant attributes of nonrecourse obligations regardless of how these interests come into existence. The Bank resists this analysis. It contends that even if an obligation enforceable only against the debtor’s property might normally be treated as a “claim” subject to inclusion in a Chapter 13 plan, such an obligation should not be deemed a claim against the debtor when it is merely the remainder of an obligation for which the debtor’s personal liability has been discharged in a Chapter 7 liquidation. Serial filings under Chapter 7 and Chapter 13, respondent maintains, evade the limits that Congress intended to place on these remedies. We disagree. Congress has expressly prohibited various forms of serial filings. See, e. g., 11 U. S. C. § 109(g) (no filings within 180 days of dismissal); § 727(a)(8) (no Chapter 7 filing within six years of a Chapter 7 or Chapter 11 filing); § 727(a)(9) (limitation on Chapter 7 filing within six years of Chapter 12 or Chapter 13 filing). The absence of a like prohibition on serial filings of Chapter 7 and Chapter 13 petitions, combined with the evident care with which Congress fashioned these express prohibitions, convinces us that Congress did not intend categorically to foreclose the benefit of Chapter 13 reorganization to a debtor who previously has filed for Chapter 7 relief. Cf. United States v. Smith, 499 U. S. 160, 167 (1991) (expressly enumerated exceptions presumed to be exclusive). The Bank’s contention also fails to apprehend the significance of the full range of Code provisions designed to protect Chapter 13 creditors. A bankruptcy court is authorized to confirm a plan only if the court finds, inter alia, that “the plan has been proposed in good faith,” § 1325(a)(3); that the plan assures unsecured creditors a recovery as adequate as “if the estate of the debtor were liquidated under chapter 7,” § 1325(a)(4); that secured creditors either have “accepted the 88 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. plan,” obtained the property securing their claims, or “re-tainted] the[ir] lien[s]” where “the value ... of property to be distributed under the plan ... is not less than the allowed amount of such claim[s],” § 1325(a)(5); and that “the debtor will be able to make all payments under the plan and to comply with the plan,” § 1325(a)(6). In addition, the bankruptcy court retains its broad equitable power to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Code.]” § 105(a). Any or all of these provisions may be implicated when a debtor files serially under Chapter 7 and Chapter 13. But given the availability of these provisions, and given Congress’ intent that “claim” be construed broadly, we do not believe that Congress intended the bankruptcy courts to use the Code’s definition of “claim” to police the Chapter 13 process for abuse. Ill The Bank renews here its claim that the Bankruptcy Court erred in finding petitioner’s plan to be in good faith for purposes of § 1325(a)(3) and feasible for purposes of § 1325(a)(6) of the Code. Because the District Court and Court of Appeals disposed of this case on the ground that the Bank’s mortgage interest was not a “claim” subject to inclusion in a Chapter 13 plan, neither court addressed the issues of good faith or feasibility. We also decline to address these issues and instead leave them for consideration on remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. MELKONYAN v. SULLIVAN 89 Syllabus MELKONYAN v. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 90-5538. Argued April 15, 1991—Decided June 10, 1991 Petitioner filed suit in the District Court under 42 U. S. C. § 1383(c)(3), which incorporates 42 U. S. C. § 405(g)’s review provisions, seeking review of a final decision of respondent Secretary of Health and Human Services denying his application for disability benefits under the Supplemental Security Income program. While his case was pending, he filed a new application, accompanied by additional evidence of disability, and was awarded benefits. Subsequently, the Secretary requested that the court remand the first claim for reconsideration. Responding to petitioner’s motion that it either issue a decision on his motion for summary judgment or remand the case, the court granted the Secretary’s remand motion, “concurred in by plaintiff,” and remanded the case “to the Secretary for all further proceedings.” On remand, the first decision was vacated and petitioner was found disabled as of his original application date. Over a year later, he applied to the District Court for attorney’s fees under the Equal Access to Justice Act (EAJA), which, inter alia, permits an award of fees and expenses to a party prevailing against the United States “in any civil action ... in any court,” 28 U. S. C. § 2412(d)(1)(A), upon an application made within 30 days of “final judgment in the action,” § 2412(d)(1)(B). The court denied the request on . the ground that the Secretary’s position in the litigation had been substantially justified. However, the Court of Appeals vacated, concluding that petitioner’s application was untimely because the administrative determination on remand was a “final judgment,” which triggered the 30-day period. Held: 1. EAJA’s plain language makes clear that a “final judgment” for purposes of § 2412(d)(1)(B) is a judgment rendered by a court that terminates the civil action for which EAJA fees may be received. Subsections (d)(1)(A) and (d)(1)(B) work in tandem, and subsection (d)(l)(B)’s requirement that the fee application be filed within 30 days of “final judgment in the action” (emphasis added) plainly refers back to the “civil action ... in any court” in subsection (d)(1)(A). This reading is reinforced by the contrast between § 2412 and 5 U. S. C. § 504(a), the only EAJA provision allowing awards for administrative proceedings conducted 90 OCTOBER TERM, 1990 Syllabus 501 U. S. prior to the filing of a civil action. While § 504(a)(2)’s pertinent language largely mirrors that of § 2412(d)(1)(B), it requires that a fee application be filed within 30 days “of a final disposition in the adversary adjudication,” which includes an administrative agency’s adjudication, rather than “final judgment in the action,” which a court renders. The Secretary errs in arguing that EAJA’s definition of “final judgment”—“final and not appealable”—differs so significantly from the traditional definition—final and appealable—that it must include administrative agencies’ decisions, since this suggestion does not alter § 2412(d)(l)(B)’s unambiguous requirement of judgment by a court, and since Congress adopted this unusual definition to clarify that a judgment was final only after the time for taking an appeal from a district court’s judgment had expired. Sullivan v. Hudson, 490 U. S. 877, is not to the contrary, for it stands only for the proposition that a claimant may collect EAJA fees for work done in postremand administrative proceedings where a civil action has been filed and the district court retains jurisdiction over the action and contemplates entering a judgment at the proceedings’ completion. Pp. 93-97. 2. A district court may remand a final decision of the Secretary only as provided in sentences four and six of 42 U. S. C. § 405(g): in conjunction with a judgment affirming, modifying, or reversing the Secretary’s decision (sentence four), or in light of additional evidence without any substantive ruling as to the correctness of the Secretary’s decision, but only if the claimant shows good cause for failing to present the evidence earlier (sentence six). The conclusion that Congress intended to so limit courts’ authority to enter remand orders is dictated by §405(g)’s language, which explicitly delineates only two circumstances under which such remands are authorized, cf. United States v. Smith, 499 U. S. 160, and is supported by § 405(g)’s legislative history. This view also harmonizes with EAJA’s final judgment requirement, with the 30-day period beginning in sentence four cases after the court enters its judgment and the appeal period runs, and beginning in sentence six cases after the Secretary returns to court following a postremand proceeding’s completion, the court enters a judgment, and the appeal period runs. Pp. 97-102. 3. This matter must be remanded for the District Court to clarify its order because the record does not clearly indicate what it intended by its disposition. It is not certain that this was a sentence six remand. The court did not make a “good cause” finding or seem to anticipate that the parties would return to court, and it may be that the court treated the joint remand request as a voluntary dismissal under Federal Rule of Civil Procedure 41(a). If it was a sentence six remand, once the Secretary returns to the District Court and the court enters a final judgment, petitioner will be entitled to EAJA fees unless the Secretary’s position was substantially justified, an issue the Court of Appeals never ad MELKONYAN v. SULLIVAN 91 89 Opinion of the Court dressed. And if it was not such a remand, petitioner may be entitled to no fees at all. Pp. 102-103. 4. This case is not an appropriate vehicle for resolving the issue whether petitioner’s application is timely. In a sentence six remand, he will not be prejudiced if the District Court determines that an application filed before final judgment is sufficient or if he reapplies after the judgment’s entry. And timeliness may not be at issue if this was not a sentence six remand. P. 103. 895 F. 2d 556, vacated and remanded. O’Connor, J., delivered the opinion for a unanimous Court. Brian Wolfman argued the cause for petitioner. With him on the briefs were Alan B. Morrison, Patti A. Goldman, and John Ohanian. Clifford M. Sloan argued the cause for respondent. On the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, Edwin S. Kneedler, and William Kanter. Justice O’Connor delivered the opinion of the Court. A party that prevails against the United States in a civil action is entitled, in certain circumstances, to an award of attorney’s fees, court costs, and other expenses. Equal Access to Justice Act (EAJA), 28 U. S. C. §2412. Among other requirements, the prevailing party must submit to the court an application for fees and expenses “within thirty days of final judgment in the action.” § 2412(d)(1)(B). This case requires us to decide whether an administrative decision rendered following a remand from the District Court is a “final judgment” within the meaning of EAJA. I In May 1982, petitioner Zakhar Melkonyan filed an application for disability benefits under the Supplemental Security Income (SSI) program established by Title XVI of the Social Security Act, 86 Stat. 1465, as amended, 42 U. S. C. § 1381 et seq. Following a hearing, an Administrative Law Judge (ALJ) concluded that petitioner was not disabled within the 92 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. meaning of the Act. The Appeals Council denied review of the ALJ’s decision. In June 1984, petitioner timely filed a complaint in the United States District Court for the Central District of California, seeking judicial review pursuant to 42 U. S. C. § 1383(c)(3), which incorporates the review provisions of 42 U. S. C. § 405(g). On May 30, 1984, shortly before filing the complaint, petitioner filed a second application for SSI disability benefits accompanied by new evidence of disability. In August 1984, petitioner’s second application was approved as of the date it was filed. He then sought summary judgment in his action to review the administrative decision denying his first application for benefits. The Secretary cross-filed for summary judgment. While the summary judgment motions were pending, the Secretary requested that the case be remanded to the Appeals Council so the first application could be reconsidered in light of the new evidence. Petitioner initially opposed the Secretary’s remand request, arguing that evidence already in the record amply established his disability. Three months later, however, citing failing health and the prospect of increased medical expenses, petitioner moved the court to “either issue [the decision] or remand the cause to the Secretary.” App. 9-10. In response, on April 3, 1985, the District Court entered a “judgment” which read in its entirety: “Defendant’s motion to remand, concurred in by plaintiff, is granted. The matter is remanded to the Secretary for all further proceedings.” App. 11. One month after the remand, the Appeals Council vacated the ALJ’s prior decision and found petitioner disabled as of the date of his original SSI application. That decision granted petitioner all the relief he had initially requested. More than a year later, petitioner applied to the District Court for attorney’s fees under EAJA. The Magistrate recommended that the fee application be denied, concluding that MELKONYAN v. SULLIVAN 93 89 Opinion of the Court the Secretary’s decision to deny the first application was “substantially justified” at the time because the original record did not establish that petitioner was disabled. App. 20-21. The District Court agreed and denied the fee request. The Court of Appeals for the Ninth Circuit vacated the District Court’s judgment. It agreed that petitioner was not eligible for attorney’s fees under EAJA, but for a different reason. Melkonyan v. Heckler, 895 F. 2d 556 (1990). The Court of Appeals noted that EAJA requires an application for fees to be filed within 30 days of the “ ‘final judgment in the action,’” a term defined in the statute as a “‘judgment that is final and not appealable.’” Id., at 557 (quoting 28 U. S. C. § 2412(d)(2)(G)). In the court’s view, its task was to determine when that “final and not appealable” judgment was rendered. 895 F. 2d, at 557. The Court of Appeals recognized that the District Court’s order remanding the case to the Secretary was not a “final judgment” because both parties anticipated further administrative proceedings. Id., at 557-558. On remand, the Appeals Council reversed itself and held for petitioner; having won all he had asked for, there was no reason to return to the District Court. Under those circumstances, the Court of Appeals concluded that the Appeals Council’s decision to award benefits was, in effect, a “final judgment” under EAJA, thereby commencing the 30-day period for filing the fee application. Id., at 558-559. Because petitioner waited more than a year after the Appeals Council’s decision, his application was untimely. Id., at 559. We granted certiorari, 498 U. S. 1023 (1991), and now vacate the judgment of the Court of Appeals. II As relevant to this case, EAJA provides: “(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, ... incurred by that party in any civil action (other than cases 94 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. “(B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection . . . .” 28 U. S. C. §§2412(d)(1)(A), (B) (emphasis added). Petitioner argues that this provision is most naturally read to mean that it is the court before which the civil action is pending that must render the “final judgment” that starts the running of the 30-day E AJA filing period. Brief for Petitioner 13. We agree. As the highlighted language indicates, subsections (d)(1)(A) and (d)(1)(B) work in tandem. Subsection (d)(1)(A) authorizes the awarding of fees to parties that prevail against the United States in nontort civil actions, subject to qualifications not pertinent here. Subsection (d)(1)(B) explains what the prevailing party must do to secure the fee award. The requirement that the fee application be filed within 30 days of “final judgment in the action” plainly refers back to the “civil action ... in any court” in (d)(1)(A). The plain language makes clear that a “final judgment” under §2412 can only be the judgment of a court of law. This reading is reinforced by the contrast between §2412 and 5 U. S. C. § 504(a). Section 504 was enacted at the same time as §2412, and is the only part of the EAJA that allows fees and expenses for administrative proceedings conducted prior to the filing of a civil action. The pertinent language of § 504(a)(2) largely mirrors that of § 2412(d)(1)(B), with one notable exception: It states that a “party seeking an award of fees and other expenses shall, within thirty days of MELKONYAN v. SULLIVAN 95 89 Opinion of the Court a final disposition in the adversary adjudication, ” file an application for fees. 5 U. S. C. § 504(a)(2) (emphasis added). Clearly Congress knew how to distinguish between a “final judgment in [an] action” and a “final disposition in [an] adversary adjudication.” One is rendered by a court; the other includes adjudication by an administrative agency. The Secretary’s sole argument to the contrary rests on the 1985 amendments to E AJA, which added a definition of “final judgment” to § 2412. Traditionally, a “final judgment” is one that is final and appealable. See Fed. Rule Civ. Proc. 54(a) (“ ‘Judgment’ as used in these rules includes a decree and any order from which an appeal lies”); Sullivan v. Finkelstein, 496 U. S. 617, 628 (1990) (“‘[F]inal judgments’ are at the core of matters appealable under § 1291”). Under § 2412, as amended, however, a “final judgment” is one that is “final and not appealable.” 28 U. S. C. §2412(d)(2)(G) (emphasis added). In the Secretary’s view, “[t]his significant departure from the usual characteristic] of a ‘judgment’ entered by a court” dictates a different understanding of how the phrase “final judgment” is used in § 2412(d)(1)(B). Brief for Respondent 20. The Secretary argues that under the revised statute, a “final judgment” includes not only judgments rendered by a court, but also decisions made by administrative agencies. Ibid. We reject this argument. Section 2412(d)(1)(B) does not speak merely of a “judgment”; it speaks of a “final judgment in the action.” As we have explained, the “action” referred to in subsection (d)(1)(B) is a “civil action ... in any court” under subsection (d)(1)(A). The Secretary’s suggested interpretation of “final judgment” does not alter this unambiguous requirement of judgment by a court. As for why Congress added the unusual definition of “final judgment,” the answer is clear. “The definition . . . was added in 1985 to resolve a conflict in the lower courts on the question whether a ‘judgment’ was to be regarded as ‘final’ for EAJA purposes when it was entered, or only when the 96 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. period for taking an appeal had lapsed.” Brief for Respondent 20 (footnote omitted). The Ninth Circuit had held that the 30-day EAJA filing period began to run when the district court entered judgment. McQuiston v. Marsh, 707 F. 2d 1082, 1085 (1983). The Seventh Circuit rejected this view, holding that the EAJA filing period should be deemed to begin only after the time for taking an appeal from the district court judgment had expired. McDonald v. Schweiker, 726 F. 2d 311, 314 (1983). Accord, Massachusetts Union of Public Housing Tenants, Inc. v. Pierce, 244 U. S. App. D. C. 34, 36, 755 F. 2d 177, 179 (1985). Congress responded to this split in the federal courts by explicitly adopting and ratifying the McDonald approach. S. Rep. No. 98-586, p. 16 (1984) (“The Committee believes that the interpretation of the court in [McDonald] is the correct one”). See also H. R. Rep. No. 98-992, p. 14 (1984) (“The term ‘final judgment’ has been clarified to mean a judgment the time to appeal which has expired for all parties”); H. R. Rep. No. 99-120, p. 18 (1985). There simply is no evidence to support the argument the Secretary now advances —that, in defining “final judgment” so as to resolve an existing problem, Congress also intended, sub silentio, to alter the meaning of the term to include a final agency decision. We conclude that, notwithstanding the 1985 amendment, Congress’ use of “judgment” in 28 U. S. C. §2412 refers to judgments entered by a court of law, and does not encompass decisions rendered by an administrative agency. Accordingly, we hold that a “final judgment” for purposes of 28 U. S. C. § 2412(d)(1)(B) means a judgment rendered by a court that terminates the civil action for which EAJA fees may be received. The 30-day EAJA clock begins to run after the time to appeal that “final judgment” has expired. Our decision in Sullivan v. Hudson, 490 U. S. 877 (1989), is not to the contrary. The issue in Hudson was whether, under § 2412(d), a “civil action” could include administrative proceedings so that a claimant could receive attorney’s fees MELKONYAN v. SULLIVAN 97 89 Opinion of the Court for work done at the administrative level following a remand by the district court. We explained that certain administrative proceedings are “so intimately connected with judicial proceedings as to be considered part of the ‘civil action’ for purposes of a fee award.” Id., at 892. We defined the narrow class of qualifying administrative proceedings to be those “where ‘a suit [has been] brought in a court,’ and where ‘a formal complaint within the jurisdiction of a court of law’ remains pending and depends for its resolution upon the outcome of the administrative proceedings.” Ibid, (emphasis added). Hudson thus stands for the proposition that in those cases where the district court retains jurisdiction of the civil action and contemplates entering a final judgment following the completion of administrative proceedings, a claimant may collect EAJA fees for work done at the administrative level. Ibid. “We did not say that proceedings on remand to an agency are ‘part and parcel’ of a civil action in federal district court for all purposes . . . .” Sullivan v. Finkelstein, supra, at 630-631. Ill Having decided that EAJA requires a “final judgment” entered by a court, it is obvious that no “final judgment” was entered in this case before petitioner initiated his appeal. Petitioner filed a civil action in the District Court under 42 U. S. C. § 405(g), seeking review of the Secretary’s decision that he was not entitled to disability benefits. Without ruling on the correctness of the Secretary’s decision, the District Court remanded the case for further administrative proceedings. On remand, the Appeals Council awarded petitioner the disability benefits he sought. Neither petitioner nor the Secretary returned to the District Court for entry of a final judgment. The question we must decide now is whether either party is entitled to do so. The answer depends on what kind of remand the District Court contemplated. In Finkelstein, we examined closely 98 OCTOBER TERM, 1990 501 U. S. Opinion of the Court the language of § 405(g) and identified two kinds of remands under that statute: (1) remands pursuant to the fourth sentence, and (2) remands pursuant to the sixth sentence. See 496 U. S., at 623-629. The fourth sentence of § 405(g) authorizes a court to enter “a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.” The parties agree that the remand order in this case was not entered pursuant to sentence four, as the District Court did not affirm, modify, or reverse the Secretary’s decision. We concur. The District Court did not make any substantive ruling; it merely returned the case to the agency for disposition, noting that both parties agreed to this course. The sixth sentence of § 405(g), as we explained in Finkelstein, “describes an entirely different kind of remand.” Id., at 626. The district court does not affirm, modify, or reverse the Secretary’s decision; it does not rule in any way as to the correctness of the administrative determination. Rather, the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding. Ibid. The statute provides that following a sentence six remand, the Secretary must return to the district court to “file with the court any such additional or modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based.” 42 U. S. C. 1405(g).1 1 Sentence six of § 405(g) provides in full: “The court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his MELKONYAN v. SULLIVAN 99 89 Opinion of the Court Petitioner argues, plausibly, that the court contemplated a sentence six remand. Indeed, it is undisputed that it was consideration of later-acquired evidence that led the Appeals Council ultimately to reverse its earlier decision and declare petitioner eligible for benefits from the date of his original application. Petitioner further argues that this must have been a sentence six remand because § 405(g) authorizes only two kinds of remands—those pursuant to sentence four and those pursuant to sentence six—and the Secretary concedes that this was not a sentence four remand. The Secretary maintains that this was not a sentence six' remand. While acknowledging that the remand request was prompted by the discovery of new evidence of disability, see Brief for Respondent 27-28, the Secretary observes correctly that the sixth sentence of § 405(g) requires a showing of “good cause” for the failure to present the additional evidence in the prior proceeding and that the District Court did not rule explicitly that such a showing had been made. The Secretary also notes that the District Court did not manifest any intent to retain jurisdiction, as would be the case under sentence six, but rather remanded to the agency “for all further proceedings.” The Secretary also disputes petitioner’s assumption that sentences four and six set forth the only kinds of remands that are permitted under § 405(g), arguing that the district court has inherent authority to enter other types of remand orders. Id., at 28-29, n. 23. On this point, we think petitioner has the better of the argument. As mentioned, in Finkelstein we analyzed § 405(g) sentence by sentence and identified two kinds of possible remands under the statute. While we did not state explicitly at that time that these were the only kinds of remands permitted under the statute, we do so today. Under sentence four, a district court may remand in decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based.” 100 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. conjunction with a judgment affirming, modifying, or reversing the Secretary’s decision. Under sentence six, the district court may remand in light of additional evidence without making any substantive ruling as to the correctness of the Secretary’s decision, but only if the claimant shows good cause for failing to present the evidence earlier.2 Congress’ explicit delineation in § 405(g) regarding the circumstances under which remands are authorized leads us to conclude that it intended to limit the district courts’ authority to enter remand orders to these two types. Cf. United States v. Smith, 499 U. S. 160 (1991) (expressly enumerated exceptions presumed to be exclusive). This reading of the statute is dictated by the plain language of § 405(g) and is supported by the legislative history. In amending the sixth sentence of § 405(g) in 1980, Congress made it unmistakably clear that it intended to limit the power of district courts to order remands for “new evidence” in Social Security cases. Pub. L. 96-265, § 307,94 Stat. 458. The Senate Report accompanying the amendments explained: “[U]nder existing law the court itself, on its own motion or on motion of the claimant, has discretionary authority ‘for good cause’ to remand the case back to the ALJ. It would appear that, although many of these court remands are justified, some remands are undertaken because the judge disagrees with the outcome of the case even though he would have to sustain it under the ‘substantial evidence rule.’ Moreover, the number of these court remands seems to be increasing. . . . The bill would continue the provision of present law which gives the court discretionary authority to remand cases to the Secretary, but adds the requirement that remand for the purpose of taking new evidence be limited to cases in which there is a showing that there is new evidence which 2 Sentence six also authorizes the district court to remand on motion by the Secretary made before the Secretary has filed a response in the action. That subcategory of sentence six remands is not implicated in this case. MELKONYAN v. SULLIVAN 101 89 Opinion of the Court is material and that there was good cause for failure to incorporate it into the record in a prior proceeding. ” S. Rep. No. 96-408, pp. 58-59 (1979) (emphasis added). See also H. R. Rep. No. 96-100, p. 13 (1979) (same). Congressman Pickle, one of the floor managers of the bill, echoed this explanation when he noted in a floor statement that with the amendment “we have tried to speed up the judicial process so that these cases would not just go on and on and on. The court could remand [them] back down to the AL J without cause or other reason which was weakening the appeal process at that level.” 125 Cong. Rec. 23383 (1979). The amendment to sentence six, of course, was not intended to limit a district court’s ability to order remands under sentence four. The House Report explains that “[t]his language [amending sentence six] is not to be construed as a limitation of judicial remands currently recognized under the law in cases which the Secretary has failed to provide a full and fair hearing, to make explicit findings, or to have correctly apply [sic] the law and regulations.” H. R. Rep. No. 96-100, supra, at 13. Thus, under sentence four, a district court may still remand in conjunction with a judgment reversing in part the Secretary’s decision. It is evident from these passages that Congress believed courts were often remanding Social Security cases without good reason. While normally courts have inherent power, among other things, to remand cases, see United States v. Jones, 336 U. S. 641, 671 (1949), both the structure of § 405(g), as amended, and the accompanying legislative history show Congress’ clear intent to limit courts to two kinds of remands in these cases. Cf. Chambers v. NASCO, Inc., ante, p. 32 (finding no congressional intent to limit a court’s inherent authority to impose sanctions). In light of the foregoing, we conclude that in § 405(g) actions, remand orders must either accompany a final judgment affirming, modifying, or reversing the administrative decision in accordance with sentence four, or conform with 102 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. the requirements outlined by Congress in sentence six. Construing remand orders in this manner harmonizes the remand provisions of § 405(g) with the EAJA requirement that a “final judgment” be entered in the civil action in order to trigger the EAJA filing period. 28 U. S. C. § 2412(d)(1)(B). In sentence four cases, the filing period begins after the final judgment (“affirming, modifying, or reversing”) is entered by the court and the appeal period has run, so that the judgment is no longer appealable. See § 2412(d)(2)(G). In sentence six cases, the filing period does not begin until after the postremand proceedings are completed, the Secretary returns to court, the court enters a final judgment, and the appeal period runs. Although we agree with petitioner that the district court’s remand authority is confined to those circumstances specifically defined in § 405(g), we cannot state with certainty that the remand in this case was, as petitioner contends, a sentence six remand. As the Secretary points out, the District Court did not make a finding that “good cause” had been shown, nor did the court seem to anticipate that the parties would return to court following the administrative proceedings. Indeed, it may be that the court treated the joint request for remand as a voluntary dismissal under Federal Rule of Civil Procedure 41(a), although the parties did not file a signed stipulation, as required by the Rule. Because the record before us does not clearly indicate what the District Court intended by its disposition, we vacate the judgment and remand the matter to enable the District Court to clarify its order. If petitioner is correct that the court remanded the case under sentence six, the Secretary must return to District Court, at which time the court will enter a final judgment. Petitioner will be entitled to EAJA fees unless the Secretary’s initial position was substantially justified, a question which was not addressed by the Court of Appeals. If, on the other hand, this was not a sentence six remand, it may be that petitioner is not entitled to EAJA fees at all. For MELKONYAN v. SULLIVAN 103 89 Opinion of the Court example, if the court’s order was, in effect, a dismissal under Rule 41(a), the District Court’s jurisdiction over the case would have ended at that point, and petitioner would not have been a prevailing party "in [a] civil action.” 28 U. S. C. § 2412(d)(1)(A). Under those circumstances, the Secretary would not return to the District Court and petitioner would not be eligible to receive EAJA fees. IV At oral argument the parties discussed the timeliness of petitioner’s fee application. EAJA requires prevailing parties seeking an award of fees to file with the court, “within thirty days of final judgment in the action,” an application for fees and other expenses. § 2412(d)(1)(B) (emphasis added). Petitioner claims that this language permits him to apply for fees at any time up to 30 days after entry of judgment, and even before judgment is entered, as long as he has achieved prevailing party status. Tr. of Oral Arg. 16-18. This case is not an appropriate vehicle for resolving the issue. If petitioner is correct that this was a sentence six remand, the District Court may determine that the application he has already filed is sufficient. Alternatively, petitioner can easily reapply for EAJA fees following the District Court’s entry of a final judgment. In either case, petitioner will not be prejudiced by having filed prematurely. On the other hand, if this was not a sentence six remand, we have already explained that petitioner would not be entitled to fees, so the timeliness of the application will not be an issue. The judgment of the Ninth Circuit Court of Appeals is vacated, and the case is remanded to the Court of Appeals with instructions to remand to the District Court for further proceedings consistent with this opinion. It is so ordered. 104 OCTOBER TERM, 1990 Syllabus 501 U. S. ASTORIA FEDERAL SAVINGS & LOAN ASSOCIATION v. SOLIMINO CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 89-1895. Argued April 17, 1991—Decided June 10, 1991 Respondent Solimino filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging that petitioner Astoria Federal Savings and Loan Association had dismissed him because of his age, in violation of the Age Discrimination in Employment Act of 1967 (Age Act). Under a worksharing agreement, the EEOC referred his claim to the state agency responsible for claims under New York’s Human Rights Law. That agency found no probable cause under state law to believe that he was terminated on account of age, and its decision was upheld on administrative review. Rather than appealing that decision to state court, Solimino filed in the Federal District Court an Age Act suit grounded on the same factual allegations considered in the state proceedings. The court granted Astoria’s motion for summary judgment, holding that the State’s age-discrimination findings precluded federal litigation of the claim. The Court of Appeals reversed, inferring from the Age Act’s structure a legislative intent to deny preclusive effect to such state administrative proceedings. Held: Judicially unreviewed state administrative findings have no preclusive effect on age-discrimination proceedings in federal court. While well-established common-law principles, such as preclusion rules, are presumed to apply in the absence of a legislative intent to the contrary, Congress need not state expressly its intention to overcome a presumption of administrative estoppel. Clear-statement requirements are appropriate only where weighty and constant values are at stake, or where an implied legislative repeal is implicated. Atascadero State Hospital v. Scanlon, 473 U. S'. 234, 243; EEOC v. Arabian American Oil Co., 499 U. S. 244, 248;'Morton v. Mancari, 417 U. S. 535, 551. Such values are not represented by the lenient presumption in favor of administrative estoppel, the suitability of which varies according to context; nor does a finding against estoppel in this case give rise to an implied legislative repeal. Thus, the test for the presumption’s application is whether administrative preclusion would be inconsistent with Congress’ intent in enacting the particular statute. University of Tennessee v. Elliott, 478 U. S. 788, 796. The Age Act implies, in its filing requirements, that federal courts should recognize no preclusion by state administrative ASTORIA FEDERAL S. & L. ASSN. v. SOLIMINO 105 104 Syllabus findings. Both § 14(b) and § 7(d)(2) assume the possibility of federal consideration after state review. However, such proceedings would be strictly pro forma, with the employer likely enjoying'an airtight defense, if state administrative findings were given preclusive effect. The provision, in § 14(b), for a claim’s consideration in federal court after state proceedings are concluded would as a result be left essentially without effect, notwithstanding the rule that statutes should be read to avoid rendering superfluous any parts thereof. Administrative preclusion was likewise found not to apply with respect to claims arising under Title VII of the Civil Rights Act of 1964 in Elliott, supra, which held that Title VIPs provision directing the EEOC to accord substantial weight to state administrative findings allowed for something less than preclusion. Id., at 795. It is immaterial that the Age Act lacks a similar delimitation, since the Title VII provision was only the most obvious piece of evidence that administrative estoppel does not operate in a Title VII suit. This holding also comports with the Age Act’s broader scheme and enforcement provisions, and, although Congress’ wisdom in deciding against administrative preclusion is not relevant to this determination, its choice has plausible policy support. Pp. 107-114. 901 F. 2d 1148, affirmed and remanded. Souter, J., delivered the opinion for a unanimous Court. Paul J. Siegel argued the cause for petitioner. With him on the brief were Roger S. Kaplan and Anthony H. Atlas. Leonard N. Flamm argued the cause for respondent. With him on the brief was Joseph J. Gentile. Amy L. Wax argued the cause pro hac vice for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Robert A. Long, Jr., Donald R. Livingston, Gwendolyn Young Reams, and Lamont N. White.* * Briefs of amici curiae urging reversal were filed for the Atlantic Legal Foundation by Martin S. Kaufman and Douglas Foster; and for the Equal Employment Advisory Council by Robert E. Williams and Douglas S. McDowell. Briefs of amici curiae urging affirmance were filed for the New York State Division of Human Rights by Robert Abrams, Attorney General, 0. Peter Sherwood, Solicitor General, and Sanford M. Cohen and Marjorie 106 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Justice Souter delivered the opinion of the Court. The question presented is whether claimants under the Age Discrimination in Employment Act of 1967 (Age Act or Act), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq., are collaterally estopped to relitigate in federal court the judicially unreviewed findings of a state administrative agency made with respect to an age-discrimination claim. We hold that such findings have no preclusive effect on federal proceedings. Respondent Angelo Solimino had worked for petitioner Astoria Federal Savings and Loan Association for almost 40 years when at age 63 he was dismissed from his position as a vice president in the mortgage department. Less than two weeks later, on March 18, 1982, he filed a charge of age discrimination with the Equal Employment Opportunity Commission (EEOC). Under a worksharing agreement between it and the state agency, see 29 CFR §1626.10 (1990), the EEOC referred the matter to the New York State Division of Human Rights, which is responsible for preliminary investigation and disposition of age-discrimination cases under New York’s Human Rights Law. On January 25, 1983, after a hearing at which both parties were represented by counsel, the state agency found no probable cause to believe that petitioner had terminated respondent because of his age. The ruling was affirmed on review for abuse of discretion by the State Human Rights Appeal Board on May 30, 1984. Although both the Division and the Appeal Board entertained respondent’s complaint only on state-law grounds, neither party suggests that the elements of an age-discrimination claim differ as between the state and federal statutes. Respondent did not seek review of the board’s decision in state court, but instead filed an Age Act suit in the United States District Court for the Eastern District of New Fujiki, Assistant Attorneys General; and for the American Association of Retired Persons by Cathy Ventrell-Monsees. ASTORIA FEDERAL S. & L. ASSN. v. SOLIMINO 107 104 Opinion of the Court York grounded on the same factual allegations considered in the state administrative proceedings. The District Court granted petitioner’s motion for summary judgment, 715 F. Supp. 42 (1989), and relied heavily on the decision in Stillians v. Iowa, 843 F. 2d 276 (CA8 1988), in holding the commonlaw presumption of administrative estoppel to prevail by virtue of Congress’ failure in either the language or legislative history of the Age Act “actually [to] addres[s] the issue.” 715 F. Supp., at 47. It ruled accordingly that the determination of the State’s Human Rights Division that petitioner had not engaged in age discrimination precluded federal litigation of the claim. The Court of Appeals for the Second Circuit reversed, 901 F. 2d 1148 (1990), inferring from the Act’s structure a legislative intent to deny preclusive effect to such state administrative proceedings. We granted certiorari, 498 U. S. 1023 (1991), to resolve the conflict between the ruling here under review, see also Duggan v. Board of Education of East Chicago Heights, Dist. No. 169, Cook County, III., 818 F. 2d 1291 (CA7 1987), and those of the Eighth Circuit in Stillians, sv/pra, and of the Ninth Circuit in Mack v. South Bay Beer Distributors, Inc., 798 F. 2d 1279 (1986). We have long favored application of the common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations of administrative bodies that have attained finality. “When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.” United States v. Utah Constr. & Mining Co., 384 U. S. 394, 422 (1966). Such repose is justified on the sound and obvious principle of judicial policy that a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise. To hold otherwise would, as a general matter, impose unjustifiably upon those who have already shouldered their 108 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. burdens, and drain the resources of an adjudicatory system with disputes resisting resolution. See Parklane Hosiery Co. n. Shore, 439 U. S. 322, 326 (1979). The principle holds true when a court has resolved an issue, and should do so equally when the issue has been decided by an administrative agency, be it state or federal, see University of Tennessee n. Elliott, 478 U. S. 788, 798 (1986), which acts in a judicial capacity. Courts do not, of course, have free rein to impose rules of preclusion, as a matter of policy, when the interpretation of a statute is at hand. In this context, the question is not whether administrative estoppel is wise but whether it is intended by the legislature. The presumption holds nonetheless, for Congress is understood to legislate against a background of common-law adjudicatory principles. See Briscoe v. LaHue, 460 U. S. 325 (1983); United States v. Turley, 352 U. S. 407, 411 (1957). Thus, where a common-law principle is well established, as are the rules of preclusion, see, e. g., Parklane Hosiery, supra; Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313 (1971); Chicot County Drainage Dist. n. Baxter State Bank, 308 U. S. 371 (1940), the courts may take it as given that Congress has legislated with an expectation that the principle will apply except “when a statutory purpose to the contrary is evident.” Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952). This interpretative presumption is not, however, one that entails a requirement of clear statement, to the effect that Congress must state precisely any intention to overcome the presumption’s application to a given statutory scheme. Rules of plain statement and strict construction prevail only to the protection of weighty and constant values, be they constitutional, see, e. g., Atascadero State Hosp. v. Scanlon, 473 U. S. 234, 243 (1985) (requiring plain statement of intention to abrogate immunity of States under the Eleventh Amendment), or otherwise, see, e. g., EEOC v. Arabian American ASTORIA FEDERAL S. & L. ASSN. v. SOLIMINO 109 104 Opinion of the Court Oil Co., 499 U. S. 244, 248 (1991) (requiring plain statement of extraterritorial statutory effect, “to protect against unintended clashes between our laws and those of other nations which could result in international discord”). See generally Eskridge, Public Values in Statutory Interpretation, 137 U. Pa. L. Rev. 1007 (1989). “In traditionally sensitive areas, . . . the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” United States v. Bass, 404 U. S. 336, 349 (1971). Similar superior values, of harmonizing different statutes and constraining judicial discretion in the interpretation of the laws, prompt the kindred rule that legislative repeals by implication will not be recognized, insofar as two statutes are capable of coexistence, “absent a clearly expressed congressional intention to the contrary.” Morton v. Mancari, 417 U. S. 535, 551 (1974). But the possibility of such an implied repeal does not cast its shadow here. We do not have before us the judgment of a state court, which would by law otherwise be accorded “the same full faith and credit in every court within the United States ... as [it has] by law or usage in the courts of such State.” 28 U. S. C. § 1738. In the face of § 1738, we have found state-court judgments in the closely parallel context of Title VII of the Civil Rights Acts of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., see Lorillard v. Pons, 434 U. S. 575, 584 (1978), to enjoy preclusive effect in the federal courts. See Kremer n. Chemical Constr. Corp., 456 U. S. 461 (1982); see also Allen v. McCurry, 449 U. S. 90 (1980). This case, by contrast, implicates no such implied repeal, as § 1738 is inapplicable to the judicially unreviewed findings of state administrative bodies. See Elliott, supra, at 794. Nor does administrative preclusion represent independent values of such magnitude and constancy as to justify the protection of a clear-statement rule. Although administrative estoppel is favored as a matter of general policy, its 110 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. suitability may vary according to the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedures. Cf. Alexander n. Gardner-Denver Co., 415 U. S. 36, 57-58 (1974); Pearson v. Williams, 202 U. S. 281, 285 (1906). The presumption here is thus properly accorded sway only upon legislative default, applying where Congress has failed expressly or impliedly to evince any intention on the issue. In Elliott, which also dealt with Title VII, the test for the presumption’s application was thus framed as the question “whether a common-law rule of preclusion would be consistent with Congress’ intent in enacting [the statute].” 478 U. S., at 796. See also Brown v. Felsen, 442 U. S. 127, 136 (1979); Restatement (Second) of Judgments § 83(4)(a) (1982). In contrast to 42 U. S. C. §1983, in which the Court discerned “‘[n]othing . . . remotely expressing] any congressional intent to contravene the common-law rules of preclusion,’” 478 U. S., at 797 (quoting Allen v. McCurry, 449 U. S. 90, 97-98 (1980)), Title VII was found by implication to comprehend just such a purpose in its direction that the EEOC accord “‘substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local [employment discrimination] law.’” Elliott, supra, at 795 (quoting 42 U. S. C. § 2000e-5(b)). What does not preclude a federal agency cannot preclude a federal court, see Kremer, supra, at 470, and n. 7; Duggan, 818 F. 2d, at 1294; we accordingly held that in the district courts the “substantial weight” standard allowed clearly for something less than preclusion. Elliott, supra, at 795. We reach the same result here, for the Age Act, too, carries an implication that the federal courts should recognize no preclusion by state administrative findings with respect to age-discrimination claims. While the statute contains no express delimitation of the respect owed to state agency findings, its filing requirements make clear that collateral estop- ASTORIA FEDERAL S. & L. ASSN. v. SOLIMINO 111 104 Opinion of the Court pel is not to apply. Section 14(b) requires that where a State has its own age-discrimination law, a federal Age Act complainant must first pursue his claim with the responsible state authorities before filing in federal court. 29 U. S. C. § 633(b); Oscar Mayer & Co. n. Evans, 441 U. S. 750 (1979). It further provides that “no suit may be brought under [the Age Act] before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated.” The deadline for filing with the EEOC likewise refers to the termination of prior state administrative action, § 7(d)(2) providing that where § 14(b) applies “[s]uch a charge shall be filed . . . within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.” 29 U. S. C. §626(d)(2). Both provisions plainly assume the possibility of federal consideration after state agencies have finished theirs. And yet such federal proceedings would be strictly pro forma if state administrative findings were given preclusive effect. It goes without saying that complainants who succeed in state proceedings will not pursue suit in federal court (except perhaps when the state remedy, or its enforcement, is thought to be inadequate); § 14(b)’s requirement that claimants file with state authorities before doing so in federal court was in fact “intended to screen from the federal courts those discrimination complaints that might be settled to the satisfaction of the grievant in state proceedings.” Oscar Mayer, supra, at 756. A complainant who looks to a federal court after termination of state proceedings will therefore ordinarily do so only when the state agency has held against him. In such a case, however, the employer would likely enjoy an airtight defense of collateral estoppel if a state agency determination on the merits were given preclusive effect. Cf. Kremer, supra, at 479-480. Insofar as applying preclusion would thus reduce to insignificance those cases in 112 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. which federal consideration might be pursued in the wake of the completed proceedings of state agencies, § 14(b)’s provision for just such consideration would be left essentially without effect. But of course we construe statutes, where possible, so as to avoid rendering superfluous any parts thereof. See, e. g., United States v. Menasche, 348 U. S. 528, 538-539 (1955). That the Age Act lacks the “substantial weight” provision of Title Vil’s §2000e-5(b) stressed in Elliott is immaterial. There was nothing talismanic about that language; it was “simply the most obvious piece of evidence that administrative res judicata does not operate in a Title VII suit.” Duggan, supra, at 1297. It would indeed be ironic if that section were to make the difference between that statute and the Age Act insofar as preclusion in federal courts is concerned, for the language was added to Title VII not because the EEOC was applying administrative preclusion, or “giving state administrative decisions too much weight, but because it was affording them too little.” Kremer, supra, at 471, n. 8. Similar provision has been unnecessary in the Age Act, for as to age-discrimination claims the EEOC of its own accord came to extend some level of deference to the determinations of state authorities. See Brief for United States et al. as Amici Curiae 24. It is, in any event, fair to say that even without Title Vil’s “substantial weight” requirement the Court would have found no administrative preclusion in that context. Title Vil’s § 706(c), 42 U. S. C. §2000e-5(c), which also provides for federal court action in the aftermath of terminated state proceedings and is nearly identical to the Age Act’s § 14(b), see Oscar Mayer, supra, at 755, would have provided yet further support for the Court’s result there. Thus § 14(b) suffices to outweigh the lenient presumption in favor of administrative estoppel, a holding that also comports with the broader scheme of the Age Act and the provisions for its enforcement. Administrative findings ASTORIA FEDERAL S. & L. ASSN. v. SOLIMINO 113 104 Opinion of the Court with respect to the age-discrimination claims of federal employees enjoy no preclusive effect in subsequent judicial litigation, see Rosenfeld n. Department of Army, 769 F. 2d 237 (CA4 1985); Nabors v. United States, 568 F. 2d 657 (CA9 1978); cf. Chandler v. Roudebush, 425 U. S. 840 (1976) (same, with respect to Title VII claims), and since there is no reason to believe federal enforcement agencies are any less competent than their state counterparts, it would be anomalous to afford more deference to one than the other. It would, indeed, invite further capricious anomalies as well, for whether age-discrimination claims are investigated first by the EEOC or by state authorities is a matter over which the complainant has no control, see 29 CFR §§1626.9, 1626.10 (1990); whether or not he might receive his day in court (complete with jury, see 29 U. S. C. § 626(c)(2)), would then depend, under petitioner’s theory, on bureaucratic chance. Petitioner’s reading would also lead to disparities from State to State, depending on whether a given jurisdiction had an age-discrimination statute of its own. See § 633(b). Moreover, on the assumption that claimants fare better in federal court than before state agencies, and in fight of § 14(a)’s provision that state proceedings are superseded upon commencement of federal action, see § 633(a), a recognition of administrative estoppel here would induce all claimants to initiate federal suit at the earliest opportunity after filing the state complaint, thereby defeating the purpose of deferral to resolve complaints outside the federal system. See Oscar Mayer, supra, at 755-756. Finally, although the wisdom of Congress’ decision against according preclusive effect to state agency rulings has no bearing upon the disposition of the case, that choice has plausible policy support. Although it is true that there will be some duplication of effort, the duplication need not be great. We speak, after all, only of agency determinations not otherwise subjected to judicial review; our reading of the statute will provide no more than a second chance to prove the claim, 114 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. and even then state administrative findings may be entered into evidence at trial. See Chandler, supra, at 863, n. 39. It also may well be that Congress thought state agency consideration generally inadequate to ensure full protection against age discrimination in employment. In this very case, the New York Division of Human Rights, which ruled against respondent on the merits, has itself appeared as amicus on his behalf, highlighting the shortfalls of its procedures and resources. See Brief for New York State Division of Human Rights as Amicus Curiae 18-22. Alternatively, by denying preclusive effect to any such agency determination, Congress has eliminated litigation that would otherwise result, from State to State and case to case, over whether the agency has in fact “act[ed] in a judicial capacity” and afforded the parties “an adequate opportunity to litigate,” Utah Constr. Co., 384 U. S., at 422, so as to justify application of a normal rule in favor of estoppel. For these reasons, the District Court’s grant of petitioner’s motion for summary judgment was erroneous on the grounds stated. The judgment of the Court of Appeals is affirmed, and the case is remanded to the District Court for proceedings consistent with this opinion. It is so ordered. GOLLUST v. MENDELL 115 Syllabus GOLLUST et al. v. MENDELL et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 90-659. Argued April 15, 1991—Decided June 10, 1991 Section 16(b) of the Securities Exchange Act of 1934 imposes strict liability on “beneficial owner[s]” of more than 10% of a corporation’s listed stock, and on the corporation’s officers and directors, for any profits realized from any purchase and sale, or sale and purchase, of such stock occurring within a 6-month period. Such “insiders” are subject to suit “instituted ... by the issuer, or by the owner of any security of the issuer” in the issuer’s name and behalf. Af ter respondent Mendell, an owner of common stock in Viacom International, Inc. (International), instituted a § 16(b) suit against petitioners, allegedly “beneficial owners” of International stock, International was acquired by a shell subsidiary of what is now called Viacom, Inc. (Viacom). International merged with the subsidiary and became Viacom’s wholly owned subsidiary and sole asset. Mendell received cash and stock in Viacom in exchange for his International stock. The District Court granted petitioners’ motion for summary judgment on the ground that Mendell had lost standing to maintain the action because he no longer owned any International stock. The Court of Appeals reversed, holding that Mendell’s continued prosecution of the action was not barred by the statute’s language or existing case law and was fully consistent with the statutory objectives. Held: Mendell has satisfied the statute’s standing requirements. Pp. 121-128. (a) Section 16(b) provides standing of signal breadth, expressly limited only by the conditions that the plaintiff be the “owner of [a] security” of the “issuer” at the time the suit is “instituted.” Any “security”—including stock, notes, warrants, bonds, debentures, puts, and calls, 15 U. S. C. § 78c(a)(10)—will suffice to confer standing. There is no restriction in terms of the number or percentage of shares, or the value of any other security, that must be held. Nor is the security owner required to have had an interest in the issuer at the time of the short-swing trading. Although the security’s “issuer” does not include parent or subsidiary corporations, 15 U. S. C. § 78c(a)(8), this requirement is determined at the time the § 16(b) action is “instituted.” Congress intended to adopt the common understanding of the word “institute”—“inaugurate or commence; as to institute an action,” Black’s Law Dictionary 985-986 (3d ed. 1933)—which is confirmed by its use of the 116 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. same word elsewhere to mean the commencement of an action, see, e. g., 8 U. S. C. § 1503(a). Pp. 121-124. (b) A § 16(b) plaintiff must, however, throughout the period of his participation in the litigation, maintain some financial interest in the litigation’s outcome, both for the sake of furthering the statute’s remedial purposes by ensuring that enforcing parties maintain the incentive to litigate vigorously, and to avoid the serious constitutional question that would arise under Article III from a plaintiff’s loss of all financial interest in the outcome of the litigation he had begun. But neither the statute nor its legislative history supports petitioners’ argument that a plaintiff must continuously own a security of the issuer. Pp. 124-126. (c) An adequate financial stake can be maintained when the plaintiff’s interest in the issuer has been replaced by one in the issuer’s new parent corporation. This is no less an interest than a bondholder’s financial stake, which, although more attenuated, satisfies the initial standing requirement under the statute. Pp. 126-127. (d) Here, Mendell owned a security of the issuer at the time he instituted this § 16(b) action, and he continues to maintain a financial interest in the litigation’s outcome by virtue of his Viacom stock. Pp. 127-128. 909 F. 2d 724, affirmed. Souter, J., delivered the opinion for a unanimous Court. Edwin B. Mishkin argued the cause for petitioners. With him on the briefs were Victor I. Lewkow and Thomas G. Dagger. Irving Malchman argued the cause for respondents and filed a brief for respondent Mendell. James R. Doty argued the cause for the Securities and Exchange Commission as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Roberts, Michael R. Dreeben, Paul Gonson, Jacob H. Stillman, and Thomas L. Riesenberg. Justice Souter delivered the opinion of the Court. Section 16(b) of the Securities Exchange Act of 1934, 48 Stat. 896, 15 U. S. C. §78p(b),1 imposes a general rule of 1 The text of § 16(b) reads in full: “For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any pur- GOLLUST v. MENDELL 117 115- Opinion of the Court strict liability on owners of more than 10% of a corporation’s listed stock for any profits realized from the purchase and sale, or sale and purchase, of such stock occurring within a 6-month period. These statutorily defined “insiders,” as well as the corporation’s officers and directors, are liable to the issuer of the stock for their short-swing profits, and are subject to suit “instituted ... by the issuer, or by the owner of any security of the issuer in the name and in behalf of the issuer . . . .” Ibid. Our prior cases interpreting § 16(b) have resolved questions about the liability of an insider defendant under the statute.2 This case, in contrast, requires Jis to address a chase 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 issuer irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months. Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the issuer, or by the owner of any security of the issuer in the name and in behalf of the issuer if the issuer shall fail or refuse to bring such suit within sixty days after request or shall fail diligently to prosecute the same thereafter; but no such suit shall be brought more than two years after the date such profit was realized. This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase, of the security involved, or any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection.” 15 U. S. C. § 78p(b). The phrase “beneficial owner, director, or officer” is defined in § 16(a) as “[e]very person who is directly or indirectly the beneficial owner of more than 10 per centum of any class of any equity security . . . which is registered pursuant to [§ 12 of the 1934 Act], or who is a director or an officer of the issuer of such security . . . .” 15 U. S. C. §78p(a). 2 See For emo st-McKesson, Inc. v. Provident Securities Co., 423 U. S. 232 (1976) (defendant must be 10% beneficial owner before purchase to be subject to liability for subsequent sale); Kern County Land Co. v. Occidental Petroleum Corp., 411 U. S. 582 (1973) (binding option to sell stock 118 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. plaintiff’s standing under § 16(b) and, in particular, the requirements for continued standing after the institution of an action. We hold that a plaintiff, who properly “instituted [a § 16(b) action as] the owner of [a] security of the issuer,” may continue to prosecute the action after his interest in the issuer is exchanged in a merger for stock in the issuer’s new corporate parent. I In January 1987, respondent Ira L. Mendell filed a complaint under § 16(b) against petitioners in the United States District Court for the Southern District of New York, stating that he owned common stock in Viacom International, Inc. (International), and was suing on behalf of the corporation. He alleged that petitioners, a collection of limited partnerships, general partnerships, individual partners and corporations, “operated as a single unit” and were, for purposes of this litigation, a “single . . . beneficial owner of more than ten per centum of the common stock” of International. App. to Pet. for Cert. 40a-42a. Respondent claimed that petitioners were liable to International under § 16(b) for approximately $11 million in profits earned by them from trading in International’s common stock between July and October 1986. Id., at 42a-43a. The complaint recited that respondent had made a demand upon International and its board of directors to bring a § 16(b) action against petitioners and that more than 60 days had passed without the institution of an action. In June 1987, less than six months after respondent had filed his § 16(b) complaint, International was acquired by Arsenal Acquiring Corp., a shell corporation formed by Arsenal Holdings, Inc. (now named Viacom, Inc.) (Viacom), for the purpose of acquiring International. By the terms of the acquisition, Viacom’s shell subsidiary was merged with Inter- net a “sale” for purposes of § 16(b)); Reliance Electric Co. v. Emerson Electric Co., 404 U. S. 418 (1972) (no liability for sales by defendant after its ownership interest fell below 10%); Blau v. Lehman, 368 U. S. 403 (1962) (partnership not liable under § 16(b) for trades by partner). GOLLUST v. MENDELL 119 115 Opinion of the Court national, which then became Viacom’s wholly owned subsidiary and only asset. The stockholders of International received a combination of cash and stock in Viacom in exchange for their International stock.3 Id., at 40a; App. 14-26. As a result of the acquisition, respondent, who was a stockholder in International when he instituted this action, acquired stock in International’s new parent corporation and sole stockholder, Viacom. Respondent amended his complaint to reflect the restructuring by claiming to prosecute the § 16(b) action on behalf of Viacom as well as International. App. to Pet. for Cert. 44a. Following the merger, petitioners moved for summary judgment, arguing that respondent had lost standing to maintain the action when the exchange of stock and cash occurred, after which respondent no longer owned any security of International, the “issuer.” The District Court held that § 16(b) actions “may be prosecuted only by the issuer itself or the holders of its securities,” and granted the motion because respondent no longer owned any International stock.4 App. to Pet. for Cert. 32a. The court concluded that only Viacom, as International’s sole security holder, could continue to prosecute this action against petitioners. Id., at 33a. A divided Court of Appeals reversed. Mendell ex rel. Viacom, Inc. v. Gollust, 909 F. 2d 724 (CA2 1990). The majority saw nothing in the text of § 16(b) to require dismissal 8 International stockholders who chose not to exchange their shares under the terms of the merger were afforded appraisal rights under Ohio law. App. 25-26. Respondent did not exercise his right to appraisal. 4 Respondent also sought to sue derivatively on behalf of International. App. to Pet. for Cert. 44a. This “double derivative” claim was dismissed by the District Court. Id., at 33a. Because of its disposition of respondent’s § 16(b) claim, the Court of Appeals did not reach this issue. Mendell ex rel. Viacom, Inc. v. Gollust, 909 F. 2d 724, 731 (CA2 1990). Although respondent now “urges upon th[is] Court the validity of his double derivative action,” Brief for Respondent 26, this issue was not properly presented to this Court for review and we do not reach it. 120 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. of respondent’s complaint. “[T]he language of the statute speaks of the ‘owner’ of securities; but such language is not modified by the word ‘current’ or any like limiting expression. The statute does not specifically bar the maintenance of § 16(b) suits by former shareholders and Congress . . . could readily have eliminated such individuals.” Id., at 730. Since the provisions of the statute were open to “interpretation,” the court relied on the statute’s remedial purposes in determining “whether the policy behind the statute is best served by allowing the claim.” Id., at 728-729. The majority concluded that the remedial policy favored recognizing respondent’s continued standing after the merger. “Permitting [respondent] to maintain this § 16(b) suit is not barred by the language of the statute or by existing case law, and it is fully consistent with the statutory objectives.”5 Id., at 731. The summary judgment for petitioners was reversed. The dissent took issue with this analysis, finding it to be in conflict with prior decisions of the Second Circuit and at least one other. See Portnoy n. Kawecki Berylco Industries, Inc., 607 F. 2d 765, 767 (CA7 1979); Rothenberg v. United Brands Co., CCH Fed. Sec. L. Rep. 1196,045 (SDNY), aff’d mem., 573 F. 2d 1295 (CA2 1977). We granted certiorari, 498 U. S. 1023 (1991), to resolve this conflict and to determine whether a stockholder who has properly instituted a § 16(b) action to recover profits from a 5 The Court of Appeals observed: “Here plaintiff’s suit was timely, and while his § 16(b) suit was pending he was involuntarily divested of his share ownership in the issuer through a merger. But for that merger plaintiff’s suit could not have been challenged on standing grounds. Although we decline—in keeping with § 16(b)’s objective analysis regarding defendants’ intent—to inquire whether the merger was orchestrated for the express purpose of divesting plaintiff of standing, we cannot help but note that the incorporation of Viacom and the merger proposal occurred after plaintiff’s § 16(b) claim was instituted. Hence, the danger of such intentional restructuring to defeat the enforcement mechanism incorporated in the statute is clearly present.” 909 F. 2d, at 731. GOLLUST v. MENDELL 121 115 Opinion of the Court corporation’s insiders may continue to prosecute that action after a merger involving the issuer results in exchanging the stockholder’s interest in the issuer for stock in the issuer’s new corporate parent. II A Congress passed § 16(b) of the 1934 Act to “preven[t] the unfair use of information which may have been obtained by [a] beneficial owner, director, or officer by reason of his relationship to the issuer.” 15 U. S. C. §78p(b). As we noted in Foremost-McKesson, Inc. n. Provident Securities Co., 423 U. S. 232, 243 (1976): “Congress recognized that insiders may have access to information about their corporations not available to the rest of the investing public. By trading on this information, these persons could reap profits at the expense of less well informed investors.” Prohibiting short-swing trading by insiders with nonpublic information was an important part of Congress’ plan in the 1934 Act to “insure the maintenance of fair and honest markets,” 15 U. S. C. §78b; and to eliminate such trading, Congress enacted a “flat rule [in § 16(b)] taking the profits out of a class of transactions in which the possibility of abuse was believed to be intolerably great.” Reliance Electric Co. v. Emerson Electric Co., 404 U. S. 418, 422 (1972); see also Kern County Land Co. v. Occidental Petroleum Corp., 411 U. S. 582, 591-595 (1973). The question presented in this case requires us to determine who may maintain an action to enforce this “flat rule.” We begin with the text. Section 16(b) imposes liability on any “beneficial owner, director, or officer” of a corporation for “any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of [an] issuer . . . within any period of less than six months.” 15 U. S. C. § 78p(b). A “[s]uit to recover [an insider’s] profit may be instituted ... by the issuer, or by the owner of any security of the issuer in the name and in behalf of the issuer . . . .” Ibid. 122 OCTOBER TERM, 1990 501 U. S. Opinion of the Court The statute imposes a form of strict liability on “beneficial owner[s],” as well as on the issuer’s officers and directors, rendering them liable to suits requiring them to disgorge their profits even if they did not trade on inside information or intend to profit on the basis of such information. See Kern County Land Co. n. Occidental Petroleum Corp., supra, at 595. Because the statute imposes “liability without fault within its narrowly drawn limits,” Foremost-McKesson, Inc. v. Provident Securities Co., supra, at 251, we have been reluctant to exceed a literal, “mechanical” application of the statutory text in determining who may be subject to liability, even though in some cases a broader view of statutory liability could work to eliminate an “evil that Congress sought to correct through § 16(b).” Reliance Electric Co. v. Emerson Electric Co., supra, at 425. To enforce this strict liability rule on insider trading, Congress chose to rely solely on the issuers of stock and their security holders. Unlike most of the federal securities laws, § 16(b) does not confer enforcement authority on the Securities and Exchange Commission. It is, rather, the security holders of an issuer who have the ultimate authority to sue for enforcement of § 16(b). If the issuer declines to bring a § 16(b) action within 60 days of a demand by a security holder, or fails to prosecute the action “diligently,” 15 U. S. C. § 78p(b), then the security holder may “institut[e]” an action to recover insider short-swing profits for the issuer. Ibid. In contrast to the “narrowly drawn limits” on the class of corporate insiders who may be defendants under § 16(b), Foremost-McKesson, Inc. v. Provident Securities Co., supra, at 251, the statutory definitions identifying the class of plaintiffs (other than the issuer) who may bring suit indicate that Congress intended to grant enforcement standing of considerable breadth. The only textual restrictions on the standing of a party to bring suit under § 16(b) are that the plaintiff GOLLUST v. MENDELL 123 115 Opinion of the Court must be the “owner of [a] security” of the “issuer” at the time the suit is “instituted.” Although plaintiffs seeking to sue under the statute must own a “security,” § 16(b) places no significant restriction on the type of security adequate to confer standing. “[A]ny security” will suffice, 15 U. S. C. § 78p(b), the statutory definition being broad enough to include stock, notes, warrants, bonds, debentures, puts, calls, and a variety of other financial instruments; it expressly excludes only “currency or any note, draft, bill of exchange, or banker’s acceptance which has a maturity at the time of issuance of not exceeding nine months . . . .” §78c(a)(10); see also Reves v. Ernst & Young, 494 U. S. 56 (1990). Nor is there any restriction in terms of either the number or percentage of shares, or the value of any other security, that must be held. See Portnoy n. Revlon, Inc., 650 F. 2d 895, 897 (CA7 1981) (plaintiff bought single share); Magida v. Continental Can Co., 231 F. 2d 843, 847-848 (CA2) (plaintiff owned 10 shares), cert, denied, 351 U. S. 972 (1956). In fact, the terms of the statute do not even require that the security owner have had an interest in the issuer at the time of the defendant’s short-swing trading, and the courts to have addressed this issue have held that a subsequent purchaser of the issuer’s securities has standing to sue for prior short-swing trading. See, e. g., Dottenheim v. Murchison, 227 F. 2d 737, 738-740 (CA5 1955), cert, denied, 351 U. S. 919 (1956); Blau v. Mission Corp., 212 F. 2d 77, 79 (CA2), cert, denied, 347 U. S. 1016 (1954). The second requirement for § 16(b) standing is that the plaintiff own a security of the “issuer” whose stock was traded by the insider defendant. An “issuer” of a security is defined under § 3(a)(8) of the 1934 Act as the corporation that actually issued the security, 15 U. S. C. § 78c(a)(8), and does not include parent or subsidiary corporations.6 While this 6Cf. §2(11) of the Securities Act of 1933, 15 U. S. C. §77b(ll) (definition of “issuer” for certain purposes is “any person directly or indirectly 124 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. requirement is strict on its face, it is ostensibly subject to mitigation in the final requirement for § 16(b) standing, which is merely that the plaintiff own a security of the issuer at the time the § 16(b) action is “instituted.” Today, as in 1934, the word “institute” is commonly understood to mean “inaugurate or commence; as to institute an action.” Black’s Law Dictionary 985-986 (3d ed. 1933) (citing cases); see Black’s Law Dictionary 800 (6th ed. 1990) (same definition); Random House Unabridged Dictionary of the English Language 988 (2d ed. 1987) (“to set in operation; to institute a lawsuit”). Congressional intent to adopt this common understanding is confirmed by Congress’ use of the same word elsewhere to mean the commencement of an action. See, e. g.,8 U. S. C. § 1503(a) (“action . . . may be instituted only within five years after . . . final administrative denial”); 42 U. S. C. § 405(g) (“Any action instituted in accordance with this subsection shall survive notwithstanding any change in the person occupying the office of Secretary or any vacancy in such office”). The terms of § 16(b), read in context, thus provide standing of signal breadth, expressly limited only by conditions existing at the time an action is begun. Petitioners contend, however, that the statute should at least be read narrowly enough to require the plaintiff owning a “security” of the “issuer” at the time the action is “instituted” to maintain ownership of the issuer’s security throughout the period of his participation in the litigation. See Brief for Petitioners 11. But no such “continuous ownership requirement,” ibid., is found in the text of the statute, nor does § 16(b)’s legislative history reveal any congressional intent to impose one. This is not to say, of course, that a § 16(b) action could be maintained by someone who is subsequently divested of any interest in the outcome of the litigation. Congress clearly intended to put “a private-profit motive behind the uncovering of this kind of leakage of information, [by making] the controlling or controlled by the issuer, or any person under direct or indirect common control with the issuer”). GOLLUST v. MENDELL 125 115 Opinion of the Court stockholders [its] policemen.” Hearings on H. R. 7852 and H. R. 8720 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 136 (1934) (testimony of Thomas G. Corcoran) (hereinafter Hearings). The sparse legislative history on this question, which consists primarily of hearing testimony by one of the 1934 Act’s drafters, merely confirms this conclusion.7 Congress must, indeed, have assumed any plaintiff would maintain some continuing financial stake in the litigation for a further reason as well. For if a security holder were allowed to maintain a § 16(b) action after he had lost any financial interest in its outcome, there would be serious constitutional doubt whether that plaintiff could demonstrate the standing required by Article Ill’s case-or-controversy limitation on federal court jurisdiction. See Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 804 (1985) (Article III requires “the party requesting standing [to allege] ‘such a personal stake in the outcome of the controversy as to assure that concrete ad 7 Petitioners have directed our attention only to a statement by Thomas G. Corcoran, a principal drafter of the statute, at one of the hearings on the 1934 Act. Corcoran testified that Congress could be confident that § 16(b) would be enforced because the enactment of the statute would “[say] to all of the stockholders of the company, ‘You can recover any of this profit for your own account, if you find out that any such transactions are going on.’ ” Hearings 136. This statement was not, of course, a complete description of the class of plaintiffs entitled to § 16(b) standing, since “any security [holder]” may sue, not just stockholders. 15 U. S. C. § 78p(b). Nor was it meant as a precise description of a plaintiff’s incentive to sue; the witness elsewhere made it clear that a stockholder plaintiff (or any other security holder) would not directly receive any recovery, but would be suing solely on the corporation’s behalf: “The fact that the stockholders, with an interest, are permitted to sue to recover that profit for the benefit of the company, puts anyone doing this particular thing, in the position of taking [a] risk that somebody with a profit motive will try to find out.” Hearings 137 (emphasis added). Corcoran’s analysis does, however, demonstrate the statute’s reliance for its enforcement on the profit motive in an issuer’s security holders, a dependence that could hardly cease the moment after suit was filed. 126 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. verseness which sharpens the presentation of issues’ ”) (quoting Baker v. Carr, 369 U. S. 186, 204 (1962)); see also Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982). Although “Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules,” Warth v. Seldin, 422 U. S. 490, 501 (1975), “Art. Ill’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself.” Ibid. Moreover, the plaintiff must maintain a “personal stake” in the outcome of the litigation throughout its course. See United States Parole Comm’n v. Geraghty, 445 U. S. 388, 395-397 (1980). Hence, we have no difficulty concluding that, in the enactment of § 16(b), Congress understood and intended that, throughout the period of his participation, a plaintiff authorized to sue insiders on behalf of an issuer would have some continuing financial interest in the outcome of the litigation, both for the sake of furthering the statute’s remedial purposes by ensuring that enforcing parties maintain the incentive to litigate vigorously and to avoid the serious constitutional question that would arise from a plaintiff’s loss of all financial interest in the outcome of the litigation he had begun. See Crowell v. Benson, 285 U. S. 22, 62 (1932) (“When the validity of an act of Congress is drawn in question, and even if a serious doubt of constitutionality is raised, . . . this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided”); see also Public Citizen v. Department of Justice, 491 U. S. 440, 465-466 (1989); id., at 481 (Kennedy, J., concurring in judgment). B The conclusion that § 16(b) requires a plaintiff security holder to maintain some financial interest in the outcome of the litigation does not, however, tell us whether an adequate financial stake can be maintained when the plaintiff’s interest GOLLUST v. MENDELL 127 115 Opinion of the Court in the issuer has been replaced by one in the issuer’s new parent. We think it can be. The modest financial stake in an issuer sufficient to bring suit is not necessarily greater than an interest in the original issuer represented by equity ownership in the issuer’s parent corporation. A security holder eligible to institute suit will have no direct financial interest in the outcome of the litigation, since any recovery will inure only to the issuer’s benefit. Yet the indirect interest derived through one share of stock is enough to confer standing, however slight the potential marginal increase in the value of the share. A bondholder’s sufficient financial interest may be even more attenuated, since any recovery by the issuer will increase the value of the bond only because the issuer may become a slightly better credit risk. Thus, it is difficult to see how such a bondholder plaintiff, for example, is likely to have a more significant stake in the outcome of a § 16(b) action than a stockholder in a company whose only asset is the issuer. Because such a bondholder’s attenuated financial stake is nonetheless sufficient to satisfy the statute’s initial standing requirements, the stake of a parent company stockholder like respondent should be enough to meet the requirements for continued standing, so long as that is consistent with the text of the statute. It is consistent, of course, and in light of the congressional policy of lenient standing, we will not read any further condition into the statute, beyond the requirement that a § 16(b) plaintiff maintain a financial interest in the outcome of the litigation sufficient to motivate its prosecution and avoid constitutional standing difficulties. Ill In this case, respondent has satisfied the statute’s requirements. He owned a “security” of the “issuer” at the time he “instituted” this § 16(b) action. In the aftermath of International’s restructuring, he retains a continuing financial interest in the outcome of the litigation derived from his stock in 128 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. International’s sole stockholder, Viacom, whose only asset is International. Through these relationships, respondent still stands to profit, albeit indirectly, if this action is successful, just as he would have done if his original shares had not been exchanged for stock in Viacom. Although a calculation of the values of the respective interests in International that respondent held as its stockholder and holds now as a Viacom stockholder is not before us, his financial interest is actually no less real than before the merger and apparently no more attenuated than the interest of a bondholder might be in a § 16(b) suit on an issuer’s behalf. The judgment of the Court of Appeals is, accordingly, affirmed. It is so ordered. BURNS v. UNITED STATES 129 Syllabus BURNS v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 89-7260. Argued December 3, 1990—Decided June 13, 1991 A plea agreement with the Government recited that petitioner Burns would plead guilty to three counts and stated the parties’ expectation that his sentence would fall within a particular offense-level/criminal-history range under the United States Sentencing Commission’s Guidelines. The probation officer, as required by Federal Rule of Criminal Procedure 32, filed a presentence report in which he confirmed the parties’ expectation that the sentencing range would be 30 to 37 months and concluded that there were no factors that would warrant departure from the Guidelines sentence. Although neither party filed any objections to the report, the District Court announced, at the end of the sentencing hearing, that it was departing upward from the Guidelines range and, based upon three grounds, sentenced Burns to 60 months’ imprisonment. The Court of Appeals affirmed the sentence, concluding that, although subdivision (a)(1) of Rule 32 requires a district court to afford the parties “an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence” at the sentencing hearing, it would be inappropriate to impose on a district court a requirement that it notify the parties of its intent to make a sua sponte departure from the Guidelines in the absence of express language to that effect. Held: Before a district court can depart upward from the applicable Guidelines range on a ground not identified as a ground for such departure either in the presentence report or in a prehearing submission by the Government, Rule 32 requires that the court give the parties reasonable notice that it is contemplating such a ruling, specifically identifying the ground for the departure. Pp. 132-139. (a) In order to eliminate the unwarranted disparities and uncertainty associated with indeterminate sentencing under the pre-existing system, the Sentencing Reform Act of 1984 requires district courts to determine sentences based on the various offense- and offender-related factors identified by the Guidelines. Under the Act, a district court may disregard the Guidelines’ mechanical dictates only upon finding an aggravating or mitigating circumstance not adequately considered by the Commission. The Act amended Rule 32 to assure focused, adversarial development of the factual and legal issues relevant to determining the 130 OCTOBER TERM, 1990 Syllabus 501 U. S. appropriate Guidelines sentence. Although, ordinarily, the presentence report or the Government’s recommendation will notify the defendant that an upward departure will be at issue and of the facts that allegedly support it, that will not be the case where, as here, the district court departs sua sponte from the Guidelines sentencing range. Pp. 132-135. (b) The textual and contextual evidence of legislative intent indicates that Congress did not intend a district court to depart from the Guidelines sua sponte without first affording notice to the parties. The Government’s contrary reading renders meaningless the parties’ express right under Rule 32(a)(1) to “comment upon [relevant] matters,” since the right to comment upon a departure has little reality or worth unless one is informed that a decision is contemplated. The Government’s reading is also inconsistent with Rule 32’s purpose. Under the Government’s interpretation of Rule 32, a critical sentencing determination would go untested by the adversarial process in every case in which the parties, lacking notice, failed to anticipate an unannounced and uninvited departure by the district court from the Guidelines. Furthermore, the meaning that the Government attaches to Congress’ silence is contrary to decisions in which, despite the absence of express statutory language, this Court has construed statutes authorizing analogous deprivations of liberty or property to require that the Government give affected individuals both notice and a meaningful opportunity to be heard. See, e. g., American Power & Light Co. v. SEC, 329 U. S. 90, 107-108. Since the Government’s interpretation would require this Court to confront the serious question whether notice is mandated by the Due Process Clause, the Court will not construe Rule 32 to dispense with notice in this setting absent a clear statement of congressional intent to that effect. See, e. g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568, 575. Pp. 135-138. 282 U. S. App. D. C. 194, 893 F. 2d 1343, reversed and remanded. Marshall, J., delivered the opinion of the Court, in which Blackmun, Stevens, Scalia, and Kennedy, JJ., joined. Souter, J., filed a dissenting opinion, in which White and O’Connor, JJ., joined, and in Part I of which Rehnquist, C. J., joined, post, p. 139. Steven H. Goldblatt argued the cause and filed briefs for petitioner. Stephen J. Marzen argued the cause for the United States. With him on the brief were Acting Solicitor General Roberts, Acting Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and J. Douglas Wilson. BURNS v. UNITED STATES 131 129 Opinion of the Court Justice Marshall delivered the opinion of the Court. The question in this case is whether a district court may depart upward from the sentencing range established by the Sentencing Guidelines without first notifying the parties that it intends to depart. We hold that it may not. I Petitioner William Burns was employed by the United States Agency for International Development (AID) from 1967 until 1988. Between 1982 and 1988, petitioner used his position as a supervisor in the agency’s Financial Management Section to authorize payment of AID funds into a bank account controlled by him in the name of a fictitious person. During this period, 53 fraudulent payments totaling over $1.2 million were paid into the account. Following the Government’s detection of this scheme, petitioner agreed to plead guilty to a three-count information charging him with theft of Government funds, 18 U. S. C. §641, making false claims against the Government, 18 U. S. C. §287, and attempted tax evasion, 26 U. S. C. §7201. The plea agreement stated the parties’ expectation that petitioner would be sentenced within the Guidelines range corresponding to an offense level of 19 and a criminal history category of I. The probation officer confirmed this expectation in his presentence report and found the applicable sentencing range to be 30 to 37 months. The report also concluded: “There are no factors that would warrant departure from the guideline sentence.” App. 21. Both petitioner and the Government reviewed the presentence report, and neither party filed any objections to it. Nonetheless, at the conclusion of the sentencing hearing, the District Court announced that it was departing upward from the Guidelines sentencing range. The District Court set forth three reasons for the departure: (1) the extensive duration of petitioner’s criminal conduct; (2) the disruption to 132 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. governmental functions caused by petitioner’s criminal conduct; and (3) petitioner’s use of his tax evasion offense to conceal his theft and false claims offenses. Based upon these considerations, the District Court sentenced petitioner to 60 months’ imprisonment. On appeal, petitioner argued that Rule 32 of the Federal Rules of Criminal Procedure obliged the District Court to furnish advance notice of its intent to depart from the Guidelines. The Court of Appeals for the District of Columbia Circuit rejected petitioner’s contention and affirmed his sentence. The court observed that, although subdivision (a)(1) of Rule 32 requires the district court to afford the parties “an opportunity to comment upon . . . matters relating to the appropriate sentence” at the sentencing hearing, the Rule contains no express language requiring a district court to notify the parties of its intent to make sua sponte departures from the Guidelines. The court determined that it would be inappropriate to impose such a requirement on district courts in the absence of such express statutory language. See 282 U. S. App. D. C. 194, 199, 893 F. 2d 1343, 1348 (1990). By contrast, several other Circuits have concluded that Rule 32 does require a district court to provide notice of its intent sua sponte to depart upward from an applicable Guidelines sentencing range.1 We granted certiorari to resolve this conflict. 497 U. S. 1023 (1990). We now reverse. II A The Sentencing Reform Act of 1984 revolutionized the manner in which district courts sentence persons convicted of federal crimes. See generally Mistretta v. United States, 488 U. S. 361, 363-367 (1989). Before the Act, Congress was generally content to define broad sentencing ranges, * ’See, e. g., United States v. Palta, 880 F. 2d 636, 640 (CA2 1989); United States v. Nuno-Para, 877 F. 2d 1409, 1415 (CA9 1989); United States v. Otero, 868 F. 2d 1412, 1415 (CA5 1989). BURNS v. UNITED STATES 133 129 Opinion of the Court leaving the imposition of sentences within those ranges to the discretion of individual judges, to be exercised on a case-by-case basis. Now, under the “guidelines” system initiated by the Act, district court judges determine sentences based on the various offense-related and offender-related factors identified by the Guidelines of the United States Sentencing Commission. See 18 U. S. C. §§ 3553(a)(4), (b). The purpose of this reform was to eliminate the “unwarranted disparities] and . . . uncertainty” associated with indeterminate sentencing. See, e. g., S. Rep. No. 98-225, p. 49(1983). The only circumstance in which the district court can disregard the mechanical dictates of the Guidelines is when it finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission . . . .” 18 U. S. C. § 3553(b). Procedural reforms, too, were necessary to achieve Congress’ goal of assuring “certainty and fairness” in sentencing. See 28 U. S. C. § 991(b)(1)(B). As the Commission has explained: “In pre-guidelines practice, factors relevant to sentencing were often determined in an informal fashion. The informality was to some extent explained by the fact that particular offense and offender characteristics rarely had a highly specific or required sentencing consequence. This situation will no longer exist under sentencing guidelines. The court’s resolution of disputed sentencing factors will usually have a measurable effect on the applicable punishment. More formality is therefore unavoidable if the sentencing process is to be accurate and fair. . . . When a reasonable dispute exists about any factor important to the sentencing determination, the court must ensure that the parties have an adequate opportunity to present relevant information” U. S. Sentencing Comm’n, Guidelines Manual §6A1.3, official commentary (1990) (emphasis added). 134 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. As amended by the Sentencing Reform Act, Federal Rule of Criminal Procedure 32 provides for focused, adversarial development of the factual and legal issues relevant to determining the appropriate Guidelines sentence. Rule 32 frames these issues by directing the probation officer to prepare a presentence report addressing all matters germane to the defendant’s sentence. See Fed. Rule Crim. Proc. 32(c)(2).2 At least 10 days before the sentencing, the report must be disclosed to the parties, see Rules 32(c)(3)(A), (C), whom the Guidelines contemplate will then be afforded an opportunity to file responses or objections with the district court, see Guidelines §6A1.2, and official commentary.3 Finally, Rule 32(a)(1) provides that “[a]t the sentencing hearing, the court [must] afford the counsel for the defendant and the attorney for the Government an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence.” 2 Pursuant to Rule 32(c)(2), the presentence report is to contain (a) information about the history and characteristics of the defendant, including his prior criminal record; (b) the classification of the offense and the defendant under the Sentencing Guidelines, possible sentencing ranges, and any factors that might warrant departure from the Guidelines; (c) any pertinent policy statements issued by the Sentencing Commission; (d) the impact of the defendant’s offense upon any victims; (e) information relating to possible sentences not requiring incarceration, unless the court orders otherwise; and (f) any other information requested by the court. 3 District courts have generally implemented this directive through local rules that allow the parties to file objections to the presentence report in advance of the sentencing hearing and that require the probation officer to respond to those objections. See, e. g., U. S. Dist. Ct. for the MD Ala. Rules 33(a)-(c); U. S. Dist. Ct. for the D DC Rules 311(a)-(c); U. S. Dist. Ct. for the ND Fla. Gen. Rules 23(b)-(d); U. S. Dist. Ct. for the ND Ill. Crim. Rules 2.06(g)-(i); U. S. Dist. Ct. for the ED-MD-WD La. Rules 16M(a)-(c); U. S. Dist. Ct. for the D. Minn. Rules 83.10(c)-(d); U. S. Dist. Ct. for the EDNC Rules 50.03-50.05; U. S. Dist. Ct. for the ND Ohio Crim. Rules 10.05(2)(b)-(d); U. S. Dist. Ct. for the WD Okla. Rules 42(E)(l)-(3); U. S. Dist. Ct. for the ED Tenn. Rules 27.3-27.5; U. S. Dist. Ct. for the ND Tex. Rules 10.9(b)-(e); U. S. Dist. Ct. for the WD Va. Rules 14(1)—(3); U. S. Dist. Ct. for the D. Wyo. Rules 219(c)-(f). BURNS v. UNITED STATES 135 129 Opinion of the Court This case involves one aspect of the procedures surrounding Guidelines sentencing: whether the defendant is entitled to notice before the district court departs sua sponte from the Guidelines sentencing range.4 In the ordinary case, the presentence report or the Government’s own recommendation will notify the defendant that an upward departure will be at issue and of the facts that allegedly support such a departure.5 Here we deal with the extraordinary case in which the district court, on its own initiative and contrary to the expectations of both the defendant and the Government, decides that the factual and legal predicates for a departure are satisfied. The question before us is whether Congress, in enacting the Sentencing Reform Act, intended that the district court be free to make such a determination without notifying the parties. We believe that the answer to this question is clearly no. B As we have set forth, Rule 32 contemplates full adversary testing of the issues relevant to a Guidelines sentence and mandates that the parties be given “an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence.” Fed. Rule Crim. Proc. 32(a)(1). Obviously, whether a sua sponte departure from the Guidelines would be legally and factually warranted is a “matte[r] relating to the appropriate sentence.” In our view, it makes no sense to impute to Congress an intent that a defendant have the right to comment on the appropriateness of a sua sponte departure but not the 4 It is equally appropriate to frame the issue as whether the parties are entitled to notice before the district court departs upward or downward from the Guidelines range. Under Rule 32, it is clear that the defendant and the Government enjoy equal procedural entitlements. 5 If the Government makes the recommendation in writing, Federal Rule of Criminal Procedure 49(a) requires that it be served upon the defendant. 136 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. right to be notified that the court is contemplating such a ruling. In arguing that Rule 32 does not contemplate notice in such a situation, the Government derives decisive meaning from congressional silence. Rule 32(c)(3)(A), the Government observes, expressly obliges the district court to give the parties’ 10 days’ notice of the contents of the presentence report. Because Rule 32 does not contain a like provision expressly obliging the district court to announce that it is contemplating to depart sua sponte, the Government concludes that Congress must have intended to deny the parties any right to notice in this setting. We find the Government’s analysis unconvincing. As one court has aptly put it, “[n]ot every silence is pregnant.” State of Illinois Dept, of Public Aid v. Schweiker, 707 F. 2d 273, 277 (CA7 1983). In some cases, Congress intends silence to rule out a particular statutory application, while in others Congress’ silence signifies merely an expectation that nothing more need be said in order to effectuate the relevant legislative objective. An inference drawn from congressional silence certainly cannot be credited when it is contrary to all other textual and contextual evidence of congressional intent. Here the textual and contextual evidence of legislative intent indicates that Congress did not intend district courts to depart from the Guidelines sua sponte without first affording notice to the parties. Such a reading is contrary to the text of Rule, 32(a)(1) because it renders meaningless the parties’ express right “to comment upon . . . matters relating to the appropriate sentence.” “Th[e] right to be heard has little reality or worth unless one is informed” that a decision is contemplated. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950). This is especially true when the decision in question is a sua sponte departure under the Guidelines. Because the Guidelines place essentially no limit on the number of potential factors that may warrant a depar BURNS v. UNITED STATES 137 129 Opinion of the Court ture, see, e. g., Guidelines ch. 1, pt. A4(b), no one is in a position to guess when or on what grounds a district court might depart, much less to “comment” on such a possibility in a coherent way. The Government’s construction of congressional “silence” would thus render what Congress has express ly said absurd. Cf. Green v. Bock Laundry Machine Co., 490 U. S. 504, 527 (1989) (Scalia, J., concurring in judgment) (when “confronted . . . with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional result[,] [o]ur task is to give some alternative meaning [to the statute] . . . that avoids this consequence”). The inference that the Government asks us to draw from silence also is inconsistent with Rule 32’s purpose of promoting focused, adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences. At best, under the Government’s rendering of Rule 32, parties will address possible sua sponte departures in a random and wasteful way by trying to anticipate and negate every conceivable ground on which the district court might choose to depart on its own initiative. At worst, and more likely, the parties will not even try to anticipate such a development; where neither the presentence report nor the attorney for the Government has suggested a ground for upward departure, defense counsel might be reluctant to suggest such a possibility to the district court, even for the purpose of rebutting it. In every case in which the parties fail to anticipate an unannounced and uninvited departure by the district court, a critical sentencing determination will go untested by the adversarial process contemplated by Rule 32 and the Guidelines. Lastly, the meaning that the Government attaches to Congress’ silence in Rule 32 is completely opposite to the meaning that this Court has attached to silence in a variety of analogous settings. Notwithstanding the absence of express statutory language, this Court has readily construed statutes that authorize deprivations of liberty or property to require that the Government give affected individuals both notice 138 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. and a meaningful opportunity to be heard. See American Power & Light Co. v. SEC, 329 U. S. 90, 107-108 (1946) (statute permitting Securities and Exchange Commission to order corporate dissolution); The Japanese Immigrant Case, 189 U. S. 86, 99-101 (1903) (statute permitting exclusion of aliens seeking to enter United States). The Court has likewise inferred other statutory protections essential to assuring procedural fairness. See Kent v. United States, 383 U. S. 541, 557 (1966) (right to full, adversary-style representation in juvenile transfer proceedings); Greene v. McElroy, 360 U. S. 474, 495-508 (1959) (right to confront adverse witnesses and evidence in security-clearance revocation proceedings); Wong Yang Sung v. McGrath, 339 U. S. 33, 48-51 (1950) (right to formal hearing in deportation proceedings). In this case, were we to read Rule 32 to dispense with notice, we would then have to confront the serious question whether notice in this setting is mandated by the Due Process Clause. Because Rule 32 does not clearly state that a district court sua sponte may depart upward from an applicable Guidelines sentencing range without providing notice to the defendant we decline to impute such an intention to Congress. See, e. g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568, 575 (1988) (“[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress”). Ill We hold that before a district court can depart upward on a ground not identified as a ground for upward departure either in the presentence report or in a prehearing submission by the Government, Rule 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling. This notice must specifically identify BURNS v. UNITED STATES 139 129 Souter, J., dissenting the ground on which the district court is contemplating an upward departure.6 Petitioner did not receive the notice to which he was entitled under Rule 32. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. Justice Souter, with whom Justice White and Justice O’Connor join, and with whom The Chief Justice joins as to Part I, dissenting. The Court today imposes a procedural requirement neither contemplated by Congress nor warranted by the language of any statute or rule. The Court’s inference of a notice requirement from congressional silence rests on a failure to appreciate the extraordinary detail with which the Sentencing Reform Act of 1984 (in amending Federal Rule of Criminal Procedure 32 and in its other provisions) expressly provides the procedures to be followed in imposing sentence in a federal criminal case. The absence from this carefully calibrated scheme of any provision for notice of the sort required by the Court makes it clear that, in the words the Court quotes, ante, at 136, the congressional silence was pregnant, and that Congress intended to require no such notice. The Court’s interpretation of Rule 32 accomplishes “‘not a construction of a [rule], but, in effect, an enlargement of it by the court.’” West Virginia University Hospitals, Inc. v. Casey, 499 U. S. 83, 101 (1991), quoting Iselin n. United States, 270 U. S. 245, 251 (1926) (Brandeis, J.). Because the Court’s 6 Because the question of the timing of the reasonable notice required by Rule 32 is not before us, we express no opinion on that issue. Rather, we leave it to the lower courts, which, of course, remain free to adopt appropriate procedures by local rule. See Guidelines §6A1.2, and official commentary (“Courts should adopt procedures to provide for . . . the narrowing and resolution, where feasible, of issues in dispute in advance of the sentencing hearing”). See also n. 3, supra (listing local rules established to govern resolution of objections to findings in presentence report). 140 OCTOBER TERM, 1990 Souter, J., dissenting 501 U. S. creation cannot be justified as a reasonable construction of the Rule, I respectfully dissent. I The express procedural requirements of the Sentencing Reform Act are numerous. Unless the court makes findings that would justify dispensing with a presentence investigation, the probation officer must make a presentence report, Fed. Rule Crim. Proc. 32(c)(1), that includes, inter alia, “information about the history and characteristics of the defendant”; “the classification of the offense and of the defendant under the categories established by the Sentencing Commission . . . that the probation officer believes to be applicable to the defendant’s case”; “the sentencing range suggested for such a category of offense committed by such a category of defendant as set forth in the guidelines issued by the Sentencing Commission”; and “an explanation by the probation officer of any factors that may indicate that a sentence of a different kind or of a different length from one within the applicable guideline would be more appropriate under all the circumstances.” Fed. Rules Crim. Proc. 32(c)(2)(A) and (B). The same Rule provides several guarantees of a defendant’s right to address the court. At the sentencing hearing, the district court “shall afford the counsel for the defendant and the attorney for the Government an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence.” Rule 32(a) (1). Before imposing sentence the court must “determine that the defendant and his counsel have had the opportunity to read and discuss” any presentence report and must afford the defendant and his counsel an opportunity to speak to the court and present mitigating information. Rule 32(a)(1)(A). Finally, the defendant and his counsel must be given the “opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information BURNS v. UNITED STATES 141 129 Souter, J., dissenting relating to any alleged factual inaccuracy contained in it.” Rule 32(c)(3)(A). The report itself, “not including any final recommendation as to sentence,” must in most respects be disclosed to the defendant, his counsel, and the attorney for the Government at least 10 days before sentencing, unless the defendant waives his right to that notice. Rules 32(c)(3)(A) and (C); 18 U. S. C. § 3552(d). Even when there is no full report, “[p]rior to the sentencing hearing, the court shall provide the counsel for the defendant and the attorney for the Government with notice of the probation officer’s determination, pursuant to the provisions of subdivision (c)(2)(B), of the sentencing classifications and sentencing guideline range believed to be applicable to the case.” Rule 32(a)(1). The district court must sentence within the range set by the Guidelines, unless it finds “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U. S. C. § 3553(b). A judge who departs from the Guidelines must “state in open court . . . the specific reason for the imposition of a sentence different from that described,” § 3553(c)(2), and a sentence outside the applicable range may be appealed, §§ 3742(a)(3), (b)(3). For all this attentive concern with procedure, neither Rule 32 nor any other provision of the Sentencing Reform Act expressly requires advance notice of a district court’s intention to depart sua sponte from the Guidelines range. The Court contends that such a notice requirement is implicit in the provision of Rule 32(a)(1)1 mandating that the parties be given 1 Rule 32(a)(1) provides: “Sentence shall be imposed without unnecessary delay, but the court may, when there is a factor important to the sentencing determination that is not then capable of being resolved, postpone the imposition of sentence for a reasonable time until the factor is capable of being resolved. Prior to the sentencing hearing, the court shall provide the counsel for the defend 142 OCTOBER TERM, 1990 Souter, J., dissenting 501 U. S. “an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence.” In the Court’s view, the right to comment on a matter relating to sentencing, such as the possibility of upward departure, can be exercised effectively only when that “matter” is identified explicitly; accordingly, the argument runs, in providing an opportunity to comment Congress must also have intended to require that notice be given of any matter upon which the parties might desire to comment. See ante, at 136-137. The difficulty with this reasoning is that the terms of the Act reflect a decided congressional disinclination to rely on presuppositions and silent intentions in place of explicit notice requirements. The Act expressly requires that before sentencing the court must give notice to the defense of the probation officer’s determination of the sentencing classifications and Guidelines range applicable to the case. The Act ant and the attorney for the Government with notice of the probation officer’s determination, pursuant to the provisions of subdivision (c)(2)(B), of the sentencing classifications and sentencing guideline range believed to be applicable to the case. At the sentencing hearing, the court shall afford the counsel for the defendant and the attorney for the Government an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence. Before imposing sentence, the court shall also— “(A) determine that the defendant and defendant’s counsel have had the opportunity to read and discuss the presentence investigation report made available pursuant to subdivision (c)(3)(A) or summary thereof made available pursuant to subdivision (c)(3)(B); “(B) afford counsel for the defendant an opportunity to speak on behalf of the defendant; and “(C) address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence. “The attorney for the Government shall have an equivalent opportunity to speak to the court. Upon a motion that is jointly filed by the defendant and by the attorney for the Government, the court may hear in camera such a statement by the defendant, counsel for the defendant, or the attorney for the Government.” BURNS v. UNITED STATES 143 129 Souter, J., dissenting also expressly entitles the defense to a copy of the presentence report not less than 10 days before the hearing (subject to qualifications not relevant here), and it expressly directs the court to ensure that the defendant and the defendant’s counsel have had the opportunity to read and discuss the report before sentence is imposed. What is remarkable about these provisions is that all of them (save for the guarantee of 10-day notice) would be superfluous on the Court’s reasoning. It is fair to say, for example, that the right to comment not merely on the appropriate classifications and Guidelines range, but on the probation officer’s determinations of what they are, implies a right to notice of those determinations. And yet Congress did not leave the notice requirement to the force of implication but expressly provided for it, both in cases with a presentence report and in cases without one. It would be only slightly less compelling to argue that a right to comment on other matters affecting sentence implies a right to read, discuss, and address the court with respect to the probation officer’s report. And yet, again, the drafters of Rule 32 provided for this result, not by relying on implication but by specific mandates to disclose. Given this congressional reliance on explicit provisions for disclosure even when notice requirements might reasonably have been inferred from rights to comment, there is great significance in the congressional silence about notice when a sentencing judge intends to depart from a Guidelines range. The only fair inference from this differential treatment is that when Congress meant to provide notice and disclosure, it was careful to be explicit, as against which its silence on the predeparture notice at issue here bespeaks no intent that notice be given. See, e. g., General Motors Corp. v. United States, 496 U. S. 530, 541 (1990). The Court seeks to justify its rewriting of Rule 32 by asserting that interpreting the Rule as written would be “absurd,” because such an interpretation would “rende[r] mean 144 OCTOBER TERM, 1990 Souter, J., dissenting 501 U. S. ingless” the right to comment on “other matters relating to the appropriate sentence” conferred by the Rule. Ante, at 136-137. Even if we were authorized to embellish Congress’ handiwork in the interest of enduing it with additional meaning, however, the Court’s argument would fail on its own terms, for the Court’s specific notice requirement is not necessary to save the right to comment from meaninglessness. First, the phrase “other matters relating to the appropriate sentence” includes a wide variety of matters beyond the district court’s possible inclination to depart sua sponte, such as the existence and significance of facts indicating the sentence that the court should choose within the applicable Guidelines range. Lack of specific notice as to just one “other matter” (the court’s option to depart upward) does not render the entire phrase meaningless. Second, even with regard to the “matter” of possible upward departure, the absence of specific notice hardly renders the opportunity to comment meaningless. The Court’s contrary conclusion rests on its erroneous treatment of the absence of specific notice of the factors on which the court may rely as equivalent to a complete absence of notice that the court may depart. Because the Sentencing Reform Act provides that a court may depart from the applicable Guideline range if it finds “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described,” 18 U. S. C. § 3553(b), the statute itself puts the parties on notice that departure is always a possibility, and the parties can use their opportunity to comment to address that possibility. Indeed, the record in this case demonstrates that, even without specific notice, counsel may choose to gear part of the argument to the possibility of departure. At the sentencing hearing, despite the absence of any indication that the judge was contemplating departure, petitioner’s counsel closed his remarks to the court by asking BURNS v. UNITED STATES 145 129 Souter, J., dissenting “that the period of incarceration be limited enough that he has a family to return to, that he has a future that he can work towards rebuilding, and we think the guidelines are the appropriate range, Your Honor. We ask Your Honor to consider a sentence within the guidelines.” App. 45 (emphasis added). Although specific notice of the sort required by the Court might be useful to the parties in helping them focus on specific potential grounds for departure, its absence hardly makes the opportunity to comment on the possibility of departure so meaningless as to justify judicial legislation. Although “we construe statutes, where possible, so as to avoid rendering superfluous any parts thereof,” Astoria Federal Savings & Loan Assn. n. Solimino, ante, at 112, it is not our practice to supplement their provisions simply because we think that some statutory provision might usefully do further duty than Congress has assigned to it.2 The Court also seeks to rely on the rule that statutes should be construed so as to avoid raising serious constitutional problems. Ante, at 138. This canon of construction, however, only applies when the constitutional difficulty can be avoided by a “‘reasonable construction,’” Edward J. DeBartolo Corp. n. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568, 575 (1988) (emphasis 2 Although the Court stops short of explicitly relying on §6A1.3 of the Sentencing Guidelines as providing textual support for a notice requirement, its lengthy quotation from the commentary to that provision, ante, at 133, bears mention. Section 6A1.3 addresses nothing more than disputes about factual matters like the presence or absence of particular offense and offender characteristics. Accordingly, the Introductory Commentary to Part A of Chapter Six of the Guidelines (of which § 6A1.3 is a part) states that “[t]his Part. . . sets forth the procedures for establishing the facts upon which the sentence will be based.” (Emphasis added.) Because §6A1.3 thus deals only with the resolution of fact-based disputes, it simply does not bear on the legal determination whether a given fact, once established, amounts to a circumstance so aggravating as to justify departure. 146 OCTOBER TERM, 1990 Souter, J., dissenting 501 U. S. added), of the statute. The problem with the Court’s notice requirement is that in no way does it result from a “construction” of anything in Rule 32. In light of the emphatic congressional silence about prior notice of sua sponte departures, what the Court does to Rule 32 comes closer to reconstruction than construction. In any event, the canon applies only when a contrary construction would “raise serious constitutional problems.” Ibid. Because, as I will now proceed to discuss, Rule 32 as written raises no such problems, there is no warrant for the Court’s conclusion.3 II I begin with the proposition that “the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause.” Gardner v. Florida, 430 U. S. 349, 358 (1977) (plurality opinion). At the threshold, of course, there must be an interest subject to due process protection, such as the expectancy that we found to have been created by the Nebraska statute at issue in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U. S. 1 (1979). The Act there in question directed that the parole board, when considering the possible release of an eligible prisoner, “‘shall order his release unless it is of the opinion that his release should be deferred because’” one of four statutory criteria was met. Id., at 11; see also Cleveland Bd. of Ed. n. Loudermill, 470 U. S. 532, 538-541 (1985); Wolff n. McDonnell, 418 U. S. 539, 558 (1974). The Sentencing Reform Act creates a similar presumption by providing that “[t]he court 8 The Court’s statement that we have “readily construed statutes that authorize deprivations of liberty or property to require that the Government give affected individuals both notice and a meaningful opportunity to be heard,” ante, at 137-138 (emphasis in original) (citing cases), is inapposite. The cases cited by the Court involved statutes that made no provision whatsoever for notice or hearing. By contrast, the Sentencing Reform Act itself, as explained earlier, gives notice that departure is always a possibility; and the express provisions of Rule 32 give the defendant the opportunity to be heard at his sentencing hearing. BURNS v. UNITED STATES 147 129 Souter, J., dissenting shall impose a sentence of the kind, and within the range, [set forth in the Guidelines,] unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.” 18 U. S. C. § 3553(b) (emphasis added). I therefore conclude that a defendant enjoys an expectation subject to due process protection that he will receive a sentence within the presumptively applicable range in the absence of grounds defined by the Act as justifying departure. The question is “what process is due.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972). “‘“[D]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances,’” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 895 (1961), but is “flexible[, calling] for such procedural protections as the particular situation demands.” Morrissey, supra, at 481. The methodology for assessing those demands was the subject of Mathews v. Eldridge, 424 U. S. 319 (1976), where we prescribed a three-part enquiry to consider “[f]irst, 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.” Id., at 335. Although Mathews itself concerned the adequacy of administrative factfinding procedures, we have not confined the Mathews approach to administrative contexts or to situations where simple factfinding is the sole determinant of governmental action. In Parham n. J. R., 442 U. S. 584 (1979), for example, we addressed the constitutionality of Georgia’s procedures for involuntarily admitting a child for treatment in a state mental hospital and explicitly relied on the Mathews 148 OCTOBER TERM, 1990 Souter, J., dissenting 501 U. S. structure. Id., at 599-600. We called it “a general approach for testing challenged state procedures under a due process claim,” id., at 599, even as we recognized that “[w]hile facts are plainly necessary for a proper resolution of [the relevant medical] questions, they are only a first step in the process,” id., at 609. In Greenholtz, we relied on Mathews while realizing that the parole board’s decision was “necessarily subjective in part and predictive in part,” that it entailed the exercise of “very broad discretion,” 442 U. S., at 13, and that none of the statutory bases for denying parole was a mere issue of historical fact, see id., at 11. In Ingraham n. Wright, 430 U. S. 651 (1977), holding that due process did not require notice and a hearing before the infliction of corporal punishment, we applied Mathews even though the relevant “risk of error” was not merely that facts might be mistaken, but that apart from any factual mistake corporal punishment might be inflicted “unnecessarily or excessively.” 430 U. S., at 678. The Mathews analysis has thus been used as a general approach for determining the procedures required by due process whenever erroneous governmental action would infringe an individual’s protected interest, and I think that Mathews provides the right framework for the analysis here as well. As for the first Mathews factor, a convicted defendant plainly has a lively concern with the consequences of an erroneous upward departure. In the present case, for example, petitioner’s sentence of 60 months’ imprisonment was double the low end of the recommended Guidelines range of 30 to 37 months. A defendant’s interest in receiving a sentence not unlawfully higher than the upper limit of the Guidelines range is thus clearly substantial. Neither, however, is the Government’s interest at issue here an insignificant one. Although the Court does not decide when notice must be given, it seems likely that the Court’s notice requirement will force a district court to postpone the imposition of sentence whenever the court decides BURNS v. UNITED STATES 149 129 Souter, X, dissenting at or shortly before the sentencing hearing that upward departure should be considered. To avoid the possibility of such a postponement, a sentencing judge will need to schedule time well in advance of the sentencing hearing to identify and consider possible grounds for departure. Since the time spent on this advance review will not simply be recovered by subtracting it from the length of the subsequent sentencing hearing, the result will almost certainly be more time spent on a process already lengthened considerably by the new sentencing scheme. See Report of the Federal Courts Study Committee 137 (1990) (90 percent of judges in survey report that Guidelines have made sentencing more time consuming; 30 percent report an increase of at least 50 percent in time spent on sentencing). Thus, the Government has an important interest in avoiding the additional drain on judicial resources that the Court’s notice requirement will impose on already overburdened district judges. Cf., e. g., Advisory Committee’s Notes on Fed. Rule Crim. Proc. 32, 18 U. S. C. App., p. 798 (declining to require sentencing judge to notify defendant of possible uses of presentence report, because “[t]he Committee believes that this additional burden should not be placed upon the trial judge”).4 4 Although conceivably a district court might give predeparture notice at the sentencing hearing itself, without postponing sentencing pending a further hearing on the question of departure, such a practice would be of little use in reducing the risk of error in sentencing determinations. A contemporaneous warning of upward departure might sharpen defense counsel’s rhetoric, but it would not be of much help in enabling him to present evidence on disputed facts he had not previously meant to contest, or in preparing him to address the legal issue of the adequacy of the Guidelines in reflecting a particular aggravating circumstance. Contemporaneous notice would, then, probably turn out to be more a formality than a substantive benefit. While such contemporaneous notice (and any additional argument offered as a result) would be unlikely to add substantially to the length of a sentencing hearing, and, therefore, implicates only a modest Government interest in efficiency, even that modest interest is sufficient to balance the de minimis benefit of such notice to the defense. In view of the fact that, 150 OCTOBER TERM, 1990 Souter, J., dissenting 501 U. S. With each party having substantial and contrary interests, great significance attaches to the second element in the Mathews analysis. I think it clear that both the risk of error under the procedures already required and the probable value of a further notice requirement are sufficiently low that the current sentencing scheme passes constitutional muster without the notice requirement imposed by the Court today. The first of the possible sources of error that could infect a sentencing decision are the conclusions of fact thought by the sentencing judge to justify any upward departure. These factual propositions are, however, generally presented in the presentence report, and are subject to challenge and evidentiary resolution under Rule 32(c)(3)(A).* 6 The practical adequacy of this chance to challenge any erroneous fact statements is not limited to any significant degree by lack of notice that the judge is considering departure from the Guidelines, since a defendant clearly is on notice that an unfavorably erroneous fact statement can do him serious harm by influencing the judge to sentence on the high end of the Guidelines range, even when the disquieting fact might not drive the judge to the point of considering departure from the range itself. No procedure beyond that of the existing law is therefore necessary to provide a defendant with a reason as well as an effective opportunity to minimize the risk of an upward departure resting on a mistake of fact relevant to sentencing. A second source of possible sentencing error inheres in the interpretation and application of congressional sentencing authorization. Of course, under any codified sentencing scheme there will always be some risk, albeit normally a low as I explain below, existing procedures provide substantial protection against any risk of error, the minimal benefit of contemporaneous notice cannot be said to be a requirement of due process. 61 do not address whether due process would require notice prior to a decision by a sentencing judge to depart upward on the basis of facts not contained in the presentence report. BURNS v. UNITED STATES 151 129 Souter, J., dissenting one, that a judge may stray beyond the outer limit of the sentence provided for the offense in question, in which event rehearing or appeal will allow for correction. There is, however, a potential for legal error peculiar to proceedings under the Sentencing Reform Act, in the provision that an aggravating or mitigating fact may justify departure from the otherwise applicable Guidelines range if that factual circumstance is not adequately reflected in the range chosen by the Commission. 18 U. S. C. § 3553(b). Because such an issue of adequate reflection goes essentially to the Commission’s intentions, it has uniformly, and I believe correctly, been treated as an issue of law subject to customary appellate review.6 Whether this appellate opportunity suffices for due process depends on whether the effectiveness of any appeal would be enhanced, or the probable need for appeal obviated, by requiring prior notice of the sentencing judge’s intentions or concerns at the trial stage. I believe the answer is no. If the issue of adequate reflection were one that called for evidentiary litigation by questioning witnesses about the Commissioners’ thought processes, or by discovering or introducing documentary evidence that would otherwise be unavailable on appeal, then notice in time to litigate at the 6 Every Circuit except the Fifth has explicitly held, like the District of Columbia Circuit in this case, see 282 U. S. App. D. C. 194, 196, 893 F. 2d 1343, 1345 (1990), that “plenary” or “de novo” review is appropriate. See United States v. Diaz-Villafane, 874 F. 2d 43, 49 (CAI), cert, denied, 493 U. S. 862 (1989); United States v. Lara, 905 F. 2d 599, 602 (CA2 1990); United States v. Ryan, 866 F. 2d 604, 610 (CA3 1989); United States v. Chester, 919 F. 2d 896, 900 (CA4 1990); United States v. Rodriguez, 882 F. 2d 1059, 1067 (CA6 1989), cert, denied, 493 U. S. 1084 (1990); United States v. 'Williams, 901 F. 2d 1394, 1396 (CA7 1990), cert, pending, No. 90-5849; United States v. Whitehorse, 909 F. 2d 316, 318 (CA8 1990); United States v. Singleton, 917 F. 2d 411, 412 (CA9 1990); United States v. Dean, 908 F. 2d 1491, 1494 (CAIO 1990); United States v. Russell, 917 F. 2d 512, 515 (CA11 1990), cert, denied, 499 U. S. 953 (1991). The Fifth Circuit has held that departure will be affirmed when the reasons for departure are “acceptable.” See, e. g., United States v. Murillo, 902 F. 2d 1169, 1172 (1990). 152 OCTOBER TERM, 1990 Souter, J., dissenting 501 U. S. trial level would be indispensable, virtually as a matter of definition. But a district court’s determination that an aggravating circumstance is “of a kind, or ... a degree, not adequately taken into consideration by the Sentencing Commission,” ibid., is not subject to that sort of evidentiary proof. The legal issue of adequate reflection will turn not on an evidentiary record that might be developed at a sentencing hearing, but on documented administrative history and commentary that will be available to any defendant at the appellate stage. Because a defendant thus has no need for evidentiary litigation, he has no need for notice of judicial intentions in order to focus the presentation of evidence. And while in some cases defense counsel might be able to affect a trial judge’s initial view of the adequacy of a Guidelines range in reflecting an aggravating circumstance, the principal safeguard against serving extra time resulting from a mistake about the adequacy of the Guidelines will still be the safeguard available under the statute as now applied, an appeal of law. The opportunity for such a post-trial appeal therefore suffices to minimize the chance of any erroneous deprivation of liberty that might otherwise flow from the sort of legal error in question.7 7 There is one class of defendants for whom the right to appeal might not substitute for the ability to argue the issue to the district court: those for whom the Guidelines recommend either no incarceration or a period of incarceration shorter than the time necessary for the disposition of an appeal, but who receive a greater sentence in the exercise of the district court’s authority to depart. For such a defendant, a successful appeal could come too late to undo completely the damage done by an erroneous departure decision. However, “a process must be judged by the generality of cases to which it applies, and therefore a process which is sufficient for the large majority of a group of claims is by constitutional definition sufficient for all of them.” Walters n. National Assn, of Radiation Survivors, 473 U. S. 305, 330 (1985). There is no contention that this class of defendants is sufficiently large to affect the due process calculus in this case. BURNS v. UNITED STATES 153 129 Souter, J., dissenting Finally, a decision to depart from the Guidelines includes a determination that some sentence more onerous than what the Guidelines would permit is not simply permissible, but is in fact appropriate for the particular offense by the particular defendant. See 18 U. S. C. § 3553(b). In assessing the due process impheations of this element of the sentencing decision, it is worth pausing to identify the nature of the error that could occur when a judge makes the ultimate decision about a sentence’s duration. The concept of error in a sentence’s factual predicate is fairly obvious, and legal error in assessing the conclusiveness of a Guidelines range, in the sense in which I have just explained it, is equally straightforward. Error in fixing the duration of a sentence outside the Guidelines range, however, must be understood in terms of the discretionary nature of the judicial function in making that decision. Such a judgment about what the defendant deserves is discretionary in the sense that its underlying premises of fact, law, and value cannot be so quantified, or stated with such precision, as to require a sentencing court to reach one conclusion and one only. There is, rather, a spectrum of sentences that are arguably appropriate or reasonable, cf. Wasman v. United States, 468 U. S. 559, 563 (1984) (under pre-Guidelines law, sentencing judge has wide discretion within range permitted by statute); United States v. Tucker, 404 U. S. 443, 446-447 (1972) (same), and error in discretionary sentencing must therefore be identified as a failure to impose a sentence that actually falls within this zone of reasonableness. The Act provides two procedures to minimize the risk that a defendant will be forced to serve a sentence outside the Guidelines range that is unreasonably long. The first, of course, is the opportunity at the sentencing hearing itself to address the court, apprised by the Guidelines that departure is always possible. As I have noted earlier, even without express notice, counsel may choose to gear part of his argu 154 OCTOBER TERM, 1990 Souter, J., dissenting 501 U. S. ment to the possibility that departure is on the judge’s mind. Petitioner’s counsel understood that possibility when he contended that “the guidelines are the appropriate range” and asked the court “to consider a sentence within the guidelines.” App. 45. For that matter, even if counsel chooses not to argue against departure specifically, pleas for leniency within the Guidelines range often duplicate the arguments that can be made against upward departure. A defendant thus has both opportunity and motive to make appropriate arguments before the trial judge renders any final decision, even without predeparture notice. Cf. Loudermill, 470 U. S., at 543 (even where facts are clear, appropriate action may not be). The second procedure available to minimize the risk of serving an unreasonable sentence is appellate review of the sentence itself. “If the court of appeals determines that the sentence ... is outside the applicable guideline range and is unreasonable . . . [and] too high ... it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate.” 18 U. S. C. § 3742(f)(2)(A). While this right to review is only as good as the record that a defendant can present to an appellate court, prehearing notice of a sentencing judge’s intentions will not likely enhance the record for the defendant’s benefit. A defendant already has the opportunity and impetus to challenge the factual predicate on which a sentence must stand or fall as reasonable or not. And since the comprehensive factual predicate is supplemented by the sentencing judge’s statement of reasons for departing from the Guidelines, see § 3553(c), it is difficult to imagine how the record could be more conducive to a comprehensive review of a defendant’s claim that his sentence outside the Guidelines range is unreasonably high. It is, indeed, just the substantiality of this appeal right that indicates why predeparture notice lies beyond the scope of what due process demands. For if there can be said to be BURNS v. UNITED STATES 155 129 Souter, J., dissenting any need for the sort of exact predeparture notice that the Court requires, it does not arise from the risk that a defendant will be forced to serve a sentence that is erroneous by virtue of an unreasonable exercise of discretion. Rather, any incremental advantage that a defendant might obtain from advance knowledge of the judge’s thinking will most likely consist of allowing the defendant to be more precise in trying to influence a judge’s exercise of discretion within the range of reasonableness that the law allows. The defendant’s further advantage, if any, will not be a reduced risk of serving an unreasonable sentence, but an improved opportunity to tailor an exact argument about where the sentence should be set within the reasonable zone. Although the reality of any such advantage that might flow from knowing the judge’s mind may be debatable, a defendant’s desire for it is nothing new. Litigants have always desired greater opportunities to influence courts in the exercise of discretion within permissible limits. And yet it comes as no surprise that in the days before the Sentencing Reform Act due process was not thought to require the notice and arguably enhanced opportunity that the Court today requires. See Greenholtz, 442 U. S., at 16. It comes as no surprise simply because the reason that due process imposed no such notice requirement then is the same that it imposes none today: such notice is not in practice necessary to reduce the risk of serving erroneous sentences. Cf. Dixon v. Love, 431 U. S. 105, 114 (1977). In sum, existing process provides what is due without resort to the Court’s requirement. This conclusion echoes our treatment in Greenholtz of an inmate’s liberty interest in early parole, an interest comparable to that of petitioner in a shorter sentence. The Court of Appeals in Greenholtz had required the parole board to provide inmates eligible for parole with “written notice reasonably in advance of the hearing together with a list of factors that might be considered.” 442 U. S., at 14, n. 6. We decided that due process required no such notice, and held that it would suffice for the board to 156 OCTOBER TERM, 1990 Souter, J., dissenting 501 U. S. “infor[m] the inmate in advance of the month during which the hearing will be held . . . [and] on the day of the hearing . . . pos[t] notice of the exact time,” even though the board’s notice would not include a list of factors on which the board might rely. Ibid. The notice now required by the Court closely resembles the “list of factors” we rejected as constitutionally unnecessary in Greenholtz. I do not suggest that the specific notice required by the Court cannot be justified on grounds of policy. There is, however, nothing in the Sentencing Reform Act or the Due Process Clause that provides a basis for today’s holding. I respectfully dissent. TOIBB v. RADLOFF 157 Syllabus TOIBB v. RADLOFF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 90-368. Argued April 22, 1991—Decided June 13, 1991 Petitioner Toibb filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code, disclosing, inter alia, assets that included stock in an electric power company. When he discovered that the stock had substantial value, he decided to avoid its liquidation by moving to convert his Chapter 7 case to one under Chapter Il’s reorganization provisions. After the Bankruptcy Court granted his motion, and he filed his reorganization plan, that court dismissed his petition, finding that he did not qualify for relief under Chapter 11 because he was not engaged in an ongoing business. The District Court and the Court of Appeals affirmed. Held: The Bankruptcy Code’s plain language permits individual debtors not engaged in business to file for relief under Chapter 11. Toibb is a debtor within the meaning of § 109(d), which provides that “a person who may be a debtor under chapter 7 . . . except a stockbroker or a commodity broker, and a railroad may be a debtor under chapter 11.” He is a person who may be a Chapter 7 debtor, since only railroads and various financial and insurance institutions are excluded from Chapter 7’s coverage, and § 109(d) makes Chapter 11 available to all entities eligible for Chapter 7 protection, other than stockbrokers and commodities brokers. Although Chapter Il’s structure and legislative history indicate that it was intended primarily for the use of business debtors, the Code contains no ongoing business requirement for Chapter 11 reorganization; and there is no basis, including underlying policy considerations, for imposing one. Pp. 160-166. 902 F. 2d 14, reversed. Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Marshall, O’Connor, Scalia, Kennedy, and Souter, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 166. Peter M. Lieb argued the cause for petitioner. With him on the briefs were Timothy B. Dyk and Jonathan W. Belsky. Stephen J. Marzen argued the cause for the United States, as respondent under this Court’s Rule 12.4, in support of petitioner. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor 158 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. General Roberts, William Kanter, Bruce G. Forrest, and Martha Davis. James Hamilton, by invitation of the Court, 498 U. S. 1065, argued the cause and filed a brief as amicus curiae in support of the judgment below. Justice Blackmun delivered the opinion of the Court. In this case we must decide whether an individual debtor not engaged in business is eligible to reorganize under Chapter 11 of the Bankruptcy Code, 11 U. S. C. § 1101 et seq. I From March 1983 until April 1985, petitioner Sheldon Baruch Toibb, a former staff attorney with the Federal Energy Regulatory Commission, was employed as a consultant by Independence Electric Corporation (IEC), a company he and two others organized to produce and market electric power. Petitioner owns 24 percent of the company’s shares. After IEC terminated his employment, petitioner was unable to find work as a consultant in the energy field; he has been largely supported by his family and friends since that time. On November 18, 1986, petitioner filed in the United States Bankruptcy Court for the Eastern District of Missouri a voluntary petition for relief under Chapter 7 of the Code, 11 U. S. C. § 701 et seq. The Schedule of Assets and Liabilities accompanying petitioner’s filing disclosed no secured debts, a disputed federal tax priority claim of $11,000, and unsecured debts of $170,605? Petitioner listed as nonexempt assets his IEC shares and a possible claim against his former business associates. He stated that the market value of each of these assets was unknown. On August 6, 1987, the Chapter 7 trustee appointed to administer petitioner’s estate notified the creditors that the 1 Because petitioner’s unsecured debts exceeded $100,000 and he had no regular income, he was ineligible to proceed under Chapter 13 of the Code, 11 U. S. C. § 1301 et seq. See § 109(e). TOIBB v. RADLOFF 159 157 Opinion of the Court Board of Directors of IEC had offered to purchase petitioner’s IEC shares for $25,000. When petitioner became aware that this stock had such value, he decided to avoid its liquidation by moving to convert his Chapter 7 case to one under the reorganization provisions of Chapter 11. The Bankruptcy Court granted petitioner’s conversion motion, App. 21, and on February 1, 1988, petitioner filed a plan of reorganization. Id., at 70. Under the plan, petitioner proposed to pay his unsecured creditors $25,000 less administrative expenses and priority tax claims, a proposal that would result in a payment of approximately 11 cents on the dollar. He further proposed to pay the unsecured creditors, for a period of six years, 50 percent of any dividends from IEC or of any proceeds from the sale of the IEC stock, up to full payment of the debts. On March 8, 1988, the Bankruptcy Court on its own motion ordered petitioner to show cause why his petition should not be dismissed because petitioner was not engaged in business and, therefore, did not qualify as a Chapter 11 debtor. Id., at 121. At the ensuing hearing, petitioner unsuccessfully attempted to demonstrate that he had a business to reorganize.2 Petitioner also argued that Chapter 11 should be available to an individual debtor not engaged in an ongoing business. On August 1, the Bankruptcy Court ruled that, under the authority of Wamsganz v. Boatmen's Bank of De Soto, 804 F. 2d 503 (CA8 1986), petitioner failed to qualify for relief under Chapter 11. App. to Pet. for Cert. A-17 and A-19. The United States District Court for the Eastern District of Missouri, also relying on Wamsganz, upheld the Bankruptcy Court’s dismissal of petitioner’s Chapter 11 case. App. to Pet. for Cert. A-8 and A-9. The United States Court of Appeals for the Eighth Circuit affirmed, holding that the Bankruptcy Court had the authority to dismiss the 2 Petitioner does not seek further review of the question whether he is engaged in an ongoing business. 160 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. proceeding sua sponte, and that the Circuit’s earlier Warns-ganz decision was controlling. In re Toibb, 902 F. 2d 14 (1990).3 Because the Court of Appeals’ ruling that an individual nonbusiness debtor may not reorganize under Chapter 11 clearly conflicted with the holding of the Court of Appeals for the Eleventh Circuit in In re Moog, 774 F. 2d 1073 (1985), we granted certiorari to resolve the conflict.4 498 U. S. 1060 (1991). II A In our view, the plain language of the Bankruptcy Code disposes of the question before us. Section 109, 11 U. S. C. § 109, defines who may be a debtor under the various chapters of the Code. Section 109(d) provides: “Only a person that may be a debtor under chapter 7 of this title, except a stockbroker or a commodity broker, and a railroad may be a debtor under chapter 11 of this title.” Section 109(b) states: “A person may be a debtor under chapter 7 of this title only if such person is not—(1) a railroad; (2) a domestic insurance company, bank, . . . ; or (3) a foreign insurance company, bank, . . . engaged in such business in the United States.” 3 The Eighth Circuit also agreed with what it regarded as the supporting precedent of In re Little Creek Development Co., 779 F. 2d 1068 (CA5 1986), and In re Winshall Settlor’s Trust, 758 F. 2d 1136 (CA6 1985). 4 The named respondent, Stuart J. Radloff, was dismissed as Chapter 7 trustee when the Bankruptcy Court converted petitioner’s case to one under Chapter 11. Mr. Radloff did not participate in the proceedings before the Court of Appeals and refrained from responding to Mr. Toibb’s petition for certiorari filed with this Court. We therefore specifically requested the United States Trustee, see 28 U. S. C. §581(a)(13), to respond. In doing so, the United States Trustee indicated his agreement with petitioner’s position and suggested that, if this Court decided to review the case, it might wish to appoint counsel to defend the Eighth Circuit’s judgment. ’ We then invited James Hamilton, Esq., of Washington, D. C., a member of the Bar of this Court, to serve as amicus curiae in support of the judgment of the Court of Appeals. 498 U. S. 1065 (1991). Mr. Hamilton accepted this appointment and has well fulfilled this assigned responsibility. TOIBB v. RADLOFF 161 157 Opinion of the Court The Code defines “person” as used in Title 11 to “includ[e] [an] individual.” § 101(35). Under the express terms of the Code, therefore, petitioner is “a person who may be a debtor under chapter 7” and satisfies the statutory requirements for a Chapter 11 debtor. The Code contains no ongoing business requirement for reorganization under Chapter 11, and we are loath to infer the exclusion of certain classes of debtors from the protections of Chapter 11, because Congress took care in §109 to specify who qualifies—and who does not qualify—as a debtor under the various chapters of the Code. Section 109(b) expressly excludes from the coverage of Chapter 7 railroads and various financial and insurance institutions. Only municipalities are eligible for the protection of Chapter 9. § 109(c). Most significantly, § 109(d) makes stockbrokers and commodities brokers ineligible for Chapter 11 relief, but otherwise leaves that Chapter available to any other entity eligible for the protection of Chapter 7. Congress knew how to restrict recourse to the avenues of bankruptcy relief; it did not place Chapter 11 reorganization beyond the reach of a nonbusiness individual debtor. B The amicus curiae in support of the Court of Appeals’ judgment acknowledges that Chapter 11 does not expressly exclude an individual nonbusiness debtor from its reach. He echoes the reasoning of those courts that have engrafted an ongoing-business requirement onto the plain language of § 109(d) and argues that the statute’s legislative history and structure make clear that Chapter 11 was intended for business debtors alone. See, e. g., Wamsganz v. Boatmen’s Bank of De Soto, 804 F. 2d, at 505 (“The legislative history of the Bankruptcy Code, taken as a whole, shows that Congress meant for chapter 11 to be available to businesses and persons engaged in business, and not to consumer debtors”). We find these arguments unpersuasive for several reasons. 162 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. First, this Court has repeated with some frequency: “Where, as here, the resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear.” Blum v. Stenson, 465 U. S. 886, 896 (1984). The language of § 109 is not unclear. Thus, although a court appropriately may refer to a statute’s legislative history to resolve statutory ambiguity, there is no need to do so here. Second, even were we to consider the sundry legislative comments urged in support of a congressional intent to exclude a nonbusiness debtor from Chapter 11, the scant history on this precise issue does not suggest a “clearly expressed legislative inten[t] . . . contrary ...” to the plain language of § 109(d). See Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). The amicus does point to the following statement in a House Report: “Some consumer debtors are unable to avail themselves of the relief provided under chapter 13. For these debtors, straight bankruptcy is the only remedy that will enable them to get out from under the debilitating effects of too much debt.” H. R. Rep. No. 95-595, p. 125 (1977). Petitioner responds with the following excerpt from a later Senate Report: “Chapter 11, Reorganization, is primarily designed for businesses, although individuals are eligible for relief under the chapter. The procedures of chapter 11, however, are sufficiently complex that they will be used only in a business case and not in the consumer context.” S. Rep. No. 95-989, p. 3 (1978). These apparently conflicting views tend to negate the suggestion that the Congress enacting the current Code operated with a clear intent to deny Chapter 11 relief to an individual nonbusiness debtor. TOIBB v. RADLOFF 163 157 Opinion of the Court Finally, we are not persuaded by the contention that Chapter 11 is unavailable to a debtor without an ongoing business because many of the Chapter’s provisions do not apply to a nonbusiness debtor. There is no doubt that Congress intended that a business debtor be among those who might use Chapter 11. Code provisions like the ones authorizing the appointment of an equity security holders’ committee, § 1102, and the appointment of a trustee “for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by current management ...,”§ 1104(a)(1), certainly are designed to aid in the rehabilitation of a business. It does not follow, however, that a debtor whose affairs do not warrant recourse to these provisions is ineligible for Chapter 11 relief. Instead, these provisions—like the references to debtor businesses in the Chapter’s legislative history—reflect an understandable expectation that Chapter 11 would be used primarily by debtors with ongoing businesses; they do not constitute an additional prerequisite for Chapter 11 eligibility beyond those established in § 109(d). Ill Although the foregoing analysis is dispositive of the question presented, we deal briefly with amicus’ contention that policy considerations underlying the Code support inferring a congressional intent to preclude a nonbusiness debtor from reorganizing under Chapter 11. First, it is said that bringing a consumer debtor within the scope of Chapter 11 does not serve Congress’ purpose of permitting business debtors to reorganize and restructure their debts in order to revive the debtors’ businesses and thereby preserve jobs and protect investors. This argument assumes that Congress had a single purpose in enacting Chapter 11. Petitioner suggests, however, and we agree, that Chapter 11 also embodies the general Code policy of maximizing the value of the bankruptcy estate. See Commodity Futures Trading Comm’n v. Weintraub, 471 U. S. 343, 351-354 (1985). Under certain 164 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. circumstances a consumer debtor’s estate will be worth more if reorganized under Chapter 11 than if liquidated under Chapter 7. Allowing such a debtor to proceed under Chapter 11 serves the congressional purpose of deriving as much value as possible from the debtor’s estate. Second, amicus notes that allowing a consumer debtor to proceed under Chapter 11 would permit the debtor to shield both disposable income and nonexempt personal property. He argues that the legislative history of Chapter 11 does not reflect an intent to offer a consumer debtor more expansive protection than he would find under Chapter 13, which does not protect disposable income, or Chapter 7, which does not protect nonexempt personal assets. As an initial matter, it makes no difference whether the legislative history affirmatively reflects such an intent, because the plain language of the statute allows a consumer debtor to proceed under Chapter 11. Moreover, differences in the requirements and protections of each chapter reflect Congress’ appreciation that various approaches are necessary to address effectively the disparate situations of debtors seeking protection under the Code. Amicus does not contend that allowing a consumer debtor to reorganize under Chapter 11 will leave the debtor’s creditors in a worse position than if the debtor were required to liquidate. See Tr. of Oral Arg. 29-31. Nor could he. Section 1129(a)(7) provides that a reorganization plan may not be confirmed unless all the debtor’s creditors accept the plan or will receive not less than they would receive under a Chapter 7 liquidation. Because creditors cannot be expected to approve a plan in which they would receive less than they would from an immediate liquidation of the debtor’s assets, it follows that a Chapter 11 reorganization plan usually will be confirmed only when creditors will receive at least as much as if the debtor were to file under Chapter 7. Absent some showing of harm to the creditors of a nonbusiness debtor allowed to reorganize under Chapter 11, we see nothing in the TOIBB v. RADLOFF 165 157 Opinion of the Court allocation of “burdens” and “benefits” of Chapter 11 that warrants an inference that Congress intended to exclude a consumer debtor from its coverage. See Herbert, Consumer Chapter 11 Proceedings: Abuse or Alternative?, 91 Com. L. J. 234, 245-248 (1986). Amicus also warns that allowing consumer debtors to proceed under Chapter 11 will flood the bankruptcy courts with plans of reorganization that ultimately will prove unworkable. We think this fear is unfounded for two reasons. First, the greater expense and complexity of filing under Chapter 11 likely will dissuade most consumer debtors from seeking relief under this Chapter. See S. Rep. No. 95-989, at 3; see also Herbert, supra, at 242-243. Second, the Code gives bankruptcy courts substantial discretion to dismiss a Chapter 11 case in which the debtor files an untenable plan of reorganization. See §§ 1112(b) and 1129(a). Finally, amicus asserts that extending Chapter 11 to consumer debtors creates the risk that these debtors will be forced into Chapter 11 by their creditors under § 303(a), a result contrary to the intent reflected in Congress’ decision to prevent involuntary bankruptcy proceedings under Chapter 13. In particular, he suggests that it would be unwise to force a debtor into a Chapter 11 reorganization, because an involuntary debtor would be unlikely to cooperate in the plan of reorganization—a point that Congress noted in refusing to allow involuntary Chapter 13 proceedings. See H. R. Rep. No. 95-595, at 120. We find these concerns overstated in light of the Code’s provisions for dealing with recalcitrant Chapter 11 debtors. If an involuntary Chapter 11 debtor fails to cooperate, this likely will provide the requisite “cause” for the bankruptcy court to convert the Chapter 11 case to one under Chapter 7. See § 1112(b). In any event, the argument overlooks Congress’ primary concern about a debtor’s being forced into bankruptcy under Chapter 13: that such a debtor, whose future wages are not exempt from the bankruptcy estate, 166 OCTOBER TERM, 1990 Stevens, J., dissenting 501 U. S. § 1322(a)(1), would be compelled to toil for the benefit of creditors in violation of the Thirteenth Amendment’s involuntary servitude prohibition. See H. R. Rep. No. 95-595, at 120. Because there is no comparable provision in Chapter 11 requiring a debtor to pay future wages to a creditor, Congress’ concern about imposing involuntary servitude on a Chapter 13 debtor is not relevant to a Chapter 11 reorganization. IV The plain language of the Bankruptcy Code permits individual debtors not engaged in business to file for relief under Chapter 11. Although the structure and legislative history of Chapter 11 indicate that this Chapter was intended primarily for the use of business debtors, the Code contains no “ongoing business” requirement for Chapter 11 reorganization, and we find no basis for imposing one. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. Justice Stevens, dissenting. The Court’s reading of the statute is plausible. It is supported by the omission of any prohibition against the use of Chapter 11 by consumer debtors and by the excerpt from the introduction to the Senate Report, quoted ante, at 162. Nevertheless, I am persuaded that the Court’s reading is incorrect. Two chapters of the Bankruptcy Code—Chapter 7, entitled “Liquidation,” 11 U. S. C. §701 et seq., and Chapter 13, entitled “Adjustment of Debts of an Individual With Regular Income,” § 1301 et seq. —unquestionably and unambiguously authorize relief for individual consumer debtors. Chapter 11, entitled “Reorganization,” § 1101 et seq., was primarily designed to provide relief for corporate debtors but also unquestionably authorizes relief for individual proprietors of business enterprises. When the statute is read as a whole, however, it seems quite clear that Congress did not TOIBB v. RADLOFF 167 157 Stevens, J., dissenting intend to authorize a “reorganization” of the affairs of an individual consumer debtor. Section 109(d) places a limit on the class of persons who may be a debtor under Chapter 11, but it does not state that all members of that class are eligible for Chapter 11 relief.1 It states that “only a person that may be a debtor under Chapter 7. . . may be a debtor under Chapter 11. . . .” (Emphasis added.) It does not, however, state that every person entitled to relief under Chapter 7 is also entitled to relief under Chapter 11. In my judgment, the word “only” introduces sufficient ambiguity to justify a careful examination of other provisions of the Act, as well as the legislative history. This examination convinces me that consumer debtors may not avail themselves of Chapter 11. The repeated references to the debtor’s “business,”1 2 “the operation of the debtor’s business,”3 and the “current or former management of the debtor”4 make it abundantly clear that the principal focus of the chapter is upon business reorganizations. This conclusion is confirmed by the discussion of Chapter 11 in the Senate Report, which describes the provision as a “chapter for business reorganization” and repeatedly refers to a “business” as the subject of Chapter 11 relief.5 See also 124 1 Section 109(d) provides: “Only a person that may be a debtor under chapter 7 of this title, except a stockholder or a commodity broker, and a railroad may be a debtor under Chapter 11 of this title.” 11 U. S. C. § 109(d) (emphasis added). . 2 See, e. g., §§ 1101(2)(B), 1108. 3 See, e. g., §§ 1103(c)(2), 1105, 1106(a)(3). 4 See § 1104(b). 5 The Senate Report contains the following explanation of Chapter 11 reorganizations: “Chapter 11 deals with the reorganization of a financially distressed business enterprise, providing for its rehabilitation by adjustment of its debt obligations and equity interests. It should be distinguished from the bankruptcy liquidation under chapter 7 or the adjustment of the debts of an individual with regular income under chapter 13. “Chapter 11 replaces chapters X, XI and XII of the Bankruptcy Act, Chapter 11 also includes special provisions for railroads in view of the im 168 OCTOBER TERM, 1990 Stevens, J., dissenting 501 U. S. Cong. Rec. 34007 (1978) (Chapter 11 is a “consolidated approach to business rehabilitation”) (statement of Sen. DeConcini). The House Report, however, is more significant because it emphasizes the relationship between different chapters of the Code. The Report unambiguously states that a Chapter 7 liquidation is “the only remedy” for “consumer debtors [who] are unable to avail themselves of the relief provided under chapter 13.” H. R. Rep. No. 95-595, p. 125 (1977). See also 124 Cong. Rec., at 32392, 32405 (Chapter 11 is “a consolidated approach to business rehabilitation” and a “new commercial reorganization chapter”) (statement of Rep. Edwards). The accuracy of the statement in the House Report pact of regulatory laws on railroad debtors and replaces section 77 of the Bankruptcy Act. A single chapter for all business reorganizations will simplify the law by eliminating unnecessary differences in detail that are inevitable under separately administered statutes. “Business reorganizations have been governed principally by chapters X and XI, both of which have been adopted by the Congress as part of the bankruptcy reforms in 1938. These chapters were not intended to be alternate paths of reorganization; they were to be mutually exclusive. Chapter X was meant for the reorganization of public companies and chapter XI for the rehabilitation of small and privately owned businesses. “That schematic design was well conceived, but flawed somewhat by the failure to include a definition of a ‘public company.’ As a result, considerable litigation developed, mostly on the initiative of the Securities and Exchange Commission, over whether a case belonged in chapter X or chapter XI. This issue came to the Supreme Court in three cases, the last one in SEC v. American Trailer Rentals, Inc., 379 U. S. 594 (1965), but the Court did not enunciate a hard-and-fast rule for all cases. Although it announced some guidelines, management and creditors of large public companies have continued to resort to chapter XI. “The single chapter for business reorganization, which the bill provides, will eliminate unprofitable litigation over the preliminary issue as to which of the two chapters apply. . . . “Reorganization, in its fundamental aspects, involves the thankless task of determining who should share the losses incurred by an unsuccessful business and how the values of the estate should be apportioned among creditors and stockholders.” S. Rep. No. 95-989, pp. 9-10 (1978). TOIBB v. RADLOFF 169 157 Stevens, J., dissenting is confirmed by a comparison of the text of Chapter 11 with the text of Chapter 13. Above, I noted the striking difference between the chapter titles—“Reorganization” for Chapter 11 as opposed to “Adjustment of Debts of an Individual With Regular Income” for Chapter 13. Also significant is the conspicuous omission from Chapter 11 of both an important limit and an important protection included in Chapter 13. Chapter 13 relief is only available to individuals whose unsecured debts amount to less than $100,000 and whose secured debts are less than $350,000. See 11 U. S. C. § 109(e). Chapter 11 contains no comparable limit. Congress would have accomplished little in imposing this limit on the adjustment of individual consumer debt through Chapter 13 if Congress at the same time allowed the individual to avoid the limitation by filing under Chapter ll.6 More important, the Code expressly provides that involuntary proceedings can only be instituted under Chapter 7 and Chapter 11. See 11 U. S. C. § 303(a). A creditor therefore may not force an individual consumer debtor into an involuntary Chapter 13 proceeding. Under the Court’s reading of the Act, however, a creditor could institute an involuntary proceeding under Chapter 11 against any individual with regular income. It seems highly unlikely that Congress intended to subject individual consumer debtors, such as pensioners, to involuntary Chapter 11 proceedings while at the same time prohibiting involuntary Chapter 13 proceedings against the same class of debtors. 6 Although the Court believes that permitting consumer debtors to avail themselves of Chapter 11 will not adversely affect their creditors, ante, at 164-165,1 am not so sure. It takes time and money to determine whether a plan will provide creditors with benefits equal to those available through liquidation and still more time and money to find out whether such a predictive decision turns out to be correct or incorrect. The “complex” Chapter 11 process, see S. Rep. No. 95-989, p. 3 (1978), will almost certainly consume more time and resources than the simpler Chapter 7 procedures. 170 OCTOBER TERM, 1990 Stevens, J., dissenting 501 U. S. For these reasons, notwithstanding the excerpt from the Senate Report on which the Court relies, I would, in accordance with the clear statement in the House Report, read the statute as a whole to limit Chapter 11 relief to business debtors. I therefore respectfully dissent. McNEIL v. WISCONSIN 171 Syllabus McNEIL v. WISCONSIN CERTIORARI TO THE SUPREME COURT OF WISCONSIN No. 90-5319. Argued February 26, 1991—Decided June 13, 1991 Charged with an armed robbery in West Allis, Wisconsin, petitioner McNeil was represented by a public defender at a bail hearing. While in jail on that charge, he was questioned by police about a murder and related crimes in Caledonia, Wisconsin. He was advised of his Miranda rights, signed forms waiving them, and made statements incriminating himself in the Caledonia offenses. He was then formally charged with the latter crimes, his pretrial motion to suppress his statements was denied, and he was convicted. His conviction was affirmed on appeal, the State Supreme Court holding that an accused’s request for counsel at an initial appearance on a charged offense does not constitute an invocation of his Fifth Amendment right to counsel that precludes police interrogation on unrelated, uncharged offenses. Held: An accused’s invocation of his Sixth Amendment right to counsel during a judicial proceeding does not constitute an invocation of the right to counsel derived by Miranda n. Arizona, 384 U. S. 436, from the Fifth Amendment’s guarantee against compelled self-incrimination. Pp. 175-182. (a) The identity between the two rights that McNeil asserts is false as a matter of fact. The Sixth Amendment right, which does not attach until the initiation of adversary judicial proceedings, is offense specific, Maine v. Moulton, 474 U. S. 159, 179-180, and n. 16, as is its effect, under Michigan v. Jackson, 475 U. S. 625, of invalidating subsequent waivers during police-initiated questioning. Thus McNeil’s invocation of that right with respect to the West Allis robbery poses no bar to the admission of his statements regarding the Caledonia crimes, with which he had not been charged at the time he made the statements. Moreover, although the Miranda right to counsel is nonoffense specific, Arizona v. Roberson, 486 U. S. 675, and, once asserted, prevents any further police-initiated interrogation outside the presence of counsel, Edwards v. Arizona, 451 U. S. 477, 484-485, its assertion cannot be inferred from the invocation of the Sixth Amendment right in light of the differing purposes and effects of the two rights. The Sixth Amendment right is intended to protect the unaided layman at critical confrontations with the government after the initiation of the adversary process with respect to a particular crime, United States v. Gouveia, 467 U. S. 180, 189. The Miranda-Edwards guarantee is intended to protect the sus 172 OCTOBER TERM, 1990 Syllabus 501 U. S. pect’s “desire to deal with the police only through counsel,” Edwards, supra, at 484. Requesting the assistance of an attorney at a bail hearing does not satisfy the minimum requirement of some statement that can reasonably be construed as an expression of a desire for counsel in dealing with custodial interrogation by the police. Pp. 175-180. (b) Nor will this Court declare as a matter of sound policy (assuming the existence of such expansive power) that assertion of the Sixth Amendment right implies invocation of the Miranda right. McNeil’s proposed rule offers only insignificant advantages and would seriously impede effective law enforcement by precluding uncounseled but uncoerced admissions of guilt pursuant to valid Miranda waivers. Pp. 180-182. 155 Wis. 2d 24, 454 N. W. 2d 742, affirmed. Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, Kennedy, and Souter, JJ., joined. Kennedy, J., filed a concurring opinion, post, p. 183. Stevens, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, post, p. 183. Gary M. Luck, by appointment of the Court, 498 U. S. 979, argued the cause and filed briefs for petitioner. David J. Becker, Assistant Attorney General of Wisconsin, argued the cause for respondent. With him on the brief was James E. Doyle, Attorney General. Stephen L. Nightingale argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, Robert A. Long, Jr., and Nina Goodman * *Briefs of amici curiae urging affirmance were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, Richard E. Doran, and Virlindia Doss, Assistant Attorney General, and by the Attorneys General and other officials for their respective States as follows: John K. Van de Kamp, Attorney General of California, John J. Kelly, Chief State’s Attorney of Connecticut, Linley E. Pearson, Attorney General of Indiana, J. Joseph Curran, Jr., Attorney General of Maryland, William C. Webster, Attorney General of Missouri, T. Travis Medlock, Attorney General of South Carolina, Mark W. Barnett, Attorney General of South Dakota, R. Paul Van Dam, Attorney General of Utah, and Joseph B. Meyer, Attorney General of Wyoming; for the State of Illinois by Neil F. Hartigan, Attorney General, Robert J. Ruiz, Solicitor General, and McNEIL v. WISCONSIN 173 171 Opinion of the Court Justice Scalia delivered the opinion of the Court. This case presents the question whether an accused’s invocation of his Sixth Amendment right to counsel during a judicial proceeding constitutes an invocation of his Miranda right to counsel. I Petitioner Paul McNeil was arrested in Omaha, Nebraska, in May 1987, pursuant to a warrant charging him with an armed robbery in West Allis, Wisconsin, a suburb of Milwaukee. Shortly after his arrest, two Milwaukee County deputy sheriffs arrived in Omaha to retrieve him. After advising him of his Miranda rights, the deputies sought to question him. He refused to answer any questions, but did not request an attorney. The deputies promptly ended the interview. Once back in Wisconsin, petitioner was brought before a Milwaukee County Court Commissioner on the armed robbery charge. The Commissioner set bail and scheduled a preliminary examination. An attorney from the Wisconsin Public Defender’s Office represented petitioner at this initial appearance. Later that evening, Detective Joseph Butts of the Milwaukee County Sheriff’s Department visited petitioner in jail. Butts had been assisting the Racine County, Wisconsin, police in their investigation of a murder, attempted murder, and armed burglary in the town of Caledonia; petitioner was a suspect. Butts advised petitioner of his Miranda rights, and petitioner signed a form waiving them. In this Terrence M. Madsen, Assistant Attorney General; and for the Appellate Committee of the California District Attorneys Association by Jay P. Dufrechou. Gregory U. Evans, Daniel B. Hales, George D. Webster, Jack E. Yelverton, Fred E. Inbau, Wayne W. Schmidt, Bernard J. Farber, and James P. Manak filed a brief for Americans for Effective Law Enforcement et al. as amici curiae. 174 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. first interview, petitioner did not deny knowledge of the Caledonia crimes, but said that he had not been involved. Butts returned two days later with detectives from Caledonia. He again began the encounter by advising petitioner of his Miranda rights and providing a waiver form. Petitioner placed his initials next to each of the warnings and signed the form. This time, petitioner admitted that he had been involved in the Caledonia crimes, which he described in detail. He also implicated two other men, Willie Pope and Lloyd Crowley. The statement was typed up by a detective and given to petitioner to review. Petitioner placed his initials next to every reference to himself and signed every page. Butts and the Caledonia Police returned two days later, having in the meantime found and questioned Pope, who convinced them that he had not been involved in the Caledonia crimes. They again began the interview by administering the Miranda warnings and obtaining petitioner’s signature and initials on the waiver form. Petitioner acknowledged that he had lied about Pope’s involvement to minimize his own role in the Caledonia crimes and provided another statement recounting the events, which was transcribed, signed, and initialed as before. The following day, petitioner was formally charged with the Caledonia crimes and transferred to that jurisdiction. His pretrial motion to suppress the three incriminating statements was denied. He was convicted of second-degree murder, attempted first-degree murder, and armed robbery, and sentenced to 60 years in prison. On appeal, petitioner argued that the trial court’s refusal to suppress the statements was reversible error. He contended that his courtroom appearance with an attorney for the West Allis crime constituted an invocation of the Miranda right to counsel, and that any subsequent waiver of that right during police-initiated questioning regarding any offense was invalid. Observing that the State’s Supreme McNEIL v. WISCONSIN 175 171 Opinion of the Court Court had never addressed this issue, the Court of Appeals certified to that court the following question: “Does an accused’s request for counsel at an initial appearance on a charged offense constitute an invocation of his fifth amendment right to counsel that precludes police-initiated interrogation on unrelated, uncharged offenses?” App. 16. The Wisconsin Supreme Court answered “no.” 155 Wis. 2d 24, 454 N. W. 2d 742 (1990). We granted certiorari, 498 U. S. 937 (1990). II The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” In Michigan v. Jackson, 475 U. S. 625 (1986), we held that once this right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective. It is undisputed, and we accept for purposes of the present case, that at the time petitioner provided the incriminating statements at issue, his Sixth Amendment right had attached and had been invoked with respect to the West Allis armed robbery, for which he had been formally charged. The Sixth Amendment right, however, is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, “ ‘at or after the initiation of adversary judicial criminal proceedings —whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’” United States v. Gouveia, 467 U. S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U. S. 682, 689 (1972) (plurality opinion)). And just as the right is offense specific, so also its Michigan n. Jackson effect of invalidating subsequent waivers in police-initiated interviews is offense specific. “The police have an interest... in investigating new or additional crimes [after an individual is formally charged 176 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. with one crime.] . . . [T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities. . . .” Maine v. Moulton, 474 U. S. 159, 179-180 (1985). “Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.” Id., at 180, n. 16. See also Moran v. Bur bine, 475 U. S. 412, 431 (1986). Because petitioner provided the statements at issue here before his Sixth Amendment right to counsel with respect to the Caledonia offenses had been (or even could have been) invoked, that right poses no bar to the admission of the statements in this case. Petitioner relies, however, upon a different “right to counsel,” found not in the text of the Sixth Amendment, but in this Court’s jurisprudence relating to the Fifth Amendment guarantee that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, 384 U. S. 436 (1966), we established a number of prophylactic rights designed to counteract the “inherently compelling pressures” of custodial interrogation, including the right to have counsel present. Miranda did not hold, however, that those rights could not be waived. On the contrary, the opinion recognized that statements elicited during custodial interrogation would be admissible if the prosecution could establish that the suspect “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id., at 475. In Edwards n. Arizona, 451 U. S. 477 (1981), we established a second layer of prophylaxis for the Miranda right to counsel: Once a suspect asserts the right, not only must the McNEIL v. WISCONSIN 177 171 Opinion of the Court current interrogation cease, but he may not be approached for further interrogation “until counsel has been made available to him,” 451 U. S., at 484-485—which means, we have most recently held, that counsel must be present, Minnick v. Mississippi, 498 U. S. 146 (1990). If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,” Michigan n. Harvey, 494 U. S. 344, 350 (1990). The Edwards rule, moreover, is not offense specific: Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. Arizona n. Roberson, 486 U. S. 675 (1988). Having described the nature and effects of both the Sixth Amendment right to counsel and the Miranda-Edwards “Fifth Amendment” right to counsel, we come at last to the issue here: Petitioner seeks to prevail by combining the two of them. He contends that, although he expressly waived his Miranda right to counsel on every occasion he was interrogated, those waivers were the invalid product of impermissible approaches, because his prior invocation of the offense-specific Sixth Amendment right with regard to the West Allis burglary was also an invocation of the nonoffensespecific Miranda-Edwards right. We think that is false as a matter of fact and inadvisable (if even permissible) as a contrary-to-fact presumption of policy. As to the former: The purpose of the Sixth Amendment counsel guarantee—and hence the purpose of invoking it — is to “protec[t] the unaided layman at critical confrontations” with his “expert adversary,” the government, after “the ad 178 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. verse positions of government and defendant have solidified” with respect to a particular alleged crime. Gouveia, 467 U. S., at 189. The purpose of the Miranda-Edwards guarantee, on the other hand—and hence the purpose of invoking it—is to protect a quite different interest: the suspect’s “desire to deal with the police only through counsel,” Edwards, supra, at 484. This is in one respect narrower than the interest protected by the Sixth Amendment guarantee (because it relates only to custodial interrogation) and in another respect broader (because it relates to interrogation regarding any suspected crime and attaches whether or not the “adversarial relationship” produced by a pending prosecution has yet arisen). To invoke the Sixth Amendment interest is, as a matter of fact, not to invoke the Miranda-Edwards interest. One might be quite willing to speak to the police without counsel present concerning many matters, but not the matter under prosecution. It can be said, perhaps, that it is likely that one who has asked for counsel’s assistance in defending against a prosecution would want counsel present for all custodial interrogation, even interrogation unrelated to the charge. That is not necessarily true, since suspects often believe that they can avoid the laying of charges by demonstrating an assurance of innocence through frank and unassisted answers to questions. But even if it were true, the likelihood that a suspect would wish counsel to be present is not the test for applicability of Edwards. The rule of that case applies only when the suspect “ha[s] expressed ” his wish for the particular sort of lawyerly assistance that is the subject of Miranda. Edwards, supra, at 484 (emphasis added). It requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction. “[T]o find that [the defendant] invoked his Fifth Amendment right to counsel on the present charges merely by requesting McNEIL v. WISCONSIN 179 171 Opinion of the Court the appointment of counsel at his arraignment on the unrelated charge is to disregard the ordinary meaning of that request.” State v. Stewart, 113 Wash. 2d 462, 471, 780 P. 2d 844, 849 (1989), cert, denied, 494 U. S. 1020 (1990). Our holding in Michigan n. Jackson, 475 U. S. 625 (1986), does not, as petitioner asserts, contradict the foregoing distinction; to the contrary, it rests upon it. That case, it will be recalled, held that after the Sixth Amendment right to counsel attaches and is invoked, any statements obtained from the accused during subsequent police-initiated custodial questioning regarding the charge at issue (even if the accused purports to waive his rights) are inadmissible. The State in Jackson opposed that outcome on the ground that assertion of the Sixth Amendment right to counsel did not realistically constitute the expression (as Edwards required) of a wish to have counsel present during custodial interrogation. See 475 U. S., at 632-633. Our response to that contention was not that it did constitute such an expression, but that it did not have to, since the relevant question was not whether the Miranda “Fifth Amendment” right had been asserted, but whether the Sixth Amendment right to counsel had been waived. We said that since our “settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant’s request for counsel, ... we presume that the defendant requests the lawyer’s services at every critical stage of the prosecution.” 475 U. S., at 633 (emphasis added). The holding of Jackson implicitly rejects any equivalence in fact between invocation of the Sixth Amendment right to counsel and the expression necessary to trigger Edwards. If such invocation constituted a real (as opposed to merely a legally presumed) request for the assistance of counsel in custodial interrogation, it would have been quite unnecessary for Jackson to go on to establish, as it did, a new Sixth Amendment rule of no police- 180 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. initiated interrogation; we could simply have cited and relied upon Edwards.1 There remains to be considered the possibility that, even though the assertion of the Sixth Amendment right to counsel does not in fact imply an assertion of the Miranda “Fifth Amendment” right, we should declare it to be such as a matter of sound policy. Assuming we have such an expansive power under the Constitution, it would not wisely be exercised. Petitioner’s proposed rule has only insignificant advantages. If a suspect does not wish to communicate with the police except through an attorney, he can simply tell them that when they give him the Miranda warnings. There is not the remotest chance that he will feel “badgered” by their asking to talk to him without counsel present, since the subject will not be the charge on which he has already requested counsel’s assistance (for in that event Jackson would preclude initiation of the interview) and he will not have rejected uncounseled interrogation on any subject before (for in that event Edwards would preclude initiation of the interview). The proposed rule would, however, seriously impede effective law enforcement. The Sixth Amendment right to * *A footnote in Jackson, 475 U. S., at 633-634, n. 7, quoted with approval statements by the Michigan Supreme Court to the effect that the average person does not “‘understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel,’” that it “‘makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge,”’ and that “ ‘[t]he simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.’” Michigan v. Bladel, 421 Mich. 39, 63-64, 365 N. W. 2d 56, 67 (1984). Those observations were perhaps true in the context of deciding whether a request for the assistance of counsel in defending against a particular charge implied a desire to have that counsel serve as an “intermediary” for all further interrogation on that charge. They are assuredly not true in the quite different context of deciding whether such a request implies a desire never to undergo custodial interrogation, about anything, without counsel present. McNEIL v. WISCONSIN 181 171 Opinion of the Court counsel attaches at the first formal proceeding against an accused, and in most States, at least with respect to serious offenses, free counsel is made available at that time and ordinarily requested. Thus, if we were to adopt petitioner’s rule, most persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes, even though they have never expressed any unwillingness to be questioned. Since the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good, society would be the loser. Admissions of guilt resulting from valid Miranda waivers “are more than merely ‘desirable’; they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” Moran, 475 U. S., at 426 (citation omitted).2 Petitioner urges upon us the desirability of providing a “clear and unequivocal” guideline for the police: no police-initiated questioning of any person in custody who has requested counsel to assist him in defense or in interrogation. But the police do not need our assistance to establish such a 2 The dissent condemns these sentiments as “revealing a preference for an inquisitorial system of justice. ” Post, at 189. We cannot imagine what this means. What makes a system adversarial rather than inquisitorial is not the presence of counsel, much less the presence of counsel where the defendant has not requested it; but rather, the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties. In the inquisitorial criminal process of the civil law, the defendant ordinarily has counsel; and in the adversarial criminal process of the common law, he sometimes does not. Our system of justice is, and has always been, an inquisitorial one at the investigatory stage (even the grand jury is an inquisitorial body), and no other disposition is conceivable. Even if detectives were to bring impartial magistrates around with them to all interrogations, there would be no decision for the impartial magistrate to umpire. If all the dissent means by a “preference for an inquisitorial system” is a preference not to require the presence of counsel during an investigatory interview where the interviewee has not requested it—that is a strange way to put it, but we are guilty. 182 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. guideline; they are free, if they wish, to adopt it on their own. Of course it is our task to establish guidelines for judicial review. We like them to be “clear and unequivocal,” see, e. g., Roberson, 486 U. S., at 681-682, but only when they guide sensibly and in a direction we are authorized to go. Petitioner’s proposal would in our view do much more harm than good, and is not contained within, or even in furtherance of, the Sixth Amendment’s right to counsel or the Fifth Amendment’s right against compelled self-incrimination.3 * * * * “This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.” Douglas v. Jeannette, 319 U. S. 157, 181 (1943) (opinion of Jackson, J.). We decline to add yet another story to Miranda. The judgment of the Wisconsin Supreme Court is Affirmed. 3 The dissent predicts that the result in this case will routinely be circumvented when, “[i]n future preliminary hearings, competent counsel. . . make sure that they, or their clients, make a statement on the record” invoking the Miranda right to counsel. Post, at 184. We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than “custodial interrogation”—which a preliminary hearing will not always, or even usually, involve, cf. Pennsylvania v. Muniz, 496 U. S. 582, 601-602 (1990) (plurality opinion); Rhode Island v. Innis, 446 U. S. 291, 298-303 (1980). If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must be asserted when the government seeks to take the action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect. Assuming, however, that an assertion at arraignment would be effective, and would be routinely made, the mere fact that adherence to the principle of our decisions will not have substantial consequences is no reason to abandon that principle. It would remain intolerable that a person in custody who had expressed no objection to being questioned would be unapproachable. McNEIL v. WISCONSIN 183 171 Stevens, J., dissenting Justice Kennedy, concurring. I join the opinion of the Court in all respects. Its sensible recognition that invocation of the Sixth Amendment right to counsel is specific to the offense in question should apply as well to requests for counsel under the Fifth Amendment. See Arizona v. Roberson, 486 U. S. 675, 688 (1988) (Kennedy, J., dissenting). For those in custody, Edwards v. Arizona, 451 U. S. 477 (1981), and its progeny go far to protect an individual who desires the assistance of counsel during interrogation. Limiting the extraordinary protections of Edwards to a particular investigation would not increase the risk of confessions induced by official efforts to wear down the will of a suspect. Having adopted an offense-specific rule for invocation of the Sixth Amendment right to counsel, the Court should devote some attention to bringing its Fifth and Sixth Amendment jurisprudence into a logical alignment, and should give uniform, fair, and workable guidelines for the criminal justice system. Even if petitioner had invoked his Fifth Amendment right with respect to the West Allis armed robbery, I do not believe the authorities should have been prohibited from questioning him in connection with the Caledonia offenses. Justice Stevens, with whom Justice Marshall and Justice Blackmun join, dissenting. The Court’s opinion demeans the importance of the right to counsel. As a practical matter, the opinion probably will have only a slight impact on current custodial interrogation procedures. As a theoretical matter, the Court’s innovative development of an “offense-specific” limitation on the scope of the attorney-client relationship can only generate confusion in the law and undermine the protections that undergird our adversarial system of justice. As a symbolic matter, today’s decision is ominous because it reflects a preference for an inquisitorial system that regards the defense lawyer as an impediment rather than a servant to the cause of justice. 184 OCTOBER TERM, 1990 Stevens, J., dissenting 501 U. S. I The predicate for the Court’s entire analysis is the failure of the defendant at the preliminary hearing to make a “statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” Ante, at 178. If petitioner in this case had made such a statement indicating that he was invoking his Fifth Amendment right to counsel as well as his Sixth Amendment right to counsel, the entire offense-specific house of cards that the Court has erected today would collapse, pursuant to our holding in Arizona n. Roberson, 486 U. S. 675 (1988), that a defendant who invokes the right to counsel for interrogation on one offense may not be reapproached regarding any offense unless counsel is present. In future preliminary hearings, competent counsel can be expected to make sure that they, or their clients, make a statement on the record that will obviate the consequences of today’s holding. That is why I think this decision will have little, if any, practical effect on police practices. II The outcome of this case is determined by the Court’s parsimonious “offense-specific” description of the right to counsel guaranteed by the Sixth Amendment. The Court’s definition is inconsistent with the high value our prior cases have placed on this right, with the ordinary understanding of the scope of the right, and with the accepted practice of the legal profession. In Michigan v. Jackson, 475 U. S. 625 (1986), we held that the defendant’s invocation of his right to the assistance of counsel at arraignment prohibited the police from initiating a postarraignment custodial interrogation without notice to his lawyer. After explaining that our prior cases required us “to give a broad, rather than a narrow, interpretation to a defendant’s request for counsel,” we squarely rejected “the McNEIL v. WISCONSIN 185 171 Stevens, J., dissenting State’s suggestion that respondents’ requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings.” Id., at 633. Instead, we noted that "it is the State that has the burden of establishing a valid waiver [of the right to counsel]. Doubts must be resolved in favor of protecting the constitutional claim.” Ibid, (citation omitted). Today, however, the Court accepts a narrow, rather than a broad, interpretation of the same right. It accepts the State’s suggestion that although, under our prior holding in Michigan v. Jackson, a request for the assistance of counsel at a formal proceeding such as an arraignment constitutes an invocation of the right to counsel at police-initiated custodial interrogation as well, such a request only covers interrogation about the specific charge that has already been filed and for which the formal proceeding was held. Today’s approach of construing ambiguous requests for counsel narrowly and presuming a waiver of rights is the opposite of that taken in Jackson. The Court’s holding today moreover rejects the commonsense evaluation of the nature of an accused’s request for counsel that we expressly endorsed in Jackson: “We also agree with the comments of the Michigan Supreme Court about the nature of an accused’s request for counsel: “‘Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking; he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes 186 OCTOBER TERM, 1990 501 U. S. Stevens, J., dissenting an identical request to a judge. The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.’ 421 Mich., at 63-64, 365 N. W. 2d, at 67.” Id., at 633-634, n. 7. The Court explains away this commonsense understanding by stating that although “[t]hose observations were perhaps true in the context of deciding whether a request for the assistance of counsel in defending against a particular charge implied a desire to have that counsel serve as an ‘intermediary’ for all further interrogation on that charge[, t]hey are assuredly not true in the quite different context of deciding whether such a request implies a desire never to undergo custodial interrogation, about anything, without counsel present.” Ante, at 180, n. 1. Even assuming that this explanation by the Court could be supported if the custodial interrogation related to an offense that was entirely separate from the charge for which a suspect had invoked his Sixth Amendment right to counsel, it cannot explain aWay the commonsense reality that petitioner in this case could not have known that his invocation of his Sixth Amendment right to counsel was restricted to the Milwaukee County offense, given that investigations of the Milwaukee County offense and the Caledonia offense were concurrent and conducted by overlapping personnel.1 1 After McNeil was first apprehended in Omaha pursuant to the Milwaukee County arrest warrant, Deputy Sheriff Smukowski of Milwaukee County and a colleague from the same department .traveled to Omaha for purposes of transporting McNeil back to Wisconsin. Smukowski testified at trial that prior to going to Omaha he had been aware that McNeil was a suspect in the Caledonia murder as well as in the Milwaukee County armed robbery. Tr. 4-5 (Nov. 9, 1987). He further testified that on May 21, 1987, he and his colleague talked to McNeil during the transport back to Wisconsin “about the murder case and the armed robbery,” id., at 7, and that they were operating under the understanding that they would take “a statement as to either case” if McNeil would provide one, id., at 9. Smukowski testified that they urged petitioner to “tell his side of the McNEIL v. WISCONSIN 187 171 Stevens, J., dissenting Finally, the Court’s “offense-specific” characterization of the constitutional right to counsel ignores the substance of the attorney-client relationship that the legal profession has developed over the years. The scope of the relationship between an individual accused of crime and his attorney is as broad as the subject matter that might reasonably be encompassed by negotiations for a plea bargain or the contents of a presentence investigation report. Any notion that a constitutional right to counsel is, or should be, narrowly defined by the elements of a pending charge is both unrealistic and invidious. Particularly given the implication that McNeil would be given favorable treatment if he told “his side of the story” as to either or both crimes to the Milwaukee County officers, I find the Court’s restricted construal of McNeil’s relationship with his appointed attorney at the arraignment on the armed robbery charges to be unsupported. In any case, the offense-specific limitation on the Sixth Amendment right to counsel can only generate confusion in the law. The parties and the Court have assumed in this case, for the purposes of analyzing the legal issues, that the custodial interrogation of McNeil involved an offense (murder) that was completely unrelated to the pending charge of armed robbery. The Court therefore does not flesh out the precise boundaries of its newly created “offense-specific” limitation on a venerable constitutional right. I trust its boundaries will not be patterned after the Court’s double jeopardy jurisprudence, cf. Blockburger v. United States, 284 U. S. 299 (1932), and I can only wonder how much leeway it will accord the police to file charges selectively in order to preserve opportunities for custodial interrogation, particularly if the Court is so unquestioningly willing to treat the offenses in this case as separate even though the investigations were story” in order that his cooperation might help him later, id., at 8, and that prior to leaving Omaha with petitioner, Smukowski and his colleague used petitioner’s help in trying to locate Crowley, another suspect in the Caledonia murder, in Omaha, id., at 13. 188 OCTOBER TERM, 1990 Stevens, J., dissenting 501 U. S. concurrent and conducted by overlapping personnel. Whatever the future may portend, the Court’s new rule can only dim the “bright-line” quality of prior cases such as Edwards v. Arizona, 451 U. S. 477 (1981), Solem v. Stumes, 465 U. S. 638 (1984), and Michigan n. Jackson, 475 U. S. 625 (1986). Ill In the final analysis, the Court’s decision is explained by its fear that making counsel available to persons held in custody would “seriously impede effective law enforcement.” Ante, at 180. The magnitude of the Court’s alarm is illuminated by its use of italics: “Thus, if we were to adopt petitioner’s rule, most persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes, even though they have never expressed any unwillingness to be questioned.” Ante, at 181. Of course, the Court is quite wrong and its fears are grossly exaggerated. The fears are exaggerated because, as I have explained, today’s holding will probably affect very few cases in the future. The fears are misguided because a contrary rule would not make all pretrial detainees “unapproachable”; it would merely serve to ensure that a suspect’s statements during custodial interrogation are truly voluntary. A contrary rule would also comport with respect to tradition. Undergirding our entire line of cases requiring the police to follow fair procedures when they interrogate presumptively innocent citizens suspected of criminal wrongdoing is the longstanding recognition that an adversarial system of justice can function effectively only when the adversaries communicate with one another through counsel and when laypersons are protected from overreaching by more experienced and skilled professionals. Whenever the Court ignores the importance of fair procedure in this context and describes the societal interest in obtaining “uncoerced confes McNEIL v. WISCONSIN 189 171 Stevens, J., dissenting sions” from pretrial detainees as an “unmitigated good,” the Court is revealing a preference for an inquisitorial system of justice. As I suggested in Moran v. Burbine, 475 U. S. 412 (1986): “This case turns on a proper appraisal of the role of the lawyer in our society. If a lawyer is seen as a nettle-some obstacle to the pursuit of wrongdoers—as in an inquisitorial society—then the Court’s decision today makes a good deal of sense. If a lawyer is seen as an aid to the understanding and protection of constitutional rights—as in an accusatorial society—then today’s decision makes no sense at all.” Id., at 468 (Stevens, J., dissenting). The Court’s refusal to acknowledge any “danger of ‘subtle compulsion’”2 in a case of this kind evidences an inability to recognize the difference between an inquisitorial and an adversarial system of justice. Accordingly, I respectfully dissent. 2 In his opinion dissenting for himself and two other members of the Wisconsin Supreme Court, Chief Justice Heffernan wrote: “It is apparent that there is danger of ‘subtle compulsion’ when a defendant requests the assistance of an attorney at an initial appearance and is nevertheless subjected to further interrogation while custody continues. Whether a request for an attorney is made to a police officer or to a judge, whether in the jail or during an initial appearance, the dangers of the inherent pressure of custodial interrogation when not having an attorney present are the same. Just as the Edwards [v. Arizona, 451 U. S. 477 (1981),] protection is not dependent upon the subject matter of the interrogation, neither is this protection dependent upon whether the request for assistance of counsel is made to a police officer while in custody or to a magistrate at an initial appearance before the defendant is interrogated.” 155 Wis. 2d 24, 50, 454 N. W. 2d 742, 752-753 (1990). See also United States ex rel. Espinoza v. Fairman, 813 F. 2d 117 (CA7 1987). 190 OCTOBER TERM, 1990 501 U. S. Syllabus LITTON FINANCIAL PRINTING DIVISION, A DIVISION OF LITTON BUSINESS SYSTEMS, INC. v. NATIONAL LABOR RELATIONS BOARD et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 90-285. Argued March 20, 1991—Decided June 13, 1991 Among other things, the collective-bargaining agreement (Agreement) between petitioner Litton and the Union representing the production employees at Litton’s printing plant broadly required that all differences as to contract construction or violations be determined by arbitration, specified that grievances that could not be resolved under a two-step grievance procedure should be submitted for binding arbitration, and provided that, in case of layoffs, length of continuous service would be the determining factor “if other things such as aptitude and ability [were] equal.” The Agreement expired in October 1979. A new agreement had not been negotiated when, in August and September 1980 and without any notice to the Union, Litton laid off 10 of the workers at its plant, including 6 of the most senior employees, pursuant to its decision to close down its coldtype printing operation. The Union filed grievances on behalf of the laid off employees, claiming a violation of the Agreement, but Litton refused to submit to the contractual grievance and arbitration procedure, to negotiate over its layoff decision, or to arbitrate under any circumstances. Based on its precedents dealing with unilateral postexpiration abandonment of contractual grievance procedures and postexpiration arbitrability, the National Labor Relations Board (Board) held that Litton’s actions violated §§ 8(a)(1) and (5) of the National Labor Relations Act (NLRA). However, although it ordered Litton, inter alia, to process the grievances through the two-step grievance procedure and to bargain with the Union over the layoffs, the Board refused to order arbitration of the particular layoff disputes, ruling that they did not “arise under” the expired contract as required by its decision in Indiana & Michigan Electric Co., 284 N. L. R. B. 53, and its interpretation of this Court’s decision in Nolde Brothers, Inc. v. Bakery Workers, 430 U. S. 243. The Court of Appeals enforced the Board’s order, with the exception of that portion holding the layoff grievance not arbitrable, ruling that the right to lay off in seniority order, if other things such as aptitude and ability were equal, did arise under the Agreement. LITTON FINANCIAL PRINTING DIV. v. NLRB 191 190 Syllabus Held: The layoff dispute was not arbitrable. Pp. 198-210. (a) The unilateral change doctrine of NLRB v. Katz, 369 U. S. 736— whereby an employer violates the NLRA if, without bargaining to impasse, it effects a unilateral change of an existing term or condition of employment—extends to cases in which an existing agreement has expired and negotiations on a new one have yet to be completed. See, e. g., Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U. S. 539, 544, n. 6. However, since Hilton-Davis Chemical Co., 185 N. L. R. B. 241, the Board has held that an arbitration clause does not, by operation of the NLRA as interpreted in Katz, continue in effect after expiration of a collective-bargaining agreement. Pp. 198-200. (b) This Court will not extend the unilateral change doctrine to impose a statutory duty to arbitrate postexpiration disputes. The Board’s Hilton-Davis Chemical Co. rule is both rational and consistent with the NLRA, under which arbitration is a matter of consent and will not be imposed beyond the scope of the parties’ agreement. See, e. g., Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 374. The Board’s rule is therefore entitled to deference. If parties who favor labor arbitration during a contract’s term also desire it to resolve postexpiration disputes, they can draft their agreement to so indicate, to eliminate any hiatus between expiration of the old and execution of the new agreement, or to remain in effect until they bargain to impasse. Pp. 200-201. (c) The Board’s decision not to order arbitration of the layoff grievances in this case is not entitled to substantial deference. Although the Board has considerable authority to structure its remedial orders to effectuate the NLRA’s purposes and to order the relief it deems appropriate, its decision here is not based on statutory considerations, but rests upon its interpretation of the Agreement, applying Nolde Brothers, and the federal common law of collective bargaining. Arbitrators and courts, rather than the Board, are the principal sources of contract interpretation under §301 of the Labor Management Relations Act, 1947. Deferring to the Board in its interpretation of contracts would risk the development of conflicting principles. Pp. 201-203. (d) Nevertheless, as Nolde Brothers recognized, a postexpiration duty to arbitrate a dispute may arise from the express or implied terms of the expired agreement itself. Holding that the extensive obligation to arbitrate under the contract there at issue was not consistent with an interpretation that would eliminate all duty to arbitrate upon expiration, Nolde Brothers, supra, at 255, found a presumption in favor of postexpiration arbitration of disputes unless negated expressly or by clear implication, so long as such disputes arose out of the relation governed by contract. Pp. 203-204. 192 OCTOBER TERM, 1990 Syllabus 501 U. S. (e) The Agreement’s unlimited arbitration clause places it within the precise rationale of Nolde Brothers, such that other Agreement provisions cannot rebut the Nolde Brothers presumption. P. 205. (f) However, Nolde Brothers does not announce a broad rule that postexpiration grievances concerning terms and conditions of employment remain arbitrable, but applies only where a dispute has its real source in the contract. Absent an explicit agreement that certain benefits continue past expiration, a postexpiration grievance can be said to arise under the contract only where it involves facts and occurrences that arise before expiration, where a postexpiration action infringes a right that accrued or vested under the agreement, or where, under the normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement. And, as Nolde Brothers found, structural provisions relating to remedies and dispute resolution—e. g., an arbitration provision—may in some cases survive in order to enforce duties under the contract. It is presumed as a matter of contract interpretation that the parties did not intend a pivotal dispute resolution provision to terminate for all purposes upon the Agreement’s expiration. Pp. 205-208. (g) Application of the foregoing principles reveals that the layoff dispute at issue does not arise under the Agreement. Since the layoffs took place almost one year after the Agreement expired, the grievances are arbitrable only if they involve rights which accrued or vested under the Agreement or carried over after its expiration. The layoff provision here does not satisfy these requirements and, unlike the severance pay provision at issue in Nolde Brothers, cannot be construed as a grant of deferred compensation for time already worked. The order of layoffs under the Agreement was to be determined primarily with reference to “other [factors] such as aptitude and ability,” which do not remain constant, but either improve or atrophy over time, and which vary in importance with the requirements of the employer’s business at any given moment. Thus, any arbitration proceeding would of necessity focus upon whether such factors were equal as of the date of the layoff decision and the decision to close down the coldtype operation, and an intent to freeze any particular order of layoff or vest any contractual right as of the Agreement’s expiration cannot be inferred. Pp. 208-210. 893 F. 2d 1128, reversed in part. Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Souter, JJ., joined. Marshall, J., filed a dissenting opinion, in which Blackmun and Scalia, JJ., joined, post, p. 211. Stevens, J., filed a dissenting opinion, in which Blackmun and Scalia, JJ., joined, post, p. 218. LITTON FINANCIAL PRINTING DIV. v. NLRB 193 190 Opinion of the Court M. J. Diederich argued the cause and filed briefs for petitioner. Deputy Solicitor General Wallace argued the cause for the federal respondent in support of petitioner pursuant to this Court’s Rule 12.4. With him on the briefs were Solicitor General Starr, Michael R. Lazerwitz, Norton J. Come, Linda Sher, and David A. Fleischer. David A. Rosenfeld argued the cause for the private respondent. With him on the brief were Victor J. Van Bourg, Marsha S. Berzon, Steven J. Kaplan, and Laurence Gold* Justice Kennedy delivered the opinion of the Court. This case requires us to determine whether a dispute over layoffs which occurred well after expiration of a collectivebargaining agreement must be said to aiise under the agreement despite its expiration. The question arises in the context of charges brought by the National Labor Relations Board (Board), alleging an unfair labor practice in violation of §§ 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 49 Stat. 449, as amended, 29 U. S. C. §§ 158(a)(1) and (5). We interpret our earlier decision in Nolde Brothers, Inc. v. Bakery Workers, 430 U. S. 243 (1977). I Petitioner Litton operated a check printing plant in Santa Clara, California. The plant utilized both coldtype and hot-type printing processes. Printing Specialties & Paper Products Union No. 777, Affiliated With District Council No. 1 (Union), represented the production employees at the plant. The Union and Litton entered into a collective-bargaining agreement (Agreement) which, with extensions, remained in effect until October 3, 1979. Section 19 of the Agreement is a broad arbitration provision: *John S. Irving and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal. 194 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. “Differences that may arise between the parties hereto regarding this Agreement and any alleged violations of the Agreement, the construction to be placed on any clause or clauses of the Agreement shall be determined by arbitration in the manner hereinafter set forth.” App. 34. Section 21 of the Agreement sets forth a two-step grievance procedure, at the conclusion of which, if a grievance cannot be resolved, the matter may be submitted for binding arbitration. Id., at 35. Soon before the Agreement was to expire, an employee sought decertification of the Union. The Board conducted an election on August 17, 1979, in which the Union prevailed by a vote of 28 to 27. On July 2, 1980, after much postelection legal maneuvering, the Board issued a decision to certify the Union. No contract negotiations occurred during this period of uncertainty over the Union’s status. Litton decided to test the Board’s certification decision by refusing to bargain with the Union. The Board rejected Litton’s position and found its refusal to bargain an unfair labor practice. Litton Financial Printing Division, 256 N. L. R. B. 516 (1981). Meanwhile, Litton had decided to eliminate its coldtype operation at the plant, and in late August and early September 1980, laid off 10 of the 42 persons working in the plant at that time. The laid off employees worked either primarily or exclusively with the coldtype operation, and included 6 of the 11 most senior employees in the plant. The layoffs occurred without any notice to the Union. The Union filed identical grievances on behalf of each laid off employee, claiming a violation of the Agreement, which had provided that “in case of layoffs, lengths of continuous service will be the determining factor if other things such as aptitude and ability are equal.” App. 30. Litton refused to submit to the grievance and arbitration procedure or to negotiate over the decision to lay off the employees, and took a position later interpreted by the Board as a refusal to arbi- LITTON FINANCIAL PRINTING DIV. v. NLRB 195 190 Opinion of the Court trate under any and all circumstances. It offered instead to negotiate concerning the effects of the layoffs. On November 24, 1980, the General Counsel for the Board issued a complaint alleging that Litton’s refusal to process the grievances amounted to an unfair labor practice within the meaning of §§ 8(a)(1) and (5) of the NLRA, 29 U. S. C. §§ 158(a)(1) and (5). App. 15. On September 4, 1981, an Administrative Law Judge found that Litton had violated the NLRA by failing to process the grievances. Id., at 114-115. Relying upon the Board’s decision in American Sink Top & Cabinet Co., 242 N. L. R. B. 408 (1979), the Administrative Law Judge went on to state that if the grievances remained unresolved at the conclusion of the grievance process, Litton could not refuse to submit them to arbitration. App. 115— 118. The Administrative Law Judge held also that Litton violated §§ 8(a)(1) and (5) when it bypassed the Union and paid severance wages directly to the 10 laid off employees, and Litton did not contest that determination in further proceedings. Over six years later, the Board affirmed in part and reversed in part the decision of the Administrative Law Judge. 286 N. L. R. B. 817 (1987). The Board found that Litton had a duty to bargain over the layoffs and violated § 8(a) by failing to do so. Based upon well-recognized Board precedent that the unilateral abandonment of a contractual grievance procedure upon expiration of the contract violates §§ 8(a)(1) and (5), the Board held that Litton had improperly refused to process the layoff grievances. See Bethlehem Steel Co., 136 N. L. R. B. 1500, 1503 (1962), enforced in pertinent part, 320 F. 2d 615 (CA3 1963). The Board proceeded to apply its recent decision in Indiana & Michigan Electric Co., 284 N. L. R. B. 53 (1987), which contains the Board’s current understanding of the principles of postexpiration arbitrability and of our opinion in Nolde Brothers, Inc. v. Bakery Workers, supra. The Board held that Litton’s “wholesale repudiation” of its obligation to arbitrate any contractual grievance 196 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. after the expiration of the Agreement also violated §§ 8(a)(1) and (5), as the Agreement’s broad arbitration clause lacked “language sufficient to overcome the presumption that the obligation to arbitrate imposed by the contract extended to disputes arising under the contract and occurring after the contract had expired. Thus, [Litton] remained ‘subject to a potentially viable contractual commitment to arbitrate even after the [Agreement] expired.’” 286 N. L. R. B., at 818 (citation omitted). Litton did not seek review of, and we do not address here, the Board’s determination that Litton committed an unfair labor practice by its unilateral abandonment of the grievance process and wholesale repudiation of any postexpiration obligation to arbitrate disputes. In fashioning a remedy, the Board went on to consider the arbitrability of these particular layoff grievances. Following Indiana & Michigan, the Board declared its determination to order arbitration “only when the grievances at issue ‘arise under’ the expired contract.” 286 N. L. R. B., at 821 (citing Nolde Brothers, Inc. v. Bakery Workers, 430 U. S. 243 (1977)). In finding that the dispute about layoffs was outside this category, the Board reasoned as follows: “The conduct that triggered the grievances . . . occurred after the contract had expired. The right to layoff by seniority if other factors such as ability and experience are equal is not ‘a right worked for or accumulated over time.’ Indiana & Michigan, supra at 61. And, as in Indiana & Michigan Electric, there is no indication here that ‘the parties contemplated that such rights could ripen or remain enforceable even after the contract expired.’ Id. (citation omitted). Therefore, [Litton] had no contractual obligation to arbitrate the grievances.” 286 N. L. R. B., at 821-822. Although the Board refused to order arbitration, it did order Litton to process the grievances through the two-step griev- LITTON FINANCIAL PRINTING DIV. v. NLRB 197 190 Opinion of the Court ance procedure, to bargain with the Union over the layoffs, and to provide a limited backpay remedy. The Board sought enforcement of its order, and both the Union and Litton petitioned for review. The Court of Appeals enforced the Board’s order, with the exception of that portion holding the layoff grievances not arbitrable. 893 F. 2d 1128 (CA9 1990). On that question, the Court of Appeals was willing to “assume without deciding that the Board’s Indiana & Michigan decision is a reasonably defensible construction of the section 8(a)(5) duty to bargain.” Id., at 1137. The court decided, nevertheless, that the Board had erred, because the right in question, the right to layoff in order of seniority if other things such as aptitude and ability are equal, did arise under the Agreement. The Court of Appeals thought the Board’s contrary conclusion was in conflict with two later Board decisions, where the Board had recognized that seniority rights may arise under an expired contract, United Chrome Products, Inc., 288 N. L. R. B. 1176 (1988), and Uppco, Inc., 288 N. L. R. B. 937 (1988). The court cited a second conflict, one between Indiana & Michigan and the court’s own interpretation of Nolde Bros, in Local Joint Executive Bd. of Las Vegas Culinary Workers Union, Local 226 n. Royal Center, Inc., 796 F. 2d 1159 (CA9 1986). In Royal Center, the Court of Appeals had rejected the argument that only rights accruing or vesting under a contract prior to termination are covered by the posttermination duty to arbitrate. Id., at 1163. Litton petitioned for a writ of certiorari. Because of substantial disagreement as to the proper application of our decision in Nolde Brothers,1 we granted review limited to the 1 The conflict between the Ninth Circuit’s reasoning in Local Joint Executive Bd. of Las Vegas Culinary Workers Union, Local 226 v. Royal Center, Inc., 796 F. 2d 1159 (1986), and the Board’s approach in Indiana & Michigan Electric Co., 284 N. L. R. B. 53 (1987), reflects a wider split of authority. The Third and Fifth Circuits follow an approach similar to that of the Ninth Circuit. See Federated Metals Corp. v. United Steelworkers 198 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. question of arbitrability of the layoff grievances. 498 U. S. 966 (1990). II A Sections 8(a)(5) and 8(d) of the NLRA, 29 U. S. C. §§ 158(a) (5) and (d), require an employer to bargain “in good faith with respect to wages, hours, and other terms and conditions of employment.” The Board has taken the position that it is difficult to bargain if, during negotiations, an employer is free to alter the very terms and conditions that are the subject of those negotiations. The Board has determined, with our acceptance, that an employer commits an unfair labor practice if, without bargaining to impasse, it effects a unilateral change of an existing term or condition of employment. See NLRB v. Katz, 369 U. S. 736 (1962). In Katz the union was newly certified and the parties had yet to reach an initial agreement. The Katz doctrine has been extended as well to cases where, as here, an existing agreement has expired and negotiations on a new one have yet to be completed. See, e. g., Laborers Health and Welfare Trust Fund n. Advanced Lightweight Concrete Co., 484 U. S. 539, 544, n. 6 (1988). of America, 648 F. 2d 856, 861 (CA3), cert, denied, 454 U. S. 1031 (1981); Seafarers Int’l Union of North America v. National Marine Servs., Inc., 820 F. 2d 148, 152-154 (CA5), cert, denied, 484 U. S. 953 (1987). The Eighth Circuit, Tenth Circuit, and the Michigan Supreme Court follow the Board’s approach and limit the presumption of postexpiration arbitrability to rights that accrued or vested under the agreement, or events that took place prior to expiration of the agreement. See Chauffeurs, Teamsters and Helpers, Local Union 238 v. C. R. S. T. Inc., 795 F. 2d 1400, 1404 (CA8 1986) (en banc); United Food & Commercial Workers Int’l Union, AFL-CIO, Local 7 v. Gold Star Sausage Co., 897 F. 2d 1022, 1025-1026 (CAIO 1990); County of Ottawa v. Jaklinski, 423 Mich. 1, 377 N. W. 2d 668 (1985) (discussing Nolde in context of Michigan law applicable to public employers). The Seventh Circuit, finally, restricts application of Nolde Brothers to a limited period following expiration of a bargaining agreement. See Local 703, Int’l Brotherhood of Teamsters n. Kennicott Bros. Co., 771 F. 2d 300 (1985). LITTON FINANCIAL PRINTING DIV. v. NLRB 199 190 Opinion of the Court Numerous terms and conditions of employment have been held to be the subject of mandatory bargaining under the NLRA. See generally 1 C. Morris, The Developing Labor Law 772-844 (2d ed. 1983). Litton does not question that arrangements for arbitration of disputes are a term or condition of employment and a mandatory subject of bargaining. See id., at 813 (citing cases); United States Gypsum Co., 94 N. L. R. B. 112, 131 (1951). The Board has ruled that most mandatory subjects of bargaining are within the Katz prohibition on unilateral changes. The Board has identified some terms and conditions of employment, however, which do not survive expiration of an agreement for purposes of this statutory policy. For instance, it is the Board’s view that union security and dues check-off provisions are excluded from the unilateral change doctrine because of statutory provisions which permit these obligations only when specified by the express terms of a collective-bargaining agreement. See 29 U. S. C. § 158(a)(3) (union security conditioned upon agreement of the parties); § 186(c)(4) (dues check-off valid only until termination date of agreement); Indiana & Michigan, 284 N. L. R. B., at 55 (quoting Bethlehem Steel, 136 N. L. R. B., at 1502). Also, in recognition of the statutory right to strike, no-strike clauses are excluded from the unilateral change doctrine, except to the extent other dispute resolution methods survive expiration of the agreement. See 29 U. S. C. §§ 158(d)(4), 163 (union’s statutory right to strike); Southwestern Steel & Supply, Inc. v. NLRB, 257 U. S. App. D. C. 19, 23, 806 F. 2d 1111, 1114 (1986). In Hilton-Davis Chemical Co., 185 N. L. R. B. 241 (1970), the Board determined that arbitration clauses are excluded from the prohibition on unilateral changes, reasoning that the commitment to arbitrate is a “voluntary surrender of the right of final decision which Congress . . . reserved to [the] parties. . . . [Arbitration is, at bottom, a consensual surrender of the economic power which the parties are other 200 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. wise free to utilize.” Id., at 242. The Board further relied upon our statements acknowledging the basic federal labor policy that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 582 (1960). See also 29 U. S. C. § 173(d) (phrased in terms of parties’ agreed-upon method of dispute resolution under an existing bargaining agreement). Since Hilton-Davis, the Board has adhered to the view that an arbitration clause does not, by operation of the NLRA as interpreted in Katz, continue in effect after expiration of a collective-bargaining agreement. B The Union argues that we should reject the Board’s decision in Hilton-Davis Chemical Co., and instead hold that arbitration provisions are within Katz’ prohibition on unilateral changes. The unilateral change doctrine, and the exclusion of arbitration from the scope of that doctrine, represent the Board’s interpretation of the NLRA requirement that parties bargain in good faith. And “[i]f the Board adopts a rule that is rational and consistent with the Act . . . then the rule is entitled to deference from the courts.” Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27, 42 (1987); see, e. g., NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 786-787 (1990). We think the Board’s decision in Hilton-Davis Chemical Co. is both rational and consistent with the Act. The rule is grounded in the strong statutory principle, found in both the language of the NLRA and its drafting history, of consensual rather than compulsory arbitration. See Indiana & Michigan, supra, at 57-58; Hilton-Davis Chemical Co., supra. The rule conforms with our statement that “[n]o obligation to arbitrate a labor dispute arises solely by operation of law. The law compels a party to submit his grievance to arbitration only if he has contracted to do so.” Gateway LITTON FINANCIAL PRINTING DIV. v. NLRB 201 190 Opinion of the Court Coal Co. n. Mine Workers, 414 U. S. 368, 374 (1974). We reaffirm today that under the NLRA arbitration is a matter of consent, and that it will not be imposed upon parties beyond the scope of their agreement. In the absence of a binding method for resolution of postexpiration disputes, a party may be relegated to filing unfair labor practice charges with the Board if it believes that its counterpart has implemented a unilateral change in violation of the NLRA. If, as the Union urges, parties who favor labor arbitration during the term of a contract also desire it to resolve postexpiration disputes, the parties can consent to that arrangement by explicit agreement. Further, a collective-bargaining agreement might be drafted so as to eliminate any hiatus between expiration of the old and execution of the new agreement, or to remain in effect until the parties bargain to impasse.2 Unlike the Union’s suggestion that we impose arbitration of postexpiration disputes upon parties once they agree to arbitrate disputes arising under a contract, these, alternatives would reinforce the statutory policy that arbitration is not compulsory. Ill The Board argues that it is entitled to substantial deference here because it has determined the remedy for an unfair labor practice. As noted above, we will uphold the Board’s interpretation of the NLRA so long as it is “rational and consistent with the Act.” Fall River Dyeing & Finishing Corp. y. NLRB, supra, at 42. And we give the greatest latitude to the Board when its decision reflects its “‘difficult 2See, e. g., NLRB v. New England Newspapers, Inc., 856 F. 2d 409, 410 (CAI 1988) (agreement would continue in effect until a new agreement was reached); Montgomery Mailers’ Union No. 127 v. The Advertiser Co., 827 F. 2d 709, 712, n. 5 (CA11 1987) (agreement to continue in effect “for a reasonable time for negotiation of a new agreement”); Teamsters Local Union 688 v. John J. Meier Co., 718 F. 2d 286, 287 (CA8 1983) (“[A]ll terms and provisions of the expired agreement shall continue in effect until a new agreement is adopted or negotiations are terminated”). 202 OCTOBER TERM, 1990 501 U. S. Opinion of the Court and delicate responsibility’ of reconciling conflicting interests of labor and management,” NLRB n. J. Weingarten, Inc., 420 U. S. 251, 267 (1975). We have accorded the Board considerable authority to structure its remedial orders to effect the purposes of the NLRA and to order the relief it deems appropriate. See Shepard v. NLRB, 459 U. S. 344, 352 (1983); Virginia Electric & Power Co. v. NLRB, 319 U. S. 533, 540 (1943). The portion of the Board’s decision which we review today does discuss the appropriate remedy for a violation of the NLRA. But it does not follow that we must accord the same deference we recognized in Virginia Electric & Power Co. and Shepard. Here, the Board’s remedial discussion is not grounded in terms of any need to arbitrate these grievances in order “to effectuate the policies of the Act.” Virginia Electric & Power Co., supra, at 540. Rather, the Board’s decision not to order arbitration of the layoff grievances rests upon its interpretation of the Agreement, applying our decision in Nolde Brothers and the federal common law of collective-bargaining agreements. The Board now defends its decision on the ground that it need not “reflexively order that which a complaining party may regard as ‘complete relief’ for every unfair labor practice,” Shepard n. NLRB, supra, at 352; but its decision did not purport to rest upon such grounds. Although the Board has occasion to interpret collectivebargaining agreements in the context of unfair labor practice adjudication, see NLRB v. C & C Plywood Corp., 385 U. S. 421 (1967), the Board is neither the sole nor the primary source of authority in such matters. “Arbitrators and courts are still the principal sources of contract interpretation.” NLRB n. Strong, 393 U. S. 357, 360-361 (1969). Section 301 of the Labor Management Relations Act, 1947 (LMRA), 29 U. S. C. § 185, “authorizes federal courts to fashion a body of federal law for the enforcement of . . . collective bargaining agreements.” Textile Workers n. Lincoln Mills LITTON FINANCIAL PRINTING DIV. v. NLRB 203 190 Opinion of the Court of Alabama, 353 U. S. 448, 451 (1957) (emphasis added). We would risk the development of conflicting principles were we to defer to the Board in its interpretation of the contract, as distinct from its devising a remedy for the unfair labor practice that follows from a breach of contract. We cannot accord deference in contract interpretation here only to revert to our independent interpretation of collectivebargaining agreements in a case arising under §301. See Local Union 1395, Infl Brotherhood of Electrical Workers v. NLRB, 254 U. S. App. D. C. 360, 363-364, 797 F. 2d 1027, 1030-1031 (1986). IV The duty not to effect unilateral changes in most terms and conditions of employment, derived from the statutory command to bargain in good faith, is not the sole source of possible constraints upon the employer after the expiration date of a collective-bargaining agreement. A similar duty may arise as well from the express or implied terms of the expired agreement itself. This, not the provisions of the NLRA, was the source of the obligation which controlled our decision in Nolde Brothers, Inc. v. Bakery Workers, 430 U. S. 243 (1977). We now discuss that precedent in the context of the case before us. In Nolde Brothers, a union brought suit under § 301 of the LMRA, 29 U. S. C. § 185, to compel arbitration. Four days after termination of a collective-bargaining agreement, the employer decided to cease operations. The employer settled employee wage claims, but refused to pay severance wages called for in the agreement, and declined to arbitrate the resulting dispute. The union argued that these wages “were in the nature of‘accrued’ or ‘vested’ rights, earned by employees during the term of the contract on essentially the same basis as vacation pay, but payable only upon termination of employment.” Nolde Brothers, 430 U. S., at 248. 204 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. We agreed that “whatever the outcome, the resolution of that claim hinges on the interpretation ultimately given the contract clause providing for severance pay. The dispute therefore, although arising after the expiration of the collective-bargaining contract, clearly arises under that contract.” Id., at 249 (emphasis in original). We acknowledged that “the arbitration duty is a creature of the collective-bargaining agreement” and that the matter of arbitrability must be determined by reference to the agreement, rather than by compulsion of law. Id., at 250-251. With this understanding, we held that the extensive obligation to arbitrate under the contract in question was not consistent with an interpretation that would eliminate all duty to arbitrate as of the date of expiration. That argument, we noted, “would preclude the entry of a post-contract arbitration order even when the dispute arose during the life of the contract but arbitration proceedings had not begun before termination. The same would be true if arbitration processes began but were not completed, during the contract’s term.” Id., at 251. We found “strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract,” id., at 253, and noted that “the parties’ failure to exclude from arbitrability contract disputes arising after termination . . . affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship,” id., at 255. We found a presumption in favor of postexpiration arbitration of matters unless “negated expressly or by clear implication,” ibid., but that conclusion was limited by the vital qualification that arbitration was of matters and disputes arising out of the relation governed by contract. LITTON FINANCIAL PRINTING DIV. v. NLRB 205 190 Opinion of the Court A Litton argues that provisions contained in the Agreement rebut the Nolde Brothers presumption that the duty to arbitrate disputes arising under an agreement outlasts the date of expiration. The Agreement provides that its stipulations “shall be in effect for the time hereinafter specified,” App. 22, in other words, until the date of expiration and no longer. The Agreement’s no-strike clause, which Litton characterizes as a quid pro quo for arbitration, applies only “during the term of this [a]greement,” id., at 34. Finally, the Agreement provides for “interest arbitration” in case the parties are unable to conclude a successor agreement, id., at 53-55, proving that where the parties wished for arbitration other than to resolve disputes as to contract interpretation, they knew how to draft such a clause. These arguments cannot prevail. The Agreement’s unlimited arbitration clause, by which the parties agreed to arbitrate all “[differences that may arise between the parties” regarding the Agreement, violations thereof, or “the construction to be placed on any clause or clauses of the Agreement,” id., at 34, places it within the precise rationale of Nolde Brothers. It follows that if a dispute arises under the contract here in question, it is subject to arbitration even in the postcontract period. B With these matters resolved, we come to the crux of our inquiry. We agree with the approach of the Board and those courts which have interpreted Nolde Brothers to apply only where a dispute has its real source in the contract. The object of an arbitration clause is to implement a contract, not to transcend it. Nolde Brothers does not announce a rule that postexpiration grievances concerning terms and conditions of employment remain arbitrable. A rule of that sweep in fact would contradict the rationale of Nolde Brothers. The Nolde Brothers presumption is limited to disputes arising under the contract. A postexpiration grievance can be 206 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. said to arise under the contract only where it involves facts and occurrences that arose before expiration, where an action taken after expiration infringes a right that accrued or vested under the agreement, or where, under normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement. Any other reading of Nolde Brothers seems to assume that postexpiration terms and conditions of employment which coincide with the contractual terms can be said to arise under an expired contract, merely because the contract would have applied to those matters had it not expired. But that interpretation fails to recognize that an expired contract has by its own terms released all its parties from their respective contractual obligations, except obligations already fixed under the contract but as yet unsatisfied. Although after expiration most terms and conditions of employment are not subject to unilateral change, in order to protect the statutory right to bargain, those terms and conditions no longer have force by virtue of the contract. See Office and Professional Employees Ins. Trust Fund v. Laborers Funds Administrative Office of Northern California, Inc., 783 F. 2d 919, 922 (CA9 1986) (“An expired [collective-bargaining agreement] . . . is no longer a ‘legally enforceable document”’ (citation omitted)); cf. Derrico n. Sheehan Emergency Hosp., 844 F. 2d 22, 25-27 (CA2 1988) (Section 301 of the LMRA, 29 U. S. C. § 185, does not provide for federal court jurisdiction where a bargaining agreement has expired, although rights and duties under the expired agreement “retain legal significance because they define the status quo” for purposes of the prohibition on unilateral changes). The difference is as elemental as that between Nolde Brothers and Katz. Under Katz, terms and conditions continue in effect by operation of the NLRA. They are no longer agreed-upon terms; they are terms imposed by law, at least so far as there is no unilateral right to change them. As the Union acknowledges, the obligation not to make uni- LITTON FINANCIAL PRINTING DIV. v. NLRB 207 190 Opinion of the Court lateral changes is “rooted not in the contract but in preservation of existing terms and conditions of employment and applies before any contract has been negotiated.” Brief for Respondent Union 34, n. 21. Katz illustrates this point with utter clarity, for in Katz the employer was barred from imposing unilateral changes even though the parties had yet to execute their first collective-bargaining agreement. Our decision in Laborers Health and Welfare Trust Fund n. Advanced Lightweight Concrete Co., 484 U. S. 539 (1988), further demonstrates the distinction between contractual obligations and postexpiration terms imposed by the NLRA. There, a bargaining agreement required employer contributions to a pension fund. We assumed that under Katz the employer’s failure to continue contributions after expiration of the agreement could constitute an unfair labor practice, and if so the Board could enforce the obligation. We rejected, however, the contention that such a failure amounted to a violation of the ERISA obligation to make contributions “under the terms of a collectively bargained agreement . . . in accordance with the terms and conditions of . . . such agreement.” 29 U. S. C. §1145. Any postexpiration obligation to contribute was imposed by the NLRA, not by the bargaining agreement, and so the District Court lacked jurisdiction under § 502(g)(2) of ERISA, 29 U. S. C. § 1132(g)(2), to enforce the obligation. As with the obligation to make pension contributions in Advanced Lightweight Concrete Co., other contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement. Exceptions are determined by contract interpretation. Rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. And of course, if a collectivebargaining agreement provides in explicit terms that certain benefits continue after the agreement’s expiration, disputes as to such continuing benefits may be found to arise under the agreement, and so become subject to the contract’s arbitra- 208 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. tion provisions. See United Steelworkers of America v. Fort Pitt Steel Casting, Division of Conval-Penn, Inc., 598 F. 2d 1273 (CA3 1979) (agreement provided for continuing medical benefits in the event of postexpiration labor dispute). Finally, as we found in Nolde Brothers, structural provisions relating to remedies and dispute resolution—for example, an arbitration provision—may in some cases survive in order to enforce duties arising under the contract. Nolde Brothers' statement to that effect under § 301 of the LMRA is similar to the rule of contract interpretation which might apply to arbitration provisions of other commercial contracts.3 We presume as a matter of contract interpretation that the parties did not intend a pivotal dispute resolution provision to terminate for all purposes upon the expiration of the agreement. C The Union, and Justice Stevens’ dissent, argue that we err in reaching the merits of the issue whether the posttermination grievances arise under the expired agreement because, it is said, that is an issue of contract interpretation to be submitted to an arbitrator in the first instance. Whether or not a company is bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the court, and a party cannot be forced to “arbitrate the arbitrability question.” AT&T Technologies, Inc. n. 3 See, e. g., West Virginia ex rel. Ranger Fuel Corp. v. Lilly, 165 W. Va. 98, 100-101, 267 S. E. 2d 435, 437-438 (W. Va. 1980) (duty to arbitrate survives termination of lease); Warren Brothers Co. v. Cardi Corp., 471 F. 2d 1304 (CAI 1973) (arbitration clause survives completion of work under construction contract); Mendez v. Trustees of Boston University, 362 Mass. 353, 356, 285 N. E. 2d 446, 448 (1972) (termination of employment contract “does not necessarily terminate a provision for arbitration or other agreed procedure for the resolution of disputes”); The Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 10-11, 110 A. 2d 464, 469-470 (1954) (arbitration clause in building contract not affected by a party’s repudiation or total breach of contract). LITTON FINANCIAL PRINTING DIV. v. NLRB 209 190 Opinion of the Court Communications Workers, 475 U. S. 643, 651 (1986). We acknowledge that where an effective bargaining agreement exists between the parties, and the agreement contains a broad arbitration clause, “there is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’” Id., at 650 (quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 582-583 (I960)). But we refuse to apply that presumption wholesale in the context of an expired bargaining agreement, for to do so would make limitless the contractual obligation to arbitrate. Although “‘[d]oubts should be resolved in favor of coverage,”’ AT&T Technologies, supra, at 650, we must determine whether the parties agreed to arbitrate this dispute, and we cannot avoid that duty because it requires us to interpret a provision of a bargaining agreement. We apply these principles to the layoff grievances in the present case. The layoffs took place almost one year after the Agreement had expired. It follows that the grievances are arbitrable only if they involve rights which accrued or vested under the Agreement, or rights which carried over after expiration of the Agreement, not as legally imposed terms and conditions of employment but as continuing obligations under the contract. The contractual right at issue, that “in case of layoffs, lengths of continuous service will be the determining factor if other things such as aptitude and ability are equal,” App. 30, involves a residual element of seniority. Seniority provisions, the Union argues, “create a form of earned advantage, accumulated over time, that can be understood as a special form of deferred compensation for time already worked.” Brief for Respondent Union 23-25, n. 14. Leaving aside the 210 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. question whether a provision requiring all layoffs to proceed in inverse order of seniority would support an analogy to the severance pay at issue in Nolde Brothers, which was viewed as a form of deferred compensation, the layoff provision here cannot be so construed, and cannot be said to create a right that vested or accrued during the term of the Agreement or a contractual obligation that carries over after expiration. The order of layoffs under the Agreement was to be determined primarily with reference to “other factors such as aptitude and ability.” Only where all such factors were equal was the employer required to look to seniority. Here, any arbitration proceeding would of necessity focus upon whether aptitude and ability—and any unenumerated “other factors”—were equal long after the Agreement had expired, as of the date of the decision to lay off employees and in light of Litton’s decision to close down its coldtype printing operation. The important point is that factors such as aptitude and ability do not remain constant, but change over time. They cannot be said to vest or accrue or be understood as a form of deferred compensation. Specific aptitudes and abilities can either improve or atrophy. And the importance of any particular skill in this equation varies with the requirements of the employer’s business at any given time. Aptitude and ability cannot be measured on some universal scale, but only by matching an employee to the requirements of an employer’s business at that time. We cannot infer an intent on the part of the contracting parties to freeze any particular order of layoff or vest any contractual right as of the Agreement’s expiration.4 4 Although our decision that the dispute does not arise under the Agreement does, of necessity, determine that as of August 1980 the employees lacked any vested contractual right to a particular order of layoff, the Union would remain able to argue that the failure to lay off in inverse order of seniority if “other things such as aptitude and ability” were equal amounted to an unfair labor practice, as a unilateral change of a term or LITTON FINANCIAL PRINTING DIV. v. NLRB 211 190 Marshall, J., dissenting V For the reasons stated, we reverse the judgment of the Court of Appeals to the extent that the Court of Appeals refused to enforce the Board’s order in its entirety and remanded the cause for further proceedings. It is so ordered. Justice Marshall, with whom Justice Blackmun and Justice Scalia join, dissenting. Although I agree with Justice Stevens’ dissent, post, I write separately to emphasize the majority’s mischaracterization of our decision in Nolde Bros., Inc. v. Bakery Workers, 430 U. S. 243 (1977). Nolde states a broad, rebuttable presumption of arbitrability which applies to all posttermination disputes arising under the expired agreement; it leaves the merits of the underlying dispute to be determined by the arbitrator. Today the majority turns Nolde on its head, announcing a rule that requires courts to reach the merits of the underlying posttermination dispute in order to determine whether it should be submitted to arbitration. This result is not only unfaithful to precedent but also it is inconsistent with sound labor-law policy. I The dispute in Nolde concerned whether employees terminated after the expiration of a collective-bargaining agreement were entitled to severance pay under a severance-pay clause of the expired agreement. See id., at 248-249. The Court stated that the severance-pay dispute “hinge[d] on the interpretation [of] the contract clause providing for severance pay” but that “the merits of the underlying claim” were not implicated “in determining the arbitrability of the dispute.” Id., at 249. To determine whether the dispute was condition of employment. We do not decide whether, in fact, the layoffs were out of order. 212 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. arbitrable, the Court looked solely to the expired agreement’s arbitration clause. It found the severance-pay dispute arbitrable because “[t]he parties agreed to resolve all disputes by resort to the mandatory grievance-arbitration machinery” and “nothing in the arbitration clause . . . expressly exclude[d] from its operation a dispute which arises under the contract, but which is based on events that occur after its termination.” Id., at 252-253.1 Thus, under Nolde, the key questions for determining arbitrability are whether (1) the dispute is “based on. . . differing perceptions of a provision of the expired collective-bargaining agreement” or otherwise “arises under that contract,” id., at 249 (emphasis omitted), and, if so, (2) whether the “presumptions favoring” arbitrability have been “negated expressly or by clear implication,” id., at 255. The majority grossly distorts Nolde’s test for arbitrability by transforming the first requirement that posttermination disputes “arise under” the expired contract. The Nolde Court defined “arises under” by reference to the allegations in the grievance. In other words, a dispute “arises under” the agreement where “the resolution of [the Union’s] claim hinges on the interpretation ultimately given the contract.” Id., at 249. By contrast, the majority today holds that a postexpiration grievance can be said to “arise under” the agreement only where the court satisfies itself (1) that the challenged action “infringes a right that accrued or vested under the agreement,” or (2) that “under normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement.” Ante, at 206. Because they involve inquiry into the substantive effect of the terms of the agreement, these determinations require passing upon the merits of the underlying dispute. Yet the Nolde Court 11 agree with the majority that the National Labor Relations Board’s (Board) determination as to arbitrability under the contract is not entitled to deference. See ante, at 202-203. LITTON FINANCIAL PRINTING DIV. v. NLRB 213 190 Marshall, J., dissenting expressly stated that “in determining the arbitrability of the dispute, the merits of the underlying claim. . . are not before us.” 430 U. S., at 249. Since the proper question under Nolde is whether the dispute in this case “arises under” the agreement in the sense that it is “based on . . . differing perceptions of a provision of the expired collective-bargaining agreement,” ibid., I have no difficulty concluding that this test is met here. The Union’s grievance “claim[ed] a violation of the Agreement,” ante, at 194, by petitioner’s layoffs. And, as even the majority concedes, “[t]he Agreement’s unlimited arbitration clause” encompasses any dispute that “arises under the contract here in question.” Ante, at 205. Thus, the dispute is arbitrable because the “presumptions favoring” arbitrability have not been “negated expressly or by clear implication.” 430 U. S., at 255. In fashioning its more rigorous standard for arbitrability, the majority erroneously suggests that if Nolde rendered arbitrable all postexpiration disputes about an expired agreement’s substantive provisions, it would have the effect of extending the life of the entire contract beyond the date of expiration. See ante, at 206. The defect in this view is that it equates asking an arbitrator to determine whether a particular contractual provision creates rights that survive expiration with a decision that the provision does create such postexpiration rights. The majority evidently fears that arbitrators cannot be trusted to decide the issue correctly. Yet arbitrators typically have more expertise than courts in construing collective-bargaining agreements, and our arbitration jurisprudence makes clear that courts must rely on arbitral judgments where the parties have agreed to do so. Thus in Nolde, we carefully avoided expressing any view as to whether the substantive provisions of the expired agreement had any posttermination effect precisely because the parties had expressed their preference for an arbitral, rather 214 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. than a judicial interpretation. See Nolde, supra, at 249, 253. Consequently, the issue here, as it was in Nolde, is not whether a substantive provision of the expired collectivebargaining agreement (in this case the provision covering layoffs) remains enforceable but whether the expired agreement reflects the parties’ intent to arbitrate the Union’s contention that this provision remains enforceable. The majority itself acknowledges a general rule of contract construction by which arbitration or other dispute resolution provisions may survive the termination of a contract. Ante, at 208, and n. 3. That is all Nolde stands for.2 In addition to being without legal foundation, the majority’s displacement of Nolde’s simple, interpretive presumption with a case-by-case test is unsound from a policy standpoint. Ironically, whereas parties that have agreed to a broad arbitration clause have expressed a preference for “a prompt and inexpensive resolution of their disputes by an expert tribunal,” Nolde, supra, at 254, the majority invites protracted litigation about what rights may “accrue” or “vest” under the contract—litigation aimed solely at determining whether the dispute will be resolved by arbitration. More fundamentally, because the arbitrator is better equipped than are judges to make the often difficult determination of 2 The majority “presume[s] as a matter of contract interpretation that the parties did not intend a pivotal dispute resolution provision to terminate for all purposes upon the expiration of the agreement.” Ante, at 208. But the arbitration clause of the expired collective-bargaining agreement does not distinguish among types of disputes that the parties would and would not submit to arbitration. As in Nolde, the parties agreed to submit all disputes arising under the agreement to arbitration. By looking to the terms of the agreement’s layoff provision to draw a conclusion about whether the parties intended rights under that provision to survive termination, the majority is deciding the merits of the dispute rather than the issue of its arbitrability. Notably, the layoff provisions do not contain any language suggesting an intent to preclude posttermination grievances over layoffs from'arbitration. See App. 30-31. LITTON FINANCIAL PRINTING DIV. v. NLRB 215 190 Marshall, J., dissenting the post-termination effect of an expired contract’s substantive provisions, the majority’s assignment of this task to courts increases the likelihood of error. See id., at 253 (“ ‘The ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed,’” quoting Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 582 (I960)). II The majority’s resolution of the merits of the contract dispute here reinforces my conviction that arbitrators should be the preferred resolvers of such questions. The Union based its grievance on the following provision of the contract: “[I]n case of layoffs, lengths of continuous service will be the determining factor if other things such as aptitude and ability are equal.” App. 30. The Union’s contention that postexpiration layoffs violated this provision rests on the assertion that this contractual provision created rights that survive termination of the contract. The majority rejects this assertion on the ground that “factors such as aptitude and ability do not remain constant, but change over time” and thus “cannot be said to vest or accrue.” Ante, at 210. This conclusion strikes me as utterly implausible. As the majority appears to concede, ante, at 209-210, and as the Board has held, an unconditional seniority provision can confer a seniority right that is “capable of accruing or vesting to some degree during the life of the contract.” United Chrome Products, Inc., 288 N. L. R. B. 1176, 1177 (1988). Obviously, an employee’s relative seniority, much like his relative “aptitude and ability,” will “change over time.” That is, a given member of a bargaining unit who is, for example, 12th in seniority when his collective-bargaining agreement expires may be 5th in seniority at a particular time thereafter, depending upon the number of more senior employees who have departed from the workforce. Or an employee could lose his seniority altogether where specified conditions 216 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. for such loss have been met. See, e. g., n. 3, infra. The fact that, despite the volatility in individual rank, the seniority guarantee might nevertheless vest under the contract means that what vests is not the employee’s seniority rank or his right to job security but rather the right to have the standard of seniority applied to layoffs. In my view, a provision granting only “qualified” seniority may vest in the same way. (Here, the provision guaranteeing seniority is “qualified” by the requirement that the employee claiming seniority possess “aptitude and ability” that is equal to that of less senior employees who seek to avoid being laid off.) As with an employee’s seniority rank, a given worker’s “aptitude and ability” relative to other employees may change over time, yet the right to have layoffs made according to the standard of qualified seniority could vest under the contract. Under this view, a laid off employee would have the opportunity to prove to the arbitrator that he should not have been laid off under the terms of the contract because other factors such as aptitude and ability were equal at the time he was laid off. Indeed, I think this is the more plausible reading of the parties’ intent in this case, particularly given related contract provisions involving loss of seniority. As the Board has previously held, a contract’s “failure to specify expiration as one of the ways in which seniority rights could be lost indicates that the parties intended that seniority rights remain enforceable after contract termination. Therefore, the grievance over [the employer’s] refusal to recall employees by plantwide seniority . . . involves a right worked for and accumulated during the term of the contract and intended by the parties to survive contract expiration.” Uppco, Inc., 288 N. L. R. B. 937, 940 (1988). In the present case, the expired agreement enumerates six specific ways an employee could lose seniority, and these do LITTON FINANCIAL PRINTING DIV. v. NLRB 217 190 Marshall, J., dissenting not include termination of the agreement. See App. 31.3 Thus, the qualified seniority at issue in this case would seem as likely to accrue as did the unconditional seniority in Uppco. In any event, the conclusion that the contracting parties in this case did not intend qualified seniority rights to vest is sufficiently implausible as to raise serious questions about the majority’s assignment of the task of deciding this interpretive issue to itself. Had the majority left this issue to the arbitrator to decide, as Nolde requires, the arbitrator would have had the benefit of an evidentiary hearing on the contractual question and the opportunity to explore petitioner’s actual postexpiration seniority practices. The contractual text, alone, may not be the only relevant information in determining the parties’ intent. Because arbitrators are better equipped to decide such issues and are more familiar with the “‘common law of the shop,’” Nolde, supra, at 253, quoting Warrior & Gulf Nav. Co., supra, at 582, I would have much more confidence in the majority’s construction of the contract were that result reached by an arbitrator. In sum, the majority’s problematic reasoning regarding the substance of the layoff grievance only underscores the soundness of the Nolde presumption of arbitrability which the majority today displaces. Accordingly, I dissent.4 3 Section 12 of the expired agreement, entitled “Notice of Layoutt” [sic], contains six subsections addressing, inter alia, issues of seniority, layoffs, and recalls. Subsection F, which addresses the recalling of laid off workers, enumerates the six ways in which “[a]n employee shall lose his seniority.” App. 31. The “seniority” referred to in subsection F reasonably could be construed as the same seniority that is implied in subsection A, concerning layoffs, and that is expressly identified in subsection E, which requires the employer to “supply the Union with an updated seniority list semi-annually,” id. See id., at 30-31. 4 Although I believe the parties have a contractual duty to arbitrate in this case, I agree with the majority’s conclusion that the Board articulated rational grounds for not imposing a statutory duty under the National Labor Relations Act, 29 U. S. C. § 151 et seq., to arbitrate grievances aris- 218 OCTOBER TERM, 1990 Stevens, J., dissenting 501 U. S. Justice Stevens, with whom Justice Blackmun and Justice Scalia join, dissenting. As the Court today recognizes, an employer’s obligation to arbitrate postcontract termination grievances may arise by operation of labor law or by operation of the expired collective-bargaining agreement. I think the Court is correct in deferring to the National Labor Relations Board’s line of cases and holding that a statutory duty to arbitrate grievances does not automatically continue after contract termination by operation of labor law, see ante, at 198-203. I also agree with the Court’s recognition that notwithstanding the absence of an employer’s statutory duty to arbitrate posttermination grievances, a contractual duty to arbitrate such grievances may nevertheless exist, see ante, at 203-208. I part company with the Court, however, at Part IV-C of its opinion, where it applies its analysis to the case at hand. Because I am persuaded that the issue whether the posttermination grievances in this case “arise under” the expired agreement is ultimately an issue of contract interpretation, I think that the Court errs in reaching the merits of this issue rather than submitting it to an arbitrator in the first instance, pursuant to the broad agreement of the parties to submit for arbitration any dispute regarding contract construction. ing after the termination of a collective-bargaining agreement. See ante, at 200-201. In Indiana and Michigan Electric Co., 284 N. L. R. B. 53 (1987), the Board noted that “an agreement to arbitrate is a product of the parties’ mutual consent to relinquish economic weapons, such as strikes or lockouts” and therefore the contractual obligation to arbitrate could be distinguished from other “terms and conditions of employment routinely perpetuated [after termination of a collective-bargaining agreement] by the [statutory] constraints of [the unilateral change doctrine].” Id., at 58. Under § 13 of the Act, 29 U. S. C. § 163, the Act may not be construed to interfere with a union’s right to strike. Therefore, the Board rationally concluded that employers should not, as a matter of statutory policy, be compelled to arbitrate and thus forbear from using their economic weapons, when no concomitant statutory obligation can be imposed on a union. LITTON FINANCIAL PRINTING DIV. v. NLRB 219 190 Stevens, J., dissenting In Nolde Brothers, Inc. n. Bakery Workers, 430 U. S. 243 (1977), a union brought suit against an employer to compel arbitration of the employer’s refusal to give severance pay under an expired collective-bargaining agreement to employees displaced by a plant closing. The expired agreement provided that employees who had worked for the employer for at least three years were entitled to severance pay if permanently displaced from their jobs. The union claimed that the right to such severance pay had “accrued” or “vested” during the life of the contract. The employer disavowed any obligation to arbitrate, arguing that the contract containing its commitment had terminated and the event giving rise to the dispute—the displacement of employees during the plant closing—occurred after the contract had expired. We ruled in favor of the union in Nolde Brothers. Integral to our decision was the conclusion that whether or not the right to severance pay had accrued during the contract, and thus whether or not the employer’s refusal to offer severance pay was an arbitrable grievance after the contract had expired, was itself a question of contract interpretation. “There can be no doubt that a dispute over the meaning of the severance-pay clause during the life of the agreement would have been subject to the mandatory grievance-arbitration procedures of the contract. Indeed, since the parties contracted to submit ‘all grievances’ to arbitration, our determination that the Union was ‘making a claim which on its face is governed by the contract’ would end the matter had the contract not been terminated prior to the closing of the plant.” Id., at 249-250 (citation omitted). Like the expired agreement between the union and Nolde Brothers to arbitrate “all grievances,” the terminated agreement between Litton and the Union in this case broadly mandates arbitration of “ ‘[differences that may arise between the parties hereto regarding this Agreement and any alleged violations of the Agreement, [and] the construction to be placed on any clause or clauses of the Agreement.’” Ante, 220 OCTOBER TERM, 1990 Stevens, J., dissenting 501 U. S. at 194. Because the Union here alleged that the seniority clause of the expired agreement was on its face violated by the posttermination layoffs, determining whether the union’s grievances arise under the contract requires construction of the seniority provision of the contract and determination of whether this provision applies to posttermination events. As the Court itself notes: “[T]he Board’s decision not to order arbitration of the layoff grievances rests upon its interpretation of the Agreement.” Ante, at 202 (emphasis added). In my opinion, the question whether the seniority clause in fact continues to provide employees with any rights after the contract’s expiration date is a separate issue concerning the merits of the dispute, not its arbitrability. Whatever the merits of the Union’s contention that the seniority-rights provision survives the contract’s termination date, I think that the merits should be resolved by the arbitrator, pursuant to the parties’ broad contractual commitment to arbitrate all disputes concerning construction of the agreement, rather than by this Court. I respectfully dissent. OKLAHOMA v. NEW MEXICO 221 Syllabus OKLAHOMA et al. v. NEW MEXICO ON EXCEPTIONS TO REPORT OF SPECIAL MASTER No. 109, Orig. Argued April 16, 1991—Decided June 17, 1991 The Canadian River flows through New Mexico and the Texas Panhandle before entering Oklahoma. Its waters are apportioned among these States by the Canadian River Compact. Article IV(a) of the Compact gives New Mexico free and unrestricted use of all waters “originating” in the river’s drainage basin above Conchas Dam—a structure that predates the Compact and provides water to the Tucumcari project, a federal reclamation project—and IV(b) gives it free and unrestricted use of waters “originating” in the river’s drainage basin below that dam, limiting the “conservation storage” for impounding those waters to 200,000 acre-feet. In 1963, New Mexico constructed Ute Dam and Reservoir downstream from Conchas Dam. In 1984, Ute Reservoir was enlarged, giving it a storage capacity of 272,800 acre-feet, which has been reduced to about 237,900 feet because of silting. Oklahoma and Texas filed this litigation, contending that Article IV(b)’s limitation is imposed on reservoir capacity available for conservation, and that capacity for the so-called “desilting pool” portion of Ute Reservoir was not exempt from that limitation because it was not allocated solely to “sediment control.” In 1987, while the case was pending, the river above Conchas Dam flooded, spilling over that dam, and Ute Reservoir caught a sufficient amount of spill waters to exceed 200,000 acre-feet. When New Mexico refused to count the spill waters for purposes of the limitation, Texas and Oklahoma filed a supplemental complaint, claiming that if the limitation applies to actual stored water, then water spilling over Conchas Dam or seeping back from the Tucumcari project constitutes waters originating below Conchas Dam under Article IV(b). As relevant here, the Special Master’s Report recommended that (1) Article IV(b) imposes a limitation on stored water, not physical reservoir capacity (Part VI of the Report); (2) water originating in the river basin above Conchas Dam but reaching the river’s mainstream below that dam as a result of spills or releases from the dam or seepage and return flow from the Tucumcari project are subject to the Article IV(b) limitation (Part VII); (3) the issue whether, and to what extent, the water in Ute Reservoir’s “desilting pool” should be exempt from the Article IV(b) limitation should be referred to the Canadian River Compact Commission for negotiations and possible resolution (Part VIII); and (4) if the recommendations are approved, New Mexico will have been in violation of Article IV(b) since 1987, and the 222 OCTOBER TERM, 1990 Syllabus 501 U. S. case should be returned to the Special Master for determination of any injury to Oklahoma and Texas and recommendations for appropriate relief. The States have filed exceptions. Held: 1. Oklahoma’s exception to the recommendation in Part VI of the Master’s Report is overruled. Nothing on the Compact’s face indicates a clear intention to base New Mexico’s limitation on available reservoir capacity when Texas’ limitation is based on stored water. Early drafts uniformly referred to stored water, and the contemporaneous memoranda and statements of Compact Commissioners and their staffs do not explain why a change to “storage capacity” was made in the final draft, although it is most probable the terms were being used loosely and interchangeably. Pp. 229-231. 2. Also overruled are New Mexico’s exceptions to the recommendation in Part VII of the Report. New Mexico errs in arguing that the term “originating” is unambiguous, and that there are no restrictions on the impoundment of the spill waters, since they are waters originating above Conchas Dam, to which the State has free and unrestricted use under Article IV(a). Rather, the Special Master correctly concluded that the Compact’s drafters intended in Article IV(a) to give New Mexico free and unrestricted use of waters “originating” in the river’s drainage basin above Conchas Dam only if the waters were stored, used, or diverted for use at or above Conchas Dam. There is substantial evidence that, in drafting the Compact, Texas and Oklahoma agreed that storage limits were not necessary for waters above Conchas Dam because the waters in that basin had been fully developed, that any future water development would necessarily occur below that dam, and that 200,000 acre-feet of storage rights would satisfy all of New Mexico’s future needs below the dam. The Compact’s ambiguous use of the term “originating” can be harmonized with the drafters’ apparent intent only if it is interpreted so that waters spilling over or released from Conchas Dam, or returned from the Tucumcari project, are considered waters originating below Conchas Dam. Thus, any water stored in excess of the 200,000 acre-feet limit should have been allowed to flow through Ute Dam for use by the downstream States, rather than being impounded by New Mexico. Pp. 231-240. 3. Texas’ and Oklahoma’s exception to the recommendation in Part VIII of the Report is sustained insofar as those States argue that the “desilting pool” issue should not be referred to the Commission. There was no legal basis for the Master’s refusing to decide whether the water in the desilting pool should be counted towards the Article IV(b) limitation, since a dispute clearly exists in this case, and since there is no claim that the issue has not been properly presented. Arizona v. California, OKLAHOMA v. NEW MEXICO 223 221 Opinion of the Court 373 U. S. 546. Thus, the matter must be remanded to the Master for such further proceedings as may be necessary and a recommendation on the merits. Pp. 240-241. Exceptions sustained in part and overruled in part, and case remanded. White, J., delivered the opinion for a unanimous Court with respect to Parts I, II, and IV, and the opinion of the Court with respect to Parts III and V, in which Marshall, Blackmun, Stevens, and Souter, JJ., joined. Rehnquist, C. J., filed an opinion concurring in part and dissenting in part, in which O’Connor, Scalia, and Kennedy, JJ., joined, post, p. 242. Marian Matthews, Deputy Attorney General of New Mexico, argued the cause for defendant. On the briefs were Thomas S. Udall, Attorney General, Hal Stratton, former Attorney General, and Eric Richard Biggs and Martha C. Franks, Special Assistant Attorneys General. D. Paul Elliott, Assistant Attorney General, argued the cause for plaintiff State of Texas. With him on the briefs were Dan Morales, Attorney General, Jim Mattox, former Attorney General, Will Pryor, First Assistant Attorney General, Mary F. Keller, Executive Assistant Attorney General, and Nancy N. Lynch, Assistant Attorney General. R. Thomas Lay argued the cause for plaintiff State of Oklahoma. With him on the briefs were Robert H. Henry, Attorney General, Brita E. Haugland-Cantrell, Assistant Attorney General, and James R. Barnett. Justice White delivered the opinion of the Court. This case, an original action brought by the States of Oklahoma and Texas against the State of New Mexico, arises out of a dispute over the interpretation of various provisions of the Canadian River Compact (Compact), which was ratified by New Mexico, Oklahoma, and Texas in 1951 and consented to by Congress by the Act of May 17, 1952, 66 Stat. 74. Each State has filed exceptions to a report submitted by the Special Master (Report) appointed by this Court. 224 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. I The Canadian River1 is an interstate river which rises along the boundary between southeastern Colorado and northeastern New Mexico, in the vicinity of Raton, New Mexico. From its headwaters, the Canadian River flows south to the Conchas Dam in New Mexico, then generally east for 65 river miles to the Ute Reservoir in New Mexico, and then into the Texas Panhandle. After traversing the panhandle, the river flows into Oklahoma where it eventually empties into the Arkansas River, a tributary of the Mississippi. In the late 1930’s, Congress authorized, and the Corps of Engineers completed, the construction of Conchas Dam on the mainstream of the Canadian River, approximately 30 miles northwest of Tucumcari, New Mexico. Congress also authorized the Tucumcari project, a federal reclamation project designed to irrigate over 42,000 acres of land and serve the municipal and industrial needs of Tucumcari, New Mexico. The project lands are situated southeast of Conchas Dam and are served by the Conchas Canal, which diverts water from Conchas Reservoir. The project was completed in 1950. In 1949, the Texas congressional delegation proposed that Congress authorize a massive Canadian River reclamation project, known as the Sanford project because of its proximity to Sanford, Texas, for the purpose of serving the municipal and industrial requirements of 11 Texas cities in the Texas Panhandle region. Legislation to authorize the Sanford project was introduced in the House of Representatives, along with a bill authorizing New Mexico, Oklahoma, and Texas to negotiate an interstate compact to equitably appor- * 'At least one source suggests that the Canadian River was so named “by early French traders and hunters from Canada who followed it west into Spanish territory. The Fort Smith and Santa Fe pioneer trails went through the Canadian River Valley.” 2 Encyclopaedia Britannica 789 (15th ed. 1985). OKLAHOMA v. NEW MEXICO 225 221 Opinion of the Court tion the waters of the Canadian River. The legislation authorizing the States to enter into an interstate compact was passed by Congress, and the Canadian River Compact Commission was created. The Compact Commission consisted of one commissioner from each State and one federal representative. Each commissioner and the federal representative had the assistance of engineering advisers, a group collectively known as the Engineering Advisory Committee. This committee submitted several proposals to the Compact Commission. The final draft of the Canadian River Compact was presented on December 6, 1950, and was signed on that day by the members of the Compact Commission.2 2 The Compact provides in pertinent part as follows: “Article I “The major purposes of this Compact are to promote interstate comity; to remove causes of present and future controversy; to make secure and protect present developments within the States; and to provide for the construction of additional works for the conservation of the waters of Canadian River. “Article II “As used in this Compact: “(a) the term ‘Canadian River’ means the tributary of Arkansas River which rises in northeastern New Mexico and flows in an easterly direction through New Mexico, Texas and Oklahoma and includes North Canadian River and all other tributaries of said Canadian River. “(d) The term ‘conservation storage’ means that portion of the capacity of reservoirs available for the storage of water for subsequent release for domestic, municipal, irrigation and industrial uses, or any of them, and it excludes any portion of the capacity of reservoirs allocated solely to flood control, power production and sediment control, or any of them. “Article IV “(a) New Mexico shall have free and unrestricted use of all waters originating in the drainage basin of Canadian River above Conchas Dam. “(b) New Mexico shall have free and unrestricted use of all waters originating in the drainage basin of Canadian River in New Mexico below Conchas Dam, provided that the amount of conservation storage in New Mexico available for impounding these waters which originate in the drainage 226 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Congress enacted legislation authorizing the Sanford project on December 29, 1950, but as a result of an amendment proposed by the New Mexico delegation, the bill specifically provided that actual construction of the project could not commence until Congress consented to the Compact. See 64 Stat. 1124, 43 U. S. C. §600c(b). That consent was granted on May 17, 1952, 66 Stat. 74, and the Sanford Dam, creating Lake Meredith Reservoir with a capacity of over 1.4 million acre-feet of water, was completed in 1964. Lake Meredith is approximately 165 river miles east of Ute Reservoir and is located north of Amarillo, Texas. During the 1950’s, New Mexico selected a site on the Canadian River mainstream approximately 1 mile west of Logan, New Mexico, and about 45 miles downstream from Conchas Dam for the construction of Ute Dam and Reservoir. Construction of Ute Dam was completed in 1963, with an initial storage capacity of 109,600 acre-feet. In 1982, New Mexico began construction to enlarge the reservoir, and, in 1984, the enlargement was completed, giving Ute Reservoir a capacity of 272,800 acre-feet. In 1984, the reservoir’s actual capacity to store water was 246,617 acre-feet, the remaining capacity being occupied by silt. The Special Master estimated that because of additional silting, reservoir storage capacity was reduced to 241,700 acre-feet in 1987 and currently is about 237,900 acre-feet. Report of Special Master 16-17. basin of Canadian River below Conchas Dam shall be limited to an aggregate of two hundred thousand (200,000) acre-feet. “Article VII “The Commission may permit New Mexico to impound more water than the amount set forth in Article IV and may permit Texas to impound more water than the amount set forth in Article V . . . . “Article VIII “Each State shall furnish to the Commission at intervals designated by the Commission accurate records of the quantities of water stored in reservoirs pertinent to the administration of this Compact.” OKLAHOMA v. NEW MEXICO 227 221 Opinion of the Court As early as 1982, Oklahoma and Texas expressed concern that the enlargement of Ute Reservoir would violate the 200,000 acre-feet limitation in Article IV(b) of the Compact. See n. 2, supra. All attempts by the Commission to resolve this budding dispute were unsuccessful, in large part because any Commission action requires a unanimous vote and New Mexico would not agree to the interpretation of the Compact proposed by Oklahoma and Texas. This litigation followed, with Oklahoma and Texas contending that Article IV(b) of the Compact imposes a 200,000 acre-feet limit on New Mexico’s constructed reservoir capacity available for conservation storage downstream from Conchas Dam, and that capacity for the so-called “desilting pool” portion of Ute Reservoir was not exempt from the Article IV(b) limitation because it was not allocated solely to “sediment control.” In the spring of 1987, while the case was pending, the portion of the Canadian River above Conchas Dam flooded, and a sizeable quantity of water, approximately 250,000 acre-feet, spilled over Conchas Dam. This was the first major spill over Conchas Dam since 1941-1942, a spill which predated the Compact. New Mexico caught approximately 60 percent of the spill in Ute Reservoir, which filled the reservoir to its capacity, and the remaining 40 percent flowed on down the river. As of June 23, 1988, Ute Reservoir contained approximately 232,000 acre-feet of stored water, of which some 180,900 acre-feet was alleged by New Mexico to be flood water spilled from Conchas Dam earlier in 1987. Report of Special Master 47. After New Mexico refused to count the spill waters stored in Ute Reservoir for purposes of the 200,000 acre-feet limitation in Article IV(b), Texas and Oklahoma filed a supplemental complaint in this case, claiming that if the 200,000 acre-feet limitation applies to actual stored water, then water spilling over Conchas Dam or seeping back from the Tucumcari project constitutes “waters which originate . . . below Conchas Dam” within the meaning of Article IV(b). New 228 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Mexico disputed all of these contentions and argued that water which first enters the river above Conchas Dam is not subject to the Article IV(b) limitation even if it is stored in Ute Reservoir, or anywhere else in New Mexico below Conchas Dam. We referred Texas’ and Oklahoma’s complaint and supplemental complaint in this original case to a Special Master. 484 U. S. 1023 (1988); 488 U. S. 989 (1988). After considering voluminous evidence, the written submissions of the States, twice hearing extended oral argument on the issues, and circulating a draft report to the States for their comments, the Master filed a Report on October 15, 1990, making the following recommendations relevant to our decision in this case: (1) Article IV(b) imposes a limitation on stored water, not physical reservoir capacity. (2) Waters originating in the Canadian River Basin above Conchas Dam, but reaching the mainstream of the Canadian River below Conchas Dam as a result of spills or releases from Conchas Dam or seepage and return flow from the Tucumcari project, are subject to the Article IV(b) limitation. (3) The issue whether, and to what extent, the water in the “desilting pool” in Ute Reservoir should be exempt from the Article IV(b) limitation should be referred to the Canadian River Compact Commission for good-faith negotiations and possible resolution. The referral would be without prejudice to later invoke the Court’s jurisdiction if the issue cannot be resolved within one year. (4) If the foregoing recommendations are approved, New Mexico will have been in violation of Article IV(b) of the Compact since 1987, and the case should be returned to the Special Master for determination of any injury to Oklahoma and Texas and recommendations for appropriate relief. Report, at 24-25. The Master also recommended that the Court use this case to articulate various jurisdictional prerequisites and proce OKLAHOMA v. NEW MEXICO 229 221 Opinion of the Court dural guidelines for application in future interstate compact litigation. Id., at 26-34.3 We ordered the Master’s Report to be filed and set a briefing schedule, 498 U. S. 956 (1990), and heard oral argument on the States’ exceptions to the Master’s Report. We now address those exceptions in turn. II Oklahoma has filed an exception to the Master’s recommendation in Part VI of his Report that the Article IV(b) limitation on “conservation storage” be interpreted to apply only to the quantity of water New Mexico actually stores at Ute Reservoir for conservation purposes. As of 1984, Ute Reservoir had a storage capacity of approximately 272,800 acre-feet, although it is conceded that not all of that capacity is chargeable as existing for “conservation storage.” Some of the capacity is for purposes excluded from the Compact definition of “conservation storage,” such as for sediment control. Oklahoma contends that the term “conservation storage” should be interpreted to apply to the physical capacity of reservoirs located below Conchas Dam, a view which, if adopted, would result in a finding that New Mexico has been in violation of Article IV(b) since at least 1984, when the enlargement of Ute Reservoir was completed. The Special Master conceded, as do we, that Oklahoma’s suggested interpretation of Article IV(b)’s conservation storage limitation finds some support in the plain language of the Compact definition of “conservation storage” and in the language of Article IV(b) itself. The Compact defines “conservation storage” in pertinent part as “that portion of the capacity of reservoirs available for the storage of water” for various purposes and “excludes any portion of the capacity of 3 For example, the Master recommended that state attorneys general seeking to invoke the Court’s jurisdiction, or responding to such a request, certify that their States had negotiated in good faith in an attempt to resolve the dispute without resort to the Court. Report, at 32-33. 230 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. reservoirs” allocated to other purposes. Art. 11(d) (emphasis added). Likewise, Article IV(b) refers to “the amount of conservation storage in New Mexico available for impounding these waters.” (Emphasis added.) However, other provisions in the Compact appear to focus on stored water, not reservoir capacity. For example, Article V sets forth an elaborate formula for determining the amount of water Texas may actually impound at any one time; Article VII provides that the “Commission may permit Neu Mexico to impound more water than the amount set forth in Article IV” (emphasis added); and Article VIII requires each State to “furnish to the Commission at intervals designated by the Commission accurate records of the quantities of water stored in reservoirs pertinent to the administration of this Compact.” (Emphasis added.) We agree with the Special Master that nothing on the face of the Compact indicates a clear intention to treat the New Mexico “conservation storage” limitation differently from the Texas stored water limitation, and we see no compelling justification for doing so. In fact, several early drafts of the Compact uniformly referred to stored water, and only in the final draft did the “conservation storage” language appear in Article IV(b). There is nothing in the contemporaneous memoranda and statements of the Compact Commissioners and their staffs to explain exactly why this change was made; nor is there anything which indicates an intent to draw a distinction between the limitations placed on New Mexico and those placed on Texas. Rather, as the Master pointed out, it is most probable that the terms “stored water,” “storage,” and “conservation storage capacity” were being used loosely and interchangeably by the drafters and their staffs. See Report, at 42-43. There is no obvious reason why Texas and Oklahoma would have wanted to restrict New Mexico’s ability to increase reservoir capacity below Conchas Dam, particularly in light of the fact that larger reservoirs actually promote one of the OKLAHOMA v. NEW MEXICO 231 221 Opinion of the Court purposes stated in Article I of the Compact, which is to capture and conserve as much of the Canadian River’s flood flows as possible, flows which might otherwise be dissipated and therefore wasted. Furthermore, as New Mexico points out, sedimentation alone would constantly reduce New Mexico’s storage capacity below the 200,000 acre-feet limit, forcing New Mexico to repeatedly either build new reservoir capacity or enlarge existing reservoirs. Either of those options would be extremely expensive, and Oklahoma points to no persuasive evidence that the drafters of the Compact intended that New Mexico should bear such a burden. We overrule Oklahoma’s exception to Part VI of the Master’s Report. Ill New Mexico has excepted to Part VII of the Master’s Report, in which the Master recommended that water spilling or released from Conchas Dam, as well as return flow and seepage from the Tucumcari project, be subject to Article IV(b)’s 200,000 acre-feet limitation on conservation storage, if the water is impounded in Ute Dam or other downstream dams in New Mexico. New Mexico argues that the Compact does not impose any restriction on New Mexico’s impoundment of these waters because they originate above Conchas Dam, and Article IV(a) gives New Mexico the “free and unrestricted use of all waters originating in the drainage basin of Canadian River above Conchas Dam.” (Emphasis added.) Texas and Oklahoma counter that the word “originating,” as used in Article IV of the Compact, simply means “entering.” See Tr. of Oral Arg. 29. In Texas’ and Oklahoma’s view, all the conservation storage waters which end up in Ute Reservoir, whether they spill over or are released through Conchas Dam, or seep back from the Tucumcari project, are subject to the 200,000 acre-feet conservation storage limitation of Article IV(b) because they “originate” below Conchas Dam. The Special Master recommended that such waters be subject to the Article IV(b) limitation because he concluded that 232 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. the intent of the Compact drafters was to give New Mexico free and unrestricted use of waters originating in the Canadian River drainage basin above Conchas Dam only if the waters were “stored, used or diverted for use at or above Conchas Dam.” Report, at 59. New Mexico asserts that the word “originating” as used in Article IV has a plain, unambiguous meaning and that the waters “originating” below Conchas Dam referred to in Article IV(b) do not include any waters “originating” above Conchas. But we do not agree that the meaning of the word is as plain as New Mexico suggests. As the Special Master pointed out, a literal reading of the language of Article IV(a) could not have been intended since such a reading would include all of the waters originating in the drainage basin of the Canadian River above Conchas Dam, including all of the waters in tributaries that arise in Colorado, such as the Vermejo River, and would purport to foreclose any claim that Colorado had in the waters arising in that State. This would be an extremely implausible reading in light of the fact that Colorado was not a party to the Compact. New Mexico’s answer is that the language of Article IV(a), giving it the right to all Canadian River waters originating above Conchas, does not mean what it says and should be interpreted to include only those waters in the drainage basin “originating” in New Mexico, a limitation that appeared in earlier drafts of the Compact and that was reflected in the legislative history of the Act approving the Compact. S. Rep. No. 1192, 82d Cong., 2d Sess., 2 (1952). But as Texas points out, New Mexico nevertheless claims the right to use and store all of the water in the Canadian River that is found in New Mexico above Conchas Dam, even though some of it admittedly has its source in Colorado, not in New Mexico, a result unsupported by New Mexico’s present interpretation of the language in Article IV(a). Likewise, if literally read, Article IV(a) would retain New Mexico’s right to water having a source above Conchas even if the water escaped its OKLAHOMA v. NEW MEXICO 233 221 Opinion of the Court grasp and flowed into Texas; but New Mexico concedes that the Article does not go so far, if for no other reason than the fact that Article V gives Texas the right to all of the water found in the Canadian River in Texas, subject to a storage limitation. In light of the above ambiguity, which the dissent refuses to recognize, it is fairly arguable that if, by virtue of its right to water originating in the drainage basin in New Mexico above Conchas Dam, New Mexico also has the right to use and store water in the Canadian River in New Mexico that originated in Colorado, Article IV(b) should be construed in the same way: Any water found in the river below Conchas, including spills, seepage, and return flow from Tucumcari, must be deemed to have originated below Conchas and be subject to the 200,000 acre-feet storage limitation. In effect, this was the conclusion the Special Master came to after examining in detail the purpose and negotiating history of the Compact.4 4 In anticipation of congressional authorization to enter into a compact, the three States each appointed a compact commissioner in the fall of 1949. The Compact Commission met for the first time in February 1950 to lay the groundwork for future deliberations. At that meeting, the Commissioners agreed that no specific proposals would be considered until the relevant technical data was collected and studied. On April 29, 1950, Congress authorized the States to negotiate a compact and, approximately one month later, Berkeley Johnson was appointed to the Compact Commission as the federal representative and chairman of the Commission. Johnson then selected Raymond Hill as his engineering adviser. The first official meeting of the Compact Commission was an organizational meeting held on June 30, 1950. Hill was named chairman of the Engineering Advising Committee, made up of three engineer advisers serving their respective Commissioners. Over the next several months, the engineer advisers conducted studies and collected data. In early October, the Compact Commission convened for its second formal meeting and received a report from Hill regarding his committee’s proposals regarding a compact. The Compact Commission approved in principle the formulas developed by the engineers and directed their legal advisers to prepare a draft compact. Hill then prepared a memorandum to the legal advisers in which he recommended that New Mexico be given “free and unrestricted use of 234 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. The Master reviewed considerable evidence regarding the drafters’ intent as to the meaning of Article IV and concluded that New Mexico’s suggested interpretation was not consist- all waters in the drainage basin of Canadian River in New Mexico” subject only to a 50,000 acre-feet conservation storage limitation in the drainage basin “above Conchas Reservoir.” Defendant’s Exh. 30, Exh. B, pp. 3-4. By early November, the Texas commissioner had expressed a strong desire to have a final compact draft by December 6, 1950, so that Congress could authorize the Sanford project during a month-long legislative session which was to begin in late November. The legal advisers, working with Raymond Hill and the engineers, submitted a partial draft compact dated November 14. This draft adopted Hill’s suggested language with regard to New Mexico’s rights to Canadian River water; but because the legal advisers had not been able “to satisfactorily word” the compact article dealing with storage limitations, they were left to be defined later. Id., Exh. C, p. 3. The Compact Commission held its third official meeting December 4-6, 1950. On December 5, the draft compact was substantially revised by Raymond Hill and the legal advisers to reflect changes in the engineers’ storage limitation formulas. This draft provided that New Mexico should have the “free and unrestricted use of all waters of the Canadian River in New Mexico, subject to” a 200,000 acre-feet storage limitation on waters “which originate in the drainage basin of the Canadian River below Conchas Dani.” Id., Exh. F, p. 2. The draft was again revised either later on December 5 or during the morning of December 6. The final draft included for the first time the “originating . . . above Conchas Dam” language which is now a focal point of the States’ dispute in this case. No contemporaneous explanation was provided for this last-minute revision. The final draft was presented to the Compact Commission on December 6 at 11:15 a.m., and, after making some minor revisions, the Commissioners signed the draft at 1:00 p.m., prompting Chairman Johnson to comment that the speed with which the “compact reached the signing stage . . . certainly constituted a record.” Plaintiffs’ Exh. 110, p. 1. The Master viewed the process somewhat less charitably, observing that “the record of the Compact negotiations and the issues raised in this litigation vividly demonstrate that, as Benjamin Franklin observed, ‘haste makes waste.’” Report, at 54. After the Compact had been signed, Chairman Johnson asked Hill to prepare, as an interpretive tool, a memorandum providing a detailed explanation of the various articles of the Compact. See Plaintiffs’ Exh. 140. As evidence of the need for such a document, Johnson described a recent OKLAHOMA v. NEW MEXICO 235 221 Opinion of the Court ent with the available evidence.* 6 Although the question is not free from doubt, we agree with the Master. Contrary to New Mexico’s assertions, there is substantial evidence that, in drafting the Compact, Texas and Oklahoma agreed that storage limitations were not necessary for waters above Conchas Dam because the waters in that basin had been fully developed. “[T]he negotiators recognized that full development had already been made of all waters of Canadian River originating above Conchas Dam and that accordingly there discussion involving New Mexico’s Compact Commissioner and representatives of the Bureau of Reclamation and Corps of Engineers in which three different positions were taken on the interpretation of the Compact’s allotment of water to Texas. Hill then prepared a memorandum entitled “Development of Final Wording of Compact,” dated January 29, 1951 (the “Hill Memorandum”), see Plaintiffs’ Exh. 38, and the Compact Commission approved the Hill Memorandum at its fourth and final official meeting on January 31, 1951. 6 We agree with the Master that it is appropriate to look to extrinsic evidence of the negotiation history of the Compact in order to interpret Article IV. We previously have pointed out that a congressionally approved compact is both a contract and a statute, Texas v. New Mexico, 482 U. S. 124, 128 (1987), and we repeatedly have looked to legislative history and other extrinsic material when required to interpret a statute which is ambiguous, Green sr. Bock Laundry Machine Co., 490 U. S. 504, 511 (1989); Pierce v. Underwood, 487 U. S. 552, 564-565 (1988); Blum v. Stenson, 465 U. S. 886 (1984). Furthermore, we have on occasion looked to evidence regarding the negotiating history of other interstate compacts. See, e. g., Texas v. New Mexico, 462 U. S. 554, 568, n. 14 (1983); Arizona v. California, 292 U. S. 341, 359-360 (1934). Thus, resort to extrinsic evidence of the compact negotiations in this case is entirely appropriate. New Mexico agrees that it is proper to use “negotiating history to determine whether the words of this Compact can be interpreted reasonably in accordance with their context,” Brief for New Mexico 8, n. 1, but contends that the Master used the negotiating history to “delete Compact language,” ibid., rather than to “interpret” the language. Essentially, New Mexico simply disagrees with the Master that the term “originating” as used in Article IV is ambiguous. Because we agree with the Master, evidence regarding the negotiating history of the Compact may be considered in interpreting Article IV even under New Mexico’s view of the relevant legal principles. 236 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. would be no purpose in placing a limitation upon any increase in the amount of storage of such waters.” Joint Statement of Agreed Material Facts D.34. The evidence strongly suggests that the negotiators believed that any future water development along the Canadian River in New Mexico would necessarily occur below Conchas Dam, and that 200,000 acre-feet of storage rights would be ample for New Mexico’s purposes below Conchas Dam. Indeed, in a letter to the Governor, New Mexico’s Compact Commissioner, John Bliss, specifically stated that “storage capacity for all projects which may be feasible below Conchas will probably not equal the 200,000 acre foot storage limit.”6 Plaintiffs’ Exh. 30, p. 1. 6 New Mexico attempts to rely on the fact that in a letter written to Senator Anderson of New Mexico, Bliss indicated that the only restriction on New Mexico’s use of Canadian River water was that “the total storage capacity for conservation purposes of the waters rising below the dam (not including spills) shall not exceed 200,000 acre feet.” Plaintiffs’ Exh. 28 (emphasis added). New Mexico argues that this letter proves that Bliss did not construe the Compact as placing any limitation on New Mexico’s right to store and use waters which flooded over Conchas Dam. But, like the Master, we fail to see that this single letter proves nearly so much. First, it is not at all clear that an ordinary reading of the letter compels the conclusion for which New Mexico argues. At least as plausible as New Mexico’s reading is the interpretation that Bliss did not understand the Compact as giving New Mexico any rights to store or use such spill waters. This reading is consistent with the plain language of the letter and extrinsic evidence such as the fact noted in the text, infra, at 237-238, that the engineers advising the Compact Commission included spills from Conchas Dam in their estimates of the water supply available to Texas. Second, there is no indication that Bliss ever transmitted the view that New Mexico now claims he held to the other commissioners or the relevant New Mexico state officials such as the Governor and state legislature. In fact, in his letter to Governor Mabry, Bliss never mentions the issue of spills and instead indicates that the 200,000 acre-feet storage limitation imposed “little or no restriction” on any water development projects in the State. Plaintiffs’ Exh. 30, p. 1. Bliss’ subsequent letter to Governor Mechem was very similar. See Plaintiffs’ Exh. 40. It is beyond cavil that statements allegedly made by, or views allegedly held by, “those engaged OKLAHOMA v. NEW MEXICO 237 221 Opinion of the Court The central purpose of the Compact was to settle the respective rights of the States to Canadian River water; and the Compact and its negotiating history plainly show that the parties agreed that no more than 200,000 acre-feet of storage rights would satisfy all of New Mexico’s future needs for water below Conchas Dam. Had they thought more was needed, the limit would have been higher. Under these circumstances, we see no persuasive reason why Texas and Oklahoma would have agreed to let New Mexico impound substantially more than 200,000 acre-feet of water for conservation storage purposes below Conchas Dam simply because some of the water first entered the river above Conchas Dam. Nor do we believe that the evidence supports the conclusion that New Mexico’s negotiator intended that result either. In our view, the Compact’s ambiguous use of the term “originating” can only be harmonized with the apparent intent of the Compact drafters if it is interpreted so that waters which spill over or are released from Conchas Dam, or which return from the Tucumcari project, are considered waters originating below Conchas Dam. This view is strengthened by the fact that both the Bureau of Reclamation in studying the Sanford project, and the engineers advising the Compact commissioners during negotiations, included outflows and spills from Conchas Dam in their estimates of the water supply available to Texas.* 7 See Joint Statement of Agreed Ma in negotiating the treaty which were not embodied in any writing and were not communicated to the government of the negotiator or to its ratifying body,” Arizona v. California, supra, at 360, are of little use in ascertaining the meaning of compact provisions. 7 The Bureau of Reclamation, which played a significant role in providing data to the Compact Commission, interpreted the completed Compact as not entitling New Mexico to retain spills from Conchas Dam. A 1954 Bureau Report on the Sanford project stated that “[e]xcept for the contribution received from such spills [referring to Conchas Dam spills], the water supply for the Canadian River Project therefore must be obtained from runoff originating in the portion of the Canadian River Basin between 238 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. terial Facts C.7, D.16. New Mexico points out that the States and the Master agree that nothing in Article IV would prevent New Mexico from simply enlarging Conchas Reservoir to capture all of the waters flowing into the river above Conchas Dam. See Tr. of Oral Arg. 6. That reading of the Compact is correct, but we fail to see how it refutes Texas’ and Oklahoma’s interpretation of the Compact. New Mexico apparently has never attempted to enlarge Conchas Reservoir because doing so is economically infeasible, and there is nothing in the evidence to suggest that the drafters contemplated that New Mexico would seek to enlarge Conchas Reservoir in the future. Instead, as noted above, the Compact drafters were operating on the assumption that New Mexico had fully developed its uses of water above Conchas Dam and would not need additional water for above Conchas uses. It does not necessarily follow that New Mexico’s entitlement under Article IV(a) to all of the Canadian River water it can use from Conchas Reservoir gives New Mexico the unrestricted right to store that water at any point downstream from Conchas Dam. Any right New Mexico has to water spilling over Conchas Dam arises by virtue of Article IV(b), under which New Mexico may store for its use 200,000 acre-feet of water originating below Conchas Dam.* 8 Conchas Dam and Sanford Dam site . . . .” Plaintiffs’ Exh. 101, p. 50. The 1954 report, as well as a 1960 Bureau Report, see Plaintiffs’ Exh. 102, pp. 56, 58, make clear that the Bureau reads Article IV(b) as limiting New Mexico’s storage of any water below Conchas Dam, including water which spills over Conchas Dam. 8 An argument can be made that if the water originating below Conchas excludes any water coming out of or over Conchas, New Mexico is not entitled to store any such water, for Article IV(b) limits storage below Conchas Dam to those waters originating below that dam. Furthermore, the Hill memorandum, see n. 5, supra, indicates that the Commissioners negotiating the Compact anticipated that the storage permitted below Conchas would not be on the main stream but on the tributaries, and that 200,000 acre-feet would be sufficient to regulate those minor streams. See Plaintiffs’ Exh. 38, p. 3. Obviously, under this reading of Article IV(b), Conchas spills would have to pass downstream to the Sanford project. Al OKLAHOMA v. NEW MEXICO 239 221 Opinion of the Court It is worth noting the Special Master’s observation that New Mexico’s construction of Article IV, if accepted, would have a deleterious impact on the water supply to the Sanford project and hence would “run counter to the Congressional intention in conditioning funding of the Sanford Project on execution of the Compact and in subsequently approving the Compact.” Report, at 57. Congress had been informed that the project would rely in part on water arriving in Texas in the mainstream of the Canadian. Yet New Mexico’s version of the Compact would, as a practical matter, permit it to prevent any and all water entering the river above Conchas from ever reaching Texas, whether by enlarging Ute Reservoir or building additional facilities, and at the same time to impound at Ute Dam most if not all of the principal tributary inflow below Conchas. All of New Mexico’s needs for water above Conchas and for the Tucumcari project are fully satisfied. No one suggests otherwise. It is also plain that it was agreed in the Compact that 200,000 acre-feet of water storage would be adequate to satisfy New Mexico’s needs for water below Conchas. That allocation was indeed generous. Since the signing of the Compact, there have been no developments in the area below Conchas which require substantial amounts of water for consumptive uses. According to the Special Master, slightly over 1,000 acre-feet for such purposes has been sold from Ute Dam since 1963. Id., at 68. New Mexico is entitled to 200,000 acre-feet of conservation storage below Conchas Dam, which the Compact anticipated would take care of any future developments in the area below Conchas Dam. As we construe the Compact, if New Mexico has at any time stored more than that amount, it was not entitled to do so. Any water stored in excess of that amount should have been though there are traces of these arguments in Texas’ response to New Mexico’s exceptions, Texas does not challenge New Mexico’s entitlement to store Conchas spills in Ute Dam so long as the total storage in that reservoir does not exceed 200,000 acre-feet. 240 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. allowed to flow through the Ute Dam, to be put to use by the downstream States, rather than impounded in New Mexico. Accordingly, we overrule New Mexico’s exceptions to Part VII of the Report.9 IV In Part VIII of his Report, the Master recommended that this Court remand to the Canadian River Commission the question whether certain water stored in Ute Reservoir, water which New Mexico has designated a “desilting pool,”10 is exempt from the Article IV(b) limitation on New Mexico’s conservation storage because it allegedly serves a “sediment control” purpose within the meaning of Article 11(d). Oklahoma and Texas except to this recommendation, arguing that there is sufficient evidence in the record to make a final determination on this issue, that the water in the desilting pool should be counted towards the Article IV(b) limitation, and that it is neither appropriate nor practical to refer the 9 New Mexico also argues that the Master improperly shifted the burden of proof to New Mexico on the “above Conchas” issue, see Brief for New Mexico 26-28, but this exception does not merit discussion and is overruled. 10 The lowest outlet works at Ute Reservoir are at an elevation of 3,725 feet. Below that elevation, no water in the reservoir can be released by natural gravity flow. This portion of a reservoir is customarily referred to as “dead storage” because its principal purpose is to serve as a depository for water-borne sediment entering the reservoir. The capacity of the dead storage pool at Ute Reservoir is approximately 20,700 acre-feet, almost half of which is actually occupied by sediment. Since 1962, the New Mexico Interstate Stream Commission, a state agency, has had an agreement with the New Mexico Game Commissio,n to maintain the water in Ute Reservoir at a minimum elevation of 3,741.6 feet for recreational purposes. In 1984, New Mexico unilaterally designated this additional water (the water above dead storage, i. e., between elevation 3,725 and 3,741.6, approximately 49,900 acre-feet) a “desilting pool” which, according to New Mexico, is part of the overall “sediment control pool” at Ute Reservoir. Oklahoma and Texas oppose this designation and contend the water in the “desilting pool” must be counted toward the 200,000 acre-feet limitation in Article IV(b). OKLAHOMA v. NEW MEXICO 241 221 Opinion of the Court matter to the Commission. The Master acknowledged that the record developed in this case probably was sufficient to permit him to decide this issue, Report, at 99-100, but he declined to address it until after the States had first made some attempt, via the Canadian River Commission, to negotiate a settlement. We sustain Texas’ and Oklahoma’s exception to Part VIII of the Master’s Report insofar as those States argue that the matter should not be referred to the Commission. “Where the States themselves are before this Court for the determination of a controversy between them, neither can determine their rights inter sese, and this Court must pass upon every question essential to such a determination . . . .” Kentucky v. Indiana, 281 U. S. 163, 176-177 (1930). It is true that the Court has “often expressed [a] preference that, where possible, States settle their controversies by ‘mutual accommodation and agreement,’” Arizona v. California, 373 U. S. 546, 564 (1963) (quoting Colorado v. Kansas, 320 U. S. 383, 392 (1943), and Nebraska v. Wyoming, 325 U. S. 589, 616 (1945)), but the Court “does have a serious responsibility to adjudicate cases where there are actual, existing controversies” between the States over the waters in interstate streams. 373 U. S., at 564. There is no doubt that such a dispute exists in this case, Oklahoma and Texas have properly invoked this Court’s jurisdiction, and there is no claim that the “desilting pool” issue has not been properly presented. Thus, we see no legal basis for the Master refusing to decide the question and instead sending it to the Commission. Thus, we remand the “desilting pool” question to the Master for such further proceedings as may be necessary and a recommendation on the merits.11 11 Likewise, we decline the Master’s invitation to set forth prerequisites and guidelines, beyond those already in existence, for invoking this Court’s original jurisdiction. 242 OCTOBER TERM, 1990 Opinion of Rehnquist, C. J. 501 U. S. V The States’ exceptions to the Special Master’s Report are overruled except for Oklahoma’s and Texas’ challenge to the Master’s recommendation that the “desilting pool” issue be referred to the Canadian River Commission, which is sustained in part.12 The case is remanded to the Master for such further proceedings and recommendations as may be necessary. So ordered. Chief Justice Rehnquist, with whom Justice O’Connor, Justice Scalia, and Justice Kennedy join, concurring in part and dissenting in part. An interstate compact, though provided for in the Constitution, and ratified by Congress, is nonetheless essentially a contract between the signatory States. The Court’s opin- 12 The Special Master has submitted a suggested decree to be entered at this time, but we think it best to defer entry of any decree. First, in light of our remand for further proceedings with respect to the desilting pool issue, the decree will have to be revised in any event. Second, New Mexico has excepted to the proposed decree in certain respects, and it is not clear to us that the Master had the substance of these objections before him when he drafted his final Report. His views on those objections would be helpful. Third, paragraph 1 of the proposed decree provides that New Mexico shall have free and unrestricted use of the water of the Canadian River and its tributaries in New Mexico above Conchas Dam, such use to be made above or at Conchas, including diversions for use on the Tucumcari project. Report, at 112. Under this provision, New Mexico would not have unrestricted use of any water diverted at Conchas for downstream use other than at Tucumcari. Earlier in the Report, however, the Special Master states that he has concluded that New Mexico has unrestricted use of waters in the Canadian River basin above Conchas “if such waters are stored, used or diverted for use at or above Conchas Dam,” id., at 59, including diversions at Conchas Dam for use on the downstream Tucumcari project. This conclusion, as stated, would not necessarily prevent diversions at Conchas for downstream use other than at Tucumcari, so long as such diversions did not involve downstream storage. In any event, we anticipate that the Special Master’s subsequent report dealing with the desilting pool will include a revised draft of the proposed decree. OKLAHOMA v. NEW MEXICO 243 221 Opinion of Rehnquist, C. J. ion overruling New Mexico’s objections to the Report of the Special Master varies the terms of a contract to which the States of Oklahoma, New Mexico, and Texas freely agreed. I do not believe it is within the Court’s power to do this, and I therefore dissent from Part III of the Court’s opinion, which restricts New Mexico’s use of waters that spill over Conchas Dam. I concur in Parts I, II, and IV of the Court’s opinion. The Canadian River traverses three States. It originates in the high country of northern New Mexico, flowing southeast from there into the Texas Panhandle. New Mexico has erected two dams on the river, Conchas Dam and Ute Dam, which provide irrigation water for farming and municipal water for the city of Tucumcari, New Mexico. In Texas, the Sanford project diverts water to serve the municipal and industrial requirements of Texas cities throughout the Texas Panhandle region, from Amarillo to Lubbock. The river flows eastward from this project across the Texas Panhandle and into Oklahoma, and thence southeasterly throughout almost the entire State of Oklahoma until it joins the Arkansas River in the Eufala Reservoir a few miles west of Fort Smith, Arkansas. In 1950, New Mexico, Texas, and Oklahoma convened to draft the Canadian River Compact (Compact), which apportioned the Canadian’s waters in a manner that they hoped would serve New Mexico’s and Texas’ already substantial needs while anticipating the future needs of those States and Oklahoma. Article IV of the Compact, which governs the allocation of water to New Mexico, provides as follows: “(a) New Mexico shall have free and unrestricted use of all waters originating in the drainage basin of Canadian River above Conchas Dam. “(b) New Mexico shall have free and unrestricted use of all waters originating in the drainage basin of Canadian River in New Mexico below Conchas Dam, provided that the amount of conservation storage in New Mexico available for impounding these waters which originate in 244 OCTOBER TERM, 1990 Opinion of Rehnquist, C. J. 501 U. S. the drainage basin of Canadian River below Conchas Dam shall be limited to an aggregate of two hundred thousand (200,000) acre-feet.” 66 Stat. 75. I part company with the majority’s interpretation of this Article, based on my view that this provision means what it says. By its express terms, Article IV places no restrictions on New Mexico’s use of waters originating above Conchas Dam. It imposes only two restrictions on its use of the waters originating in the drainage basin of the Canadian River below Conchas Dam: First, New Mexico’s enjoyment of these lower-basin waters is restricted to waters located in New Mexico; second, New Mexico may allocate no more than 200,000 acre-feet of its total storage capacity for the conservation of these lower basin waters. The Compact thus distinguishes between water “originating” in the lower basin and water “originating” at or above the upper basin. New Mexico enjoys free and unrestricted use of the latter. The ordinary understanding of what it means for waters to “originate” in a basin is that they “arise” or “com[e] into existence” in that location. See 10 Oxford English Dictionary 935-936 (2d ed. 1989). Thus, according to the plain meaning of Article IV(a), New Mexico may make unrestricted use of the Canadian River waters that arise above Conchas Dam. These waters may be stored, used, or diverted for use without limitation. Unlike the waters that enter the Canadian River below Conchas Dam, these waters may pass into the lower basin without being subject to the 200,000 acre-feet conservation storage restriction of Article IV(b). Despite the clear import of the Compact’s terms, the Court concludes that the Compact cannot mean what it says, and instead fashions a different allocation than that which is literally described. The Court concludes that “the intent of the Compact drafters was to give New Mexico free and unrestricted use of waters originating in the Canadian River drainage basin above Conchas Dam only if the waters were OKLAHOMA v. NEW MEXICO 245 221 Opinion of Rehnquist, C. J. ‘stored, used or diverted for use at or above Conchas Dam.’” Ante, at 232 (quoting Report of Special Master 59) (emphasis in original). The emphasized terms do not appear anywhere in the Compact, and reflect not the intent of the parties, but instead the intent that the Court now imputes to them. Although the Compact grants New Mexico use of “all” waters originating above Conchas Dam, the Court reads this to mean “some”: specifically excluding water that eventually winds up below Conchas Dam. Ante, at 232-233. Accordingly, the Court holds that any water found in the river below Conchas, including spills and seepage from above Conchas Dam, is not subject to free and unrestricted use—even though it clearly originated above Conchas Dam. A compact is a contract among its parties. Texas v. New Mexico, 482 U. S. 124, 128 (1987). Congressional consent elevates an interstate compact into a law of the United States, yet it remains a contract which is subject to normal rules of enforcement and construction. Thus, “unless the compact to which Congress has consented is somehow unconstitutional, no court may order relief inconsistent with its express terms.” Texas v. New Mexico, 462 U. S. 554, 564 (1983). Accordingly, where the terms of the compact are unambiguous, this Court must give effect to the express mandate of the signatory States. The Court asserts that we may rewrite the express terms of Article IV(a) because of its understanding of the practical consequences of faithfully applying that provision. Ante, at 230-232. The Court contends that, if taken at its word, the Compact would permit New Mexico to lay claim to any water originating above Conchas Dam, including tributaries that arise in Colorado. The Court further asserts that a literal interpretation would permit New Mexico to then chase this water down and continue to claim access to it as it passes down through Texas and Oklahoma. Based on its view that the Compact could not have been drafted to produce the implausible consequence that New Mexico could appropriate 246 OCTOBER TERM, 1990 Opinion of Rehnquist, C. J. 501 U. S. Colorado’s, Texas’, and Oklahoma’s waters, the Court abandons the literal text of the Compact and casts off in search of a new interpretation of the word “originating.” Ante, at 232. The Court’s approach conjures up impractical consequences where none exist. The language of the Compact does not in any way support the notion that Colorado (a State that did not even participate in the Compact) might forfeit its waters to New Mexico. Colorado’s rights are not implicated by the Compact at all. Although a small portion of the Canadian River’s waters arise in Colorado, only New Mexico, Texas, and Oklahoma participated in the Compact and are parties to it. By its terms, the Compact allocates only those rights over the interstate waters of the Canadian River belonging to those three States. See Art. X. Thus, the Compact could not, and did not purport to, allocate Colorado’s portion of the Canadian River. Any dispute between Colorado and the signatory States to this Compact must be resolved outside the terms of the Compact, and there is no reason to construe this Compact as though it purported to deal with Colorado’s claims. Similarly, Article V of the Compact dispels any concern that New Mexico’s rights under a literal reading of Article IV(a) extend to waters originating above Conchas Dam that have left the State. That provision gives Texas “free and unrestricted use of all waters of [the] Canadian River in Texas,” subject to certain storage limitations. The Compact gives New Mexico no rights to recapture errant water that reaches Texas because that water is then “in” Texas and therefore subject to Texas’ rights under the Compact. The majority’s failure to reconcile Article V with Article IV violates the ordinary rule of statutory and contract interpretation that all provisions of a Compact must be read together in a meaningful manner. See United States v. Utah, Nevada & California Stage Co., 199 U. S. 414, 423 (1905). OKLAHOMA v. NEW MEXICO 247 221 Opinion of Rehnquist, C. J. Had the Compact’s drafters intended to limit New Mexico’s free and unrestricted use of the Canadian River waters originating above Conchas Dam in the manner announced today, they would certainly have done so more directly. For example, they might have drafted Article IV(a) to provide that “the amount of conservation storage in New Mexico below Conchas Dam shall be limited to an aggregate of 200,000 acre-feet.” But they did not. Instead, they specifically agreed that only waters “which originate in the drainage basin of [the] Canadian River below Conchas Dam” were to be so restricted. The only reasonable conclusion to draw from this is that they intended the word “originating” to have some content. The Court’s free-form exploration of the practical consequences of the parties’ agreement, and its reliance on evidence outside of the Compact to introduce ambiguity into Compact terms, is both contrary to our precedents and unfair to the parties. When parties to a contract have expressed their intent on a matter in unambiguous terms, we should not substitute our will for their purpose. Texas n. New Mexico, supra, at 564. The parties made an agreement, and have acted in reliance upon the terms of that contract and settled principles of contract law. The contract law principles of all three States disallow recourse to evidence outside the record under these circumstances. In those jurisdictions, where the language of an agreement clearly expresses the intent of the parties, courts may not rely on extrinsic evidence to vary its terms. See, e. g., Mercury Investment Co. v. F. W. Woolworth Co., 706 P. 2d 523, 529 (Okla. 1985); Hobbs Trailers v. J. T. Arnett Grain Co., 560 S. W. 2d 85, 87 (Tex. 1977); Trujillo n. CS Cattle Co., 109 N. M. 705, 709-710, 790 P. 2d 502, 506-507 (1990). Even viewed as a federal statute, the Court’s treatment of the Compact’s plain language is improper. Congress gave its blessing to this Compact and, in doing so, codified the agreement as federal law. As we stated in Arizona v. California, 373 U. S. 546, 565-566 248 OCTOBER TERM, 1990 Opinion of Rehnquist, C. J. 501 U. S. (1963): “Where Congress has . . . exercised its constitutional power over waters, courts have no power to substitute their own notions of an ‘equitable apportionment’ for the apportionment chosen by Congress.” Even if I agreed with the Court that it is appropriate in this case to look outside the Compact to determine the meaning of Article IV(a), I would not agree with its conclusion that the parties intended to include overflow waters from the upper basin of Conchas Dam within the term “waters which originate in the drainage basin of Canadian River below Conchas Dam.” I do not find either piece of evidence relied upon by the Court to be supportive of that position, let alone persuasive. The Court says that the Compact negotiators did not place any limitation on the amount of storage of waters originating above Conchas Dam because they believed that those waters were already being fully used. Accordingly, the Court reasons, the negotiators assumed that any future development of the river’s waters in New Mexico would necessarily occur only below Conchas Dam, and that 200,000 acre-feet of storage rights would be more than sufficient to satisfy those development needs. Ante, at 236. The Court concludes that “these circumstances,” demonstrate that Texas and Oklahoma could not have intended to permit New Mexico to impound any more than the 200,000 acre-feet of water for conservation storage purposes below Conchas Dam. Ante, at 237. As a preliminary matter, the record simply does not bear out the Court’s view. The only evidence that directly addresses the issue establishes that the 200,000 acre-feet limitation was derived solely from New Mexico’s perceived requirements for Canadian River waters originating in the lower basin. The “Hill memorandum,” authored by Raymond Hill, Chairman of the Engineering Advisory Committee, and approved by the Compact Commission at its final meeting on January 31, 1951, stated that the storage limita OKLAHOMA v. NEW MEXICO 249 221 Opinion of Rehnquist, C. J. tion was directed only towards impoundment of “the flood flows of Ute Creek and other minor tributaries of Canadian River entering the stream below Conchas Dam and above any contemplated storage works on Canadian River in Texas.” Plaintiff’s Exh. 38, p. 3 (emphasis added). The storage limits thus appear to have been directed at waters entering New Mexico below Conchas Dam but before the river enters Texas. Indeed, a letter from New Mexico’s Commissioner, John Bliss, to Senator Anderson of New Mexico, written the day after the Compact was signed, expressly noted that the 200,000 acre-feet limitation did not apply to spills. Plaintiff’s Exh. 28. By contrast, there is no direct support whatsoever for the Court’s statement that the Compact’s 200,000 acre-feet limitation on lower basin waters was intended to apply to upper basin waters captured in the lower basin. Even assuming that the Court’s view of the facts is correct, I do not see how these facts support its conclusion. The Court observes that at the time of the Compact, New Mexico had fully developed reliable supplies of water above Conchas Reservoir, and thus there would be no purpose in placing a limitation upon any increase in the amount of storage of those waters. The Engineering Advisory Committee determined that “above Conchas, the available water supply has all been put to use—any further development above Conchas would deplete the supply available for Tucumcari Project; thus future developments would emphasize the better utilization of existing supplies.” Plaintiff’s Exh. 109, p. 1. This assessment, on its face, refers to the usage of normal water flows and not to the specific issue raised in this case, overflows and spills. In asserting that further development of the upper basin would draw on Tucumcari project waters, the engineer advisers did not contemplate spill waters or return flows from Tucumcari. As the Special Master himself concluded: “The most that can be said about the Engineer Advisors’ treatment of Conchas spills is that they apparently did not 250 OCTOBER TERM, 1990 Opinion of Rehnquist, C. J. 501 U. S. project that they would recur with the frequency and magnitude that they subsequently have.” Report of Special Master 67 (emphasis added). The Court also relies on the fact that a 1960 study by the Bureau of Reclamation included outflows from Conchas Dam in estimating water supply to Sanford Reservoir, Texas. See Plaintiff’s Exh. 102, pp. 64, 67, 70-71. This too has no bearing on the intent of the parties to this Compact, or the meaning of Article IV. The Bureau published the final draft of its report nearly a decade after the Compact was signed. The Bureau’s report simply acknowledges that in light of the massive spills over Conchas Dam that occurred in 1941 and 1942, it might be reasonable to assume that occasional spills might contribute to the Sanford project’s water supply. This conclusion does not favor one view or another about New Mexico’s right to capture some of the overflow from Conchas Dam, since it is clear that New Mexico was physically incapable of capturing all of the overflow from the massive floods that have occurred twice this century. The Bureau’s estimates merely reflect reality; they do not suggest that the Compact requires waters flowing from Conchas spills to serve the Sanford project alone. Finally, putting aside the Court’s dismissive treatment of the Compact terms and the parties’ expectations, today’s decision makes little practical sense. The Court’s decision will not protect the rights of the downstream States, except to the extent that it will force New Mexico to behave inefficiently in using its water. Oklahoma and Texas do not dispute that New Mexico could, if it desired, enlarge the reservoir behind Conchas Dam to capture all of the Canadian River’s waters and dry up the river beds of the downstream States. Tr. of Oral Arg. 29, 33-34; ante, at 238. The Court also acknowledges that the Compact gives New Mexico the included right to capture additional waters at or above Conchas and then divert them to downstream locations. See ante, at 242, n. 12. The Court’s construction, therefore, does OKLAHOMA v. NEW MEXICO 251 221 Opinion of Rehnquist, C. J. not prevent New Mexico from capturing flood waters and diverting them to projects below Conchas Dam; it merely forces the State to take its rightful waters by means of costly, inefficient, and wasteful engineering. The Canadian is an unpredictable river: For the first 36 years of the Compact it lay dormant before it boiled over Conchas Dam, spilling several hundred thousand acre-feet of water into the lower basin. The Compact allocated this water. New Mexico was entitled to keep as much as it wished in modest storage facilities to recapture its upper basin waters. All the rest would naturally flow down to Texas and Oklahoma. The Court today rewrites that simple allocation. While rivers such as the Canadian may be unpredictable, interpretation of contracts involving those rivers should not be. The Court frustrates settled expectations by rewriting the Compact to mean something other than what its language says. Accordingly, I dissent from Part III of the Court’s decision. 252 OCTOBER TERM, 1990 Syllabus 501 U. S. METROPOLITAN WASHINGTON AIRPORTS AUTHORITY et al. v. CITIZENS FOR THE ABATEMENT OF AIRCRAFT NOISE, INC., et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 90-906. Argued April 16, 1991—Decided June 17, 1991 An Act of Congress (hereinafter the Transfer Act) authorized the transfer of operating control of Washington National Airport (National) and Dulles International Airport (Dulles) from the federal Department of Transportation to petitioner Metropolitan Washington Airports Authority (MWAA), which was created by a compact between Virginia and the District of Columbia. Both airports are located in the Virginia suburbs of the District. Dulles is larger than National and lies in a rural area miles from the Capitol. National is a much busier airport due to the convenience of its location at the center of the metropolitan area, but its flight paths over densely populated areas have generated concern among residents about safety, noise, and pollution. Because of congressional concern that surrender of federal control of the airports might result in the transfer of a significant amount of traffic from National to Dulles, the Transfer Act authorizes MWAA’s Board of Directors to create a Board of Review (Board). The Board is to be composed of nine congressmen who serve on committees having jurisdiction over transportation issues, and who are to act “in their individual capacities.” The Board is vested with a variety of powers, including the authority to veto decisions made by MWAA’s directors. After the directors adopted bylaws providing for the Board, and Virginia and the District amended their legislation to give MWAA powers to establish the Board, the directors appointed the Board’s nine members from lists submitted by Congress. The directors then adopted a master plan providing for extensive new facilities at National, and the Board voted not to disapprove that plan. Subsequently, respondents—individuals living along National flight paths and Citizens for the Abatement of Aircraft Noise, Inc. (CAAN), whose members include persons living along such paths, and whose purposes include the reduction of National operations and associated noise, safety, and air pollution problems—brought this action seeking declaratory and injunctive relief, alleging that the Board’s veto power is unconstitutional. Although ruling that respondents had standing to maintain the action, the District Court granted summary judgment for petitioners. The Court of Appeals reversed, holding, inter alia, that Congress’ delegation of the WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 253 252 Syllabus veto power to the Board violated the constitutional doctrine of separation of powers. Held: 1. Respondents have standing. Accepting as true their claims that the master plan will result in increased noise, pollution, and accidents, they have alleged “personal injury” to themselves that is “fairly traceable” to the Board’s veto power. See Allen v. Wright, 468 U. S. 737, 751. This is because knowledge that the plan was subject to that power undoubtedly influenced MWAA’s directors when they drew up the plan. Moreover, because invalidation of the veto power will prevent enactment of the plan, the relief respondents have requested is “likely to . . . re-dres[s]” their alleged injury. Ibid. Furthermore, the harm they allege is not confined to the consequences of a possible increase in National activity, since the Board and the master plan injure CAAN by making it more difficult for it to fulfill its goal of reducing that activity. Pp. 264-265. 2. Congress’ conditioning of the airports’ transfer upon the creation of a Board of Review composed of congressmen and having veto power over the MWAA directors’ decisions violates the separation of powers. Pp. 265-277. (a) Petitioners argue incorrectly that this case does not raise any separation-of-powers issue because the Board is a state creation that neither exercises federal power nor acts as an agent of Congress. An examination of the Board’s origin and structure reveals an entity created at the initiative of Congress, the powers of which Congress has mandated in detail, the purpose of which is to protect an acknowledged federal interest in the efficient operation of airports vital to the smooth conduct of Government and congressional business, and membership in which is controlled by Congress and restricted to Members charged with authority over air transportation. Such an entity necessarily exercises sufficient federal powers as an agent of Congress to mandate separation-of-powers scrutiny. Any other conclusion would permit Congress to evade the Constitution’s “carefully crafted” constraints, INS v. Chadha, 462 U. S. 919, 959, simply by delegating primary responsibility for execution of national policy to the States, subject to the veto power of Members of Congress acting “in their individual capacities.” Cf. Bowsher v. Synar, 478 U. S. 714, 755 (Stevens, J., concurring in judgment). Nor is there merit to petitioners’ contention that the Board should nevertheless be immune from scrutiny for constitutional defects because it was created in the course of Congress’ exercise of its power to dispose of federal property under Article IV, § 3, cl. 2. South Dakota v. Dole, 483 U. S. 203, 212, distinguished. Pp. 265-271. 254 OCTOBER TERM, 1990 Syllabus 501 U. S. (b) Congress has not followed a constitutionally acceptable procedure in delegating decisionmaking authority to the Board. To forestall the danger of encroachment into the executive sphere, the Constitution imposes two basic and related constraints on Congress. It may not invest itself, its Members, or its agents with executive power. See, e. g., J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406; Bow-sher, supra, at 726. And, when it exercises its legislative power, it must follow the “single, finely wrought and exhaustively considered procedures” specified in Article I. Chadha, supra, at 951. If the Board’s power is considered to be executive, the Constitution does not permit an agent of Congress to exercise it. However, if the power is considered to be legislative, Congress must, but has not, exercised it in conformity with the bicameralism and presentment requirements of Article I, § 7. Although Congress imposed its will on MWAA by means that are unique and that might prove to be innocuous, the statutory scheme by which it did so provides a blueprint for extensive expansion of the legislative power beyond its constitutionally defined role. Pp. 271-277. 286 U. S. App. D. C. 334, 917 F. 2d 48, affirmed. Stevens, J., delivered the opinion of the Court, in which Blackmun, O’Connor, Scalia, Kennedy, and Souter, JJ., joined. White, J., filed a dissenting opinion, in which Rehnquist, C. J., and Marshall, J., joined, post, p. 277. Deputy Solicitor General Shapiro argued the cause for the United States as respondent under this Court’s Rule 12.4. With him on the briefs were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Clifford M. Sloan, and Douglas Letter. William T. Coleman, Jr., argued the cause for petitioners. With him on the briefs were Donald T. Bliss and Debra A. Valentine. Patti A. Goldman argued the cause and filed a brief for respondents Citizens for Abatement of Aircraft Noise, Inc., et al.* *Mary Sue Terry, Attorney General, H. Lane Kneedler, Chief Deputy Attorney General, K. Marshall Cook, Deputy Attorney General, John M. McCarthy, Senior Assistant Attorney General, and William W. Muse and John Westrick, Assistant Attorneys General, filed a brief for the Commonwealth of Virginia as amicus curiae urging reversal. WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 255 252 Opinion of the Court Justice Stevens delivered the opinion of the Court. An Act of Congress authorizing the transfer of operating control of two major airports from the Federal Government to the Metropolitan Washington Airports Authority (MWAA) conditioned the transfer on the creation by MWAA of a unique “Board of Review” composed of nine Members of Congress and vested with veto power over decisions made by MWAA’s Board of Directors.1 The principal question presented is whether this unusual statutory condition violates the constitutional principle of separation of powers, as interpreted in INS v. Chadha, 462 U. S. 919 (1983), Bowsher n. Synar, 478 U. S. 714 (1986), and Springer n. Philippine Islands, 277 U. S. 189 (1928). We conclude, as did the Court of Appeals for the District of Columbia Circuit, that the condition is unconstitutional. I In 1940, Congress authorized the Executive Branch to acquire a tract of land a few miles from the Capitol and to construct what is now Washington National Airport (National). 54 Stat. 686. From the time it opened until 1987, National was owned and operated by the Federal Government. The airport was first managed by the Civil Aeronautics Agency, a division of the Commerce Department. 54 Stat. 688. In 1959, control of National shifted to the newly created Federal Aviation Administration (FAA), an agency that, since 1967, has been a part of the Department of Transportation. See 72 Stat. 731; 80 Stat. 932, 938. A few years after National opened, the Truman administration proposed that a federal corporation be formed to op-‘erate the airport. See Congressional Research Service, Federal Ownership of National and Dulles Airports: Background, Pro-Con Analysis, and Outlook 4 (1985) (CRS Report), reprinted in Hearings before the Subcommittee on ’Metropolitan Washington Airports Act of 1986 (Transfer Act), 100 Stat. 3341,'49 U. S. C. App. §§2451-2461. 256 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Governmental Efficiency and the District of Columbia of the Senate Committee on Governmental Affairs, 99th Cong., 1st Sess., 404 (1985). The proposal was endorsed by the Hoover Commission in 1949 but never adopted by Congress. Instead, when Congress authorized construction of a second major airport to serve the Washington area, it again provided for federal ownership and operation. 64 Stat. 770. Dulles International Airport (Dulles) was opened in 1962 under the direct control of the FAA. See CRS Report 1-2. National and Dulles are the only two major commercial airports owned by the Federal Government. A third airport, Baltimore Washington International (BWI), which is owned by the State of Maryland, also serves the Washington metropolitan area. Like Dulles, it is larger than National and located in a rural area many miles from the Capitol. Because of its location, National is by far the busiest and most profitable of the three.2 Although proposals for the joint operating control of all three airports have been considered, the plan that gave rise to this litigation involves only National and Dulles, both of which are located in Virginia. Maryland’s interest in the overall problem explains its representation on the Board of Directors of MW A A. See 49 U. S. C. App. § 2456(e)(3)(C). Throughout its history, National has been the subject of controversy. Its location at the center of the metropolitan area is a great convenience for air travelers, but flight paths over densely populated areas have generated concern among local residents about safety, noise, and pollution. Those liv- 2 “Of the three airports, National, as the Nation’s 14th busiest airport (1983), handles by far the most traffic. In 1983, these airports handled passenger volumes of: National, 14.2 million; Dulles, 2.9 million; and BWI, 5.2 million. Other measures of airport activity also indicate a much greater activity level at National. On a combined basis, the [airports] earned the Federal Government a profit of $11.4 million. This profit, however, is entirely the result of activity at National, as Dulles consistently operates at a deficit. BWI, which not long ago operated at a loss, is now a consistent money maker for Maryland.” CRS Report 2. WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 257 252 Opinion of the Court ing closest to the airport have provided the strongest support for proposals to close National or to transfer some of its operations to Dulles. See CRS Report 3. Despite the FAA’s history of profitable operation of National and excellent management of both airports, the Secretary of Transportation concluded that necessary capital improvements could not be financed for either National or Dulles unless control of the airports was transferred to a regional authority with power to raise money by selling tax-exempt bonds.3 In 1984, she therefore appointed an advisory commission to develop a plan for the creation of such a regional authority. Id., at 6. The Commission recommended that the proposed authority be created by a congressionally approved compact between Virginia and the District, and that its Board of Directors be composed of 11 members serving staggered 6-year terms, with 5 members to be appointed by the Governor of Virginia, 3 by the Mayor of the District, 2 by the Governor of Maryland, and 1 by the President, with the advice and consent of the Senate. See App. 17. Emphasizing the importance of a “non-political, independent authority,” the Commission recommended that members of the board “should not hold elective or appointive political office.” Ibid. To allay concerns that local interests would not be adequately represented, the Commission recommended a requirement that all 3 “There is no question that the daily management of the airports by the Metropolitan Washington Airports unit of FAA has been excellent. However, inclusion of the airports in the unified Federal budget has generally stymied most efforts to improve or expand facilities at either airport to keep pace with the growing commercial and air travel needs of the Washington area. No major capital projects have been financed at either airport from Federal appropriations since the construction of Dulles in the early 1960’s. Given the continuing need to limit federal expenditures to reduce Federal deficits, it is unlikely that any significant capital improvements could be undertaken at the airports in the foreseeable future.” S. Rep. No. 99-193, p. 2 (1985). 258 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. board members except the Presidential appointee reside in the Washington metropolitan area. Ibid. In 1985, Virginia and the District both passed legislation authorizing the establishment of the recommended regional authority. See 1985 Va. Acts, ch. 598; 1985 D. C. Law 6-67. A bill embodying the advisory commission’s recommendations passed the Senate. See 132 Cong. Rec. 7263-7281 (1986). In the House of Representatives, however, the legislation encountered strong opposition from Members who expressed concern that the surrender of federal control of the airports might result in the transfer of a significant amount of traffic from National to Dulles. See Hearings on H. R. 2337, H. R. 5040, and S. 1017 before the Subcommittee on Aviation of the House Committee on Public Works and Transportation, 99th Cong., 2d Sess., 1-3, 22 (1986). Substitute bills were therefore drafted to provide for the establishment of a review board with veto power over major actions of MWAA’s Board of Directors. Under two of the proposals, the board of review would clearly have acted as an agent of the Congress. After Congress received an opinion from the Department of Justice that a veto of MWAA action by such a board of review “would plainly be legislative action that must conform to the requirements of Article 1, section 7 of the Constitution,”4 the Senate adopted a version of the re- 4 “Two of the suggestions made by the staff would present substantial constitutional problems. The first of these proposals would create a ‘Federal Board of Directors,’ consisting of three members of the House, appointed by the Speaker, three members of the Senate, appointed by the President pro tempore, and the Comptroller General. As proposed, this Federal Board would clearly be unconstitutional. In reality the Federal Board would be no more than a committee of Congress plus the Comptroller General—who is clearly a legislative officer. This committee would be authorized by the bill to veto certain types of actions otherwise within the Airports Authority’s power under applicable state law. In the absence of the Federal Board, the Airports Authority could implement those decisions without further review or approval. Disapproval by the Federal Board of a particular action would thus have ‘the purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the Legislative WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 259 252 Opinion of the Court view board that required Members of Congress to serve in their individual capacities as representatives of users of the airports. See 132 Cong. Rec. 28372-28375, 28504, 28521-28525 (1986). The provision was further amended in the House, id., at 32127-32144, and the Senate concurred, id., at 32483. Ultimately, § 2456(f) of the Transfer Act, as enacted, defined the composition and powers of the Board of Review in much greater detail than the Board of Directors. Compare 49 U. S. C. App. § 2456(f) with § 2456(e). Subparagraph (1) of § 2456(f) specifies that the Board of Review “shall consist” of nine Members of the Congress, eight of whom serve on committees with jurisdiction over transportation issues and none of whom may be a Member from Maryland, Virginia, or the District of Columbia.5 Sub * 6 Branch,’ INS v. Chadha, 462 U. S. 919, 952 (1983), and would plainly be legislative action that must conform to the requirements of Article 1, section 7 of the Constitution: passage by both Houses and approval by the President. Id. at 954-955. Congress cannot directly vest the Federal Board with authority to veto decisions made by the Airports Authority any more than it can authorize one House, one committee, or one officer to overturn the Attorney General’s decision to allow a deportable alien to remain in the United States, to reject rules implemented by an executive agency pursuant to delegated authority, to dictate mandatory budget cuts to be made by the President, or to overturn any decision made by a state agency.” App. 26-27 (footnotes omitted). 6 “The board of directors shall be subject to review of its actions and to requests, in accordance with this subsection, by a Board of Review of the Airports Authority. Such Board of Review shall be established by the board of directors and shall consist of the following, in their individual capacities, as representatives of users of the Metropolitan Washington Airports: “(A) two members of the Public Works and Transportation Committee and two members of the Appropriations Committee of the House of Representatives from a list provided by the Speaker of the House; “(B) two members of the Commerce, Science, and Transportation Committee and two members of the Appropriations Committee of the Senate from a list provided by the President pro tempore of the Senate; and “(C) one member chosen alternatively from members of the House of Representatives and members of the Senate, from a list provided by 260 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. paragraph (4)(B) details the actions that must be submitted to the Board of Review for approval, which include adoption of a budget, authorization of bonds, promulgation of regulations, endorsement of a master plan, and appointment of the chief executive officer of the Authority.6 6 Subparagraph (4)(D) explains that disapproval by the Board will prevent submitted actions from taking effect.7 Other significant provisions of the Act include subparagraph (5), which authorizes the Board of Review to require Authority directors to consider any action relating to the airports;8 subsection (g), which requires that any action changing the hours of operation at either National or Dulles be taken by regulation and therefore be subject to veto by the Board of Review;9 and the Speaker of the House or the President pro tempore of the Senate, respectively. “The members of the Board of Review shall elect a chairman. A member of the House of Representatives or the Senate from Maryland or Virginia and the Delegate from the District of Columbia may not serve on the Board of Review.” 49 U. S. C. App. § 2456(f)(1). 6 “The following are the actions referred to in subparagraph (A): “(i) the adoption of an annual budget; “(ii) the authorization for the issuance of bonds; “(iii) the adoption, amendment, or repeal of a regulation; “(iv) the adoption or revision of a master plan, including any proposal for land acquisition; and “(v) the appointment of the chief executive officer.” § 2456(f)(4)(B). 7 “An action disapproved under this paragraph shall not take effect. Unless an annual budget for a fiscal year has taken effect in accordance with this paragraph, the Airports Authority may not obligate or expend any money in such fiscal year, except for (i) debt service on previously authorized obligations, and (ii) obligations and expenditures for previously authorized capital expenditures and routine operating expenses.” § 2456(f)(4)(D). 8 “The Board of Review may request the Airports Authority to consider and vote, or to report, on any matter related to the Metropolitan Washington Airports. Upon receipt of such a request the Airports Authority shall consider and vote, or report, on the matter as promptly as feasible.” § 2456(f)(5). 9 “Any action of the Airports Authority changing, or having the effect of changing, the hours of operation of or the type of aircraft serving either of WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 261 252 Opinion of the Court subsection (h), which contains a provision disabling MWAA’s Board of Directors from performing any action subject to the veto power if a court should hold that the Board of Review provisions of the Act are invalid.10 On March 2, 1987, the Secretary of Transportation and MWAA entered into a long-term lease complying with all of the conditions specified in the then recently enacted Transfer Act. See App. to Pet. for Cert. 163a-187a. The lease provided for a 50-year term and annual rental payments of $3 million “in 1987 dollars.” Zd., at 170a, 178a. After the lease was executed, MWAA’s Board of Directors adopted bylaws providing for the Board of Review, id., at 151a-154a, and Virginia and the District of Columbia amended their legislation to give MWAA power to establish the Board of Review, 1987 Va. Acts, ch. 665; 1987 D. C. Law 7-18. On September 2,1987, the directors appointed the nine members of the Board of Review from lists that had been submitted by the Speaker of the House of Representatives and the President pro tempore of the Senate. App. 57-58. On March 16, 1988, MWAA’s Board of Directors adopted a master plan providing for the construction of a new terminal at National with gates capable of handling larger aircraft, an additional taxiway turnoff to reduce aircraft time on the runway and thereby improve airport capacity, a new dual-level roadway system, and new parking facilities. Id., at 70-71, 89-91. On April 13, the Board of Review met and voted not to disapprove the master plan. Id., at 73-78. II In November 1988, Citizens for the Abatement of Aircraft Noise, Inc., and two individuals who reside under flight the Metropolitan Washington Airports may be taken only by regulation of the Airports Authority.” § 2456(g). 10 “If the Board of Review established under subsection (f) of this section is unable to carry out its functions under this subchapter by reason of a judicial order, the Airports Authority shall have no authority to perform any of the actions that are required by paragraph (f)(4) of this section to be submitted to the Board of Review.” § 2456(h). 262 OCTOBER TERM, 1990 501 U. S. Opinion of the Court paths of aircraft departing from, and arriving at, National (collectively CAAN) brought this action. CAAN sought a declaration that the Board of Review’s power to veto actions of MWAA’s Board of Directors is unconstitutional and an injunction against any action by the Board of Review as well as any action by the Board of Directors that is subject to Board of Review approval. Id., at 10. The complaint alleged that most of the members of CAAN live under flight paths to and from National and that CAAN’s primary purpose is to develop and implement a transportation policy for the Washington area that would include balanced service among its three major airports, thus reducing the operations at National and alleviating noise, safety, and air pollution problems associated with such operations. Id., at 4. The complaint named MWAA and its Board of Review as defendants. Id., at 5. The District Court granted the defendants’ motion for summary judgment. 718 F. Supp. 974 (DC 1989). As a preliminary matter, however, the court held that plaintiffs had standing to maintain the action for two reasons:11 first, because the master plan will facilitate increased activity at National that is harmful to plaintiffs, and second, because the composition of the Board of Review diminishes the influence of CAAN on airport user issues since local congressmen and senators are ineligible for service on the Board. Id., at 980-982. On the merits, the District Court concluded that there was no violation of the doctrine of separation of powers because the members of the Board of Review acted in their individual capacities as representatives of airport users, and therefore the Board was not an agent of Congress. Id., at 985. Moreover, the Board’s powers were derived from the legislation enacted by Virginia and the District, as implemented by MWAA’s bylaws, rather than from the Transfer 11 The District Court also rejected the arguments that the case was not ripe for review and that plaintiffs had failed to exhaust administrative remedies. 718 F. Supp., at 979-980. WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 263 252 Opinion of the Court Act. Id., at 986. “In short, because Congress exercises no federal power under the Act, it cannot overstep its constitutionally-designated bounds.” Ibid. A divided panel of the Court of Appeals for the District of Columbia Circuit reversed. 286 U. S. App. D. C. 334, 917 F. 2d 48 (1990). The court agreed that plaintiffs had standing because they had alleged a distinct and palpable injury that was “fairly traceable” to the implementation of the master plan and a favorable ruling would prevent MWAA from implementing that plan. Id., at 339, 917 F. 2d, at 53. On the merits, the majority concluded that it was “wholly unrealistic to view the Board of Review as solely a creature of state law immune to separation-of-powers scrutiny” because it was federal law that had required the establishment of the Board and defined its powers. Id., at 340, 917 F. 2d, at 54. It held that the Board was “in essence a congressional agent” with disapproval powers over key operational decisions that were “quintessentially executive,” id., at 343, 917 F. 2d, at 57, and therefore violated the separation of powers, ibid. The dissenting judge, emphasizing the importance of construing federal statutes to avoid constitutional questions when fairly possible, concluded that the Board of Review should not be characterized as a federal entity but that, even if it were so characterized, its members could, consistent with the Constitution, serve in their individual capacities even though they were Members of Congress. Id., at 345-347, 917 F. 2d, at 59-61. Because of the importance of the constitutional question, we granted MWAA’s petition for certiorari. 498 U. S. 1045-1046 (1991). Although the United States intervened in the Court of Appeals to support the constitutionality of the Transfer Act, see 28 U. S. C. § 2403(a), the United States did not join in MWAA’s petition for certiorari. As a respondent in this Court pursuant to this Court’s Rule 12.4, the United 264 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. States has again taken the position that the Transfer Act is constitutional.12 Ill Petitioners (MWAA and the Board of Review) renew the challenge to respondents’ standing that was rejected by the District Court and the Court of Appeals. To establish standing, respondents “must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S. 737, 751 (1984). Petitioners argue that respondents’ asserted injuries are caused by factors independent of the Board of Review’s veto power and that the injuries will not be cured by invalidation of the Board of Review. We believe that petitioners are mistaken. Respondents alleged that the master plan allows increased air traffic at National and a consequent increase in accident risks, noise, and pollution. App. 10. “For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint.” Warth v. Seldin, 422 U. S. 490, 501 (1975). If we accept that the master plan’s provisions will result in increased noise, pollution, and danger of accidents, 12 Rule 12.4 provides that “[a]ll parties to the proceeding in the court whose judgment is sought to be reviewed shall be deemed parties in this Court, unless the petitioner notifies the Clerk of this Court in writing of the petitioner’s belief that one or more of the parties below has no interest in the outcome of the petition. . . . All parties other than petitioners shall be respondents. ...” Even though the United States is technically a respondent under Rule 12.4, we shall use the term “respondents” to refer solely to plaintiffs. The United States does not support the position taken by petitioners and the dissent. The United States argues that “[i]f the exercise of state authority were sufficient in itself to validate a statutorily imposed condition like the one in this case, a massive loophole in the separation of powers would be opened.” Brief for United States 31. According to the United States, the condition in this case is constitutional only because “there is here a reasonable basis for the appointment of Members of Congress fin their individual capacities.’” Id., at 33. WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 265 252 Opinion of the Court this “personal injury” to respondents is “fairly traceable” to the Board of Review’s veto power because knowledge that the master plan was subject to the veto power undoubtedly influenced MWAA’s Board of Directors when it drew up the plan. Because invalidation of the veto power will prevent the enactment of the master plan, see 49 U. S. C. App. § 2456(h), the relief respondents have requested is likely to redress their alleged injury. Moreover, the harm respondents have alleged is not confined to the consequences of a possible increase in the level of activity at National. The harm also includes the creation of an impediment to a reduction in that activity. See App. 8. The Board of Review was created by Congress as a mechanism to preserve operations at National at their present level, or at a higher level if possible. See supra, at 258. The Board of Review and the master plan, which even petitioners acknowledge is at a minimum “noise neutral,” Brief for Petitioners 37-38, therefore injure CAAN by making it more difficult for CAAN to reduce noise and activity at National.13 IV Petitioners argue that this case does not raise any separation-of-powers issue because the Board of Review neither exercises federal power nor acts as an agent of Congress. Examining the origin and structure of the Board, we conclude that petitioners are incorrect. 13 In the lower courts, petitioners also challenged this action on ripeness grounds. Although petitioners do not press this issue on appeal, it concerns our jurisdiction under Article III, so we must consider the question on our own initiative. See Liberty Mut. Ins. Co. v. Wetzel, 424 U. S. 737, 740 (1976). We have no trouble concluding, however, that a challenge to the Board of Review’s veto power is ripe even if the veto power has not been exercised to respondents’ detriment. The threat of the veto hangs over the Board of Directors like the sword over Damocles, creating a “here-and-now subservience” to the Board of Review sufficient to raise constitutional questions. See Bowsher v. Synar, 478 U. S. 714, 727, n. 5 (1986). 266 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Petitioners lay great stress on the fact that the Board of Review was established by the bylaws of MWAA, which was created by legislation enacted by the Commonwealth of Virginia and the District of Columbia. Putting aside the unsettled question whether the District of Columbia acts as a State or as an agent of the Federal Government for separation-of-powers purposes, we believe the fact that the Board of Review was created by state enactments is not enough to immunize it from separation-of-powers review. Several factors combine to mandate this result. Control over National and Dulles was originally in federal hands, and was transferred to MWAA only subject to the condition that the States create the Board of Review. Congress placed such significance on the Board that it required that the Board’s invalidation prevent MWAA from taking any action that would have been subject to Board oversight. See 49 U. S. C. App. § 2456(h). Moreover, the Federal Government has a strong and continuing interest in the efficient operation of the airports, which are vital to the smooth conduct of Government business, especially to the work of Congress, whose Members must maintain offices in both Washington and the districts that they represent and must shuttle back and forth according to the dictates of busy and often unpredictable schedules. This federal interest was identified in the preamble to the Transfer Act,14 justified a Presidential appointee on the Board of Directors, and motivated the creation of the Board of Review, the structure and the powers of which Congress mandated in detail, see § 2456(f). Most sig- 14 “The Congress finds that— “(3) the Federal Government has a continuing but limited interest in the operation of the two federally owned airports, which serve the travel and cargo needs of the entire Metropolitan Washington region as well as the District of Columbia as the national seat of government.” 49 U. S. C. App. §2451. WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 267 252 Opinion of the Court nificant, membership on the Board of Review is limited to federal officials, specifically members of congressional committees charged with authority over air transportation. That the Members of Congress who serve on the Board nominally serve “in their individual capacities, as representatives of users” of the airports, § 2456(f)(1), does not prevent this group of officials from qualifying as a congressional agent exercising federal authority for separation-of-powers purposes. As we recently held, “separation-of-powers analysis does not turn on the labeling of an activity,” Mistretta v. United States, 488 U. S. 361, 393 (1989). The Transfer Act imposes no requirement that the Members of Congress who are appointed to the Board actually be users of the airports. Rather, the Act imposes the requirement that the Board members have congressional responsibilities related to the federal regulation of air transportation. These facts belie the ipse dixit that the Board members will act “in their individual capacities.” Although the legislative history is not necessary to our conclusion that the Board members act in their official congressional capacities, the floor debates in the House confirm our view. See, e. g., 132 Cong. Rec. 32135 (1986) (The bill “also provides for continuing congressional review over the major decisions of the new airport authority. A Congressional Board will still have veto power over the new airport authority’s: annual budget; issuance of bonds; regulations; master plan; and the naming of the Chief Executive Officer”) (Rep. Lehman); id., at 32136 (“In addition, the motion provides continued congressional control over both airports. Congress would retain oversight through a Board of Review made up of nine Members of Congress. This Board would have the right to overturn major decisions of the airport authority”) (Rep. Coughlin); id., at 32137 (“Under this plan, Congress retains enough control of the airports to deal with any unseen pitfalls resulting from this transfer of author 268 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. ity. . . . We are getting our cake and eating it too. . . . The beauty of the deal is that Congress retains its control without spending a dime”) (Rep. Smith); id., at 32141 (“There is, however, a congressional board which is established by this. . . . [T]hat board has been established to make sure that the Nation’s interest, the congressional interest was attended to in the consideration of how these two airports are operated”) (Rep. Hoyer); id., at 32142 (The bill does “not give up congressional control and oversight—that remains in a Congressional Board of review”) (Rep. Conte); id., at 32143 (“I understand that one concern of Members is that by leasing these airports to a local authority, we would be losing control over them. But, in fact, under this bill exactly the opposite is true. We will have more control than before”) (Rep. Hammer schmidt). Congress as a body also exercises substantial power over the appointment and removal of the particular Members of Congress who serve on the Board. The Transfer Act provides that the Board “shall consist” of “two members of the Public Works and Transportation Committee and two members of the Appropriations Committee of the House of Representatives from a list provided by the Speaker of the House,” “two members of the Commerce, Science, and Transportation Committee and two members of the Appropriations Committee of the Senate from a list provided by the President pro tempore of the Senate,” and “one member chosen alternately . . . from a list provided by the Speaker of the House or the President pro tempore of the Senate, respectively.” 49 U. S. C. App. § 2456(f)(1). Significantly, appointments must be made from the lists, and there is no requirement that the lists contain more recommendations than the number of Board openings. Cf. 28 U. S. C. § 991(a) (Sentencing Reform Act upheld in Mistretta required only that the President “conside[r]” the recommendations of the Judicial Conference); 31 U. S. C. § 703(a) (Congressional WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 269 252 Opinion of the Court Commission only “recommend[s]” individuals for selection as Comptroller General). The list system, combined with congressional authority over committee assignments, guarantees Congress effective control over appointments. Control over committee assignments also gives Congress effective removal power over Board members because depriving a Board member of membership in the relevant committees deprives the member of authority to sit on the Board. See 49 U. S. C. App. § 2456(f)(1) (Board “shall consist” of relevant committee members).15 We thus confront an entity created at the initiative of Congress, the powers of which Congress has delineated, the purpose of which is to protect an acknowledged federal interest, and membership in which is restricted to congressional officials. Such an entity necessarily exercises sufficient federal power as an agent of Congress to mandate separation-of-powers scrutiny. Any other conclusion would permit Congress to evade the “carefully crafted” constraints of the Constitution, INS v. Chadha, 462 U. S. 919, 959 (1983), simply by delegating primary responsibility for execution of national 16 16 Thus, whether or not the statute gives MWAA formal appointment and removal power over the Board of Review is irrelevant. Also irrelevant for separation-of-powers purposes is the likelihood that Congress will discipline Board members by depriving them of committee membership. See Bowsher, 478 U. S., at 730 (rejecting relevance of likelihood that Congress would actually remove the Comptroller General). The dissenting judge on the Court of Appeals suggested that a constitutional problem could be avoided by reading the statute’s requirement that Board members be members of particular congressional committees as applying only at the time of appointment. See 286 U. S. App. D. C. 334, 347, 917 F. 2d 48, 61 (1990) (Mikva, J., dissenting). We do not dispute that statutes should be interpreted, if possible, to avoid constitutional difficulties. See, e. g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568, 575 (1988). However, the statutory language unambiguously requires that the Board of Review “shall consist” of members of certain congressional committees. The Transfer Act cannot fairly be read to impose this requirement only at the time of appointment. 270 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. policy to the States, subject to the veto power of Members of Congress acting “in their individual capacities.” Cf. Bowsher v. Synar, 478 U. S., at 755 (Stevens, J., concurring in judgment).16 Petitioners contend that the Board of Review should nevertheless be immune from scrutiny for constitutional defects because it was created in the course of Congress’ exercise of its power to dispose of federal property. See U. S. Const., Art. IV, §3, cl. 2.16 17 In South Dakota v. Dole, 483 U. S. 203 (1987), we held that a grant of highway funds to a State conditioned on the State’s prohibition of the possession of alcoholic beverages by persons under the age of 21 was a lawful exercise of Congress’ power to spend money for the general welfare. See U. S. Const., Art. I, §8, cl. 1. Even assuming that “Congress might lack the power to impose a national minimum drinking age directly,” we held that this indirect “encouragement to state action” was a valid use of the spending power. Dole, 483 U. S., at 212. We thus concluded that Congress could endeavor to accomplish the federal objective of regulating the national drinking age by the indirect use of the spending power even though that regulatory au- 16 Petitioners and the United States both place great weight on the fact that the Framers at the Constitutional Convention expressly rejected a constitutional provision that would have prohibited an individual from holding both state and federal office. Brief for Petitioners 15; Brief for United States 21-23. The Framers apparently were concerned that such a prohibition would limit the pool of talented citizens to one level of government or the other. See 1 M. Farrand, Records of the Federal Convention of 1787, pp. 20-21, 217, 386, 389, 428-429 (1911). Neither petitioners nor the United States, however, point to any endorsement by the Framers of offices that are nominally created by the State but for which concurrent federal office is a prerequisite. 17U. S. Const., Art. IV, §3, cl. 2, provides in relevant part: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 271 252 Opinion of the Court thority would otherwise be a matter within state control pursuant to the Twenty-first Amendment.18 Our holding in Dole did not involve separation-of-powers principles. It concerned only the allocation of power between the Federal Government and the States. Our reasoning that, absent coercion, a sovereign State has both the incentive and the ability to protect its own rights and powers, and therefore may cede such rights and powers, see id., at 210-211, is inapplicable to the issue presented by this case. Here, unlike Dole, there is no question about federal power to operate the airports. The question is whether the maintenance of federal control over the airports by means of the Board of Review, which is allegedly a federal instrumentality, is invalid, not because it invades any state power, but because Congress’ continued control violates the separation-of-powers principle, the aim of which is to protect not the States but “the whole people from improvident laws.” Chadha, 462 U. S., at 951. Nothing in our opinion in Dole implied that a highway grant to a State could have been conditioned on the State’s creating a “Highway Board of Review” composed of Members of Congress. We must therefore consider whether the powers of the Board of Review may, consistent with the separation of powers, be exercised by an agent of Congress. V Because National and Dulles are the property of the Federal Government and their operations directly affect inter 18U. S. Const., Amdt. 21, provides: “Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. “Sec. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. “Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.” 272 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. state commerce, there is no doubt concerning the ultimate power of Congress to enact legislation defining the policies that govern those operations. Congress itself can formulate the details, or it can enact general standards and assign to the Executive Branch the responsibility for making necessary managerial decisions in conformance with those standards. The question presented is only whether the Legislature has followed a constitutionally acceptable procedure in delegating decisionmaking authority to the Board of Review. The structure of our Government as conceived by the Framers of our Constitution disperses the federal power among the three branches—the Legislative, the Executive, and the Judicial—placing both substantive and procedural limitations on each. The ultimate purpose of this separation of powers is to protect the liberty and security of the governed. As former Attorney General Levi explained: “The essence of the separation of powers concept formulated by the Founders from the political experience and philosophy of the revolutionary era is that each branch, in different ways, within the sphere of its defined powers and subject to the distinct institutional responsibilities of the others is essential to the liberty and security of the people. Each branch, in its own way, is the people’s agent, its fiduciary for certain purposes. “Fiduciaries do not meet their obligations by arrogating to themselves the distinct duties of their master’s other agents.” Levi, Some Aspects of Separation of Powers, 76 Colum. L. Rev. 385-386 (1976). Violations of the separation-of-powers principle have been uncommon because each branch has traditionally respected the prerogatives of the other two. Nevertheless, the Court has been sensitive to its responsibility to enforce the principle when necessary. WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 273 252 Opinion of the Court “Time and again we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches. See, e. g., Bowsher v. Synar, 478 U. S., at 725 (citing Humphrey’s Executor, 295 U. S., at 629-630). As we stated in Buckley v. Valeo, 424 U. S. 1 (1976), the system of separated powers and checks and balances established in the Constitution was regarded by the Framers as ‘a selfexecuting safeguard against the encroachment or aggrandizement of one branch at the expense of the other.’ Id., at 122. We have not hesitated to invalidate provisions of law which violate this principle. See id., at 123.” Morrison v. Olson, 487 U. S. 654, 693 (1988). The abuses by the monarch recounted in the Declaration of Independence provide dramatic evidence of the threat to liberty posed by a too powerful executive. But, as James Madison recognized, the representatives of the majority in a democratic society, if unconstrained, may pose a similar threat: “It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. “The founders of our republics . . . seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations; which by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. . . . [It] is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all their precautions. “The legislative department derives a superiority in our governments from other circumstances. Its con 274 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. stitutional powers being at once more extensive and less susceptible of precise limits, it can with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real-nicety in legislative bodies, whether the operation of a particular measure, will, or will not extend beyond the legislative sphere.” The Federalist No. 48, pp. 332-334 (J. Cooke ed. 1961). To forestall the danger of encroachment “beyond the legislative sphere,” the Constitution imposes two basic and related constraints on the Congress. It may not “invest itself or its Members with either executive power or judicial power.” J. W. Hampton, Jr., & Co. n. United States, 276 U. S. 394, 406 (1928). And, when it exercises its legislative power, it must follow the “single, finely wrought and exhaustively considered, procedures” specified in Article I. INS v. Chadha, 462 U. S., at 951.19 The first constraint is illustrated by the Court’s holdings in Springer n. Philippine Islands, 277 U. S. 189 (1928), and Bowsher v. Synar, 478 U. S. 714 (1986). Springer involved the validity of Acts of the Philippine Legislature that authorized a committee of three—two legislators and one executive—to vote corporate stock owned by the Philippine Government. Because the Organic Act of the Philippine Islands incorporated the separation-of-powers principle, and because the challenged statute authorized two legislators to perform 19 “As we emphasized in Chadha, when Congress legislates, when it makes binding policy, it must follow the procedures prescribed in Article I. Neither the unquestioned urgency of the national budget crisis nor the Comptroller General’s proud record of professionalism and dedication provides a justification for allowing a congressional agent to set policy that binds the Nation. Rather than turning the task over to its agent, if the Legislative Branch decides to act with conclusive effect, it must do so through a process akin to that specified in the fallback provision—through enactment by both Houses and presentment to the President.” Bowsher, 478 U. S., at 757-759 (Stevens, J., concurring in judgment). WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 275 252 Opinion of the Court the executive function of controlling the management of the government-owned corporations, the Court held the statutes invalid. Our more recent decision in Bowsher involved a delegation of authority to the Comptroller General to revise the federal budget. After concluding that the Comptroller General was in effect an agent of Congress, the Court held that he could not exercise executive powers: “To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. . . . The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.” Bowsher, 478 U. S., at 726. The second constraint is illustrated by our decision in Chadha. That case involved the validity of a statute that authorized either House of Congress by resolution to invalidate a decision by the Attorney General to allow a deportable alien to remain in the United States. Congress had the power to achieve that result through legislation, but the statute was nevertheless invalid because Congress cannot exercise its legislative power to enact laws without following the bicameral and presentment procedures specified in Article I. For the same reason, an attempt to characterize the budgetary action of the Comptroller General in Bowsher as legislative action would not have saved its constitutionality because Congress may not delegate the power to legislate to its own agents or to its own Members.20 Respondents rely on both of these constraints in their challenge to the Board of Review. The Court of Appeals found it unnecessary to discuss the second constraint because the 20 “If Congress were free to delegate its policymaking authority to one of its components, or to one of its agents, it would be able to evade ‘the carefully crafted restraints spelled out in the Constitution.’ [Chadha, 462 U. S.,] at 959.” Bowsher, 478 U. S., at 755 (Stevens, J., concurring in judgment). 276 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. court was satisfied that the power exercised by the Board of Review over “key operational decisions is quintessentially executive.” 286 U. S. App. D. C., at 342, 917 F. 2d, at 56. We need not agree or disagree with this characterization by the Court of Appeals to conclude that the Board of Review’s power is constitutionally impermissible. If the power is executive, the Constitution does not permit an agent of Congress to exercise it. If the power is legislative, Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7. In short, when Congress “[takes] action that ha[s] the purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the Legislative Branch,” it must take that action by the procedures authorized in the Constitution. See Chadha, 462 U. S., at 952-955.21 One might argue that the provision for a Board of Review is the kind of practical accommodation between the Legislature and the Executive that should be permitted in a “workable government.”22 Admittedly, Congress imposed its will on the regional authority created by the District of Columbia and the Commonwealth of Virginia by means that are unique 21 The Constitution does permit Congress or a part of Congress to take some actions with effects outside the Legislative Branch by means other than the provisions of Art. I, § 7. These include at least the power of the House alone to initiate impeachments, Art. I, § 2, cl. 5; the power of the Senate alone to try impeachments, Art. I, § 3, cl. 6; the power of the Senate alone to approve or disapprove Presidential appointments, Art. II, § 2, cl. 2; and the power of the Senate alone to ratify treaties, Art. II, § 2, cl. 2. See also Art. II, § 1, and Arndt. 12 (congressional role in Presidential election process); Art. V (congressional role in amendment process). Moreover, Congress can, of course, manage its own affairs without complying with the constraints of Art. I, §7. See Chadha, 462 U. S., at 954, n. 16; Bowsher, 478 U. S., at 753-756 (Stevens, J., concurring in judgment). 22 “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring). WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 277 252 White, J., dissenting and that might prove to be innocuous. However, the statutory scheme challenged today provides a blueprint for extensive expansion of the legislative power beyond its constitutionally confined role. Given the scope of the federal power to dispense benefits to the States in a variety of forms and subject to a host of statutory conditions, Congress could, if this Board of Review were valid, use similar expedients to enable its Members or its agents to retain control, outside the ordinary legislative process, of the activities of state grant recipients charged with executing virtually every aspect of national policy. As James Madison presciently observed, the legislature “can with greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” The Federalist No. 48, at 334. Heeding his warning that legislative “power is of an encroaching nature,” we conclude that the Board of Review is an impermissible encroachment.23 The judgment of the Court of Appeals is affirmed. It is so ordered. Justice White, with whom The Chief Justice and Justice Marshall join, dissenting. Today the Court strikes down yet another innovative and otherwise lawful governmental experiment in the name of separation of powers. To reach this result, the majority must strain to bring state enactments within the ambit of a doctrine hitherto applicable only to the Federal Government and strain again to extend the doctrine even though both Congress and the Executive argue for the constitutionality of 28 Because we invalidate the Board of Review under basic separation-of-powers principles, we need not address respondents’ claim that Members of Congress serve on the Board in violation of the Incompatibility and Ineligibility Clauses. See U. S. Const., Art. I, § 6. We also express no opinion on whether the appointment process of the Board of Review contravenes the Appointments Clause, U. S. Const., Art. II, §2, cl. 2. 278 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. the arrangement which the Court invalidates. These efforts are untenable because they violate the “‘cardinal principle that this Court will first ascertain whether a construction of [a] statute is fairly possible by which the [constitutional] question may be avoided.’” Ashwander v. TVA, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring), (quoting Crowell v. Benson, 285 U. S. 22, 62 (1932)). They are also untenable because the Court’s separation-of-powers cases in no way compel the decision the majority reaches. I For the first time in its history, the Court employs separation-of-powers doctrine to invalidate a body created under state law. The majority justifies this unprecedented step on the ground that the Board of Review “exercises sufficient federal power ... to mandate separation-of-powers scrutiny.” Ante, at 269. This conclusion follows, it is claimed, because the Board, as presently constituted, would not exist but for the conditions set by Congress in the Metropolitan Washington Airports Act of 1986 (Transfer Act), 49 U. S. C. App. § 2456(h)(1). This unprecedented rationale is insufficient on at least two counts. The Court’s reasoning fails first because it ignores the plain terms of every instrument relevant to this case. The Court further errs because it also misapprehends the nature of the Transfer Act as a lawful exercise of congressional authority under the Property Clause. U. S. Const., Art. IV, §3, cl. 2. A Both the Airports Authority (Authority) and the Board are clearly creatures of state law. The Authority came into being exclusively by virtue of acts passed by the Commonwealth of Virginia, 1985 Va. Acts, ch. 598, §2, and the District of Columbia, 1985 D. C. Law 6-67, §3? These en- 1 The District of Columbia, of course, is not a State under the Constitution. See, e. g., Hepburn & Dundas v. Ellzey, 2 Cranch 445, 452-453 (1805). Nonetheless, neither respondents nor the Court of Appeals con- WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 279 252 White, J., dissenting actments expressly declared that the Authority would be a “public body corporate and politic . . . independent of all other bodies” with such powers as “conferred upon it by the legislative authorities of both the Commonwealth of Virginia and the District.” 1985 Va. Acts, ch. 598, §2; 1985 D. C. Law 6-67, § 3. The Transfer Act acknowledged that the Authority was to have only “the powers and jurisdiction as are conferred upon it jointly by the legislative authority of the Commonwealth of Virginia and the District of Columbia,” § 2456(a), and was to be “independent of the . . . Federal Government,” 49 U. S. C. App. § 2456(b)(1). Under the Transfer Act, the Secretary of Transportation and the Authority negotiated a lease that defined the powers and composition of the Board to be established. Lease, Art. 13, see App. to Pet. for Cert. 175a-176a. Even then, the Board could not come into existence until the state-created Authority adopted bylaws establishing it. Bylaws, Art. IV, see App. to Pet. for Cert. 151a-154a. To allay any doubt about the Board’s provenance, both Virginia and the District amended their enabling legislation to make explicit the Authority’s power to establish the Board under state law. See 1987 Va. Acts, ch. 665, §5.A.5; 1987 D. C. Law 7-18, § 3(c)(2). The specific features of the Board are consistent with its status as a state-created entity. As the Transfer Act and tend that the Authority is a federal entity because its derives its authority from a delegation by the District as well as Virginia. For the purposes of separation-of-powers limitations, the power that the District delegated to the Authority operates as the functional equivalent of state or local power. Cf. Key v. Doyle, 434 U. S. 59, 68, n. 13 (1977); District of Columbia v. John R. Thompson Co., 346 U. S. 100, 110 (1953). This conclusion follows with additional force since the District currently acts under “home rule” authority. See District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. 93-198, 87 Stat. 774 (1973). The majority does not suggest that the Authority’s partial District of Columbia parentage furnishes a basis for subjecting the Board to separation-of-powers analysis. Ante, at 266. 280 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. the lease contemplated, the bylaws provide that the Board consist of nine Members of Congress whom the Board of Directors would appoint. 49 U. S. C. App. § 2456(f)(1); Lease, Art. 13A, App. to Pet. for Cert. 175a; Bylaws, Art. IV, § 1, App. to Pet. for Cert. 151a. But, again as contemplated by both the Transfer Act and lease, the bylaws also make clear that the Members of Congress sit not as congressional agents but “in their individual capacities,” as “representatives of the users of the Metropolitan Washington Airports.” Ibid. To ensure that the Board members protect the interests of nationwide users, the bylaws further provide that Members of Congress from Virginia, Maryland, and the District of Columbia would be ineligible. Id., at 152a. As the Court has emphasized, “[gloing behind the plain language of a statute in search of a possibly contrary ... intent is ‘a step to be taken cautiously’ even under the best of circumstances.” American Tobacco Co. v. Patterson, 456 U. S. 63, 75 (1982) (quoting Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 26 (1977)). Nowhere should this caution be greater than where the Court flirts with embracing “serious constitutional problems” at the expense of “constru[ing a] statute to avoid such problems.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568, 575 (1988); see Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804) (Marshall, C. J.). The majority nonetheless offers three reasons for taking just these steps. First, control over the airports “was originally in federal hands,” and was transferred “only subject to the condition that the States create the Board.” Ante, at 266. Second, “the Federal Government has a strong and continuing interest in the efficient operation of the airports.” Ibid. Finally, and “[m]ost significant, membership on the Board of Review is limited to federal officials.” Ante, at 266-267. In other words, Congress, in effect, created a body that, in effect, discharges an ongoing interest of the Federal Govern- WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 281 252 White, J., dissenting ment through federal officials who, in effect, serve as congressional agents. This picture stands in stark contrast to that drawn in each of the applicable enactments and agreements which, as noted, establish a state-created authority given the power to create a body to safeguard the interests of nationwide travelers by means of federal officials serving in their individual capacities. We have, to be sure, held that separation-of-powers analysis “does not turn on the labeling of an activity,” but instead looks to “practical consequences,” Mistretta v. United States, 488 U. S. 361, 393 (1989). This observation, however, does not give the Court a license to supplant the careful work of the Authority, Virginia, the District, the Federal Executive, and Congress with its own in-house punditry. This is especially so when the instruments under consideration do not merely “label” but detail an arrangement in which any unconstitutional consequences are pure speculation. As an initial matter, the Board may not have existed but for Congress, but it does not follow that Congress created the Board or even that Congress’ role is a “factor” mandating separation-of-powers scrutiny. Congressional suggestion does not render subsequent independent state actions federal ones. Aside from the clear statutory language, the majority’s conclusion ignores the entire series of voluntary and intervening actions, agreements, and enactments on the part of the Federal Executive, Virginia, the District, and the Authority, without which the Transfer Act would have been a nullity and the Board of Review would not have existed. Congress commonly enacts conditional transfers of federal resources to the States. See, e. g., Fullilove v. Klutznick, 448 U. S. 448, (1980); Lau v. Nichols, 414 U. S. 563 (1974); Steward Machine Co. n. Davis, 301 U. S. 548 (1937). Separation-of-powers doctrine would know few bounds if such transfers compelled its application to the state enactments that result. 282 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. Likewise, nothing charges the Board with oversight of any strong and continuing interest of the Federal Government, much less with conducting such oversight as an agent of Congress. Despite disclaimers, the majority is quick to point to portions of the legislative history in which various Members of Congress state their belief that the Board would ensure congressional control over the airports. Ante, at 267-268. But that is not all the legislative history contains. Other statements support the declaration in all the relevant enactments that Members of Congress are to sit on a state-created body in their individual capacities to safeguard the interests of frequent, nationwide users. On this point Members of the House, the Senate, and the Executive agreed. Representative Hammerschmidt, for example, stated that the purpose of a “board of review composed of Congressmen is ... to protect the interests of all users of the two airports.” 132 Cong. Rec. 32143 (1986). Senator Kassebaum contended that Members of Congress could further this purpose since, “[m]ost Members are intensely interested in the amount of service to and from certain cities, from both National and Dulles.” Id., at 6069. Secretary of Transportation Dole echoed these sentiments, testifying that “Members of Congress are heavy users of the air transportation system.” Hearing on H. R. 2337, H. R. 5040, and S. 1017 before the Subcommittee on Aviation of the House Committee on Public Works and Transportation, 99th Cong., 2d Sess., 110 (1986). Considered as a creature of state law, the Board offends no constitutional provision or doctrine. The Court does not assert that congressional membership on a state-created entity, without more, violates the Incompatibility or Ineligibility Clauses. U. S. Const., Art. I, §6, cl. 2. By their express terms, these provisions prohibit Members of Congress from serving in another federal office. They say nothing to bar congressional service in state or state-created offices. To the contrary, the Framers considered and rejected such a bar. 1 M. Farrand, Records of the Federal Convention of WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 283 252 White, J., dissenting 1787, pp. 20-21, 217, 386, 389, 428-429 (1966 ed.). As Roger Sherman observed, maintaining a state-ineligibility requirement would amount to “erecting a Kingdom at war with itself.” Id., at 386. The historical practice of the First Congress confirms the Conventions sentiments, insofar as several Members simultaneously sat as state legislators and judges. See, e. g., Biographical Directory of the United States Congress, 1774-1989, pp. 748, 1389, 1923 (1989). As the Court has held, actions by Members of the First Congress provide weighty evidence on the Constitution’s meaning. Bowsher v. Synar, 478 U. S. 714, 723-724 (1986). Constitutional text and history leave no question but that Virginia and the District of Columbia could constitutionally agree to pass reciprocal legislation creating a body to which nonfederal officers would appoint Members of Congress functioning in their individual capacities. No one in this case contends otherwise. B The Court’s haste to extend separation-of-powers doctrine is even less defensible in light of the federal statute on which it relies. Far from transforming the Board into a federal entity, the Transfer Act confirms the Board’s constitutionality inasmuch as that statute is a legitimate exercise of congressional authority under the Property Clause. U. S. Const., Art. IV, § 3, cl. 2. To overlook this fact the Court must once again ignore plain meaning, this time the plain meaning of the Court’s controlling precedent regarding Congress’ coextensive authority under the Spending Clause. Ibid. As the majority acknowledges, in South Dakota v. Dole, 483 U. S. 203 (1987), the Court held that Congress could condition a grant of federal funds to a State on the State’s raising the drinking age to 21, even assuming that Congress did not have the power to mandate a minimum national drinking age directly. As the majority fails to acknowledge, the Court’s holding in no way turned on a State’s “incentive and . . . ability to protect its own rights and powers.” Ante, at 284 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. 271. Rather, the Court stated that Congress could exercise its spending authority so long as the conditional grant of funds did not violate an “‘independent constitutional bar.’” Dole, supra, at 209 (quoting Lawrence County v. Lead-Deadwood School Dist. No. 40-1, 469 U. S. 256, 269-270 (1985)). Dole defined this constraint as follows: “[T]he ‘independent constitutional bar’ limitation on the spending power is not ... a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly. Instead, we think that the language in our earlier opinions stands for the unexceptional proposition that the [spending] power may not be used to induce the States to engage in activities that would themselves be unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress’ broad spending power. . . . Were South Dakota to succumb to the blandishments offered by Congress and raise its drinking age to 21, the State’s action in so doing would not violate the constitutional rights of anyone.” 483 U. S., at 210-211 (emphasis added). Dole states only that Congress may not induce the States to engage in activities that would themselves have been unconstitutional in the absence of the inducement. The decision does not indicate that Congress can act only when its actions implicate “the allocation of power between the Federal Government and the States” ante, at 271, as opposed to principles, “the aim of which is to protect not the States but ‘the whole people from improvident laws.’” Ibid. Nor could it. In the context of 42 U. S. C. § 1983, the Court has rejected any broad distinction between constitutional provisions that allocate powers and those that affirm rights. Dennis n. Higgins, 498 U. S. 439, 447-448 (1991). The majority’s own application of its test to this case illustrates the difficulties in its position. The Court asserts that Dole cannot safeguard WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 285 252 White, J., dissenting the Board because separation-of-powers doctrine, ultimately, protects the rights of the people. By this logic, Dole itself would have had to come out the other way since the Twenty-first Amendment reinstated state authority over liquor, which in turn strengthened federalism, which in turn theoretically protects the rights of the people no less than separation-of-powers principles. See The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison). There is no question that Dole, when faithfully read, places the Board outside the scope of separation-of-powers scrutiny. As noted, no one suggests that Virginia and the District of Columbia could not have created a board of review to which nonfederal officers would appoint Members of Congress had Congress not offered any inducement to do so. The Transfer Act, therefore, did not induce the States to engage in activities that would themselves be unconstitutional. Nor is there any assertion that this case involves the rare circumstance in which “the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion’ ” Dole, supra, at 211 (quoting Steward Machine Co., 301 U. S., at 590). In Dole, Congress authorized the Secretary of Transportation to withdraw funding should the States fail to comply with certain conditions. Here, Congress merely indicated that federal control over National and Dulles Airports would continue given a failure to comply with certain conditions. Virginia and the District may sorely have wanted control over the airports for themselves. Placing conditions on a desire, however, does not amount to compulsion. Dole therefore requires precisely what the majority denies — the rejection of separation-of-powers doctrine as an “independent bar” against Congress conditioning the lease of federal property in this case.2 2 This is not to say that Congress could condition a grant of property on a state enactment consenting to the exercise of federal lawmaking powers that Congress or its individual Members could not exercise consistently with 286 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. II Even assuming that separation-of-powers principles apply, the Court can hold the Board to be unconstitutional only by extending those principles in an unwarranted fashion. The majority contends otherwise, reasoning that the Constitution requires today’s result whether the Board exercises executive or legislative power. Ante, at 274-276. Yet never before has the Court struck down a body on separation-of-powers grounds that neither Congress nor the Executive oppose. It is absurd to suggest that the Board’s power represents the type of “legislative usurpatio[n]. . . which, by assembling all power in the same hands . . . must lead to the same tyranny,” that concerned the Framers. The Federalist No. 48, supra, at 309-310 (J. Madison). More to the point, it is clear that the Board does not offend separation-of-powers principles either under our cases dealing with executive power or our decisions concerning legislative authority.3 A Based on its faulty premise that the Board is exercising federal power, the Court first reasons that “[i]f the [Board’s] power is executive, the Constitution does not permit an Article I. We do not have that situation here, for as explained, the Board does not exercise federal power. 8 For these reasons, the Court’s historical exposition is not entirely relevant. The majority attempts to clear the path for its decision by stressing the Framers’ fear of overweaning legislative authority. Ante, at 272-274. It cannot be seriously maintained, however, that the basis for fearing legislative encroachment has increased or even persisted rather than substantially diminished. At one point Congress may have reigned as the pre-eminant branch, much as the Framers predicted. See W. Wilson, Congressional Government 40-57 (1885). It does so no longer. This century has witnessed a vast increase in the power that Congress has transferred to the Executive. See INS v. Chadha, 462 U. S. 919, 968-974 (1983) (White, J., dissenting). Given this shift in the constitutional balance, the Framers’ fears of legislative tyranny ring hollow when invoked to portray a body like the Board as a serious encroachment on the powers of the Executive. WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 287 252 White, J., dissenting agent of Congress to exercise it.” Ante, at 276. The majority does not, however, rely on the constitutional provisions most directly on point. Under the Incompatibility and Ineligibility Clauses, Members of Congress may not serve in another office that is under the authority of the United States. U. S. Const., Art. I, §6, cl. 2. If the Board did exercise executive authority that is federal in nature, the Court would have no need to say anything other than that congressional membership on the Board violated these express constitutional limitations. The majority’s failure is either unaccountable or suggests that it harbors a certain discomfort with its own position that the Board in fact exercises significant federal power. Whichever is the case, the Court instead relies on expanding nontextual principles as articulated in Boushev n. Synar, 478 U. S. 714 (1986). Bowsher, echoing Springer v. Philippine Islands, 277 U. S. 189 (1928), held that the Constitution prevented legislative agents from exercising executive authority. Bowsher, supra, at 726. The Court asserts that the Board, again in effect, is controlled by Congress. The analysis the Court has hitherto employed to recognize congressional control, however, show this not to be the case. As Bowsher made clear, a “critical factor” in determining whether an official is “subservient to Congress” is the degree to which Congress maintains the power of removal. Bowsher, supra, at 727. Congress cannot “draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of” the removal of a federal executive officer. Myers v. United States, 272 U. S. 52, 161 (1926). Here Congress exercises no such power. Unlike the statutes struck down in Bowsher and Myers, the Transfer Act contains no provision authorizing Congress to discharge anyone from the Board. Instead, the only express mention of removal authority over Board members in any enactment occurs in resolutions passed by the Board of Directors under the bylaws. These resolutions provide that members of the 288 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. Board shall sit for fixed terms, but may be removed by the Board of Directors for cause. See Resolution No. 87-12 (June 3, 1987), App. 47-48; Resolution No. 87-27 (Sept. 2, 1987), App. 60. This arrangement is consistent with the settled principle that “the power of removal result[s] by a natural implication from the power of appointing.” 1 Annals of Cong. 496 (1789) (statement of Rep. Madison). See Carlucci v. Doe, 488 U. S. 93, 99 (1988); Myers, supra, at 119. The majority counters that Congress maintains “effective removal power over Board members because depriving a Board member of membership in [certain congressional] committees deprives the member of authority to sit on the Board.” Ante, at 269. This conclusion rests on the faulty premise that the Transfer Act requires the removal of a Board member once he or she leaves a particular committee. But the Act does not say this. Rather, it merely states that members of the Board “shall consist” of Members of Congress who sit in certain specified committees. 49 U. S. C. App. § 2456(f)(1). Moreover, the Act elsewhere provides that the standard term of service on the Board is six years. § 2456(f)(2). This term, which spans three Congresses, suggests that a Board member’s tenure need not turn on continuing committee or even congressional status. Nor, to date, has any member of the Board been removed for having lost a committee post. Tr. of Oral Arg. 11. Once again, the Court seizes upon a less plausible interpretation to reach a constitutional infirmity despite “‘[t]he elementary rule . . . that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’” DeBartolo Corp., 485 U. S., at 575 (quoting Hooper n. California, 155 U. S. 648, 657 (1895)); see Ashwander, 297 U. S., at 348. Nor has Congress improperly influenced the appointment process, which is ordinarily a less important factor in separation-of-powers analysis in any event. The Authority’s Bylaws, reflecting the lease and the Transfer Act, provide that the Board consist of two members each from the House WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 289 252 White, J., dissenting Appropriations Committee, the House Public Works Committee, the Senate Appropriations Committee, and the Senate Commerce, Science and Transportation Committee, as well as an additional Member from the House or Senate. Bylaws, Art. IV, § 4, App. to Pet. for Cert. 153a; see Lease, Art. 13A, App. to Pet. for Cert. 175a; 49 U. S. C. App. § 2456(f)(1). The Board of Directors appoints members from lists provided by the Speaker of the House and the President pro tempore of the Senate. To the majority, these provisions add up to impermissible congressional control. Our cases point to the opposite conclusion. Twice in recent Terms the Court has considered similar mechanisms without suggesting that they raised any constitutional concern. In Bowsher, the Court voiced no qualms concerning Presidential appointment of the Comptroller General from a list of three individuals suggested by the House Speaker and the President pro tempore. 478 U. S., at 727. Likewise, in Mistretta, the Court upheld Congress’ authority to require the President to appoint three federal judges to the Sentencing Commission after considering a list of six judges recommended by the Judicial Conference of the United States. 488 U. S., at 410, n. 31. The majority attempts to distinguish these cases by asserting that the lists involved were merely recommendations whereas the Board “must” be chosen from the submitted lists at issue here. Ante, at 268-269. A fair reading of the requirement shows only that the Board may not be chosen outside the lists. It is perfectly plausible to infer that the directors are free to reject any and all candidates on the lists until acceptable names are submitted. It is difficult to see how the marginal difference that would remain between list processes in Bowsher and Mistretta on one hand, and in this case on the other, would possess any constitutional importance. In sharp contrast, Springer can be readily distinguished. In that instance, as in Buckley v. Valeo, 424 U. S. 1 (1976), the Court struck down a scheme in which the Legislature usurped for 290 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. itself the appointment authority of a coequal, coordinate branch of Government. Springer, 277 U. S., at 203, 205. Here Congress has neither expressly nor substantively vested appointment power in itself or appropriated appointment power properly lodged with the President. Our recent case law also compels approval of the Board’s composition. The majority makes much of the requirement that appointees to the Board must be members of the enumerated congressional committees. Ante, at 269. Committee membership, the argument goes, somehow belies the express declaration that Members of Congress are to sit in their individual capacities as representatives of frequent, nationwide travelers. Mistretta, however, refused to disqualify federal judges, sitting in their individual capacities, from exercising nonjudicial authority simply because they possessed judicial expertise relevant to their posts on the Sentencing Commission. It is difficult, then, to see why Members of Congress, sitting in their individual capacities, should be disqualified from exercising nonlegislative authority because their legislative expertise—as enhanced by their membership on key transportation and finance committees — is relevant to their posts on the Board. I refuse to invalidate the Board because its members are too well qualified. B The majority alternatively suggests that the Board wields an unconstitutional legislative veto contrary to INS v. Chadha, 462 U. S. 919, 952-955 (1983). If the Board’s “power is legislative,” the Court opines, “Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7.” Ante, at 276. The problem with this theory is that if the Board is exercising federal power, its power is not legislative. Neither does the Board itself serve as an agent of Congress in any case. The majority never makes up its mind whether its claim is that the Board exercises legislative or executive authority. WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 291 252 White, J., dissenting The Court of Appeals, however, had no doubts, concluding that the Board’s authority was “quintessentially executive.” 286 U. S. App. D. C. 334, 342, 917 F. 2d 48, 56 (1990). Judge Mikva in dissent operated on the same assumption. See id., at 344-347, 917 F. 2d, at 58-61. Accord, 718 F. Supp. 974, 986 (DC 1989); Federal Firefighters Association, Local 1 v. United States, 723 F. Supp. 825, 826 (DC 1989). If federal authority is being wielded by the Board, the lower courts’ characterization is surely correct. Before their transfer to the Authority, National and Dulles were managed by the Federal Aviation Administration, which in turn succeeded the Civil Aeronautics Agency. Ante, at 255. There is no question that these two agencies exercised paradigmatic executive power or that the transfer of the airports in no way altered that power, which is now in the hands of the Authority. In Chadha, by contrast, there was no question—at least among all but one Member of the Court — that the power over alien deportability was legislative. 462 U. S., at 951-959; id., at 976, 984-989 (White, J., dissenting). But see id., at 959, 964-967 (Powell, J., concurring in judgment). Chadha is therefore inapposite. Even more questionable is reliance on Bowsher to suggest that requirements of bicameralism and presentment apply to the actions of a "quintessentially executive” entity. While a concurrence in that case explored this theory, 478 U. S., at 755 (Stevens, J., concurring in judgment), the Court never so held, id., at 732. The Board’s authority is not of an order that the Court has ever held to be “an exercise of legislative power . . . subject to the standards prescribed in Art. I.” Chadha, supra, at 957. The majority can make it so only by reaching past our precedents. More important, the case for viewing the Board as a “congressional agent” is even less compelling in the context of Article I than it was with reference to Article II. Chadha dealt with a self-evident exercise of congressional authority in the form of a resolution passed by either House. 462 U. S., at 292 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. 925. Bowsher involved a situation in which congressional control was at least arguable since the Comptroller General labored under numerous, express statutory obligations to Congress itself. See 478 U. S., at 741-746 (Stevens, J.). Even then, the Court did not adopt the theory that such control subjected the actions of the Comptroller General to bicameralism and presentment requirements, but instead held that Congress’ power of removal amounted to an unconstitutional intrusion on executive authority. Zd., at 727-734. Here, by contrast, the Board operates under no obligations to Congress of any sort. To the contrary, every relevant instrument declares that Members of Congress sit in their “individual capacities” as “representatives of the users of the Metropolitan Washington Airports.” Bylaws, Art. IV, § 1, App. to Pet. for Cert. 151a; Lease, Art. 13A, App. to Pet. for Cert. 175a; 49 U. S. C. App. § 2456(f)(1). There may well be instances in which a significant congressional presence would mandate an extension of the principles set forth in Chadha. This, plainly, is not one. Ill The majority claims not to retreat from our settled rule that “‘[w]hen this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, ... it should only do so for the most compelling constitutional reasons.’ ” Mistretta, 488 U. S., at 384 (quoting Bowsher, supra, at 736 (Stevens, J.)). This rule should apply with even greater force when the arrangement under challenge has also been approved by what are functionally two state legislatures and two state executives. Since the “compelling constitutional reasons” on which we have relied in our past separation-of-powers decisions are insufficient to strike down the Board, the Court has had to inflate those reasons needlessly to defend today’s decision. I cannot follow along this course. The Board violates none of the principles set forth in our cases. Still less does it provide WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS 293 252 White, J., dissenting a “blueprint for extensive expansion of the legislative power beyond its constitutionally confined role.” Ante, at 277. This view utterly ignores the Executive’s ability to protect itself through, among other things, the ample power of the veto. Should Congress ever undertake such improbable projects as transferring national parklands to the States on the condition that its agents control their oversight, see Brief for Respondents 39, there is little doubt that the President would be equal to the task of safeguarding his or her interests. Least of all, finally, can it be said that the Board reflects “[t]he propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments,” that the Framers feared. The Federalist No. 73, at 442 (A. Hamilton). Accordingly, I dissent. 294 OCTOBER TERM, 1990 Syllabus 501 U. S. WILSON v. SETTER et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 89-7376. Argued January 7, 1991—Decided June 17, 1991 Petitioner Wilson, an Ohio prison inmate, filed suit under 42 U. S. C. § 1983 against respondents, state prison officials, alleging that certain conditions of his confinement constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. His affidavits described the challenged conditions and charged that the authorities, after notification, had failed to take remedial action. The District Court granted summary judgment for respondents, and the Court of Appeals affirmed on the ground, inter alia, that the affidavits failed to establish the requisite culpable state of mind on the part of respondents. Held: 1. A prisoner claiming that the conditions of his confinement violate the Eighth Amendment must show a culpable state of mind on the part of prison officials. See, e. g., Whitley v. Albers, 475 U. S. 312, 319. Rhodes v. Chapman, 452 U. S. 337, distinguished. An intent requirement is implicit in that Amendment’s ban on cruel and unusual punishment. Wilson’s suggested distinction between “short-term” or “onetime” prison conditions (in which a state-of-mind requirement would apply) and “continuing” or “systemic” conditions (where official state of mind would be irrelevant) is rejected. Pp. 296-302. 2. The “deliberate indifference” standard applied in Estelle v. Gamble, 429 U. S. 97, 106, to claims involving medical care applies generally to prisoner challenges to conditions of confinement. There is no merit to respondents’ contention that that standard should be applied only in cases involving personal, physical injury, and that a malice standard is appropriate in cases challenging conditions. As Whitley teaches, the “wantonness” of conduct depends not on its effect on the prisoner, but on the constraints facing the official. Pp. 302-304. 3. The Court of Appeals erred in failing to consider Wilson’s claims under the “deliberate indifference” standard and applying instead a standard of “behavior marked by persistent malicious cruelty.” It is possible that the error was harmless, since the court said that Wilson’s affidavits established “[a]t best . . . negligence.” Conceivably, however, the court would have reached a different disposition under the cor WILSON v. SETTER 295 294 Syllabus rect standard, and so the case is remanded for reconsideration on that basis. Pp. 304-306. 893 F. 2d 861, vacated and remanded. Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, and Souter, JJ., joined. White, J., filed an opinion concurring in the judgment, in which Marshall, Black-mun, and Stevens, JJ., joined, post, p. 306. Elizabeth Alexander argued the cause for petitioner. With her on the briefs were Alvin J. Bronstein, Gordon J. Beggs, John A. Powell, and Steven A. Shapiro. Deputy Solicitor General Bryson argued the cause for the United States as amicus curiae in support of petitioner. With him on the brief were Solicitor General Starr, Assistant Attorney General Dunne, Deputy Solicitor General Shapiro, Deputy Assistant Attorney General Clegg, Michael R. Dreeben, Da/vid K. Flynn, and Thomas E. Chandler. Rita S. Eppler, Assistant Attorney General of Ohio, argued the cause for respondents. With her on the brief were Anthony J. Celebrezze, Jr., Attorney General, Nancy J. Miller, and Cherry Lynne Poteet and Nancy Johnston, Assistant Attorneys General.* * John Boston filed a brief for the American Public Health Association as amicus curiae urging reversal. A brief of amici curiae was filed for the State of Michigan et al. by Frank J. Kelley, Attorney General of Michigan, Gay Secor Hardy, Solicitor General, and Thomas C. Nelson, Assistant Attorney General, joined by the Attorneys General for their respective jurisdictions as follows: Douglas B. Bailey of Alaska, Ron Fields of Arkansas, John K. Van de Kamp of California, Clarine Nardi Riddle of Connecticut, Charles M. Oberly III of Delaware, Warren Price III of Hawaii, James T. Jones of Idaho, Neil F. Hartigan of Illinois, Robert T. Stephen of Kansas, Frederic J. Cowan of Kentucky, William L. Webster of Missouri, Robert J. Del Tufa of New Jersey, Dave Frohnmayer of Oregon, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Charles W. Burson of Tennessee, Mary Sue Terry of Virginia, and Hector Rivera-Cruz of Puerto Rico. 296 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Justice Scalia delivered the opinion of the Court. This case presents the questions whether a prisoner claiming that conditions of confinement constitute cruel and unusual punishment must show a culpable state of mind on the part of prison officials, and, if so, what state of mind is required. Petitioner Pearly L. Wilson is a felon incarcerated at the Hocking Correctional Facility (HCF) in Nelsonville, Ohio. Alleging that a number of the conditions of his confinement constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, he brought this action under 42 U. S. C. § 1983 against respondents Richard P. Seiter, then Director of the Ohio Department of Rehabilitation and Correction, and Carl Humphreys, then warden of HCF. The complaint alleged overcrowding, excessive noise, insufficient locker storage space, inadequate heating and cooling, improper ventilation, unclean and inadequate restrooms, unsanitary dining facilities and food preparation, and housing with mentally and physically ill inmates. Petitioner sought declaratory and injunctive relief, as well as $900,000 in compensatory and punitive damages. App. 2-9, 53-54, 62-63. The parties filed cross-motions for summary judgment with supporting affidavits. Petitioner’s affidavits described the challenged conditions and charged that the authorities, after notification, had failed to take remedial action. Respondents’ affidavits denied that some of the alleged conditions existed, and described efforts by prison officials to improve the others. The District Court granted summary judgment for respondents. The Court of Appeals for the Sixth Circuit affirmed, 893 F. 2d 861 (1990), and we granted certiorari, 498 U. S. 808 (1990). I The Eighth Amendment, which applies to the States through the Due Process Clause of the Fourteenth Amend WILSON v. SETTER 297 294 Opinion of the Court ment, Robinson v. California, 370 U. S. 660, 666 (1962), prohibits the infliction of “cruel and unusual punishments” on those convicted of crimes. In Estelle v. Gamble, 429 U. S. 97 (1976), we first acknowledged that the provision could be applied to some deprivations that were not specifically part of the sentence but were suffered during imprisonment. We rejected, however, the inmate’s claim in that case that prison doctors had inflicted cruel and unusual punishment by inadequately attending to his medical needs — because he had failed to establish that they possessed a sufficiently culpable state of mind. Since, we said, only the “ ‘unnecessary and wanton infliction of pain’” implicates the Eighth Amendment, id., at 104 (quoting Gregg v. Georgia, 428 U. S. 153, 173 (1976) (joint opinion) (emphasis added)), a prisoner advancing such a claim must, at a minimum, allege “deliberate indifference” to his “serious” medical needs. 429 U. S., at 106. “It is only such indifference” that can violate the Eighth Amendment, ibid, (emphasis added); allegations of “inadvertent failure to provide adequate medical care,” id., at 105, or of a “negligent . . . diagnoses],” id., at 106, simply fail to establish the requisite culpable state of mind. Estelle relied in large measure on an earlier case, Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947), which involved not a prison deprivation but an effort to subject a prisoner to a second electrocution after the first attempt failed by reason of a malfunction in the electric chair. There Justice Reed, writing for a plurality of the Court, emphasized that the Eighth Amendment prohibited “the wanton infliction of pain,” id., at 463 (emphasis added). Because the first attempt had been thwarted by an “unforeseeable accident,” the officials lacked the culpable state of mind necessary for the punishment to be regarded as “cruel,” regardless of the actual suffering inflicted. “The situation of the unfortunate victim of this accident is just as though he had suffered the identical amount of mental anguish and physical pain in any other occurrence, such as, for example, a fire in the cell 298 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. block.” Id., at 464. Justice Frankfurter, concurring solely on the basis of the Due Process Clause of the Fourteenth Amendment, emphasized that the first attempt had failed because of “an innocent misadventure,” id., at 470, and suggested that he might reach a different conclusion in “a hypothetical situation, which assumes a series of abortive attempts at electrocution or even a single, cruelly willful attempt,” id., at 471. After Estelle, we next confronted an Eighth Amendment challenge to a prison deprivation in Rhodes v. Chapman, 452 U. S. 337 (1981). In that case, inmates at the Southern Ohio Correctional Facility contended that the lodging of two inmates in a single cell (“double celling”) constituted cruel and unusual punishment. We rejected that contention, concluding that it amounts “(a]t most ... to a theory that double celling inflicts pain,” id., at 348-349, but not that it constitutes the “unnecessary and wanton infliction of pain” that violates the Eighth Amendment, id., at 346. The Constitution, we said, “does not mandate comfortable prisons,” id., at 349, and only those deprivations denying “the minimal civilized measure of life’s necessities,” id., at 347, are sufficiently grave to form the basis of an Eighth Amendment violation. Our holding in Rhodes turned on the objective component of an Eighth Amendment prison claim (Was the deprivation sufficiently serious?), and we did not consider the subjective component (Did the officials act with a sufficiently culpable state of mind?). That Rhodes had not eliminated the subjective component was made clear by our next relevant case, Whitley n. Albers, 475 U. S. 312 (1986). There an inmate shot by a guard during an attempt to quell a prison disturbance contended that he had been subjected to cruel and unusual punishment. We stated: “After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not WILSON v. SEITER 299 294 Opinion of the Court purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety. ... It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.” Id., at 319 (emphasis added; citations omitted; internal quotation marks omitted). These cases mandate inquiry into a prison official’s state of mind when it is claimed that the official has inflicted cruel and unusual punishment.1 See also Graham v. Connor, 490 U. S. 386, 398 (1989). Petitioner concedes that this is so with respect to some claims of cruel and unusual prison condi- 1 The concurrence would distinguish these cases on the ground that they did not involve “conditions of confinement” but rather “specific acts or omissions directed at individual prisoners.” Post, at 309. It seems to us, however, that if an individual prisoner is deprived of needed medical treatment, that is a condition of his confinement, whether or not the deprivation is inflicted upon everyone else. Undoubtedly deprivations inflicted upon all prisoners are, as a policy matter, of greater concern than deprivations inflicted upon particular prisoners, but we see no basis whatever for saying that the one is a “condition of confinement” and the other is not —much less that the one constitutes “punishment” and the other does not. The concurrence’s imaginative interpretation of Estelle v. Gamble, 429 U. S. 97 (1976), has not been imagined by the Courts of Appeals—or as far as we are aware even litigants before the Courts of Appeals — which have routinely applied the “deliberate indifference” requirement to claims of prisonwide deprivation of medical treatment. See, e. g., Toussaint v. McCarthy, 801 F. 2d 1080, 1111-1113 (CA9 1986); French v. Owens, 777 F. 2d 1250, 1254-1255 (CA7 1985). Of course the concurrence does not say that the deprivation must be imposed upon all prisoners to rise to the level of a “condition of confinement” and of “punishment”—only that it does not suffice if directed at “individual prisoners.” One wonders whether depriving all the individual prisoners who are murderers would suffice; or all the individual prisoners in Cellblock B. The concurrence’s distinction seems to us not only unsupportable in principle but unworkable in practice. 300 OCTOBER TERM, 1990 501 U. S. Opinion of the Court tions. He acknowledges, for instance, that if a prison boiler malfunctions accidentally during a cold winter, an inmate would have no basis for an Eighth Amendment claim, even if he suffers objectively significant harm. Reply Brief for Petitioner 12-14. Petitioner, and the United States as amicus curiae in support of petitioner, suggests that we should draw a distinction between “short-term” or “one-time” conditions (in which a state-of-mind requirement would apply) and “continuing” or “systemic” conditions (where official state of mind would be irrelevant). We perceive neither a logical nor a practical basis for that distinction. The source of the intent requirement is not the predilections of this Court, but the Eighth Amendment itself, which bans only cruel and unusual punishment. If the pain inflicted is not formally meted out as punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify. As Judge Posner has observed: “The infliction of punishment is a deliberate act intended to chastise or deter. This is what the word means today; it is what it meant in the eighteenth century .... [I]f [a] guard accidentally stepped on [a] prisoner’s toe and broke it, this would not be punishment in anything remotely like the accepted meaning of the word, whether we consult the usage of 1791, or 1868, or 1985.” Duckworth v. Franzen, 780 F. 2d 645, 652 (CA7 1985), cert, denied, 479 U. S. 816 (1986). See also Johnson v. Glick, 481 F. 2d 1028, 1032 (CA2) (Friendly, J.), (“The thread common to all [Eighth Amendment prison cases] is that ‘punishment’ has been deliberately administered for a penal or disciplinary purpose”), cert, denied sub nom. John n. Johnson, 414 U. S. 1033 (1973). Cf. Block v. Rutherford, 468 U. S. 576, 584 (1984); Bell n. Wolfish, 441 U. S. 520, 537-539 (1979). The long duration of a cruel prison condition may make it easier to establish knowledge and hence some form of intent, cf. Canton v. Harris, 489 U. S. 378, 390, n. 10 (1989); but there is no logical reason WILSON v. SETTER 301 294 Opinion of the Court why it should cause the requirement of intent to evaporate. The proposed short-term/long-term distinction also defies rational implementation. Apart from the difficulty of determining the day or hour that divides the two categories (Is it the same for all conditions?), the violations alleged in specific cases often consist of composite conditions that do not lend themselves to such pigeonholing. Cf. McCarthy n. Bronson, 500 U. S. 136, 143-144 (1991).2 The United States suggests that a state-of-mind inquiry might allow officials to interpose the defense that, despite good-faith efforts to obtain funding, fiscal constraints beyond their control prevent the elimination of inhumane conditions. Even if that were so, it is hard to understand how it could control the meaning of “cruel and unusual punishments” in the Eighth Amendment. An intent requirement is either implicit in the word “punishment” or is not; it cannot be alter 2 The concurrence, going beyond what both petitioner and the United States have argued here, takes the position that all conditions that exist in prison, even though prison officials neither know nor have reason to know about them, constitute “punishment.” For the reasons we have described, there is no basis for that position in principle, and it is contradicted by our cases. The concurrence purports to find support for it in two cases, Hutto v. Finney, 437 U. S. 678 (1978), and Rhodes v. Chapman, 452 U. S. 337 (1981). In Hutto, as the concurrence’s description makes clear, the question whether the conditions remedied by the District Court’s order constituted cruel and unusual punishment was not at issue. Indeed, apart from attorney’s fees, the only element of the order at issue in any respect pertained to “punitive isolation,” post, at 307. Even if one were to think that we passed upon the “cruel and unusual punishment” point uninvited and sub silentio, punitive isolation is self-evidently inflicted with punitive intent. As for Rhodes, the concurrence describes that as addressing “for the first time a disputed contention that the conditions of confinement at a particular prison constituted cruel and unusual punishment.” Post, at 307 (emphasis in original). What it does not mention is that the only element disputed (as well as the only element decided, see supra, at 298) was whether the conditions were a sufficiently serious deprivation to violate the constitutional standard. When that is borne in mind, it is evident that the lengthy quotation from that case set forth in the concurrence, post, at 307-309, provides no support, even by way of dictum, for the concurrence’s position. 302 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. nately required and ignored as policy considerations might dictate. At any rate, the validity of a “cost” defense as negating the requisite intent is not at issue in this case, since respondents have never advanced it. Nor, we might note, is there any indication that other officials have sought to use such a defense to avoid the holding of Estelle n. Gamble, 429 U. S. 97 (1976). II Having determined that Eighth Amendment claims based on official conduct that does not purport to be the penalty formally imposed for a crime require inquiry into state of mind, it remains for us to consider what state of mind applies in cases challenging prison conditions. As described above, our cases say that the offending conduct must be wanton. Whitley makes clear, however, that in this context wantonness does not have a fixed meaning but must be determined with “due regard for differences in the kind of conduct against which an Eighth Amendment objection is lodged.” 475 U. S., at 320. Where (as in Whitley) officials act in response to a prison disturbance, their actions are necessarily taken “in haste, under pressure,” and balanced against “competing institutional concerns for the safety of prison staff or other inmates.” Ibid. In such an emergency situation, we found that wantonness consisted of acting “‘maliciously and sadistically for the very purpose of causing harm.’” Id., at 320-321 (quoting Johnson, 481 F. 2d, at 1033). See also Dudley v. Stubbs, 489 U. S. 1034, 1037-1038 (1989) (O’Connor, J., dissenting from denial of certiorari). In contrast, “the State’s responsibility to attend to the medical needs of prisoners does not ordinarily clash with other equally important governmental responsibilities,” Whitley, supra, at 320, so that in that context, as Estelle held, “deliberate indifference” would constitute wantonness. The parties agree (and the lower courts have consistently held, see, e. g., LaFaut v. Smith, 834 F. 2d 389, 391-392 (CA4 1987)), that the very high state of mind prescribed by WILSON v. SETTER 303 294 Opinion of the Court Whitley does not apply to prison conditions cases. Petitioner argues that, to the extent officials’ state of mind is relevant at all, there is no justification for a standard more demanding than Estelle’s “deliberate indifference.” Respondents counter that “deliberate indifference” is appropriate only in “cases involving personal injury of a physical nature,” and that a malice standard should be applied in cases such as this, which “do not involve . . . detriment to bodily integrity, pain, injury, or loss of life.” Brief for Respondents 28-29. We do not agree with respondents’ suggestion that the “wantonness” of conduct depends upon its effect upon the prisoner. Whitley teaches that, assuming the conduct is harmful enough to satisfy the objective component of an Eighth Amendment claim, see Rhodes n. Chapman, 452 U. S. 337 (1981), whether it can be characterized as “wanton” depends upon the constraints facing the official. From that standpoint, we see no significant distinction between claims alleging inadequate medical care and those alleging inadequate “conditions of confinement.” Indeed, the medical care a prisoner receives is just as much a “condition” of his confinement as the food he is fed, the clothes he is issued, the temperature he is subjected to in his cell, and the protection he is afforded against other inmates. There is no indication that, as a general matter, the actions of prison officials with respect to these nonmedical conditions are taken under materially different constraints than their actions with respect to medical conditions. Thus, as retired Justice Powell has concluded: “Whether one characterizes the treatment received by [the prisoner] as inhumane conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the ‘deliberate indifference’ standard articulated in Estelle.” LaFaut, 834 F. 2d, at 391-392. See also Lopez v. Robinson, 914 F. 2d 486, 492 (CA4 1990); Givens v. Jones, 900 F. 2d 1229, 1234 (CA8 1990); Cortes-Quinones v. Jimenez-Nettleship, 842 F. 2d 556, 304 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. 558 (CAI), cert, denied, 488 U. S. 823 (1988); Morgan v. District of Columbia, 263 U. S. App. D. C. 69, 77-78, 824 F. 2d 1049, 1057-1058 (1987). Ill We now consider whether, in light of the foregoing analysis, the Sixth Circuit erred in affirming the District Court’s grant of summary judgment in respondents’ favor. As a preliminary matter, we must address petitioner’s contention that the Court of Appeals erred in dismissing, before it reached the state-of-mind issue, a number of claims (inadequate cooling, housing with mentally ill inmates, and overcrowding) on the ground that, even if proved, they did not involve the serious deprivation required by Rhodes. A court cannot dismiss any challenged condition, petitioner contends, as long as other conditions remain in dispute, for each condition must be “considered as part of the overall conditions challenged,” Brief for Petitioner 36. Petitioner bases this contention upon our observation in Rhodes that conditions of confinement, “alone or in combination,” may deprive prisoners of the minimal civilized measure of life’s necessities. 452 U. S., at 347. As other courts besides the Court of Appeals here have understood, see Wellman v. Faulkner, 715 F. 2d 269, 275 (CA7 1983), cert, denied, 468 U. S. 1217 (1984); Hoptowit v. Ray, 682 F. 2d 1237, 1247 (CA9 1982); Wright v. Rushen, 642 F. 2d 1129, 1133 (CA9 1981), our statement in Rhodes was not meant to establish the broad proposition that petitioner asserts. Some conditions of confinement may establish an Eighth Amendment violation “in combination” when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise— for example, a low cell temperature at night combined with a failure to issue blankets. Compare Spain v. Procunier, 600 F. 2d 189, 199 (CA9 1979) (outdoor exercise required when prisoners otherwise confined in small cells almost 24 hours WILSON v. SETTER 305 294 Opinion of the Court per day), with Clay v. Miller, 626 F. 2d 345, 347 (CA4 1980) (outdoor exercise not required when prisoners otherwise had access to dayroom 18 hours per day). To say that some prison conditions may interact in this fashion is a far cry from saying that all prison conditions are a seamless web for Eighth Amendment purposes. Nothing so amorphous as “overall conditions” can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists. While we express no opinion on the relative gravity of the various claims that the Sixth Circuit found to pass and fail the threshold test of serious deprivation, we reject the contention made here that no claim can be found to fail that test in isolation. After disposing of the three claims on the basis of Rhodes, the Court of Appeals proceeded to uphold the District Court’s dismissal of petitioner’s remaining claims on the ground that his affidavits failed to establish the requisite culpable state of mind. The critical portion of its opinion reads as follows: “[T]he Whitley standard of obduracy and wantonness requires behavior marked by persistent malicious cruelty. The record before us simply fails to assert facts suggesting such behavior. At best, appellants’ claim evidences negligence on appellees’ parts in implementing standards for maintaining conditions. Negligence, clearly, is inadequate to support an eighth amendment claim.” 893 F. 2d, at 867. It appears from this, and from the consistent reference to “the Whitley standard” elsewhere in the opinion, that the court believed that the criterion of liability was whether respondents acted “maliciously and sadistically for the very purpose of causing harm,” Whitley, 475 U. S., at 320-321. To be sure, mere negligence would satisfy neither that nor the more lenient “deliberate indifference” standard, so that any error on the point may have been harmless. Conceivably, however, the court would have given further thought to 306 OCTOBER TERM, 1990 White, J., concurring in judgment 501 U. S. its finding of “[a]t best. . . negligence” if it realized that that was not merely an argument a fortiori, but a determination almost essential to the judgment. Out of an abundance of caution, we vacate the judgment of the Sixth Circuit and remand the case for reconsideration under the appropriate standard. It is so ordered. Justice White, with whom Justice Marshall, Justice Blackmun, and Justice Stevens join, concurring in the judgment. The majority holds that prisoners challenging the conditions of their confinement under the Eighth Amendment must show “deliberate indifference” by the responsible officials. Because that requirement is inconsistent with our prior decisions, I concur only in the judgment. It is well established, and the majority does not dispute, that pain or other suffering that is part of the punishment imposed on convicted criminals is subject to Eighth Amendment scrutiny without regard to an intent requirement. The linchpin of the majority’s analysis therefore is its assertion that “[i]f the pain inflicted is not formally meted out as punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify.” Ante, at 300 (emphasis added). That reasoning disregards our prior decisions that have involved challenges to conditions of confinement, where we have made it clear that the conditions are themselves part of the punishment, even though not specifically “meted out” by a statute or judge. We first considered the relationship between the Eighth Amendment and conditions of confinement in Hutto v. Finney, 437 U. S. 678 (1978). There, the District Court had entered a series of remedial orders after determining that the conditions in the Arkansas prison system violated the Eighth Amendment. The prison officials, while conceding that the conditions were cruel and unusual, challenged two aspects of WILSON v. SE ITER 307 294 White, J., concurring in judgment the District Court’s relief: (1) an order limiting punitive isolation to 30 days; and (2) an award of attorney’s fees. In upholding the District Court’s limitation on punitive isolation, we first made it clear that the conditions of confinement are part of the punishment that is subject to Eighth Amendment scrutiny: “The Eighth Amendment’s ban on inflicting cruel and unusual punishments, made applicable to the States by the Fourteenth Amendment, ‘proscribe[s] more than physically barbarous punishments.’ Estelle v. Gamble, 429 U. S. 97, 102 [(1976)]. It prohibits penalties that are grossly disproportionate to the offense, Weems v. United States, 217 U. S. 349, 367 [(1910)], as well as those that transgress today’s ‘“broad and idealistic concepts of dignity, civilized standards, humanity, and decency.”’ Estelle v. Gamble, supra, at 102, quoting Jackson v. Bishop, 404 F. 2d 571, 579 (CA8 1968). Confinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under Eighth Amendment standards.” Id., at 685 (emphasis added). Focusing only on the objective conditions of confinement, we then explained that we found “no error in the [District Court’s] conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment.” Id., at 687. In Rhodes v. Chapman, 452 U. S. 337 (1981), we addressed for the first time a disputed contention that the conditions of confinement at a particular prison constituted cruel and unusual punishment. See id., at 344-345. There, prisoners challenged the “double celling” of inmates at an Ohio prison. In addressing that claim, we began by reiterating the various bases for an Eighth Amendment challenge: “Today the Eighth Amendment prohibits punishments which, although not physically barbarous, ‘involve the unnecessary and wanton infliction of pain,’ Gregg n. 308 OCTOBER TERM, 1990 White, J., concurring in judgment 501 U. S. Georgia, [428 U. S. 153,] 173 [(1976)], or are grossly disproportionate to the severity of the crime, Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion); Weems v. United States, 217 U. S. 349 (1910). Among ‘unnecessary and wanton’ inflictions of pain are those that are ‘totally without penological justification.’ Gregg v. Georgia, supra, at 183; Estelle v. Gamble, 429 U. S. 97, 103 (1976). “No static ‘test’ can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion).” Id., at 346 (footnote omitted). We then explained how those principles operate in the context of a challenge to conditions of confinement: “These principles apply when the conditions of confinement compose the punishment at issue. Conditions must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. In Estelle n. Gamble, supra, we held that the denial of medical care is cruel and unusual because, in the worst case, it can result in physical torture, and, even in less serious cases, it can result in pain without any penological purpose. 429 U. S., at 103. In Hutto v. Finney, supra, the conditions of confinement in two Arkansas prisons constituted cruel and unusual punishment because they resulted in unquestioned and serious deprivations of basic human needs. Conditions other than those in Gamble and Hutto, alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities. Such conditions could be cruel and unusual under the contemporary standard of decency that we recog WILSON v. SEITER 309 294 White, J., concurring in judgment nized in Gamble, supra, at 103-104.” Id., at 347 (emphasis added). Finally, we applied those principles to the conditions at issue and found that “there is no evidence that double celling under these circumstances either inflicts unnecessary or wanton pain or is grossly disproportionate to the severity of crimes warranting imprisonment.” Id., at 348. Rhodes makes it crystal clear, therefore, that Eighth Amendment challenges to conditions of confinement are to be treated like Eighth Amendment challenges to punishment that is “formally meted out as punishment by the statute or the sentencing judge,” ante, at 300—we examine only the objective severity, not the subjective intent of government officials. The majority relies upon our decisions in Louisiana ex rel. Francis n. Resweber, 329 U. S. 459 (1947); Estelle v. Gamble, 429 U. S. 97 (1976); and Whitley v. Albers, 475 U. S. 312 (1986), but none of those cases involved a challenge to conditions of confinement. Instead, they involved challenges to specific acts or omissions directed at individual prisoners. In Gamble, for example, the challenge was not to a general lack of access to medical care at the prison, but to the allegedly inadequate delivery of that treatment to the plaintiff. Similarly, in Whitley the challenge was to the action of a prison guard in shooting the plaintiff during a riot, not to any condition in the prison. The distinction is crucial because “unlike ‘conduct that does not purport to be punishment at all’ as was involved in Gamble and Whitley, the Court has not made intent an element of a cause of action alleging unconstitutional conditions of confinement.” Gillespie v. Crawford, 833 F. 2d 47, 50 (CA5 1987) (per curiam), reinstated in part en banc, 858 F. 2d 1101, 1103 (CA5 1988). Moreover, Whitley expressly supports an objective standard for challenges to conditions of confinement. There, in discussing the Eighth Amendment, we stated: “An express intent to inflict unnecessary pain is not required, Estelle v. Gamble, 429 U. S. 97, 104 (1976) (‘de 310 OCTOBER TERM, 1990 White, J., concurring in judgment 501 U. S. liberate indifference’ to a prisoner’s serious medical needs is cruel and unusual punishment), and harsh ‘conditions of confinement’ may constitute cruel and unusual punishment unless such conditions ‘are part of the penalty that criminal offenders pay for their offenses against society.’ Rhodes v. Chapman, 452 U. S. 337, 347 (1981).” 475 U. S., at 319 (emphasis added). The majority places great weight on the subsequent dictum in Whitley that “ ‘[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.’” Ibid. See ante, at 298-299. The word “conduct” in that statement, however, is referring to “conduct that does not purport to be punishment at all,” 475 U. S., at 319, rather than to the “harsh ‘conditions of confinement’ ” referred to earlier in the opinion. Not only is the majority’s intent requirement a departure from precedent, it likely will prove impossible to apply in many cases. Inhumane prison conditions often are the result of cumulative actions and inactions by numerous officials inside and outside a prison, sometimes over a long period of time. In those circumstances, it is far from clear whose intent should be examined, and the majority offers no real guidance on this issue. In truth, intent simply is not very meaningful when considering a challenge to an institution, such as a prison system.1 1 It is telling that the lower courts often have examined only the objective conditions, and not the subjective intent of government officials, when considering Eighth Amendment challenges to conditions of confinement. See, e. g., Tillery v. Owens, 907 F. 2d 418, 426-428 (CA3 1990); Foulds v. Corley, 833 F. 2d 52, 54-55 (CA5 1987); French v. Owens, 777 F. 2d 1250, 1252-1254 (CA7 1985), cert, denied, 479 U. S. 817 (1986); Hoptowit v. Spellman, 753 F. 2d 779, 784 (CA9 1985). WILSON v. SEITER 311 294 White, J., concurring in judgment The majority’s approach also is unwise. It leaves open the possibility, for example, that prison officials will be able to defeat a § 1983 action challenging inhumane prison conditions simply by showing that the conditions are caused by insufficient funding from the state legislature rather than by any deliberate indifference on the part of the prison officials. See ante, at 301-302.2 In my view, having chosen to use imprisonment as a form of punishment, a State must ensure that the conditions in its prisons comport with the “contemporary standard of decency” required by the Eighth Amendment. See DeShaney n. Winnebago Cty. Dept, of Social Services, 489 U. S. 189, 198-200 (1989). As the United States argues: “[S]eriously inhumane, pervasive conditions should not be insulated from constitutional challenge because the officials managing the institution have exhibited a conscientious concern for ameliorating its problems, and have made efforts (albeit unsuccessful) to that end.” Brief for United States as Amicus Curiae 19. The ultimate result of today’s decision, I fear, is that “serious deprivations of basic human needs,” Rhodes, 452 U. S., at 347, will go unredressed due to an unnecessary and meaningless search for “deliberate indifference.” 2 Among the lower courts, “[i]t is well established that inadequate funding will not excuse the perpetuation of unconstitutional conditions of confinement.” Smith v. Sullivan, 611 F. 2d 1039, 1043-1044 (CA5 1980). See also, e. g., Wellman v. Faulkner, 715 F. 2d 269, 274 (CA7 1983), cert, denied, 468 U. S. 1217 (1984); Ramos n. Lamm, 639 F. 2d 559, 573, n. 19 (CAIO 1980), cert, denied, 450 U. S. 1041 (1981); Battle n. Anderson, 564 F. 2d 388, 396 (CAIO 1977); Gates v. Collier, 501 F. 2d 1291, 1319 (CA5 1974). 312 OCTOBER TERM, 1990 Syllabus 501 U. S. RENNE, SAN FRANCISCO CITY ATTORNEY, ET AL. v. GEARY ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 90-769. Argued April 23, 1991—Decided June 17, 1991 Article II, § 6(b), of the California Constitution prohibits political parties and party central committees from endorsing, supporting, or opposing candidates for nonpartisan offices such as county and city offices. Based on §6(b), it is the policy of petitioners—the City and County of San Francisco, its board of supervisors, and certain local officials—to delete any reference to party endorsements from candidates’ statements included in the voter pamphlets that petitioners print and distribute. Respondents —among whom are 10 registered voters in the city and county, including members of the local Republican and Democratic Central Committees—filed suit seeking, inter alia, a declaration that §6(b) violates the First and Fourteenth Amendments and an injunction preventing petitioners from editing candidate statements to delete references to party endorsements. The District Court entered summary judgment for respondents, declaring §6(b) unconstitutional and enjoining its enforcement, and the Court of Appeals affirmed. Held: The question whether § 6(b) violates the First Amendment is not justiciable in this case, since respondents have not demonstrated a live controversy ripe for resolution by the federal courts. Pp. 316-324. (a) Although respondents have standing to claim that § 6(b) has been applied in an unconstitutional manner to bar their own speech, the allegations in their complaint and affidavits raise serious questions about their standing to assert other claims. In their capacity as voters, they only allege injury flowing from § 6(b)’s application to prevent speech by candidates in the voter pamphlets. There is reason to doubt that that injury can be redressed by a declaration of § 6(b)’s invalidity or an injunction against its enforcement, since a separate California statute, the constitutionality of which was not litigated in this case, might well be construed to prevent candidates from mentioning party endorsements in voter pamphlets, even in the absence of § 6(b). Moreover, apart from the possibility of an overbreadth claim, discussed infra, paragraph (c), the standing of respondent committee members to litigate based on injuries to their respective committees’ rights is unsettled. See Bender v. Williamsport Area School Dist., 475 U. S. 534, 543-545. Nor is it clear, putting aside redressability concerns, that the committee RENNE v. GEARY 313 312 Syllabus members have third-party standing to assert the rights of candidates, since no obvious barrier exists preventing candidates from asserting their own rights. See Powers v. Ohio, 499 U. S. 400, 414-415. Pp. 318-320. (b) Respondents’ allegations fail to demonstrate a live dispute involving the actual or threatened application of § 6(b) to bar particular speech. Their generalized claim that petitioners deleted party endorsements from candidate statements in past elections does not do so, since, so far as can be discerned from the record, those disputes had become moot by the time respondents filed suit. Similarly, an allegation that the Democratic committee has not endorsed candidates “[i]n elections since 1986” for fear of the consequences of violating § 6(b) will not support a federal-court action absent a contention that § 6(b) prevented a particular endorsement, and that the controversy had not become moot prior to the litigation. Nor can a ripe controversy be found in the fact that the Republican committee endorsed candidates for nonpartisan elections in 1987, the year this suit was filed, since nothing in the record suggests that petitioners took any action to enforce § 6(b) as a result of those endorsements, or that there was any desire or attempt to include the endorsements in the candidates’ statements. Allegations that respondents desire to endorse candidates in future elections also present no ripe controversy, absent a factual record of an actual or imminent application of § 6(b) sufficient to present the constitutional issues in clean-cut and concrete form. Indeed, the record contains no evidence of a credible threat that § 6(b) will be enforced, other than against candidates in the context of voter pamphlets. In these circumstances, postponing adjudication until a more concrete controversy arises will not impose a substantial hardship on respondents and will permit the state courts further opportunity to construe § 6(b), perhaps in the process materially altering the questions to be decided. Pp. 320-323. (c) Even if respondents’ complaint may be read to assert a facial overbreadth challenge, the better course might have been to address in the first instance the constitutionality of § 6(b) as applied in the context of voter pamphlets. See, e. g., Board of Trustees of State University of N. Y. v. Fox, 492 U. S. 469, 484-485. If the as-applied challenge had been resolved first, the justiciability problems determining the disposition of this case might well have concluded the litigation at an earlier stage. Pp. 323-324. 911 F. 2d 280, vacated and remanded. Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, and Souter, JJ., joined, and in all but Part II-B of which Scalia, J., joined. Stevens, J., filed a concurring 314 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. opinion, post, p. 325. White, J., filed a dissenting opinion, post, p. 327. Marshall, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 334. Dennis After gut argued the cause for petitioners. With him on the briefs were Louise H. Renne, pro se, and Thomas J. Owen. Arlo Hale Smith argued the cause and filed a brief for respondents. Cedric C. Chao argued the cause for the California Democratic Party et al. as amici curiae urging affirmance. * Justice Kennedy delivered the opinion of the Court, t Petitioners seek review of a decision of the United States Court of Appeals for the Ninth Circuit holding that Article II, § 6(b), of the California Constitution violates the First and Fourteenth Amendments to the Constitution of the United States. Section 6(b) reads: “No political party or party central committee may endorse, support, or oppose a candidate for nonpartisan office.” Its companion provision, §6(a), provides that “[a]ll judicial, school, county, and city offices shall be nonpartisan.” I In view of our determination that the case is nonjustici-able, the identity of the parties has crucial relevance. Petitioners are the City and County of San Francisco, its board of supervisors, and certain local officials. The individual respondents are 10 registered voters residing in the City and County of San Francisco. They include the chairman and three members of the San Francisco Republican County Central Committee and one member of the San Francisco Democratic County Central Committee. Election Action, an asso * Jerome B. Falk, Jr., and Steven L. Mayer filed a brief for the California Judges Association as amicus curiae urging reversal. Karl Olson, Steven R. Shapiro, and Alan L. Schlosser filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance. Uustice Scalia joins all but Part II-B of this opinion. RENNE v. GEARY 315 312 Opinion of the Court ciation of voters, is also a respondent, but it asserts no interest in relation to the issues before us different from that of the individual voters. Hence, we need not consider it further. Respondents filed this suit in the United States District Court for the Northern District of California. Their third cause of action challenged § 6(b) and petitioners’ acknowledged policy, based on that provision, of deleting any references to a party endorsement from the candidate statements included in voter pamphlets. As we understand it, petitioners print the pamphlets and pay the postage required to mail them to voters. The voter pamphlets contain statements prepared by candidates for office and arguments submitted by interested persons concerning other measures on the ballot. The complaint sought a declaration that Article II, § 6, is unconstitutional and an injunction preventing petitioners from editing candidate statements to delete references to party endorsements. The District Court granted summary judgment for respondents on their third cause of action, declaring § 6(b) unconstitutional and enjoining petitioners from enforcing it. 708 F. Supp. 278 (1988). The court entered judgment on this claim pursuant to Federal Rule of Civil Procedure 54(b), and petitioners appealed. A Ninth Circuit panel reversed, 880 F. 2d 1062 (1989), but the en banc Court of Appeals affirmed the District Court’s decision, 911 F. 2d 280 (1990). We granted certiorari, 498 U. S. 1046 (1991), to determine whether § 6(b) violates the First Amendment. At oral argument, doubts arose concerning the justiciability of that issue in the case before us. Having examined the complaint and the record, we hold that respondents have not demonstrated a live controversy ripe for resolution by the federal courts. As a consequence of our finding of nonjusticiability, we vacate the Ninth Circuit’s judgment and remand with instructions to dismiss respondents’ third cause of action. 316 OCTOBER TERM, 1990 501 U. S. Opinion of the Court II Concerns of justiciability go to the power of the federal courts to entertain disputes, and to the wisdom of their doing so. We presume that federal courts lack jurisdiction “unless ‘the contrary appears affirmatively from the record.’” Bender v. Williamsport Area School Dist., 475 U. S. 534, 546 (1986), quoting King Bridge Co. v. Otoe County, 120 U. S. 225, 226 (1887). “‘It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.’” Bender, supra, at 546, n. 8, quoting Warth v. Seldin, 422 U. S. 490, 517-518 (1975). A Proper resolution of the justiciability issues presented here requires examination of the pleadings and record to determine the nature of the dispute and the interests of the parties in having it resolved in this judicial proceeding. According to the complaint, the respondent committee members “desire to endorse, support, and oppose candidates for city and county office through their county central committees, and to publicize such endorsements by having said endorsements printed in candidate’s statements published in the voter’s pamphlet.” App. 4, 1136. All respondents “desire to read endorsements of candidates for city and county office as part of candidate’s statements printed in the San Francisco voter’s pamphlet.” Id., at 5, 137. The complaint alleges that in the past certain of these petitioners “have deleted all references in candidate’s statements for City and County offices to endorsements by political party central committees or officers or members of such committees,” and that they will continue such deletions in the future unless restrained by court order. 138. Respondents believe an actual controversy exists because they contend § 6 and any other law relied upon to refuse to print the endorsements are unconstitutional in that they “abridge [respond RENNE v. GEARY 317 312 Opinion of the Court ents’] rights to free speech and association,” while petitioners dispute these contentions. 5139. The third cause of action concludes with general assertions that respondents have been harmed by the past and threatened deletion of endorsements from candidate statements, and that because of those deletions they have suffered and will suffer irreparable injury to their rights of free speech and association. Id., at 5-6, 5540-41. An affidavit submitted by the chairman of the Republican committee in connection with respondents’ motion for summary judgment illuminates and supplements the allegations of the complaint. It indicates the committee has a policy of endorsing candidates for nonpartisan offices: “In 1987, the Republican Committee endorsed Arlo Smith for District Attorney, Michael Hennessey for Sheriff, and John Molinari for Mayor, despite objections from some that such endorsements are prohibited by California Constitution Article [II], Section 6. It is the plan and intention of the Republican Committee to endorse candidates for nonpartisan offices in as many future elections as possible. The Republican Committee would like to have such endorsements publicized by endorsed candidates in their candidate’s statements in the San Francisco voter’s pamphlet, and to encourage endorsed candidates to so publish their endorsements by the Republican Committee. “In the future, I and other Republican Committee members . . . would like to use our titles as Republican County Committeemen in endorsements we make of local candidates which are printed in the San Francisco voter’s pamphlet. We cannot presently do so as [petitioner] Jay Patterson has a policy of deleting the word ‘Republican’ from all such endorsements.” Id., at 15-16. An affidavit submitted by a Democratic committeeman states that “[i]n elections since 1986, the Democratic commit 318 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. tee has declined to endorse candidates for nonpartisan office solely out of concern that committee members may be criminally or civilly prosecuted for violation of the endorsement ban contained in” §6. Id., at 12. It also provides two examples of elections in which the word “Democratic” had been deleted from candidate statements. One involved an endorsement by a committee member of one of these respondents, then a candidate for local office, and in another the respondent committee member wished to mention that position in his own candidate statement. Ibid. Those elections occurred prior to the adoption of § 6(b), but at least one and perhaps both were held at a time when a California appellate court had found a ban on party endorsements implicit in the state constitutional provision designating which offices are nonpartisan, now §6(a). See Unger v. Superior Court of Marin County, 102 Cal. App. 3d 681, 162 Cal. Rptr. 611 (1980), overruled by Unger v. Superior Court of City and County of San Francisco, 37 Cal. 3d 612, 692 P. 2d 238 (1984). B Respondents’ allegations indicate that, relevant to this suit, petitioners interpret §6(b) to apply to three different categories of speakers. First, as suggested by the language of the provision, it applies to party central committees. Second, petitioners’ reliance on §6(b) to edit candidate statements demonstrates that they believe the provision applies as well to the speech of candidates for nonpartisan office, at least in the forum provided by the voter pamphlets. Third, petitioners have interpreted § 6(b) to apply to members and officers of party central committees, as shown by their policy of deleting references to endorsements by these individuals from candidate statements. The first of these interpretations flows from the plain language of § 6(b), while the second and third require inferences from the text. As an initial matter, serious questions arise concerning the standing of respondents to defend the rights of speak- RENNE v. GEARY 319 312 Opinion of the Court ers in any of these categories except to the extent that certain respondents in the third category may assert their own rights. In their capacity as voters, respondents only allege injury flowing from application of § 6(b) to prevent speech by candidates in the voter pamphlets. We have at times permitted First Amendment claims by those who did not themselves intend to engage in speech, but instead wanted to challenge a restriction on speech they desired to hear. See, e. g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976). There is reason to doubt, however, that the injury alleged by these voters can be redressed by a declaration of § 6(b)’s invalidity or an injunction against its enforcement. See AS ARCO Inc. v. Kadish, 490 U. S. 605, 615-616 (1989) (opinion of Kennedy, J., joined by Rehnquist, C. J., and Stevens and Scalia, JJ.) (party seeking to invoke authority of federal courts must show injury “likely to be redressed by the requested relief”); Allen n. Wright, 468 U. S. 737, 751 (1984) (“relief from the injury must be ‘likely’ to follow from a favorable decision”); Simon n. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 38 (1976). A separate California statute, the constitutionality of which was not litigated in this case, provides that a candidate’s statement “shall not include the party affiliation of the candidate, nor membership or activity in partisan political organizations.” Cal. Elec. Code Ann. § 10012 (West 1977 and Supp. 1991). This statute might be construed to prevent candidates from mentioning party endorsements in voter pamphlets, even in the absence of §6(b). Overlapping enactments can be designed to further differing state interests, and invalidation of one may not impugn the validity of another. The respondent committee members allege injury to their rights, either through their committees or as individual committee members, to endorse candidates for nonpartisan offices, and also allege injury from the inability of candidates to include those endorsements in voter pamphlets. Respond 320 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. ents of course have standing to claim that § 6(b) has been applied in an unconstitutional manner to bar their own speech. Apart, though, from the possibility of an overbreadth challenge, an alternative we discuss below, the standing of the committee members to litigate based on injuries to the rights of their respective committees is unsettled. See Bender n. Williamsport Area School Dist., 475 U. S., at 543-545 (school board member, as member of a “collegial body,” could not take appeal board as a whole declined to take). It may be that rights the committee members can exercise only in conjunction with the other members of the committee must be defended by the committee itself. Nor is it clear, putting aside our concerns about redressability, that the committee members have third-party standing to assert the rights of candidates, since no obvious barrier exists that would prevent a candidate from asserting his or her own rights. See Powers v. Ohio, 499 U. S. 400, 414-415 (1991). C Justiciability concerns not only the standing of litigants to assert particular claims, but also the appropriate timing of judicial intervention. See Regional Rail Reorganization Act Cases, 419 U. S. 102,136-148 (1974). Respondents have failed to demonstrate a live dispute involving the actual or threatened application of §6(b) to bar particular speech. Respondents’ generalized claim that petitioners have deleted party endorsements from candidate statements in past elections does not demonstrate a live controversy. So far as we can discern from the record, those disputes had become moot by the time respondents filed suit. While the mootness exception for disputes capable of repetition yet evading review has been applied in the election context, see Moore v. Ogilvie, 394 U. S. 814, 816 (1969), that doctrine will not revive a dispute which became moot before the action commenced. “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive re RENNE v. GEARY 321 312 Opinion of the Court lief... if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U. S. 488, 495-496 (1974); see Los Angeles v. Lyons, 461 U. S. 95 (1983). The allegation that the Democratic committee has not endorsed candidates “[i]n elections since 1986” for fear of the consequences of violating §6, App. 12, provides insufficient indication of a controversy continuing at the time this litigation began or arising thereafter. The affidavit provides no indication whom the Democratic committee wished to endorse, for which office, or in what election. Absent a contention that § 6(b) prevented a particular endorsement, and that the controversy had not become moot prior to the litigation, this allegation will not support an action in federal court. Nor can a ripe controversy be found in the fact that the Republican committee endorsed candidates for nonpartisan elections in 1987, the year this suit was filed. Whether or not all of those endorsements involved elections pending at the time this action commenced, a point on which the affidavit is not clear, we have no reason to believe that § 6(b) had any impact on the conduct of those involved. The committee made these endorsements “despite objections from some that such endorsements are prohibited” by the provision at issue. App. 15. Nothing in the record suggests that any action was taken to enforce §6(b) as a result of those endorsements. We know of no adverse consequences suffered by the Republican committee or its members due to the apparent violation of § 6(b). We also have no indication that any of the three endorsed candidates desired or attempted to include the party’s endorsement in a candidate statement. We also discern no ripe controversy in the allegations that respondents desire to endorse candidates in future elections, either as individual committee members or through their committees. Respondents do not allege an intention to endorse any particular candidate, nor that a candidate wants to include a party’s or committee member’s endorsement in a candidate statement. We possess no factual record of an ac 322 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. tual or imminent application of § 6(b) sufficient to present the constitutional issues in "clean-cut and concrete form.” Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549, 584 (1947); see Socialist Labor Party v. Gilligan, 406 U. S. 583 (1972); Public Affairs Associates, Inc. n. Rickover, 369 U. S. Ill (1962) (per curiam); Alabama State Federation of Labor v. McAdory, 325 U. S. 450 (1945). We do not know the nature of the endorsement, how it would be publicized, or the precise language petitioners might delete from the voter pamphlet. To the extent respondents allege that a committee or a committee member wishes to "support” or “oppose” a candidate other than through endorsements, they do not specify what form that support or opposition would take. The record also contains no evidence of a credible threat that § 6(b) will be enforced, other than against candidates in the context of voter pamphlets. The only instances disclosed by the record in which parties endorsed specific candidates did not, so far as we can tell, result in petitioners taking any enforcement action. While the record indicates that the Democratic committee feared prosecution of its members if it endorsed a candidate, we find no explanation of what criminal provision that conduct might be held to violate. Petitioners’ counsel indicated at oral argument that §6(b) carries no criminal penalties, and may only be enforced by injunction. Nothing in the record suggests that petitioners have threatened to seek an injunction against county committees or their members if they violate § 6(b). While petitioners have threatened not to allow candidates to include endorsements by county committees or their members in the voter pamphlets prepared by the government, we do not believe deferring adjudication will impose a substantial hardship on these respondents. In all probability, respondents can learn which candidates have been endorsed by particular parties or committee members through other means. If respondents or their committees do desire to make a particular endorsement in the future, and a candidate wishes to RENNE v. GEARY 323 312 Opinion of the Court include the endorsement in a voter pamphlet, the constitutionality of petitioners’ refusal to publish the endorsement can be litigated in the context of a concrete dispute. Postponing consideration of the questions presented, until a more concrete controversy arises, also has the advantage of permitting the state courts further opportunity to construe §6(b), and perhaps in the process to “materially alter the question to be decided.” Babbitt v. Farm Workers, 442 U. S. 289, 306 (1979); see also Webster v. Reproductive Health Services, 492 U. S. 490, 506 (1989) (plurality opinion). It is not clear from the language of the provision, for instance, that it applies to individual members of county committees. This apparent construction of the provision by petitioners, which may give respondents standing in this case, could be held invalid by the state courts. State courts also may provide further definition to §6(b)’s operative language, “endorse, support, or oppose.” “Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function.” Longshoremen v. Boyd, 347 U. S. 222, 224 (1954). D We conclude with a word about the propriety of resolving the facial constitutionality of §6(b) without first addressing its application to a particular set of facts. In some First Amendment contexts, we have permitted litigants injured by a particular application of a statute to assert a facial overbreadth challenge, one seeking invalidation of the statute because its application in other situations would be unconstitutional. See Broadrick v. Oklahoma, 413 U. S. 601 (1973). We have some doubt that respondents’ complaint should be construed to assert a facial challenge to § 6(b). Beyond question, the gravamen of the complaint is petitioners’ application of § 6(b) to delete party endorsements from candidate statements in voter pamphlets. While the complaint seeks a dec 324 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. laration of §6(b)’s unconstitutionality, the only injunctive relief it requests relates to the editing of candidate statements. References to other applications of § 6(b) are at best conclusory. But even if one may read the complaint to assert a facial challenge, the better course might have been to address in the first instance the constitutionality of § 6(b) as applied in the context of voter pamphlets. “It is not the usual judicial practice, . . . nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily—that is, before it is determined that the statute would be valid as applied. Such a course would convert use of the overbreadth doctrine from a necessary means of vindicating the plaintiff’s right not to be bound by a statute that is unconstitutional into a means of mounting gratuitous wholesale attacks upon state and federal laws.” Board of Trustees of State University of N. Y. v. Fox, 492 U. S. 469, 484-485 (1989); see also Brockett n. Spokane Arcades, Inc., 472 U. S. 491, 503-504 (1985). If the as-applied challenge had been resolved first in this case, the problems of justiciability that determine our disposition might well have concluded the litigation at an earlier stage. Ill The free speech issues argued in the briefs filed here have fundamental and far-reaching import. For that very reason, we cannot decide the case based upon the amorphous and ill-defined factual record presented to us. Rules of justiciability serve to make the judicial process a principled one. Were we to depart from those rules, our disposition of the case would lack the clarity and force which ought to inform the exercise of judicial authority. The judgment is vacated, and the case is remanded with instructions to dismiss respondents’ third cause of action without prejudice. It is so ordered. RENNE v. GEARY 325 312 Stevens, J., concurring Justice Stevens, concurring. The dissenting opinions in this case illustrate why the Court should decline review of the merits of the case in its present posture. Justice Marshall concludes that Article II, § 6(b), of the California Constitution is invalid on its face because it is overbroad. Justice White, on the other hand, concludes that respondents’ complaint may not be construed as including a facial overbreadth challenge, and that § 6(b) is valid insofar as it is applied to petitioners’ policy of refusing to include endorsements in candidates’ campaign mailings. Given the very real possibility that the outcome of this litigation depends entirely on whether the complaint should be construed as making a facial challenge or an as-applied challenge—for it is apparent that Justice White and Justice Marshall may both be interpreting the merits of their respective First Amendment questions correctly—and given the difficulty of determining whether respondents’ complaint against petitioners’ policy of deleting party endorsements from candidates’ statements may fairly be construed as including a facial overbreadth challenge, the Court is surely wise in refusing to address the merits on the present record. Two other prudential concerns weigh against deciding the merits of this case. First, I am not sure that respondents’ challenge to petitioners’ policy of deleting party endorsements is ripe for review. If such a challenge had been brought by a political party or a party central committee, and if the complaint had alleged that these organizations wanted to endorse, support, or oppose a candidate for nonpartisan office but were inhibited from doing so because of the constitutional provision, the case would unquestionably be ripe. Cf. Eu v. San Francisco Cty. Democratic Central Comm., 489 U. S. 214 (1989). Because I do not believe an individual member of a party or committee may sue on behalf of such an organization, see Bender v. Williamsport Area School Dist., 475 U. S. 534, 544 (1986), however, no such plaintiff presenting a ripe controversy is before us. Alternatively, if this ac 326 OCTOBER TERM, 1990 Stevens, J., concurring 501 U. S. tion had been brought by a candidate who had been endorsed by a political party and who sought to include that endorsement in his or her candidate’s statement, we would also be confronted with a ripe controversy. Unlike such scenarios, however, the respondents in this case are voters. They claim, based on petitioners’ representations, that § 6(b) of the State Constitution forms the basis for petitioners’ policy of deleting party endorsements from candidates’ mailed statements. But there are at least two hurdles that these respondents must overcome before their claim would be ripe for judicial review. First, they must prove that political parties would endorse certain candidates if §6(b) were repealed or invalidated. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 756, and n. 14 (1976) (allowing listeners of potential speech to bring an anticipatory challenge where the parties stipulate that “a speaker exists”). Arguably, respondents have met this hurdle by offering several affidavits of members of party central committees stating that the committees plan to endorse candidates for nonpartisan office and to seek to have those endorsements publicized. See, e. g., App. 15. Second, respondents must prove that specific candidates for nonpartisan office would seek to mention the party endorsements in their statements if petitioners’ policy of deleting such endorsements were declared invalid (moreover, to prove injury to their interest as informed voters, respondents would perhaps also have to allege that they would not otherwise know about the endorsements if the endorsements are not included in mailed candidates’ statements). This latter hurdle has not, in my opinion, been met by respondents in such a way as to ensure that we are confronted by a definite and ripe controversy. Moreover, I am troubled by the redressability issues inherent in this case. Respondents’ complaint has challenged § 6(b) of the State Constitution, but it has not challenged the validity of § 10012 of the California Elections Code. That sec RENNE v. GEARY 327 312 White, J., dissenting tion plainly prohibits the inclusion of the party affiliation of candidates in nonpartisan elections, and unquestionably would provide an adequate basis for petitioners’ challenged policy even if the constitutional prohibition against endorsements were invalidated. Even if we were to strike down § 6(b) as overbroad, then, it is unclear whether respondents’ alleged injury would be redressed. These three unsettled issues—involving whether a facial overbreadth challenge may be construed to have been made, whether respondents’ challenge is ripe, and whether their injury is redressable—coalesce to convince me that review of the merits of respondents’ challenge is best left for another day and another complaint. No substantial hardship would accrue from a dismissal of respondents’ action without prejudice, and the courts would benefit from a more precise articulation of a current and definite controversy. I therefore join the Court’s opinion and judgment ordering the lower courts to dismiss the action without prejudice. Justice White, dissenting. The majority’s concerns about the justiciability of this case, even though ultimately misplaced, are understandable, in fight of the failure by the courts below to analyze the precise nature of the constitutional challenge that is presented here. Those concerns, however, should not prevent us from independently examining the record and deciding the issues that are properly presented. In doing so, I conclude that the only constitutional challenge that is properly before us is to the action by the San Francisco Registrar of Voters in deleting references in official voter pamphlets to political party endorsements, a challenge that is fully justiciable. Because the registrar’s action does not violate the First Amendment, I would reverse the judgment of the Court of Appeals. I therefore dissent from the majority’s disposition of this case. 328 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. I The courts below erred in treating respondents’ challenge in this case as a facial challenge to the constitutionality of Article II, § 6(b), of the California Constitution. Respondents’ complaint reveals that they challenged only the application of § 6(b) by San Francisco’s Registrar of Voters in refusing to print in voter pamphlets references to endorsements by political parties.* After listing the defendants, the complaint sets forth the background for its three causes of action: “In connection with each municipal election, the City and County mails a voters pamphlet to all registered voters. Said pamphlet contains ballot arguments for and against City and County measures, and statements of qualifications of candidates for City and County offices. Defendant PATTERSON [the Registrar of Voters] is responsible for preparing and publishing said voters pamphlet.” App. 3, 1110. The first cause of action then challenges the registrar’s deletion of portions of proposed ballot arguments submitted for inclusion in the voter pamphlets. 2 Record, Complaint KK 11-20. The second cause of action challenges the registrar’s charge of a fee for ballot arguments. Id., KK21-30. The third cause of action is the one that is at issue in this case. That cause of action, like the two before it, concerns *Pursuant to both local and state law, the San Francisco Registrar of Voters prepares, publishes, and distributes to voters an information pamphlet for nonpartisan municipal elections. The pamphlet contains personal statements by candidates for nonpartisan offices, the text of each ballot measure submitted to the voters, digests of the measures, and arguments for and against the measures. See Geary v. Renne, 914 F. 2d 1249, 1251 (CA9 1990). The pamphlet is subsidized by the city, “with mailing and distribution costs borne by the city and the authors of ballot arguments charged a minimal sum to defray printing costs.” Patterson v. Board of Supervisors of City and County of San Francisco, 202 Cal. App. 3d 22, 30, 248 Cal. Rptr. 253, 259 (1988). RENNE v. GEARY 329 312 White, J., dissenting actions by the registrar with regard to the voter pamphlets. Specifically, respondents alleged: “In the past, defendants PATTERSON and CITY AND COUNTY OF SAN FRANCISCO have deleted all references in candidate’s statements for City and County offices to endorsements by political party central committees or officers or members of such committees. Unless restrained from doing so by order of this court, defendants threaten to continue to delete or exclude all references in candidate’s statements to endorsement of candidates by political party central committees, or officers or members of such central committees.” App. 5, 1138. Respondents also stated that they “desire to read endorsements of candidates for city and county office as part of candidate’s statements printed in the San Francisco voters pamphlet.” 1137. Finally, the only injunctive relief sought based on the third cause of action relates to the deletion of endorsements from the voter pamphlets. Id., at 6, If6. In entering summary judgment in favor of respondents on the third cause of action, the District Court described respondents’ claim as follows: “Plaintiffs claim—and defendants admit—that defendants refuse to permit political party and political party central committee endorsements of candidates for such offices to be printed in the San Francisco voter’s pamphlet on account of said state constitutional provision.” 708 F. Supp. 278, 279 (ND Cal. 1988). Similarly, both the original Ninth Circuit panel and the en banc panel stated: “The basis of [respondents’] complaint as it relates to this appeal was the refusal of [petitioners], the City and County of San Francisco and the San Francisco Registrar of Voters, to permit official political party and party central committee endorsements of candidates for nonpartisan offices to be printed in the San Francisco Voter Pamphlet in connection with elections scheduled for June 330 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. 2 and November 3, 1987. [Petitioners] based their refusal to print party endorsements on the language of article II, §6(b).” 880 F. 2d 1062, 1063 (1989); 911 F. 2d 280, 282 (1990). As the above discussion reveals, and as the majority recognizes, see ante, at 323-324, it is far from clear that a facial challenge to the constitutionality of §6(b) was presented in this case. Both the District Court and the en banc Court of Appeals nevertheless invalidated §6(b) on its face, without analyzing the nature of respondents’ claim. In doing so, they violated two important rules of judicial restraint applicable to the resolution of constitutional issues—“‘one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’” United States v. Raines, 362 U. S. 17, 21 (1960), quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885). See also 911 F. 2d, at 304-305 (Rymer, J., dissenting) (arguing that § 6(b) should not be invalidated on this record). II I have no doubt that the narrow issue presented in this case is justiciable. As the majority recognizes, ante, at 319, respondents in their capacity as registered voters are alleging that § 6(b), as applied by the registrar to the voter pamphlets, interferes with their right to receive information concerning party endorsements. Such a claim finds support in our decisions, which have long held that the First Amendment protects the right to receive information and ideas, and that this right is sufficient to confer standing to challenge restrictions on speech. See, e. g., Virginia State Bd. of Pharmacy n. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 756-757 (1976); Kleindienst v. Mandel, 408 U. S. 753, 762 (1972); Red Lion Broadcasting Co. n. FCC, 395 RENNE v. GEARY 331 312 White, J., dissenting U. S. 367, 390 (1969); Stanley v. Georgia, 394 U. S. 557, 564 (1969). The majority nevertheless speculates that there is no standing here because a provision in the California Elections Code “might be construed to prevent candidates from mentioning party endorsements in voter pamphlets, even in the absence of § 6(b).” Ante, at 319. That makes no sense. A constitutional challenge to a law is not barred merely because other laws might also mandate the allegedly unconstitutional action. If so, it would mean that the States or the Federal Government could insulate unconstitutional laws from attack simply by making them redundant. The majority’s confusion on this issue is illustrated by its reliance on ASARCO Inc. v. Kadish, 490 U. S. 605, 615-616 (1989). There, the plaintiffs challenged the validity of a state statute governing mineral leases, basing their standing on the claim that the statute deprived school trust funds of millions of dollars and thereby resulted in higher taxes. Id., at 614. Four Members of this Court noted that even if the statute were struck down, it was far from clear that the plaintiffs would enjoy any tax relief: “If respondents prevailed and increased revenues from state leases were available, maybe taxes would be reduced, or maybe the State would reduce support from other sources so that the money available for schools would be unchanged.” Ibid. The difference between ASARCO and the present case is obvious. In ASARCO, the State could, by other actions, legally preclude the relief sought by the plaintiffs. By contrast, in this case if petitioners’ refusal to allow references to party endorsements in voter pamphlets is unconstitutional when based on §6(b), it probably is also unconstitutional if based on some other state law, such as California’s Elections Code. The injury alleged by respondents, therefore, “is likely to be redressed by a favorable decision.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 38 (1976). 332 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. The majority’s concerns about the ripeness of respondents’ challenge, see ante, at 320-323, also are not sufficient to preclude our review. Although I agree with the majority that the possible applications of § 6(b) to speech by political parties and their members is not properly before us, here respondents have alleged, and petitioners have admitted, that San Francisco’s Registrar of Voters has deleted references to political party endorsements from candidate statements printed in official voter pamphlets, and that he threatens to continue to do so in the future. See App. 5, If 38; id., at 9, U XIV. Indeed, the majority admits that the record contains “evidence of a credible threat that §6(b) will be enforced . . . against candidates in the context of voter pamphlets.” Ante, at 322. The registrar’s past conduct makes his threat “sufficiently real and immediate to show an existing controversy. ” O’Shea v. Littleton, 414 U. S. 488, 496 (1974). See, e. g., Blum v. Yaretsky, 457 U. S. 991, 1000-1001 (1982) (allowing nursing home residents to sue to prevent threatened transfers); Steffel v. Thompson, 415 U. S. 452, 459 (1974) (allowing action for declaratory relief based on threats of enforcement of antihandbilling statute). It is well settled that “ ‘[o]ne does not have to await the consummation of threatened injury to obtain preventive relief.’” Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979), quoting Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923). This is particularly true in the election context, where we often have allowed preenforcement challenges to restrictions on speech. See, e. g., Eu v. San Francisco Cty. Democratic Central Comm., 489 U. S. 214 (1989); Tashjian v. Republican Party of Connecticut, 479 U. S. 208 (1986); Buckley n. Valeo, 424 U. S. 1 (1976). I therefore dissent from the judgment ordering dismissal for want of justiciability. Ill Although the Court does not discuss the merits, I shall briefly outline my view that the state constitutional provision RENNE v. GEARY 333 312 White, J., dissenting at issue in this case is constitutional as applied to the exclusion of party endorsements from the official voter pamphlets. California has decided that its “^Judicial, school, county, and city offices shall be nonpartisan.” Cal. Const., Art. II, § 6(a). I am confident that this provision is valid at least insofar as it authorizes the State not to identify on the official ballot candidates for nonpartisan offices as the candidates of political parties. The interests proffered as supporting California’s nonpartisan provision—promotion of the impartial administration of government, prevention of corruption, and the avoidance of the appearance of bias—are interests that we have already held are sufficiently important to justify restrictions on partisan political activities. See Civil Service Commission v. Letter Carriers, 413 U. S. 548, 565 (1973). These interests are also similar to the interests supporting limitations on ballot access and voting eligibility that have been upheld by this Court. See American Party of Texas n. White, 415 U. S. 767, 786 (1974); Storer v. Brown, 415 U. S. 724, 736 (1974); Rosario v. Rockefeller, 410 U. S. 752, 761 (1973); Jenness v. Fortson, 403 U. S. 431, 442 (1971). If the State may exclude party designations from the ballot, it surely may exclude party endorsements from candidate statements contained in the official voter pamphlet prepared by the government and distributed to prospective voters. It is settled that “the First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” United States Postal Service v. Council of Greenburgh Civic Assns., 453 U. S. 114, 129 (1981). The voter information pamphlet obviously is not a traditional public forum, and its use may be limited to its intended purpose, which is to inform voters about nonpartisan elections. See Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 46, n. 7 (1983). Refusing to permit references in candidate statements to party endorsements is therefore plainly constitutional. 334 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. Accordingly, I would reverse the judgment of the Court of Appeals. Justice Marshall, with whom Justice Blackmun joins, dissenting. Article II, §6(b) of the California Constitution provides that “[n]o political party or party central committee may endorse, support, or oppose a candidate for nonpartisan office.” In a form of action extremely familiar to the federal courts, see, e. g., Buckley v. Valeo, 424 U. S. 1 (1976); Eu n. San Francisco County Democratic Central Committee, 489 U. S. 214 (1989); Tashjian v. Republican Party of Connecticut, 479 U. S. 208 (1986), respondents brought a pre-enforcement challenge to § 6(b), seeking a declaration that § 6(b) violates the First Amendment and an injunction against its application to candidate statements published in official “voter pamphlets.” We granted certiorari in this case, 498 U. S. 1046 (1991), to review the decision of the Ninth Circuit, sitting en banc, that § 6(b) violates the First Amendment. The majority vacates the judgment below and remands the case with instructions to dismiss. It does so not because it disagrees with the merits of respondents’ constitutional claim; indeed, the majority never reaches the merits. Rather, the majority finds a threshold defect in the “justiciability” of this case that did not occur to any of the courts below or to any party in more than three years of prior proceedings. Federal courts, of course, are free to find, on their own motion, defects in jurisdiction at any stage in a suit. But the majority’s conclusion that respondents have failed to demonstrate a “live controversy ripe for resolution by the federal courts,” ante, at 315, is simply not supported by the record of this case or by the teachings of our precedents. Because I cannot accept either the views expressed in, or the result reached by, the majority’s opinion, and because I would affirm the decision of the Ninth Circuit on the merits, I dissent. RENNE v. GEARY 335 312 Marshall, J., dissenting I I consider first the question of justiciability. Respondents are 10 registered California voters, including a chairman and certain individual members of the local Democratic and Republican Party central committees.1 Respondents’ complaint alleges that petitioner municipal officials relied upon §6(b) to adopt a policy of deleting “all references ... to [party] endorsement[s]” from candidate statements submitted for inclusion in official “voter pamphlets” and that petitioners have announced their intention to make such redactions in future elections. App. 5, 38. The existence of the redaction policy is expressly admitted by petitioners in their answer. See id., at 9, 1iXIV. Respondents maintain that this policy frustrates the “desire [of respondent committee members] ... to publicize [party] endorsements” and the “desire [of all respondents] to read endorsements” in the voter pamphlets. Id., at 4-5, 36-37. The complaint prays for a declaration that § 6(b) violates the First Amendment and for an injunction against petitioners’ continued enforcement of § 6(b) by means of the redaction policy. Id., at 6, ffl[3, 6. I would have thought it quite obvious that these allegations demonstrate a justiciable controversy. In cases in precisely the same posture as this one, we have repeatedly entertained pre-enforcement challenges to laws restricting election-related speech. See, e. g., Buckley n. Valeo, supra, at 12 (1976); Eu v. San Francisco Democratic Central Committee, supra; see also Tashjian n. Republican Party of Connecticut, supra. Indeed, standing and ripeness arguments nearly identical to those canvassed by the majority today were expressly considered and rejected by the Ninth * ’In addition, there is one organization respondent, Election Action, which is committed to placing certain referenda matters on the ballot in California. As the majority notes, see ante, at 314-315, Election Action asserts no stake in this litigation independent of the individual voters who constitute its membership. 336 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. Circuit in Eu, see San Francisco County Democratic Central Committee v. Eu, 826 F. 2d 814, 821-824 (1987), which no doubt explains why the lower courts and the parties did not even bother to return to these issues in this case. Essentially ignoring the wealth of relevant case law, the majority proceeds as if the justiciability questions presented by this case—questions of standing and ripeness—were novel and unresolved. On the issue of standing, the majority purports to find “serious questions” concerning respondents’ entitlement to challenge §6(b). Ante, at 318. Since mere “questions” about standing cannot sustain the dismissal of a suit, one wonders why the majority offers dicta of this kind. As it turns out, the majority uses this opportunity to espouse a novel basis for denying a party standing; the proffered theory is both illogical and unsupported by any precedent. As for ripeness, which the majority finds to be the dispositive jurisdictional defect, today’s decision erroneously concludes that there is no “live dispute involving the actual or threatened application of §6(b) to bar particular speech.” Ante, at 320. I am persuaded by neither the majority’s “doubt” whether respondents have standing, ante, at 319, nor the majority’s certainty that this case is unripe. A In order to demonstrate standing, “[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S. 737, 751 (1984). In my view, “careful . . . examination of [the] complain[t],” id., at 752, makes it clear that these requirements are met in this case. All of the individual respondents are registered voters in California. See App. 2, KI. Moreover, all allege that petitioners’ redaction policy has injured them in that capacity by restricting election-related speech that respondents wish to consume. See id., at 5, KK37-38. As the majority acknowledges, see ante, at 319, our cases recognize that “lis RENNE v. GEARY 337 312 Marshall, J., dissenting teners” suffer a cognizable First Amendment injury when the State restricts speech for which they were the intended audience. See, e. g., Virginia Pharmacy Board n. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 756-757 (1976); see also San Francisco County Democratic Central Committee v. Eu, supra, (applying “listener” standing in election-law setting), aff’d, 489 U. S. 214 (1989). Nor can there be any doubt that the injury that respondents allege as listeners of election speech is “fairly traceable” to petitioners’ redaction policy. Finally, this injury would, in my view, be redressed by the relief requested by respondents, for an injunction against the redaction policy would prevent petitioners from continuing to block respondents’ access to committee endorsements in voter pamphlets. The majority’s “doubt” about respondents’ entitlement to proceed on a listener-standing theory2 relates wholly to redressability. The majority notes that a provision in the California Elections Code bars inclusion of a candidate’s party affiliation in the statement submitted for publication in a voter pamphlet. See Cal. Elec. Code Ann. §10012 (West 1977 and Supp. 1991). The majority speculates that, if respondents succeed in invalidating §6(b), petitioners might henceforth rely on § 10012 as a basis for continuing their policy of deleting endorsements. See ante, at 319. Articulating a novel theory of standing, the majority reasons that the registrar’s possible reliance upon §10012 to implement the same policy currently justified by reference to § 6(b) would defeat the redressability of respondents’ listener injury. 2 Because all respondents clearly have standing as potential receivers of protected speech, it is unnecessary to resolve whether certain respondents also have standing, in their capacity as committee members, to contest deletion from voter pamphlets of the committee’s endorsement. Were this the only available basis for respondents’ standing, it would be necessary to determine whether individual committee members may challenge infringement of the right to publicize an endorsement that is issued by the committee as a whole. As the majority points out, this matter is “unsettled.” Ante, at 320. 338 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. In my view, this theory is not only foreign to our case law3 but is also clearly wrong. If the existence of overlapping laws could defeat redressability, legislatures would simply pass “backup” laws for all potentially unconstitutional measures. Thereafter, whenever an aggrieved party brought suit challenging the State’s infringement of his constitutional rights under color of one law, the State could advert to the existence of the previously unrelied-upon backup law as an alternative basis for continuing its unconstitutional policy, thereby defeating the aggrieved party’s standing. I cannot believe that Article II contemplates such an absurd result. Obviously, if respondents succeed on the merits of their constitutional challenge to § 6(b), the immediate effect will be to permit candidates to include endorsements in the voter pamphlet. This is so because no other law (and no other interpretation of a law that petitioners have formally announced) purports to bar inclusion of such endorsements. Perhaps, as the majority speculates, see ante, at 319, petitioners will subsequently attempt to reinstate their redaction policy under some legal authority other than §6(b). But whether or not they ultimately do so has no consequence here. Just as a plaintiff cannot satisfy the redressability component of standing by showing that there is only a possibility that a defendant will respond to a court judgment by ameliorating the plaintiff’s injury, see Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26, 43 (1976), so a defendant cannot defeat the plaintiff’s standing to seek a favorable judgment simply by alleging a possibility that the defendant may 8 In support of its novel approach to standing, the majority cites no cases in which an injury was deemed unredressable because the challenged government conduct might have been—but was not—justified with reference to some law other than the one upon which the government officials relied. Indeed, the only precedents that the majority cites, ante, at 319, are decisions imposing the general requirement that injuries be redressable. Stated at that level of generality, the principle is uncontrovertible— but it is also of no help to the majority here. RENNE v. GEARY 339 312 Marshall, J., dissenting subsequently act to undermine that judgment’s ameliorating effect. B Under our precedents, the question whether a preenforcement challenge to a law is ripe “is decided on a case-by-case basis, by considering [1] the likelihood that the complainant will disobey the law, [2] the certainty that such disobedience will take a particular form, [3] any present injury occasioned by the threat of [enforcement], and [4] the likelihood that [enforcement efforts] will actually ensue.” Regional Rail Reorganization Act Cases, 419 U. S. 102, 143, n. 29 (1974). Like the pre-enforcement challenges in Buck-ley v. Valeo, 424 U. S. 1 (1976); Eu v. San Francisco Democratic Central Committee, 489 U. S. 214 (1989); and Tashjian v. Republican Party of Connecticut, 479 U. S. 208 (1986), this case easily satisfies these requirements. The record clearly demonstrates the likelihood of both future disobedience of §6(b) and future enforcement of that provision by way of petitioners’ redaction policy. As even the majority acknowledges, see ante, at 321, some respondent central committee members have expressed an intention to continue endorsement of candidates for nonpartisan offices. Indeed, the chairman of one committee, in addition to identifying the specific candidates that the committee has endorsed in past elections, states in an affidavit that it is the committee’s “plan and intention... to endorse candidates for nonpartisan offices in as many future elections as possible.” App. 15. Likewise, as the majority acknowledges, see ante, at 322, petitioners expressly admit in their answer to the complaint that they intend to enforce §6(b) by deleting all references to party endorsements from candidate statements submitted for inclusion in official voter pamphlets. See App. 9, 11XIV. Of course, petitioners will have occasion to enforce § 6(b) in this manner only if candidates seek to include such endorsements in their statements. Respondents allege and petitioners concede, however, that candidates have 340 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. sought to advert to such endorsements in their statements in the past and that petitioners have always deleted them from the voter pamphlets. Id., at 5, H38; id., at 9, HXIV. When combined with the clearly expressed intentions of the parties, these allegations of “past wrongs” furnish sufficient evidence of “a real and immediate threat of repeated injury.” O’Shea v. Littleton, 414 U. S. 488, 496 (1974). It is also clear that respondents have alleged sufficient “present injury occasioned by the threat of [future enforcement].” Regional Rail Reorganization Act Cases, supra, at 143, n. 29. Obviously, the reason that parties bring preenforcement challenges to laws that restrict election-related speech is to avoid the risk that a court will be unable to dispose of a postenforcement challenge quickly enough for the challenging parties to participate in a scheduled election. Buckley n. Valeo, supra. Our mootness jurisprudence responds to this dilemma by applying the capable-of-repetition-yet-evading-review doctrine to preserve the justiciability of an election-law challenge even after the election at issue has taken place. See, e. g., Anderson v. Celebrezze, 460 U. S. 780, 784, n. 3 (1983); First National Bank of Boston v. Bel-lotti, 435 U. S. 765, 774-775 (1978); Storer v. Brown, 415 U. S. 724, 737, n. 8 (1974); Moore v. Ogilvie, 394 U. S. 814, 816 (1969). But insofar as the purpose of entertaining a case in that mootness posture is not to remedy past wrongs but rather to “simplif[y] future challenges [and] thus increas[e] the likelihood that timely filed cases can be adjudicated before an election is held,” Storer v. Brown, supra, at 737, n. 8 (emphasis added), it would be quite anomalous if ripeness doctrine were less solicitous of the interests of a party who brings a pre-enforcement challenge. For this reason, it is surely irrelevant that the record does not demonstrate an “imminent application of §6(b).” Ante, at 322. So long as the plaintiff credibly alleges that he plans to disobey an election law and that government officials plan to enforce it against him, he should not be forced to defer RENNE v. GEARY 341 312 Marshall, J., dissenting initiation of suit until the election is so “imminent” that it may come and go before his challenge is adjudicated. See Regional Rail Reorganization Act Cases, supra, at 143 (“ ‘One does not have to await the consummation of threatened injury to obtain preventive relief,’” quoting PennsyIvania v. West Virginia, 262 U. S. 553, 593 (1923)). Indeed, in Buck-ley v. Valeo, supra, we held a pre-enforcement challenge to be justiciable even though the case was filed in the District Court nearly two years before the next scheduled national election. See id., at 11-12. Similarly, nothing in Eu v. San Francisco Democratic Central Committee, supra, and Tashjian v. Republican Party of Connecticut, supra, suggests that elections were “imminent” when those cases were filed. Most of the majority’s concerns about the ripeness of this dispute arise from the majority’s uncertainty as to the “particular form” of future violations of §6(b). See Regional Rail Reorganization Act Cases, supra, at 143, n. 29. The majority notes, for example, that “Respondents do not allege an intention to endorse any particular candidate.” Ante, at 321. Similarly, the majority objects that “[w]e do not know the nature of the endorsement [that the parties will next make], how it would be publicized, or the precise language petitioners might delete from the voter pamphlet.” Ante, at 322. In my view, these uncertainties do not detract in the slightest from the ripeness of this case. The form of future disobedience can only matter in ripeness analysis to the extent that it bears on the merits of a plaintiff’s pre-enforcement challenge. The majority never bothers to explain how the identity of the endorsed candidates, the “nature” of the endorsement, the mode of publicity (outside of candidate statements submitted for inclusion in voter pamphlets), or the precise language that petitioners might delete from the pamphlets affects the merits of respondents’ challenge. Indeed, it is quite apparent that none of these questions is relevant. 342 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. In Eu v. San Francisco Democratic Central Committee, 489 U. S. 214 (1989), we struck down a similar California provision that barred party endorsements in primary elections for partisan offices. See id., at 222-229. Nothing in our analysis turned on the identity of the candidates to be endorsed, the nature or precise language of the endorsements, or the mode of publicizing the endorsements. Similarly, here we can dispose of respondents’ challenge to § 6(b) knowing simply that party central committees will continue to make endorsements of candidates for nonpartisan offices and that petitioners will continue to redact those endorsements from the voter pamphlets.4 II Because I conclude that the controversy before us is justiciable, I would reach the merits of respondents’ challenge. In my view, it is clear that § 6(b) violates the First Amendment. 4 The majority cites a series of decisions to support its view that we do not know enough about the expressive activity restricted by § 6(b) to evaluate its constitutionality. Ante, at 322. The Court’s reasoning in the cited precedents, however, only confirms the deficiencies in the majority’s analysis here. For example, in Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549, 576-580 (1947), the Court found the dispute unripe for adjudication because it was unsure which criminal statutes would be applied to the petitioner or which other code sections were incorporated by reference in those statutes; in Socialist Labor Party v. Gilligan, 406 U. S. 583, 586 (1972), the Court found “no allegation of injury that the party has suffered or will suffer because of the existence of the [law challenged]” (emphasis added); and in Public Affairs Associates, Inc. v. Rickover, 369 U. S. Ill, 113 (1962), involving a public official’s disputed authorship rights in his speeches, the Court found the record “woefully lacking” because it omitted details—such as whether the official used government facilities and personnel to prepare his speeches—that bore directly upon the legal issue. Unlike the situation in these precedents, the respondents in this case have clearly identified the law that will be enforced to their detriment, the injury that will flow from that enforcement, and the relevant facts surrounding such enforcement. RENNE v. GEARY 343 312 Marshall, J., dissenting A At the outset, it is necessary to be more precise about the nature of respondents’ challenge. In effect, respondents’ complaint states two possible First Amendment theories. The first is that § 6(b), as that provision has been applied to delete endorsements from voter pamphlets, violates the First Amendment. See App. 4-5, Uli 36-39(a). The second is that § 6(b) on its face violates the First Amendment because it “purports to outlaw actions by county central committees ... to endorse, support or oppose candidates for city or county offices.” Id., at 4, H35. This second theory can be understood as an overbreadth challenge: that is, a claim that regardless of whether § 6(b) violates the First Amendment in its peripheral effect of excluding references to party endorsements from candidates’ statements, §6(b) is unconstitutional in its primary effect of barring parties and party committees from making endorsements. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 965-966 (1984) (party who suffers unwanted but constitutionally permissible effect of a law may nonetheless succeed in voiding that law by showing that “there is no core of easily identifiable and constitutionally proscribable conduct that the [provision] prohibits”).5 6 The majority expresses “doubt that respondents’ complaint should be construed to assert a facial challenge to § 6(b)” because the complaint prays for an injunction only against petitioners’ redaction policy and because “[r]eferences to other applications of § 6(b) [in the complaint] are at best conclusory.” Ante, at 323-324. Justice White’s dissenting opinion expresses a similar view. Ante, at 328, 330. But neither the majority nor Justice White explains why a party raising an overbreadth challenge must seek to enjoin applications of an invalid law other than the application that is injuring him. Moreover, to require a broader request for injunctive relief here would be both unfair and unnecessary. Although respondents know which officials should be enjoined in order to halt the redaction of voter pamphlets, respondents cannot know who will next enforce § 6(b) against party central committees that seek to endorse nonpartisan candidates. See, e. g., Unger v. Superior Court, 37 Cal. 3d 612, 692 P. 2d 238 344 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. As the majority notes, it is this Court’s “usual. . . practice . . . [not] to proceed to an overbreadth issue . . . before it is determined that the statute would be valid as applied.” Board of Trustees, State Univ, of N. Y. v. Fox, 492 U. S. 469, 484-485 (1989). This is so because (1984) (injunction sought by two registered Voters against party’s announcement of opposition to justices at confirmation election); Unger n. Superior Court, 102 Cal. App. 3d 681,162 Cal. Rptr. 611 (1980), cert, denied, 449 U. S. 1131 (1981) (injunction against party endorsement sought by rival candidate who was not endorsed). Should respondents obtain the declaratory relief that they seek, any future attempts to enforce §6(b) against a political party could easily be defeated by invoking that declaratory judgment. In sum, respondents’ request for a declaratory judgment that § 6(b) is unconstitutional furnishes ample basis for inferring that their complaint includes a facial challenge to § 6(b). The insistence by the majority and by Justice White that a party expressly style his claim in his complaint as a challenge based on overbreadth is also inconsistent with the liberal “notice pleading” philosophy that informs the Federal Rules of Civil Procedure. See Conley v. Gibson, 355 U. S. 41, 47-48 (1957); see generally Fitzgerald v. Codex Corp., 882 F. 2d 586, 589 (CAI 1989) (“[U]nder Fed. R. Civ. P. 8 it is not necessary that a legal theory be pleaded in the complaint if plaintiff sets forth ‘sufficient factual allegations to state a claim showing that he is entitled to relief’ under some [tenable] legal theory” (emphasis in original)). I am particularly perplexed by Justice White’s determination that “[t]he courts below erred in treating respondents’ challenge in this case as a facial challenge.” Ante, at 328 (emphasis added). At every stage of this litigation, beginning with respondents’ summary judgment motion, the parties have framed the constitutional question exclusively in terms of § 6(b)’s application to party endorsements, precisely the overbreadth argument that Justice White declines to reach. See Points and Authorities in Support of Summary Judgment in No. C-87-4724 AJZ (ND Cal.), pp. 22-26; Memorandum of Points and Authorities in Opposition to Summary Judgment in No. C-87-4724 AJZ (ND Cal.), pp. 20-41; Brief of Appellant in No. 88-2875 (CA9), pp. 7-18; Brief of Appellees in No. 88-2875 (CA9), pp. 5-36. In such circumstances, I do not understand what authority this Court would have for reversing the decision below, sua sponte, simply because the lower courts upheld a theory of relief not expressly relied upon in the complaint. See generally 5 C. Wright and A. Miller, Federal Practice and Procedure § 1219, p. 190 (2d ed. 1990) (text of Federal Rules “makes it very plain that the theory of the pleadings mentality has no place under federal practice”). RENNE v. GEARY 345 312 Marshall, J., dissenting “the overbreadth question is ordinarily more difficult to resolve than the as-applied, since it requires determination whether the statute’s overreach is substantial . . . ‘judged in relation to the statute’s plainly legitimate sweep,’ . . . and therefore requires consideration of many more applications than those immediately before the court.” Id., at 485 (emphasis in original), quoting Broadrick n. Oklahoma, 413 U. S. 601, 615 (1973). Nonetheless, the rule that a court should consider as-applied challenges before overbreadth challenges is not absolute. See, e. g., Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 573-574 (1987) (considering overbreadth challenge first); Houston v. Hill, 482 U. S. 451, 458-467 (1987) (same). Rather, the rule represents one prudential consideration among many in determining the order in which to evaluate particular constitutional challenges. In my opinion, competing prudential factors clearly support considering respondents’ overbreadth challenge first in this case. Unlike the situation in Fox, the as-applied challenge here is actually more difficult to resolve than is the overbreadth challenge. Insofar as they attack petitioners’ redaction policy as unconstitutional, respondents must be understood to argue that they have a right to receive particular messages by means of official voter pamphlets or a right to communicate their own messages by that means. Either way, this argument would require us to determine the “public forum” status of the voter pamphlets, cf. Perry Education Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 48 (1983), an issue on which the law is unsettled, see generally L. Tribe, American Constitutional Law §12-24, p. 987 (2d ed. 1988) (noting “blurriness ... of the categories within the public forum classification”). By contrast, respondents’ overbreadth challenge is easily assessed. In the first place, the application of § 6(b) to party speech that “endorsefs], sup-port[s], or opposefs] a[ny] candidate for nonpartisan office” clearly is “substantial” when compared with § 6(b)’s only alleged “legitimate” application, namely, the redaction of voter 346 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. pamphlets. Moreover, the constitutional doctrine relevant to § 6(b)’s restriction of party speech is well settled. See Eu n. San Francisco Democratic Central Committee, 489 U. S. 214 (1989). Rather than undertaking to determine what sort of “public forum” voter pamphlets might constitute—a finding that could have broad ramifications, see, e. g., Patterson n. Board of Supervisors of City and County of San Francisco, 202 Cal. App. 3d 22, 248 Cal. Rptr. 253 (1988) (suit challenging constitutionality of §§ 3795 and 5025 of California Elections Code, authorizing deletions from arguments about ballot propositions in the voter pamphlet)—a court should, if possible, resolve this constitutional challenge by well-settled doctrine. See, e. g., Webster v. Reproductive Health Services, 492 U. S. 490,525-526 (1989) (O’Connor, J., concurring in part and concurring in judgment). In addition, both the District Court and the Court of Appeals disposed of respondents’ challenge on overbreadth grounds, and that is the only theory briefed by the parties in this Court. Because the as-applied component of respondents’ challenge has not been fully aired in these proceedings, resolving the case on that basis presents a significant risk of error. For these reasons, I turn to respondents’ overbreadth challenge, which I find to be dispositive of this case.6 6 It is, of course, no impediment to proceeding on an overbreadth theory that petitioners’ redaction policy supplies the ripe controversy in this case. The thrust of an overbreadth challenge is that a party is entitled “not to be bound by a [provision] that is unconstitutional.” Board of Trustees, State Univ. ofN. Y. v. Fox, 492 U. S. 469, 485 (1989). Thus, a pre-enforcement overbreadth challenge is ripe so long as the party can show that state actors will foreseeably apply a facially invalid law in a way that determines his rights. He need not show, in addition, that state actors are about to apply the law to third parties in the precise manner that renders the law facially invalid. As I have shown, respondents demonstrate a ripe dispute by credibly alleging that petitioners will apply § 6(b) in a manner that determines respondents’ right to receive election-related speech in official voter pamphlets. RENNE v. GEARY 347 312 Marshall, J., dissenting B Conceived of as an overbreadth challenge, respondents’ First Amendment attack upon §6(b) closely resembles the issue presented in Eu v. San Francisco Democratic Central Committee, supra. As I have noted, Eu struck down on First Amendment grounds a California law that prohibited the party central committees from “‘endorsing], supporting], or opposing]’” any candidate in primary elections for partisan offices. Id., at 217. We concluded in Eu that this “ban directly affect[ed] speech which ‘is at the core of our electoral process and of the First Amendment freedoms.’” Id., at 222-223, quoting Williams v. Rhodes, 393 U. S. 23, 32 (1968). We also determined that this prohibition was unsupported by any legitimate compelling state interest. The State defended the endorsement ban on the ground that it was necessary to prevent voter “confusion and undue [party] influence.” See 489 U. S., at 228. Properly understood, this claim amounted to no more than the proposition that the State could protect voters from being exposed to information on which they might rationally rely, a “ ‘highly paternalistic’ ” function to which the State could not legitimately lay claim. Id., at 223, quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 770; see 489 U. S., at 228-229. In my view, this case is directly controlled by Eu. As in Eu, there can be no question here that the endorsements that § 6(b) purports to make unlawful constitute core political speech. And, as in Eu, this prohibition is unsupported by any legitimate compelling state interest. Petitioners assert that § 6(b) advances a compelling state interest because it assures that “local government and judges in California are . . . controlled by the people [rather than] by those who run political parties.” Brief for Petitioners 7. The only kind of “control” that §6(b) seeks to prohibit, however, is that which “those who run political parties” are able to exert over voters through issuing party endorsements. In effect, then, 348 OCTOBER TERM, 1990 501 U. S. Marshall, J., dissenting petitioners are arguing that the State has an interest in protecting “the people” from their own susceptibility to being influenced by political speech. This is the very sort of paternalism that we deemed illegitimate in Eu. Drawing on our decision in Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990), petitioners try to repackage the State’s concern to protect voters from themselves as an interest in avoiding “corruption” of the electoral process. The law that was at issue in Austin barred corporations from making political expenditures from their corporate treasuries in favor of, or in opposition to, political candidates. We upheld the constitutionality of that law, finding that a State could legitimately prohibit “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” Id., at 660. Petitioners argue that California similarly should be able to prohibit political parties from using their special place in the political process to exercise a disruptive effect upon the election of nonpartisan office holders. Petitioners’ reliance on Austin is unavailing. The political activity that § 6(b) limits in this case is not the expenditure of money to further a viewpoint but merely the announcement of that viewpoint in the form of an endorsement. It is difficult to imagine how a political party’s announcement of its view about a candidate could exert an influence on voters that has “little or no correlation to the public’s support for the [party’s] political ideas.” Ibid. On the contrary, whatever influence a party wields in expressing its views results directly from the trust that it has acquired among voters. Thus, whereas the Austin Court worried that corporations might dominate elections with capital they had only accumulated by dint of “ ‘economically motivated decisions of investors and customers,’” id., at 659, the party endorsements in this case represent an expenditure of political capital accu RENNE v. GEARY 349 312 Marshall, J., dissenting mulated through past voter support. And, whereas the special benefits conferred by state law in Austin “enhance[d]” the corporations’ “ability to attract capital,” ibid., the benefits California confers upon parties—e. g., permitting taxpayers to make voluntary contributions to parties on their tax returns—should have little effect on the parties’ acquisition of political capital. In sum, the prospect that voters might be persuaded by party endorsements is not a corruption of the democratic political process; it is the democratic political process. In the final analysis, § 6(b) and the arguments that petitioners advance in support of it reflect an ambivalence about the democratic process itself. The possibility that judges and other elective nonpartisan office holders will fall under the influence of political parties is inherent in an electoral system in which voters look to others, including parties, for information relevant to exercise of the franchise. Of course, it is always an option for the State to end the influence of the parties by making these offices appointive rather than elective positions. But the greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process—voters, candidates, and parties—the First Amendment rights that attach to their roles. Because § 6(b) clearly fails to meet this standard, and because I believe that the lower courts properly determined that they were in a position to reach this conclusion now, I would affirm the judgment of the Ninth Circuit. Consequently, I dissent. 350 OCTOBER TERM, 1990 Syllabus 501 U. S. LAMPF, PLEVA, LIPKIND, PRUPIS & PETIGROW v. GILBERTSON ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 90-333. Argued February 19, 1991—Decided June 20, 1991 During 1979 through 1981, plaintiff-respondents purchased units in seven Connecticut limited partnerships, with the expectation of realizing federal income tax benefits. Among other things, petitioner, a New Jersey law firm, aided in organizing the partnerships and prepared opinion letters addressing the tax consequences of investing. The partnerships failed, and, subsequently, the Internal Revenue Service disallowed the claimed tax benefits. In 1986 and 1987, plaintiff-respondents filed complaints in the Federal District Court for the District of Oregon, alleging that they were induced to invest in the partnerships by misrepresentations in offering memoranda prepared by petitioner and others, in violation of, inter alia, § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, and asserting that they became aware of the alleged misrepresentations only in 1985. The court granted summary judgment for the defendants on the ground that the complaints were not timely filed, ruling that the claims were governed by Oregon’s 2-year limitations period for fraud claims, the most analogous forum-state statute; that plaintiff-respondents had been on notice of the possibility of fraud as early as 1982; and that there were no grounds sufficient to toll the statute of limitations. The Court of Appeals also selected Oregon’s limitations period, but reversed, finding that there were unresolved factual issues as to when plaintiff-respondents should have discovered the alleged fraud. Held: The judgment is reversed. 895 F. 2d 1416, 1417, and 1418, reversed. Justice Blackmun delivered the opinion of the Court with respect to Parts I, II-B, II-C, III, and IV, concluding that: 1. Litigation instituted pursuant to § 10(b) and Rule 10b-5 must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation, as provided in the 1934 Act and the Securities Act of 1933. State-borrowing principles should not be applied where, as here, the claim asserted is one implied under a statute also containing an express cause of action with its own time limitation. The 1934 Act contemporaneously enacted a number of express remedial provisions actually designed to accommodate a balance of interests very similar to that at stake in this litigation. And the limitations periods in all but one of its causes of action include some variation LAMPF v. GILBERTSON 351 350 Syllabus of a 1-year period after discovery combined with a 3-year period of repose. Moreover, in adopting the 1934 Act, Congress also amended the 1933 Act, adopting the same structure for each of its causes of action. Neither the 5-year period contained in the 1934 Act’s insider-trading provision, which was added in 1988, nor state-law fraud provides a closer analogy to § 10(b). Pp. 358-362. 2. The limitations period is not subject to the doctrine of equitable tolling. The 1-year period begins after discovery of the facts constituting the violation, making tolling unnecessary, and the 3-year limit is a period of repose inconsistent with tolling. P. 363. 3. As there is no dispute that the earliest of plaintiff-respondents’ complaints was filed more than three years after petitioner’s alleged misrepresentations, plaintiff-respondents’ claims were untimely. P. 364. Blackmun, J., delivered the opinion of the Court with respect to Parts I, II-B, II-C, III, and IV, in which Rehnquist, C. J., and White, Marshall, and Scalia, JJ., joined, and an opinion with respect to Part II-A, in which Rehnquist, C. J., and White and Marshall, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, post, p. 364. Stevens, J., filed a dissenting opinion, in which Souter, J., joined, post, p. 366. O’Connor, J., filed a dissenting opinion, in which Kennedy, J., joined, post, p. 369. Kennedy, J., filed a dissenting opinion, in which O’Connor, J., joined, post, p. 374. Theodore B. Olson argued the cause for petitioner. With him on the briefs were Theodore J. Boutrous, Jr., S. Joel Wilson, and R. Daniel Lindahl. Stephen M. Shapiro and Mark I. Levy filed a brief for Comdisco, Inc., et al., as respondents under this Court’s Rule 12.4, in support of petitioner. F. Gordon Allen argued the cause for respondents Gilbertson et al. With him on the brief were Barry W. Dod and Gary M. Berne* *Eldon Olson, Jon N. Ekdahl, Harris J. Amhowitz, Carl D. Liggio, and Leonard P. Novello filed a brief for Arthur Andersen & Co. et al. as amici curiae urging reversal. Leonard Barrack filed a brief for the National Association of Securities and Commercial Law Attorneys as amicus curiae urging affirmance. Briefs of amici curiae were filed for the Securities and Exchange Commission by Solicitor General Starr, Deputy Solicitor General Roberts, Michael R. Dreeben, James R. Doty, Paul Gonson, and Jacob H. Stillman; for the American Council of Life Insurance by Lawrence J. Latto, John Townsend Rich, Richard E. Bamsback, and Phillip E. Stano; for the 352 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Justice Blackmun delivered the opinion of the Court, except as to Part II-A. In this litigation we must determine which statute of limitations is applicable to a private suit brought pursuant to § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. § 78j(b), and to Securities and Exchange Commission Rule 10b-5, 17 CFR §240.10b-5 (1990), promulgated thereunder. I The controversy arises from the sale of seven Connecticut limited partnerships formed for the purpose of purchasing and leasing computer hardware and software. Petitioner Lampf, Pleva, Lipkind, Prupis & Petigrow is a West Orange, N. J., law firm that aided in organizing the partnerships and that provided additional legal services, including the preparation of opinion letters addressing the tax consequences of investing in the partnerships. The several plaintiff-respondents purchased units in one or more of the partnerships during the years 1979 through 1981 with the expectation of realizing federal income tax benefits therefrom. The partnerships failed, due in part to the technological obsolescence of their wares. In late 1982 and early 1983, plaintiff-respondents received notice that the United States Internal Revenue Service was investigating the partnerships. The IRS subsequently disallowed the claimed tax benefits because of overvaluation of partnership assets and lack of profit motive. On November 3, 1986, and June 4, 1987, plaintiffrespondents filed their respective complaints in the United States District Court for the District of Oregon, naming as defendants petitioner and others involved in the preparation Bond Investors Association by David J. Guin, David R. Donaldson, J. Michael Rediker, and Thomas L. Krebs; and for the Securities Industry Association by Thomas C. Walsh, John Michael Clear, Leo J. Asaro, and William J. Fitzpatrick. LAMPF v. GILBERTSON 353 350 Opinion of the Court of offering memoranda for the partnerships. The complaints alleged that plaintiff-respondents were induced to invest in the partnerships by misrepresentations in the offering memoranda, in violation of, among other things, § 10(b) of the 1934 Act and Rule 10b-5. The claimed misrepresentations were said to include assurances that the investments would entitle the purchasers to substantial tax benefits; that the leasing of the hardware and software packages would generate a profit; that the software was readily marketable; and that certain equipment appraisals were accurate and reasonable. Plaintiff-respondents asserted that they became aware of the alleged misrepresentations only in 1985 following the disallowance by the IRS of the tax benefits claimed. After consolidating the actions for discovery and pretrial proceedings, the District Court granted summary judgment for the defendants on the ground that the complaints were not timely filed. App. to Pet. for Cert. 22A. Following precedent of its controlling court, see, e. g., Robuck v. Dean Witter & Co., 649 F. 2d 641 (CA9 1980), the District Court ruled that the securities claims were governed by the state statute of limitations for the most analogous forum-state cause of action. The court determined this to be Oregon’s 2-year limitations period for fraud claims, Ore. Rev. Stat. § 12.110(1) (1989). The court found that reports to plaintiff-respondents detailing the declining financial status of each partnership and allegations of misconduct made known to the general partners put plaintiff-respondents on “inquiry notice” of the possibility of fraud as early as October 1982. App. to Pet. for Cert. 43A. The court also ruled that the distribution of certain fiscal reports and the installation of a general partner previously associated with the defendants did not constitute fraudulent concealment sufficient to toll the statute of limitations. Applying the Oregon statute to the facts underlying plaintiff-respondents’ claims, the District Court determined that each complaint was time barred. 354 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. The Court of Appeals for the Ninth Circuit reversed and remanded the cases. See, e. g., Reitz n. Leasing Consultants Associates, 895 F. 2d 1418 (1990) (judgment order). In its unpublished opinion, the Court of Appeals found that unresolved factual issues as to when plaintiff-respondents discovered or should have discovered the alleged fraud precluded summary judgment. Then, as did the District Court, it selected the 2-year Oregon limitations period. In so doing, it implicitly rejected petitioner’s argument that a federal limitations period should apply to Rule 10b-5 claims. App. to Pet. for Cert. 8A. In view of the divergence of opinion among the Circuits regarding the proper limitations period for Rule 10b-5 claims,1 we granted certiorari to address this important issue. 498 U. S. 894 (1990). II Plaintiff-respondents maintain that the Court of Appeals correctly identified common-law fraud as the source from which § 10(b) limitations should be derived. They submit that the underlying policies and practicalities of § 10(b) litigation do not justify a departure from the traditional practice of “borrowing” analogous state-law statutes of limitations. Petitioner, on the other hand, argues that a federal period is appropriate, contending that we must look to the “l-and-3-year” structure applicable to the express causes of action in § 13 of the Securities Act of 1933, 48 Stat. 84, as amended, 15 U. S. C. § 77m, and to certain of the express actions in the * 'See, e. g., Nesbit v. McNeil, 896 F. 2d 380 (CA9 1990) (applying state limitations period governing common-law fraud); Bath v. Bushkin, Gaims, Gaines and Jonas, 913 F. 2d 817 (CAIO 1990) (same); O’Hara v. Kovens, 625 F. 2d 15 (CA4 1980) (applying state blue sky limitations period), cert, denied, 449 U. S. 1124 (1981); Forrestal Village, Inc. v. Graham, 179 U. S. App. D. C. 225, 551 F. 2d 411 (1977) (same); In re Data Access Systems Securities Litigation, 843 F. 2d 1537 (CA3) (establishing uniform federal period), cert, denied sub nom. Vitiello v. I. Kahlowsky & Co., 488 U. S. 849 (1988); Short v. Belleville Shoe Mfg. Co., 908 F. 2d 1385 (CA7 1990), cert, pending, No. 90-526 (same). LAMPF v. GILBERTSON 355 350 Opinion of Blackmun, J. 1934 Act, see 15 U. S. C. §§ 78i(e), 78r(c), and 78cc(b).2 The Solicitor General, appearing on behalf of the Securities and Exchange Commission, agrees that use of a federal period is indicated, but urges the application of the 5-year statute of repose specified in §20A of the 1934 Act, 15 U. S. C. § 78t-l(b)(4), as added by § 5 of the Insider Trading and Securities Fraud Enforcement Act of 1988, 102 Stat. 4681. The 5-year period, it is said, accords with “Congress’s most recent views on the accommodation of competing interests, provides the closest federal analogy, and promises to yield the best practical and policy results in Rule 10b-5 litigation.” Brief for Securities and Exchange Commission as Amicus Curiae 8. For the reasons discussed below, we agree that a uniform federal period is indicated, but we hold that the express causes of action contained in the 1933 and 1934 Acts provide the source. A It is the usual rule that when Congress has failed to provide a statute of limitations for a federal cause of action, a court “borrows” or “absorbs” the local time limitation most analogous to the case at hand. Wilson v. Garcia, 471 U. S. 261, 266-267 (1985); Automobile Workers v. Hoosier Cardinal Corp., 383 U. S. 696, 704 (1966); Campbell n. Haverhill, 155 U. S. 610, 617 (1895). This practice, derived from the Rules of Decision Act, 28 U. S. C. § 1652, has enjoyed sufficient longevity that we may assume that, in enacting remedial legislation, Congress ordinarily “intends by its silence that we borrow state law.” Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 147 (1987). The rule, however, is not without exception. We have recognized that a state legislature rarely enacts a limitations period with federal interests in mind, Occidental Life Ins. Co. of Cal. n. EEOC, 432 U. S. 355, 367 (1977), and when the op 2 Although not identical in language, all these relate to one year after discovery and to three years after violation. 356 OCTOBER TERM, 1990 Opinion of Blackmun, J. 501 U. S. eration of a state limitations period would frustrate the policies embraced by the federal enactment, this Court has looked to federal law for a suitable period. See, e. g., DelCostello v. Teamsters, 462 U. S. 151 (1983); Agency Holding Corp., supra; McAllister n. Magnolia Petroleum Co., 357 U. S. 221, 224 (1958). These departures from the stateborrowing doctrine have been motivated by this Court’s conclusion that it would be “inappropriate to conclude that Congress would choose to adopt state rules at odds with the purpose or operation of federal substantive law.” DelCostello, 462 U. S., at 161. Rooted as it is in the expectations of Congress, the “stateborrowing doctrine” may not be lightly abandoned. We have described federal borrowing as “a closely circumscribed exception,” to be made “only ‘when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking.’” Reed v. United Transportation Union, 488 U. S. 319, 324 (1989), quoting DelCostello, 462 U. S., at 172. Predictably, this determination is a delicate one. Recognizing, however, that a period must be selected,3 our cases do provide some guidance as to whether state or federal borrowing is appropriate and as to the period best suited to the cause of action under consideration. From these cases we are able to distill a hierarchical inquiry for ascertaining the appropriate limitations period for a federal cause of action where Congress has not set the time within which such an action must be brought. 8 On rare occasions, this Court has found it to be Congress’ intent that no time limitation be imposed upon a federal cause of action. See, e. g., Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355 (1977). No party in the present litigation argues that this was Congress’ purpose in enacting § 10(b), and we agree that there is no evidence of such intent. LAMPF v. GILBERTSON 357 350 Opinion of Blackmun, J. First, the court must determine whether a uniform statute of limitations is to be selected. Where a federal cause of action tends in practice to “encompass numerous and diverse topics and subtopics,” Wilson v. Garcia, 471 U. S., at 273, such that a single state limitations period may not be consistently applied within a jurisdiction, we have concluded that the federal interests in predictability and judicial economy counsel the adoption of one source, or class of sources, for borrowing purposes. Id., at 273-275. This conclusion ultimately may result in the selection of a single federal provision, see Agency Holding Corp., supra, or of a single variety of state actions. See Wilson v. Garcia (characterizing all actions under 42 U. S. C. §1983 as analogous to a state-law personal injury action). Second, assuming a uniform limitations period is appropriate, the court must decide whether this period should be derived from a state or a federal source. In making this judgment, the court should accord particular weight to the geographic character of the claim: “The multistate nature of [the federal cause of action at issue] indicates the desirability of a uniform federal statute of limitations. With the possibility of multiple state limitations, the use of state statutes would present the danger of forum shopping and, at the very least, would ‘virtually guarante[e] . . . complex and expensive litigation over what should be a straightforward matter.’” Agency Holding Corp., 483 U. S., at 154, quoting Report of the Ad Hoc Civil RICO Task Force of the ABA Section of Corporation,. Banking and Business Law 392 (1985). Finally, even where geographic considerations counsel federal borrowing, the aforementioned presumption of state borrowing requires that a court determine that an analogous federal source truly affords a “closer fit” with the cause of action at issue than does any available state-law source. Although considerations pertinent to this determination will neces 358 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. sarily vary depending upon the federal cause of action and the available state and federal analogues, such factors as commonality of purpose and similarity of elements will be relevant. B In the present litigation, our task is complicated by the nontraditional origins of the § 10(b) cause of action. The text of § 10(b) does not provide for private claims.4 Such claims are of judicial creation, having been implied under the statute for nearly half a century. See Kardon v. National Gypsum Co., 69 F. Supp. 512 (ED Pa. 1946), cited in Ernst & Ernst v. Hochfelder, 425 U. S. 185, 196, n. 16 (1976). Although this Court repeatedly has recognized the validity of such claims, see Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 730 (1975); Affiliated Ute Citizens of Utah v. United States, 406 U. S. 128, 150-154 (1972); Superintendent 4 Section 10 of the 1934 Act provides: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— “(b) To use or employ, in connection with the purchase or sale of any security. . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U. S. C. § 78j. Commission Rule 10b-5, first promulgated in 1942, now provides: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, “(a) To employ any device, scheme, or artifice to defraud, “(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or “(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, “in connection with the purchase or sale of any security.” 17 CFR §240.10b-5 (1990). LAMPF v. GILBERTSON 359 350 Opinion of the Court of Ins. of N. Y. n. Bankers Life & Casualty Co., 404 U. S. 6, 13, n. 9 (1971), we have made no pretense that it was Congress’ design to provide the remedy afforded. See Ernst & Ernst, 425 U. S., at 196 (“[T]here is no indication that Congress, or the Commission when adopting Rule 10b-5, contemplated such a remedy”) (footnotes omitted). It is therefore no surprise that the provision contains no statute of limitations. In a case such as this, we are faced with the awkward task of discerning the limitations period that Congress intended courts to apply to a cause of action it really never knew existed. Fortunately, however, the drafters of § 10(b) have provided guidance. We conclude that where, as here, the claim asserted is one implied under a statute that also contains an express cause of action with its own time limitation, a court should look first to the statute of origin to ascertain the proper limitations period. We can imagine no clearer indication of how Congress would have balanced the policy considerations implicit in any limitations provision than the balance struck by the same Congress in limiting similar and related protections. See DelCostello, 462 U. S., at 171; United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 69-70 (1981) (opinion concurring in judgment). When the statute of origin contains comparable express remedial provisions, the inquiry usually should be at an end. Only where no analogous counterpart is available should a court then proceed to apply state-borrowing principles. In the present litigation, there can be no doubt that the contemporaneously enacted express remedial provisions represent “a federal statute of limitations actually designed to accommodate a balance of interests very similar to that at stake here—a statute that is, in fact, an analogy to the present lawsuit more apt than any of the suggested state-law parallels.” DelCostello, 462 U. S., at 169. The 1934 Act contained a number of express causes of action, each with an 360 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. explicit limitations period. With only one more restrictive exception,5 each of these includes some variation of a 1-year period after discovery combined with a 3-year period of repose.6 In adopting the 1934 Act, the 73d Congress also amended the limitations provision of the 1933 Act, adopting the l-and-3-year structure for each cause of action contained therein.7 Section 9 of the 1934 Act, 15 U. S. C. § 78i, pertaining to the willful manipulation of security prices, and §18, 15 U. S. C. §78r, relating to misleading filings, target the precise dangers that are the focus of § 10(b). Each is an integral element of a complex web of regulations. Each was intended to facilitate a central goal: “to protect investors 6 Section 16(b), 15 U. S. C. § 78p(b), sets a 2-year rather than a 3-year period of repose. Because that provision requires the disgorgement of unlawful profits and differs in focus from § 10(b) and from the other express causes of action, we do not find § 16(b) to be an appropriate source from which to borrow a limitations period here. 6 Section 9(e) of the 1934 Act provides: “No action shall be maintained to enforce any liability created under this section, unless brought within one year after the discovery of the facts constituting the violation and within three years after such violation.” 15 U. S. C. § 78i(e). Section 18(c) of the 1934 Act provides: “No action shall be maintained to enforce any liability created under this section unless brought within one year after the discovery of the facts constituting the cause of action and within three years after such cause of action accrued.” 15 U. S. C. § 78r(c). 7 Section 13 of the 1933 Act, as so amended, provides: “No action shall be maintained to enforce any liability created under section 77k or 77Z(2) of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable dilligence, or, if the action is to enforce a liability created under section 77Z(1) of this title, unless brought within one year after the violation upon which it is based. In no event shall any such action be brought to enforce a liability created under section 77k or 77Z(1) of this title more than three years after the security was bona fide offered to the public, or under section 771(2) of this title more than three years after the sale.” 15 U. S. C. § 77m. LAMPF v. GILBERTSON 361 350 Opinion of the Court against manipulation of stock prices through regulation of transactions upon securities exchanges and in over-the-counter markets, and to impose regular reporting requirements on companies whose stock is listed on national securities exchanges.” Ernst & Ernst, 425 U. S., at 195, citing S. Rep. No. 792, 73d Cong., 2d Sess., 1-5 (1934). C We therefore conclude that we must reject the Commission’s contention that the 5-year period contained in §20A, added to the 1934 Act in 1988, is more appropriate for § 10(b) actions than is the l-and-3-year structure in the Act’s original remedial provisions. The Insider Trading and Securities Fraud Enforcement Act of 1988, which became law more than 50 years after the original securities statutes, focuses upon a specific problem, namely, the “purchasing or selling [of] a security while in possession of material, nonpublic information,” 15 U. S. C. §78t-l(a), that is, “insider trading.” Recognizing the unique difficulties in identifying evidence of such activities, the 100th Congress adopted § 20A as one of “a variety of measures designed to provide greater deterrence, detection and punishment of violations of insider trading.” H. R. Rep. No. 100-910, p. 7 (1988). There is no indication that the drafters of §20A sought to extend that enhanced protection to other provisions of the 1934 Act. Indeed, the text of § 20A indicates the contrary. Section 20A(d) states: “Nothing in this section shall be construed to limit or condition the right of any person to bring an action to enforce a requirement of this chapter or the availability of any cause of action implied from a provision of this chapter.” 15 U. S. C. §78t-l(d). The Commission further argues that because some conduct that is violative of § 10(b) is also actionable under § 20A, adoption of a l-and-3-year structure would subject actions based on § 10(b) to two different statutes of limitations. But § 20A also prohibits insider trading activities that violate sections of 362 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. the 1934 Act with express limitations periods. The language of § 20A makes clear that the 100th Congress sought to alter the remedies available in insider trading cases, and only in insider trading cases. There is no inconsistency. Finally, the Commission contends that the adoption of a 3-year period of repose would frustrate the policies underlying § 10(b). The inclusion, however, of the l-and-3-year structure in the broad range of express securities actions contained in the 1933 and 1934 Acts suggests a congressional determination that a 3-year period is sufficient. See Ceres Partners v. GEL Associates, 918 F. 2d 349, 363 (CA2 1990). Thus, we agree with every Court of Appeals that has been called upon to apply a federal statute of limitations to a § 10(b) claim that the express causes of action contained in the 1933 and 1934 Acts provide a more appropriate statute of limitations than does §20A. See Ceres Partners, supra; Short n. Belleville Shoe Mfg. Co., 908 F. 2d 1385 (CA7 1990), cert, pending, No. 90-526; In re Data Access Systems Securities Litigation, 843 F. 2d 1537 (CA3), cert, denied sub nom. Vitiello v. I. Kahlowsky & Co., 488 U. S. 849 (1988). Necessarily, we also reject plaintiff-respondents’ assertion that state-law fraud provides the closest analogy to § 10(b). The analytical framework we adopt above makes consideration of state-law alternatives unnecessary where Congress has provided an express limitations period for correlative remedies within the same enactment.8 8 Justice Kennedy would borrow the 1-year limitations period contained in the 1934 Act but not the accompanying period of repose. In our view, the l-and-3-year scheme represents an indivisible determination by Congress as to the appropriate cutoff point for claims under the statute. It would disserve that legislative determination to sever the two periods. Moreover, we find no support in our cases for the practice of borrowing only a portion of an express statute of limitations. Indeed, such a practice comes close to the type of judicial policymaking that our borrowing doctrine was intended to avoid. LAMPF v. GILBERTSON 363 350 Opinion of the Court III Finally, we address plaintiff-respondents’ contention that, whatever limitations period is applicable to § 10(b) claims, that period must be subject to the doctrine of equitable tolling. Plaintiff-respondents note, correctly, that “[t]ime requirements in lawsuits . . . are customarily subject to ‘equitable tolling.’” Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95 (1990), citing Hallstrom v. Tillamook County, 493 U. S. 20, 27 (1989). Thus, this Court has said that in the usual case, “where the party injured by the fraud remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.” Bailey v. Glover, 21 Wall. 342, 348 (1875); see also Holmberg n. Armbrecht, 327 U. S. 392, 396-397 (1946). Notwithstanding this venerable principle, it is evident that the equitable tolling doctrine is fundamentally inconsistent with the l-and-3-year structure. The 1-year period, by its terms, begins after discovery of the facts constituting the violation, making tolling unnecessary. The 3-year limit is a period of repose inconsistent with tolling. One commentator explains: “[T]he inclusion of the three-year period can have no significance in this context other than to impose an outside limit.” Bloomenthal, The Statute of Limitations and Rule 10b-5 Claims: A Study in Judicial Lassitude, 60 U. Colo. L. Rev. 235, 288 (1989). See also ABA Committee on Federal Regulation of Securities, Report of the Task Force on Statute of Limitations for Implied Actions 645, 655 (1986) (advancing “the inescapable conclusion that Congress did not intend equitable tolling to apply in actions under the securities laws”). Because the purpose of the 3-year limitation is clearly to serve as a cutoff, we hold that tolling principles do not apply to that period. 364 OCTOBER TERM, 1990 Opinion of Scalia, J. 501 U. S. IV Litigation instituted pursuant to § 10(b) and Rule 10b-5 therefore must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation.9 As there is no dispute that the earliest of plaintiff-respondents’ complaints was filed more than three years after petitioner’s alleged misrepresentations, plaintiff-respondents’ claims were untimely.10 The judgment of the Court of Appeals is reversed. It is so ordered. Justice Scalia, concurring in part and concurring in the judgment. Although I accept the stare decisis effect of decisions we have made with respect to the statutes of limitations applicable to particular federal causes of action, I continue to disagree with the methodology the Court has very recently adopted for purposes of making those decisions. In my view, absent a congressionally created limitations period state periods govern, or, if they are inconsistent with the purposes of the federal Act, no limitations period exists. See Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 9 The Commission notes, correctly, that the various l-and-3-year periods contained in the 1934 and 1933 Acts differ slightly in terminology. To the extent that these distinctions in the future might prove significant, we select as the governing standard for an action under § 10(b) the language of §9(e) of the 1934 Act, 15 U. S. C. §78i(e). 10 Section 313(a) of the Judicial Improvements Act of 1990, 104 Stat. 5114, reads: “Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues.” Section 313(c) states that the “amendments made by this section shall apply with respect to causes of action accruing on or after the date [December 1, 1990,] of the enactment of this Act.” This new statute obviously has no application in the present litigation. LAMPF v. GILBERTSON 365 350 Opinion of Scalia, J. 143,157-170 (1987) (Scalia, J., concurring in judgment), see also Reed v. United Transportation Union, 488 U. S. 319, 334 (1989) (Scalia, J., concurring in judgment). The present case presents a distinctive difficulty because it involves one of those so-called “implied” causes of action that, for several decades, this Court was prone to discover in—or, more accurately, create in reliance upon—federal legislation. See Thompson v. Thompson, 484 U. S. 174, 190 (1988) (Scalia, J., concurring in judgment). Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals. See id., at 191-192; Cannon v. University of Chicago, 441 U. S. 677, 730-749 (1979) (Powell, J., dissenting). We have done so, however, and thus the question arises what statute of limitations applies to such a suit. Congress has not had the opportunity (since it did not itself create the cause of action) to consider whether it is content with the state limitations or would prefer to craft its own rule. That lack of opportunity is particularly apparent in the present case, since Congress did create special limitations periods for the Securities Exchange Act of 1934 causes of actions that it actually enacted. See 15 U. S. C. §§78p(b), 78i(e), 78r(c); see also §77m. When confronted with this situation, the only thing to be said for applying my ordinary (and the Court’s pre-1983 traditional) rule is that the unintended and possibly irrational results will certainly deter judicial invention of causes of action. That is not an unworthy goal, but to pursue it in that fashion would be highly unjust to those who must litigate past inventions. An alternative approach would be to say that since we “implied” the cause of action we ought to “imply” an appropriate statute of limitations as well. That is just enough, but too lawless to be imagined. It seems to me the most responsible approach, where the enactment that has been the occasion for our creation of a cause of action contains a limitations period for an analogous cause of action, is to use 366 OCTOBER TERM, 1990 Stevens, J., dissenting 501 U. S. that. We are imagining here. And I agree with the Court that “[w]e can imagine no clearer indication of how Congress would have balanced the policy considerations implicit in any limitations provision than the balance struck by the same Congress in limiting similar and related protections.” Ante, at 359. I join the judgment of the Court, and all except Part II-A of the Court’s opinion. Justice Stevens, with whom Justice Souter joins, dissenting. In my opinion, the Court has undertaken a lawmaking task that should properly be performed by Congress. Starting from the premise that the federal cause of action for violating § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. § 78j(b), was created out of whole cloth by the Judiciary, it concludes that the Judiciary must also have the authority to fashion the time limitations applicable to such an action. A page from the history of § 10(b) litigation will explain why both the premise and the conclusion are flawed. The private cause of action for violating § 10(b) was first recognized in Kardon v. National Gypsum Co., 69 F. Supp. 512 (ED Pa. 1946). In recognizing this implied right of action, Judge Kirkpatrick merely applied what was then a well-settled rule of federal law. As was true during most of our history, the federal courts then presumed that a statute enacted to benefit a special class provided a remedy for those members injured by violations of the statute. See Texas & Pacific R. Co. n. Rigsby, 241 U. S. 33, 39-40 (1916).1 Judge Kirkpatrick did not make “new law” when he applied * ’In Texas & Pacific R. Co. v. Rigsby, a unanimous Court stated this presumption: “A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law. . . . This is but an application of the maxim, Ubi jus ibi remedium.” 241 U. S., at 39-40. LAMPF v. GILBERTSON 367 350 Stevens, J., dissenting this presumption to a federal statute enacted for the benefit of investors in securities that are traded in interstate commerce. During the ensuing four decades of administering § 10(b) litigation, the federal courts also applied settled law when they looked to state law to find the rules governing the timeliness of claims. See DelCostello v. Teamsters, 462 U. S. 151, 172-173 (1983) (Stevens, J., dissenting).2 It was not until 1988 that a federal court decided that it would be better policy to have a uniform federal statute of limitations apply to claims of this kind. See In re Data Access Systems Securities Litigation, 843 F. 2d 1537 (CA3). I agree that such a uniform limitations rule is preferable to the often chaotic traditional approach of looking to the analogous state limitation. I believe, however, that Congress, rather than the Federal Judiciary, has the responsibility for making the policy determinations that are required in rejecting a rule selected under the doctrine of state borrowing, long applied in § 10(b) cases, and choosing a new limitations period and its associated tolling rules.3 When a legislature enacts a new rule of law governing the timeliness of legal action, it can—and usually does—specify the effective date of the rule and determine the extent to which it shall apply to pending claims. See, e. g., 104 Stat. 5114, quoted ante, at 364, n. 10. When the Court ventures into this lawmaking arena, however, it inevitably raises questions concerning the retroactivity of its new rule that are difficult and arguably inconsistent with the neutral, 2 Federal judges have ‘borrowed’ state statutes of limitations because they were directed to do so by the Congress of the United States under the Rules of Decision Act, 28 U. S. C. § 1652. DelCostello v. Teamsters, 462 U. S., at 172-173 (Stevens, J., dissenting); see also Agency Holding Corp. n. Malley-Duff & Associates, Inc., 483 U. S. 143, 157-165 (1987) (Scalia, J., concurring in judgment). ’Congress is perfectly capable of making these decisions. When confronted with the same need for uniformity in treble-damages litigation under the antitrust laws in 1955, it enacted § 5 of the Clayton Act to provide a 4-year period of limitations. See 69 Stat. 283, 15 U. S. C. § 15b. 368 OCTOBER TERM, 1990 Stevens, J., dissenting 501 U. S. nonpolicymaking role of the judge. See Chevron Oil Co. n. Huson, 404 U. S. 97 (1971); In re Data Access, 843 F. 2d, at 1551 (Seitz, J., dissenting). The Court’s rejection of the traditional rule of applying a state limitations period when the federal statute is silent is not justified by this Court’s prior cases. Despite the majority’s recognition of the traditional rule, ante, at 355, it effectively repudiates it by holding that “[o]nly where no analogous counterpart [within the statute] is available should a court then proceed to apply state-borrowing principles.” Ante, at 359. The Court’s principal justification for this departure is that it took similar action in DelCostello, supra. I registered my dissent in that case for reasons similar to those I express today. In that case there was nothing in the statute to lead me to believe that Congress intended to depart from our settled practice of looking to analogous state limitations. Id., at 171-173. Likewise in this case, I can find nothing in the Securities Exchange Act of 1934 that leads me to believe that Congress intended us to depart from our traditional rule and overrule four decades of established law. The other case on which the Court primarily relies, Agency Holding Corp. n. Malley-Duff & Associates, Inc., 483 U. S. 143 (1987), is distinguishable from this case. Agency Holding did not involve a change in a rule of law that had been settled for 40 years. Furthermore, in that case, the Court found an explicit intent to pattern the RICO private remedy after the Clayton Act’s private antitrust remedy. The remedy in the Clayton Act was subject to a 4-year statute of limitations, and the Court reasonably inferred that Congress wanted the same limitations period to apply to both statutes. The Court has not found a similar intent to pattern § 10 of the Securities Exchange Act of 1934 after those sections subject to a l-and-3-year limitation. See ante, at 359-361. The policy choices that the Court makes today may well be wise—even though they are at odds with the recommendation of the Executive Branch—but that is not a sufficient LAMPF v. GILBERTSON 369 350 O’Connor, J., dissenting justification for making a change in what was well-settled law during the years between 1946 and 1988 governing the timeliness of action impliedly authorized by a federal statute. This Court has recognized that a rule of statutory construction that has been consistently applied for several decades acquires a clarity that “is simply beyond peradventure.” Herman & MacLean v. Huddleston, 459 U. S. 375, 380 (1983). I believe that the Court should continue to observe that principle in this case. The Court’s occasional departure from that principle does not justify today’s refusal to comply with the Rules of Decision Act. See, e. g., Shearson/ American Express Inc. v. McMahon, 482 U. S. 220, 268 (1987) (Stevens, J., dissenting). Accordingly, I respectfully dissent. Justice O’Connor, with whom Justice Kennedy joins, dissenting. I agree that predictability and judicial economy counsel the adoption of a uniform federal statute of limitations for actions brought under § 10(b) and Rule 10b-5. For the reasons stated by Justice Kennedy, however, I believe we should adopt the 1-year-from-discovery-rule, but not the 3-year period of repose. I write separately only to express my disagreement with the Court’s decision in Part IV to apply the new limitations period in this case. In holding that respondents’ suit is time barred under a limitations period that did not exist before today, the Court departs drastically from our established practice and inflicts an injustice on the respondents. The Court declines to explain its unprecedented decision, or even to acknowledge its unusual character. Respondents, plaintiffs below, filed this action in Federal District Court in 1986. Everyone agrees that, at that time, their claims were governed by the state statute of limitations for the most analogous state cause of action. This was mandated by a solid wall of binding Ninth Circuit authority dat 370 OCTOBER TERM, 1990 O’Connor, J., dissenting 501 U. S. ing back more than 30 years.1 See ante, at 353. The case proceeded in the District Court and the Court of Appeals for almost four years. During that time, the law never changed; the governing limitations period remained the analogous state statute of limitations.* 2 Notwithstanding respondents’ entirely proper reliance on this limitations period, the Court now holds that their suit must be dismissed as untimely because respondents did not comply with a federal limitations period announced for the first time today—4V2 years after the suit was filed. Quite simply, the Court shuts the courthouse door on respondents because they were unable to predict the future. One might get the impression from the Court’s matter-of-fact handling of the retroactivity issue that this is our standard practice. Part IV of the Court’s opinion comprises, after all, only two sentences: the first sentence sets out the 1-and-3-year rule; the second states that respondents’ complaint is untimely for failure to comply with the rule. Surely, one might think, if the Court were doing anything out of the ordinary, it would comment on the fact. Apparently not. This Court has, on several occasions, announced new statutes of limitations. Until today, however, the Court had never applied a new limitations period retroactively to the very case in which it announced the new rule so as to bar an action that was timely under binding Circuit precedent. Our practice has been instead to evaluate the case at hand by the old limitations period, reserving the new rule for application in future cases. 'See Robuck v. Dean Witter & Co., 649 F. 2d 641, 644 (1980); Williams v. Sinclair, 529 F. 2d 1383, 1387 (1976); Douglass v. Glenn E. Hinton Investments, Inc., 440 F. 2d 912, 914-916 (1971); Hecht v. Harris, Upham & Co., 430 F. 2d 1202, 1210 (1970); Royal Air Properties, Inc. v. Smith, 312 F. 2d 210, 214 (1962); Fratt v. Robinson, 203 F. 2d 627, 634-635 (1953). 2See Davis v. Birr, Wilson & Co., 839 F. 2d 1369, 1369-1370 (CA9 1988); Volk v. D. A. Davidson & Co., 816 F. 2d 1406, 1411-1412 (CA9 1987); Semegen v. Weidner, 780 F. 2d 727, 733 (CA9 1985); SEC v. Seaboard Corp., 677 F. 2d 1301, 1308-1309 (CA9 1982). LAMPF v. GILBERTSON 371 350 O’Connor, J., dissenting A prime example is Chevron Oil Co. v. Huson, 404 U. S. 97 (1971). The issue in that case was whether state or federal law governed the timeliness of an action brought under a particular federal statute. At the time the lawsuit was initiated, the rule was that federal law governed. This Court changed the rule, holding that the timeliness of an action should be governed by state law. The Court declined to apply the state statute of limitations in that case, however, because the action had been filed long before the new rule was announced. The Court recognized, sensibly, that its decision overruled a long line of Court of Appeals’ decisions on which the respondent had properly relied, id., at 107; that retroactive application would be inconsistent with the purpose of using state statutes of limitations, id., at 107-108; and that it would be highly inequitable to pretend that the respondent had “ ‘slept on his rights’ ” when, in reality, he had complied fully with the law as it existed and could not have foreseen that the law would change. Id., at 108. We followed precisely the same course several years later in Saint Francis College v. Al-Khazraji, 481 U. S. 604 (1987). We declined to apply a decision specifying the applicable statute of limitations retroactively because doing so would bar a suit that, under controlling Circuit precedent, had been filed in a timely manner. We relied expressly on the analysis of Chevron Oil, holding that a decision identifying a new limitations period should be applied only prospectively where it overrules clearly established Circuit precedent, where retroactive application would be inconsistent with the purpose of the underlying statute, and where doing so would be “manifestly inequitable.” Saint Francis College, supra, at 608-609. Chevron Oil and Saint Francis College are based on fundamental notions of justified reliance and due process. They reflect a straightforward application of an earlier line of cases holding that it violates due process to apply a limitations period retroactively and thereby deprive a party arbitrarily of a 372 OCTOBER TERM, 1990 O’Connor, J., dissenting 501 U. S. right to be heard in court. See Wilson v. Iseminger, 185 U. S. 55, 62 (1902); Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673, 681-682 (1930). Not surprisingly, then, the Court’s decision in Chevron Oil and Saint Francis College not to apply new limitations periods retroactively generated no disagreement among Members of the Court: The opinion in Chevron Oil was joined by all but one Justice, who did not reach the retroactivity question; Saint Francis College was unanimous. Only last Term, eight Justices reaffirmed the commonsense rule that decisions specifying the applicable statute of limitations apply only prospectively. See American Trucking Assns., Inc. v. Smith, 496 U. S. 167 (1990). The question presented in American Trucking was whether an earlier decision of the Court—striking down as unconstitutional a particular state highway tax scheme—would apply retroactively. In the course of explaining why the ruling would not apply retroactively, the plurality opinion relied heavily on our statute of limitations cases: “When considering the retroactive applicability of decisions newly defining statutes of limitations, the Court has focused on the action taken in reliance on the old limitation period—usually, the filing of an action. Where a litigant filed a claim that would have been timely under the prior limitation period, the Court has held that the new statute of limitation would not bar his suit.” Id., at 193-194. Four other Justices, while disagreeing that Chevron Oil’s retroactivity analysis should apply in other contexts, reaffirmed its application to statutes of limitations. The dissenting Justices stated explicitly that it would be “most inequitable to [hold] that [a] plaintiff ha[s] ‘“slept on his rights’” during a period in which neither he nor the defendant could have known the time limitation that applied to the case.” American Trucking, supra, at 220 (Stevens, J., dissenting), quoting Chevron Oil, supra, at 108. LAMPF v. GILBERTSON 373 350 O’Connor, J., dissenting After American Trucking, the continued vitality of Chevron Oil with respect to statutes of limitations is—or should be—irrefutable; nothing in James B. Beam Distilling Co. v. Georgia, post, p. 529, alters this fact. The present case is indistinguishable from Chevron Oil and retroactive application should therefore be denied. All three Chevron Oil factors are met. First, in adopting a federal statute of limitations, the Court overrules clearly established Circuit precedent; the Court admits as much. Ante, at 353. Second, the Court explains that “the federal interes[t] in predictability” demands a uniform standard. Ante, at 357. I agree, but surely predictability cannot favor applying retroactively a limitations period that the respondents could not possibly have foreseen. Third, the inequitable results are obvious. After spending 4V2 years in court and tens of thousands of dollars in attorney’s fees, respondents’ suit is dismissed for failure to comply with a limitations period that did not exist until today. Earlier this Term, the Court observed that “the doctrine of stare decisis serves profoundly important purposes in our legal system.” California v. Acevedo, 500 U. S. 565, 579 (1991). If that is so, it is difficult to understand the Court’s decision today to apply retroactively a brand new statute of limitations. Part IV of the Court’s opinion, without discussing the relevant cases or even acknowledging the issue, declines to follow the precedent established in Chevron Oil, Saint Francis College, and American Trucking, not to mention Wilson and Brinkerhoff-Faris. The Court’s cursory treatment of the retroactivity question cannot be an oversight. The parties briefed the issue in this Court. See Brief for Respondents 45-48; Reply Brief for Petitioner 18-20. In addition, the United States, filing an amicus curiae brief on behalf of the Securities and Exchange Commission, addressed the issue explicitly, urging the Court to remand so that the lower court may address the retroactivity question in the first instance. Nevertheless, 374 OCTOBER TERM, 1990 Kennedy, J., dissenting 501 U. S. the Court, for reasons unknown and unexplained, chooses to ignore the issue, thereby visiting unprecedented unfairness on respondents. Even if I agreed with the limitations period adopted by the Court, I would dissent from Part IV of the Court’s opinion. Our prior cases dictate that the federal statute of limitations announced today should not be applied retroactively. I would remand so that the lower courts may determine in the first instance the timeliness of respondents’ lawsuit. Justice Kennedy, with whom Justice O’Connor joins, dissenting. I am in full agreement with the Court’s determination that, under our precedents, a uniform federal statute of limitations is appropriate for private actions brought under § 10(b) of the Securities Exchange Act of 1934 and that we should adopt as a limitations period the 1-year-from-discovery rule Congress employed in various provisions of the 1934 Act. I must note my disagreement, however, with the Court’s simultaneous adoption of the 3-year period of repose Congress also employed in a number of the 1934 Act’s provisions. This absolute time bar on private § 10(b) suits conflicts with traditional limitations periods for fraud-based actions, frustrates the usefulness of § 10(b) in protecting defrauded investors, and imposes severe practical limitations on a federal implied cause of action that has become an essential component of the protection the law gives to investors who have been injured by unlawful practices. As the Court recognizes, in the absence of an express limitations period in a federal statute, courts as a general matter should apply the most analogous state limitations period or, in rare cases, no limitations period at all. This rule does not apply, however, “when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking.” DelCostello v. LAMPF v. GILBERTSON 375 350 Kennedy, J., dissenting Teamsters, 462 U. S. 151, 172 (1983); see Reed n. United Transportation Union, 488 U. S. 319, 324 (1989). Applying this principle, the Court looks first to the express private rights of action in the 1934 Act itself to find what it believes are the appropriate limitations periods to apply here. One cannot fault the Court’s mode of analysis; given that § 10(b) actions are implied under the 1934 Act, it makes sense for us to look to the limitations periods Congress established under the Act. See DelCostello, supra, at 171; United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 68, n. 4 (1981). That does not relieve us, however, of our obligation to reject a limitations rule that would “frustrate or significantly interfere with federal policies.” Reed, 488 U. S., at 327. When determining the appropriate statute of limitations to apply, we must give careful consideration to the policies underlying a federal statute and to the practical difficulties aggrieved parties may have in establishing a violation. Ibid.; Wilson v. Garcia, 471 U. S. 261, 268 (1985). This is not a case where the Court identifies a specific statute and follows each of its terms. As the Court is careful to note, the 1934 Act does not provide a single limitations period for all private actions brought under its express provisions. Rather, the Act makes three separate and distinct references to statutes of limitations. The Court rejects outright one of these references, a 2-year statute of repose for actions brought under § 16 of the 1934 Act, 15 U. S. C. § 78p(b), and purports to follow the other two. §§ 78i(e), 78r(c). The latter two references employ 1-year, 3-year schemes similar to one the Court establishes here, but each has its own unique wording. The Court does not identify any reasons for finding one to be controlling, so it is unnecessary to engage in close grammatical construction to separate the 1-year discovery period from the 3-year statute of repose. It is of even greater importance to note that both of the statutes in question relate to express causes of action which in their purpose and underlying rationale differ from causes 376 OCTOBER TERM, 1990 Kennedy, J., dissenting 501 U. S. of action implied under § 10(b). The limitations statutes to which the Court refers apply to strict liability violations or, in the case of § 78i(e), to a rarely used remedy under § 9 of the 1934 Act. See L. Loss, Fundamentals of Securities Regulation 920 (2d ed. 1988). Neither relates to a cause of action of the scope and coverage of an implied action under § 10(b). Nor does either rest on the common-law fraud model underlying most § 10(b) actions. Section 10(b) provides investors with significant protections from fraudulent practices in the securities markets. Intended as a comprehensive antifraud provision operating even when more specific laws have no application, § 10(b) makes it unlawful to employ in connection with the purchase or sale of any security “any manipulative or deceptive device or contrivance” in violation of the Securities and Exchange Commission’s rules. 15 U. S. C. §78j. Although Congress gave the Commission the primary role in enforcing this section, private § 10(b) suits constitute “an essential tool for enforcement of the 1934 Act’s requirements,” Basic Inc. v. Levinson, 485 U. S. 224, 231 (1988), and are “‘a necessary supplement to Commission action.’” Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U. S. 299, 310 (1985) (quoting J. I. Case Co. v. Borak, Wil U. S. 426, 432 (1964)). We have made it clear that rules facilitating § 10(b) litigation “support!] the congressional policy embodied in the 1934 Act” of combating all forms of securities fraud. Basic, supra, at 245. The practical and legal obstacles to bringing a private § 10(b) action are significant. Once federal jurisdiction is established, a § 10(b) plaintiff must prove elements that are similar to those in actions for common-law fraud. See Herman & MacLean v. Huddleston, 459 U. S. 375 (1983). Each requires proof of a false or misleading statement or material omission, Santa Fe Industries, Inc. v. Green, 430 U. S. 462 (1977), reliance thereon, Basic, 485 U. S., at 243; cf. id., at 245 (reliance presumed in § 10(b) cases proving “fraud-on-the- LAMPF v. GILBERTSON 377 350 Kennedy, J., dissenting market”), damages caused by the wrongdoing, Randall n. Loftsgaarden, 478 U. S. 647, 663 (1986), and scienter on the part of the defendant, Ernst & Ernst n. Hochfelder, 425 U. S. 185 (1976). Given the complexity of modern securities markets, these facts may be difficult to prove. The real burden on most investors, however, is the initial matter of discovering whether a violation of the securities laws occurred at all. This is particularly the case for victims of the classic fraudlike case that often arises under § 10(b). “[C]oncealment is inherent in most securities fraud cases.” American Bar Association, Report of the Task Force on Statute of Limitations for Implied Actions, 41 Bus. Lawyer 645, 654 (1985). The most extensive and corrupt schemes may not be discovered within the time allowed for bringing an express cause of action under the 1934 Act. Ponzi schemes, for example, can maintain the illusion of a profit-making enterprise for years, and sophisticated investors may not be able to discover the fraud until long after its perpetration. Id., at 656. Indeed, in Ernst & Ernst, the alleged fraudulent scheme had gone undetected for over 25 years before it was revealed in a stockbroker’s suicide note. 425 U. S., at 189. The practicalities of litigation, indeed the simple facts of business life, are such that the rule adopted today will “thwart the legislative purpose of creating an effective remedy” for victims of securities fraud. Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 154 (1987). By adopting a 3-year period of repose, the Court makes a § 10(b) action all but a dead letter for injured investors who by no conceivable standard of fairness or practicality can be expected to file suit within three years after the violation occurred. In so doing, the Court also turns its back on the almost uniform rule rejecting short periods of repose for fraud-based actions. In the vast majority of States, the only limitations periods on fraud actions run from the time of a victim’s discovery of the fraud. Shapiro & Blauner, Securities Litigation in the Aftermath of In Re Data Access Securities 378 OCTOBER TERM, 1990 Kennedy, J., dissenting 501 U. S. Litigation, 24 New England L. Rev. 537, 549-550 (1989). Only a small minority of States constrain fraud actions with absolute periods of repose, and those that do typically permit actions to be brought within at least five years. See, e. g., Fla. Stat. § 95. ll(4)(e) (1991) (5-year period of repose); Ky. Rev. Stat. Ann. §413.120(11) (Michie 1990) (10-year period of repose); Mo. Rev. Stat. §516.120(5) (1986) (10-year period of repose). Congress itself has recognized the importance of granting victims of fraud a reasonable time to discover the facts underlying the fraud and to prepare a case against its perpetrators. See, e. g., Interstate Land Sales Full Disclosure Act, 15 U. S. C. § 1711(a)(2) (action may be brought within three years from discovery of violation); Insider Trading and Securities Fraud Enforcement Act of 1988, 15 U. S. C. §78t-l(b)(4) (action may be brought within five years of the violation). The Court, however, does not. A reasonable statute of repose, even as applied against fraud-based actions, is not without its merits. It may sometimes be easier to determine when a fraud occurred than when it should have been discovered. But more important, limitations periods in general promote important considerations of fairness. “Just determinations of fact cannot be made when, because of the passage of time, the memories of witnesses have faded or evidence is lost.” Wilson, 471 U. S., at 271. Notwithstanding these considerations, my view is that a 3-year absolute time bar is inconsistent with the practical realities of § 10(b) litigation and the congressional policies underlying that remedy. The 1-year-from-discovery rule is sufficient to ensure a fair balance between protecting the legitimate interests of aggrieved investors, yet preventing stale claims. In the extreme case, moreover, when the period between the alleged fraud and its discovery is of extraordinary length, courts may apply equitable principles such as laches should it be unfair to permit the claim. See DelCostello, 462 U. S., at 162; Holmberg v. Armbrecht, LAMPF v. GILBERTSON 379 350 Kennedy, J., dissenting 327 U. S. 392 (1946). A 3-year absolute bar on § 10(b) actions simply tips the scale too far in favor of wrongdoers. The Court’s decision today forecloses any means of recovery for a defrauded investor whose only mistake was not discovering a concealed fraud within an unforgiving period of repose. As fraud in the securities markets remains a serious national concern, Congress may decide that the rule announced by the Court today should be corrected. But even if prompt congressional action is taken, it will not avail defrauded investors caught by the Court’s new and unforgiving rule, here applied on a retroactive basis to a pending action. With respect, I dissent and would remand with instructions that a § 10(b) action may be brought at any time within one year after an investor discovered or should have discovered a violation. In any event, I would permit the litigants in this case to rely upon settled Ninth Circuit precedent as setting the applicable limitations period in this case, and join Justice O’Connor’s dissenting opinion in full. 380 OCTOBER TERM, 1990 Syllabus 501 U. S. CHISOM et al. V. ROEMER, GOVERNOR OF LOUISIANA, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 90-757. Argued April 22, 1991—Decided June 20, 1991* The Louisiana Supreme Court consists of seven members, two of whom are elected at large from one multimember district, with the remainder elected from single-member districts. Petitioners in No. 90-757 represent a class of black registered voters in Orleans Parish, which is the largest of the four parishes in the multimember district and contains about half of the district’s registered voters. Although more than one-half of Orleans Parish’s registered voters are black, over three-fourths of the voters in the other three parishes are white. Petitioners filed an action in the District Court against respondents, the Governor and state officials, alleging that the method of electing justices from their district impermissibly dilutes minority voting strength in violation of, inter alia, § 2 of the Voting Rights Act of 1965. As amended in 1982, § 2(a) prohibits the imposition of a voting qualification or prerequisite or standard, practice, or procedure that “results in a denial or abridgement of the right... to vote on account of race or color,” and § 2(b) states that the test for determining the legality of such a practice is whether, “based on the totality of circumstances,” minority voters “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” (Emphasis added.) The United States, petitioner in No. 90-1032, subsequently intervened to support petitioners’ claims, and the District Court ultimately ruled against petitioners on the merits. However, the Court of Appeals finally remanded the case with directions to dismiss the complaint in light of its earlier en banc decision in League of United Latin American Citizens Council No. v. Clements, 914 F. 2d 620 (LULAC), that judicial elections are not covered under § 2 of the Act as amended. There, the court distinguished between claims involving the opportunity to participate in the political process and claims involving the opportunity to elect representatives of minority voters’ choice, holding that § 2 applied to judicial elections with respect to claims in the first category, but that *Together with No. 90-1032, United States v. Roemer, Governor of Louisiana, et al., also on certiorari to the same court. CHISOM v. ROEMER 381 380 Syllabus because judges are not “representatives,” the use of that term excludes judicial elections from claims in the second category. Held: Judicial elections are covered by § 2 as amended. Pp. 391-404. (a) As originally enacted, §2 was coextensive with the Fifteenth Amendment, and it is undisputed that it applied to judicial elections. The 1982 amendment expanded §2’s protection by adopting a results test, thus eliminating the requirement that proof of discriminatory intent is necessary to prove a § 2 violation, and by adding § 2(b), which provides guidance about how to apply that test. Had Congress also intended to exclude judicial elections, it would have made its intent explicit in the statute or identified or mentioned it in the amendment’s unusually extensive legislative history. Pp. 391-396. (b) The results test is applicable to all § 2 claims. The statutory text and this Court’s cases foreclose the LULAC majority’s reading of § 2. If the word “representatives” placed a limit on § 2’s coverage for judicial elections, it would exclude all claims involving such elections, for the statute requires that all claims must allege an abridgment of the opportunity both to participate in the political process and to elect representatives of one’s choice. Thus, rather than creating two separate and distinct rights, the statute identifies two inextricably linked elements of a plaintiff’s burden of proof. See, e. g., White v. Regester, 412 U. S. 755. Pp. 396-398. (c) The word “representatives” describes the winners of representative, popular elections, including elected judges. Although the L ULAC majority correctly noted that judges need not be elected, when they are, it seems both reasonable and realistic to characterize the winners as representatives of the districts in which they reside and run. The legislative history provides no support for the arguments that the term “representatives” includes only legislative and executive officials or that Congress would have chosen the word “candidates” had it intended to apply the vote dilution prohibition to judicial elections. Pp. 398-401. (d) Adopting respondents’ view of coverage would lead to the anomalous result that a State covered by § 5 of the Act would be precluded from implementing a new voting procedure having discriminatory effects with respect to judicial elections, Clark v. Roemer, 500 U. S. 646, but a similarly discriminatory system already in place could not be challenged under § 2. Pp. 401-402. (e) That the one-person, one-vote rule is inapplicable to judicial elections, Wells v. Edwards, 409 U. S. 1095, does not mean that judicial elections are entirely immune from vote dilution claims. Wells rejected a constitutional claim and, thus, has no relevance to a correct interpretation of this statute, which was enacted to provide additional pro 382 OCTOBER TERM, 1990 Syllabus 501 U. S. tection for voting rights not adequately protected by the Constitution itself. Cf. City of Rome v. United States, 446 U. S. 156, 172-183. Pp. 402-403. 917 F. 2d 187, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, O’Connor, and Souter, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy, J., joined, post, p. 404. Kennedy, J., filed a dissenting opinion, post, p. 418. Solicitor General Starr argued the cause for the United States in No. 90-1032. With him on the briefs were Assistant Attorney General Dunne, Deputy Solicitor General Roberts, Deputy Assistant Attorney General Clegg, Paul J. Larkin, Jr., Jessica Dunsay Silver, and Mark L. Gross. Pamela S. Karlan argued the cause for petitioners in No. 90-757. With her on the briefs were Julius LeVonne Chambers, Charles Stephen Ralston, Dayna L. Cunningham, Ronald L. Wilson, C. Lani Guinier, William P. Quigley, Roy Rodney, Jr. Robert G. Pugh argued the cause for respondents in both cases. With him on the brief were William J. Guste, Jr., Attorney General of Louisiana, M. Truman Woodward, Jr., Moise W. Dennery, and A. R. Christovich, Special Assistant Attorneys General, and Robert G. Pugh, Jr A tBriefs of amici curiae urging reversal were filed for the Lawyers’ Committee for Civil Rights Under Law et al. by Frank R. Parker, Robert B. McDuff, Brenda Wright, Robert F. Mullen, David S. Tatel, Norman Redlich, Laughlin McDonald, Neil Bradley, Kathleen L. Wilde, Mary Wyckoff, Samuel Rabinove, Richard T. Foltin, Antonia Hernandez, and Judith Sanders-Castro; for Supreme Court Justice for Orleans, Inc., by M. David Gelfand, Terry E. Allbritton, John S. Keller, and Ira J. Middle-berg; and for Darleen M. Jacobs by Ms. Jacobs, pro se, and Brian C. Beckwith. Briefs of amici curiae urging affirmance were filed for the State of Georgia by Michael J. Bowers, Attorney General, Carol Atha Cosgrove, Assistant Attorney General, and David F. Walbert; for the Pacific Legal Founda- CHISOM v. ROEMER 383 380 Opinion of the Court Justice Stevens delivered the opinion of the Court. The preamble to the Voting Rights Act of 1965 establishes that the central purpose of the Act is “[t]o enforce the fifteenth amendment to the Constitution of the United States.”1 The Fifteenth Amendment provides: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” U. S. Const., Arndt. 15, §1. In 1982, Congress amended §2 of the Voting Rights Act* 2 to make clear that certain practices and procedures that result in the denial or abridgment of the right to vote are forbidden even though the absence of proof of discriminatory intent tion by Ronald A. Zumbrun and Anthony T. Caso; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar. Edwin F. Hendricks filed a brief for the American Judicature Society as amicus curiae. ¿Pub. L. 89-110, 79 Stat. 437, 42 U. S. C. §1973 et seq. (1964 ed., Supp. I). 2 Section 2 of the Voting Rights Act of 1965, as amended, now reads: “Sec. 2. (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), as provided in subsection (b). “(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 96 Stat. 134. Section 2 has been codified at 42 U. S. C. § 1973. 384 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. protects them from constitutional challenge. The question presented by these cases is whether this “results test” protects the right to vote in state judicial elections. We hold that the coverage provided by the 1982 amendment is coextensive with the coverage provided by the Act prior to 1982 and that judicial elections are embraced within that coverage. I Petitioners in No. 90-757 represent a class of approximately 135,000 black registered voters in Orleans Parish, Louisiana. App. 6-7, 13. They brought this action against the Governor and other state officials (respondents) to challenge the method of electing justices of the Louisiana Supreme Court from the New Orleans area. The United States, petitioner in No. 90-1032, intervened to support the claims advanced by the plaintiff class. The Louisiana Supreme Court consists of seven justices,3 five of whom are elected from five single-member Supreme Court Districts, and two of whom are elected from one multimember Supreme Court District.4 * Each of the seven members of the court must be a resident of the district from which he or she is elected and must have resided there for at least two years prior to election. App. to Pet. for Cert. 7a. Each of the justices on the Louisiana Supreme Court serves a term of 10 years.6 The one multimember district, the First Supreme Court District, consists of the parishes of Orleans, St. Bernard, Plaquemines, and Jefferson.6 Orleans Parish contains about half of the population of the First Supreme Court District and about half of the registered voters in that district. Chisom v. Edwards, 839 F. 2d 1056, 1057 (CA5 1988). More than one-half of the registered voters of Orleans Parish are black, whereas more than three-fourths of 8La. Const., Art. 5, §3; La. Rev. Stat. Ann. § 13:101 (West 1983). 4La. Const., Art. 5, § 22(A); La. Rev. Stat. Ann. §13:101 (West 1983). 6La. Const., Art. 5, §3. 6La. Const., Art. 5, §4; La. Rev. Stat. Ann. §13:101 (West 1983). CHISOM v. ROEMER 385 380 Opinion of the Court the registered voters in the other three parishes are white. App. 8. Petitioners allege that “the present method of electing two Justices to the Louisiana Supreme Court at-large from the New Orleans area impermissibly dilutes minority voting strength” in violation of § 2 of the Voting Rights Act. Id., at 9. Furthermore, petitioners claimed in the courts below that the current electoral system within the First Supreme Court District violates the Fourteenth and Fifteenth Amendments of the Federal Constitution because the purpose and effect of this election practice “is to dilute, minimize, and cancel the voting strength” of black voters in Orleans Parish. Ibid. Petitioners seek a remedy that would divide the First District into two districts, one for Orleans Parish and the second for the other three parishes. If this remedy were adopted, the seven members of the Louisiana Supreme Court would each represent a separate single-member judicial district, and each of the two new districts would have approximately the same population. Id., at 8. According to petitioners, the new Orleans Parish district would also have a majority black population and majority black voter registration. Id., at 8, 47. The District Court granted respondents’ motion to dismiss the complaint. Chisom v. Edwards, 659 F. Supp. 183 (ED La. 1987). It held that the constitutional claims were insufficient because the complaint did not adequately allege a specific intent to discriminate. Id., at 189. With respect to the statutory claim, the court held that § 2 is not violated unless there is an abridgment of minority voters’ opportunity “to elect representatives of their choice.” Id., at 186-187. The court concluded that because judges are not “representatives,” judicial elections are not covered by § 2. Id., at 187. The Court of Appeals for the Fifth Circuit reversed. Chisom v. Edwards, 839 F. 2d 1056, cert, denied sub nom. Roemer v. Chisom, 488 U. S. 955 (1988). Before beginning its analysis, the court remarked that “[i]t is particularly sig 386 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. nificant that no black person has ever been elected to the Louisiana Supreme Court, either from the First Supreme Court District or from any one of the other five judicial districts.” 839 F. 2d, at 1058. After agreeing with the recently announced opinion in Mallory n. Eyrich, 839 F. 2d 275 (CA6 1988), it noted that the broad definition of the terms “voting” and “vote” in § 14(c)(1) of the original Act expressly included judicial elections within the coverage of §2.7 It also recognized Congress’ explicit intent to expand the coverage of §2 by enacting the 1982 amendment. 839 F. 2d, at 1061.8 Consistent with Congress’ efforts to broaden coverage under the Act, the court rejected the State’s contention that the term “representatives” in the 1982 amendment was used as a word of limitation. Id., at 1063 (describing State’s 7 “Section 14(c)(1), which defines ‘voting’ and ‘vote’ for purposes of the Act, sets forth the types of election practices and elections which are encompassed within the regulatory sphere of the Act. Section 14(c)(1) states: “The terms ‘vote’ or ‘voting’ shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this subchapter or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.” See 42 U. S. C. § 1973Z(c)(l). “Clearly, judges are ‘candidates for public or party office’ elected in a primary, special, or general election; therefore, section 2, by its express terms, extends to state judicial elections. This truly is the only construction consistent with the plain language of the Act.” 839 F. 2d, at 1059-1060. 8 “It is difficult, if not impossible, for this Court to conceive of Congress, in an express attempt to expand the coverage of the Voting Rights Act, to have in fact amended the Act in a manner affording minorities less protection from racial discrimination than that provided by the Constitution. . . . [S]ection 2 necessarily embraces judicial elections within its scope. Any other construction of section 2 would be wholly inconsistent with the plain language of the Act and the express purpose which Congress sought to attain in amending section 2; that is, to expand the protection of the Act.” Id., at 1061. CHISOM v. ROEMER 387 380 Opinion of the Court position as “untenable”). Instead, the court concluded that representative “ ‘denotes anyone selected or chosen by popular election from among a field of candidates to fill an office, including judges.’” Ibid, (quoting Martin v. Allain, 658 F. Supp. 1183, 1200 (SD Miss. 1987)). The court buttressed its interpretation by noting that “section 5 and section 2, virtually companion sections, operate in tandem to prohibit discriminatory practices in voting, whether those practices originate in the past, present, or future.” 839 F. 2d, at 1064. It also gleaned support for its construction of § 2 from the fact that the Attorney General had “consistently supported an expansive, not restrictive, construction of the Act.” Ibid. Finally, the court held that the constitutional allegations were sufficient to warrant a trial, and reinstated all claims. Id., at 1065.9 After the case was remanded to the District Court, the United States filed a complaint in intervention in which it alleged that the use of a multimember district to elect two members of the Louisiana Supreme Court is a “standard, practice or procedure” that “results in a denial or abridgment of the right to vote on account of race or color in violation of Section 2 of the Voting Rights Act.” App. 48. After a nonjury trial, however, the District Court concluded that the evidence did not establish a violation of § 2 under the standards set forth in Thornburg v. Gingles, 478 U. S. 30 (1986). 9 After remand, but before trial, plaintiffs (here petitioners) moved for a preliminary injunction, enjoining the October 1, 1988, election for one of the two Louisiana Supreme Court seats from the First Supreme Court District. The District Court granted plaintiffs’ motion, having found that they satisfied the four elements required for injunctive relief. Chisom v. Edwards, 690 F. Supp. 1524, 1531 (ED La. 1988). The Court of Appeals, however, vacated the preliminary injunction and ordered that the election proceed as scheduled. Chisom v. Roemer, 853 F. 2d 1186, 1192 (CA5 1988). It reasoned that if the election were enjoined, the resulting uncertainty would have a deleterious effect on the Louisiana Supreme Court and the administration of justice that would outweigh any potential harm plaintiffs might suffer if the election went forward. Id., at 1190-1192. 388 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. App. to Pet. for Cert. 62a. The District Court also dismissed the constitutional claims. Id., at 63a-64a. Petitioners and the United States appealed. While their appeal was pending, the Fifth Circuit, sitting en banc in another case, held that judicial elections were not covered under § 2 of the Act as amended. League of United Latin American Citizens Council No. JflfSJf v. Clements, 914 F. 2d 620 (1990) (hereinafter LU LAC). The majority in LU LAC concluded that Congress’ use of the word “representatives” in the phrase “to elect representatives of their choice” in § 2(b) of the Act indicated that Congress did not intend to authorize vote dilution claims in judicial elections. The en banc panel reached this conclusion after considering (1) the “precise language” of the amendment, id., at 624; (2) the character of the judicial office, with special emphasis on “the cardinal reason that judges need not be elected at all,” id., at 622; and (3) the fact that the one-person, one-vote rule had been held inapplicable to judicial elections before 1982, id., at 626. The precise language of §2 on which the LU LAC majority focused provides that a violation of §2 is established if the members of a protected class “ ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. ’ ” Id., at 625 (quoting 42 U. S. C. § 1973(b)). Noting that this language protects both the “the broad and general opportunity to participate in the political process and the specific one to elect representatives,” LU LAC, 914 F. 2d, at 625, the court drew a distinction between claims involving tests or other devices that interfere with individual participation in an election, on the one hand, and claims of vote dilution that challenge impairment of a group’s opportunity to elect representatives of their choice, on the other hand. The majority assumed that the amended §2 would continue to apply to judicial elections with respect to claims in the first CHISOM v. ROEMER 389 380 Opinion of the Court category, see ibid., but that the word “representatives” excludes judicial elections from claims in the second category, see id., at 625-628. In the majority’s view, it was “factually false” to characterize judges as representatives because public opinion is “irrelevant to the judge’s role,” id., at 622; “the judiciary serves no representative function whatever: the judge represents no one,” id., at 625. The majority concluded that judicial offices “are not ‘representative’ ones, and their occupants are not representatives.” Id., at 631. Thus, Congress would not have used the word “representatives,” as it did in § 2(b) of the Act, if it intended that subsection to apply to vote dilution claims in judicial elections. The majority also assumed that Congress was familiar with Wells v. Edwards, 347 F. Supp. 453 (MD La. 1972), summarily aff’d, 409 U. S. 1095 (1973), a reapportionment case in which the District Court held that “the concept of one-man, one-vote apportionment does not apply to the judicial branch of the government.” 347 F. Supp., at 454. The express reference in the Senate Report to the fact that the “‘principle that the right to vote is denied or abridged by dilution of voting strength derives from the one-person, one-vote reapportionment case of Reynolds v. Sims, [377 U. S. 533 (1964)],’” LULAC, 914 F. 2d, at 629 (quoting S. Rep. No. 97-417, p. 19 (1982)), persuaded the majority that, in light of the case law holding that judges were not representatives in the context of one-person, one-vote reapportionment cases, see LULAC, 914 F. 2d, at 626 (citing cases), Congress would not have authorized vote dilution claims in judicial elections without making an express, unambiguous statement to that effect. Following the en banc decision in LULAC, the Court of Appeals remanded this litigation to the District Court with directions to dismiss the complaint. 917 F. 2d 187 (1990) (per curiam). It expressed no opinion on the strength of petitioners’ evidentiary case. We granted certiorari, 498 390 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. U. S. 1060 (1991), and set the case for argument with LULAC, see post, p. 419. II Our decision today is limited in character, and thus, it is useful to begin by identifying certain matters that are not in dispute. No constitutional claims are before us.10 11 Unlike Wells n. Edwards,11 White v. Regester,12 and Mobile v. Bolden,13 this case presents us solely with a question of statutory construction. That question involves only the scope of the coverage of §2 of the Voting Rights Act as amended in 1982. We therefore do not address any question concerning the elements that must be proved to establish a violation of the Act or the remedy that might be appropriate to redress a violation if proved. It is also undisputed that §2 applied to judicial elections prior to the 1982 amendment,14 and that §5 of the amended statute continues to apply to judicial elections, see Clark v. Roemer, 500 U. S. 646 (1991). Moreover, there is no question that the terms “standard, practice, or procedure” are broad enough to encompass the use of multimember districts to minimize a racial minority’s ability to influence the outcome of an election covered by § 2.15 The only matter in dis 10 Petitioners did not seek review in this Court of the disposition of their constitutional claims. Brief for Petitioners in No. 90-757, p. 8, n. 2; Brief for United States 4, n. 2; Tr. of Oral Arg. 27. 11409 U. S. 1095 (1973), aff’g 347 F. Supp. 453 (MD La. 1972) (whether election of State Supreme Court justices by district violated the Equal Protection Clause of the Fourteenth Amendment). 12 412 U. S. 755 (1973) (whether population differential among districts established a prima facie case of invidious discrimination under the Equal Protection Clause of the Fourteenth Amendment). 13 446 U. S. 55 (1980) (whether at-large system of municipal elections violated black voters’ rights under the Fourteenth and Fifteenth Amendments). 14 See Brief for Respondents 16; Tr. of Oral Arg. 42. 16 In Gomillion v. Lightfoot, 364 U. S. 339 (1960), the Court held that a local Act redefining the boundaries of the city of Tuskegee, Alabama, vio CHISOM v. ROEMER 391 380 Opinion of the Court pute is whether the test for determining the legality of such a practice, which was added to the statute in 1982, applies in judicial elections as well as in other elections. Ill The text of §2 of the Voting Rights Act as originally enacted read as follows: “Sec. 2. No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” 79 Stat. 437. The terms “vote” and “voting” were defined elsewhere in the Act to include “all action necessary to make a vote effective in any primary, special, or general election” § 14(c)(1) of the Act, 79 Stat. 445 (emphasis added). The statute further defined vote and voting as “votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.” Ibid. lated the Fifteenth Amendment. In his opinion for the Court, Justice Frankfurter wrote: “The opposite conclusion, urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions.” Id., at 345. “A statute which is alleged to have worked unconstitutional deprivations of petitioners’ rights is not immune to attack simply because the mechanism employed by the legislature is a redefinition of municipal boundaries. According to the allegations here made, the Alabama Legislature has not merely redrawn the Tuskegee city limits with incidental inconvenience to the petitioners; it is more accurate to say that it has deprived the petitioners of the municipal franchise and consequent rights and to that end it has incidentally changed the city’s boundaries. While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights.” Id., at 347. 392 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. At the time of the passage of the Voting Rights Act of 1965, § 2, unlike other provisions of the Act, did not provoke significant debate in Congress because it was viewed largely as a restatement of the Fifteenth Amendment. See H. R. Rep. No. 439, 89th Cong., 1st Sess., 23 (1965) (§2 “grants ... a right to be free from enactment or enforcement of voting qualifications ... or practices which deny or abridge the right to vote on account of race or color”); see also S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 19-20 (1965). This Court took a similar view of § 2 in Mobile v. Bolden, 446 U. S. 55, 60-61 (1980). There, we recognized that the coverage provided by § 2 was unquestionably coextensive with the coverage provided by the Fifteenth Amendment; the provision simply elaborated upon the Fifteenth Amendment. Ibid. Section 2 protected the right to vote, and it did so without making any distinctions or imposing any limitations as to which elections would fall within its purview. As Attorney General Katzenbach made clear during his testimony before the House, “[e]very election in which registered electors are permitted to vote would be covered” under §2.16 The 1965 Act made it unlawful “to deny or abridge” the right to vote “on account of race or color.” 79 Stat. 437. Congress amended §2 in 197517 by expanding the original prohibition against discrimination “on account of race or color” to include non-English-speaking groups. It did this by replacing “race or color” with “race or color, or in contravention of the guarantees set forth in section 4(f)(2)” of the Act. 89 Stat. 402.18 The 1982 amendment further expanded the protection afforded by § 2. 16 Hearings on H. R. 6400 and Other Proposals To Enforce the 15th Amendment to the Constitution of the United States before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., 21 (1965). 17 Pub. L. 94-73, 89 Stat. 400. 18 The 1975 amendment added a new subsection to §4 of the Act. The new subsection reads in part as follows: CHISOM v. ROEMER 393 380 Opinion of the Court Justice Stewart’s opinion for the plurality in Mobile v. Bolden, supra, which held that there was no violation of either the Fifteenth Amendment or §2 of the Voting Rights Act absent proof of intentional discrimination, served as the impetus for the 1982 amendment. One year after the decision in Mobile, Chairman Rodino of the House Judiciary Committee introduced a bill to extend the Voting Rights Act and its bilingual requirements, and to amend § 2 by striking out “to deny or abridge” and substituting “in a manner which results in a denial or abridgment of.”19 The “results” test proposed by Chairman Rodino was incorporated into S. 1992,20 and ultimately into the 1982 amendment to § 2, and is now the focal point of this litigation. “(f)(1) The Congress finds that voting discrimination against citizens of language minorities is pervasive and national in scope. Such minority citizens are from environments in which the dominant language is other than English. . . . “(2) No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote because he is a member of a language minority group.” 89 Stat. 401. See 42 U. S. C. §§ 1973b(f)(1), (2). 19H. R. 3112, 97th Cong., 1st Sess. (1981) (emphasis added). 20 “The objectives of S. 1992, as amended, are as follows: (1) to extend the present coverage of the special provisions of the Voting Rights Act, Sections 4, 5, 6, 7 and 8; (2) to amend Section 4(a) of the Act to permit individual jurisdictions to meet a new, broadened standard for termination of coverage by those special provisions; (3) to amend the language of Section 2 in order to clearly establish the standards intended by Congress for proving a violation of that section; (4) to extend the language-assistance provisions of the Act until 1992; and (5) to add a new section pertaining to voting assistance for voters who are blind, disabled, or illiterate. “S. 1992 amends Section 2 of the Voting Rights Act of 1965 to prohibit any voting practice, or procedure [that] results in discrimination. This amendment is designed to make clear that proof of discriminatory intent is not required to establish a violation of Section 2. It thereby restores the legal standards, based on the controlling Supreme Court precedents, which applied in voting discrimination claims prior to the litigation involved in 394 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Under the amended statute, proof of intent is no longer required to prove a §2 violation. Now plaintiffs can prevail under §2 by demonstrating that a challenged election practice has resulted in the denial or abridgment of the right to vote based on color or race. Congress not only incorporated the results test in the paragraph that formerly constituted the entire § 2, but also designated that paragraph as subsection (a) and added a new subsection (b) to make clear that an application of the results test requires an inquiry into “the totality of the circumstances.”* 21 The full text of §2 as amended in 1982 reads as follows: “Sec. 2. (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on Mobile v. Bolden. The amendment also adds a new subsection to Section 2 which delineates the legal standards under the results test by codifying the leading pre-BoZden vote dilution case, White v. Regester. “This new subsection provides that the issue to be decided under the results test is whether the political processes are equally open to minority voters. The new subsection also states that the section does not establish a right to proportional representation.” S. Rep. No. 97-417, p. 2 (1982) (footnotes omitted).- 21 “The amendment to the language of Section 2 is designed to make clear that plaintiffs need not prove a discriminatory purpose in the adoption or maintenance of the challenged system of practice in order to establish a violation. Plaintiffs must either prove such intent, or, alternatively, must show that the challenged system or practice, in the context of all the circumstances in the juridiction in question, results in minorities being denied equal access to the political process. “The ‘results’ standard is meant to restore the pre-Mobile legal standard which governed cases challenging election systems or practices as an illegal dilution of the minority vote.” Id., at 27 (footnote omitted). See also Thornburg v. Gingles, 478 U. S. 30, 83-84 (1986) (O’Connor, J., concurring in judgment) (“Amended § 2 is intended to codify the ‘results’ test employed in Whitcomb v. Chavis, 403 U. S. 124 (1971), and White v. Regester, 412 U. S. 755 (1973), and to reject the ‘intent’ test propounded in the plurality opinion in Mobile v. Bolden, 446 U. S. 55 (1980)).” CHISOM v. ROEMER 395 380 Opinion of the Court account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), as provided in subsection (b). “(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 96 Stat. 134. The two purposes of the amendment are apparent from its text. Subsection (a) adopts a results test, thus providing that proof of discriminatory intent is no longer necessary to establish any violation of the section. Subsection (b) provides guidance about how the results test is to be applied. Respondents contend, and the LULAC majority agreed, that Congress’ choice of the word “representatives” in the phrase “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice”22 in subsection (b) is evi 22 The phrase is borrowed from Justice White’s opinion for the Court in White v. Regester, 412 U. S. 755 (1973), which predates Mobile v. Bolden, 446 U. S. 55 (1980). Congress explained that its purpose in adding subsection 2(b) was to “embod[y] the test laid down by the Supreme Court in White” S. Rep. No. 97-417, at 27. In White, the Court said that the “plaintiffs’ burden is to produce evidence . . . that [the minority group’s] members had less opportunity than did other residents in the district to 396 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. dence of congressional intent to exclude vote dilution claims involving judicial elections from the coverage of § 2. We reject that construction because we are convinced that if Congress had such an intent, Congress would have made it explicit in the statute, or at least some of the Members would have identified or mentioned it at some point in the unusually extensive legislative history of the 1982 amendment.23 Our conclusion is confirmed when we review the justifications offered by the LU LAC majority and respondents in support of their construction of the statute; we address each of their main contentions in turn. IV The LU LAC majority assumed that §2 provides two distinct types of protection for minority voters — it protects their opportunity “to participate in the political process” and their opportunity “to elect representatives of their choice.” See LULAC, 914 F. 2d, at 625. Although the majority interpreted “representatives” as a word of limitation, it assumed that the word eliminated judicial elections only from the latter protection, without affecting the former. Id., at 625, 629. In other words, a standard, practice, or procedure in a judicial election, such as a limit on the times that polls are open, which has a disparate impact on black voters’ opportunity to cast their ballots under § 2, may be challenged even if a different practice that merely affects their opportunity to elect representatives of their choice to a judicial office may participate in the political processes and to elect legislators of their choice.” 412 U. S., at 766. 28 Congress’ silence in this regard can be likened to the dog that did not bark. See A. Doyle, Silver Blaze, in The Complete Sherlock Holmes 335 (1927). Cf. Harrison v. PPG Industries, Inc., 446 U. S. 578, 602 (1980) (Rehnquist, J., dissenting) (“In a case where the construction of legislative language such as this makes so sweeping and so relatively unorthodox a change as that made here, I think judges as well as detectives may take into consideration the fact that a watchdog did not bark in the night”). See also American Hospital Assn. v. NLRB, 499 U. S. 606 (1991). CHISOM v. ROEMER 397 380 Opinion of the Court not. This reading of § 2, however, is foreclosed by the statutory text and by our prior cases. Any abridgment of the opportunity of members of a protected class to participate in the political process inevitably impairs their ability to influence the outcome of an election. As the statute is written, however, the inability to elect representatives of their choice is not sufficient to establish a violation unless, under the totality of the circumstances, it can also be said that the members of the protected class have less opportunity to participate in the political process. The statute does not create two separate and distinct rights. Subsection (a) covers every application of a qualification, standard, practice, or procedure that results in a denial or abridgment of “the right” to vote. The singular form is also used in subsection (b) when referring to an injury to members of the protected class who have less “opportunity” than others “to participate in the political process and to elect representatives of their choice.” 42 U. S. C. §1973 (emphasis added). It would distort the plain meaning of the sentence to substitute the word “or” for the word “and.” Such radical surgery would be required to separate the opportunity to participate from the opportunity to elect.24 The statutory language is patterned after the language used by Justice White in his opinions for the Court in White v. Regester, 412 U. S. 755 (1973), and Whitcomb v. Chavis, 403 U. S. 124 (1971). See n. 22, supra. In both opinions, the Court identified the opportunity to participate and the opportunity to elect as inextricably linked. In White v. Regester, the Court described the connection as follows: “The plaintiffs’ burden is to produce evidence . . . that its mem 24 Justice Scalia argues that our literal reading of the word “and” leads to the conclusion that a small minority has no protection against infringements of its right “ ‘to participate in the political process’ ” because it will always lack the numbers necessary “to elect its candidate,” post, at 409. This argument, however, rests on the erroneous assumption that a small group of voters can never influence the outcome of an election. 398 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. bers had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” 412 U. S., at 766 (emphasis added). And earlier, in Whitcomb v. Chavis, the Court described the plaintiffs’ burden as entailing a showing that they “had less opportunity than did other . . . residents to participate in the political processes and to elect legislators of their choice.” 403 U. S., at 149 (emphasis added).25 The results test mandated by the 1982 amendment is applicable to all claims arising under § 2. If the word “representatives” did place a limit on the coverage of the Act for judicial elections, it would exclude all claims involving such elections from the protection of § 2. For all such claims must allege an abridgment of the opportunity to participate in the political process and to elect representatives of one’s choice. Even if the wisdom of Solomon would support the LU LAC majority’s proposal to preserve claims based on an interference with the right to vote in judicial elections while eschewing claims based on the opportunity to elect judges, we have no authority to divide a unitary claim created by Congress. V Both respondents and the LU LAC majority place their principal reliance on Congress’ use of the word “representatives” instead of “legislators” in the phrase “to participate in the political process and to elect representatives of their choice.” 42 U. S. C. § 1973. When Congress borrowed the phrase from White v. Regester, it replaced “legislators” with “representatives.”26 This substitution indicates, at the very 25 See also Reynolds v. Sims, 377 U. S. 533, 565 (1964) (“Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature”). 26 The word “representatives” rather than “legislators” was included in Senator Robert Dole’s compromise, which was designed to assuage the fears of those Senators who viewed the House’s version, H. R. 3112, as an invitation for proportional representation and electoral quotas. Senator CHISOM v. ROEMER 399 380 Opinion of the Court least, that Congress intended the amendment to cover more than legislative elections. Respondents argue, and the majority agreed, that the term “representatives” was used to extend § 2 coverage to executive officials, but not to judges. We think, however, that the better reading of the word “representatives” describes the winners of representative, popular elections. If executive officers, such as prosecutors, sheriffs, state attorneys general, and state treasurers, can be considered “representatives” simply because they are chosen by popular election, then the same reasoning should apply to elected judges.27 Respondents suggest that if Congress had intended to have the statute’s prohibition against vote dilution apply to the election of judges, it would have used the word “candidates” instead of “representatives.” Brief for Respondents 20, and n. 9. But that confuses the ordinary meaning of the words. Dole explained that the compromise was intended both to embody the belief “that a voting practice or procedure which is discriminatory in result should not be allowed to stand, regardless of whether there exists a discriminatory purpose or intent” and to “delineat[e] what legal standard should apply under the results test and clarif[y] that it is not a mandate for proportional representation.” Hearings on S. 53 et al. before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 2d Sess., 60 (1982). Thus, the compromise was not intended to exclude any elections from the coverage of subsection (a), but simply to make clear that the results test does not require the proportional election of minority candidates in any election. 27 Moreover, this Court has recently recognized that judges do engage in policymaking at some level. See Gregory v. Ashcroft, post, at 466-467 (“It may be sufficient that the appointee is in a position requiring the exercise of discretion concerning issues of public importance. This certainly describes the bench, regardless of whether judges might be considered policymakers in the same sense as the executive or legislature”). A judge brings to his or her job of interpreting texts “a well-considered judgment of what is best for the community.” Post, at 466. As the concurrence notes, Justice Holmes and Justice Cardozo each wrote eloquently about the “policymaking nature of the judicial function.” Post, at 482 (White, J., concurring in part, dissenting in part, and concurring in judgment). 400 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. The word “representative” refers to someone who has prevailed in a popular election, whereas the word “candidate” refers to someone who is seeking an office. Thus, a candidate is nominated, not elected. When Congress used “candidate” in other parts of the statute, it did so precisely because it was referring to people who were aspirants for an office. See, e. g., 42 U. S. C. §§ 1971(b) (“any candidate for the office of President”), 1971(e) (“candidates for public office”), 1973i(c) (“any candidate for the office of President”), 1973i(e)(2) (“any candidate for the office of President”), 19731(c) (“candidates for public or party office”), 1973ff-2 (“In the case of the offices of President and Vice President, a vote for a named candidate”), 1974 (“candidates for the office of President”), 1974e (“candidates for the office of President”). The LULAC majority was, of course, entirely correct in observing that “judges need not be elected at all,” 914 F. 2d, at 622, and that ideally public opinion should be irrelevant to the judge’s role because the judge is often called upon to disregard, or even to defy, popular sentiment. The Framers of the Constitution had a similar understanding of the judicial role, and as a consequence, they established that Article III judges would be appointed, rather than elected, and would be sheltered from public opinion by receiving life tenure and salary protection. Indeed, these views were generally shared by the States during the early years of the Republic.28 Louisiana, however, has chosen a different course. It has decided to elect its judges and to compel judicial candidates to vie for popular support just as other political candidates do. The fundamental tension between the ideal character of the judicial office and the real world of electoral politics cannot be resolved by crediting judges with total indifference to the popular will while simultaneously requiring them to run for 28See generally Winters, Selection of Judges—An Historical Introduction, 44 Texas L. Rev. 1081, 1082-1083 (1966). CHISOM v. ROEMER 401 380 Opinion of the Court elected office.29 When each of several members of a court must be a resident of a separate district, and must be elected by the voters of that district, it seems both reasonable and realistic to characterize the winners as representatives of that district. Indeed, at one time the Louisiana Bar Association characterized the members of the Louisiana Supreme Court as representatives for that reason: “Each justice and judge now in office shall be considered as a representative of the judicial district within which is situated the parish of his residence at the time of his election.”30 Louisiana could, of course, exclude its judiciary from the coverage of the Voting Rights Act by changing to a system in which judges are appointed, and, in that way, it could enable its judges to be indifferent to popular opinion. The reasons why Louisiana has chosen otherwise are precisely the reasons why it is appropriate for § 2, as well as § 5, of the Voting Rights Act to continue to apply to its judicial elections. The close connection between §§2 and 5 further undermines respondents’ view that judicial elections should not be covered under § 2. Section 5 requires certain States to submit changes in their voting procedures to the District Court of the District of Columbia or to the Attorney General for preclearance. Section 5 uses language similar to that of § 2 29 “Financing a campaign, soliciting votes, and attempting to establish charisma or name identification are, at the very least, unseemly for judicial candidates” because “it is the business of judges to be indifferent to popularity.” Stevens, The Office of an Office, Chicago Bar Rec. 276, 280, 281 (1974). 30 Louisiana State Law Institute, Project of a Constitution for the State of Louisiana with Notes and Studies 1039 (1954) (1921 Report of the Louisiana Bar Association submitted to the Louisiana Constitutional Convention). The editors of the project explained that they included the 1921 Report because “on the major issues involved in revising the judicial provisions of the present constitution, it offers many proposals, that even after the passage of thirty years, still merit serious consideration. Of particular interest are the procedures for the selection, retirement and removal of judges. ...” Id., at 1035. 402 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. in defining prohibited practices: “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” 42 U. S. C. § 1973c. This Court has already held that § 5 applies to judicial elections. Clark v. Roemer, 500 U. S. 646 (1991). If §2 did not apply to judicial elections, a State covered by §5 would be precluded from implementing a new voting procedure having discriminatory effects with respect to judicial elections, whereas a similarly discriminatory system already in place could not be challenged under § 2. It is unlikely that Congress intended such an anomalous result. VI Finally, both respondents and the LULAC majority suggest that no judicially manageable standards for deciding vote dilution claims can be fashioned unless the standard is based on the one-person, one-vote principle.31 They reason that because we have held the one-person, one-vote rule inapplicable to judicial elections, see Wells n. Edwards, 409 U. S. 1095 (1973), aff’g 347 F. Supp., at 454, it follows that judicial elections are entirely immune from vote dilution 31 The “one-person, one-vote” principle was first set forth in Gray v. Sanders, 372 U. S. 368, 379, 381 (1963): “. . . Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. “. . . The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.” Since then, the rule has been interpreted to mean that “each person’s vote counts as much, insofar as it is practicable, as any other person’s.” Hadley v. Junior College District of Metropolitan Kansas City, 397 U. S. 50, 54 (1970). CHISOM v. ROEMER 403 380 Opinion of the Court claims. The conclusion, however, does not follow from the premise. The holding in Wells rejected a constitutional challenge based on the Equal Protection Clause of the Fourteenth Amendment. It has no more relevance to a correct interpretation of this statute than does our decision in Mobile v. Bolden, 446 U. S. 55 (1980), which also rejected a constitutional claim. The statute was enacted to protect voting rights that are not adequately protected by the Constitution itself. Cf. City of Rome v. United States, 446 U. S. 156, 172-183 (1980). The standard that should be applied in litigation under § 2 is not at issue here.32 Even if serious problems lie ahead in applying the “totality of circumstances” standard described in §2(b), that task, difficult as it may prove to be, cannot justify a judicially created limitation on the coverage of the broadly worded statute, as enacted and amended by Congress. VII Congress enacted the Voting Rights Act of 1965 for the broad remedial purpose of “rid[ding] the country of racial discrimination in voting.” South Carolina v. Katzenbach, 383 U. S. 301, 315 (1966). In Allen v. State Board of Elections, 393 U. S. 544, 567 (1969), we said that the Act should be interpreted in a manner that provides “the broadest possible scope” in combating racial discrimination. Congress amended the Act in 1982 in order to relieve plaintiffs of the burden of proving discriminatory intent, after a plurality of this Court had concluded that the original Act, like the 32 We note, however, that an analysis of a proper statutory standard under §2 need not rely on the one-person, one-vote constitutional rule. See Thornburg v. Gingles, 478 U. S., at 88-89 (O’Connor, J., concurring in judgment); see also White v. Regester, 412 U. S. 755 (1973) (holding that multimember districts were invalid, notwithstanding compliance with one-person, one-vote rule). Moreover, Clark v. Roemer, 500 U. S. 646 (1991), the case in which we held that § 5 applies to judicial elections, was a vote dilution case. The reasoning in Justice Scalia’s dissent, see post, at 413-416, if valid, would have led to a different result in that case. 404 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. Fifteenth Amendment, contained such a requirement. See Mobile n. Bolden, 446 U. S. 55 (1980). Thus, Congress made clear that a violation of § 2 could be established by proof of discriminatory results alone. It is difficult to believe that Congress, in an express effort to broaden the protection afforded by the Voting Rights Act, withdrew, without comment, an important category of elections from that protection. Today we reject such an anomalous view and hold that state judicial elections are included within the ambit of § 2 as amended. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Justice Scalia, with whom The Chief Justice and Justice Kennedy join, dissenting. Section 2 of the Voting Rights Act of 1965 is not some allpurpose weapon for well-intentioned judges to wield as they please in the battle against discrimination. It is a statute. I thought we had adopted a regular method for interpreting the meaning of language in a statute: first, find the ordinary meaning of the language in its textual context; and second, using established canons of construction, ask whether there is any clear indication that some permissible meaning other than the ordinary one applies. If not—and especially if a good reason for the ordinary meaning appears plain—we apply that ordinary meaning. See, e. g., West Virginia University Hospitals, Inc. n. Casey, 499 U. S. 83, 98-99 (1991); Demarest n. Manspeaker, 498 U. S. 184, 190 (1991); United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989); Pennsylvania Dept, of Public Welfare v. Davenport, 495 U. S. 552, 557-558 (1990); Caminetti v. United States, 242 U. S. 470, 485 (1917); Public Citizen v. Department of Justice, 491 U. S. 440, 470 (1989) (Kennedy, J., concurring in judgment). CHISOM v. ROEMER 405 380 Scalia, J., dissenting Today, however, the Court adopts a method quite out of accord with that usual practice. It begins not with what the statute says, but with an expectation about what the statute must mean absent particular phenomena (“/W/e are convinced that if Congress had ... an intent [to exclude judges] Congress would have made it explicit in the statute, or at least some of the Members would have identified or mentioned it at some point in the unusually extensive legislative history,” ante, at 396 (emphasis added)); and the Court then interprets the words of the statute to fulfill its expectation. Finding nothing in the legislative history affirming that judges were excluded from the coverage of §2, the Court gives the phrase “to elect representatives” the quite extraordinary meaning that covers the election of judges. As method, this is just backwards, and however much we may be attracted by the result it produces in a particular case, we should in every case resist it. Our job begins with a text that Congress has passed and the President has signed. We are to read the words of that text as any ordinary Member of Congress would have read them, see Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417 (1899), and apply the meaning so determined. In my view, that reading reveals that §2 extends to vote dilution claims for the elections of representatives only, and judges are not representatives. I As the Court suggests, the 1982 amendments to the Voting Rights Act were adopted in response to our decision in Mobile v. Bolden, 446 U. S. 55 (1980), which had held that the scope of the original Voting Rights Act was coextensive with the Fifteenth Amendment, and thus proscribed intentional discrimination only. I agree with the Court that that original legislation, directed toward intentional discrimination, applied to all elections, for it clearly said so: “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or ap 406 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. plied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” 79 Stat. 437. The 1982 amendments, however, radically transformed the Act. As currently written, the statute proscribes intentional discrimination only if it has a discriminatory effect, but proscribes practices with discriminatory effect whether or not intentional. This new “results” criterion provides a powerful, albeit sometimes blunt, weapon with which to attack even the most subtle forms of discrimination. The question we confront here is how broadly the new remedy applies. The foundation of the Court’s analysis, the itinerary for its journey in the wrong direction, is the following statement: “It is difficult to believe that Congress, in an express effort to broaden the protection afforded by the Voting Rights Act, withdrew, without comment, an important category of elections from that protection.” Ante, at 404. There are two things wrong with this. First is the notion that Congress cannot be credited with having achieved anything of major importance by simply saying it, in ordinary language, in the text of a statute, “without comment” in the legislative history. As the Court colorfully puts it, if the dog of legislative history has not barked nothing of great significance can have transpired. Ante, at 396, n. 23. Apart from the questionable wisdom of assuming that dogs will bark when something important is happening, see 1 T. Livius, The History of Rome 411-413 (1892) (D. Spillan transl.), we have forcefully and explicitly rejected the Conan Doyle approach to statutory construction in the past. See Harrison v. PPG Industries, Inc., 446 U. S. 578, 592 (1980) (“In ascertaining the meaning of a statute, a court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not bark”). We are here to apply the statute, not legislative history, and certainly not the absence of legislative history. Statutes are the law though sleeping dogs lie. See, e. g., Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 495-496, n. 13 CHISOM v. ROEMER 407 380 Scalia, J., dissenting (1985); Williams n. United States, 458 U. S. 279, 294-295 (1982) (Marshall, J., dissenting). The more important error in the Court’s starting point, however, is the assumption that the effect of excluding judges from the revised § 2 would be to “withdr[aw] ... an important category of elections from [the] protection [of the Voting Rights Act].” Ante, at 404. There is absolutely no question here of withdrawing protection. Since the pre-1982 content of §2 was coextensive with the Fifteenth Amendment, the entirety of that protection subsisted in the Constitution, and could be enforced through the other provisions of the Voting Rights Act. Nothing was lost from the prior coverage; all of the new “results” protection was an add-on. The issue is not, therefore, as the Court would have it, ante, at 395-396, whether Congress has cut back on the coverage of the Voting Rights Act; the issue is how far it has extended it. Thus, even if a court’s expectations were a proper basis for interpreting the text of a statute, while there would be reason to expect that Congress was not “withdrawing” protection, there is no particular reason to expect that the supplemental protection it provided was any more extensive than the text of the statute said. What it said, with respect to establishing a violation of the amended § 2, is the following: “. . . A violation ... is established if... it is shown that the political processes leading to nomination or election . . . are not equally open to participation by members of a [protected] class ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice” 42 U. S. C. § 1973(b) (emphasis added). Though this text nowhere speaks of “vote dilution,” Thornburg n. Gingles, 478 U. S. 30 (1986), understood it to proscribe practices which produce that result, identifying as the statutory basis for a dilution claim the second of the two 408 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. phrases highlighted above—“to elect representatives of their choice.”1 Under this interpretation, the other highlighted phrase—“to participate in the political process”—is left for other, nondilution § 2 violations. If, for example, a county permitted voter registration for only three hours one day a week, and that made it more difficult for blacks to register than whites, blacks would have less opportunity “to participate in the political process” than whites, and §2 would therefore be violated—even if the number of potential black voters was so small that they would on no hypothesis be able to elect their own candidate, see Blumstein, Proving Race Discrimination, 69 Va. L. Rev. 633, 706-707 (1983). The Court, however, now rejects Thornburg’s reading of the statute, and asserts that before a violation of § 2 can be made out, both conditions of §2(b) must be met. As the Court explains, “As the statute is written, . . . the inability to elect representatives of their choice is not sufficient to establish a 1 As the Thornburg Court noted, the plaintiffs’ allegation was “that the redistricting scheme impaired black citizens’ ability to elect representatives of their choice in violation of. . . § 2 of the Voting Rights Act,” 478 U. S., at 35. See also id., at 46, n. 12 (“The claim we address in this opinion is . . . that their ability to elect the representatives of their choice was impaired by the selection of a multimember electoral structure”). And as we explained the requirement for recovery in the case: “Minority voters who contend that the multimember form of districting violates § 2 must prove that the use of a multimember electoral structure operates to minimize or cancel out their ability to elect their preferred candidates.” Id., at 48 (emphasis added). While disagreeing with the Court’s formulation of a remedy, Justice O’Connor acknowledged that this structure underlay the Court’s analysis, pointing out that in the Court’s view “minority voting strength is to be assessed solely in terms of the minority group’s ability to elect candidates it prefers. . . . Under this approach, the essence of a vote dilution claim is that the State has created singlemember or multimember districts that unacceptably impair the minority group’s ability to elect the candidates its members prefer.” Id., at 88 (opinion concurring in judgment) (emphasis added and deleted). CHISOM v. ROEMER 409 380 Scalia, J., dissenting violation unless, under the totality of the circumstances, it can also be said that the members of the protected class have less opportunity to participate in the political process. The statute does not create two separate and distinct rights. ... It would distort the plain meaning of the sentence to substitute the word ‘or’ for the word ‘and.’ Such radical surgery would be required to separate the opportunity to participate from the opportunity to elect.” Ante, at 397. This is unquestionably wrong. If both conditions must be violated before there is any § 2 violation, then minorities who form such a small part of the electorate in a particular jurisdiction that they could on no conceivable basis “elect representatives of their choice” would be entirely without §2 protection. Since, as the Court’s analysis suggests, the “results” test of § 2 judges a violation of the “to elect” provision on the basis of whether the practice in question prevents actual election, then a protected class that with or without the practice will be unable to elect its candidate can be denied equal opportunity “to participate in the political process” with impunity. The Court feels compelled to reach this implausible conclusion of a “singular right” because the “to participate” clause and the “to elect” clause are joined by the conjunction “and.” It is unclear to me why the rules of English usage require that conclusion here, any more than they do in the case of the First Amendment—which reads “Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This has not generally been thought to protect the right peaceably to assemble only when the purpose of the assembly is to petition the Government for a redress of grievances. So also here, one is deprived of an equal “opportunity ... to participate . . . and to elect” if either the opportunity to participate or the opportunity to elect is unequal. The point is in any event not central to the present case—and it is sad to see the Court repudiate 410 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. Thornburg, create such mischief in the application of § 2, and even cast doubt upon the First Amendment, merely to deprive the State of the argument that elections for judges remain covered by § 2 even though they are not subject to vote dilution claims.2 The Court, petitioners, and petitioners’ amici have labored mightily to establish that there is a meaning of “representatives” that would include judges, see, e. g., Brief for Lawyers Committee for Civil Rights as Amicus Curiae 10-11, and no doubt there is. But our job is not to scavenge the world of English usage to discover whether there is any possible meaning of “representatives” which suits our preconception that the statute includes judges; our job is to determine whether the ordinary meaning includes them, and if it does not, to ask whether there is any solid indication in the text or structure of the statute that something other than ordinary meaning was intended. There is little doubt that the ordinary meaning of “representatives” does not include judges, see Webster’s Second New International Dictionary 2114 (1950). The Court’s feeble argument to the contrary is that “representatives” means those who “are chosen by popular election.” Ante, at 399. On that hypothesis, the fan-elected members of the baseball all-star teams are “representatives”—hardly a common, if even a permissible, usage. Surely the word “representative” connotes one who is not only elected by the people, but who also, at a minimum, acts on behalf of the people. Judges do that in a sense—but not in the ordinary sense. As the captions of the pleadings in some States still display, it is 2 The Court denies that this conclusion follows, because, as it claims, it “rests on the erroneous assumption that a small group of voters can never influence the outcome of an election.” Ante, at 397, n. 24. I make no such assumption. I only assume that by “to elect” the statute does not mean “to influence,” just as I assume that by “representatives” the statute does not mean “judges.” We do not reject Conan Doyle’s method of statutory interpretation only to embrace Lewis Carroll’s. CHISOM v. ROEMER 411 380 Scalia, J., dissenting the prosecutor who represents “the People”; the judge represents the Law—which often requires him to rule against the People. It is precisely because we do not ordinarily conceive of judges as representatives that we held judges not within the Fourteenth Amendment’s requirement of “one person, one vote.” Wells v. Edwards, 347 F. Supp. 453 (MD La. 1972), aff’d, 409 U. S. 1095 (1973). The point is not that a State could not make judges in some senses representative, or that all judges must be conceived of in the Article III mold, but rather, that giving “representatives” its ordinary meaning, the ordinary speaker in 1982 would not have applied the word to judges, see Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417 (1899). It remains only to ask whether there is good indication that ordinary meaning does not apply. There is one canon of construction that might be applicable to the present cases which, in some circumstances, would counter ordinary meaning—but here it would only have the effect of reinforcing it. We apply that canon to another case today, concerning, curiously enough, the very same issue of whether state judges are covered by the provisions of a federal statute. In Gregory n. Ashcroft, post, p. 452, we say that unless it is clear that the term “appointee[s] on the policymaking level” does not include judges we will construe it to include them, since the contrary construction would cause the statute to intrude upon the structure of state government, establishing a federal qualification for state judicial office. Such intrusion, we say, requires a “plain statement” before we will acknowledge it. See also Will v. Michigan Dept, of State Police, 491 U. S. 58, 65 (1989); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985); Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 99 (1984). If the same principle were applied here, we would have double reason to give “representatives” its ordinary meaning. It is true, however, that in Gregory interpreting the statute to include judges would make them the only high-level state 412 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. officials affected, whereas here the question is whether judges were excluded from a general imposition upon state elections that unquestionably exists; and in Gregory it is questionable whether Congress was invoking its powers under the Fourteenth Amendment (rather than merely the Commerce Clause), whereas here it is obvious. Perhaps those factors suffice to distinguish the two cases. Moreover, we tacitly rejected a "plain statement” rule as applied to the unamended §2 in City of Rome v. United States, 446 U. S. 156, 178-180 (1980), though arguably that was before the rule had developed the significance it currently has. I am content to dispense with the "plain statement” rule in the present cases, cf. Pennsylvania v. Union Gas Co., 491 U. S. 1, 41-42 (1989) (opinion of Scalia, J.)—but it says something about the Court’s approach to this decision that the possibility of applying that rule never crossed its mind. While the "plain statement” rule may not be applicable, there is assuredly nothing whatever that points in the opposite direction, indicating that the ordinary meaning here should not be applied. Far from that, in my view the ordinary meaning of "representatives” gives clear purpose to congressional action that otherwise would seem pointless. As an initial matter, it is evident that Congress paid particular attention to the scope of elections covered by the “to elect” language. As the Court suggests, that language for the most part tracked this Court’s opinions in White v. Regester, 412 U. S. 755, 766 (1973), and Whitcomb v. Chavis, 403 U. S. 124, 149 (1971), but the word “legislators” was not copied. Significantly, it was replaced not with the more general term “candidates” used repeatedly elsewhere in the Act, see, e. g., 42 U. S. C. §§ 1971(b), (e); 1973i(c); 1973Z(c)(l); 1973ff-2; 1974; 1974e, but with the term “representatives,” which appears nowhere else in the Act (except as a proper noun referring to Members of the federal lower House, or designees of the Attorney General). The normal meaning of this term is broader than “legislators” (it includes, for example, school CHISOM v. ROEMER 413 380 Scalia, J., dissenting boards and city councils as well as senators and representatives) but narrower than “candidates.” The Court says that the seemingly significant refusal to use the term “candidate” and selection of the distinctive term “representative” are really inconsequential, because “candidate” could not have been used. According to the Court, since “candidate” refers to one who has been nominated but not yet elected, the phrase “to elect candidates” would be a contradiction in terms. Ante, at 399-400. The only flaw in this argument is that it is not true, as repeated usage of the formulation “to elect candidates” by this Court itself amply demonstrates. See, e. g., Davis v. Bandemer, 478 U. S. 109, 131 (1986); Rogers v. Lodge, 458 U. S. 613, 624 (1982); id., at 639, n. 18, 641, n. 22, 649 (Stevens, J., dissenting); Mobile v. Bolden, 446 U. S., at 75; United Jewish Organizations of Williamsburgh, Inc. n. Carey, 430 U. S. 144, 158 (1977); Moore v. Ogilvie, 394 U. S. 814, 819 (1969); Allen v. State Bd. of Elections, 393 U. S. 544, 569 (1969). We even used the phrase repeatedly in Thornburg. Thornburg v. Gingles, 478 U. S., at 40, 44, 50, 54, 80; id., at 86, 103 (O’Connor, J., concurring in judgment); id., at 107 (Stevens, J., concurring in part and dissenting in part). And the phrase is used in the complaint of the minority plaintiffs in the other §2 case decided today. Houston Lawyers’ Assn. v. Attorney General of Texas, post, p. 419. App. in Nos. 90-813, 90-974, p. 22a. In other words, far from being an impermissible choice, “candidates” would have been the natural choice, even if it had not been used repeatedly elsewhere in the statute. It is quite absurd to think that Congress went out of its way to replace that term with “representatives,” in order to convey what “candidates” naturally suggests (viz., coverage of all elections) and what “representatives” naturally does not. A second consideration confirms that “representatives” in §2 was meant in its ordinary sense. When given its ordinary meaning, it causes the statute to reproduce an estab 414 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. lished, eminently logical, and perhaps practically indispensable limitation upon the availability of vote dilution claims. Whatever other requirements may be applicable to elections for “representatives” (in the sense of those who are not only elected by but act on behalf of the electorate), those elections, unlike elections for all officeholders, must be conducted in accordance with the equal protection principle of “one person, one vote.” And it so happens—more than coincidentally, I think—that in every case in which, prior to the amendment of § 2, we recognized the possibility of a vote dilution claim, the principle of “one person, one vote” was applicable. See, e. g., Fortson v. Dorsey, 379 U. S. 433, 436 (1965); Bums n. Richardson, 384 U. S. 73, 88 (1966); Whitcomb v. Chavis, supra, at 149-150; White v. Regester, supra, at 765-767; see also Davis v. Bandemer, supra, at 131-132. Indeed, it is the principle of “one person, one vote” that gives meaning to the concept of “dilution.” One’s vote is diluted if it is not, as it should be, of the same practical effect as everyone else’s. Of course the mere fact that an election practice satisfies the constitutional requirement of “one person, one vote” does not establish that there has been no vote dilution for Voting Rights Act purposes, since that looks not merely to equality of individual votes but also to equality of minority blocs of votes. (White itself, which dealt with a multimember district, demonstrates this point. See also Mobile v. Bolden, supra, at 65.) But “one person, one vote” has been the premise and the necessary condition of a vote dilution claim, since it establishes the baseline for computing the voting strength that the minority bloc ought to have. As we have suggested, the first question in a dilution case is whether the “one-person, one-vote” standard is met, and if it is, the second is whether voting structures nonetheless operate to “ ‘minimize or cancel out the voting strength of racial or political elements of the voting population.’ ” Bums n. Richardson, supra, at 88. See also Note, Fair and Effective Voting Strength Under Section 2 of the Voting Rights Act: The CHISOM v. ROEMER 415 380 Scalia, J., dissenting Impact of Thornburg v. Gingles on Minority Vote Dilution Litigation, 34 Wayne L. Rev. 303, 323-324 (1987). Well before Congress amended §2, we had held that the principle of “one person, one vote” does not apply to the election of judges, Wells v. Edwards, 347 F. Supp. 453 (MD La. 1972), aff’d, 409 U. S. 1095 (1973). If Congress was (through use of the extremely inapt word “representatives”) making vote dilution claims available with respect to the election of judges, it was, for the first time, extending that remedy to a context in which “one person, one vote” did not apply. That would have been a significant change in the law, and given the need to identify some other baseline for computing “dilution,” that is a matter which those who believe in barking dogs should be astounded to find unmentioned in the legislative history. If “representatives” is given its normal meaning, on the other hand, there is no change in the law (except elimination of the intent requirement) and the silence is entirely understandable. I frankly find it very difficult to conceive how it is to be determined whether “dilution” has occurred, once one has eliminated both the requirement of actual intent to disfavor minorities, and the principle that 10,000 minority votes throughout the State should have as much practical “electability” effect as 10,000 nonminority votes. How does one begin to decide, in such a system, how much elective strength a minority bloc ought to have? I do not assert that it is utterly impossible to impose “vote dilution” restrictions upon an electoral regime that is not based on the “one-person, one-vote” principle. Congress can define “vote dilution” to be whatever it will, within constitutional bounds. But my point is that “one person, one vote” is inherent in the normal concept of “vote dilution,” and was an essential element of the pre-existing, judicially crafted definition under §2; that Congress did not adopt any new definition; that creating a new definition is a seemingly standardless task; and that the word Congress selected (“representative”) seems specifically de 416 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. signed to avoid these problems. The Court is stoic about the difficulty of defining “dilution” without a standard of purity, expressing its resolve to stand up to that onerous duty inescapably thrust upon it: “Even if serious problems lie ahead in applying the ‘totality of the circumstances’ standard described in §2(b), that task, difficult as it may prove to be, cannot justify a judicially created limitation on the coverage of the broadly worded statute, as enacted and amended by Congress.” Ante, at 403. One would think that Congress had said “candidates,” rather than “representatives.” In reality, however, it is the Court rather than Congress that leads us—quite unnecessarily and indeed with stubborn persistence—into this morass of unguided and perhaps unguid-able judicial interference in democratic elections. The Court attributes to Congress not only the intent to mean something other than what it said, but also the intent to let district courts invent (for there is no precedent where “one person, one vote” did not apply that Congress could have been consulting) what in the world constitutes dilution of a vote that does not have to be equal. Finally, the Court suggests that there is something “anomalous” about extending coverage under §5 of the Voting Rights Act to the election of judges, while not extending coverage under §2 to the same elections. Ante, at 402. This simply misconceives the different roles of §2 and §5. The latter requires certain jurisdictions to preclear changes in election methods before those changes are implemented; it is a means of assuring in advance the absence of all electoral illegality, not only that which violates the Voting Rights Act but that which violates the Constitution as well. In my view, judges are within the scope of § 2 for nondilution claims, and thus for those claims, § 5 preclearance would enforce the Voting Rights Act with respect to judges. Moreover, intentional discrimination in the election of judges, whatever its form, is constitutionally prohibited, and the preclearance provision of § 5 gives the Government a method by which to pre CHISOM v. ROEMER 417 380 Scalia, J., dissenting vent that. The scheme makes entire sense without the need to bring judges within the “to elect” provision. All this is enough to convince me that there is sense to the ordinary meaning of “representative” in § 2(b)—that there is reason to Congress’ choice—and since there is, then, under our normal presumption, that ordinary meaning prevails. I would read § 2 as extending vote dilution claims to elections for “representatives,” but not to elections for judges. For other claims under §2, however—those resting on the “to participate in the political process” provision rather than the “to elect” provision—no similar restriction would apply. Since the claims here are exclusively claims of dilution, I would affirm the judgment of the Fifth Circuit. * * * As I said at the outset, these cases are about method. The Court transforms the meaning of §2, not because the ordinary meaning is irrational, or inconsistent with other parts of the statute, see, e. g., Green v. Bock Laundry Machine Co., 490 U. S. 504, 510-511 (1989); Public Citizen n. Department of Justice, 491 U. S., at 470 (Kennedy, J., concurring in judgment), but because it does not fit the Court’s conception of what Congress must have had in mind. When we adopt a method that psychoanalyzes Congress rather than reads its laws, when we employ a tinkerer’s toolbox, we do great harm. Not only do we reach the wrong result with respect to the statute at hand, but we poison the well of future legislation, depriving legislators of the assurance that ordinary terms, used in an ordinary context, will be given a predictable meaning. Our highest responsibility in the field of statutory construction is to read the laws in a consistent way, giving Congress a sure means by which it may work the people’s will. We have ignored that responsibility today. I respectfully dissent. 418 OCTOBER TERM, 1990 501 U. S. Kennedy, J., dissenting Justice Kennedy, dissenting. I join Justice Scalia’s dissent in full. I write to add only that the issue before the Court is one of statutory construction, not constitutional validity. Nothing in today’s decision addresses the question whether §2 of the Voting Rights Act of 1965, as interpreted in Thornburg v. Gingles, 478 U. S. 30 (1986), is consistent with the requirements of the United States Constitution. HOUSTON LAWYERS’ ASSN. v. TEXAS ATTORNEY GEN. 419 Syllabus HOUSTON LAWYERS’ ASSOCIATION et al. v. ATTORNEY GENERAL OF TEXAS et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 90-813. Argued April 22, 1991—Decided June 20, 1991* Texas district courts are the State’s trial courts of general jurisdiction. Their judges are elected from electoral districts consisting of one or more entire counties. The number of judges in each district varies, but each is elected by voters in the district in which he or she sits, pursuant to an at-large, district-wide scheme, and must be a resident of that district. Although several judicial candidates in the same district may be running in the same election, each runs for a separately numbered position. In the primary, the winner must receive a majority of votes, but in the general election the candidate with the highest number of votes for a particular numbered position is elected. Petitioners in No. 90-974, local chapters of the League of United Latin American Citizens—an organization composed of Mexican-American and African-American Texas residents and others—filed suit in the District Court against respondents, the state attorney general and other officials, alleging that the electoral scheme in 10 counties diluted the voting strength of African-American and Hispanic voters in violation of, inter alia, § 2 of the Voting Rights Act of 1965. Petitioners in No. 90-813—the Houston Lawyers’ Association, an organization of African-American attorneys registered to vote in one of the 10 counties, and others—intervened in support of the original plaintiffs. The District Court ruled in petitioners’ favor and granted interim relief for the 1990 election. The Court of Appeals reversed, holding that judicial elections are not covered by § 2. A separate opinion concurring in the judgment agreed that elections for single-member offices, such as the district judgeships, are exempt from § 2. According to that opinion, a district court judge, unlike an appellate judge who acts as a member of a collegial body, is a single-office holder who has jurisdiction that is coextensive with the geographic area from which he or she is elected and has authority to render final decisions independently of other judges serving in the same area or on the same court. The concurrence concluded that exemption from § 2 of elections for district judges is justi- *Together with No. 90-974, League of United Latin American Citizens et al. v. Attorney General of Texas et al., also on certiorari to the same court. 420 OCTOBER TERM, 1990 Syllabus 501 U. S. tied, given the State’s compelling interest in linking jurisdiction and elective base for judges acting alone, and given the risk that attempting to break that linkage might lessen minority influence by making only a few judges principally accountable to the minority electorate rather than making all of them partly accountable to minority voters. Held: The Act’s coverage encompasses the election of executive officers and trial judges whose responsibilities are exercised independently in an area coextensive with the districts from which they are elected. Once a State decides to elect its trial judges, those elections must be conducted in compliance with the Act, since judicial elections are not categorically excluded from coverage. Chisom v. Roemer, ante, p. 380. The state interest expressed in the concurring opinion below does not justify excluding single-member offices from § 2’s coverage. Rather, it is a legitimate factor to be considered by courts in determining whether, based on the “totality of circumstances,” a vote dilution violation has occurred or may be remedied. Pp. 425-428. 914 F. 2d 620, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, O’Connor, and Souter, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy, J., joined, post, p. 428. Julius LeVonne Chambers argued the cause for petitioners in both cases. With him on the briefs for petitioners in No. 90-813 was Charles Stephen Ralston. Susan Finkelstein, Edward B. Cloutman III, E. Brice Cunningham, William L. Garrett, Rolando L. Rios, and David Hall filed a brief for petitioners in No. 90-974. Renea Hicks, Special Assistant Attorney General of Texas, argued the cause for respondents in both cases. With him on the brief for state respondents were Dan Morales, Attorney General, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Javier P. Guajardo, Special Assistant Attorney General. J. Eugene Clements filed a brief for respondent Wood. Robert H. Mow, Jr., David C. Godbey, and Bobby M. Rubarts filed a brief for respondent Entz.t tBriefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Assistant Attorney General Dunne, Deputy So HOUSTON LAWYERS’ ASSN. v. TEXAS ATTORNEY GEN. 421 419 Opinion of the Court Justice Stevens delivered the opinion of the Court. In Chisom v. Roemer, ante, p. 380, we held that judicial elections, and, more specifically, elections of justices of the Supreme Court of Louisiana, are covered by § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended in 1982, 42 U. S. C. §1973. In these cases we consider whether the statute also applies to the election of trial judges in Texas. We hold that it does. I Petitioners in No. 90-974 are local chapters of the League of United Latin American Citizens, a statewide organization composed of both Mexican-American and African-American residents of the State of Texas, and various individuals. They brought this action against the attorney general of licitor General Roberts, Deputy Assistant Attorney General Clegg, Paul J. Larkin, Jr., Jessica Dunsay Silver, and Mark L. Gross; and for the Lawyers’ Committee for Civil Rights Under Law by Frank R. Parker, Robert B. McDuff, Brenda Wright, Robert F. Mullen, David S. Tatel, Norman Redlich, Samuel Rabinove, Richard T. Foltin, Antonia Hernandez, Judith Sanders-Castro, Laughlin McDonald, Neil Bradley, Kathleen L. Wilde, and Mary Wyckoff. Briefs of amid curiae urging affirmance were filed for the State of Georgia by Michael J. Bowers, Attorney General, Carol Atha Cosgrove, Senior Assistant Attorney General, and David F. Walbert; for the State of Tennessee et al. by Charles W. Burson, Attorney General of Tennessee, John Knox Walkup, Solicitor General, and Michael W. Catalano, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Jimmy Evans of Alabama, Winston Bryant of Arkansas, Robert A. Butterworth of Florida, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, William L. Webster of Missouri, Marc Racicot of Montana, Lacy H. Thornburg of North Carolina, Nicholas Spaeth of North Dakota, Robert H. Henry of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, and Ken Eikenberry of Washington; for the Florida Conference of Circuit Judges et al. by John F. Harkness, Jr., William F. Blews, Ronald A. Labasky, James Fox Miller, Benjamin H. Hill III, and Barry S. Richard; and for the Pacific Legal Foundation by Ronald A. Zumbrun and Anthony T. Caso. Edwin F. Hendricks filed a brief for the American Judicature Society as amicus curiae. 422 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Texas and other officials (respondents) to challenge the existing at-large, countywide method of electing state district judges. Although the original challenge encompassed the entire State and relied on both constitutional and statutory grounds, the issues were later narrowed to include only a statutory challenge to the voting methods in just 10 counties.* Petitioners in No. 90-813 are the Houston Lawyers’ Association, an organization of African-American attorneys who are registered voters in Harris County, and certain individuals; they are intervenors, supporting the position of the original plaintiffs. Because all of the petitioners have the same interest in the threshold issue of statutory construction that is now before us, we shall refer to them collectively as “petitioners.” Texas district courts are the State’s trial courts of general jurisdiction. Electoral districts for Texas district judges consist of one or more entire counties. Eight of the districts included in these cases include a single county; the other district includes two counties. The number of district judges in each district at issue varies from the 59 that sit in the Harris County district to the 3 that sit in the Midland County district. Each judge is elected by the voters in the district in which he or she sits pursuant to an at-large, district-wide electoral scheme, and must be a resident of that district. Although several judicial candidates in the same district may be running in the same election, each runs for a separately numbered position. Thus, for example, if there are 25 vacancies in the Harris County district in a particular year, there are 25 district-wide races for 25 separately numbered positions. In the primary elections, the winner must receive a majority of votes, but in the general election, the candidate with the highest number of votes for a particular numbered position is elected. *The counties at issue are: Harris, Dallas, Tarrant, Bexar, Travis, Jefferson, Lubbock, Crosby, Ector, and Midland. HOUSTON LAWYERS’ ASSN. v. TEXAS ATTORNEY GEN. 423 419 Opinion of the Court Petitioners challenged the at-large, district-wide electoral scheme as diluting the voting strength of African-American and Hispanic voters. They cited the example of Harris County, which has a population that is 20% African-American but has only 3 of 59 district judges that are African-American. The petitioners alleged that alternative electoral schemes using electoral subdistricts or modified at-large structures could remedy the dilution of minority votes in district judge elections. Following a 1-week trial, the District Court ruled in favor of petitioners on their statutory vote dilution claim. It concluded that petitioners had sustained their burden of proving that under the totality of the circumstances “as a result of the challenged at large system [they] do not have an equal opportunity to participate in the political processes and to elect candidates of their choice,” App. to Pet. for Cert. 290a-291a (footnote omitted); id., at 300a-301a. Although the District Court made no findings about the appropriate remedy for the proven violation, it urged the state legislature to select and approve an alternative district judge election scheme. The District Court also announced that it would entertain motions to enjoin future district judge elections pending the remedy phase of the litigation, should the legislature fail to adopt an alternative election scheme. When the state legislature failed to act, the District Court granted interim relief (to be used solely for the 1990 election of district judges in the nine districts) that included the creation of electoral subdistricts and a prohibition against the use of partisan elections for district judges. Respondents appealed. A three-judge panel of the Fifth Circuit reversed the judgment of the District Court, 902 F. 2d 293 (1990), and petitioners’ motion for rehearing en banc was granted, 902 F. 2d 322 (1990). The en banc majority held that the results test in § 2 of the Voting Rights Act of 1965, as amended in 1982, is inapplicable to judicial elections. See 914 F. 2d 620 (1990). In essence, the majority concluded that Congress’ reference to 424 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. the voters’ opportunity to elect “representatives” of their choice evidenced a deliberate decision to exclude the election of judges from scrutiny under the newly enacted test. For reasons stated in our opinion in Chisom, ante, at 391-403, we reject that conclusion. In a separate opinion, portions of which were joined by five other judges, Judge Higginbotham expressed his disagreement with the majority’s conclusion that judges are not “representatives” within the meaning of the Act, but concurred in the judgment of reversal. His opinion relied on a distinction between state appellate judges and trial judges. Whereas the justices of the Louisiana Supreme Court have statewide jurisdiction, even though they are elected by voters in separate districts, and act as members of a collegial body, the Texas trial judge has jurisdiction that is coextensive with the geographic area from which he or she is elected and has the sole authority to render final decisions. Judge Higginbotham’s opinion characterized trial judges “as single-office holders instead of members of a multi-member body,” 914 F. 2d, at 649 (opinion concurring in judgment), because each exercises his or her authority independently of the other judges serving in the same area or on the same court. Given the State’s “compelling interest in linking jurisdiction and elective base for judges acting alone,” id., at 651, and the risk that “attempting to break the linkage of jurisdiction and elective base . . . may well lessen minority influence instead of increase it,” id., at 649, by making only a few district court judges principally accountable to the minority electorate rather than making all of the district’s judges partly accountable to minority voters, he concluded that elections for single-member offices, including elections for Texas district court judgeships, are exempt from vote dilution challenges under § 2. Chief Judge Clark, while agreeing with the judgment of reversal on grounds “expressly limited to the facts of the present case,” id., at 631 (opinion concurring specially), dis- HOUSTON LAWYERS’ ASSN. v. TEXAS ATTORNEY GEN. 425 419 Opinion of the Court agreed with the analysis in both the majority and the opinion concurring in the judgment. He expressed the opinion that “it is equally wrong to say that section 2 covers all judicial elections as it is to say it covers none,” id., at 633 (emphasis in original). Characterizing Judge Higginbotham’s “function-of-the-office analysis” as “identical in concept to the majority view,” ibid., Chief Judge Clark would have held that whenever an officeholder’s jurisdiction and the area of residence of his or her electorate coincide, no vote dilution claims may be brought against at-large schemes for electing the officeholder, regardless of whether the “function” of the officeholder is to act alone or as a member of a collegial body. In a dissenting opinion, Judge Johnson argued that the Act applies to all judicial elections: “Several truths are self-evident from the clear language of the statute that had heretofore opened the electoral process to people of all colors. The Voting Rights Act focuses on the voter, not the elected official. The Act was intended to prohibit racial discrimination in all voting, the sole inquiry being whether the political processes are equally open to all persons, no matter their race or color. The Act is concerned only with the intent of persons of ‘race or color’ in casting a ballot; it has no interest in the function of the person holding the office.” Id., at 652 (emphasis in original). II We granted certiorari in these cases, 498 U. S. 1060 (1991), and in Chisom v. Roemer, ante, p. 380, for the limited purpose of considering the scope of the coverage of § 2. As we have held in Chisom, the Act does not categorically exclude judicial elections from its coverage. The term “representatives” is not a word of limitation. Nor can the protection of minority voters’ unitary right to an equal opportunity “to participate in the political process and to elect representatives of their choice” be bifurcated into two kinds of claims 426 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. in judicial elections, one covered and the other beyond the reach of the Act. Ante, at 398. It is equally clear, in our opinion, that the coverage of the Act encompasses the election of executive officers and trial judges whose responsibilities are exercised independently in an area coextensive with the districts from which they are elected. If a State decides to elect its trial judges, as Texas did in 1861, those elections must be conducted in compliance with the Voting Rights Act. We deliberately avoid any evaluation of the merits of the concerns expressed in Judge Higginbotham’s opinion concurring in the judgment because we believe they are matters that are relevant either to an analysis of the totality of the circumstances that must be considered in an application of the results test embodied in § 2, as amended, or to a consideration of possible remedies in the event a violation is proved, but not to the threshold question of the Act’s coverage. Even if we assume, arguendo, that the State’s interest in electing judges on a district-wide basis may preclude a remedy that involves redrawing boundaries or subdividing districts, or may even preclude a finding that vote dilution has occurred under the “totality of the circumstances” in a particular case, that interest does not justify excluding elections for single-member offices from the coverage of the § 2 results test. Rather, such a state interest is a factor to be considered by the court in evaluating whether the evidence in a particular case supports a finding of a vote dilution violation in an election for a single-member office. Thus we disagree with respondents that the “single-member office” theory automatically exempts certain elections from the coverage of § 2. Rather, we believe that the State’s interest in maintaining an electoral system—in these cases, Texas’ interest in maintaining the link between a district judge’s jurisdiction and the area of residency of his or her voters—is a legitimate factor to be considered by courts among the “totality of circumstances” in determining whether a § 2 violation has occurred. A State’s justification for its elec- HOUSTON LAWYERS’ ASSN. v. TEXAS ATTORNEY GEN. 427 419 Opinion of the Court toral system is a proper factor for the courts to assess in a racial vote dilution inquiry, and the Fifth Circuit has expressly approved the use of this particular factor in the balance of considerations. See Zimmer v. McKeithen, 485 F. 2d 1297, 1305 (1973), aff’d sub nom. East Carroll Parish School Bd. v. Marshall, 424 U. S. 636 (1976). Because the State’s interest in maintaining an at-large, district-wide electoral scheme for single-member offices is merely one factor to be considered in evaluating the “totality of circumstances,” that interest does not automatically, and in every case, outweigh proof of racial vote dilution. Two examples will explain why the “single-member office” theory, even if accepted, cannot suffice to place an election for a single-member-office holder entirely beyond the coverage of § 2 of the Act. First, if a particular practice or procedure, such as closing the polls at noon, results in an abridgment of a racial minority’s opportunity to vote and to elect representatives of their choice, the Act would unquestionably apply to restrict such practices, regardless of whether the election was for a single-member-office holder or not. Exempting elections for single-member offices from the reach of § 2 altogether can therefore not be supported. As we stated earlier, this statute does not separate vote dilution challenges from other challenges brought under the amended § 2. See supra, at 425-426. Second, if the boundaries of the electoral district—and perhaps of its neighboring district as well—were shaped in “an uncouth twenty-eight-sided figure” such as that found in Gomillion v. Lightfoot, 364 U. S. 339, 340 (1960), and if the effect of the configuration were to produce an unnatural distribution of the voting power of different racial groups, an inquiry into the totality of circumstances would at least arguably be required to determine whether or not the results test was violated. Placing elections for single-member offices entirely beyond the scope of coverage of § 2 would preclude such an inquiry, even if the State’s interest in maintaining 428 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. the “uncouth” electoral system was trivial or illusory and even if any resulting impairment of a minority group’s voting strength could be remedied without significantly impairing the State’s interest in electing judges on a district-wide basis. Because the results test in §2 of the Voting Rights Act applies to claims of vote dilution in judicial elections, see Chisom, ante, at 404, and because the concerns expressed by Judge Higginbotham in distinguishing elections of Texas district court judges from elections of supreme court justices relate to the question whether a vote dilution violation may be found or remedied rather than whether such a challenge may be brought, we reverse the judgment of the Court of Appeals and remand these cases for further proceedings consistent with this opinion. It is so ordered. Justice Scalia, with whom The Chief Justice and Justice Kennedy join, dissenting. For the reasons stated in my opinion in Chisom v. Roemer, ante, p. 404,1 would not apply § 2 of the Voting Rights Act of 1965 to vote dilution claims in judicial elections, and would therefore affirm the judgment below. FLORIDA v. BOSTICK 429 Syllabus FLORIDA v. BOSTICK CERTIORARI TO THE SUPREME COURT OF FLORIDA No. 89-1717. Argued February 26, 1991—Decided June 20, 1991 As part of a drug interdiction effort, Broward County Sheriff’s Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage. Two officers boarded respondent Bostick’s bus and, without articulable suspicion, questioned him and requested his consent to search his luggage for drugs, advising him of his right to refuse. He gave his permission, and the officers, after finding cocaine, arrested Bostick on drug trafficking charges. His motion to suppress the cocaine on the ground that it had been seized in violation of the Fourth Amendment was denied by the trial court. The Florida Court of Appeal affirmed, but certified a question to the State Supreme Court. That court, reasoning that a reasonable passenger would not have felt free to leave the bus to avoid questioning by the police, adopted a per se rule that the sheriff’s practice of “working the buses” is unconstitutional. Held: 1. The Florida Supreme Court erred in adopting a per se rule that every encounter on a bus is a seizure. The appropriate test is whether, taking into account all of the circumstances surrounding the encounter, a reasonable passenger would feel free to decline the officers’ requests or otherwise terminate the encounter. Pp. 433-437. (a) A consensual encounter does not trigger Fourth Amendment scrutiny. See Terry v. Ohio, 392 U. S. 1, 19, n. 16. Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions, Florida v. Rodriguez, 469 U. S. 1, 5-6, ask to examine identification, INS v. Delgado, 466 U. S. 210, 216, and request consent to search luggage, Florida v. Royer, 460 U. S. 491, 501, provided they do not convey a message that compliance with their requests is required. Thus, there is no doubt that if this same encounter had taken place before Bostick boarded the bus or in the bus terminal, it would not be a seizure. Pp. 434-435. (b) That this encounter took place on a bus is but one relevant factor in determining whether or not it was of a coercive nature. The state court erred in focusing on the “free to leave” language of Michigan v. Chestemut, 486 U. S. 567, 573, rather than on the principle that those words were intended to capture. This inquiry is not an accurate measure of an encounter’s coercive effect when a person is seated on a bus about to depart, has no desire to leave, and would not feel free to leave 430 OCTOBER TERM, 1990 Syllabus 501 U. S. even if there were no police present. The more appropriate inquiry is whether a reasonable passenger would feel free to decline the officers’ request or otherwise terminate the encounter. Thus, this case is analytically indistinguishable from INS v. Delgado, supra. There, no seizure occurred when INS agents visited factories at random, stationing some agents at exits while others questioned workers, because, even though workers were not free to leave without being questioned, the agents’ conduct gave them no reason to believe that they would be detained if they answered truthfully or refused to answer. Such a refusal, alone, does not furnish the minimal level of objective justification needed for detention or seizure. Id., at 216-217. Pp. 435-437. 2. This case is remanded for the Florida courts to evaluate the seizure question under the correct legal standard. The trial court made no express findings of fact, and the State Supreme Court rested its decision on a single fact—that the encounter took place on a bus—rather than on the totality of the circumstances. Rejected, however, is Bostick’s argument that he must have been seized because no reasonable person would freely consent to a search of luggage containing drugs, since the “reasonable person” test presumes an innocent person. Pp. 437-440. 554 So. 2d 1153, reversed and remanded. O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Scalia, Kennedy, and Souter, JJ., joined. Marshall, J., filed a dissenting opinion, in which Blackmun and Stevens, JJ., joined, post, p. 440. Joan Fowler, Assistant Attorney General of Florida, argued the cause for petitioner. With her on the brief was Robert A. Butterworth, Attorney General. Solicitor General Starr argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Mueller, Deputy Solicitor General Bryson, Christopher J. Wright, and Kathleen A. Felton. Donald B. Ayer argued the cause for respondent. With him on the brief was Robert H. Klonoff* *Mary Irene Coombs, Steven R. Shapiro, John A. Powell, James K. Green, Jeffrey S. Weiner, and Robert G. Amsel filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance. Fred E. Inbau, Wayne W. Schmidt, Bernard J. Farber, and James P. Manak filed a brief for Americans for Effective Law Enforcement as amicus curiae. FLORIDA v. BOSTICK 431 429 Opinion of the Court Justice O’Connor delivered the opinion of the Court. We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. This case requires us to determine whether the same rule applies to police encounters that take place on a bus. I Drug interdiction efforts have led to the use of police surveillance at airports, train stations, and bus depots. Law enforcement officers stationed at such locations routinely approach individuals, either randomly or because they suspect in some vague way that the individuals may be engaged in criminal activity, and ask them potentially incriminating questions. Broward County has adopted such a program. County Sheriff’s Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage. In this case, two officers discovered cocaine when they searched a suitcase belonging to Terrance Bostick. The underlying facts of the search are in dispute, but the Florida Supreme Court, whose decision we review here, stated explicitly the factual premise for its decision: “ ‘Two officers, complete with badges, insignia and one of them holding a recognizable zipper pouch, containing a pistol, boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. Eyeing the passengers, the officers, admittedly without articulable suspicion, picked out the defendant passenger and asked to inspect his ticket and identification. The ticket, from Miami to Atlanta, matched the defendant’s identification and both were immediately returned to him as unremarkable. However, the two police officers persisted and explained their presence as narcotics agents on the 432 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. lookout for illegal drugs. In pursuit of that aim, they then requested the defendant’s consent to search his luggage. Needless to say, there is a conflict in the evidence about whether the defendant consented to the search of the second bag in which the contraband was found and as to whether he was informed of his right to refuse consent. However, any conflict must be resolved in favor of the state, it being a question of fact decided by the trial judge.’” 554 So. 2d 1153, 1154-1155 (1989), quoting 510 So. 2d 321, 322 (Fla. App. 1987) (Letts, J., dissenting in part). Two facts are particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent. Bostick appears to have disputed the point, but, as the Florida Supreme Court noted explicitly, the trial court resolved this evidentiary conflict in the State’s favor. Second, at no time did the officers threaten Bostick with a gun. The Florida Supreme Court indicated that one officer carried a zipper pouch containing a pistol—the equivalent of carrying a gun in a holster—but the court did not suggest that the gun was ever removed from its pouch, pointed at Bostick, or otherwise used in a threatening manner. The dissent’s characterization of the officers as “gun-wielding inquisitor[s],” post, at 448, is colorful, but lacks any basis in fact. Bostick was arrested and charged with trafficking in cocaine. He moved to suppress the cocaine on the grounds that it had been seized in violation of his Fourth Amendment rights. The trial court denied the motion but made no factual findings. Bostick subsequently entered a plea of guilty, but reserved the right to appeal the denial of the motion to suppress. The Florida District Court of Appeal affirmed, but considered the issue sufficiently important that it certified a question to the Florida Supreme Court. 510 So. 2d, at 322. The FLORIDA v. BOSTICK 433 429 Opinion of the Court Supreme Court reasoned that Bostick had been seized because a reasonable passenger in his situation would not have felt free to leave the bus to avoid questioning by the police. 554 So. 2d, at 1154. It rephrased and answered the certified question so as to make the bus setting dispositive in every case. It ruled categorically that “ ‘an impermissible seizure result[s] when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers’ luggage.’” Ibid. The Florida Supreme Court thus adopted a per se rule that the Broward County Sheriff’s practice of “working the buses” is unconstitutional.* The result of this decision is that police in Florida, as elsewhere, may approach persons at random in most public places, ask them questions and seek consent to a search, see id., at 1156; but they may not engage in the same behavior on a bus. Id., at 1157. We granted certiorari, 498 U. S. 894 (1990), to determine whether the Florida Supreme Court’s per se rule is consistent with our Fourth Amendment jurisprudence. II The sole issue presented for our review is whether a police encounter on a bus of the type described above necessarily constitutes a “seizure” within the meaning of the Fourth Amendment. The State concedes, and we accept for purposes of this decision, that the officers lacked the reasonable *The dissent acknowledges that the Florida Supreme Court’s answer to the certified question reads like a per se rule, but dismisses as “implausible” the notion that the court would actually apply this rule to “trump” a careful analysis of all the relevant facts. Post, at 445. Implausible as it may seem, that is precisely what the Florida Supreme Court does. It routinely grants review in bus search cases and quashes denials of motions to suppress expressly on the basis of its answer to the certified question in this case. See, e. g., McBride y. State, 554 So. 2d 1160 (1989); Mendez v. State, 554 So. 2d 1161 (1989); Shaw v. State, 555 So. 2d 351 (1989); Avery v. State, 555 So. 2d 351 (1989); Serpa v. State, 555 So. 2d 1210 (1989); Jones v. State, 559 So. 2d 1096 (1990). 434 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. suspicion required to justify a seizure and that, if a seizure took place, the drugs found in Bostick’s suitcase must be suppressed as tainted fruit. Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free “to disregard the police and go about his business,” California v. Hodari D., 499 U. S. 621, 628 (1991), the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, 392 U. S. 1, 19, n. 16 (1968): “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Since Terry, we have held repeatedly that mere police questioning does not constitute a seizure. In Florida v. Royer, 460 U. S. 491 (1983) (plurality opinion), for example, we explained that “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” Id., at 497; see id., at 523, n. 3 (Rehnquist, J., dissenting). There is no doubt that if this same encounter had taken place before Bostick boarded the bus or in the lobby of the bus terminal, it would not rise to the level of a seizure. The Court has dealt with similar encounters in airports and has found them to be “the sort of consensual encounter[s] that im-plicatfe] no Fourth Amendment interest.” Florida v. Rodriguez, 469 U. S. 1, 5-6 (1984). We have stated that even FLORIDA v. BOSTICK 435 429 Opinion of the Court when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, see INS v. Delgado, 466 U. S. 210, 216 (1984); Rodriguez, supra, at 5-6; ask to examine the individual’s identification, see Delgado, supra, at 216; Royer, supra, at 501 (plurality opinion); United States v. Mendenhall, 446 U. S. 544, 557-558 (1980); and request consent to search his or her luggage, see Royer, supra, at 501 (plurality opinion)—as long as the police do not convey a message that compliance with their requests is required. Bostick insists that this case is different because it took place in the cramped confines of a bus. A police encounter is much more intimidating in this setting, he argues, because police tower over a seated passenger and there is little room to move around. Bostick claims to find support in language from Michigan n. Chesternut, 486 U. S. 567, 573 (1988), and other cases, indicating that a seizure occurs when a reasonable person would believe that he or she is not “free to leave.” Bostick maintains that a reasonable bus passenger would not have felt free to leave under the circumstances of this case because there is nowhere to go on a bus. Also, the bus was about to depart. Had Bostick disembarked, he would have risked being stranded and losing whatever baggage he had locked away in the luggage compartment. The Florida Supreme Court found this argument persuasive, so much so that it adopted a per se rule prohibiting the police from randomly boarding buses as a means of drug interdiction. The state court erred, however, in focusing on whether Bostick was “free to leave” rather than on the principle that those words were intended to capture. When police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to continue walking. But when the person is seated on a bus and has no desire to leave, the degree to which a reasonable person 436 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter. Here, for example, the mere fact that Bostick did not feel free to leave the bus does not mean that the police seized him. Bostick was a passenger on a bus that was scheduled to depart. He would not have felt free to leave the bus even if the police had not been present. Bostick’s movements were “confined” in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive. In this respect, the Court’s decision in INS v. Delgado, supra, is dispositive. At issue there was the INS’ practice of visiting factories at random and questioning employees to determine whether any were illegal aliens. Several INS agents would stand near the building’s exits, while other agents walked through the factory questioning workers. The Court acknowledged that the workers may not have been free to leave their worksite, but explained that this was not the result of police activity: “Ordinarily, when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers’ voluntary obligations to their employers.” Id., at 218. We concluded that there was no seizure because, even though the workers were not free to leave the building without being questioned, the agents’ conduct should have given employees “no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer.” Ibid. The present case is analytically indistinguishable from Delgado. Like the workers in that case, Bostick’s freedom of movement was restricted by a factor independent of police conduct—i. e., by his being a passenger on a bus. Accordingly, the “free to leave” analysis on which Bostick relies is inapplicable. In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter. This FLORIDA v. BOSTICK 437 429 Opinion of the Court formulation follows logically from prior cases and breaks no new ground. We have said before that the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would “have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Chestemut, supra, at 569. See also Hodari D., 499 U. S., at 628. Where the encounter takes place is one factor, but it is not the only one. And, as the Solicitor General correctly observes, an individual may decline an officer’s request without fearing prosecution. See Brief for United States as Amicus Curiae 25. We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. See Delgado, supra, at 216-217; Royer, 460 U. S., at 498 (plurality opinion); Brown v. Texas, 443 U. S. 47, 52-53 (1979). The facts of this case, as described by the Florida Supreme Court, leave some doubt whether a seizure occurred. Two officers walked up to Bostick on the bus, asked him a few questions, and asked if they could search his bags. As we have explained, no seizure occurs when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search his or her luggage—so long as the officers do not convey a message that compliance with their requests is required. Here, the facts recited by the Florida Supreme Court indicate that the officers did not point guns at Bostick or otherwise threaten him and that they specifically advised Bostick that he could refuse consent. Nevertheless, we refrain from deciding whether or not a seizure occurred in this case. The trial court made no express findings of fact, and the Florida Supreme Court rested its decision on a single fact—that the encounter took place on a bus — rather than on the totality of the circumstances. We remand so that the Florida courts may evaluate the seizure question under the correct legal standard. We do reject, however, Bostick’s argument that he must have been seized 438 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs. This argument cannot prevail because the “reasonable person” test presupposes an innocent person. See Royer, supra, at 519, n. 4 (Blackmun, J., dissenting) (“The fact that [respondent] knew the search was likely to turn up contraband is of course irrelevant; the potential intrusiveness of the officers’ conduct must be judged from the viewpoint of an innocent person in [his] position”). Accord, Chestemut, 486 U. S., at 574 (“This ‘reasonable person’ standard . . . ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached”). The dissent characterizes our decision as holding that police may board buses and by an “intimidating show of authority,” post, at 447 (emphasis added), demand of passengers their “voluntary” cooperation. That characterization is incorrect. Clearly, a bus passenger’s decision to cooperate with law enforcement officers authorizes the police to conduct a search without first obtaining a warrant only if the cooperation is voluntary. “Consent” that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. The question to be decided by the Florida courts on remand is whether Bostick chose to permit the search of his luggage. The dissent also attempts to characterize our decision as applying a lesser degree of constitutional protection to those individuals who travel by bus, rather than by other forms of transportation. This, too, is an erroneous characterization. Our Fourth Amendment inquiry in this case—whether a reasonable person would have felt free to decline the officers’ requests or otherwise terminate the encounter—applies equally to police encounters that take place on trains, planes, and city streets. It is the dissent that would single out this particu FLORIDA v. BOSTICK 439 429 Opinion of the Court lar mode of travel for differential treatment by adopting a per se rule that random bus searches are unconstitutional. The dissent reserves its strongest criticism for the proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions. But this proposition is by no means novel; it has been endorsed by the Court any number of times. Terry, Royer, Rodriguez, and Delgado are just a few examples. As we have explained, today’s decision follows logically from those decisions and breaks no new ground. Unless the dissent advocates overruling a long, unbroken line of decisions dating back more than 20 years, its criticism is not well taken. This Court, as the dissent correctly observes, is not empowered to suspend constitutional guarantees so that the Government may more effectively wage a “war on drugs.” See post, at 440, 450-451. If that war is to be fought, those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime. By the same token, this Court is not empowered to forbid law enforcement practices simply because it considers them distasteful. The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation. The cramped confines of a bus are one relevant factor that should be considered in evaluating whether a passenger’s consent is voluntary. We cannot agree, however, with the Florida Supreme Court that this single factor will be dispositive in every case. We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street or in an airport lobby, and it applies equally to 440 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. encounters on a bus. The Florida Supreme Court erred in adopting a per se rule. The judgment of the Florida Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Marshall, with whom Justice Blackmun and Justice Stevens join, dissenting. Our Nation, we are told, is engaged in a “war on drugs.” No one disputes that it is the job of law-enforcement officials to devise effective weapons for fighting this war. But the effectiveness of a law-enforcement technique is not proof of its constitutionality. The general warrant, for example, was certainly an effective means of law enforcement. Yet it was one of the primary aims of the Fourth Amendment to protect citizens from the tyranny of being singled out for search and seizure without particularized suspicion notwithstanding the effectiveness of this method. See Boyd v. United States, 116 U. S. 616, 625-630 (1886); see also Harris v. United States, 331 U. S. 145, 171 (1947) (Frankfurter, J., dissenting). In my view, the law-enforcement technique with which we are confronted in this case—the suspicionless police sweep of buses in intrastate or interstate travel—bears all of the indicia of coercion and unjustified intrusion associated with the general warrant. Because I believe that the bus sweep at issue in this case violates the core values of the Fourth Amendment, I dissent. I At issue in this case is a “new and increasingly common tactic in the war on drugs”: the suspicionless police sweep of buses in interstate or intrastate travel. United States v. Lewis, 287 U. S. App. D. C. 306, 307, 921 F. 2d 1294, 1295 (1990); see United States v. Flowers, 912 F. 2d 707, 710 (CA4 1990) (describing technique in Charlotte, North Carolina); United States v. Madison, 936 F. 2d 90, 91 (CA2 1991) (de FLORIDA v. BOSTICK 441 429 Marshall, J., dissenting scribing technique in Port Authority terminal in New York City); United States v. Chandler, 744 F. Supp. 333, 335 (DC 1990) (“[I]t has become routine to subject interstate travelers to warrantless searches and intimidating interviews while sitting aboard a bus stopped for a short layover in the Capital”); 554 So. 2d 1153, 1156-1157 (Fla. 1989) (describing Florida police policy of “ ‘working the buses’ ”); see also ante, at 431. Typically under this technique, a group of state or federal officers will board a bus while it is stopped at an intermediate point on its route. Often displaying badges, weapons or other indicia of authority, the officers identify themselves and announce their purpose to intercept drug traffickers. They proceed to approach individual passengers, requesting them to show identification, produce their tickets, and explain the purpose of their travels. Never do the officers advise the passengers that they are free not to speak with the officers. An “interview” of this type ordinarily culminates in a request for consent to search the passenger’s luggage. See generally United States v. Lewis, supra, at 308, 921 F. 2d, at 1296; United States v. Flowers, supra, at 708-709; United States v. Madison, supra, at 91; 554 So. 2d, at 1154. These sweeps are conducted in “dragnet” style. The police admittedly act without an “articulable suspicion” in deciding which buses to board and which passengers to approach for interviewing.1 By proceeding systematically in this 1 That is to say, the police who conduct these sweeps decline to offer a reasonable, articulable suspicion of criminal wrongdoing sufficient to justify a warrantless “stop” or “seizure” of the confronted passenger. See Terry v. Ohio, 392 U. S. 1, 20-22, 30-31 (1968); Florida v. Royer, 460 U. S. 491, 498-499 (1983) (plurality opinion). It does not follow, however, that the approach of passengers during a sweep is completely random. Indeed, at least one officer who routinely confronts interstate travelers candidly admitted that race is a factor influencing his decision whom to approach. See United States v. Williams, No. l:89CR0135 (ND Ohio, June 13, 1989), p. 3 (“Detective Zaller testified that the factors initiating the focus upon the three young black males in this case included: (1) that they were young and black. . . .”), aff’d, No. 89-4083 (CA6, Oct. 19,1990), p. 7 442 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. fashion, the police are able to engage in a tremendously high volume of searches. See, e. g., Florida n. Kerwick, 512 So. 2d 347, 348-349 (Fla. App. 1987) (single officer employing sweep technique able to search over 3,000 bags in nine-month period). The percentage of successful drug interdictions is low. See United States v. Flowers, supra, at 710 (sweep of 100 buses resulted in seven arrests). To put it mildly, these sweeps “are inconvenient, intrusive, and intimidating.” United States v. Chandler, 744 F. Supp., at 335. They occur within cramped confines, with officers typically placing themselves in between the passenger selected for an interview and the exit of the bus. See, e. g., id., at 336. Because the bus is only temporarily stationed at a point short of its destination, the passengers are in no position to leave as a means of evading the officers’ questioning. Undoubtedly, such a sweep holds up the progress of the bus. See United States v. Fields, 909 F. 2d 470, 474 n. 2 (CA11 1990); cf. United States v. Rembert, 694 F. Supp. 163, 175 (WDNC 1988) (reporting testimony of officer that he makes “‘every effort in the world not to delay the bus’” but that the driver does not leave terminal until sweep is complete). Thus, this “new and increasingly common tactic,” United States v. Lewis, supra, at 307, 921 F. 2d, at 1295, burdens the experience of traveling by bus with a degree of governmental interference to which, until now, our society has been proudly unaccustomed. See, e. g., State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 6, 663 P. 2d 992, 997 (1983) (Feldman, J., concurring) (“The thought that an American can be compelled to ‘show his papers’ before exercising his right to walk the streets, drive the highways or board the trains is repugnant to American institutions and ideals”). (the officers “knew that the couriers, more often than not, were young black males”), vacated and remanded, 500 U. S. 901 (1991). Thus, the basis of the decision to single out particular passengers during a suspicionless sweep is less likely to be inarticulable than unspeakable. FLORIDA v. BOSTICK 443 429 Marshall, J., dissenting This aspect of the suspicionless sweep has not been lost on many of the lower courts called upon to review the constitutionality of this practice. Remarkably, the courts located at the heart of the “drug war” have been the most adamant in condemning this technique. As one Florida court put it: “ ‘[T]he evidence in this cause has evoked images of other days, under other flags, when no man traveled his nation’s roads or railways without fear of unwarranted interruption, by individuals who held temporary power in the Government. The spectre of American citizens being asked, by badge-wielding police, for identification, travel papers—in short a raison d'etre—is foreign to any fair reading of the Constitution, and its guarantee of human liberties. This is not Hitler’s Berlin, nor Stalin’s Moscow, nor is it white supremacist South Africa. Yet in Broward County, Florida, these police officers approach every person on board buses and trains (“that time permits”) and check identification [and] tickets, [and] ask to search luggage—all in the name of “voluntary cooperation” with law enforcement . . . .’” 554 So. 2d, at 1158, quoting State v. Kerwick, supra, at 348-349 (quoting trial court order). The District Court for the District of Columbia spoke in equally pointed words: “It seems rather incongruous at this point in the world’s history that we find totalitarian states becoming more like our free society while we in this nation are taking on their former trappings of suppressed liberties and freedoms.” “The random indiscriminate stopping and questioning of individuals on interstate busses seems to have gone too far. If this Court approves such ‘bus stops’ and allows prosecutions to be based on evidence seized as a result of such ‘stops,’ then we will have stripped our 444 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. citizens of basic Constitutional protections. Such action would be inconsistent with what this nation has stood for during its 200 years of existence. If passengers on a bus passing through the Capital of this great nation cannot be free from police interference where there is absolutely no basis for the police officers to stop and question them, then the police will be free to accost people on our streets without any reason or cause. In this ‘anything goes’ war on drugs, random knocks on the doors of our citizens’ homes seeking ‘consent’ to search for drugs cannot be far away. This is not America.” United States v. Lewis, 728 F. Supp. 784, 788-789, rev’d, 287 U. S. App. D. C. 306, 921 F. 2d 1294 (1990). See also United States v. Alexander, 755 F. Supp. 448, 453 (DC 1991); United States v. Madison, 744 F. Supp. 490, 495-497 (SDNY 1990), rev’d, 936 F. 2d 90 (CA2 1991); United States v. Chandler, supra, at, 335-336; United States v. Mark, 742 F. Supp. 17, 18-19 (DC 1990); United States v. Alston, 742 F. Supp. 13, 15 (DC 1990); United States v. Cothran, 729 F. Supp. 153, 156-158 (DC 1990), rev’d, 287 U. S. App. D. C. 306, 921 F. 2d 1294 (1990); United States v. Felder, 732 F. Supp. 204, 209 (DC 1990). The question for this Court, then, is whether the suspicionless, dragnet-style sweep of buses in intrastate and interstate travel is consistent with the Fourth Amendment. The majority suggests that this latest tactic in the drug war is perfectly compatible with the Constitution. I disagree. II I have jio objection to the manner in which the majority frames the test for determining whether a suspicionless bus sweep amounts to a Fourth Amendment “seizure.” I agree that the appropriate question is whether a passenger who is approached during such a sweep “would feel free to decline the officers’ requests or otherwise terminate the encounter.” FLORIDA v. BOSTICK 445 429 Marshall, J., dissenting Ante, at 436. What I cannot understand is how the majority can possibly suggest an affirmative answer to this question. The majority reverses what it characterizes as the Florida Supreme Court’s “per se rule” against suspicionless encounters between the police and bus passengers, see ante, at 433, 435-440, suggesting only in dictum its “doubt” that a seizure occurred on the facts of this case, see ante, at 437. However, the notion that the Florida Supreme Court decided this case on the basis of any “per se rule” independent of the facts of this case is wholly a product of the majority’s imagination. As the majority acknowledges, the Florida Supreme Court “stated explicitly the factual premise for its decision.” Ante, at 431. This factual premise contained all of the details of the encounter between respondent and the police. See 554 So. 2d, at 1154; ante, at 431-432. The lower court’s analysis of whether respondent was seized drew heavily on these facts, and the court repeatedly emphasized that its conclusion was based on “all the circumstances” of this case. 554 So. 2d, at 1157 (emphasis added); see ibid. (“Here, the circumstances indicate that the officers effectively ‘seized’ [respondent]” (emphasis added)). The majority’s conclusion that the Florida Supreme Court, contrary to all appearances, ignored these facts is based solely on the failure of the lower court to expressly incorporate all of the facts into its reformulation of the certified question on which respondent took his appeal. See ante, at 433.2 The majority never explains the basis of its implausible assumption that the Florida Supreme Court intended its phrasing of the certified question to trump its opinion’s careful treatment of the facts in this case. Certainly, when this Court issues an opinion, it does not intend lower courts and 2 As reformulated, this question read: “Does an impermissible seizure result when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers’ luggage?” 554 So. 2d, at 1154. 446 OCTOBER TERM, 1990 501 U. S. Marshall, J., dissenting parties to treat as irrelevant the analysis of facts that the parties neglected to cram into the question presented in the petition for certiorari. But in any case, because the issue whether a seizure has occurred in any given factual setting is a question of law, see United States v. Mendenhall, 446 U. S. 544, 554-555 (1980) (opinion of Stewart, J.); United States v. Maragh, 282 U. S. App. D. C. 256, 258-259, 894 F. 2d 415, 417-418 (CADC), cert, denied, 498 U. S. 880 (1990), nothing prevents this Court from deciding on its own whether a seizure occurred based on all of the facts of this case as they appear in the opinion of the Florida Supreme Court. These facts exhibit all of the elements of coercion associated with a typical bus sweep. Two officers boarded the Greyhound bus on which respondent was a passenger while the bus, en route from Miami to Atlanta, was on a brief stop to pick up passengers in Fort Lauderdale. The officers made a visible display of their badges and wore bright green “raid” jackets bearing the insignia of the Broward County Sheriff’s Department; one held a gun in a recognizable weapons pouch. See 554 So. 2d, at 1154, 1157. These facts alone constitute an intimidating “show of authority.” See Michigan v. Ches-temut, 486 U. S. 567, 575 (1988) (display of weapon contributes to coercive environment); United States v. Mendenhall, supra, at 554 (opinion of Stewart, J.) (“threatening presence of several officers” and “display of a weapon”); id., at 555 (uniformed attire). Once on board, the officers approached respondent, who was sitting in the back of the bus, identified themselves as narcotics officers and began to question him. See 554 So. 2d, at 1154. One officer stood in front of respondent’s seat, partially blocking the narrow aisle through which respondent would have been required to pass to reach the exit of the bus. See id., at 1157. As far as is revealed by facts on which the Florida Supreme Court premised its decision, the officers did not advise respondent that he was free to break off this “interview.” Inexplicably, the majority repeatedly stresses the trial court’s FLORIDA v. BOSTICK 447 429 Marshall, J., dissenting implicit finding that the police officers advised respondent that he was free to refuse permission to search his travel bag. See ante, at 432, 437-438. This aspect of the exchange between respondent and the police is completely irrelevant to the issue before us. For as the State concedes, and as the majority purports to “accept,” id., at 433-434, if respondent was unlawfully seized when the officers approached him and initiated questioning, the resulting search was likewise unlawful no matter how well advised respondent was of his right to refuse it. See Florida v. Royer, 460 U. S. 491, 501, 507-508 (1983) (plurality opinion); Wong Sun v. United States, 371 U. S. 471 (1963). Consequently, the issue is not whether a passenger in respondent’s position would have felt free to deny consent to the search of his bag, but whether such a passenger—without being apprised of his rights — would have felt free to terminate the antecedent encounter with the police. Unlike the majority, I have no doubt that the answer to this question is no. Apart from trying to accommodate the officers, respondent had only two options. First, he could have remained seated while obstinately refusing to respond to the officers’ questioning. But in light of the intimidating show of authority that the officers made upon boarding the bus, respondent reasonably could have believed that such behavior would only arouse the officers’ suspicions and intensify their interrogation. Indeed, officers who carry out bus sweeps like the one at issue here frequently admit that this is the effect of a passenger’s refusal to cooperate. See, e. g., United States v. Cothran, 729 F. Supp., at 156; United States v. Felder, 732 F. Supp., at 205. The majority’s observation that a mere refusal to answer questions, “without more,” does not give rise to a reasonable basis for seizing a passenger, ante, at 437, is utterly beside the point, because a passenger unadvised of his rights and otherwise unversed in constitutional law has no reason to know that the police cannot hold his refusal to cooperate against him. 448 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. Second, respondent could have tried to escape the officers’ presence by leaving the bus altogether. But because doing so would have required respondent to squeeze past the gunwielding inquisitor who was blocking the aisle of the bus, this hardly seems like a course that respondent reasonably would have viewed as available to him.3 The majority lamely protests that nothing in the stipulated facts shows that the questioning officer “point[ed] [his] gu[n] at [respondent] or otherwise threaten[ed] him” with the weapon. Ante, at 437 (emphasis added). Our decisions recognize the obvious point, however, that the choice of the police to “display” their weapons during an encounter exerts significant coercive pressure on the confronted citizen. E. g., Michigan v. Chestemut, supra, at 575; United States v. Mendenhall, supra, at 554. We have never suggested that the police must go so far as to put a citizen in immediate apprehension of being shot before a court can take account of the intimidating effect of being questioned by an officer with weapon in hand. Even if respondent had perceived that the officers would let him leave the bus, moreover, he could not reasonably have been expected to resort to this means of evading their intrusive questioning. For so far as respondent knew, the bus’ departure from the terminal was imminent. Unlike a person approached by the police on the street, see Michigan v. Chestemut, supra, or at a bus or airport terminal after reaching his destination, see United States v. Mendenhall, supra, a passenger approached by the police at an intermediate point in a long bus journey cannot simply leave the scene and repair to a safe haven to avoid unwanted probing by law-enforcement officials. The vulnerability that an intrastate or interstate traveler experiences when confronted by the police outside of his “own familiar territory” surely aggravates 8 As the majority’s discussion makes plain, see ante, at 432, 437, the officer questioning respondent clearly carried a weapons pouch during the interview. See also 554 So. 2d, at 1157. FLORIDA v. BOSTICK 449 429 Marshall, J., dissenting the coercive quality of such an encounter. See Schneckloth v. Bustamonte, 412 U. S. 218, 247 (1973). The case on which the majority primarily relies, INS v. Delgado, 466 U. S. 210 (1984), is distinguishable in every relevant respect. In Delgado, this Court held that workers approached by law-enforcement officials inside of a factory were not “seized” for purposes of the Fourth Amendment. The Court was careful to point out, however, that the presence of the agents did not furnish the workers with a reasonable basis for believing that they were not free to leave the factory, as at least some of them did. See id., at 218-219, and n. 7. Unlike passengers confronted by law-enforcement officials on a bus stopped temporarily at an intermediate point in its journey, workers approached by law-enforcement officials at their workplace need not abandon personal belongings and venture into unfamiliar environs in order to avoid unwanted questioning. Moreover, the workers who did not leave the building in Delgado remained free to move about the entire factory, see id., at 218, a considerably less confining environment than a bus. Finally, contrary to the officer who confronted respondent, the law-enforcement officials in Delgado did not conduct their interviews with guns in hand. See id., at 212. Rather than requiring the police to justify the coercive tactics employed here, the majority blames respondent for his own sensation of constraint. The majority concedes that respondent “did not feel free to leave the bus” as a means of breaking off the interrogation by the Broward County officers. Ante, at 436. But this experience of confinement, the majority explains, “was the natural result of his decision to take the bus.” Ibid, (emphasis added). Thus, in the majority’s view, because respondent’s “freedom of movement was restricted by a factor independent of police conduct—i. e., by his being a passenger on a bus,” ante, at 436—respondent was not seized for purposes of the Fourth Amendment. 450 OCTOBER TERM, 1990 Marshall, J., dissenting 501 U. S. This reasoning borders on sophism and trivializes the values that underlie the Fourth Amendment. Obviously, a person’s “voluntary decision” to place himself in a room with only one exit does not authorize the police to force an encounter upon him by placing themselves in front of the exit. It is no more acceptable for the police to force an encounter on a person by exploiting his “voluntary decision” to expose himself to perfectly legitimate personal or social constraints. By consciously deciding to single out persons who have undertaken interstate or intrastate travel, officers who conduct suspicionless, dragnet-style sweeps put passengers to the choice of cooperating or of exiting their buses and possibly being stranded in unfamiliar locations. It is exactly because this “choice” is no “choice” at all that police engage this technique. In my view, the Fourth Amendment clearly condemns the suspicionless, dragnet-style sweep of intrastate or interstate buses. Withdrawing this particular weapon from the government’s drug-war arsenal would hardly leave the police without any means of combatting the use of buses as instrumentalities of the drug trade. The police would remain free, for example, to approach passengers whom they have a reasonable, articulable basis to suspect of criminal wrongdoing.4 Alternatively, they could continue to confront passengers without suspicion so long as they took simple steps, like advising the passengers confronted of their right to decline to be questioned, to dispel the aura of coercion and intimidation that pervades such encounters. There is no reason to expect that such requirements would render the Nation’s buses law-enforcement-free zones. Ill The majority attempts to gloss over the violence that today’s decision does to the Fourth Amendment with empty admonitions. “If th[e] [war on drugs] is to be fought,” the ma- 4 Insisting that police officers explain their decision to single out a particular passenger for questioning would help prevent their reliance on impermissible criteria such as race. See n. 1, supra. FLORIDA v. BOSTICK 451 429 Marshall, J., dissenting jority intones, “those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime.” Ante, at 439. The majority’s actions, however, speak louder than its words. I dissent. 452 OCTOBER TERM, 1990 501 U. S. Syllabus GREGORY et al., JUDGES v. ASHCROFT, GOVERNOR OF MISSOURI CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 90-50. Argued March 18, 1991—Decided June 20, 1991 Article V, § 26, of the Missouri Constitution provides a mandatory retirement age of 70 for most state judges. Petitioners, judges subject to § 26, were appointed by the Governor and subsequently were retained in office by means of retention elections in which they ran unopposed, subject only to a “yes or no” vote. Along with other state judges, they filed suit against respondent Governor, alleging that § 26 violated the federal Age Discrimination in Employment Act of 1967 (ADEA) and the Equal Protection Clause of the Fourteenth Amendment. The District Court granted the Governor’s motion to dismiss, ruling that there was no ADEA violation because Missouri’s appointed judges are not covered “employees” within the Act’s terms, and that there was no equal protection violation because there is a rational basis for the distinction between judges and other state officials to whom no mandatory retirement age applies. The Court of Appeals affirmed. Held: 1. Missouri’s mandatory retirement requirement for judges does not violate the ADEA. Pp. 456-470. (a) The authority of a State’s people to determine the qualifications of their most important government officials lies “at the heart of representative government,” and is reserved under the Tenth Amendment and guaranteed by the Guarantee Clause of Article IV, §4. See, e. g., Sugarman v. Dougall, 413 U. S. 634, 648. Because congressional interference with the Missouri people’s decision to establish a qualification for their judges would upset the usual constitutional balance of federal and state powers, Congress must make its intention to do so “unmistakably clear in the language of the statute.” See, e. g., Will v. Michigan Dept, of State Police, 491 U. S. 58, 65. Moreover, where Congress acts pursuant to its Commerce Clause power—as it did in extending the ADEA to the States, see EEOC v. Wyoming, 460 U. S. 226—the authority of a State’s people to determine their government officials’ qualifications may be inviolate. Application of the Will plain statement rule to determine whether Congress intended the ADEA to apply to state judges may help the Court to avoid a potential constitutional problem. Pp. 457-464. GREGORY v. ASHCROFT 453 452 Syllabus (b) Appointed state judges are not covered by the ADE A. When it extended the Act’s substantive provisions to include the States as employers, Congress redefined “employee” to exclude all elected and most high-ranking state officials, including “appointee[s] on the policymaking level.” It is at least ambiguous whether a state judge is such an appointee. Regardless of whether the judge might be considered to make policy in the same sense as executive officials and legislators, the judge certainly is in a position requiring the exercise of discretion concerning issues of public importance, and therefore might be said to be “on the policymaking level.” Thus, it cannot be concluded that the ADE A “makes unmistakably clear,” Will, supra, at 65, that appointed state judges are covered. Pp. 464-467. (c) Even if Congress acted pursuant to its enforcement powers under § 5 of the Fourteenth Amendment, in addition to its Commerce Clause powers, when it extended the ADEA to state employment, the ambiguity in the Act’s “employee” definition precludes this Court from attributing to Congress an intent to cover appointed state judges. Although, in EEOC v. Wyoming, supra, at 243, and n. 18, the Court noted that the federalism principles constraining Congress’ exercise of its Commerce Clause powers are attenuated when it acts pursuant to its § 5 powers, the Court’s political-function cases demonstrate that the Fourteenth Amendment does not override all such principles, see, e. g., Sugarman, supra, at 648. Of particular relevance here is Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 16, in which the Court established that it will not attribute to Congress an unstated intent to intrude on traditional state authority in the exercise of its § 5 powers. That rule looks much like the plain statement rule applied supra, and pertains here in the face of the statutory ambiguity. Pp. 467-470. 2. Missouri’s mandatory retirement provision does not violate the Equal Protection Clause. Pp. 470-473. (a) Petitioners correctly assert their challenge at the rational basis level, since age is not a suspect classification under the Equal Protection Clause, and since they do not claim that they have a fundamental interest in serving as judges. See, e. g., Vance v. Bradley, 440 U. S. 93, 97. In such circumstances, this Court will not overturn a state constitutional provision unless varying treatment of different groups is so unrelated to the achievement of any combination of legitimate purposes that it can only be concluded that the people’s actions in approving it were irrational. Ibid. Pp. 470-471. (b) The Missouri people rationally could conclude that the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal from office sufficiently inadequate, that they will require all judges to step aside at that age. Because it is an unfortunate fact of life 454 OCTOBER TERM, 1990 Syllabus 501 U. S. that physical and mental capacity sometimes diminish with age, the people may wish to replace some older judges in order to satisfy the legitimate, indeed compelling, public interest in maintaining a judiciary fully capable of performing judges’ demanding tasks. Although most judges probably do not suffer significant deterioration at age 70, the people could reasonably conceive the basis for the classification to be true. See Bradley, supra, at 111. Voluntary retirement will not always be sufficient to serve acceptably the goal of a fully functioning judiciary, nor may impeachment, with its public humiliation and elaborate procedural machinery. The election process may also be inadequate, since most voters never observe judges in action nor read their opinions; since state judges serve longer terms than other officials, making them—deliberately—less dependent on the people’s will; and since infrequent retention elections may not serve as an adequate check on judges whose performance is deficient. That other state officials are not subject to mandatory retirement is rationally explained by the facts that their performance is subject to greater public scrutiny, that they are subject to more standard elections, that deterioration in their performance is more readily discernible, and that they are more easily removed than judges. Pp. 471-473. 898 F. 2d 598, affirmed. O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, and Souter, JJ., joined, and in Parts I and III of which White and Stevens, JJ., joined. White, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which Stevens, J., joined, post, p. 474. Blackmun, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 486. Jim J. Shoemake argued the cause for petitioners. With him on the briefs were Thomas J. Guilfoil and Bruce Dayton Livingston. James B. Deutsch, Deputy Attorney General of Missouri, argued the cause for respondent. With him on the brief were William L. Webster, Attorney General, and Michael L. Boicourt, Assistant Attorney General.* *Cathy Ventrell-Monsees filed a brief for the American Association of Retired Persons as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the State of Colorado et al. by Scott Harshbarger, Attorney General of Massachusetts, H. Reed Witherby, Special Assistant Attorney General, and Thomas A. Bar-nico, Assistant Attorney General, and by the Attorneys General for their GREGORY v. ASHCROFT 455 452 Opinion of the Court Justice O’Connor delivered the opinion of the Court. Article V, § 26, of the Missouri Constitution provides that “[a]ll judges other than municipal judges shall retire at the age of seventy years.” We consider whether this mandatory retirement provision violates the federal Age Discrimination in Employment Act of 1967 (ADE A or Act), 81 Stat. 602, as amended, 29 U. S. C. §§ 621-634, and whether it comports with the federal constitutional prescription of equal protection of the laws. I Petitioners are Missouri state judges. Judge Ellis Gregory, Jr., is an associate circuit judge for the Twenty-first Judicial Circuit. Judge Anthony P. Nugent, Jr., is a judge of the Missouri Court of Appeals, Western District. Both are subject to the § 26 mandatory retirement provision. Petitioners were appointed to office by the Governor of Missouri, pursuant to the Missouri Non-Partisan Court Plan, Mo. Const., Art. V, §§25(a)-25(g). Each has, since his appointment, been retained in office by means of a retention election in which the judge ran unopposed, subject only to a “yes or no” vote. See Mo. Const., Art. V, § 25(c)(1). respective jurisdictions as follows: Gale A. Norton of Colorado, Robert A. Butterworth of Florida, Warren Price III of Hawaii, Hubert H. Humphrey III of Minnesota, Donald Stenberg of Nebraska, Robert Del Tufa of New Jersey, Nicholas J. Spaeth of North Dakota, Ernest D. Preate, Jr., of Pennsylvania, Hector Rivera-Cruz of Puerto Rico, James E. O’Neil of Rhode Island, T. Travis Medlock of South Carolina, and Joseph B. Meyer of Wyoming; for the State of Connecticut by Richard Blumenthal, Attorney General, and Arnold B. Feigin and Daniel R. Schaefer, Assistant Attorneys General; for the State of Vermont, Office of Court Administrator, by William B. Gray; for the Missouri Bar by Karen M. Iverson and Timothy K. McNamara; for the National Governors Association et al. by Richard Ruda, Michael J. Wahoske, and Mark B. Rotenberg; and for the Washington Legal Foundation by John C. Cozad, W. Dennis Cross, R. Christopher Abele, Daniel J. Popeo, and John C. Scully. Daniel G. Spraul filed a brief for Judge John W. Keefe as amicus curiae. 456 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Petitioners and two other state judges filed suit against John D. Ashcroft, the Governor of Missouri, in the United States District Court for the Eastern District of Missouri, challenging the validity of the mandatory retirement provision. The judges alleged that the provision violated both the ADEA and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Governor filed a motion to dismiss. The District Court granted the motion, holding that Missouri’s appointed judges are not protected by the ADEA because they are “appointees ... ‘on a policymaking level’ ” and therefore are excluded from the Act’s definition of “employee.” App. to Pet. for Cert. 22. The court held also that the mandatory retirement provision does not violate the Equal Protection Clause because there is a rational basis for the distinction between judges and other state officials to whom no mandatory retirement age applies. Id., at 23. The United States Court of Appeals for the Eighth Circuit affirmed the dismissal. 898 F. 2d 598 (1990). That court also held that appointed judges are “ ‘appointee[s] on the policymaking level,’” and are therefore not covered under the ADEA. Id., at 604. The Court of Appeals held as well that Missouri had a rational basis for distinguishing judges who had reached the age of 70 from those who had not. Id., at 606. We granted certiorari on both the ADEA and equal protection questions, 498 U. S. 979 (1990), and now affirm. II The ADEA makes it unlawful for an “employer” “to discharge any individual” who is at least 40 years old “because of such individual’s age.” 29 U. S. C. §§ 623(a), 631(a). The term “employer” is defined to include “a State or political subdivision of a State.” § 630(b)(2). Petitioners work for the State of Missouri. They contend that the Missouri GREGORY v. ASHCROFT 457 452 Opinion of the Court mandatory retirement requirement for judges violates the ADEA. A As every schoolchild learns, our Constitution establishes a system of dual sovereignty between the States and the Federal Government. This Court also has recognized this fundamental principle. In Tafflin v. Levitt, 493 U. S. 455, 458 (1990), “[w]e beg[a]n with the axiom that, under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause.” Over 120 years ago, the Court described the constitutional scheme of dual sovereigns: “‘[T]he people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,’. . . ‘[Without the States in union, there could be no such political body as the United States.’ Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” Texas n. White, 7 Wall. 700, 725 (1869), quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869). The Constitution created a Federal Government of limited powers. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U. S. Const., Arndt. 10. The States thus retain substantial sovereign authority under our constitutional system. As James Madison put it: 458 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry. See generally McConnell, Federalism: Evaluating the Founders’ Design, 54 U. Chi. L. Rev. 1484, 1491-1511 (1987); Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 3-10 (1988). Perhaps the principal benefit of the federalist system is a check on abuses of government power. “The ‘constitutionally mandated balance of power’ between the States and the Federal Government was adopted by the Framers to ensure the protection of ‘our fundamental liberties.’” Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985), quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 572 (1985) (Powell, J., dissenting). Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. Alexander Hamilton explained to the people of New York, perhaps optimistically, that the new federalist system would GREGORY v. ASHCROFT 459 452 Opinion of the Court suppress completely “the attempts of the government to establish a tyranny”: “[I]n a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.” The Federalist No. 28, pp. 180-181 (C. Rossiter ed. 1961). James Madison made much the same point: “In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” Id., No. 51, p. 323. One fairly can dispute whether our federalist system has been quite as successful in checking government abuse as Hamilton promised, but there is no doubt about the design. If this “double security” is to be effective, there must be a proper balance between the States and the Federal Government. These twin powers will act as mutual restraints only if both are credible. In the tension between federal and state power lies the promise of liberty. 460 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. The Federal Government holds a decided advantage in this delicate balance: the Supremacy Clause. U. S. Const., Art. VI, cl. 2. As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States. Congress may legislate in areas traditionally regulated by the States. This is an extraordinary power in a federalist system. It is a power that we must assume Congress does not exercise lightly. The present case concerns a state constitutional provision through which the people of Missouri establish a qualification for those who sit as their judges. This provision goes beyond an area traditionally regulated by the States; it is a decision of the most fundamental sort for a sovereign entity. Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign. “It is obviously essential to the independence of the States, and to their peace and tranquility, that their power to prescribe the qualifications of their own officers . . . should be exclusive, and free from external interference, except so far as plainly provided by the Constitution of the United States.” Taylor n. Beckham, 178 U. S. 548, 570-571 (1900). See also Boyd n. Nebraska ex rel. Thayer, 143 U. S. 135, 161 (1892) (“Each State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen”). Congressional interference with this decision of the people of Missouri, defining their constitutional officers, would upset the usual constitutional balance of federal and state powers. For this reason, “it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides” this balance. Atascadero, supra, at 243. We explained recently: “[I]f Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute.’ Atascadero GREGORY v. ASHCROFT 461 452 Opinion of the Court State Hospital v. Scanlon, 473 U. S. 234, 242 (1985); see also Pennhurst State School and Hospital v. Halder-man, 465 U. S. 89, 99 (1984). Atascadero was an Eleventh Amendment case, but a similar approach is applied in other contexts. Congress should make its intention ‘clear and manifest’ if it intends to pre-empt the historic powers of the States, Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) .... ‘In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.’ United States v. Bass, 404 U. S. 336, 349 (1971).” Will v. Michigan Dept, of State Police, 491 U. S. 58, 65 (1989). This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere. In a recent line of authority, we have acknowledged the unique nature of state decisions that “go to the heart of representative government.” Sugarman n. Dougall, 413 U. S. 634, 647 (1973). Sugarman was the first in a series of cases to consider the restrictions imposed by the Equal Protection Clause of the Fourteenth Amendment on the ability of state and local governments to prohibit aliens from public employment. In that case, the Court struck down under the Equal Protection Clause a New York City law that provided a flat ban against the employment of aliens in a wide variety of city jobs. Ibid. The Court did not hold, however, that alienage could never justify exclusion from public employment. We recognized explicitly the States’ constitutional power to establish the qualifications for those who would govern: “Just as ‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth 462 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Amendment, the power to regulate elections/ Oregon v. Mitchell, 400 U. S. 112, 124-125 (1970) (footnote omitted) (opinion of Black, J.); see id., at 201 (opinion of Harlan, J.), and id., at 293-294 (opinion of Stewart, J.), “[e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.” Boyd n. Thayer, 143 U. S. 135, 161 (1892). See Luther v. Borden, 7 How. 1, 41 (1849); Pope v. Williams, 193 U. S. 621, 632-633 (1904). Such power inheres in the State by virtue of its obligation, already noted above, ‘to preserve the basic conception of a political community.’ Dunn v. Blumstein, 405 U. S. [330, 344 (1972)]. And this power and responsibility of the State applies, not only to the qualifications of voters, but also to persons holding state elective and important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government.” Ibid. We explained that, while the Equal Protection Clause provides a check on such state authority, “our scrutiny will not be so demanding where we deal with matters resting firmly within a State’s constitutional prerogatives.” Id., at 648. This rule “is no more than ... a recognition of a State’s constitutional responsibility for the establishment and operation of its own government, as well as the qualifications of an appropriately designated class of public office holders. U. S. Const. Art. IV, § 4; U. S. Const. Arndt. X; Luther n. Borden, supra; see In re Duncan, 139 U. S. 449, 461 (1891).” Ibid. In several subsequent cases we have applied the “political function” exception to laws through which States exclude aliens from positions “intimately related to the process of democratic self-government.” See Bernal n. Fainter, 467 U. S. 216, 220 (1984). See also Nyquist v. Mauclet, 432 U. S. 1, 11 (1977); Foley v. Connelie, 435 U. S. 291, 295-296 GREGORY v. ASHCROFT 463 452 Opinion of the Court (1978); Ambach v. Norwich, 441 U. S. 68, 73-74 (1979); Cabell v. Chavez-Salido, 454 U. S. 432, 439-441 (1982). “We have . . . lowered our standard of review when evaluating the validity of exclusions that entrust only to citizens important elective and nonelective positions whose operations ‘go to the heart of representative government.”’ Bernal, 467 U. S., at 221 (citations omitted). These cases stand in recognition of the authority of the people of the States to determine the qualifications of their most important government officials.* It is an authority that lies at “‘the heart of representative government.’” Ibid. It is a power reserved to the States under the Tenth Amendment and guaranteed them by that provision of the Constitution under which the United States “guarantee[s] to every State in this Union a Republican Form of Government.” U. S. Const., Art. IV, §4. See Sugarman, supra, at 648 (citing the Guarantee Clause and the Tenth Amendment). See also Merritt, 88 Colum. L. Rev., at 50-55. The authority of the people of the States to determine the qualifications of their government officials is, of course, not without limit. Other constitutional provisions, most notably the Fourteenth Amendment, proscribe certain qualifications; our review of citizenship requirements under the political function exception is less exacting, but it is not absent. *Justice White believes that the “political function” cases are inapposite because they involve limitations on “judicially created scrutiny” rather than “Congress’ legislative authority,” which is at issue here. Post, at 477. He apparently suggests that Congress has greater authority to interfere with state sovereignty when acting pursuant to its Commerce Clause powers than this Court does when applying the Fourteenth Amendment. Elsewhere in his opinion, Justice White emphasizes that the Fourteenth Amendment was designed as an intrusion on state sovereignty. See post, at 480. That being the case, our diminished scrutiny of state laws in the “political function” cases, brought under the Fourteenth Amendment, argues strongly for special care when interpreting alleged congressional intrusions into state sovereignty under the Commerce Clause. 464 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Here, we must decide what Congress did in extending the ADEA to the States, pursuant to its powers under the Commerce Clause. See EEOC v. Wyoming, 460 U. S. 226 (1983) (the extension of the ADEA to employment by state and local governments was a valid exercise of Congress’ powers under the Commerce Clause). As against Congress’ powers “[t]o regulate Commerce . . . among the several States,” U. S. Const., Art. I, §8, cl. 3, the authority of the people of the States to determine the qualifications of their government officials may be inviolate. We are constrained in our ability to consider the limits that the state-federal balance places on Congress’ powers under the Commerce Clause. See Garcia n. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985) (declining to review limitations placed on Congress’ Commerce Clause powers by our federal system). But there is no need to do so if we hold that the ADEA does not apply to state judges. Application of the plain statement rule thus may avoid a potential constitutional problem. Indeed, inasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress’ Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise. “[T]o give the state-displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia relied to protect states’ interests.” L. Tribe, American Constitutional Law §6-25, p. 480 (2d ed. 1988). B In 1974, Congress extended the substantive provisions of the ADEA to include the States as employers. Pub. L. 93-259, § 28(a), 88 Stat. 74, 29 U. S. C. § 630(b)(2). At the same time, Congress amended the definition of “employee” to exclude all elected and most high-ranking government officials. Under the Act, as amended: GREGORY v. ASHCROFT 465 452 Opinion of the Court “The term ‘employee’ means an individual employed by any employer except that the term ‘employee’ shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.” 29 U. S. C. § 630(f). Governor Ashcroft contends that the § 630(f) exclusion of certain public officials also excludes judges, like petitioners, who are appointed to office by the Governor and are then subject to retention election. The Governor points to two passages in § 630(f). First, he argues, these judges are selected by an elected official and, because they make policy, are “appointee[s] on the policymaking level.” Petitioners counter that judges merely resolve factual disputes and decide questions of law; they do not make policy. Moreover, petitioners point out that the policymaking-level exception is part of a trilogy, tied closely to the elected-official exception. Thus, the Act excepts elected officials and: (1) “any person chosen by such officer to be on such officer’s personal staff”; (2) “an appointee on the policymaking level”; and (3) “an immediate advisor with respect to the exercise of the constitutional or legal powers of the office.” Applying the maxim of statutory construction noscitur a so-ciis—that a word is known by the company it keeps—petitioners argue that since (1) and (3) refer only to those in close working relationships with elected officials, so too must (2). Even if it can be said that judges may make policy, petitioners contend, they do not do so at the behest of an elected official. Governor Ashcroft relies on the plain language of the statute: It exempts persons appointed “at the policymaking level.” The Governor argues that state judges, in fashioning and applying the common law, make policy. Missouri is a 466 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. common law state. See Mo. Rev. Stat. § 1.010 (1986) (adopting “[tjhe common law of England” consistent with federal and state law). The common law, unlike a constitution or statute, provides no definitive text; it is to be derived from the interstices of prior opinions and a well-considered judgment of what is best for the community. As Justice Holmes put it: “The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of fife. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but nonetheless traceable to views of public policy in the last analysis.” 0. Holmes, The Common Law 35-36 (1881). Governor Ashcroft contends that Missouri judges make policy in other ways as well. The Missouri Supreme Court and Courts of Appeals have supervisory authority over inferior courts. Mo. Const., Art. V, §4. The Missouri Supreme Court has the constitutional duty to establish rules of practice and procedure for the Missouri court system, and inferior courts exercise policy judgment in establishing local rules of practice. See Mo. Const., Art. V, §5. The state courts have supervisory powers over the state-bar, with the Missouri Supreme Court given the authority to develop disciplinary rules. See Mo. Rev. Stat. §§484.040, 484.200-484.270 (1986); Rules Governing the Missouri Bar and the Judiciary (1991). The Governor stresses judges’ policymaking responsibilities, but it is far from plain that the statutory exception requires that judges actually make policy. The statute refers to appointees “on the policymaking level,” not to appointees “who make policy.” It may be sufficient that the ap- GREGORY v. ASHCROFT 467 452 Opinion of the Court pointee is in a position requiring the exercise of discretion concerning issues of public importance. This certainly describes the bench, regardless of whether judges might be considered policymakers in the same sense as the executive or legislature. Nonetheless, “appointee at the policymaking level,” particularly in the context of the other exceptions that surround it, is an odd way for Congress to exclude judges; a plain statement that judges are not “employees” would seem the most efficient phrasing. But in this case we are not looking for a plain statement that judges are excluded. We will not read the ADEA to cover state judges unless Congress has made it clear that judges are included. This does not mean that the Act must mention judges explicitly, though it does not. Cf. Dellmuth v. Muth, 491 U. S. 223, 233 (1989) (Scalia, J., concurring). Rather, it must be plain to anyone reading the Act that it covers judges. In the context of a statute that plainly excludes most important state public officials, “appointee on the policymaking level” is sufficiently broad that we cannot conclude that the statute plainly covers appointed state judges. Therefore, it does not. The ADEA plainly covers all state employees except those excluded by one of the exceptions. Where it is unambiguous that an employee does not fall within one of the exceptions, the Act states plainly and unequivocally that the employee is included. It is at least ambiguous whether a state judge is an “appointee on the policymaking level.” Governor Ashcroft points also to the “person elected to public office” exception. He contends that because petitioners—although appointed to office initially—are subject to retention election, they are “elected to public office” under the ADEA. Because we conclude that petitioners fall presumptively under the policymaking-level exception, we need not answer this question. C The extension of the ADEA to employment by state and local governments was a valid exercise of Congress’ pow 468 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. ers under the Commerce Clause. EEOC v. Wyoming, 460 U. S. 226 (1983). In Wyoming, we reserved the questions whether Congress might also have passed the ADEA extension pursuant to its powers under §5 of the Fourteenth Amendment, and whether the extension would have been a valid exercise of that power. Id., at 243, and n. 18. We noted, however, that the principles of federalism that constrain Congress’ exercise of its Commerce Clause powers are attenuated when Congress acts pursuant to its powers to enforce the Civil War Amendments. Id., at 243, and n. 18, citing City of Rome v. United States, 446 U. S. 156, 179 (1980). This is because those “Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty.” Id., at 179. One might argue, therefore, that if Congress passed the ADEA extension under its §5 powers, the concerns about federal intrusion into state government that compel the result in this case might carry less weight. By its terms, the Fourteenth Amendment contemplates interference with state authority: “No State shall. . . deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Arndt. 14. But this Court has never held that the Amendment may be applied in complete disregard for a State’s constitutional powers. Rather, the Court has recognized that the States’ power to define the qualifications of their officeholders has force even as against the proscriptions of the Fourteenth Amendment. We return to the political-function cases. In Sugarman, the Court noted that “aliens as a class ‘are a prime example of a “discrete and insular” minority (see United States v. Carotene Products Co., 304 U. S. 144, 152-153, n. 4 (1938)),’ and that classifications based on alienage are ‘subject to close judicial scrutiny.’” 413 U. S., at 642, quoting Graham v. Richardson, 403 U. S. 365, 372 (1971). The Sugarman Court held that New York City had insufficient interest in preventing aliens from holding a broad category of public GREGORY v. ASHCROFT 469 452 Opinion of the Court jobs to justify the blanket prohibition. 413 U. S., at 647. At the same time, the Court established the rule that scrutiny under the Equal Protection Clause “will not be so demanding where we deal with matters resting firmly within a State’s constitutional prerogatives.” Id., at 648. Later cases have reaffirmed this practice. See Foley v. Connelie, 435 U. S. 291 (1978); Ambach n. Norwich, 441 U. S. 68 (1979); Cabell v. Chavez-Salido, 454 U. S. 432 (1982). These cases demonstrate that the Fourteenth Amendment does not override all principles of federalism. Of particular relevance here is Pennhurst State School and Hospital n. Halderman, 451 U. S. 1 (1981). The question in that case was whether Congress, in passing a section of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U. S. C. §6010 (1982 ed.), intended to place an obligation on the States to provide certain kinds of treatment to the disabled. Respondent Halderman argued that Congress passed § 6010 pursuant to § 5 of the Fourteenth Amendment, and therefore that it was mandatory on the States, regardless of whether they received federal funds. Petitioner and the United States, as respondent, argued that, in passing § 6010, Congress acted pursuant to its spending power alone. Consequently, § 6010 applied only to States accepting federal funds under the Act. The Court was required to consider the “appropriate test for determining when Congress intends to enforce” the guarantees of the Fourteenth Amendment. 451 U. S., at 16. We adopted a rule fully cognizant of the traditional power of the States: “Because such legislation imposes congressional policy on a State involuntarily, and because it often intrudes on traditional state authority, we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment.” Ibid. Because Congress nowhere stated its intent to impose mandatory obligations on the States under its § 5 powers, we concluded that Congress did not do so. Ibid. 470 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. The Pennhurst rule looks much like the plain statement rule we apply today. In EEOC v. Wyoming, the Court explained that Pennhurst established a rule of statutory construction to be applied where statutory intent is ambiguous. 460 U. S., at 244, n. 18. In light of the ADEA’s clear exclusion of most important public officials, it is at least ambiguous whether Congress intended that appointed judges nonetheless be included. In the face of such ambiguity, we will not attribute to Congress an intent to intrude on state governmental functions regardless of whether Congress acted pursuant to its Commerce Clause powers or §5 of the Fourteenth Amendment. Ill Petitioners argue that, even if they are not covered by the ADEA, the Missouri Constitution’s mandatory retirement provision for judges violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Petitioners contend that there is no rational basis for the decision of the people of Missouri to preclude those aged 70 and over from serving as their judges. They claim that the mandatory retirement provision makes two irrational distinctions: between judges who have reached age 70 and younger judges, and between judges 70 and over and other state employees of the same age who are not subject to mandatory retirement. Petitioners are correct to assert their challenge at the level of rational basis. This Court has said repeatedly that age is not a suspect classification under the Equal Protection Clause. See Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 313-314 (1976); Vance v. Bradley, 440 U. S. 93, 97 (1979); Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 441 (1985). Nor do petitioners claim that they have a fundamental interest in serving as judges. The State need therefore assert only a rational basis for its age classification. See Murgia, supra, at 314; Bradley, 440 U. S., at 97. In cases where a classification burdens neither a suspect GREGORY v. ASHCROFT 471 452 Opinion of the Court group nor a fundamental interest, “courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws.” Ibid. In this case, we are dealing not merely with government action, but with a state constitutional provision approved by the people of Missouri as a whole. This constitutional provision reflects both the considered judgment of the state legislature that proposed it and that of the citizens of Missouri who voted for it. See 1976 Mo. Laws 812 (proposing the mandatory retirement provision of §26); Mo. Const., Art. XII, §§2(a), 2(b) (describing the amendment process). “[W]e will not overturn such a [law] 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 [people’s] actions were irrational.” Bradley, supra, at 97. See also Pennell v. San Jose, 485 U. S. 1, 14 (1988). Governor Ashcroft cites O'Neil v. Baine, 568 S. W. 2d 761 (Mo. 1978) (en banc), as a fruitful source of rational bases. In O'Neil, the Missouri Supreme Court—to whom Missouri Constitution Article V, §26, applies—considered an equal protection challenge to a state statute that established a mandatory retirement age of 70 for state magistrate and probate judges. The court upheld the statute, declaring numerous legitimate state objectives it served: “The statute draws a line at a certain age which attempts to uphold the high competency for judicial posts and which fulfills a societal demand for the highest caliber of judges in the system”; “the statute . . . draws a legitimate line to avoid the tedious and often perplexing decisions to determine which judges after a certain age are physically and mentally qualified and those who are not”; “mandatory retirement increases the opportunity for qualified persons ... to share in the judiciary and permits an orderly attrition through retirement”; “such a mandatory provision also assures predictability and ease in establishing and administering judges’ pension plans.” Id., at 766-767. Any one of these explanations is sufficient to rebut the claim 472 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. that “the varying treatment of different groups or persons [in § 26] is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [people’s] actions were irrational.” Bradley, supra, at 97. The people of Missouri have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform. It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age. See Bradley, supra, at 111— 112; Murgia, supra, at 315. The people may therefore wish to replace some older judges. Voluntary retirement will not always be sufficient. Nor may impeachment—with its public humiliation and elaborate procedural machinery—serve acceptably the goal of a fully functioning judiciary. See Mo. Const., Art. VII, §§1-3. The election process may also be inadequate. Whereas the electorate would be expected to discover if their governor or state legislator were not performing adequately and vote the official out of office, the same may not be true of judges. Most voters never observe state judges in action, nor read judicial opinions. State judges also serve longer terms of office than other public officials, making them—deliberately— less dependent on the will of the people. Compare Mo. Const., Art. V, §19 (Supreme Court justices and Court of Appeals judges serve 12-year terms; Circuit Court judges 6 years), with Mo. Const., Art. IV, § 17 (Governor, Lieutenant Governor, secretary of state, state treasurer, and attorney general serve 4-year terms) and Mo. Const., Art. Ill, §11 (state representatives serve 2-year terms; state senators 4 years). Most of these judges do not run in ordinary elections. See Mo. Const., Art. V, § 25(a). The people of Missouri rationally could conclude that retention elections—in which state judges run unopposed at relatively long intervals—do not serve as an adequate check on judges whose performance is deficient. Mandatory retirement is a reasonable response to this dilemma. GREGORY v. ASHCROFT 473 452 Opinion of the Court This is also a rational explanation for the fact that state judges are subject to a mandatory retirement provision, while other state officials—whose performance is subject to greater public scrutiny, and who are subject to more standard elections—are not. Judges’ general lack of accountability explains also the distinction between judges and other state employees, in whom a deterioration in performance is more readily discernible and who are more easily removed. The Missouri mandatory retirement provision, like all legal classifications, is founded on a generalization. It is far from true that all judges suffer significant deterioration in performance at age 70. It is probably not true that most do. It may not be true at all. But a State “‘does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.’” Murgia, 427 U. S., at 316, quoting Dandridge v. Williams, 397 U. S. 471, 485 (1970). “In an equal protection case of this type . . . those challenging the . . . judgment [of the people] must convince the court that the . . . facts on which the classification is apparently based could not reasonably be conceived to be true by the . . . decisionmaker.” Bradley, 440 U. S., at 111. The people of Missouri rationally could conclude that the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal sufficiently inadequate, that they will require all judges to step aside at age 70. This classification does not violate the Equal Protection Clause. IV The people of Missouri have established a qualification for those who would be their judges. It is their prerogative as citizens of a sovereign State to do so. Neither the ADE A nor the Equal Protection Clause prohibits the choice they have made. Accordingly, the judgment of the Court of Appeals is Affirmed. 474 OCTOBER TERM, 1990 Opinion of White, J. 501 U. S. Justice White, with whom Justice Stevens joins, concurring in part, dissenting in part, and concurring in the judgment. I agree with the majority that neither the Age Discrimination in Employment Act of 1967 (ADEA) nor the Equal Protection Clause prohibits Missouri’s mandatory retirement provision as applied to petitioners, and I therefore concur in the judgment and in Parts I and III of the majority’s opinion. I cannot agree, however, with the majority’s reasoning in Part II of its opinion, which ignores several areas of well-established precedent and announces a rule that is likely to prove both unwise and infeasible. That the majority’s analysis in Part II is completely unnecessary to the proper resolution of this case makes it all the more remarkable. I In addition to petitioners’ equal protection claim, we granted certiorari to decide the following question: “Whether appointed Missouri state court judges are ‘ap-pointee[s] on the policymaking level’ within the meaning of the Age Discrimination in Employment Act (‘ADEA’), 28 U. S. C. §§621-34 (1982 & Supp. V 1987), and therefore exempted from the ADEA’s general prohibition of mandatory retirement and thus subject to the mandatory retirement provision of Article V, Section 26 of the Missouri Constitution.” Pet. for Cert. i. The majority, however, chooses not to resolve that issue of statutory construction. Instead, it holds that whether or not the ADEA can fairly be read to exclude state judges from its scope, “[w]e will not read the ADEA to cover state judges unless Congress has made it clear that judges are included” Ante, at 467 (emphasis in original). I cannot agree with this “plain statement” rule because it is unsupported by the decisions upon which the majority relies, contrary to our Tenth Amendment jurisprudence, and fundamentally unsound. GREGORY v. ASHCROFT 475 452 Opinion of White, J. Among other things, the ADE A makes it “unlawful for an employer—(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U. S. C. § 623(a). In 1974, Congress amended the definition of “employer” in the ADEA to include “a State or political subdivision of a State.” § 630(b)(2). With that amendment, “there is no doubt what the intent of Congress was: to extend the application of the ADEA to the States.” EEOC v. Wyoming, 460 U. S. 226, 244, n. 18 (1983). The dispute in this case therefore is not whether Congress has outlawed age discrimination by the States. It clearly has. The only question is whether petitioners fall within the definition of “employee” in the Act, § 630(f), which contains exceptions for elected officials and certain appointed officials. If petitioners are “employee[s],” Missouri’s mandatory retirement provision clearly conflicts with the antidiscrimination provisions of the ADEA. Indeed, we have noted that the “policies and substantive provisions of the [ADEA] apply with especial force in the case of mandatory retirement provisions.” Western Air Lines, Inc. n. Criswell, 472 U. S. 400, 410 (1985). Pre-emption therefore is automatic, since “state law is pre-empted to the extent that it actually conflicts with federal law.” Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, 461 U. S. 190, 204 (1983). The majority’s federalism concerns are irrelevant to such “actual conflict” pre-emption. “‘The relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail.’” Fidelity Federal Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982), quoting Free v. Bland, 369 U. S. 663, 666 (1962). While acknowledging this principle of federal legislative supremacy, see ante, at 460, the majority nevertheless im 476 OCTOBER TERM, 1990 Opinion of White, J. 501 U. S. poses upon Congress a “plain statement” requirement. The majority claims to derive this requirement from the plain statement approach developed in our Eleventh Amendment cases, see, e. g., Atascadero State Hospital n. Scanlon, 473 U. S. 234, 243 (1985), and applied two Terms ago in Will v. Michigan Dept, of State Police, 491 U. S. 58, 65 (1989). The issue in those cases, however, was whether Congress intended a particular statute to extend to the States at all. In Atascadero, for example, the issue was whether States could be sued under §504 of the Rehabilitation Act of 1973, 29 U. S. C. §794. Similarly, the issue in Will was whether States could be sued under 42 U. S. C. § 1983. In the present case, by contrast, Congress has expressly extended the coverage of the ADEA to the States and their employees. Its intention to regulate age discrimination by States is thus “unmistakably clear in the language of the statute.” Atascadero, supra, at 242. See Davidson v. Board of Governors of State Colleges and Universities, 920 F. 2d 441, 443 (CA7 1990) (ADEA satisfies “clear statement” requirement). The only dispute is over the precise details of the statute’s application. We have never extended the plain statement approach that far, and the majority offers no compelling reason for doing so. The majority also relies heavily on our cases addressing the constitutionality of state exclusion of aliens from public employment. See ante, at 461-463, 468-470. In those cases, we held that although restrictions based on alienage ordinarily are subject to strict scrutiny under the Equal Protection Clause, see Graham v. Richardson, 403 U. S. 365, 372 (1971), the scrutiny will be less demanding for exclusion of aliens “from positions intimately related to the process of democratic self-government.” Bernal v. Fainter, 467 U. S. 216, 220 (1984). This narrow “political-function” exception to the strict-scrutiny standard is based on the “State’s historical power to exclude aliens from participation in its GREGORY v. ASHCROFT 477 452 Opinion of White, J. democratic political institutions.” Sugarman v. Dougall, 413 U. S. 634, 648 (1973). It is difficult to see how the “political-function” exception supports the majority’s plain statement rule. First, the exception merely reflects a determination of the scope of the rights of aliens under the Equal Protection Clause. Reduced scrutiny is appropriate for certain political functions because “the right to govern is reserved to citizens.” Foley v. Con-nelie, 435 U. S. 291, 297 (1978); see also Sugarman, supra, at 648-649. This conclusion in no way establishes a method for interpreting rights that are statutorily created by Congress, such as the protection from age discrimination in the ADEA. Second, it is one thing to limit judicially created scrutiny, and it is quite another to fashion a restraint on Congress’ legislative authority, as does the majority; the latter is both counter-majoritarian and an intrusion on a coequal branch of the Federal Government. Finally, the majority does not explicitly restrict its rule to “functions that go to the heart of representative government,” 413 U. S., at 647, and may in fact be extending it much further to all “state governmental functions.” See ante, at 470. The majority’s plain statement rule is not only unprecedented, it directly contravenes our decisions in Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985), and South Carolina v. Baker, 485 U. S. 505 (1988). In those cases we made it clear “that States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity.” Id., at 512. We also rejected as “unsound in principle and unworkable in practice” any test for state immunity that requires a judicial determination of which state activities are “‘traditional,’” “‘integral,’” or “‘necessary.’” Garcia, supra, at 546. The majority disregards those decisions in its attempt to carve out areas of state activity that will receive special protection from federal legislation. 478 OCTOBER TERM, 1990 Opinion of White, J. 501 U. S. The majority’s approach is also unsound because it will serve only to confuse the law. First, the majority fails to explain the scope of its rule. Is the rule limited to federal regulation of the qualifications of state officials? See ante, at 464. Or does it apply more broadly to the regulation of any “state governmental functions”? See ante, at 470. Second, the majority does not explain its requirement that Congress’ intent to regulate a particular state activity be “plain to anyone reading [the federal statute].” See ante, at 467. Does that mean that it is now improper to look to the purpose or history of a federal statute in determining the scope of the statute’s limitations on state activities? If so, the majority’s rule is completely inconsistent with our pre-emption jurisprudence. See, e. g., Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 715 (1985) (pre-emption will be found where there is a “‘clear and manifest purpose’” to displace state law) (emphasis added). The vagueness of the majority’s rule undoubtedly will lead States to assert that various federal statutes no longer apply to a wide variety of state activities if Congress has not expressly referred to those activities in the statute. Congress, in turn, will be forced to draft long and detailed lists of which particular state functions it meant to regulate. The imposition of such a burden on Congress is particularly out of place in the context of the ADEA. Congress already has stated that all “individual[s] employed by any employer” are protected by the ADEA unless they are expressly excluded by one of the exceptions in the definition of “employee.” See 29 U. S. C. § 630(f). The majority, however, turns the statute on its head, holding that state judges are not protected by the ADEA because “Congress has [not] made it clear that judges are included.” Ante, at 467 (emphasis in original). Cf. EEOC v. Wyoming, 460 U. S. 226 (1983), where we held that state game wardens are covered by the ADEA, even though such employees are not expressly included within the ADEA’s scope. GREGORY v. ASHCROFT 479 452 Opinion of White, J. The majority asserts that its plain statement rule is helpful in avoiding a “potential constitutional problem.” Ante, at 464. It is far from clear, however, why there would be a constitutional problem if the ADEA applied to state judges, in light of our decisions in Garcia and Baker, discussed above. As long as “the national political process did not operate in a defective manner, the Tenth Amendment is not implicated.” Baker, supra, at 513. There is no claim in this case that the political process by which the ADEA was extended to state employees was inadequate to protect the States from being “unduly burden[ed]” by the Federal Government. See Garcia, supra, at 556. In any event, as discussed below, a straightforward analysis of the ADE A’s definition of “employee” reveals that the ADEA does not apply here. Thus, even if there were potential constitutional problems in extending the ADEA to state judges, the majority’s proposed plain statement rule would not be necessary to avoid them in this case. Indeed, because this case can be decided purely on the basis of statutory interpretation, the majority’s announcement of its plain statement rule, which purportedly is derived from constitutional principles, violates our general practice of avoiding the unnecessary resolution of constitutional issues. My disagreement with the majority does not end with its unwarranted announcement of the plain statement rule. Even more disturbing is its treatment of Congress’ power under § 5 of the Fourteenth Amendment. See ante, at 467-470. Section 5 provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Despite that sweeping constitutional delegation of authority to Congress, the majority holds that its plain statement rule will apply with full force to legislation enacted to enforce the Fourteenth Amendment. The majority states: “In the face of. . . ambiguity, we will not attribute to Congress an intent to intrude on state governmental functions regardless of whether Congress acted pursuant to its 480 OCTOBER TERM, 1990 Opinion of White, J. 501 U. S. Commerce Clause powers or §5 of the Fourteenth Amendment.” Ante, at 470 (emphasis added).* 1 The majority’s failure to recognize the special status of legislation enacted pursuant to § 5 ignores that, unlike Congress’ Commerce Clause power, “[w]hen Congress acts pursuant to § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority.” Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976). Indeed, we have held that “principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments ‘by appropriate legislation.’ Those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty.” City of Rome v. United States, 446 U. S. 156, 179 (1980); see also EEOC n. Wyoming, supra, at 243, n. 18. The majority relies upon Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), see ante, at 469-470, but that case does not support its approach. There, the Court merely stated that “we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment.” 451 U. S., at 16. In other words, the Pennhurst presumption was designed only to answer the question whether a particular piece of legisla 1 In EEOC v. Wyoming, 460 U. S. 226 (1983), we held that the extension of the ADEA to the States was a valid exercise of congressional power under the Commerce Clause. We left open, however, the issue whether it was also a valid exercise of Congress’ power under § 5 of the Fourteenth Amendment. Cf. Fitzpatrick v. Bitzer, 427 U. S. 445, 453, n. 9 (1976) (extension of Title VII of Civil Rights Act of 1964 to States was pursuant to Congress’ § 5 power). Although we need not resolve the issue in this case, I note that at least two Courts of Appeals have held that the ADEA was enacted pursuant to Congress’ § 5 power. See Heiar n. Crawford County, 746 F. 2d 1190, 1193-1194 (CA7 1984); Ramirez v. Puerto Rico Fire Service, 715 F. 2d 694, 700 (CAI 1983). GREGORY v. ASHCROFT 481 452 Opinion of White, J. tion was enacted pursuant to § 5. That is very different from the majority’s apparent holding that even when Congress is acting pursuant to § 5, it nevertheless must specify the precise details of its enactment. The majority’s departures from established precedent are even more disturbing when it is realized, as discussed below, that this case can be affirmed based on simple statutory construction. II The statute at issue in this case is the ADE A’s definition of “employee,” which provides: “The term ‘employee’ means an individual employed by any employer except that the term ‘employee’ shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision.” 29 U. S. C. § 630(f). A parsing of that definition reveals that it excludes from the definition of “employee” (and thus the coverage of the ADEA) four types of (noncivil service) state and local employees: (1) persons elected to public office; (2) the personal staff of elected officials; (3) persons appointed by elected officials to be on the policymaking level; and (4) the immediate advisers of elected officials with respect to the constitutional or legal powers of the officials’ offices. The question before us is whether petitioners fall within the third exception. Like the Court of Appeals, see 898 F. 2d 598, 600 (CA8 1990), I assume that petitioners, who were initially appointed to their positions by the Governor of 482 OCTOBER TERM, 1990 Opinion of White, J. 501 U. S. Missouri, are “appointed” rather than “elected” within the meaning of the ADEA. For the reasons below, I also conclude that petitioners are “on the policymaking level.”2 “Policy” is defined as “a definite course or method of action selected (as by a government, institution, group, or individual) from among alternatives and in the light of given conditions to guide and usu[ally] determine present and future decisions.” Webster’s Third New International Dictionary 1754 (1976). Applying that definition, it is clear that the decisionmaking engaged in by common-law judges, such as petitioners, places them “on the policymaking level.” In resolving disputes, although judges do not operate with unconstrained discretion, they do choose “from among alternatives” and elaborate their choices in order “to guide and . . . determine present and future decisions.” The quotation from Justice Holmes in the majority’s opinion, see ante, at 466, is an eloquent description of the policymaking nature of the judicial function. Justice Cardozo also stated it well: “Each [common-law judge] indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. . . . [W]ithin the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made.” B. Cardozo, The Nature of the Judicial Process 113-115 (1921). 2 Most of the lower courts that have addressed the issue have concluded that appointed state judges fall within the “appointee[s] on the policymaking level” exception. See 898 F. 2d 598 (CA8 1990) (case below); EEOC v. Massachusetts, 858 F. 2d 52 (CAI 1988); Sabo v. Casey, 757 F. Supp. 587 (ED Pa. 1991); In re Stout, 521 Pa. 571, 559 A. 2d 489 (1989); see also EEOC v. Illinois, 721 F. Supp. 156 (ND Ill. 1989). But see EEOC v. Vermont, 904 F. 2d 794 (CA2 1990); Schlitz v. Virginia, 681 F. Supp. 330 (ED Va.), rev’d on other grounds, 854 F. 2d 43 (CA4 1988). GREGORY v. ASHCROFT 483 452 Opinion of White, J. Moreover, it should be remembered that the statutory exception refers to appointees “on the policymaking level,” not “policymaking employees.” Thus, whether or not judges actually make policy, they certainly are on the same level as policymaking officials in other branches of government and therefore are covered by the exception. The degree of responsibility vested in judges, for example, is comparable to that of other officials that have been found by the lower courts to be on the policymaking level. See, e. g., EEOC v. Reno, 758 F. 2d 581 (CA11 1985) (assistant state attorney); EEOC v. Board of Trustees of Wayne Cty. Community College, 723 F. 2d 509 (CA6 1983) (president of community college). Petitioners argue that the “appointee[s] on the policymaking level” exception should be construed to apply “only to persons who advise or work closely with the elected official that chose the appointee.” Brief for Petitioners 18. In support of that claim, petitioners point out that the exception is “sandwiched” between the “personal staff” and “immediate adviser” exceptions in § 630(f), and thus should be read as covering only similar employees. Petitioners’ premise, however, does not prove their conclusion. It is true that the placement of the “appointee” exception between the “personal staff” and “immediate adviser” exceptions suggests a similarity among the three. But the most obvious similarity is simply that each of the three sets of employees are connected in some way with elected officials: The first and third sets have a certain working relationship with elected officials, while the second is appointed by elected officials. There is no textual support for concluding that the second set must also have a close working relationship with elected officials. Indeed, such a reading would tend to make the “appointee” exception superfluous since the “personal staff” and “immediate adviser” exceptions would seem to cover most appointees who are in a close working relationship with elected officials. 484 OCTOBER TERM, 1990 Opinion of White, J. 501 U. S. Petitioners seek to rely on legislative history, but it does not help their position. There is little legislative history discussing the definition of “employee” in the ADEA, so petitioners point to the legislative history of the identical definition in Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e(f). If anything, that history tends to confirm that the “appointee[s] on the policymaking level” exception was designed to exclude from the coverage of the ADEA all high-level appointments throughout state government structures, including judicial appointments. For example, during the debates concerning the proposed extension of Title VII to the States, Senator Ervin repeatedly expressed his concern that the (unamended) definition of “employee” would be construed to reach those “persons who exercise the legislative, executive, and judicial powers of the States and political subdivisions of the States.” 118 Cong. Rec. 1838 (1972) (emphasis added). Indeed, he expressly complained that “[t]here is not even an exception in the [unamended] bill to the effect that the EEOC will not have jurisdiction over . . . State judges, whether they are elected or appointed to office.” Id., at 1677. Also relevant is Senator Taft’s comment that, in order to respond to Senator Ervin’s concerns, he was willing to agree to an exception not only for elected officials, but also for “those at the top decisionmaking levels in the executive and judicial branch as well.” Id., at 1838. The definition of “employee” subsequently was modified to exclude the four categories of employees discussed above. The Conference Committee that added the “appointee[s] on the policymaking level” exception made clear the separate nature of that exception: “It is the intention of the conferees to exempt elected officials and members of their personal staffs, and persons appointed by such elected officials as advisors or to policymaking positions at the highest levels of the departments or agencies of State or local governments, such as GREGORY v. ASHCROFT 485 452 Opinion of White, J. cabinet officers, and persons with comparable responsibilities at the local level.” H. R. Conf. Rep. No. 92-899, pp. 15-16 (1972) (emphasis added). The italicized “or” in that statement indicates, contrary to petitioners’ argument, that appointed officials need not be advisers to be covered by the exception. Rather, it appears that “Congress intended two categories: policymakers, who need not be advisers; and advisers, who need not be policymakers.” EEOC n. Massachusetts, 858 F. 2d 52, 56 (CAI 1988). This reading is confirmed by a statement by one of the House Managers, Representative Erlenbom, who explained that “[i]n the conference, an additional qualification was added, exempting those people appointed by officials at the State and local level in policymaking positions.” 118 Cong. Rec., at 7567. In addition, the phrase “the highest levels” in the Conference Report suggests that Congress’ intent was to limit the exception “down the chain of command, and not so much across agencies or departments.” EEOC v. Massachusetts, 858 F. 2d, at 56. I also agree with the First Circuit’s conclusion that even lower court judges fall within the exception because “each judge, as a separate and independent judicial officer, is at the very top of his particular ‘policymaking’ chain of command, responding . . . only to a higher appellate court.” Ibid. For these reasons, I would hold that petitioners are excluded from the coverage of the ADEA because they are “appointee[s] on the policymaking level” under 29 U. S. C. § 630(f).3 3 The dissent argues that we should defer to the EEOC’s view regarding the scope of the “policymaking level” exception. See post, at 493-494. I disagree. The EEOC’s position is not embodied in any formal issuance from the agency, such as a regulation, guideline, policy statement, or administrative adjudication. Instead, it is merely the EEOC’s litigating position in recent lawsuits. Accordingly, it is entitled to little if any deference. See, e. g., Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 486 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. I join Parts I and III of the Court’s opinion and concur in its judgment. Justice Blackmun, with whom Justice Marshall joins, dissenting. I agree entirely with the cogent analysis contained in Part I of Justice White’s opinion, ante, at 474-481. For the reasons well stated by Justice White, the question we must resolve is whether appointed Missouri state judges are excluded from the general prohibition of mandatory retirement that Congress established in the federal Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §§ 621-634. I part company with Justice White, however, in his determination that appointed state judges fall within the narrow exclusion from ADEA coverage that Congress created for an “appointee on the policymaking level.” § 630(f). I For two reasons, I do not accept the notion that an appointed state judge is an “appointee on the policymaking level.” First, even assuming that judges may be described as policymakers in certain circumstances, the structure and legislative history of the policymaker exclusion make clear that judges are not the kind of policymakers whom Congress intended to exclude from the ADEA’s broad reach. Second, 212-213 (1988); St. Agnes Hospital v. Sullivan, 284 U. S. App. D. C. 396, 401, 905 F. 2d 1563, 1568 (1990). Although the dissent does cite to an EEOC decision involving the policymaking exception in Title VII, see post, at 494, that decision did not state, even in dicta, that the exception is limited to those who work closely with elected officials. Rather, it merely stated that the exception applies to officials “on the highest levels of state or local government.” CCH EEOC Decisions (1983) U 6725. In any event, the EEOC’s position is, for the reasons discussed above, inconsistent with the plain language of the statute at issue. “[N]o deference is due to agency interpretations at odds with the plain language of the statute itself.” Public Employees Retirement System of Ohio v. Betts, 492 U. S. 158, 171 (1989). GREGORY v. ASHCROFT 487 452 Blackmun, J., dissenting whether or not a plausible argument may be made for judges’ being policymakers, I would defer to the EEOC’s reasonable construction of the ADEA as covering appointed state judges. A Although it may be possible to define an appointed judge as a “policymaker” with only a dictionary as a guide,1 we have an obligation to construe the exclusion of an “appointee on the policymaking level” with a sensitivity to the context in which Congress placed it. In construing an undefined statutory term, this Court has adhered steadfastly to the rule that “‘“‘words grouped in a list should be given related meaning,””” Dole v. Steelworkers, 494 U. S. 26, 36 (1990), quoting Massachusetts n. Morash, 490 U. S. 107, 114-115 (1989), quoting Schreiber v. Burlington Northern, Inc., 472 U. S. 1, 8 (1985), quoting Securities Industry Assn. v. Board of Governors, FRS, 468 U. S. 207, 218 (1984), and that “‘in expounding a statute, we [are] not. . . guided by a single sentence or member of a sentence, but look to the provisions of ’Justice White finds the dictionary definition of “policymaker” broad enough to include the Missouri judges involved in this case, because judges resolve disputes by choosing “‘from among alternatives’ and elaborate their choices in order ‘to guide and . . . determine present and future decisions.’” Ante, at 482. See also 898 F. 2d 598, 601 (CA8 1990) (case below), quoting EEOC v. Massachusetts, 858 F. 2d 52, 55 (CAI 1988). I hesitate to classify judges as policymakers, even at this level of abstraction. Although some part of a judge’s task may be to fill in the interstices of legislative enactments, the primary task of a judicial officer is to apply rules reflecting the policy choices made by, or on behalf of, those elected to legislative and executive positions. A judge is first and foremost one who resolves disputes, and not one charged with the duty to fashion broad policies establishing the rights and duties of citizens. That task is reserved primarily for legislators. See EEOC v. Vermont, 904 F. 2d 794, 800-801 (CA2 1990). Nor am I persuaded that judges should be considered policymakers because they sometimes fashion court rules and are otherwise involved in the administration of the state judiciary. See In re Stout, 521 Pa. 571, 583-586, 559 A. 2d 489, 495-497 (1989). These housekeeping tasks are at most ancillary to a judge’s primary function described above. 488 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. the whole law, and to its object and policy.’” Morash, 490 U. S., at 115, quoting Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 51 (1987). Applying these maxims of statutory construction, I conclude that an appointed state judge is not the kind of “policymaker” whom Congress intended to exclude from the protection of the ADEA. The policymaker exclusion is placed between the exclusion of “any person chosen by such [élected] officer to be on such officer’s personal staff” and the exclusion of “an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.” See 29 U. S. C. § 630(f). Reading the policymaker exclusion in light of the other categories of employees listed with it, I conclude that the class of “ap-pointee[s] on the policymaking level” should be limited to those officials who share the characteristics of personal staff members and immediate advisers, i. e., those who work closely with the appointing official and are directly accountable to that official. Additionally, I agree with the reasoning of the Second Circuit in EEOC v. Vermont, 904 F. 2d 794 (1990): “Had Congress intended to except a wide-ranging category of policymaking individuals operating wholly independently of the elected official, it would probably have placed that expansive category at the end of the series, not in the middle.” Id., at 798. Because appointed judges are not accountable to the official who appoints them and are precluded from working closely with that official once they have been appointed, they are not “appointee[s] on the policymaking level” for purposes of 29 U. S. C. § 630(f).2 21 disagree with Justice White’s suggestion that this reading of the policymaking exclusion renders it superfluous. Ante, at 483. There exist policymakers who work closely with an appointing official but who are appropriately classified as neither members of his “personal staff” nor “immediate adviser[s] with respect to the exercise of the constitutional or legal powers of the office.” Among others, certain members of the Governor’s GREGORY v. ASHCROFT 489 452 Blackmun, J., dissenting B The evidence of Congress’ intent in enacting the policy-making exclusion supports this narrow reading. As noted by Justice White, ante, at 484, there is little in the legislative history of § 630(f) itself to aid our interpretive endeavor. Because Title VII of the Civil Rights Act of 1964, § 701(f), as amended, 42 U. S. C. §2000e(f), contains language identical to that in the ADEA’s policymaking exclusion, however, we accord substantial weight to the legislative history of the cognate Title VII provision in construing § 630(f). See Lorillard v. Pons, 434 U. S. 575, 584 (1978) (noting that “the prohibitions of the ADEA were derived in haec verba from Title VII”). See also Trans World Airlines, Inc. n. Thurston, 469 U. S. Ill, 121 (1985); Oscar Mayer & Co. v. Evans, 441 U. S. 750, 756 (1979); EEOC v. Vermont, 904 F. 2d, at 798. When Congress decided to amend Title VII to include States and local governments as employers, the original bill did not contain any employee exclusion. As Justice White notes, ante, at 484, the absence of a provision excluding certain state employees was a matter of concern for Senator Ervin, who commented that the bill, as reported, did not contain a provision “to the effect that the EEOC will not have jurisdiction over . . . State judges, whether they are elected or appointed to office . . . .” 118 Cong. Rec. 1677 (1972). Because this floor comment refers to appointed judges, Justice White concludes that the later amendment containing the exclusion of “an appointee on the policymaking level” was drafted in response to the concerns raised by Senator Ervin and others, ante, at 484-485, and therefore should be read to include judges. Even if the only legislative history available was the above-quoted statement of Senator Ervin and the final Cabinet and hign level state agency officials well might be covered by the policymaking exclusion, as I construe it. 490 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. amendment containing the policymaking exclusion, I would be reluctant to accept Justice White’s analysis. It would be odd to conclude that the general exclusion of those “on the policymaking level” was added in response to Senator Ervin’s very specific concern about appointed judges. Surely, if Congress had desired to exclude judges—and was responding to a specific complaint that judges would be within the jurisdiction of the EEOC—it would have chosen far clearer language to accomplish this end.3 In any case, a more detailed look at the genesis of the policymaking exclusion seriously undermines the suggestion that it was intended to include appointed judges. After commenting on the absence of an employee exclusion, Senator Ervin proposed the following amendment: “[T]he term ‘employee’ as set forth in the original act of 1964 and as modified by the pending bill shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such person to advise him in respect to the exercise of the constitutional or legal powers of his office.” 118 Cong. Eec. 4483 (1972). Noticeably absent from this proposed amendment is any reference to those on the policymaking level or to judges. Senator Williams then suggested expanding the proposed amendment to include the personal staff of the elected individual, leading Senators Williams and Ervin to engage in the following discussion about the purpose of the amendment: 3The majority acknowledges this anomaly by noting that “‘appointee [on] the policymaking level,’ particularly in the context of the other exceptions that surround it, is an odd way for Congress to exclude judges; a plain statement that judges are not ‘employees’ would seem the most efficient phrasing.” Ante, at 467. The majority dismisses this objection not by refuting it, but by noting that “we are not looking for a plain statement that judges are excluded.” Ibid. For the reasons noted in Part I of Justice White’s opinion, this reasoning is faulty; appointed judges are covered unless they fall within the enumerated exclusions. GREGORY v. ASHCROFT 491 452 Blackmun, J., dissenting “Mr. WILLIAMS: .... “. . . First, State and local governments are now included under the bill as employers. The amendment would provide, for the purposes of the bill and for the basic law, that an elected individual is not an employee and, th[e]refore, the law could not cover him. The next point is that the elected official would, in his position as an employer, not be covered and would be exempt in the employment of certain individuals. . . [B]asically the purpose of the amendment. . . [is] to exempt from coverage those who are chosen by the Governor or the mayor or the county supervisor, whatever the elected official is, and who are in a close personal relationship and an immediate relationship with him. Those who are his first line of advisers. Is that basically the purpose of the Senator’s amendment? “Mr. ERVIN: I would say to my good friend from New Jersey that that is the purpose of the amendment.” Id., at 4492-4493. Following this exchange, Senator Ervin’s amendment was expanded to exclude “any person chosen by such officer to be a personal assistant.” Id., at 4493. The Senate adopted these amendments, voting to exclude both personal staff members and immediate advisers from the scope of Title VIL The policymaker exclusion appears to have arisen from Senator Javits’ concern that the exclusion for advisers would sweep too broadly, including hundreds of functionaries such as “lawyers, . . . stenographers, subpena servers, researchers, and so forth.” Id., at 4097. Senator Javits asked “to have overnight to check into what would be the status of that rather large group of employees,” noting that he “realize[d] that. . . Senator [Ervin was]. . . seeking to confine it to the higher officials in a policymaking or policy advising capacity.” 492 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. Ibid. In an effort to clarify his point, Senator Javits later stated: “The other thing, the immediate advisers, I was thinking more in terms of a cabinet, of a Governor who would call his commissioners a cabinet, or he may have a cabinet composed of three or four executive officials, or five or six, who would do the main and important things. That is what I would define those things expressly to mean.” Id., at 4493. Although Senator Ervin assured Senator Javits that the exclusion of personal staff and advisers affected only the classes of employees that Senator Javits had mentioned, ibid., the Conference Committee eventually adopted a specific exclusion of an “appointee on the policymaking level” as well as the exclusion of personal staff and immediate advisers contained in the Senate bill. In explaining the scope of the exclusion, the conferees stated: “It is the intention of the conferees to exempt elected officials and members of their personal staffs, and persons appointed by such elected officials as advisors or to policymaking positions at the highest levels of the departments or agencies of State or local governments, such as cabinet officers, and persons with comparable responsibilities at the local level. It is the conferees!?] intent that this exemption shall be construed narrowly.” S. Conf. Rep. No. 92-681, pp. 15-16 (1972). The foregoing history decisively refutes the argument that the policymaker exclusion was added in response to Senator Ervin’s concern that appointed state judges would be protected by Title VII. Senator Ervin’s own proposed amendment did not exclude those on the policymaking level. Indeed, Senator Ervin indicated that all of the policymakers he sought to have excluded from the coverage of Title VII were encompassed in the exclusion of personal staff and immediate advisers. It is obvious that judges are neither staff nor im GREGORY v. ASHCROFT 493 452 Blackmun, J., dissenting mediate advisers of any elected official. The only indication as to whom Congress understood to be “appointee[s] on the policymaking level” is Senator Javits’ reference to members of the Governor’s cabinet, echoed in the Conference Committee’s use of “cabinet officers” as an example of the type of appointee at the policymaking level excluded from Title Vil’s definition of “employee.” When combined with the Conference Committee’s exhortation that the exclusion be construed narrowly, this evidence indicates that Congress did not intend appointed state judges to be excluded from the reach of Title VII or the ADE A. C This Court has held that when a statutory term is ambiguous or undefined, a court construing the statute should defer to a reasonable interpretation of that term proffered by the agency entrusted with administering the statute. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). Thus, even were I to conclude that one might read the exclusion of an “appointee on the policymaking level” to include state judges, our precedent would compel me to accept the EEOC’s contrary reading of the exclusion if it were a “permissible” interpretation of this ambiguous term. Id., at 843. This Court has recognized that “it is axiomatic that the EEOC’s interpretation of Title VII, for which it has primary enforcement responsibility, need not be the best one by grammatical or any other standards. Rather, the EEOC’s interpretation of ambiguous language need only be reasonable to be entitled to deference.” EEOC v. Commercial Office Products Co., 486 U. S. 107, 115 (1988). The EEOC’s interpretation of ADE A provisions is entitled to the same deference as its interpretation of analogous provisions in Title VII. See Oscar Mayer & Co. v. Evans, 441 U. S., at 761, citing Griggs v. Duke Power Co., 401 U. S. 424, 434 (1971). 494 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. The EEOC consistently has taken the position that an appointed judge is not an “appointee on the policymaking level” within the meaning of 29 U. S. C. § 630(f). See EEOC v. Vermont, 904 F. 2d 794 (CA2 1990); EEOC v. Massachusetts, 858 F. 2d 52 (CAI 1988); EEOC v. Illinois, 721 F. Supp. 156 (ND Ill. 1989). Relying on the legislative history detailed above, the EEOC has asserted that Congress intended the policymaker exclusion to include only “ ‘an elected official’s first line advisers.’” EEOC v. Massachusetts, 858 F. 2d, at 55. See also CCH EEOC Decisions (1983) 516725 (discussing the meaning of the policymaker exclusion under Title VII, and stating that policymakers “must work closely with elected officials and their advisors in developing policies that will implement the overall goals of the elected officials”). As is evident from the foregoing discussion, I believe this to be a correct reading of the statute and its history. At a minimum, it is a “permissible” reading of the indisputably ambiguous term “appointee on the policymaking level.” Accordingly, I would defer to the EEOC’s reasonable interpretation of this term.4 4 Relying on Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 (1988), Justice White would conclude that the EEOC’s view of the scope of the policymaking exclusion is entitled to “little if any deference” because it is “merely the EEOC’s litigating position in recent lawsuits.” Ante, at 485, n. 3. This case is distinguishable from Bowen, however, in two important respects. First, unlike in Bowen, where the Court declined to defer “to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice,” 488 U. S., at 212, the EEOC here has issued an administrative ruling construing Title Vil’s cognate policy-making exclusion that is entirely consistent with the agency’s subsequent “litigation position” that appointed judges are not the kind of officials on the policymaking level whom Congress intended to exclude from ADEA coverage. See CCH EEOC Decisions (1983) 16725. Second, the Court in Bowen emphasized that the agency had failed to offer “a reasoned and consistent view of the scope of” the relevant statute and had proffered an interpretation of the statute that was “contrary to the narrow view of that provision advocated in past cases.” See 488 U. S., at 212-213. In contrast, however, the EEOC never has wavered from its view that the GREGORY v. ASHCROFT 495 452 Blackmun, J., dissenting II The Missouri constitutional provision mandating the retirement of a judge who reaches the age of 70 violates the ADEA and is, therefore, invalid.5 Congress enacted the ADEA with the express purpose “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U. S. C. §621. Congress provided for only limited exclusions from the coverage of the ADEA, and exhorted courts applying this law to construe such exclusions narrowly. The statute’s structure and legislative history reveal that Congress did not intend an appointed state judge to be beyond the scope of the ADEA’s protective reach. Further, the EEOC, which is charged with the enforcement of the ADEA, has determined that an appointed state judge is covered by the ADEA. This Court’s precedent dictates that we defer to the EEOC’s permissible interpretation of the ADEA. I dissent. policymaking exclusion does not apply to appointed judges. Thus, this simply is not a case in which a court is asked to defer to “nothing more than an agency’s convenient litigating position.” Id., at 213. For all the reasons that deference was inappropriate in Bowen, it is appropriate here. 6 Because I conclude that the challenged Missouri constitutional provision violates the ADEA, I need not consider petitioners’ alternative argument that the mandatory retirement provision violates the Fourteenth Amendment to the United States Constitution. See Carnival Cruise Lines, Inc. v. Shute, 499 U. S. 585, 589-590 (1991). 496 OCTOBER TERM, 1990 Syllabus 501 U. S. MASSON v. NEW YORKER MAGAZINE, INC., ET al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 89-1799. Argued January 14, 1991—Decided June 20, 1991 Petitioner Masson, a psychoanalyst, became disillusioned with Freudian psychology while serving as projects director of the Sigmund Freud Archives, and was fired after advancing his own theories. Thereafter, respondent Malcolm, an author and contributor to respondent New Yorker Magazine, taped several interviews with Masson and wrote a lengthy article on his relationship with the archives. One of Malcolm’s narrative devices consists of enclosing lengthy passages attributed to Masson in quotation marks. Masson allegedly expressed alarm about several errors in those passages before the article was published. After its publication, and with knowledge of Masson’s allegations that it contained defamatory material, respondent Alfred A. Knopf, Inc., published the work as a book, which portrayed Masson in a most unflattering light. He brought an action for libel under California law in the Federal District Court, concentrating on passages alleged to be defamatory, six of which are before this Court. In each instance, the quoted statement does not appear in the taped interviews. The parties dispute whether there were additional untaped interviews, the notes from which Malcolm allegedly transcribed. The court granted respondents’ motion for summary judgment. It concluded that the alleged inaccuracies were substantially true or were rational interpretations of ambiguous conversations, and therefore did not raise a jury question of actual malice, which is required when libel is alleged by a public figure. The Court of Appeals affirmed. The court found, among other things, that one passage—in which Masson was quoted as saying that archives officials had considered him an “intellectual gigolo” while the tape showed that he said he “was much too junior within the hierarchy of analysis for these important. . . analysts to be caught dead with [him]”—was not defamatory and would not be actionable under the “incremental harm” doctrine. Held: 1. The evidence presents a jury question whether Malcolm acted with requisite knowledge of falsity or reckless disregard as to the truth or falsity of five of the passages. Pp. 509-525. (a) As relevant here, the First Amendment limits California’s libel law by requiring that a public figure prove by clear and convincing evidence that the defendant published the defamatory statement with MASSON v. NEW YORKER MAGAZINE, INC. 497 496 Syllabus actual malice. However, in place of the term actual malice, it is better practice that jury instructions refer to publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity. Pp. 509-511. (b) A trier of fact in this case could find that the reasonable reader would understand the quotations attributed to Masson to be nearly verbatim reports of his statements. In general, quotation marks indicate a verbatim reproduction, and quotations add authority to a statement and credibility to an author’s work. A fabricated quotation may injure reputation by attributing an untrue factual assertion to the speaker, or by indicating a negative personal trait or an attitude the speaker does not hold. While some quotations do not convey that the speaker actually said or wrote the quoted material, such is not the case here. Malcolm’s work gives the reader no clue that the quotations are anything but the reproductions of actual conversations, and the work was published in a magazine that enjoyed a reputation for scrupulous factual inquiry. These factors could lead a reader to take the quotations at face value. Pp. 511-513. (c) The common law of libel overlooks minor inaccuracies and concentrates upon substantial truth. Thus, a deliberate alteration of a plaintiff’s words does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan, 376 U. S. 254, 279-280, and Gertz v. Robert Welch, Inc., 418 U. S. 323, 341, 342, unless it results in a material change in the statement’s meaning. While the use of quotations to attribute words not in fact spoken is important to that inquiry, the idea that any alteration beyond correction of grammar or syntax by itself proves falsity is rejected. Even if a statement has been recorded, the existence of both a speaker and a reporter, the translation between two media, the addition of punctuation, and the practical necessity to edit and make intelligible a speakers’ perhaps rambling comments, make it misleading to suggest that a quotation will be reconstructed with complete accuracy. However, if alterations give a different meaning to a speaker’s statements, bearing upon their defamatory character, then the device of quotations might well be critical in finding the words actionable. Pp. 513-518. (d) Although the Court of Appeals applied a test of substantial truth, it erred in going one step further and concluding that an altered quotation is protected so long as it is a “rational interpretation” of the actual statement. The protection for rational interpretation serves First Amendment principle by allowing an author the interpretive license that is necessary when relying upon ambiguous sources; but where a writer uses a quotation that a reasonable reader would conclude purports to be a verbatim repetition of the speaker’s statement, the quota 498 OCTOBER TERM, 1990 Syllabus 501 U. S. tion marks indicate that the author is not interpreting the speaker’s ambiguous statement, but is attempting to convey what the speaker said. Time, Inc. v. Pape, 401 U. S. 279; Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, distinguished. Pp. 518-520. (e) In determining whether Masson has shown sufficient falsification to survive summary judgment, it must be assumed, except where otherwise evidenced by the tape recordings’ transcripts, that he is correct in denying that he made the statements Malcolm attributed to him, and that Malcolm reported with knowledge or reckless disregard of the differences between what he said and what was quoted. Malcolm’s typewritten notes should not be considered, since Masson denied making the statements, and since the record contains substantial additional evidence to support a jury determination under a clear and convincing evidence standard that Malcolm deliberately or recklessly altered the quotations. While she contests Masson’s allegations, only a trial on the merits will resolve the factual dispute. Pp. 520-521. (f) Five of the six published passages differ materially in meaning from the tape-recorded statements so as to create an issue of fact for a jury as to falsity. Whether the “intellectual gigolo” passage is defamatory is a question of California law, and to the extent that the Court of Appeals based its conclusion on the First Amendment, it was mistaken. Moreover, an “incremental harm” doctrine—which measures the incremental reputational harm inflicted by the challenged statements beyond the harm imposed by the nonactionable remainder of the publication—is not compelled as a matter of First Amendment protection for speech, since it does not bear on whether a defendant has published a statement with knowledge of falsity or reckless disregard of whether it was false or not. Pp. 521-525. 2. On remand, the Court of Appeals should consider Masson’s argument that the District Court erred in granting summary judgment to the New Yorker Magazine, Inc., and Alfred A. Knopf, Inc., on the basis of their respective relations with Malcolm or the lack of any independent actual malice, since the court failed to reach his argument because of its disposition with respect to Malcolm. P. 525. 895 F. 2d 1535, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Marshall, Blackmun, Stevens, O’Connor, and Souter, JJ., joined, and in Parts I, II-A, II-D, and III-A of which White and Scalia, JJ., joined. White, J., filed an opinion concurring in part and dissenting in part, in which Scalia, J., joined, post, p. 525. MASSON v. NEW YORKER MAGAZINE, INC. 499 496 Opinion of the Court Charles 0. Morgan, Jr., argued the cause for petitioner. With him on the briefs was Paul Richard Eleven. H. Bartow Farr III argued the cause for respondents. With him on the brief were Paul M. Smith, Richard G. Taranto, Charles W. Kenady, and Karl Olson.* Justice Kennedy delivered the opinion of the Court. In this libel case, a public figure claims he was defamed by an author who, with full knowledge of the inaccuracy, used quotation marks to attribute to him comments he had not made. The First Amendment protects authors and journalists who write about public figures by requiring a plaintiff to prove that the defamatory statements were made with what we have called "actual malice,” a term of art denoting deliberate or reckless falsification. We consider in this opinion whether the attributed quotations had the degree of falsity required to prove this state of mind, so that the public figure can defeat a motion for summary judgment and proceed to a trial on the merits of the defamation claim. I Petitioner Jeffrey Masson trained at Harvard University as a Sanskrit scholar, and in 1970 became a professor of Sanskrit & Indian Studies at the University of Toronto. He spent eight years in psychoanalytic training, and qualified as *Briefs of amici curiae urging reversal were filed for Certain Journalists and Academics by Stewart Abercrombie Baker and Michael P. McDonald; and for the Mountain States Legal Foundation by 'William Perry Pendley. Briefs of amici curiae urging affirmance were filed for the Association of American Publishers, Inc., et al. by Robert G. Sugarman, R. Bruce Rich, Slade R. Metcalf, and Laura R. Handman; for Home Box Office, Inc., et al. by P. Cameron DeVore, Daniel M. Waggoner, and Ronald E. Guttman; for the Reporters Committee for Freedom of the Press et al. by Joseph R. Bankoff, James D. Miller, Jane E. Kirtley, J. Laurent Scharff, W. Terry Maguire, René P. Milam, and Bruce W. Sanford; and for The Time Inc. Magazine Co. et al. by Roslyn A. Mazer, Paul R. Taskier, Richard M. Schmidt, Jr., Charles S. Sims, Lee Levine, James E. Grossberg, and Mark Goodman. 500 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. an analyst in 1978. Through his professional activities, he came to know Dr. Kurt Eissler, head of the Sigmund Freud Archives, and Dr. Anna Freud, daughter of Sigmund Freud and a major psychoanalyst in her own right. The Sigmund Freud Archives, located at Maresfield Gardens outside of London, serves as a repository for materials about Freud, including his own writings, letters, and personal library. The materials, and the right of access to them, are of immense value to those who study Freud and his theories, life, and work. In 1980, Eissler and Anna Freud hired petitioner as projects director of the archives. After assuming his post, petitioner became disillusioned with Freudian psychology. In a 1981 lecture before the Western New England Psychoanalytical Society in New Haven, Connecticut, he advanced his theories of Freud. Soon after, the board of the archives terminated petitioner as projects director. Respondent Janet Malcolm is an author and a contributor to respondent The New Yorker, a weekly magazine. She contacted petitioner in 1982 regarding the possibility of an article on his relationship with the archives. He agreed, and the two met in person and spoke by telephone in a series of interviews. Based on the interviews and other sources, Malcolm wrote a lengthy article. One of Malcolm’s narrative devices consists of enclosing lengthy passages in quotation marks, reporting statements of Masson, Eissler, and her other subjects. During the editorial process, Nancy Franklin, a member of the fact-checking department at The New Yorker, called petitioner to confirm some of the facts underlying the article. According to petitioner, he expressed alarm at the number of errors in the few passages Franklin discussed with him. Petitioner contends that he asked permission to review those portions of the article which attributed quotations or information to him, but was brushed off with a never-fulfilled prom- MASSON v. NEW YORKER MAGAZINE, INC. 501 496 Opinion of the Court ise to “get back to [him].” App. 67. Franklin disputes petitioner’s version of their conversation. Id., at 246-247. The New Yorker published Malcolm’s piece in December 1983, as a two-part series. In 1984, with knowledge of at least petitioner’s general allegation that the article contained defamatory material, respondent Alfred A. Knopf, Inc., published the entire work as a book, entitled In the Freud Archives. Malcolm’s work received complimentary reviews. But this gave little joy to Masson, for the book portrays him in a most unflattering light. According to one reviewer: “Masson the promising psychoanalytic scholar emerges gradually, as a grandiose egotist—mean-spirited, selfserving, full of braggadocio, impossibly arrogant and, in the end, a self-destructive fool. But it is not Janet Malcolm who calls him such: his own words reveal this psychological profile—a self-portrait offered to us through the efforts of an observer and listener who is, surely, as wise as any in the psychoanalytic profession.” Coles, Freudianism Confronts Its Malcontents, Boston Globe, May 27, 1984, pp. 58, 60. Petitioner wrote a letter to the New York Times Book Review calling the book “distorted.” In response, Malcolm stated: “Many of [the] things Mr. Masson told me (on tape) were discreditable to him, and I felt it best not to include them. Everything I do quote Mr. Masson as saying was said by him, almost word for word. (The ‘almost’ refers to changes made for the sake of correct syntax.) I would be glad to play the tapes of my conversation with Mr. Masson to the editors of The Book Review whenever they have 40 or 50 short hours to spare. ” App. 222-223. Petitioner brought an action for libel under California law in the United States District Court for the Northern District of California. During extensive discovery and repeated 502 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. amendments to the complaint, petitioner concentrated on various passages alleged to be defamatory, dropping some and adding others. The tape recordings of the interviews demonstrated that petitioner had, in fact, made statements substantially identical to a number of the passages, and those passages are no longer in the case. We discuss only the passages relied on by petitioner in his briefs to this Court. Each passage before us purports to quote a statement made by petitioner during the interviews. Yet in each instance no identical statement appears in the more than 40 hours of taped interviews. Petitioner complains that Malcolm fabricated all but one passage; with respect to that passage, he claims Malcolm omitted a crucial portion, rendering the remainder misleading. (a) “Intellectual Gigolo.” Malcolm quoted a description by petitioner of his relationship with Eissler and Anna Freud as follows: “ ‘Then I met a rather attractive older graduate student and I had an affair with her. One day, she took me to some art event, and she was sorry afterward. She said, “Well, it is very nice sleeping with you in your room, but you’re the kind of person who should never leave the room—you’re just a social embarrassment anywhere else, though you do fine in your own room.” And you know, in their way, if not in so many words, Eissler and Anna Freud told me the same thing. They like me well enough “in my own room.” They loved to hear from me what creeps and dolts analysts are. I was like an intellectual gigolo—you get your pleasure from him, but you don’t take him out in public. . . .’” In the Freud Archives 38. The tape recordings contain the substance of petitioner’s reference to his graduate student friend, App. 95, but no suggestion that Eissler or Anna Freud considered him, or that he considered himself, an “‘intellectual gigolo.’” Instead, petitioner said: MASSON u NEW YORKER MAGAZINE, INC. 503 496 Opinion of the Court “They felt, in a sense, I was a private asset but a public liability. . . . They liked me when I was alone in their living room, and I could talk and chat and tell them the truth about things and they would tell me. But that I was, in a sense, much too junior within the hierarchy of analysis, for these important training analysts to be caught dead with me.” Id., at 104. (b) “Sex, Women, Fun” Malcolm quoted petitioner as describing his plans for Maresfield Gardens, which he had hoped to occupy after Anna Freud’s death: “ Tt was a beautiful house, but it was dark and sombre and dead. Nothing ever went on there. I was the only person who ever came. I would have renovated it, opened it up, brought it to life. Maresfield Gardens would have been a center of scholarship, but it would also have been a place of sex, women, fun. It would have been like the change in The Wizard of Oz, from black-and-white into color.’” In the Freud Archives 33. The tape recordings contain a similar statement, but in place of the references to “sex, women, fun” and The Wizard of Oz, petitioner commented: “[IJt is an incredible storehouse. I mean, the library, Freud’s library alone is priceless in terms of what it contains: all his books with his annotations in them; the Schreber case annotated, that kind of thing. It’s fascinating.” App. 127. Petitioner did talk, earlier in the interview, of his meeting with a London analyst: “I like him. So, and we got on very well. That was the first time we ever met and you know, it was buddybuddy, and we were to stay with each other and [laughs] we were going to pass women on to each other, and we were going to have a great time together when I lived in the Freud house. We’d have great parties there and we were [laughs]— 504 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. “. . . going to really, we were going to live it up.” Id., at 129. (c) “It Sounded Better.” Petitioner spoke with Malcolm about the history of his family, including the reasons his grandfather changed the family name from Moussaieff to Masson, and why petitioner adopted the abandoned family name as his middle name. The article contains the passage: “ ‘My father is a gem merchant who doesn’t like to stay in any one place too long. His father was a gem merchant, too—a Bessarabian gem merchant, named Moussaieff, who went to Paris in the twenties and adopted the name Masson. My parents named me Jeffrey Lloyd Masson, but in 1975 I decided to change my middle name to Moussaieff—it sounded better.’” In the Freud Archives 36. In the most similar tape-recorded statement, Masson explained at considerable length that his grandfather had changed the family name from Moussaieff to Masson when living in France, “[j]ust to hide his Jewishness.” Petitioner had changed his last name back to Moussaieff, but his then-wife Terry objected that “nobody could pronounce it and nobody knew how to spell it, and it wasn’t the name that she knew me by.” Petitioner had changed his name to Moussaieff because he “just liked it.” “[I]t was sort of part of analysis: a return to the roots, and your family tradition and so on.” In the end, he had agreed with Terry that “it wasn’t her name after all,” and used Moussaieff as a middle instead of a last name. App. 87-89. (d) “I Don’t Know Why I Put It In. ” The article recounts part of a conversation between Malcolm and petitioner about the paper petitioner presented at his 1981 New Haven lecture: “[I] asked him what had happened between the time of the lecture and the present to change him from a Freud- MASSON v. NEW YORKER MAGAZINE, INC. 505 496 Opinion of the Court ian psychoanalyst with somewhat outré views into the bitter and belligerent anti-Freudian he had become. “Masson sidestepped my question. ‘You’re right, there was nothing disrespectful of analysis in that paper,’ he said. ‘That remark about the sterility of psychoanalysis was something I tacked on at the last minute, and it was totally gratuitous. I don’t know why I put it in.’” In the Freud Archives 53. The tape recordings instead contain the following discussion of the New Haven lecture: Masson: “So they really couldn’t judge the material. And, in fact, until the last sentence I think they were quite fascinated. I think the last sentence was an in, [sic] possibly, gratuitously offensive way to end a paper to a group of analysts. Uh,—” Malcolm: “What were the circumstances under which you put it [in]? ...” Masson: “That it was, was true. “. . . I really believe it. I didn’t believe anybody would agree with me. “. . . But I felt I should say something because the paper’s still well within the analytic tradition in a sense. . . . “. . . It’s really not a deep criticism of Freud. It contains all the material that would allow one to criticize Freud but I didn’t really do it. And then I thought, I really must say one thing that I really believe, that’s not going to appeal to anybody and that was the very last sentence. Because I really do believe psychoanalysis is entirely sterile . . . .” App. 176. (e) “Greatest Analyst Who Ever Lived. ” The article contains the following self-explanatory passage: 506 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. “A few days after my return to New York, Masson, in a state of elation, telephoned me to say that Farrar, Straus & Giroux has taken The Assault on Truth [Masson’s book]. ‘Wait till it reaches the best-seller list, and watch how the analysts will crawl,’ he crowed. ‘They move whichever way the wind blows. They will want me back, they will say that Masson is a great scholar, a major analyst—after Freud, he’s the greatest analyst who ever lived. Suddenly they’ll be calling, begging, cajoling: “Please take back what you’ve said about our profession; our patients are quitting.” They’ll try a short smear campaign, then they’ll try to buy me, and ultimately they’ll have to shut up. Judgment will be passed by history. There is no possible refutation of this book. It’s going to cause a revolution in psychoanalysis. Analysis stands or falls with me now.’” In the Freud Archives 162. This material does not appear in the tape recordings. Petitioner did make the following statements on related topics in one of the taped interviews with Malcolm: “. . . I assure you when that book comes out, which I honestly believe is an honest book, there is nothing, you know, mean-minded about it. It’s the honest fruit of research and intellectual toil. And there is not an analyst in the country who will say a single word in favor of it.” App. 136. “Talk to enough analysts and get them right down to these concrete issues and you watch how different it is from my position. It’s utterly the opposite and that’s finally what I realized, that I hold a position that no other analyst holds, including, alas, Freud. At first I thought: Okay, it’s me and Freud against the rest of the analytic world, or me and Freud and Anna Freud and Kur[t] Eissler and Vic Calef and Brian Bird and Sam MASSON v. NEW YORKER MAGAZINE, INC. 507 496 Opinion of the Court Lipton against the rest of the world. Not so, it’s me. it’s me alone.” Id., at 139. The tape of this interview also contains the following exchange between petitioner and Malcolm: Masson: “. . . analysis stands or falls with me now.” Malcolm: “Well that’s a very grandiose thing to say.” Masson: “Yeah, but it’s got nothing to do with me. It’s got to do with the things I discovered.” Id., at 137. (f) “He Had The Wrong Man. ” In discussing the archives’ board meeting at which petitioner’s employment was terminated, Malcolm quotes petitioner as giving the following explanation of Eissler’s attempt to extract a promise of confidentiality: “‘[Eissler] was always putting moral pressure on me. “Do you want to poison Anna Freud’s last days? Have you no heart? You’re going to kill the poor old woman.” I said to him, “What have I done? You’re doing it. You’re firing me. What am I supposed to do—be grateful to you?” “You could be silent about it. You could swallow it. I know it is painful for you. But you could just live with it in silence.” “Why should I do that?” “Because it is the honorable thing to do.” Well, he had the wrong man.’” In the Freud Archives 67. From the tape recordings, on the other hand, it appears that Malcolm deleted part of petitioner’s explanation (italicized below), and petitioner argues that the “wrong man” sentence relates to something quite different from Eissler’s entreaty that silence was “the honorable thing.” In the tape recording, petitioner states: “But it was wrong of Eissler to do that, you know. He was constantly putting various kinds of moral pressure on me and, ‘Do you want to poison Anna Freud’s last days? Have you no heart?’ He called me: ‘Have you no heart? You’re going to kill the poor old woman. 508 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Have you no heart? Think of what she’s done for you and you are now willing to do this to her.’ I said, ‘What have I, what have I done? You did it. You fired me. What am I supposed to do: thank you? be grateful to you?’ He said, ‘Well you could never talk about it. You could be silent about it. You could swallow it. I know it’s painful for you but just live with it in silence.’ ‘Fuck you,’ I said, ‘Why should I do that? Why? You know, why should one do that?’ ‘Because it’s the honorable thing to do and you will save face. And who knows ? If you never speak about it and you quietly and humbly accept our judgment, who knows that in a few years if we don’t bring you back?’ Well, he had the wrong man.” App. 215-216. Malcolm submitted to the District Court that not all of her discussions with petitioner were recorded on tape, in particular conversations that occurred while the two of them walked together or traveled by car, while petitioner stayed at Malcolm’s home in New York, or while her tape recorder was inoperable. She claimed to have taken notes of these unrecorded sessions, which she later typed, then discarding the handwritten originals. Petitioner denied that any discussion relating to the substance of the article occurred during his stay at Malcolm’s home in New York, that Malcolm took notes during any of their conversations, or that Malcolm gave any indication that her tape recorder was broken. Respondents moved for summary judgment. The parties agreed that petitioner was a public figure and so could escape summary judgment only if the evidence in the record would permit a reasonable finder of fact, by clear and convincing evidence, to conclude that respondents published a defamatory statement with actual malice as defined by our cases. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255-256 (1986). The District Court analyzed each of the passages and held that the alleged inaccuracies did not raise a jury question. The court found that the allegedly fabricated quotations were either substantially true, or were “ ‘one of a number of possi- MASSON v. NEW YORKER MAGAZINE, INC. 509 496 Opinion of the Court ble rational interpretations’ of a conversation or event that ‘bristled with ambiguities,”’ and thus were entitled to constitutional protection. 686 F. Supp. 1396, 1399 (ND Cal. 1987) (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 512 (1984)). The court also ruled that the “he had the wrong man” passage involved an exercise of editorial judgment upon which the courts could not intrude. 686 F. Supp., at 1403-1404. The Court of Appeals affirmed, with one judge dissenting. 895 F. 2d 1535 (CA9 1989). The court assumed for much of its opinion that Malcolm had deliberately altered each quotation not found on the tape recordings, but nevertheless held that petitioner failed to raise a jury question of actual malice, in large part for the reasons stated by the District Court. In its examination of the “intellectual gigolo” passage, the court agreed with the District Court that petitioner could not demonstrate actual malice because Malcolm had not altered the substantive content of petitioner’s self-description, but went on to note that it did not consider the “intellectual gigolo” passage defamatory, as the quotation merely reported Kurt Eissler’s and Anna Freud’s opinions about petitioner. In any event, concluded the court, the statement would not be actionable under the “ ‘incremental harm branch’ of the ‘libelproof’ doctrine,” id., at 1541 (quoting Herbert n. Lando, 781 F. 2d 298, 310-311 (CA2 1986)). The dissent argued that any intentional or reckless alteration would prove actual malice, so long as a passage within quotation marks purports to be a verbatim rendition of what was said, contains material inaccuracies, and is defamatory. 895 F. 2d, at 1562-1570. We granted certiorari, 498 U. S. 808 (1990), and now reverse. II A Under California law, “[l]ibel is a false and unprivileged publication by writing . . . which exposes any person to ha 510 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. tred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” Cal. Civ. Code Ann. §45 (West 1982). False attribution of statements to a person may constitute libel, if the falsity exposes that person to an injury comprehended by the statute. See Selleck v. Globe International, Inc., 166 Cal. App. 3d 1123, 1132, 212 Cal. Rptr. 838, 844 (1985); Cameron v. Wemick, 251 Cal. App. 2d 890, 60 Cal. Rptr. 102 (1967); Kerby v. Hal Roach Studios, Inc., 53 Cal. App. 2d 207, 213, 127 P. 2d 577, 581 (1942); cf. Baker v. Los Angeles Herald Examiner, 42 Cal. 3d 254, 260-261, 721P. 2d 87, 90-91 (1986). It matters not under California law that petitioner alleges only part of the work at issue to be false. “[T]he test of libel is not quantitative; a single sentence may be the basis for an action in libel even though buried in a much longer text,” though the California courts recognize that “[w]hile a drop of poison may be lethal, weaker poisons are sometimes diluted to the point of impotency.” Washbum v. Wright, 261 Cal. App. 2d 789, 795, 68 Cal. Rptr. 224, 228 (1968). The First Amendment limits California’s libel law in various respects. When, as here, the plaintiff is a public figure, he cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i. e., with “knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. n. Sullivan, 376 U. S. 254, 279-280 (1964). Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author “in fact entertained serious doubts as to the truth of his publication,” St. Amant v. Thompson, 390 U. S. 727, 731 (1968), or acted with a “high degree of awareness of. . . probable falsity,” Garrison v. Louisiana, 379 U. S. 64, 74 (1964). Actual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will. See Greenbelt Cooper- MASSON v. NEW YORKER MAGAZINE, INC. 511 496 Opinion of the Court ative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970). We have used the term actual malice as a shorthand to describe the First Amendment protections for speech injurious to reputation, and we continue to do so here. But the term can confuse as well as enlighten. In this respect, the phrase may be an unfortunate one. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U. S. 657, 666, n. 7 (1989). In place of the term actual malice, it is better practice that jury instructions refer to publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity. This definitional principle must be remembered in the case before us. B In general, quotation marks around a passage indicate to the reader that the passage reproduces the speaker’s words verbatim. They inform the reader that he or she is reading the statement of the speaker, not a paraphrase or other indirect interpretation by an author. By providing this information, quotations add authority to the statement and credibility to the author’s work. Quotations allow the reader to form his or her own conclusions and to assess the conclusions of the author, instead of relying entirely upon the author’s characterization of her subject. A fabricated quotation may injure reputation in at least two senses, either giving rise to a conceivable claim of defamation. First, the quotation might injure because it attributes an untrue factual assertion to the speaker. An example would be a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not. Second, regardless of the truth or falsity of the factual matters asserted within the quoted statement, the attribution may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative-personal trait or an attitude the speaker does not hold. John Lennon once was quoted as saying of 512 OCTOBER TERM, 1990 501 U. S. Opinion of the Court the Beatles, “We’re more popular than Jesus Christ now.” Time, Aug. 12, 1966, p. 38. Supposing the quotation had been a fabrication, it appears California law could permit recovery for defamation because, even without regard to the truth of the underlying assertion, false attribution of the statement could have injured his reputation. Here, in like manner, one need not determine whether petitioner is or is not the greatest analyst who ever lived in order to determine that it might have injured his reputation to be reported as having so proclaimed. A self-condemnatory quotation may carry more force than criticism by another. It is against self-interest to admit one’s own criminal liability, arrogance, or lack of integrity, and so all the more easy to credit when it happens. This principle underlies the elemental rule of evidence which permits the introduction of statements against interest, despite their hearsay character, because we assume “that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true.” Advisory Committee’s Notes on Fed. Rule Evid. 804(b)(3), 28 U. S. C. App., p. 789 (citing Hileman n. Northwest Engineering Co., 346 F. 2d 668 (CA6 1965)). Of course, quotations do not always convey that the speaker actually said or wrote the quoted material. “Punctuation marks, like words, have many uses. Writers often use quotation marks, yet no reasonable reader would assume that such punctuation automatically implies the truth of the quoted material.” Baker v. Los Angeles Examiner, 42 Cal. 3d, at 263, 721 P. 2d, at 92. In Baker, a television reviewer printed a hypothetical conversation between a station vice president and writer/producer, and the court found that no reasonable reader would conclude the plaintiff in fact had made the statement attributed to him. Id., at 267, 721 P. 2d, at 95. Writers often use quotations as in Baker, and a reader will not reasonably understand the quotations to indicate reproduction of a conversation that took place. In other MASSON v. NEW YORKER MAGAZINE, INC. 513 496 Opinion of the Court instances, an acknowledgment that the work is so-called doc-udrama or historical fiction, or that it recreates conversations from memory, not from recordings, might indicate that the quotations should not be interpreted as the actual statements of the speaker to whom they are attributed. The work at issue here, however, as with much journalistic writing, provides the reader no clue that the quotations are being used as a rhetorical device or to paraphrase the speaker’s actual statements. To the contrary, the work purports to be nonfiction, the result of numerous interviews. At least a trier of fact could so conclude. The work contains lengthy quotations attributed to petitioner, and neither Malcolm nor her publishers indicate to the reader that the quotations are anything but the reproduction of actual conversations. Further, the work was published in The New Yorker, a magazine which at the relevant time seemed to enjoy a reputation for scrupulous factual accuracy. These factors would, or at least could, lead a reader to take the quotations at face value. A defendant may be able to argue to the jury that quotations should be viewed by the reader as nonliteral or reconstructions, but we conclude that a trier of fact in this case could find that the reasonable reader would understand the quotations to be nearly verbatim reports of statements made by the subject. C The constitutional question we must consider here is whether, in the framework of a summary judgment motion, the evidence suffices to show that respondents acted with the requisite knowledge of falsity or reckless disregard as to truth or falsity. This inquiry in turn requires us to consider the concept of falsity; for we cannot discuss the standards for knowledge or reckless disregard without some understanding of the acts required for liability. We must consider whether the requisite falsity inheres in the attribution of words to the petitioner which he did not speak. 514 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. In some sense, any alteration of a verbatim quotation is false. But writers and reporters by necessity alter what people say, at the very least to eliminate grammatical and syntactical infelicities. If every alteration constituted the falsity required to prove actual malice, the practice of journalism, which the First Amendment standard is designed to protect, would require a radical change, one inconsistent with our precedents and First Amendment principles. Petitioner concedes that this absolute definition of falsity in the quotation context is too stringent, and acknowledges that “minor changes to correct for grammar or syntax” do not amount to falsity for purposes of proving actual malice. Brief for Petitioner 18, 36-37. We agree, and must determine what, in addition to this technical falsity, proves falsity for purposes of the actual malice inquiry. Petitioner argues that, excepting correction of grammar or syntax, publication of a quotation with knowledge that it does not contain the words the public figure used demonstrates actual malice. The author will have published the quotation with knowledge of falsity, and no more need be shown. Petitioner suggests that by invoking more forgiving standards the Court of Appeals would permit and encourage the publication of falsehoods. Petitioner believes that the intentional manufacture of quotations does not “represen[t] the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies,” Bose Corp., 466 U. S., at 513, and that protection of deliberate falsehoods would hinder the First Amendment values of robust and well-informed public debate by reducing the reliability of information available to the public. We reject the idea that any alteration beyond correction of grammar or syntax by itself proves falsity in the sense relevant to determining actual malice under the First Amendment. An interviewer who writes from notes often will engage in the task of attempting a reconstruction of the speaker’s statement. That author would, we may assume, MASSON v. NEW YORKER MAGAZINE, INC. 515 496 Opinion of the Court act with knowledge that at times she has attributed to her subject words other than those actually used. Under petitioner’s proposed standard, an author in this situation would lack First Amendment protection if she reported as quotations the substance of a subject’s derogatory statements about himself. Even if a journalist has tape-recorded the spoken statement of a public figure, the full and exact statement will be reported in only rare circumstances. The existence of both a speaker and a reporter; the translation between two media, speech and the printed word; the addition of punctuation; and the practical necessity to edit and make intelligible a speaker’s perhaps rambling comments, all make it misleading to suggest that a quotation will be reconstructed with complete accuracy. The use or absence of punctuation may distort a speaker’s meaning, for example, where that meaning turns upon a speaker’s emphasis of a particular word. In other cases, if a speaker makes an obvious misstatement, for example by unconscious substitution of one name for another, a journalist might alter the speaker’s words but preserve his intended meaning. And conversely, an exact quotation out of context can distort meaning, although the speaker did use each reported word. In all events, technical distinctions between correcting grammar and syntax and some greater level of alteration do not appear workable, for we can think of no method by which courts or juries would draw the line between cleaning up and other changes, except by reference to the meaning a statement conveys to a reasonable reader. To attempt narrow distinctions of this type would be an unnecessary departure from First Amendment principles of general applicability, and, just as important, a departure from the underlying purposes of the tort of libel as understood since the latter half of the 16th century. From then until now, the tort action for defamation has existed to redress injury to the plaintiff’s reputation by a statement that is defamatory and false. See 516 OCTOBER TERM, 1990 501 U. S. Opinion of the Court Milkovich v. Lorain Journal Co., 497 U. S. 1, 11 (1990). As we have recognized, “[t]he legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood.” Gertz v. Robert Welch, Inc., 418 U. S. 323, 341 (1974). If an author alters a speaker’s words but effects no material change in meaning, including any meaning conveyed by the manner or fact of expression, the speaker suffers no injury to reputation that is compensable as a defamation. These essential principles of defamation law accommodate the special case of inaccurate quotations without the necessity for a discrete body of jurisprudence directed to this subject alone. Last Term, in Milkovich v. Lorain Journal Co., we refused “to create a wholesale defamation exemption for anything that might be labeled ‘opinion.’” 497 U. S., at 18 (citation omitted). We recognized that “expressions of ‘opinion’ may often imply an assertion of objective fact.” Ibid. We allowed the defamation action to go forward in that case, holding that a reasonable trier of fact could find that the so-called expressions of opinion could be interpreted as including false assertions as to factual matters. So too in the case before us, we reject any special test of falsity for quotations, including one which would draw the line at correction of grammar or syntax. We conclude, rather, that the exceptions suggested by petitioner for grammatical or syntactical corrections serve to illuminate a broader principle. The common law of libel takes but one approach to the question of falsity, regardless of the form of the communication. See Restatement (Second) of Torts § 563, Comment c (1977); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 776 (5th ed. 1984). It overlooks minor inaccuracies and concentrates upon substantial truth. As in other jurisdictions, California law permits the defense of substantial truth and would absolve a defendant even if she cannot “justify every word of the alleged defamatory matter; it is sufficient if the substance of the MASSON v. NEW YORKER MAGAZINE, INC. 517 496 Opinion of the Court charge be proved true, irrespective of slight inaccuracy in the details.” 5 B. Witkin, Summary of California Law §495 (9th ed. 1988) (citing cases). In this case, of course, the burden is upon petitioner to prove falsity. See Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 775 (1986). The essence of that inquiry, however, remains the same whether the burden rests upon plaintiff or defendant. Minor inaccuracies do not amount to falsity so long as “the substance, the gist, the sting, of the libelous charge be justified.” Heuer v. Kee, 15 Cal. App. 2d 710, 714, 59 P. 2d 1063, 1064 (1936); see also Alioto v. Cowles Communications, Inc., 623 F. 2d 616, 619 (CA9 1980); Maheu v. Hughes Tool Co., 569 F. 2d 459, 465-466 (CA9 1978). Put another way, the statement is not considered false unless it “would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” R. Sack, Libel, Slander, and Related Problems 138 (1980); see, e. g., Wehling v. Columbia Broadcasting System, 721 F. 2d 506, 509 (CA5 1983); see generally R. Smolla, Law of Defamation §5.08 (1991). Our definition of actual malice relies upon this historical understanding. We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan, 376 U. S., at 279-280, and Gertz v. Robert Welch, Inc., supra, at 342, unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case. Deliberate or reckless falsification that comprises actual malice turns upon words and punctuation only because words and punctuation express meaning. Meaning is the life of language. And, for the reasons we have given, quotations may be a devastating instrument for conveying false meaning. In the case under consideration, readers of In the Freud Archives may have found Malcolm’s portrait of petitioner espe 518 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. cially damning because so much of it appeared to be a selfportrait, told by petitioner in his own words. And if the alterations of petitioner’s words gave a different meaning to the statements, bearing upon their defamatory character, then the device of quotations might well be critical in finding the words actionable. D The Court of Appeals applied a test of substantial truth which, in exposition if not in application, comports with much of the above discussion. The Court of Appeals, however, went one step beyond protection of quotations that convey the meaning of a speaker’s statement with substantial accuracy and concluded that an altered quotation is protected so long as it is a “rational interpretation” of an actual statement, drawing this standard from our decisions in Time, Inc. v. Pape, 401 U. S. 279 (1971), and Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 (1984). Application of our protection for rational interpretation in this context finds no support in general principles of defamation law or in our First Amendment jurisprudence. Neither Time, Inc. v. Pape nor Bose Corp, involved the fabrication of quotations, or any analogous claim, and because many of the quotations at issue might reasonably be construed to state or imply factual assertions that are both false and defamatory, we cannot accept the reasoning of the Court of Appeals on this point. In Time, Inc. v. Pape, we reversed a libel judgment which arose out of a magazine article summarizing a report by the United States Commission on Civil Rights discussing police civil rights abuses. The article quoted the Commission’s summary of the facts surrounding an incident of police brutality, but failed to include the Commission’s qualification that these were allegations taken from a civil complaint. The Court noted that “the attitude of the Commission toward the factual verity of the episodes recounted was anything but straightforward,” and distinguished between a “direct ac- MASSON v. NEW YORKER MAGAZINE, INC. 519 496 Opinion of the Court count of events that speak for themselves,” 401 U. S., at 285, 286, and an article descriptive of what the Commission had reported. Time, Inc. v. Pape took into account the difficult choices that confront an author who departs from direct quotation and offers his own interpretation of an ambiguous source. A fair reading of our opinion is that the defendant did not publish a falsification sufficient to sustain a finding of actual malice. In Bose Corp., a Consumer Reports reviewer had attempted to describe in words the experience of listening to music through a pair of loudspeakers, and we concluded that the result was not an assessment of events that speak for themselves, but “ ‘one of a number of possible rational interpretations’ of an event ‘that bristled with ambiguities’ and descriptive challenges for the writer.” 466 U. S., at 512 (quoting Time, Inc. v. Pape, supra, at 290). We refused to permit recovery for choice of language which, though perhaps reflecting a misconception, represented “the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies.” 466 U. S., at 513. The protection for rational interpretation serves First Amendment principles by allowing an author the interpretive license that is necessary when relying upon ambiguous sources. Where, however, a writer uses a quotation, and where a reasonable reader would conclude that the quotation purports to be a verbatim repetition of a statement by the speaker, the quotation marks indicate that the author is not involved in an interpretation of the speaker’s ambiguous statement, but attempting to convey what the speaker said. This orthodox use of a quotation is the quintessential “direct account of events that speak for themselves.” Time, Inc. v. Pape, supra, at 285. More accurately, the quotation allows the subject to speak for himself. The significance of the quotations at issue, absent any qualification, is to inform us that we are reading the state 520 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. ment of petitioner, not Malcolm’s rational interpretation of what petitioner has said or thought. Were we to assess quotations under a rational interpretation standard, we would give journalists the freedom to place statements in their subjects’ mouths without fear of liability. By eliminating any method of distinguishing between the statements of the subject and the interpretation of the author, we would diminish to a great degree the trustworthiness of the printed word and eliminate the real meaning of quotations. Not only public figures but the press doubtless would suffer under such a rule. Newsworthy figures might become more wary of journalists, knowing that any comment could be transmuted and attributed to the subject, so long as some bounds of rational interpretation were not exceeded. We would ill serve the values of the First Amendment if we were to grant near absolute, constitutional protection for such a practice. We doubt the suggestion that as a general rule readers will assume that direct quotations are but a rational interpretation of the speaker’s words, and we decline to adopt any such presumption in determining the permissible interpretations of the quotations in question here. Ill A We apply these principles to the case before us. On summary judgment, we must draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence. Anderson v. Liberty Lobby, Inc., 477 U. S., at 255. So we must assume, except where otherwise evidenced by the transcripts of the tape recordings, that petitioner is correct in denying that he made the statements attributed to him by Malcolm, and that Malcolm reported with knowledge or reckless disregard of the differences between what petitioner said and what was quoted. MASSON v. NEW YORKER MAGAZINE, INC. 521 496 Opinion of the Court Respondents argue that, in determining whether petitioner has shown sufficient falsification to survive summary judgment, we should consider not only the tape-recorded statements but also Malcolm’s typewritten notes. We must decline that suggestion. To begin with, petitioner affirms in an affidavit that he did not make the complained of statements. The record contains substantial additional evidence, moreover, evidence which, in a light most favorable to petitioner, would support a jury determination under a clear and convincing standard that Malcolm deliberately or recklessly altered the quotations. First, many of the challenged passages resemble quotations that appear on the tapes, except for the addition or alteration of certain phrases, giving rise to a reasonable inference that the statements have been altered. Second, Malcolm had the tapes in her possession and was not working under a tight deadline. Unlike a case involving hot news, Malcolm cannot complain that she lacked the practical ability to compare the tapes with her work in progress. Third, Malcolm represented to the editor in chief of The New Yorker that all the quotations were from the tape recordings. Fourth, Malcolm’s explanations of the time and place of unrecorded conversations during which petitioner allegedly made some of the quoted statements have not been consistent in all respects. Fifth, petitioner suggests that the progression from typewritten notes, to manuscript, then to galleys provides further evidence of intentional alteration. Malcolm contests petitioner’s allegations, and only a trial on the merits will resolve the factual dispute. But at this stage, the evidence creates a jury question whether Malcolm published the statements with knowledge or reckless disregard of the alterations. B We must determine whether the published passages differ materially in meaning from the tape-recorded statements so as to create an issue of fact for a jury as to falsity. 522 OCTOBER TERM, 1990 501 U. S. Opinion of the Court (a) “Intellectual Gigolo.” We agree with the dissenting opinion in the Court of Appeals that “[f]airly read, intellectual gigolo suggests someone who forsakes intellectual integrity in exchange for pecuniary or other gain.” 895 F. 2d, at 1551. A reasonable jury could find a material difference between the meaning of this passage and petitioner’s tape-recorded statement that he was considered “much too junior within the hierarchy of analysis, for these important training analysts to be caught dead with [him].” The Court of Appeals majority found it difficult to perceive how the “intellectual gigolo” quotation was defamatory, a determination supported not by any citation to California law, but only by the argument that the passage appears to be a report of Eissler’s and Anna Freud’s opinions of petitioner. Id., at 1541. We agree with the Court of Appeals that the most natural interpretation of this quotation is not an admission that petitioner considers himself an intellectual gigolo but a statement that Eissler and Anna Freud considered him so. It does not follow, though, that the statement is harmless. Petitioner is entitled to argue that the passage should be analyzed as if Malcolm had reported falsely that Eissler had given this assessment (with the added level of complexity that the quotation purports to represent petitioner’s understanding of Eissler’s view). An admission that two well-respected senior colleagues considered one an “intellectual gigolo” could be as, or more, damaging than a similar selfappraisal. In all events, whether the “intellectual gigolo” quotation is defamatory is a question of California law. To the extent that the Court of Appeals based its conclusion in the First Amendment, it was mistaken. The Court of Appeals relied upon the “incremental harm” doctrine as an alternative basis for its decision. As the court explained it: “This doctrine measures the incremental reputational harm inflicted by the challenged statements beyond the harm imposed by the nonactionable remainder of the publication.” Ibid.; see generally Note, 98 Harv. L. MASSON v. NEW YORKER MAGAZINE, INC. 523 496 Opinion of the Court Rev. 1909 (1985); R. Smolla, Law of Defamation § 9.10[4][d] (1991). The court ruled, as a matter of law, that “[g]iven the . . . many provocative, bombastic statements indisputably made by Masson and quoted by Malcolm, the additional harm caused by the intellectual gigolo’ quote was nominal or nonexistent, rendering the defamation claim as to this quote non-actionable.” 895 F. 2d, at 1541. This reasoning requires a court to conclude that, in fact, a plaintiff made the other quoted statements, cf. Liberty Lobby, Inc. v. Anderson, 241 U. S. App. D. C. 246, 251, 746 F. 2d 1563, 1568 (1984), vacated and remanded on other grounds, 477 U. S. 242 (1986), and then to undertake a factual inquiry into the reputational damage caused by the remainder of the publication. As noted by the dissent in the Court of Appeals, the most “provocative, bombastic statements” quoted by Malcolm are those complained of by petitioner, and so this would not seem an appropriate application of the incremental harm doctrine. 895 F. 2d, at 1566. Furthermore, the Court of Appeals provided no indication whether it considered the incremental harm doctrine to be grounded in California law or the First Amendment. Here, we reject any suggestion that the incremental harm doctrine is compelled as a matter of First Amendment protection for speech. The question of incremental harm does not bear upon whether a defendant has published a statement with knowledge of falsity or reckless disregard of whether it was false or not. As a question of state law, on the other hand, we are given no indication that California accepts this doctrine, though it remains free to do so. Of course, state tort law doctrines of injury, causation, and damages calculation might allow a defendant to press the argument that the statements did not result in any incremental harm to a plaintiff’s reputation. (b) “Sex, Women, Fun.” This passage presents a closer question. The “sex, women, fun” quotation offers a very different picture of petitioner’s plans for Maresfield Gardens 524 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. than his remark that “Freud’s library alone is priceless.” See supra, at 503. Petitioner’s other tape-recorded remarks did indicate that he and another analyst planned to have great parties at the Freud house and, in a context that may not even refer to Freud house activities, to “pass women on to each other.” We cannot conclude as a matter of law that these remarks bear the same substantial meaning as the quoted passage’s suggestion that petitioner would make the Freud house a place of “sex, women, fun.” (c) “It Sounded Better. ” We agree with the District Court and the Court of Appeals that any difference between petitioner’s tape-recorded statement that he “just liked” the name Moussaieff, and the quotation that “it sounded better” is, in context, immaterial. Although Malcolm did not include all of petitioner’s lengthy explanation of his name change, she did convey the gist of that explanation: Petitioner took his abandoned family name as his middle name. We agree with the Court of Appeals that the words attributed to petitioner did not materially alter the meaning of his statement. (d) “I Don’t Know Why I Put It In. ” Malcolm quotes petitioner as saying that he “tacked on at the last minute” a “totally gratuitous” remark about the “sterility of psychoanalysis” in an academic paper, and that he did so for no particular reason. In the tape recordings, petitioner does admit that the remark was “possibly [a] gratuitously offensive way to end a paper to a group of analysts,” but when asked why he included the remark, he answered “[because] it was true . . . I really believe it.” Malcolm’s version contains material differences from petitioner’s statement, and it is conceivable that the alteration results in a statement that could injure a scholar’s reputation. (e) “Greatest Analyst Who Ever Lived. ” While petitioner did, on numerous occasions, predict that his theories would do irreparable damage to the practice of psychoanalysis, and did suggest that no other analyst shared his views, no tape-recorded statement appears to contain the substance or the MASSON v. NEW YORKER MAGAZINE, INC. 525 496 Opinion of White, J. arrogant and unprofessional tone apparent in this quotation. A material difference exists between the quotation and the tape-recorded statements, and a jury could find that the difference exposed petitioner to contempt, ridicule, or obloquy. (f ) “He Had The Wrong Man. ” The quoted version makes it appear as if petitioner rejected a plea to remain in stoic silence and do “the honorable thing.” The tape-recorded version indicates that petitioner rejected a plea supported by far more varied motives: Eissler told petitioner that not only would silence be “the honorable thing,” but petitioner would “save face,” and might be rewarded for that silence with eventual reinstatement. Petitioner described himself as willing to undergo a scandal in order to shine the light of publicity upon the actions of the Freud Archives, while Malcolm would have petitioner describe himself as a person who was “the wrong man” to do “the honorable thing.” This difference is material, a jury might find it defamatory, and, for the reasons we have given, there is evidence to support a finding of deliberate or reckless falsification. C Because of the Court of Appeals’ disposition with respect to Malcolm, it did not have occasion to address petitioner’s argument that the District Court erred in granting summary judgment to The New Yorker Magazine, Inc., and Alfred A. Knopf, Inc., on the basis of their respective relations with Malcolm or the lack of any independent actual malice. These questions are best addressed in the first instance on remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice White, with whom Justice Scalia joins, concurring in part and dissenting in part. I join Parts I, II-A, II-D, and III-A, but cannot wholly agree with the remainder of the opinion. My principal dis 526 OCTOBER TERM, 1990 Opinion of White, J. 501 U. S. agreement is with the holding, ante, at 517, that “a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity. . . unless the alteration results in a material change in the meaning conveyed by the statement.” Under New York Times Co. n. Sullivan, 376 U. S. 254 (1964), “malice” means deliberate falsehood or reckless disregard for whether the fact asserted is true or false. Id., at 279-280. As the Court recognizes, the use of quotation marks in reporting what a person said asserts that the person spoke the words as quoted. As this case comes to us, it is to be judged on the basis that in the instances identified by the Court, the reporter, Malcolm, wrote that Masson said certain things that she knew Masson did not say. By any definition of the term, this was “knowing falsehood”: Malcolm asserts that Masson said these very words, knowing that he did not. The issue, as the Court recognizes, is whether Masson spoke the words attributed to him, not whether the fact, if any, asserted by the attributed words is true or false. In my view, we need to go no further to conclude that the defendants in this case were not entitled to summary judgment on the issue of malice with respect to any of the six erroneous quotations. That there was at least an issue for the jury to decide on the question of deliberate or reckless falsehood does not mean that plaintiffs were necessarily entitled to go to trial. If, as a matter of law, reasonable jurors could not conclude that attributing to Masson certain words that he did not say amounted to libel under California law, i. e., “expose[d] [Masson] to hatred, contempt, ridicule, or obloquy, or which cause[d] him to be shunned or avoided, or which ha[d] a tendency to injure him in his occupation,” Cal. Civ. Code Ann. §45 (West 1982), a motion for summary judgment on this ground would be justified.* I would suppose, for example, *In dealing with the “intellectual gigolo” passage, the Court of Appeals ruled that there was no malice but in the alternative went on to say that as a matter of law the erroneous attribution was not actionable defamation. 895 F. 2d 1535, 1540-1541 (CA9 1989). MASSON v. NEW YORKER MAGAZINE, INC. 527 496 Opinion of White, J. that if Malcolm wrote that Masson said that he wore contact lenses, when he said nothing about his eyes or his vision, the trial judge would grant summary judgment for the defendants and dismiss the case. The same would be true if Masson had said “I was spoiled as a child by my Mother,” whereas, Malcolm reports that he said “I was spoiled as a child by my parents.” But if reasonable jurors could conclude that the deliberate misquotation was libelous, the case should go to the jury. This seems to me to be the straightforward, traditional approach to deal with this case. Instead, the Court states that deliberate misquotation does not amount to New York Times malice unless it results in a material change in the meaning conveyed by the statement. This ignores the fact that, under New York Times, reporting a known falsehood— here the knowingly false attribution—is sufficient proof of malice. The falsehood, apparently, must be substantial; the reporter may lie a little, but not too much. This standard is not only a less manageable one than the traditional approach, but it also assigns to the courts issues that are for the jury to decide. For a court to ask whether a misquotation substantially alters the meaning of spoken words in a defamatory manner is a far different inquiry from whether reasonable jurors could find that the misquotation was different enough to be libelous. In the one case, the court is measuring the difference from its own point of view; in the other it is asking how the jury would or could view the erroneous attribution. The Court attempts to justify its holding in several ways, none of which is persuasive. First, it observes that an interviewer who takes notes of any interview will attempt to reconstruct what the speaker said and will often knowingly attribute to the subject words that were not used by the speaker. Ante, at 514-515. But this is nothing more than an assertion that authors may misrepresent because they cannot remember what the speaker actually said. This 528 OCTOBER TERM, 1990 Opinion of White, J. 501 U. S. should be no dilemma for such authors, for they could report their story without purporting to quote when they are not sure, thereby leaving the reader to trust or doubt the author rather than believing that the subject actually said what he is claimed to have said. Moreover, this basis for the Court’s rule has no application where there is a tape of the interview and the author is in no way at a loss to know what the speaker actually said. Second, the Court speculates that even with the benefit of a recording, the author will find it necessary at times to reconstruct, ante, at 515, but again, in those cases why should the author be free to put his or her reconstruction in quotation marks, rather than report without them? Third, the Court suggests that misquotations that do not materially alter the meaning inflict no injury to reputation that is compensable as defamation. Ante, at 517. This may be true, but this is a question of defamation or not, and has nothing to do with whether the author deliberately put within quotation marks and attributed to the speaker words that the author knew the speaker did not utter. As I see it, the defendants’ motion for summary judgment based on lack of malice should not have been granted on any of the six quotations considered by the Court in Part III-B of its opinion. I therefore dissent from the result reached with respect to the “It Sounded Better” quotation dealt with in paragraph (c) of Part III-B, but agree with the Court’s judgment on the other five misquotations. JAMES B. BEAM DISTILLING CO. v. GEORGIA 529 Syllabus JAMES B. BEAM DISTILLING CO. v. GEORGIA et al. CERTIORARI TO THE SUPREME COURT OF GEORGIA No. 89-680. Argued October 30, 1990—Decided June 20, 1991 Before 1985, Georgia law imposed an excise tax on imported liquor at a rate double that imposed on liquor manufactured from Georgia-grown products. In 1984, this Court, in Bacchus Imports, Ltd. n. Dias, 468 U. S. 263, held that a similar Hawaii law violated the Commerce Clause. Petitioner, a manufacturer of Kentucky bourbon, thereafter filed an action in Georgia state court, seeking a refund of taxes it paid under Georgia’s law for 1982, 1983, and 1984. The court declared the statute unconstitutional, but refused to apply its ruling retroactively, relying on Chevron Oil Co. n. Huson, 404 U. S. 97, which held that a decision will be applied prospectively where it displaces a principle of law on which reliance may reasonably have been placed, and where prospectivity is on balance warranted by its effect on the operation of the new rule and by the inequities that might otherwise result from retroactive application. The State Supreme Court affirmed. Held: The judgment is reversed, and the case is remanded. 259 Ga. 363, 382 S. E. 2d 95, reversed and remanded. Justice Souter, joined by Justice Stevens, concluded that once this Court has applied a rule of law to the litigants in one case, it must do so with respect to all others not barred by procedural requirements or res judicata. Pp. 534-544. (a) Whether a new rule should apply retroactively is in the first instance a matter of choice of law, to which question there are three possible answers. The first and normal practice is to make a decision fully retroactive. Second, there is the purely prospective method of overruling, where the particular case is decided under the old law but announces the new, effective with respect to all conduct occurring after the date of that decision. Finally, the new rule could be applied in the case in which it is pronounced, but then return to the old one with respect to all others arising on facts predating the pronouncement. The possibility of such modified, or selective, prospectivity was abandoned in the criminal context in Griffith v. Kentucky, 479 U. S. 314, 328. Pp. 534-538. (b) Because Bacchus did not reserve the question, and remanded the case for consideration of remedial issues, it is properly understood to have followed the normal practice of applying its rule retroactively to the litigants there before the Court. Pp. 538-540. 530 OCTOBER TERM, 1990 Syllabus 501 U. S. (c) Because Bacchus thus applied its own rule, principles of equality and stare decisis require that it be applied to the litigants in this case. Griffith's equality principle, that similarly situated litigants should be treated the same, applies equally well in the civil context as in the criminal. Of course, retroactivity is limited by the need for finality, since equality for those whose claims have been adjudicated could only be purchased at the expense of the principle that there be an end of litigation. In contrast, parties, such as petitioner, who wait to litigate until after others have labored to create a new rule, are merely asserting a right that is theirs in law, is not being applied on a prospective basis only, and is not otherwise barred by state procedural requirements. Modified prospectivity rejected, a new rule may not be retroactively applied to some litigants when it is not applied to others. This necessarily limits the application of the Chevron Oil test, to the effect that it may not distinguish between litigants for choice-of-law purposes on the particular equities of their claims to prospectivity. It is the nature of precedent that the substantive law will not shift and spring on such a basis. Pp. 540-544. (d) This opinion does not speculate as to the bounds or propriety of pure prospectivity. Nor does it determine the appropriate remedy in this case, since remedial issues were neither considered below nor argued to this Court. P. 544. Justice White concluded that, under any one of several suppositions, the opinion in Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, may reasonably be read to extend the benefits of the judgment in that case to Bacchus Imports and that petitioner here should also have the benefit of Bacchus. If the Court in Bacchus thought that its decision was not a new rule, there would be no doubt that it would be retroactive to all similarly situated litigants. The Court in that case may also have thought that retroactivity was proper under the factors set forth in Chevron Oil Co. v. Huson, 404 U. S. 97. And, even if the Court was wrong in applying Bacchus retroactively, there is no precedent in civil cases for applying a new rule to the parties of the case but not to others. Moreover, Griffith v. Kentucky, 479 U. S. 314, 328, has overruled such a practice in criminal cases and should be followed on the basis of stare decisis. However, the propriety of pure prospectivity is settled in this Court’s prior cases, see, e. g., Cipriano v. City of Houma, 395 U. S. 701, 706, which recognize that in proper cases a new rule announced by the Court will not be applied retroactively, even to the parties before the Court. To allow for the possibility of speculation as to the propriety of such prospectivity is to suggest that there may come a time when this Court’s precedents on the issue will be overturned. Pp. 544-547. JAMES B. BEAM DISTILLING CO. v. GEORGIA 531 529 Syllabus Justice Blackmun, joined by Justice Marshall and Justice Scalia, concluded that prospectivity, whether “selective” or “pure,” breaches the Court’s obligation to discharge its constitutional function in articulating new rules for decision, which must comport with its duty to decide only cases and controversies. Griffith v. Kentucky, 479 U. S. 314. The nature of judicial review constrains the Court to require retroactive application of each new rule announced. Pp. 547-548. Justice Scalia, joined by Justice Marshall and Justice Blackmun, while agreeing with Justice Souter’s conclusion, disagreed that the issue is one of choice of law, and concluded that both selective and pure prospectivity are impermissible, not for reasons of equity, but because they are not permitted by the Constitution. To allow the Judiciary powers greater than those conferred by the Constitution, as the fundamental nature of those powers was understood when the Constitution was enacted, would upset the division of federal powers central to the constitutional scheme. Pp. 548-549. Souter, J., announced the judgment of the Court, and delivered an opinion, in which Stevens, J., joined. White, J., filed an opinion concurring in the judgment, post, p. 544. Blackmun, J., filed an opinion concurring in the judgment, in which Marshall and Scalia, JJ., joined, post, p. 547. Scalia, J., filed an opinion concurring in the judgment, in which Marshall and Blackmun, JJ., joined, post, p. 548. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy, J., joined, post, p. 549. Morton Siegel argued the cause for petitioner. With him on the briefs were John L. Taylor, Jr., and Richard Schoenstadt. Amelia Waller Baker, Assistant Attorney General of Georgia, argued the cause for respondents. With her on the brief were Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Harrison Kohler, Deputy Attorney General, Daniel M. Formby, Senior Assistant Attorney General, and Warren R. Calvert, Assistant Attorney General. * *Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Mary Sue Terry, Attorney General of Virginia, H. Lane Kneedler, Chief Deputy Attorney General, Gail Starling Marshall, Deputy Attorney General, and Peter W. Low, joined by the Attorneys General for their respective States as follows: Don Siegelman of Alabama, Robert 532 OCTOBER TERM, 1990 Opinion of Souter, J. 501 U. S. Justice Souter announced the judgment of the Court and delivered an opinion, in which Justice Stevens joins. The question presented is whether our ruling in Bacchus Imports, Ltd. n. Dias, 468 U. S. 263 (1984), should apply retroactively to claims arising on facts antedating that decision. We hold that application of the rule in that case requires its application retroactively in later cases. I Prior to its amendment in 1985, Georgia state law imposed an excise tax on imported alcohol and distilled spirits at a rate double that imposed on alcohol and distilled spirits manufactured from Georgia-grown products. See Ga. Code Ann. § 3-4-60 (1982). In 1984, a Hawaii statute that similarly distinguished between imported and local alcoholic products was held in Bacchus to violate the Commerce Clause. Bacchus, 468 U. S., at 273. It proved no bar to our finding of unconstitutionality that the discriminatory tax involved intoxicating liquors, with respect to which the States have heightened K. Corbin of Arizona, Steve Clark of Arkansas, Duane Woodard of Colorado, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, William J. Guste, Jr., of Louisiana, James E. Tierney of Maine, J. Joseph Curran, Jr., of Maryland, Hubert H. Humphrey III of Minnesota, Robert J. Del Tufo of New Jersey, Robert Abrams of New York, R. Paul Van Dam of Utah, Jeffrey L. Amestoy of Vermont, and Don Hanaway of Wisconsin; for the State of California et al. by John K. Van de Kamp, Attorney General of California, Richard F. Finn, Supervising Deputy Attorney General, and Eric J. Coffill, Clarine Nardi Riddle, Attorney4 General of Connecticut, Robert A. Butterworth, Attorney General of Florida, Warren Price III, Attorney General of Hawaii, James T. Jones, Attorney General of Idaho, Frank J. Kelley, Attorney General of Michigan, Robert M. Spire, Attorney General of Nebraska, Hal Stratton, Attorney General of New Mexico, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Roger A. Telling-huisen, Attorney General of South Dakota, R. Paul Van Dam, Attorney General of Utah, Kenneth 0. Eikenberry, Attorney General of Washington, Roger W. Thompkins, Attorney General of West Virginia, Donald J. Hanaway, Attorney General of Wisconsin, and Herbert 0. Reid, Sr.; and for the Council of State Governments et al. by Charles Rothfeld and Benna Ruth Solomon. JAMES B. BEAM DISTILLING CO. v. GEORGIA 533 529 Opinion of Souter, J. regulatory powers under the Twenty-first Amendment. Id., at 276. In Bacchus’ wake, petitioner James B. Beam Distilling Co., a Delaware corporation and Kentucky bourbon manufacturer, claimed Georgia’s law likewise inconsistent with the Commerce Clause, and sought a refund of $2.4 million, representing not only the differential taxation but the full amount it had paid under § 3-4-60 for the years 1982, 1983, and 1984. Georgia’s Department of Revenue failed to respond to the request, and Beam thereafter brought a refund action against the State in the Superior Court of Fulton County. On crossmotions for summary judgment, the trial court agreed that § 3-4-60 could not withstand a Bacchus attack for the years in question, and that the tax had therefore been unconstitutional. Using the analysis described in this Court’s decision in Chevron Oil Co. v. Huson, 404 U. S. 97 (1971), the court nonetheless refused to apply its ruling retroactively. It therefore denied petitioner’s refund request. The Supreme Court of Georgia affirmed the trial court in both respects. The court held the pre-1985 version of the statute to have violated the Commerce Clause as, in its words, an act of “simple economic protectionism.” See 259 Ga. 363, 364, 382 S. E. 2d 95, 96 (1989) (citing Bacchus). But it, too, applied that finding on a prospective basis only, in the sense that it declined to declare the State’s application of the statute unconstitutional for the years in question. The court concluded that but for Bacchus its decision on the constitutional question would have established a new rule of law by overruling past precedent, see Scott v. State, 187 Ga. 702, 2 S. E. 2d 65 (1939) (upholding predecessor to §3-4-60 against Commerce Clause objection), upon which the litigants may justifiably have relied. See 259 Ga., at 365, 382 S. E. 2d, at 96. That reliance, together with the “unjust results” that would follow from retroactive application, was thought by the court to satisfy the Chevron Oil test for prospectivity. To the dissenting argument of two justices 534 OCTOBER TERM, 1990 Opinion of Souter, J. 501 U. S. that a statute found unconstitutional is unconstitutional ab initio, the court observed that while it had “‘declared statutes to be void from their inception when they were contrary to the Constitution at the time of enactment, . . . those decisions are not applicable to the present controversy, as the original. . . statute, when adopted, was not violative of the Constitution under court interpretations of that period.”’ 259 Ga., at 366, 382 S. E. 2d, at 97 (quoting Adams v. Adams, 249 Ga. 477, 478-479, 291 S. E. 2d 518, 520 (1982)). Beam sought a writ of certiorari from the Court on the retroactivity question.1 We granted the petition, 496 U. S. 924 (1990), and now reverse. II In the ordinary case, no question of retroactivity arises. Courts are as a general matter in the business of applying settled principles and precedents of law to the disputes that come to bar. See Mishkin, Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 60 (1965). Where those principles and precedents antedate the events on which the dispute turns, the court merely applies legal rules already decided, and the litigant has no basis on which to claim exemption from those rules. It is only when the law changes in some respect that an assertion of nonretroactivity may be entertained, the paradigm case arising when a court expressly overrules a precedent upon which the contest would otherwise be decided differently and by which the parties may previously have regulated their conduct. Since the question is whether the court should apply the old rule or the new one, retroactivity is 1 Although petitioner expends some effort, see Brief for Petitioner 5-8, in asserting the unconstitutionality under Bacchus of the Georgia law as amended, see Ga. Code Ann. § 3-4-60 (1990), an argument rejected by the Georgia Supreme Court in Heublein, Inc. v. State, 256 Ga. 578, 351 S. E. 2d 190 (1987), that issue is neither before us nor relevant to the issue that is. JAMES B. BEAM DISTILLING CO. v. GEORGIA 535 529 Opinion of Souter, J. properly seen in the first instance as a matter of choice of law, “a choice . . . between the principle of forward operation and that of relation backward.” Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 364 (1932). Once a rule is found to apply “backward,” there may then be a further issue of remedies, i. e., whether the party prevailing under a new rule should obtain the same relief that would have been awarded if the rule had been an old one. Subject to possible constitutional thresholds, see McKesson Corp. n. Division of Alcoholic Beverages and Tobacco, Fla. Dept, of Business Regulation, 496 U. S. 18 (1990), the remedial inquiry is one governed by state law, at least where the case originates in state court. See American Trucking Assns., Inc. n. Smith, 496 U. S. 167, 210 (1990) (Stevens, J., dissenting). But the antecedent choice-of-law question is a federal one where the rule at issue itself derives from federal law, constitutional or otherwise. See Smith, supra, at 177-178 (plurality opinion); cf. United States v. Estate of Donnelly, 397 U. S. 286, 297, n. (1970) (Harlan, J., concurring). As a matter purely of judicial mechanics, there are three ways in which the choice-of-law problem may be resolved. First, a decision may be made fully retroactive, applying both to the parties before the court and to all others by and against whom claims may be pressed, consistent with res judicata and procedural barriers such as statutes of limitations. This practice is overwhelmingly the norm, see Kuhn v. Fairmont Coal Co., 215 U. S. 349, 372 (1910) (Holmes, J., dissenting), and is in keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the law. See Mackey v. United States, 401 U. S. 667, 679 (1971) (Harlan, J., concurring in judgments in part and dissenting in part). It also reflects the declaratory theory of law, see Smith, supra, at 201 (Scalia, J., concurring in judgment); Linkletter v. Walker, 381 U. S. 618, 622-623 (1965), according to which the courts 536 OCTOBER TERM, 1990 Opinion of Souter, J. 501 U. S. are understood only to find the law, not to make it. But in some circumstances retroactive application may prompt difficulties of a practical sort. However much it comports with our received notions of the judicial role, the practice has been attacked for its failure to take account of reliance on cases subsequently abandoned, a fact of life if not always one of jurisprudential recognition. See, e. g., Mosser v. Darrow, 341 U. S. 267, 276 (1951) (Black, J., dissenting). Second, there is the purely prospective method of overruling, under which a new rule is applied neither to the parties in the law-making decision nor to those others against or by whom it might be applied to conduct or events occurring before that decision. The case is decided under the old law but becomes a vehicle for announcing the new, effective with respect to all conduct occurring after the date of that decision. This Court has, albeit infrequently, resorted to pure prospectivity, see Chevron Oil Co. v. Huson, 404 U. S. 97 (1971); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 88 (1982); Buckley v. Valeo, 424 U. S. 1, 142-143 (1976); England n. Louisiana State Bd. of Medical Examiners, 375 U. S. 411, 422 (1964); see also Smith, supra, at 221, n. 11 (Stevens, J., dissenting); Linkletter, supra, at 628, although in so doing it has never been required to distinguish the remedial from the choice-of-law aspect of its decision. See Smith, supra, at 210 (Stevens, J., dissenting). This approach claims justification in its appreciation that “[t]he past cannot always be erased by a new judicial declaration,” Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 374 (1940); see also Lemon n. Kurtzman, 411 U. S. 192, 199 (1973) (plurality opinion), and that to apply the new rule to parties who relied on the old would offend basic notions of justice and fairness. But this equitable method has its own drawback: it tends to relax the force of precedent, by minimizing the costs of overruling, and thereby allows the courts to act with a freedom comparable to that of legislatures. See United States v. Johnson, 457 U. S. 537, 554-555 JAMES B. BEAM DISTILLING CO. v. GEORGIA 537 529 Opinion of Souter, J. (1982); James v. United States, 366 U. S. 213, 225 (1961) (Black, J., dissenting). Finally, a court may apply a new rule in the case in which it is pronounced, then return to the old one with respect to all others arising on facts predating the pronouncement. This method, which we may call modified, or selective, prospectivity, enjoyed its temporary ascendancy in the criminal law during a period in which the Court formulated new rules, prophylactic or otherwise, to insure protection of the rights of the accused. See, e. g., Johnson n. New Jersey, 384 U. S. 719 (1966); Stovall v. Denno, 388 U. S. 293, 297 (1967); Daniel n. Louisiana, 420 U. S. 31 (1975); see also Smith, supra, at 198 (“During the period in which much of our retroactivity doctrine evolved, most of the Court’s new rules of criminal procedure had expanded the protections available to criminal defendants”). On the one hand, full retroactive application of holdings such as those announced in Miranda v. Arizona, 384 U. S. 436 (1966); Escobedo v. Illinois, 378 U. S. 478 (1964); and Katz v. United States, 389 U. S. 347 (1967), would have “seriously disrupt[ed] the administration of our criminal laws [,]... requir[ing] the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards.” Johnson, supra, at 731. On the other hand, retroactive application could hardly have been denied the litigant in the lawchanging decision itself. A criminal defendant usually seeks one thing only on appeal, the reversal of his conviction; future application would provide little in the way of solace. In this context, without retroactivity at least to the first successful litigant, the incentive to seek review would be diluted if not lost altogether. But selective prospectivity also breaches the principle that litigants in similar situations should be treated the same, a fundamental component of stare decisis and the rule of law generally. See R. Wasserstrom, The Judicial Decision 69-72 (1961). “We depart from this basic judicial tradi- 538 OCTOBER TERM, 1990 501 U. S. Opinion of Souter, J. tion when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a ‘new’ rule of constitutional law.” Desist v. United States, 394 U. S. 244, 258-259 (1969) (Harlan, J., dissenting); see also Von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv. L. Rev. 409, 425 (1924). For this reason, we abandoned the possibility of selective prospectivity in the criminal context in Griffith v. Kentucky, 479 U. S. 314, 328 (1987), even where the new rule constituted a “clear break” with previous law, in favor of completely retroactive application of all decisions to cases pending on direct review. Though Griffith was held not to dispose of the matter of civil retroactivity, see id., at 322, n. 8, selective prospectivity appears never to have been endorsed in the civil context. Smith, 496 U. S., at 200 (plurality opinion). This case presents the issue. Ill Both parties have assumed the applicability of the Chevron Oil test, under which the Court has accepted prospectivity (whether in the choice-of-law or remedial sense, it is not clear) where a decision displaces a principle of law on which reliance may reasonably have been placed, and where prospectivity is on balance warranted by its effect on the operation of the new rule and by the inequities that might otherwise result from retroactive application. See Chevron Oil, 404 U. S., at 106-107. But we have never employed Chevron Oil to the end of modified civil prospectivity. The issue is posed by the scope of our disposition in Bacchus. In most decisions of this Court, retroactivity both as to choice of law and as to remedy goes without saying. Although the taxpaying appellants prevailed on the merits of their Commerce Clause claim, however, the Bacchus Court did not grant outright their request for a refund of taxes paid under the law found unconstitutional. Instead, we remanded the case for consideration of the State’s arguments that appellants were “not entitled to refunds since they did JAMES B. BEAM DISTILLING CO. v. GEORGIA 539 529 Opinion of Souter, J. not bear the economic incidence of the tax but passed it on as a separate addition to the price that their customers were legally obligated to pay.” Bacchus, 468 U. S., at 276-277. “These refund issues, . . . essentially issues of remedy,” had not been adequately developed on the record nor passed upon by the state courts below, and their consideration may have been intertwined with, or obviated by, matters of state law. Id., at 277. Questions of remedy aside, Bacchus is fairly read to hold as a choice of law that its rule should apply retroactively to the litigants then before the Court. Because the Bacchus opinion did not reserve the question whether its holding should be applied to the parties before it, cf. American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 297-298 (1987) (remanding case to consider whether ruling “should be applied retroactively and to decide other remedial issues”), it is properly understood to have followed the normal rule of retroactive application in civil cases. If the Court were to have found prospectivity as a choice-of-law matter, there would have been no need to consider the pass-through defense; if the Court had reserved the issue, the terms of the remand to consider “remedial” issues would have been incomplete. Indeed, any consideration of remedial issues necessarily implies that the precedential question has been settled to the effect that the rule of law will apply to the parties before the Court. See McKesson, 496 U. S., at 46-49 (pass-through defense considered as remedial question). Because the Court in Bacchus remanded the case solely for consideration of the pass-through defense, it thus should be read as having retroactively applied the rule there decided.2 See also Williams v. 2 In fact, the state defendant in Bacchus argued for pure prospectivity under the criteria set forth in Chevron Oil Co. v. Huson, 404 U. S. 97 (1971). See Brief for Appellee in Bacchus Imports Ltd. v. Dias, O. T. 1983, No. 82-1565, p. 19. It went on to argue that “even if” the challenged tax were held invalid and the decision were not limited to prospective application, the challengers should not be entitled to refunds because 540 OCTOBER TERM, 1990 501 U. S. Opinion of Souter, J. Vermont, 472 U. S. 14, 28 (1985); Exxon Corp. n. Eagerton, 462 U. S. 176, 196-197 (1983); cf. Davis v. Michigan Dept, of Treasury, 489 U. S. 803, 817 (1989). Bacchus thus applied its own rule, just as if it had reversed and remanded without further ado, and yet of course the Georgia courts refused to apply that rule with respect to the litigants in this case. Thus, the question is whether it is error to refuse to apply a rule of federal law retroactively after the case announcing the rule has already done so. We hold that it is, principles of equality and stare decisis here prevailing over any claim based on a Chevron Oil analysis. Griffith cannot be confined to the criminal law. Its equality principle, that similarly situated litigants should be treated the same, carries comparable force in the civil context. See Estate of Donnelly, 397 U. S., at 296 (Harlan, J., concurring). Its strength is in fact greater in the latter sphere. With respect to retroactivity in criminal cases, there remains even now the disparate treatment of those cases that come to the Court directly and those that come here in collateral proceedings. See Griffith, supra, at 331-332 (White, J., dissenting). Whereas Griffith held that new rules must apply retroactively to all criminal cases pending on direct review, we have since concluded that new rules will not relate back to convictions challenged on habeas corpus. Teague n. Lane, 489 U. S. 288 (1989). No such difficulty exists in the civil arena, in which there is little opportunity for collateral attack of final judgments. Nor is selective prospectivity necessary to maintain incentives to litigate in the civil context as it may have been in the criminal before Griffith’s, rule of absolute retroactivity. In the civil context, “even a party who is deprived of the full ret- any taxes paid would have been passed through to consumers. Id., at 46. Though unnecessary to our ruling here, the prospectivity issue can thus be said actually to have been litigated and by implication actually to have been decided by the Court by the fact of its consideration of the pass-through defense. See Clemons v. Mississippi, 494 U. S. 738, 747-748, n. 3 (1990). JAMES B. BEAM DISTILLING CO. v. GEORGIA 541 529 Opinion of Souter, J. roactive benefit of a new decision may receive some relief.” Smith, 496 U. S., at 198-199. Had the appellants in Bacchus lost their bid for retroactivity, for example, they would nonetheless have won protection from the future imposition of discriminatory taxes, and the same goes for the petitioner here. Assuming that pure prospectivity may be had at all, moreover, its scope must necessarily be limited to a small number of cases; its possibility is therefore unlikely to deter the broad class of prospective challengers of civil precedent. See generally Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va. L. Rev. 201, 215 (1965). Of course, retroactivity in civil cases must be limited by the need for finality, see Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 (1940); once suit is barred by res judicata or by statutes of limitation or repose, a new rule cannot reopen the door already closed. It is true that one might deem the distinction arbitrary, just as some have done in the criminal context with respect to the distinction between direct review and habeas: why should someone whose failure has otherwise become final not enjoy the next day’s new rule, from which victory would otherwise spring? It is also objected that in civil cases unlike criminal there is more potential for litigants to freeload on those without whose labor the new rule would never have come into being. (Criminal defendants are already potential litigants by virtue of their offense, and invoke retroactivity only by way of defense; civil beneficiaries of new rules may become litigants as a result of the law change alone, and use it as a weapon.) That is true of the petitioner now before us, which did not challenge the Georgia law until after its fellow liquor distributors had won their battle in Bacchus. To apply the rule of Bacchus to the parties in that case but not in this one would not, therefore, provoke Justice Harlan’s attack on modified prospectivity as “[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a 542 OCTOBER TERM, 1990 Opinion of Souter, J. 501 U. S. stream of similar cases to flow by unaffected by that new rule.” Mackey, 401 U. S., at 679 (opinion concurring in judgments in part and dissenting in part); see also Smith, supra, at 214-215 (Stevens, J., dissenting). Beam had yet to enter the waters at the time of our decision in Bacchus, and yet we give it Bacchus' benefit. Insofar as equality drives us, it might be argued that the new rule should be applied to those who had toiled and failed, but whose claims are now precluded by res judicata; and that it should not be applied to those who only exploit others’ efforts by litigating in the new rule’s wake. As to the former, independent interests are at stake; and with respect to the latter, the distinction would be too readily and unnecessarily overcome. While those whose claims have been adjudicated may seek equality, a second chance for them could only be purchased at the expense of another principle. “ ‘Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of that contest, and that matters once tried shall be considered forever settled as between the parties.’ ” Federated Department Stores, Inc. v. Moitie, 452 U. S. 394, 401 (1981) (quoting Baldwin v. Iowa State Traveling Men's Assn., 283 U. S. 522, 525 (1931)). Finality must thus delimit equality in a temporal sense, and we must accept as a fact that the argument for uniformity loses force over time. As for the putative hangers-on, they are merely asserting a right that the Court has told them is theirs in law, that the Court has not deemed necessary to apply on a prospective basis only, and that is not otherwise barred by state procedural requirements. They cannot be characterized as freeloaders any more than those who seek vindication under a new rule on facts arising after the rule’s announcement. Those in each class rely on the labors of the first successful litigant. We might, of course, limit retroactive application to those who at least tried to fight their own battles by litigating before victory was certain. To this possibility, it is JAMES B. BEAM DISTILLING CO. v. GEORGIA 543 529 Opinion of Souter, J. enough to say that distinguishing between those with cases pending and those without would only serve to encourage the filing of replicative suits when this or any other appellate court created the possibility of a new rule by taking a case for review. Nor, finally, are litigants to be distinguished for choice-of-law purposes on the particular equities of their claims to prospectivity: whether they actually relied on the old rule and how they would suffer from retroactive application of the new. It is simply in the nature of precedent, as a necessary component of any system that aspires to fairness and equality, that the substantive law will not shift and spring on such a basis. To this extent, our decision here does limit the possible applications of the Chevron Oil analysis, however irrelevant Chevron Oil may otherwise be to this case. Because the rejection of modified prospectivity precludes retroactive application of a new rule to some litigants when it is not applied to others, the Chevron Oil test cannot determine the choice of law by relying on the equities of the particular case. See Simpson v. Director, Office of Workers’ Compensation Programs, United States Dept, of Labor, 681 F. 2d 81, 85-86 (CAI 1982), cert, denied sub nom. Bath Iron Works Corp. n. Director, Office of Workers’ Compensation Programs, United States Dept, of Labor, 459 U. S. 1127 (1983); see also Note, 1985 U. Ill. L. Rev. 117, 131-132. Once retroactive application is chosen for any assertedly new rule, it is chosen for all others who might seek its prospective application. The applicability of rules of law is not to be switched on and off according to individual hardship; allowing relitigation of choice-of-law issues would only compound the challenge to the stabilizing purpose of precedent posed in the first instance by the very development of “new” rules. Of course, the generalized enquiry permits litigants to assert, and the courts to consider, the equitable and reliance interests of parties absent but similarly situated. Conversely, nothing we 544 OCTOBER TERM, 1990 White, J., concurring in judgment 501 U. S. say here precludes consideration of individual equities when deciding remedial issues in particular cases. IV The grounds for our decision today are narrow. They are confined entirely to an issue of choice of law: when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata. We do not speculate as to the bounds or propriety of pure prospectivity. Nor do we speculate about the remedy that may be appropriate in this case; remedial issues were neither considered below nor argued to this Court, save for an effort by petitioner to buttress its claim by reference to our decision last Term in McKesson. As we have observed repeatedly, federal “issues of remedy . . . may well be intertwined with, or their consideration obviated by, issues of state law.” Bacchus, 468 U. S., at 277. Nothing we say here deprives respondents of their opportunity to raise procedural bars to recovery under state law or demonstrate reliance interests entitled to consideration in determining the nature of the remedy that must be provided, a matter with which McKesson did not deal. See Estate of Donnelly, 397 U. S., at 296 (Harlan, J., concurring); cf. Lemon, 411 U. S., at 203. The judgment is reversed, and the case is remanded for further proceedings. It is so ordered. Justice White, concurring in the judgment. I agree with Justice Souter that the opinion in Bacchus Imports, Ltd. v. Dias, 468 U. S. 263 (1984), may reasonably be read as extending the benefit of the judgment in that case to the appellant Bacchus Imports. I also agree that the decision is to be applied to other litigants whose cases were not final at the time of the Bacchus decision. This would be true under any one of several suppositions. First, if the Court in that case thought its decision to have been reasonably fore- JAMES B. BEAM DISTILLING CO. v. GEORGIA 545 529 White, J., concurring in judgment seeable and hence not a new rule, there would be no doubt that it would be retroactive to all similarly situated litigants. Chevron Oil Co. y. Huson, 404 U. S. 97 (1971), would not then have been implicated. Second, even if retroactivity depended upon consideration of the Chevron Oil factors, the Court may have thought that retroactive application was proper. Here, it should be noted that although the dissenters in Bacchus—including Justice O’Connor—argued that the Court erred in deciding the Twenty-first Amendment issue against the State, they did not argue that the Court erred in giving the appellant the benefit of its decision. Bacchus, supra, at 278 (Stevens, J., dissenting). Third, even if—as Justice O’Connor now argues—the Court was quite wrong in doing so, post, at 553-559, that is water over the dam, irretrievably it seems to me. There being no precedent in civil cases applying a new rule to the parties in the case but not to others similarly situated,* and Griffith v. Kentucky, 479 U. S. 314, 328 (1987), having overruled such a practice in criminal cases (a decision from which I dissented and still believe wrong, but which I now follow on the basis of stare decisis), I agree that the petitioner here should have the benefit of Bacchus, just as Bacchus Imports did. Hence I concur in the judgment of the Court. Nothing in the above, however, is meant to suggest that I retreat from those opinions filed in this Court which I wrote or joined holding or recognizing that in proper cases a new rule announced by the Court will not be applied retroactively, even to the parties before the Court. See, e. g., Cipriano v. City of Houma, 395 U. S. 701, 706 (1969). This *See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 88 (1982); Buckley v. Valeo, 424 U. S. 1, 142-143 (1976); Chevron Oil Co. v. Huson, 404 U. S. 97 (1971); Cipriano v. City of Houma, 395 U. S. 701, 706 (1969); Allen v. State Bd. of Elections, 393 U. S. 544, 572 (1969); Simpson v. Union Oil Co., 377 U. S. 13, 24-25 (1964); England v. Louisiana State Bd. of Medical Examiners, 375 U. S. 411, 422 (1964); Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 374 (1940). 546 OCTOBER TERM, 1990 White, J., concurring in judgment 501 U. S. was what Justice Stewart wrote for the Court in Chevron Oil, summarizing what was deemed to be the essence of those cases. Chevron Oil, supra, at 105-109. This was also what Justice O’Connor wrote for the plurality in American Trucking Assns., Inc. v. Smith, 496 U. S. 167 (1990). I joined that opinion and would not depart from it. Nor, without overruling Chevron Oil and those other cases before and after Chevron Oil, holding that certain decisions will be applied prospectively only, can anyone sensibly insist on automatic retroactivity for any and all judicial decisions in the federal system. Hence, I do not understand how Justice Souter can cite the cases on prospective operation, ante, at 536-537, and yet say that he need not speculate as to the propriety of pure prospectivity, ante, at 544. The propriety of prospective application of decision in this Court, in both constitutional and statutory cases, is settled by our prior decisions. To nevertheless “speculate” about the issue is only to suggest that there may come a time when our precedents on the issue will be overturned. Plainly enough, Justices Scalia, Marshall, and Blackmun would depart from our precedents. Justice Scalia would do so for two reasons, as I read him. Post, p. 548. First, even though the Justice is not naive enough (nor does he think the Framers were naive enough) to be unaware that judges in a real sense “make” law, he suggests that judges (in an unreal sense, I suppose) should never concede that they do and must claim that they do no more than discover it, hence suggesting that there are citizens who are naive enough to believe them. Second, Justice Scalia, fearful of our ability and that of other judges to resist the temptation to overrule prior cases, would maximize the injury to the public interest when overruling occurs, which would tend to deter them from departing from established precedent. JAMES B. BEAM DISTILLING CO. v. GEORGIA 547 529 Blackmun, J., concurring in judgment I am quite unpersuaded by this line of reasoning and hence concur in the judgment on the narrower ground employed by Justice Souter. Justice Blackmun, with whom Justice Marshall and Justice Scalia join, concurring in the judgment. I join Justice Scalia’s opinion because I agree that failure to apply a newly declared constitutional rule to cases pending on direct review violates basic norms of constitutional adjudication. It seems to me that our decision in Griffith v. Kentucky, 479 U. S. 314 (1987), makes clear that this Court’s function in articulating new rules of decision must comport with its duty to decide only “Cases” and “Controversies.” See U. S. Const., Art. Ill, §2, cl. 1. Unlike a legislature, we do not promulgate new rules to “be applied prospectively only,” as the dissent, post, at 550, and perhaps Justice Souter, would have it. The nature of judicial review constrains us to consider the case that is actually before us, and, if it requires us to announce a new rule, to do so in the context of the case and apply it to the parties who brought us the case to decide. To do otherwise is to warp the role that we, as judges, play in a Government of limited powers. I do not read Justice Scalia’s comments on the division of federal powers to reject the idea expressed so well by the last Justice Harlan that selective application of new rules violates the principle of treating similarly situated defendants the same. See Mackey n. United States, 401 U. S. 667, 678-679 (1971), and Desist v. United States, 394 U. S. 244, 258-259 (1969) (dissenting opinion), on which Griffith relied. This rule, which we have characterized as a question of equity, is not the remedial equity that the dissent seems to believe can trump the role of adjudication in our constitutional scheme. See post, at 550-551. It derives from the integrity of judicial review, which does not justify applying principles determined to be wrong to litigants who are in or may still 548 OCTOBER TERM, 1990 Scalia, J., concurring in judgment 501 U. S. come to court. We fulfill our judicial responsibility by requiring retroactive application of each new rule we announce. Application of new decisional rules does not thwart the principles of stare decisis, as the dissent suggests. See post, at 552. The doctrine of stare decisis profoundly serves important purposes in our legal system. Nearly a half century ago, Justice Roberts cautioned: “Respect for tribunals must fall when the bar and the public come to understand that nothing that has been said in prior adjudication has force in a current controversy.” Mahnich v. Southern S. S. Co., 321 U. S. 96, 113 (1944) (dissenting opinion). The present dissent’s view of stare decisis would rob the doctrine of its vitality through eliminating the tension between the current controversy and the new rule. By announcing new rules prospectively or by applying them selectively, a court may dodge the stare decisis bullet by avoiding the disruption of settled expectations that otherwise prevents us from disturbing our settled precedents. Because it forces us to consider the disruption that our new decisional rules cause, retroactivity combines with stare decisis to prevent us from altering the law each time the opportunity presents itself. Like Justice Scalia, I conclude that prospectivity, whether “selective” or “pure,” breaches our obligation to discharge our constitutional function. Justice Scalia, with whom Justice Marshall and Justice Blackmun join, concurring in the judgment. I think I agree, as an abstract matter, with Justice Souter’s reasoning, but that is not what leads me to agree with his conclusion. I would no more say that what he calls “selective prospectivity” is impermissible because it produces inequitable results than I would say that the coercion of confessions is impermissible for that reason. I believe that the one, like the other, is impermissible simply because it is not allowed by the Constitution. Deciding between a constitutional course and an unconstitutional one does not pose a question of choice of law. JAMES B. BEAM DISTILLING CO. v. GEORGIA 549 529 O’Connor, J., dissenting If the division of federal powers central to the constitutional scheme is to succeed in its objective, it seems to me that the fundamental nature of those powers must be preserved as that nature was understood when the Constitution was enacted. The Executive, for example, in addition to “tak[ing] Care that the Laws be faithfully executed,” Art. II, § 3, has no power to bind private conduct in areas not specifically committed to his control by Constitution or statute; such a perception of “[t]he Executive power” may be familiar to other legal systems, but is alien to our own. So also, I think, “[t]he judicial Power of the United States” conferred upon this Court and such inferior courts as Congress may establish, Art. Ill, § 1, must be deemed to be the judicial power as understood by our common-law tradition. That is the power- “to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), not the power to change it. I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense “make” law. But they make it as judges make it, which is to say as though they were “finding” it—discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be. Of course this mode of action poses “difficulties of a . . . practical sort,” ante, at 536, when courts decide to overrule prior precedent. But those difficulties are one of the understood checks upon judicial lawmaking; to eliminate them is to render courts substantially more free to “make new law,” and thus to alter in a fundamental way the assigned balance of responsibility and power among the three branches. For this reason, and not reasons of equity, I would find both “selective prospectivity” and “pure prospectivity” beyond our power. Justice O’Connor, with whom The Chief Justice and Justice Kennedy join, dissenting. The Court extends application of the new rule announced in Bacchus Imports, Ltd. v. Dias, 468 U. S. 263 (1984), retroactively to all parties, without consideration of the analysis 550 OCTOBER TERM, 1990 O’Connor, J., dissenting 501 U. S. described in Chevron Oil Co. n. Huson, 404 U. S. 97 (1971). Justice Souter bases this determination on “principles of equality and stare decisis” Ante, at 540. To my mind, both of these factors lead to precisely the opposite result. Justice Blackmun and Justice Scalia concur in the judgment of the Court but would abrogate completely the Chevron Oil inquiry and hold that all decisions must be applied retroactively in all cases. I explained last Term that such a rule ignores well-settled precedent in which this Court has refused repeatedly to apply new rules retroactively in civil cases. See American Trucking Assns., Inc. v. Smith, 496 U. S. 167, 188-200 (plurality opinion). There is no need to repeat that discussion here. I reiterate, however, that precisely because this Court has “the power To say what the law is,’ Marbury n. Madison, 1 Cranch 137, 177 (1803),” ante, at 549 (Scalia, J., concurring in judgment), when the Court changes its mind, the law changes with it. If the Court decides, in the context of a civil case or controversy, to change the law, it must make the subsequent determination whether the new law or the old is to apply to conduct occurring before the law-changing decision. Chevron Oil describes our long-established procedure for making this inquiry. I I agree that the Court in Bacchus applied its rule retroactively to the parties before it. The Bacchus opinion is silent on the retroactivity question. Given that the usual course in cases before this Court is to apply the rule announced to the parties in the case, the most reasonable reading of silence is that the Court followed its customary practice. The Bacchus Court erred in applying its rule retroactively. It did not employ the Chevron Oil analysis, but should have. Had it done so, the Court would have concluded that the Bacchus rule should be applied prospectively only. Justice Souter today concludes that, even in the absence of an independent examination of retroactivity, once the Court applies JAMES B. BEAM DISTILLING CO. v. GEORGIA 551 529 O’Connor, J., dissenting a new rule retroactively to the parties before it, it must thereafter apply the rule retroactively to everyone. I disagree. Without a determination that retroactivity is appropriate under Chevron Oil, neither equality nor stare decisis leads to this result. As to “equality,” Justice Souter believes that it would be unfair to withhold the benefit of the new rule in Bacchus to litigants similarly situated to those who received the benefit in that case. Ante, at 537-538, 540. If Justice Souter is concerned with fairness, he cannot ignore Chevron Oil; the purpose of the Chevron Oil test is to determine the equities of retroactive application of a new rule. See Chevron Oil, supra, at 107-108; American Trucking, supra, at 191. Had the Bacchus Court determined that retroactivity would be appropriate under Chevron Oil, or had this Court made that determination now, retroactive application would be fair. Where the Chevron Oil analysis indicates that retroactivity is not appropriate, however, just the opposite is true. If retroactive application was inequitable in Bacchus itself, the Court only hinders the cause of fairness by repeating the mistake. Because I conclude that the Chevron Oil test dictates that Bacchus not be applied retroactively, I would decline the Court’s invitation to impose liability on every jurisdiction in the Nation that reasonably relied on pre-Bacchus law. Justice Souter also explains that “stare decisis” compels his result. Ante, at 540. By this, I assume he means that the retroactive application of the Bacchus rule to the parties in that case is itself a decision of the Court to which the Court should now defer in deciding the retroactivity question in this case. This is not a proper application of stare decisis. The Court in Bacchus applied its rule retroactively to the parties before it without any analysis of the issue. This tells us nothing about how this case—where the Chevron Oil question is squarely presented—should come out. Contrary to Justice Souter’s assertions, stare decisis cuts the other way in this case. At its core, stare decisis al 552 OCTOBER TERM, 1990 O’Connor, J., dissenting 501 U. S. lows those affected by the law to order their affairs without fear that the established law upon which they rely will suddenly be pulled out from under them. A decision not to apply a new rule retroactively is based on principles of stare decisis. By not applying a law-changing decision retroactively, a court respects the settled expectations that have built up around the old law. See American Trucking, 496 U. S., at 197 (plurality opinion) (“[PJrospective overruling allows courts to respect the principle of stare decisis even when they are impelled to change the law in light of new understanding”); id., at 205 (Scalia, J., concurring in judgment) (imposition of retroactive liability on a litigant would “upset that litigant’s settled expectations because the earlier decision for which stare decisis effect is claimed . . . overruled prior law. That would turn the doctrine of stare decisis against the very purpose for which it exists”). If a Chevron Oil analysis reveals, as it does, that retroactive application of Bacchus would unjustly undermine settled expectations, stare decisis dictates strongly against Justice Souter’s holding. Justice Souter purports to have restricted the application of Chevron Oil only to a limited extent. Ante, at 543. The effect appears to me far greater. Justice Souter concludes that the Chevron Oil analysis, if ignored in answering the narrow question of retroactivity as to the parties to a particular case, must be ignored also in answering the far broader question of retroactivity as to all other parties. But it is precisely in determining general retroactivity that the Chevron Oil test is most needed; the broader the potential reach of a new rule, the greater the potential disruption of settled expectations. The inquiry the Court summarized in Chevron Oil represents longstanding doctrine on the application of nonretroactivity to civil cases. See American Trucking, supra, at 188-200. Justice Souter today ignores this well-established precedent and seriously curtails the Chevron Oil inquiry. His reliance upon stare decisis in reaching this conclusion becomes all the more ironic. JAMES B. BEAM DISTILLING CO. v. GEORGIA 553 529 O’Connor, J., dissenting II Faithful to this Court’s decisions, the Georgia Supreme Court in this case applied the analysis described in Chevron Oil in deciding the retroactivity question before it. Subsequently, this Court has gone out of its way to ignore that analysis. A proper application of Chevron Oil demonstrates, however, that Bacchus should not be applied retroactively. Chevron Oil describes a three-part inquiry in determining whether a decision of this Court will have prospective effect only: “First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, ... we must. . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. Finally, we [must] weig[h] the inequity imposed by retroactive application, for [w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the injustice or hardship by a holding of nonretroactivity.” 404 U. S., at 106-107 (citations and internal quotation marks omitted). Bacchus easily meets the first criterion. That case considered a Hawaii excise tax on alcohol sales that exempted certain locally produced liquor. The Court held that the tax, by discriminating in favor of local products, violated the Commerce Clause, U. S. Const., Art. I, §8, cl. 3, by interfering with interstate commerce. 468 U. S., at 273. The Court rejected the State’s argument that any violation of ordinary Commerce Clause principles was, in the case of alcohol sales, overborne by the State’s plenary powers under §2 of the 554 OCTOBER TERM, 1990 O’Connor, J., dissenting 501 U. S. Twenty-first Amendment to the United States Constitution. That section provides: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” The Court noted that language in some of our earlier opinions indicated that § 2 did indeed give the States broad power to establish the terms under which imported liquor might compete with domestic. See 468 U. S., at 274, and n. 13. Nonetheless, the Court concluded that other cases had by then established that “the [Twenty-first] Amendment did not entirely remove state regulation of alcoholic beverages from the ambit of the Commerce Clause.” Id., at 275. Relying on Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 324 (1964), California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980), and Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691 (1984), the Court concluded that § 2 did not protect the State from liability for economic protectionism. 468 U. S., at 275-276. The Court’s conclusion in Bacchus was unprecedented. Beginning with State Board of Equalization of California v. Young’s Market Co., 299 U. S. 59 (1936), an uninterrupted line of authority from this Court held that States need not meet the strictures of the so-called “dormant” or “negative” Commerce Clause when regulating sales and importation of liquor within the State. Young’s Market is directly on point. There, the Court rejected precisely the argument it eventually accepted in Bacchus. The California statute at issue in Young’s Market imposed a license fee for the privilege of importing beer into the State. The Court concluded that “[p]rior to the Twenty-first Amendment it would obviously have been unconstitutional to have imposed any fee for that privilege” because doing so directly burdens interstate commerce. 299 U. S., at 62. Section 2 changed all of that. The Court answered appellees’ assertion that § 2 did not ab- JAMES B. BEAM DISTILLING CO. v. GEORGIA 555 529 O’Connor, J., dissenting rogate negative Commerce Clause restrictions. The contrast between this discussion and the Court’s rule in Bacchus is stark: “[Appellees] request us to construe the Amendment as saying, in effect: The State may prohibit the importation of intoxicating liquors provided it prohibits the manufacture and sale within its borders; but if it permits such manufacture and sale, it must let imported liquors compete with the domestic on equal terms. To say that, would involve not a construction of the Amendment, but a rewriting of it. “The plaintiffs argue that, despite the Amendment, a State may not regulate importations except for the purpose of protecting the public health, safety or morals; and that the importer’s license fee was not imposed to that end. Surely the State may adopt a lesser degree of regulation than total prohibition. Can it be doubted that a State might establish a state monopoly of the manufacture and sale of beer, and either prohibit all competing importations, or discourage importation by laying a heavy impost, or channelize desired importations by confining them to a single consignee?” Id., at 62-63. Numerous cases following Young's Market are to the same effect, recognizing the States’ broad authority to regulate commerce in intoxicating beverages unconstrained by negative Commerce Clause restrictions. See, e. g., Ziffrin, Inc. v. Reeves, 308 U. S. 132, 138 (1939); United States v. Frankfort Distilleries, Inc., 324 U. S. 293, 299 (1945); Joseph B. Seagram & Sons, Inc. v. Hostetter, 384 U. S. 35, 42 (1966); Heublein, Inc. n. South Carolina Tax Comm’n, 409 U. S. 275,283-284 (1972); see generally Bacchus, supra, at 281-282 (Stevens, J., dissenting). The cases that the Bacchus Court cited in support of its new rule in fact provided no notice whatsoever of the impending change. Idlewild, Midcal, and Capital Cities, supra, all involved States’ authority to regulate the sale and importa- 556 OCTOBER TERM, 1990 O’Connor, J., dissenting 501 U. S. tion of alcohol when doing so conflicted directly with legislation passed by Congress pursuant to its powers under the Commerce Clause. The Court in each case held that § 2 did not give States the authority to override congressional legislation. These essentially were Supremacy Clause cases; in that context, the Court concluded that the Twenty-first Amendment had not “repealed” the Commerce Clause. See Idlewild, supra, at 331-332; Midcal, supra, at 108-109; Capital Cities, supra, at 712-713. These cases are irrelevant to Bacchus because they involved the relation between §2 and Congress’ authority to legislate under the (positive) Commerce Clause. Bacchus and the Young’s Market line concerned States’ authority to regulate liquor unconstrained by the negative Commerce Clause in the absence of any congressional pronouncement. This distinction was clear from Idlewild, Midcal, and Capital Cities themselves. Idlewild and Capital Cities acknowledged explicitly that §2 trumps the negative Commerce Clause. See Idlewild, supra, at 330 (“‘Since the Twenty-first Amendment, . . . the right of a state to prohibit or regulate the importation of intoxicating liquor is not limited by the commerce clause . . .’”), quoting Indianapolis Brewing Co. n. Liquor Control Comm’n, 305 U. S. 391, 394 (1939); Capital Cities, supra, at 712 (“‘This Court’s decisions . . . have confirmed that the [Twenty-first] Amendment primarily created an exception to the normal operation of the Commerce Clause.’. . . [Section] 2 reserves to the States power to impose burdens on interstate commerce in intoxicating liquor that, absent the Amendment, would clearly be invalid under the Commerce Clause”), quoting Craig v. Boren, 429 U. S. 190, 206 (1976). In short, Bacchus’ rule that the Commerce Clause places restrictions on state power under §2 in the absence of any congressional action came out of the blue. Bacchus overruled the Young’s Market line in this regard and created a new rule. See Bacchus, 468 U. S., at 278-287 (Stevens, J., JAMES B. BEAM DISTILLING CO. v. GEORGIA 557 529 O’Connor, J., dissenting dissenting) (explaining just how new the rule of that case was). There is nothing in the nature of the Bacchus rule that dictates retroactive application. The negative Commerce Clause, which underlies that rule, prohibits States from interfering with interstate commerce. As to its application in Bacchus, that purpose is fully served if States are, from the date of that decision, prevented from enacting similar tax schemes. Petitioner James Beam argues that the purposes of the Commerce Clause will not be served fully unless Bacchus is applied retroactively. The company contends that retroactive application will further deter States from enacting such schemes. The argument fails. Before our decision in Bacchus, the State of Georgia was fully justified in believing that the tax at issue in this case did not violate the Commerce Clause. Indeed, before Bacchus it did not violate the Commerce Clause. The imposition of liability in hindsight against a State that, acting reasonably would do the same thing again, will prevent no unconstitutionality. See American Trucking, 496 U. S., at 180-181 (plurality opinion). Precisely because Bacchus was so unprecedented, the equities weigh heavily against retroactive application of the rule announced in that case. “Where a State can easily foresee the invalidation of its tax statutes, its reliance interests may merit little concern .... By contrast, because the State cannot be expected to foresee that a decision of this Court would overturn established precedents, the inequity of unsettling actions taken in reliance on those precedents is apparent.” American Trucking, supra, at 182 (plurality opinion). In this case, Georgia reasonably relied not only on the Young’s Market line of cases from this Court, but a Georgia Supreme Court decision upholding the predecessor to the tax statute at issue. See Scott v. Georgia, 187 Ga. 702, 705, 2 S. E. 2d 65, 66 (1939), relying on Young’s Market and Indianapolis Brewing. 558 OCTOBER TERM, 1990 O’Connor, J., dissenting 501 U. S. Nor is there much to weigh in the balance. Before Bacchus, the legitimate expectation of James Beam and other liquor manufacturers was that they had to pay the tax here at issue and that it was constitutional. They made their business decisions accordingly. There is little hardship to these companies from not receiving a tax refund they had no reason to anticipate. The equitable analysis of Chevron Oil places limitations on the liability that may be imposed on unsuspecting parties after this Court changes the law. James Beam claims that if Bacchus is applied retroactively, and the Georgia excise tax is declared to have been collected unconstitutionally from 1982 to 1984, the State owes the company a $2.4 million refund. App. 8. There are at least two identical refund actions pending in the Georgia courts. These plaintiffs seek refunds of almost $28 million. See Heublein, Inc. v. Georgia, Civ. Action No. 87-3542-6 (DeKalb Super. Ct., Apr. 24, 1987); Joseph E. Seagram & Sons, Inc. v. Georgia, Civ. Action No. 87-7070-8 (DeKalb Super. Ct., Sept. 4, 1987); Brief for Respondents 26, n. 8. The State estimates its total potential liability to all those taxed at $30 million. Id., at 9. To impose on Georgia and the other States that reasonably relied on this Court’s established precedent such extraordinary retroactive liability, at a time when most States are struggling to fund even the most basic services, is the height of unfairness. We are not concerned here with a State that reaped an unconstitutional windfall from its taxpayers. Georgia collected in good faith what was at the time a constitutional tax. The Court now subjects the State to potentially devastating liability without fair warning. This burden will fall not on some corrupt state government, but ultimately on the blameless and unexpecting citizens of Georgia in the form of higher taxes and reduced benefits. Nothing in our jurisprudence compels that result; our traditional analysis of retroactivity dictates against it. JAMES B. BEAM DISTILLING CO. v. GEORGIA 559 529 O’Connor, J., dissenting A fair application of the Chevron Oil analysis requires that Bacchus not be applied retroactively. It should not have been applied even to the parties in that case. That mistake was made. The Court today compounds the problem by imposing widespread liability on parties having no reason to expect it. This decision is made in the name of “equality” and “stare decisis. ” By refusing to take into account the settled expectations of those who relied on this Court’s established precedents, the Court’s decision perverts the meaning of both those terms. I respectfully dissent. 560 OCTOBER TERM, 1990 501 U. S. Syllabus BARNES, PROSECUTING ATTORNEY OF ST. JOSEPH COUNTY, INDIANA, et al. v. GLEN THEATRE, INC., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 90-26. Argued January 8, 1991—Decided June 21, 1991 Respondents, two Indiana establishments wishing to provide totally nude dancing as entertainment and individual dancers employed at those establishments, brought suit in the District Court to enjoin enforcement of the state public indecency law—which requires respondent dancers to wear pasties and G-strings—asserting that the law’s prohibition against total nudity in public places violates the First Amendment. The court held that the nude dancing involved here was not expressive conduct. The Court of Appeals reversed, ruling that nonobscene nude dancing performed for entertainment is protected expression, and that the statute was an improper infringement of that activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. Held: The judgment is reversed. 904 F. 2d 1081, reversed. The Chief Justice, joined by Justice O’Connor and Justice Kennedy, concluded that the enforcement of Indiana’s public indecency law to prevent totally nude dancing does not violate the First Amendment’s guarantee of freedom of expression. Pp. 565-572. (a) Nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, although only marginally so. See, e. g., Doran v. Salem Inn, Inc., 422 U. S. 922, 932. Pp. 565-566. (b) Applying the four-part test of United States v. O’Brien, 391 U. S. 367, 376-377—which rejected the contention that symbolic speech is entitled to full First Amendment protection—the statute is justified despite its incidental limitations on some expressive activity. The law is clearly within the State’s constitutional power. And it furthers a substantial governmental interest in protecting societal order and morality. Public indecency statutes reflect moral disapproval of people appearing in the nude among strangers in public places, and this particular law follows a line of state laws, dating back to 1831, banning public nudity. The States’ traditional police power is defined as the authority to provide for the public health, safety, and morals, and such a basis for legislation BARNES v. GLEN THEATRE, INC. 561 560 Syllabus has been upheld. See, e. g., Paris Adult Theatre I n. Slaton, 413 U. S. 49, 61. This governmental interest is unrelated to the suppression of free expression, since public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity. The law does not proscribe nudity in these establishments because the dancers are conveying an erotic message. To the contrary, an erotic performance may be presented without any state interference, so long as the performers wear a scant amount of clothing. Finally, the incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of the governmental interest. Since the statutory prohibition is not a means to some greater end, but an end itself, it is without cavil that the statute is narrowly tailored. Pp. 566-572. Justice Scalia concluded that the statute—as a general law regulating conduct and not specifically directed at expression, either in practice or on its face—is not subject to normal First Amendment scrutiny and should be upheld on the ground that moral opposition to nudity supplies a rational basis for its prohibition. Cf. Employment Div., Dept, of Human Resources of Ore. v. Smith, 494 U. S. 872. There is no intermediate level of scrutiny requiring that an incidental restriction on expression, such as that involved here, be justified by an important or substantial governmental interest. Pp. 572-580. Justice Souter, agreeing that the nude dancing at issue here is subject to a degree of First Amendment protection, and that the test of United States v. O’Brien, 391 U. S. 367, is the appropriate analysis to determine the actual protection required, concluded that the State’s interest in preventing the secondary effects of adult entertainment establishments-prostitution, sexual assaults, and other criminal activity—is sufficient under O’Brien to justify the law’s enforcement against nude dancing. The prevention of such effects clearly falls within the State’s constitutional power. In addition, the asserted interest is plainly substantial, and the State could have concluded that it is furthered by a prohibition on nude dancing, even without localized proof of the harmful effects. See Renton v. Playtime Theatres, Inc., 475 U. S. 41, 50, 51. Moreover, the interest is unrelated to the suppression of free expression, since the pernicious effects are merely associated with nude dancing establishments and are not the result of the expression inherent in nude dancing. Id., at 48. Finally, the restriction is no greater than is essential to further the governmental interest, since pasties and a G-string moderate expression to a minor degree when measured against the dancer’s remaining capacity and opportunity to express an erotic message. Pp. 581-587. 562 OCTOBER TERM, 1990 Opinion of Rehnquist, C. J. 501 U. S. Rehnquist, C. J., announced the judgment of the Court and delivered an opinion, in which O’Connor and Kennedy, JJ., joined. Scalia, J., post, p. 572, and Souter, J., post, p. 581, filed opinions concurring in the judgment. White, J., filed a dissenting opinion, in which Marshall, Blackmun, and Stevens, JJ., joined, post, p. 587. Wayne E. Uhl, Deputy Attorney General of Indiana, argued the cause for petitioners. With him on the briefs was Linley E. Pearson, Attorney General. Bruce J. Ennis, Jr., argued the cause for respondents. Lee J. Klein and Bradley J. Shafer filed a brief for respondents Glen Theatre, Inc., et al. Patrick Louis Baude and Charles A. Asher filed a brief for respondents Darlene Miller et al.* Chief Justice Rehnquist announced the judgment of the Court and delivered an opinion, in which Justice O’Connor and Justice Kennedy join. Respondents are two establishments in South Bend, Indiana, that wish to provide totally nude dancing as entertainment, and individual dancers who are employed at these *Briefs of amici curiae urging reversal were filed for the State of Arizona et al. by Robert K. Corbin, Attorney General of Arizona, and Steven J. Twist, Chief Assistant Attorney General, Clarine Nardi Riddle, Attorney General of Connecticut, and John J. Kelly, Chief State’s Attorney, William L. Webster, Attorney General of Missouri, Lacy H. Thornburg, Attorney General of North Carolina, and Rosalie Simmonds Ballentine, Acting Attorney General of the Virgin Islands; for the American Family Association, Inc., et al. by Alan E. Sears, James Mueller, and Peggy M. Coleman; and for the National Governors’ Association et al. by Benna Ruth Solomon and Peter Buscemi. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Spencer Neth, Thomas D. Buckley, Jr., Steven R. Shapiro, and John A. Powell; for the Georgia on Premise & Lounge Association, Inc., by James A. Walrath; for People for the American Way et al. by Timothy B. Dyk, Robert H. Klonoff, Patricia A. Dunn, Elliot M. Mincberg, Stephen F. Rohde, and Mary D. Dorman. James J. Clancy filed a brief pro se as amicus curiae. BARNES v. GLEN THEATRE, INC. 563 560 Opinion of Rehnquist, C. J. establishments. They claim that the First Amendment’s guarantee of freedom of expression prevents the State of Indiana from enforcing its public indecency law to prevent this form of dancing. We reject their claim. The facts appear from the pleadings and findings of the District Court and are uncontested here. The Kitty Kat Lounge, Inc. (Kitty Kat), is located in the city of South Bend. It sells alcoholic beverages and presents “go-go dancing.” Its proprietor desires to present “totally nude dancing,” but an applicable Indiana statute regulating public nudity requires that the dancers wear “pasties” and “G-strings” when they dance. The dancers are not paid an hourly wage, but work on commission. They receive a 100 percent commission on the first $60 in drink sales during their performances. Darlene Miller, one of the respondents in the action, had worked at the Kitty Kat for about two years at the time this action was brought. Miller wishes to dance nude because she believes she would make more money doing so. Respondent Glen Theatre, Inc., is an Indiana corporation with a place of business in South Bend. Its primary business is supplying so-called adult entertainment through written and printed materials, movie showings, and live entertainment at an enclosed “bookstore.” The live entertainment at the “bookstore” consists of nude and seminude performances and showings of the female body through glass panels. Customers sit in a booth and insert coins into a timing mechanism that permits them to observe the live nude and seminude dancers for a period of time. One of Glen Theatre’s dancers, Gayle Ann Marie Sutro, has danced, modeled, and acted professionally for more than 15 years, and in addition to her performances at the Glen Theatre, can be seen in a pornographic movie at a nearby theater. App. to Pet. for Cert. 131-133. Respondents sued in the United States District Court for the Northern District of Indiana to enjoin the enforcement of the Indiana public indecency statute, Ind. Code § 35-45-4-1 564 OCTOBER TERM, 1990 Opinion of Rehnquist, C. J. 501 U. S. (1988), asserting that its prohibition against complete nudity in public places violated the First Amendment. The District Court originally granted respondents’ prayer for an injunction, finding that the statute was facially overbroad. The Court of Appeals for the Seventh Circuit reversed, deciding that previous litigation with respect to the statute in the Supreme Court of Indiana and this Court precluded the possibility of such a challenge,1 and remanded to the District Court in order for the plaintiffs to pursue their claim that the statute violated the First Amendment as applied to their dancing. Glen Theatre, Inc. v. Pearson, 802 F. 2d 287, 288-290 (1986). On remand, the District Court concluded that 1 The Indiana Supreme Court appeared to give the public indecency statute a limiting construction to save it from a facial overbreadth attack: “There is no right to appear nude in public. Rather, it may be constitutionally required to tolerate or to allow some nudity as a part of some larger form of expression meriting protection, when the communication of ideas is involved.” State v. Bay singer, 272 Ind. 236, 247, 397 N. E. 2d 580, 587 (1979) (emphasis added), appeals dism’d sub nom. Clark v. Indiana, 446 U. S. 931, and Dove v. Indiana, 449 U. S. 806 (1980). Five years after Bay singer, however, the Indiana Supreme Court reversed a decision of the Indiana Court of Appeals holding that the statute did “not apply to activity such as the theatrical appearances involved herein, which may not be prohibited absent a finding of obscenity,” in a case involving a partially nude dance in the “Miss Erotica of Fort Wayne” contest. Erhardt v. State, 468 N. E. 2d 224 (Ind. 1984). The Indiana Supreme Court did not discuss the constitutional issues beyond a cursory comment that the statute had been upheld against constitutional attack in Baysinger, and Erhardt’s conduct fell within the statutory prohibition. Justice Hunter dissented, arguing that “a public indecency statute which prohibits nudity in any public place is unconstitutionally overbroad. My reasons for so concluding have already been articulated in State v. Baysinger, (1979) 272 Ind. 236, 397 N. E. 2d 580 (Hunter and DeBruler, JJ., dissenting).” 468 N. E. 2d, at 225-226. Justice DeBruler expressed similar views in his dissent in Erhardt. Id., at 226. Therefore, the Indiana Supreme Court did not affirmatively limit the reach of the statute in Bay singer, but merely said that to the extent the First Amendment would require it, the statute might be unconstitutional as applied to some activities. BARNES v. GLEN THEATRE, INC. 565 560 Opinion of Rehnquist, C. J. “the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States,” and rendered judgment in favor of the defendants. Glen Theatre, Inc. v. Civil City of South Bend, 695 F. Supp. 414, 419 (1988). The case was again appealed to the Seventh Circuit, and a panel of that court reversed the District Court, holding that the nude dancing involved here was expressive conduct protected by the First Amendment. Miller n. Civil City of South Bend, 887 F. 2d 826 (1989). The Court of Appeals then heard the case en banc, and the court rendered a series of comprehensive and thoughtful opinions. The majority concluded that nonobscene nude dancing performed for entertainment is expression protected by the First Amendment, and that the public indecency statute was an improper infringement of that expressive activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. Miller v. Civil City of South Bend, 904 F. 2d 1081 (1990). We granted certiorari, 498 U. S. 807 (1990), and now hold that the Indiana statutory requirement that the dancers in the establishments involved in this case must wear pasties and G-strings does not violate the First Amendment. Several of our cases contain language suggesting that nude dancing of the kind involved here is expressive conduct protected by the First Amendment. In Doran v. Salem Inn, Inc., 422 U. S. 922, 932 (1975), we said: “[A]lthough the customary ‘barroom’ type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409 U. S. 109, 118 (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.” In Schad v. Mount Ephraim, 452 U. S. 61, 66 (1981), we said that “[f]urthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation” (citations omitted). These statements support the conclusion of the Court of Appeals 566 OCTOBER TERM, 1990 Opinion of Rehnquist, C. J. 501 U. S. that nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so. This, of course, does not end our inquiry. We must determine the level of protection to be afforded to the expressive conduct at issue, and must determine whether the Indiana statute is an impermissible infringement of that protected activity. Indiana, of course, has not banned nude dancing as such, but has proscribed public nudity across the board. The Supreme Court of Indiana has construed the Indiana statute to preclude nudity in what are essentially places of public accommodation such as the Glen Theatre and the Kitty Kat Lounge. In such places, respondents point out, minors are excluded and there are no nonconsenting viewers. Respondents contend that while the State may license establishments such as the ones involved here, and limit the geographical area in which they do business, it may not in any way limit the performance of the dances within them without violating the First Amendment. The petitioners contend, on the other hand, that Indiana’s restriction on nude dancing is a valid “time, place, or manner” restriction under cases such as Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984). The “time, place, or manner” test was developed for evaluating restrictions on expression taking place on public property which had been dedicated as a “public forum,” Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989), although we have on at least one occasion applied it to conduct occurring on private property. See Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). In Clark we observed that this test has been interpreted to embody much the same standards as those set forth in United States v. O'Brien, 391 U. S. 367 (1968), and we turn, therefore, to the rule enunciated in O'Brien. O’Brien burned his draft card on the steps of the South Boston Courthouse in the presence of a sizable crowd, and BARNES v. GLEN THEATRE, INC. 567 560 Opinion of Rehnquist, C. J. was convicted of violating a statute that prohibited the knowing destruction or mutilation of such a card. He claimed that his conviction was contrary to the First Amendment because his act was “symbolic speech”—expressive conduct. The Court rejected his contention that symbolic speech is entitled to full First Amendment protection, saying: “[E]ven on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id., at 376-377 (footnotes omitted). Applying the four-part O’Brien test enunciated above, we find that Indiana’s public indecency statute is justified despite its incidental limitations on some expressive activity. The public indecency statute is clearly within the constitutional power of the State and furthers substantial governmental interests. It is impossible to discern, other than from the text of the statute, exactly what governmental interest the Indiana legislators had in mind when they enacted 568 OCTOBER TERM, 1990 Opinion of Rehnquist, C. J. 501 U. S. this statute, for Indiana does not record legislative history, and the State’s highest court has not shed additional light on the statute’s purpose. Nonetheless, the statute’s purpose of protecting societal order and morality is clear from its text and history. Public indecency statutes of this sort are of ancient origin and presently exist in at least 47 States. Public indecency, including nudity, was a criminal offense at common law, and this Court recognized the common-law roots of the offense of “gross and open indecency” in Winters v. New York, 333 U. S. 507, 515 (1948). Public nudity was considered an act malum in se. Le Roy v. Sidley, 1 Sid. 168, 82 Eng. Rep. 1036 (K. B. 1664). Public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places. This public indecency statute follows a long line of earlier Indiana statutes banning all public nudity. The history of Indiana’s public indecency statute shows that it predates barroom nude dancing and was enacted as a general prohibition. At least as early as 1831, Indiana had a statute punishing “open and notorious lewdness, or . . . any grossly scandalous and public indecency.” Rev. Laws of Ind., ch. 26, §60 (1831); Ind. Rev. Stat., ch. 53, §81 (1834). A gap during which no statute was in effect was filled by the Indiana Supreme Court in Ardery v. State, 56 Ind. 328 (1877), which held that the court could sustain a conviction for exhibition of “privates” in the presence of others. The court traced the offense to the Bible story of Adam and Eve. Id., at 329-330. In 1881, a statute was enacted that would remain essentially unchanged for nearly a century: “Whoever, being over fourteen years of age, makes an indecent exposure of his person in a public place, or in any place where there are other persons to be offended or annoyed thereby, ... is guilty of public indecency . . . .” 1881 Ind. Acts, ch. 37, §90. BARNES v. GLEN THEATRE, INC. 569 560 Opinion of Rehnquist, C. J. The language quoted above remained unchanged until it was simultaneously repealed and replaced with the present statute in 1976. 1976 Ind. Acts, Pub. L. 148, Art. 45, ch. 4, § l.2 This and other public indecency statutes were designed to protect morals and public order. The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation. In Paris Adult Theatre I v. Slaton, 413 U. S. 49, 61 (1973), we said: “In deciding Roth [v. United States, 354 U. S. 476 (1957)], this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect ‘the social interest in order and morality.’ [Id.], at 485.” (Emphasis omitted.) And in Bowers v. Hardwick, 478 U. S. 186, 196 (1986), we said: “The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” Thus, the public indecency statute furthers a substantial government interest in protecting order and morality. 2 Indiana Code § 35-45-4-1 (1988) provides: “Public indecency; indecent exposure “Sec. 1. (a) A person who knowingly or intentionally, in a public place: “(1) engages in sexual intercourse; “(2) engages in deviate sexual conduct; “(3) appears in a state of nudity; or “(4) fondles the genitals of himself or another person; commits public indecency, a Class A misdemeanor- “(b) ‘Nudity’ means the showing of the human male or female genitals-, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discemibly turgid state.” 570 OCTOBER TERM, 1990 Opinion of Rehnquist, C. J. 501 U. S. This interest is unrelated to the suppression of free expression. Some may view restricting nudity on moral grounds as necessarily related to expression. We disagree. It can be argued, of course, that almost limitless types of conduct—including appearing in the nude in public—are “expressive,” and in one sense of the word this is true. People who go about in the nude in public may be expressing something about themselves by so doing. But the court rejected this expansive notion of “expressive conduct” in O’Brien, saying: “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” 391 U. S., at 376. And in Dallas n. Stanglin, 490 U. S. 19 (1989), we further observed: “It is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons—coming together to engage in recreational dancing—is not protected by the First Amendment.” Id., at 25. Respondents contend that even though prohibiting nudity in public generally may not be related to suppressing expression, prohibiting the performance of nude dancing is related to expression because the State seeks to prevent its erotic message. Therefore, they reason that the application of the Indiana statute to the nude dancing in this case violates the First Amendment, because it fails the third part of the O’Brien test, viz: the governmental interest must be unrelated to the suppression of free expression. But we do not think that when Indiana applies its statute to the nude dancing in these nightclubs it is proscribing nudity because of the erotic message conveyed by the dancers. BARNES v. GLEN THEATRE, INC. 571 560 Opinion of Rehnquist, C. J. Presumably numerous other erotic performances are presented at these establishments and similar clubs without any interference from the State, so long as the performers wear a scant amount of clothing. Likewise, the requirement that the dancers don pasties and G-strings does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic. The perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. The appearance of people of all shapes, sizes and ages in the nude at a beach, for example, would convey little if any erotic message, yet the State still seeks to prevent it. Public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity. This conclusion is buttressed by a reference to the facts of O’Brien. An Act of Congress provided that anyone who knowingly destroyed a Selective Service registration certificate committed an offense. O’Brien burned his certificate on the steps of the South Boston Courthouse to influence others to adopt his antiwar beliefs. This Court upheld his conviction, reasoning that the continued availability of issued certificates served a legitimate and substantial purpose in the administration of the Selective Service System. O’Brien’s deliberate destruction of his certificate frustrated this purpose and “[f ]or this noncommunicative impact of his conduct, and for nothing else, he was convicted.” 391 U. S., at 382. It was assumed that O’Brien’s act in burning the certificate had a communicative element in it sufficient to bring into play the First Amendment, id., at 376, but it was for the noncommunicative element that he was prosecuted. So here with the Indiana statute; while the dancing to which it was applied had a communicative element, it was not the dancing that was prohibited, but simply its being done in the nude. The fourth part of the O’Brien test requires that the incidental restriction on First Amendment freedom be no greater than is essential to the furtherance of the governmental interest. As indicated in the discussion above, the 572 OCTOBER TERM, 1990 Scalia, J., concurring in judgment 501 U. S. governmental interest served by the text of the prohibition is societal disapproval of nudity in public places and among strangers. The statutory prohibition is not a means to some greater end, but an end in itself. It is without cavil that the public indecency statute is “narrowly tailored”; Indiana’s requirement that the dancers wear at least pasties and G-strings is modest, and the bare minimum necessary to achieve the State’s purpose. The judgment of the Court of Appeals accordingly is Reversed. Justice Scalia, concurring in the judgment. I agree that the judgment of the Court of Appeals must be reversed. In my view, however, the challenged regulation must be upheld, not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment scrutiny at all. I Indiana’s public indecency statute provides: “(a) A person who knowingly or intentionally, in a public place: “(1) engages in sexual intercourse; “(2) engages in deviate sexual conduct; “(3) appears in a state of nudity; or “(4) fondles the genitals of himself or another person; commits public indecency, a Class A misdemeanor. “(b) ‘Nudity’ means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a dis-cernibly turgid state.” Ind. Code §35-45-4-1 (1988). On its face, this law is not directed at expression in particular. As Judge Easterbrook put it in his dissent below: “Indi- BARNES v. GLEN THEATRE, INC. 573 560 Scalia, J., concurring in judgment ana does not regulate dancing. It regulates public nudity. . . . Almost the entire domain of Indiana’s statute is unrelated to expression, unless we view nude beaches and topless hot dog vendors as speech.” Miller v. Civil City of South Bend, 904 F. 2d 1081, 1120 (CA7 1990). The intent to convey a “message of eroticism” (or any other message) is not a necessary element of the statutory offense of public indecency; nor does one commit that statutory offense by conveying the most explicit “message of eroticism,” so long as he does not commit any of the four specified acts in the process.1 Indiana’s statute is in the line of a long tradition of laws against public nudity, which have never been thought to run afoul of traditional understanding of “the freedom of speech.” Public indecency—including public nudity—has long been an offense at common law. See 50 Am. Jur. 2d, Lewdness, Indecency, and Obscenity § 17, pp. 449, 472-474 (1970); Annot., Criminal offense predicated on indecent exposure, 93 A. L. R. 996, 997-998 (1934); Winters n. New York, 333 U. S. 507, 515 (1948). Indiana’s first public nudity statute, Rev. Laws of Ind., ch. 26, §60 (1831), predated by many years the appearance of nude barroom dancing. It was general in scope, directed at all public nudity, and not just at public nude expression; and all succeeding statutes, down to 1 Respondents assert that the statute cannot be characterized as a general regulation of conduct, unrelated to suppression of expression, because one defense put forward in oral argument below by the attorney general referred to the “message of eroticism” conveyed by respondents. But that argument seemed to go to whether the statute could constitutionally be applied to the present performances, rather than to what was the purpose of the legislation. Moreover, the State’s argument below was in the alternative: (1) that the statute does not implicate the First Amendment because it is a neutral rule not directed at expression, and (2) that the statute in any event survives First Amendment scrutiny because of the State’s interest in suppressing nude barroom dancing. The second argument can be claimed to contradict the first (though I think it does not); but it certainly does not waive or abandon it. In any case, the clear purpose shown by both the text and historical use of the statute cannot be refuted by a litigating statement in a single case. 574 OCTOBER TERM, 1990 Scalia, J., concurring in judgment 501 U. S. the present one, have been the same. Were it the case that Indiana in practice targeted only expressive nudity, while turning a blind eye to nude beaches and unclothed purveyors of hot dogs and machine tools, see Miller, 904 F. 2d, at 1120, 1121, it might be said that what posed as a regulation of conduct in general was in reality a regulation of only communicative conduct. Respondents have adduced no evidence of that. Indiana officials have brought many public indecency prosecutions for activities having no communicative element. See Bond v. State, 515 N. E. 2d 856, 857 (Ind. 1987); In re Levinson, 444 N. E. 2d 1175, 1176 (Ind. 1983); Preston n. State, 259 Ind. 353, 354-355, 287 N. E. 2d 347, 348 (1972); Thomas v. State, 238 Ind. 658, 659-660, 154 N. E. 2d 503, 504-505 (1958); Blanton n. State, 533 N. E. 2d 190, 191 (Ind. App. 1989); Sweeney v. State, 486 N. E. 2d 651, 652 (Ind. App. 1985); Thompson v. State, 482 N. E. 2d 1372, 1373-1374 (Ind. App. 1985); Adims v. State, 461 N. E. 2d 740, 741-742 (Ind. App. 1984); State v. Elliott, 435 N. E. 2d 302, 304 (Ind. App. 1982); Lasko v. State, 409 N. E. 2d 1124, 1126 (Ind. App. 1980).2 The dissent confidently asserts, post, at 590-591, that the purpose of restricting nudity in public places in general is to protect nonconsenting parties from offense; and argues that since only consenting, admission-paying patrons see respondents dance, that purpose cannot apply and the only remaining purpose must relate to the communicative elements of the performance. Perhaps the dissenters believe that “offense to others” ought to be the only reason for restricting nudity in public places generally, but there is no 2 Respondents also contend that the statute, as interpreted, is not content neutral in the expressive conduct to which it applies, since it allegedly does not apply to nudity in theatrical productions. See State v. Baysinger, 272 Ind. 236, 247, 397 N. E. 2d 580, 587 (1979). I am not sure that theater versus nontheater represents a distinction based on content rather than format, but assuming that it does, the argument nonetheless fails for the reason the plurality describes, ante, at 564, n. 1. BARNES v. GLEN THEATRE, INC. 575 560 Scalia, J., concurring in judgment basis for thinking that our society has ever shared that Thoreauvian “you-may-do-what-you-like-so-long-as-it-does-not-injure-someone-else” beau ideal—much less for thinking that it was written into the Constitution. The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosier Dome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, “contra bonos mores,” i. e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist (though I have found few ready to abandon, in principle, all of them), there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate “morality.” See Bowers v. Hardwick, 478 U. S. 186, 196 (1986) (upholding prohibition of private homosexual sodomy enacted solely on “the presumed belief of a majority of the electorate in [the jurisdiction] that homosexual sodomy is immoral and unacceptable”). See also Paris Adult Theatre I v. Slaton, 413 U. S. 49, 68, n. 15 (1973); Dronenburg v. Zech, 239 U. S. App. D. C. 229, 238, and n. 6, 741 F. 2d 1388,1397, and n. 6 (1984) (opinion of Bork, J.). The purpose of the Indiana statute, as both its text and the manner of its enforcement demonstrate, is to enforce the traditional moral belief that people should not expose their private parts indiscriminately, regardless of whether those who see them are disedi-fied. Since that is so, the dissent has no basis for positing that, where only thoroughly edified adults are present, the purpose must be repression of communication.3 8 The dissent, post, at 590, 595-596, also misunderstands what is meant by the term “general law.” I do not mean that the law restricts the tar- 576 OCTOBER TERM, 1990 Scalia, J., concurring in judgment 501 U. S. II Since the Indiana regulation is a general law not specifically targeted at expressive conduct, its application to such conduct does not in my view implicate the First Amendment. The First Amendment explicitly protects “the freedom of speech [and] of the press”—oral and written speech—not “expressive conduct.” When any law restricts speech, even for a purpose that has nothing to do with the suppression of communication (for instance, to reduce noise, see Saia v. New York, 334 U. S. 558, 561 (1948), to regulate election campaigns, see Buckley n. Valeo, 424 U. S. 1, 16 (1976), or to prevent littering, see Schneider n. State (Town of Irvington), 308 U. S. 147, 163 (1939)), we insist that it meet the high, First Amendment standard of justification. But virtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purpose—if only expressive of the fact that the actor disagrees with the prohibition. See, e. g., Florida Free Beaches, Inc. y, Miami, 734 F. 2d 608, 609 (CA11 1984) (nude sunbathers challenging public indecency law claimed their “message” was that nudity is not indecent). It cannot reasonably be demanded, therefore, that every restriction of expression incidentally produced by a general law regulating conduct pass normal First Amendment scrutiny, or even—as some of our cases have suggested, see, e. g., United States v. O’Brien, 391 U. S. 367, 377 (1968)—that it be justified by an “important or sub- geted conduct in all places at all times. A law is “general” for the present purposes if it regulates conduct without regard to whether that conduct is expressive. Concededly, Indiana bans nudity in public places, but not within the privacy of the home. (That is not surprising, since the commonlaw offense, and the traditional moral prohibition, runs against public nudity, not against all nudity. E. g., 50 Am. Jur. 2d, Lewdness, Indecency, and Obscenity § 17, pp. 472-474 (1970)). But that confirms, rather than refutes, the general nature of the law: One may not go nude in public, whether or not one intends thereby to convey a message, and similarly one may go nude in private, again whether or not that nudity is expressive. BARNES v. GLEN THEATRE, INC. 577 560 Scalia, J., concurring in judgment stantial” government interest. Nor do our holdings require such justification: We have never invalidated the application of a general law simply because the conduct that it reached was being engaged in for expressive purposes and the government could not demonstrate a sufficiently important state interest. This is not to say that the First Amendment affords no protection to expressive conduct. Where the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional. See, e. g., United States v. Eichman, 496 U. S. 310 (1990) (burning flag); Texas v. Johnson, 491 U. S. 397 (1989) (same); Spence v. Washington, 418 U. S. 405 (1974) (defacing flag); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969) (wearing black arm bands); Brown n. Louisiana, 383 U. S. 131 (1966) (participating in silent sit-in); Stromberg n. California, 283 U. S. 359 (1931) (flying a red flag).4 In each of the foregoing cases, we explicitly found that suppressing communication was the object of the regulation of conduct. Where that has not been the case, however—where suppression of communicative use of the conduct was merely the incidental effect of forbidding the conduct for other reasons—we have allowed the regulation to stand. O'Brien, supra, at 377 (law banning destruction of draft card upheld in application against card burning to pro 4 It is easy to conclude that conduct has been forbidden because of its communicative attributes when the conduct in question is what the Court has called “inherently expressive,” and what I would prefer to call “conventionally expressive”—such as flying a red flag. I mean by that phrase (as I assume the Court means by “inherently expressive”) conduct that is normally engaged in for the purpose of communicating an idea, or perhaps an emotion, to someone else. I am not sure whether dancing fits that description, see Dallas n. Stanglin, 490 U. S. 19, 24 (1989) (social dance group “do[es] not involve the sort of expressive association that the First Amendment has been held to protect”). But even if it does, this law is directed against nudity, not dancing. Nudity is not normally engaged in for the purpose of communicating an idea or an emotion. 578 OCTOBER TERM, 1990 Scalia, J., concurring in judgment 501 U. S. test war); FTC n. Superior Court Trial Lawyers Assn., 493 U. S. 411 (1990) (Sherman Act upheld in application against restraint of trade to protest low pay); cf. United States v. Albertini, 472 U. S. 675, 687-688 (1985) (rule barring respondent from military base upheld in application against entrance on base to protest war); Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) (rule barring sleeping in parks upheld in application against persons engaging in such conduct to dramatize plight of homeless). As we clearly expressed the point in Johnson: “The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. What might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription.” 491 U. S., at 406 (internal quotation marks and citations omitted; emphasis in original). All our holdings (though admittedly not some of our discussion) support the conclusion that “the only First Amendment analysis applicable to laws that do not directly or indirectly impede speech is the threshold inquiry of whether the purpose of the law is to suppress communication. If not, that is the end of the matter so far as First Amendment guarantees are concerned; if so, the court then proceeds to determine whether there is substantial justification for the proscription.” Community for Creative Non-Violence v. Watt, 227 U. S. App. D. C. 19, 55-56, 703 F. 2d 586, 622-623 (1983) (en banc) (Scalia, J., dissenting), (footnote omitted; emphasis omitted), rev’d sub nom. Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984). Such a regime ensures that the government does not act to suppress communication, without requiring that all conduct-restricting regulation BARNES v. GLEN THEATRE, INC. 579 560 Scalia, J., concurring in judgment (which means in effect all regulation) survive an enhanced level of scrutiny. We have explicitly adopted such a regime in another First Amendment context: that of free exercise. In Employment Div., Dept, of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), we held that general laws not specifically targeted at religious practices did not require heightened First Amendment scrutiny even though they diminished some people’s ability to practice their religion. “The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’” Id., at 885, quoting Lyng n. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 451 (1988); see also Minersville School District v. Gobitis, 310 U. S. 586, 594-595 (1940) (Frankfurter, J.) (“Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs”). There is even greater reason to apply this approach to the regulation of expressive conduct. Relatively few can plausibly assert that their illegal conduct is being engaged in for religious reasons; but almost anyone can violate almost any law as a means of expression. In the one case, as in the other, if the law is not directed against the protected value (religion or expression) the law must be obeyed. Ill While I do not think the plurality’s conclusions differ greatly from my own, I cannot entirely endorse its reasoning. The plurality purports to apply to this general law, insofar as it regulates this allegedly expressive conduct, an intermediate level of First Amendment scrutiny: The government interest in the regulation must be “‘important or substantial,’” ante, at 567, quoting O’Brien, supra, at 377. As I have indi- 580 OCTOBER TERM, 1990 501 U. S. Scalia, J., concurring in judgment cated, I do not believe such a heightened standard exists. I think we should avoid wherever possible, moreover, a method of analysis that requires judicial assessment of the “importance” of government interests—and especially of government interests in various aspects of morality. Neither of the cases that the plurality cites to support the “importance” of the State’s interest here, see ante, at 569, is in point. Paris Adult Theatre I n. Slaton, 413 U. S., at 61, and Bowers v. Hardwick, 478 U. S., at 196, did uphold laws prohibiting private conduct based on concerns of decency and morality; but neither opinion held that those concerns were particularly “important” or “substantial,” or amounted to anything more than a rational basis for regulation. Slaton involved an exhibition which, since it was obscene and at least to some extent public, was unprotected by the First Amendment, see Roth v. United States, 354 U. S. 476 (1957); the State’s prohibition could therefore be invalidated only if it had no rational basis. We found that the State’s “right ... to maintain a decent society” provided a “legitimate” basis for regulation—even as to obscene material viewed by consenting adults. 413 U. S., at 59-60. In Bowers, we held that since homosexual behavior is not a fundamental right, a Georgia law prohibiting private homosexual intercourse needed only a rational basis in order to comply with the Due Process Clause. Moral opposition to homosexuality, we said, provided that rational basis. 478 U. S., at 196. I would uphold the Indiana statute on precisely the same ground: Moral opposition to nudity supplies a rational basis for its prohibition, and since the First Amendment has no application to this case no more than that is needed. * * * Indiana may constitutionally enforce its prohibition of public nudity even against those who choose to use public nudity as a means of communication. The State is regulating conduct, not expression, and those who choose to employ con- BARNES v. GLEN THEATRE, INC. 581 560 Souter, J., concurring in judgment duct as a means of expression must make sure that the conduct they select is not generally forbidden. For these reasons, I agree that the judgment should be reversed. Justice Souter, concurring in the judgment. Not all dancing is entitled to First Amendment protection as expressive activity. This Court has previously categorized ballroom dancing as beyond the Amendment’s protection, Dallas v. Stang Un, 490 U. S. 19, 24-25 (1989), and dancing as aerobic exercise would likewise be outside the First Amendment’s concern. But dancing as a performance directed to an actual or hypothetical audience gives expression at least to generalized emotion or feeling, and where the dancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience. Such is the expressive content of the dances described in the record. Although such performance dancing is inherently expressive, nudity per se is not. It is a condition, not an activity, and the voluntary assumption of that condition, without more, apparently expresses nothing beyond the view that the condition is somehow appropriate to the circumstances. But every voluntary act implies some such idea, and the implication is thus so common and minimal that calling all voluntary activity expressive would reduce the concept of expression to the point of the meaningless. A search for some expression beyond the minimal in the choice to go nude will often yield nothing: a person may choose nudity, for example, for maximum sunbathing. But when nudity is combined with expressive activity, its stimulative and attractive value certainly can enhance the force of expression, and a dancer’s acts in going from clothed to nude, as in a striptease, are integrated into the dance and its expressive function. Thus I agree with the plurality and the dissent that an interest in freely engaging in the nude dancing at issue here is subject to a degree of First Amendment protection. 582 OCTOBER TERM, 1990 Souter, J., concurring in judgment 501 U. S. I also agree with the plurality that the appropriate analysis to determine the actual protection required by the First Amendment is the four-part enquiry described in United States v. O’Brien, 391 U. S. 367 (1968), for judging the limits of appropriate state action burdening expressive acts as distinct from pure speech or representation. I nonetheless write separately to rest my concurrence in the judgment, not on the possible sufficiency of society’s moral views to justify the limitations at issue, but on the State’s substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents’ establishments. It is, of course, true that this justification has not been articulated by Indiana’s Legislature or by its courts. As the plurality observes, “Indiana does not record legislative history, and the State’s highest court has not shed additional light on the statute’s purpose,” ante, at 568. While it is certainly sound in such circumstances to infer general purposes “of protecting societal order and morality . . . from [the statute’s] text and history,” ibid., I think that we need not so limit ourselves in identifying the justification for the legislation at issue here, and may legitimately consider petitioners’ assertion that the statute is applied to nude dancing because such dancing “encourag[es] prostitution, increas[es] sexual assaults, and attract[s] other criminal activity.” Brief for Petitioners 37. This asserted justification for the statute may not be ignored merely because it is unclear to what extent this purpose motivated the Indiana Legislature in enacting the statute. Our appropriate focus is not an empirical enquiry into the actual intent of the enacting legislature, but rather the existence or not of a current governmental interest in the service of which the challenged application of the statute may be constitutional. Cf. McGowan v. Maryland, 366 U. S. 420 BARNES v. GLEN THEATRE, INC. 583 560 Souter, J., concurring in judgment (1961). At least as to the regulation of expressive conduct,1 “[w]e decline to void [a statute] essentially on the ground that it is unwise legislation which [the legislature] had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a ‘wiser’ speech about it.” O’Brien, supra, at 384. In my view, the interest asserted by petitioners in preventing prostitution, sexual assault, and other criminal activity, although presumably not a justification for all applications of the statute, is sufficient under O’Brien to justify the State’s enforcement of the statute against the type of adult entertainment at issue here. At the outset, it is clear that the prevention of such evils falls within the constitutional power of the State, which satisfies the first O’Brien criterion. See 391 U. S., at 377. The second O’Brien prong asks whether the regulation “furthers an important or substantial governmental interest.” Ibid. The asserted state interest is plainly a substantial one; the only question is whether prohibiting nude dancing of the sort at issue here “furthers” that interest. I believe that our cases have addressed this question sufficiently to establish that it does. In Renton n. Playtime Theatres, Inc., 475 U. S. 41 (1986), we upheld a city’s zoning ordinance designed to prevent the occurrence of harmful secondary effects, including the crime associated with adult entertainment, by protecting approximately 95% of the city’s area from the placement of motion picture theaters emphasizing “‘matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas” . . . for observation by patrons therein.’” Id., at 44. Of particular importance to the present enquiry, we held that the city of Renton was not compelled to justify its restrictions by studies specifically relating to the problems 1Qf., e. g., Edwards n. Aguillard, 482 U. S. 578 (1987) (striking down state statute on Establishment Clause grounds due to impermissible legislative intent). 584 OCTOBER TERM, 1990 Souter, J., concurring in judgment 501 U. S. that would be caused by adult theaters in that city. Rather, “Renton was entitled to rely on the experiences of Seattle and other cities,” id., at 51, which demonstrated the harmful secondary effects correlated with the presence “of even one [adult] theater in a given neighborhood.” Id., at 50; cf. Young v. American Mini Theatres, Inc., 427 U. S. 50, 71, n. 34 (1976) (legislative finding that “a concentration of ‘adult’ movie theaters causes the area to deteriorate and become a focus of crime”); California v. LaRue, 409 U. S. 109, 111 (1972) (administrative findings of criminal activity associated with adult entertainment). The type of entertainment respondents seek to provide is plainly of the same character as that at issue in Renton, American Mini Theatres, and LaRue. It therefore is no leap to say that live nude dancing of the sort at issue here is likely to produce the same pernicious secondary effects as the adult films displaying “specified anatomical areas” at issue in Renton. Other reported cases from the Circuit in which this litigation arose confirm the conclusion. See, e. g., United States v. Marren, 890 F. 2d 924, 926 (CA7 1989) (prostitution associated with nude dancing establishment); United States v. Doerr, 886 F. 2d 944, 949 (CA7 1989) (same). In light of Renton’s recognition that legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects, the State of Indiana could reasonably conclude that forbidding nude entertainment of the type offered at the Kitty Kat Lounge and the Glen Theatre’s “bookstore” furthers its interest in preventing prostitution, sexual assault, and associated crimes. Given our recognition that “society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate,” American Mini Theatres, supra, at 70, I do not believe that a State is required affirmatively to undertake to litigate this issue repeatedly in every BARNES v. GLEN THEATRE, INC. 585 560 Souter, J., concurring in judgment case. The statute as applied to nudity of the sort at issue here therefore satisfies the second prong of O’Brien.2 The third O’Brien condition is that the governmental interest be “unrelated to the suppression of free expression,” 391 U. S., at 377, and, on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression. The dissent contends, however, that Indiana seeks to regulate nude dancing as its means of combating such secondary effects “because . . . creating or emphasizing [the] thoughts and ideas [expressed by nude dancing] in the minds of the spectators may lead to increased prostitution,” post, at 592, and that regulation of expressive conduct because of the fear that the expression will prove persuasive is inherently related to the suppression of free expression. Ibid. The major premise of the dissent’s reasoning may be correct, but its minor premise describing the causal theory of Indiana’s regulatory justification is not. To say that pernicious secondary effects are associated with nude dancing establishments is not necessarily to say that such effects result from the persuasive effect of the expression inherent in nude dancing. It is to say, rather, only that the effects are correlated with the existence of establishments offering such dancing, without deciding what the precise causes of the correlation 2 Because there is no overbreadth challenge before us, we are not called upon to decide whether the application of the statute would be valid in other contexts. It is enough, then, to say that the secondary effects rationale on which I rely here would be open to question if the State were to seek to enforce the statute by barring expressive nudity in classes of productions that could not readily be analogized to the adult films at issue in Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). It is difficult to see, for example, how the enforcement of Indiana’s statute against nudity in a production of “Hair” or “Equus” somewhere other than an “adult” theater would further the State’s interest in avoiding harmful secondary effects, in the absence of evidence that expressive nudity outside the context of Renton-type adult entertainment was correlated with such secondary effects. 586 OCTOBER TERM, 1990 Souter, J., concurring in judgment 501 U. S. actually are. It is possible, for example, that the higher incidence of prostitution and sexual assault in the vicinity of adult entertainment locations results from the concentration of crowds of men predisposed to such activities, or from the simple viewing of nude bodies regardless of whether those bodies are engaged in expression or not. In neither case would the chain of causation run through the persuasive effect of the expressive component of nude dancing. Because the State’s interest in banning nude dancing results from a simple correlation of such dancing with other evils, rather than from a relationship between the other evils and the expressive component of the dancing, the interest is unrelated to the suppression of free expression. Renton is again persuasive in support of this conclusion. In Renton, we held that an ordinance that regulated adult theaters because the presence of such theaters was correlated with secondary effects that the local government had an interest in regulating was content neutral (a determination similar to the “unrelated to the suppression of free expression” determination here, see Clark v. Community for Creative Non-Violence, 468 U. S. 288, 298, and n. 8 (1984)) because it was “justified without reference to the content of the regulated speech.” 475 U. S., at 48 (emphasis in original). We reached this conclusion without need to decide whether the cause of the correlation might have been the persuasive effect of the adult films that were being regulated. Similarly here, the “secondary effects” justification means that enforcement of the Indiana statute against nude dancing is “justified without reference to the content of the regulated [expression],” ibid, (emphasis omitted), which is sufficient, at least in the context of sexually explicit expression,3 to satisfy the third prong of the O’Brien test. 31 reach this conclusion again mindful, as was the Court in Renton, that the protection of sexually explicit expression may be of lesser societal importance than the protection of other forms of expression. See Renton, BARNES v. GLEN THEATRE, INC. 587 560 White, J., dissenting The fourth O’Brien condition, that the restriction be no greater than essential to further the governmental interest, requires little discussion. Pasties and a G-string moderate the expression to some degree, to be sure, but only to a degree. Dropping the final stitch is prohibited, but the limitation is minor when measured against the dancer’s remaining capacity and opportunity to express the erotic message. Nor, so far as we are told, is the dancer or her employer limited by anything short of obscenity laws from expressing an erotic message by articulate speech or representational means; a pornographic movie featuring one of respondents, for example, was playing nearby without any interference from the authorities at the time these cases arose. Accordingly, I find O’Brien satisfied and concur in the judgment. Justice White, with whom Justice Marshall, Justice Blackmun, and Justice Stevens join, dissenting. The first question presented to us in this case is whether nonobscene nude dancing performed as entertainment is expressive conduct protected by the First Amendment. The Court of Appeals held that it is, observing that our prior decisions permit no other conclusion. Not surprisingly, then, the plurality now concedes that “nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment . . . .” Ante, at 566. This is no more than recognizing, as the Seventh Circuit observed, that dancing is an ancient art form and “inherently embodies the expression and communication of ideas and emotions.” Miller v. Civil City of South Bend, 904 F. 2d 1081, 1087 (1990) (en banc).* 1 supra, at 49, and n. 2, citing Young v. American Mini Theatres, Inc., 427 U. S. 50, 70 (1976). 1 Justice Scalia suggests that performance dancing is not inherently expressive activity, see ante, at 577, n. 4, but the Court of Appeals has the better view: “Dance has been defined as ‘the art of moving the body in a rhythmical way, usually to music, to express an emotion or idea, to narrate 588 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. Having arrived at the conclusion that nude dancing performed as entertainment enjoys First Amendment protection, the plurality states that it must “determine the level of protection to be afforded to the expressive conduct at issue, and must determine whether the Indiana statute is an impermissible infringement of that protected activity.” Ante, at 566. For guidance, the plurality turns to United States v. O'Brien, 391 U. S. 367 (1968), which held that expressive conduct could be narrowly regulated or forbidden in pursuit of an important or substantial governmental interest that is unrelated to the content of the expression. The plurality finds that the Indiana statute satisfies the O'Brien test in all respects. The plurality acknowledges that it is impossible to discern the exact state interests which the Indiana Legislature had in mind when it enacted the Indiana statute, but the plurality nonetheless concludes that it is clear from the statute’s text and history that the law’s purpose is to protect “societal order and morality.” Ante, at 568. The plurality goes on to a story, or simply to take delight in the movement itself.’ 16 The New Encyclopedia Britannica 935 (1989). Inherently, it is the communication of emotion or ideas. At the root of all ‘[t]he varied manifestations of dancing . . . lies the common impulse to resort to movement to externalise states which we cannot externalise by rational means. This is basic dance.’ Martin, J. Introduction to the Dance (1939). Aristotle recognized in Poetics that the purpose of dance is ‘to represent men’s character as well as what they do and suffer.’ The raw communicative power of dance was noted by the French poet Stéphane Mallarmé who declared that the dancer ‘writing with her body . . . suggests things which the written work could express only in several paragraphs of dialogue or descriptive prose.’ ” 904 F. 2d, at 1085-1086. Justice Scalia cites Dallas v. Stanglin, 490 U. S. 19 (1989), but that decision dealt with social dancing, not performance dancing; and the submission in that case, which we rejected, was not that social dancing was an expressive activity but that plaintiff’s associational rights were violated by restricting admission to dance halls on the basis of age. The Justice also asserts that even if dancing is inherently expressive, nudity is not. The statement may be true, but it tells us nothing about dancing in the nude. BARNES v. GLEN THEATRE, INC. 589 560 White, J., dissenting conclude that Indiana’s statute “was enacted as a general prohibition,” ante, at 568 (emphasis added), on people appearing in the nude among strangers in public places. The plurality then points to cases in which we upheld legislation based on the State’s police power, and ultimately concludes that the Indiana statute “furthers a substantial government interest in protecting order and morality.” Ante, at 569. The plurality also holds that the basis for banning nude dancing is unrelated to free expression and that it is narrowly drawn to serve the State’s interest. The plurality’s analysis is erroneous in several respects. Both the plurality and Justice Scalia in his opinion concurring in the judgment overlook a fundamental and critical aspect of our cases upholding the States’ exercise of their police powers. None of the cases they rely upon, including O’Brien and Bowers n. Hardwick, 478 U. S. 186 (1986), involved anything less than truly general proscriptions on individual conduct. In O’Brien, for example, individuals were prohibited from destroying their draft cards at any time and in any place, even in completely private places such as the home. Likewise, in Bowers, the State prohibited sodomy, regardless of where the conduct might occur, including the home as was true in that case. The same is true of cases like Employment Div., Dept, of Human Resources of Ore. n. Smith, 494 U. S. 872 (1990), which, though not applicable here because it did not involve any claim that the peyote users were engaged in expressive activity, recognized that the State’s interest in preventing the use of illegal drugs extends even into the home. By contrast, in this case Indiana does not suggest that its statute applies to, or could be applied to, nudity wherever it occurs, including the home. We do not understand the plurality or Justice Scalia to be suggesting that Indiana could constitutionally enact such an intrusive prohibition, nor do we think such a suggestion would be tenable in light of our decision in Stanley v. Georgia, 394 U. S. 557 (1969), in which we held that States could not punish the 590 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. mere possession of obscenity in the privacy of one’s own home. We are told by the attorney general of Indiana that, in State v. Baysinger, 272 Ind. 236, 397 N. E. 2d 580 (1979), the Indiana Supreme Court held that the statute at issue here cannot and does not prohibit nudity as a part of some larger form of expression meriting protection when the communication of ideas is involved. Brief for Petitioners 25, 30-31; Reply Brief for Petitioners 9-11. Petitioners also state that the evils sought to be avoided by applying the statute in this case would not obtain in the case of theatrical productions, such as “Salome” or “Hair.” Id., at 11-12. Neither is there any evidence that the State has attempted to apply the statute to nudity in performances such as plays, ballets, or operas. “No arrests have ever been made for nudity as part of a play or ballet.” App. 19 (affidavit of Sgt. Timothy Corbett). Thus, the Indiana statute is not a general prohibition of the type we have upheld in prior cases. As a result, the plurality and Justice Scalia’s simple references to the State’s general interest in promoting societal order and morality are not sufficient justification for a statute which concededly reaches a significant amount of protected expressive activity. Instead, in applying the O’Brien test, we are obligated to carefully examine the reasons the State has chosen to regulate this expressive conduct in a less than general statute. In other words, when the State enacts a law which draws a line between expressive conduct which is regulated and non-expressive conduct of the same type which is not regulated, O’Brien places the burden on the State to justify the distinctions it has made. Closer inquiry as to the purpose of the statute is surely appropriate. Legislators do not just randomly select certain conduct for proscription; they have reasons for doing so and those reasons illuminate the purpose of the law that is passed. Indeed, a law may have multiple purposes. The purpose of BARNES v. GLEN THEATRE, INC. 591 560 White, J., dissenting forbidding people to appear nude in parks, beaches, hot dog stands, and like public places is to protect others from offense. But that could not possibly be the purpose of preventing nude dancing in theaters and barrooms since the viewers are exclusively consenting adults who pay money to see these dances. The purpose of the proscription in these contexts is to protect the viewers from what the State believes is the harmful message that nude dancing communicates. This is why Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984), is of no help to the State: “In Clark . . . the damage to the parks was the same whether the sleepers were camping out for fun, were in fact homeless, or wished by sleeping in the park to make a symbolic statement on behalf of the homeless.” 904 F. 2d, at 1103 (Posner, J., concurring). That cannot be said in this case: The perceived damage to the public interest caused by appearing nude on the streets or in the parks, as I have said, is not what the State seeks to avoid in preventing nude dancing in theaters and taverns. There the perceived harm is the communicative aspect of the erotic dance. As the State now tells us, and as Justice Souter agrees, the State’s goal in applying what it describes as its “content neutral” statute to the nude dancing in this case is “deterrence of prostitution, sexual assaults, criminal activity, degradation of women, and other activities which break down family structure.” Reply Brief for Petitioners 11. The attainment of these goals, however, depends on preventing an expressive activity. The plurality nevertheless holds that the third requirement of the Cf Brien test, that the governmental interest be unrelated to the suppression of free expression, is satisfied because in applying the statute to nude dancing, the State is not “proscribing nudity because of the erotic message conveyed by the dancers.” Ante, at 570. The plurality suggests that this is so because the State does not ban dancing that sends an erotic message; it is only nude erotic dancing that is forbidden. The perceived evil is not erotic dancing but pub 592 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. lie nudity, which may be prohibited despite any incidental impact on expressive activity. This analysis is transparently erroneous. In arriving at its conclusion, the plurality concedes that nude dancing conveys an erotic message and concedes that the message would be muted if the dancers wore pasties and G-strings. Indeed, the emotional or erotic impact of the dance is intensified by the nudity of the performers. As Judge Posner argued in his thoughtful concurring opinion in the Court of Appeals, the nudity of the dancer is an integral part of the emotions and thoughts that a nude dancing performance evokes. 904 F. 2d, at 1090-1098. The sight of a fully clothed, or even a partially clothed, dancer generally will have a far different impact on a spectator than that of a nude dancer, even if the same dance is performed. The nudity is itself an expressive component of the dance, not merely incidental “conduct.” We have previously pointed out that “ ‘[n]udity alone’ does not place otherwise protected material outside the mantle of the First Amendment.” Schad v. Mt. Ephraim, 452 U. S. 61, 66 (1981). This being the case, it cannot be that the statutory prohibition is unrelated to expressive conduct. Since the State permits the dancers to perform if they wear pasties and G-strings but forbids nude dancing, it is precisely because of the distinctive, expressive content of the nude dancing performances at issue in this case that the State seeks to apply the statutory prohibition. It is only because nude dancing performances may generate emotions and feelings of eroticism and sensuality among the spectators that the State seeks to regulate such expressive activity, apparently on the assumption that creating or emphasizing such thoughts and ideas in the minds of the spectators may lead to increased prostitution and the degradation of women. But generating thoughts, ideas, and emotions is the essence of communication. The nudity element of nude dancing performances can- BARNES v. GLEN THEATRE, INC. 593 560 White, J., dissenting not be neatly pigeonholed as mere “conduct” independent of any expressive component of the dance.2 That fact dictates the level of First Amendment protection to be accorded the performances at issue here. In Texas v. Johnson, 491 U. S. 397, 411-412 (1989), the Court observed: “Whether Johnson’s treatment of the flag violated Texas law thus depended on the likely communicative impact of his expressive conduct. . . .We must therefore subject the State’s asserted interest in preserving the special symbolic character of the flag to ‘the most exacting scrutiny.’ Boos v. Barry, 485 U. S. [312], 321 [(1988)].” Content based restrictions “will be upheld only if narrowly drawn to accomplish a compelling governmental interest.” United States v. Grace, 461 U. S. 171, 177 (1983); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). Nothing could be clearer from our cases. That the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine. The Court’s assessment of the artistic merits of nude dancing performances should not be the determining factor in deciding this case. In the words of Justice Harlan: “[I]t is largely because governmental officials cannot make principled deci 2 Justice Souter agrees with the plurality that the third requirement of the O’Brien test is satisfied, but only because he is not certain that there is a causal connection between the message conveyed by nude dancing and the evils which the State is seeking to prevent. See ante, at 585. Justice Souter’s analysis is at least as flawed as that of the plurality. If Justice Souter is correct that there is no causal connection between the message conveyed by the nude dancing at issue here and the negative secondary effects that the State desires to regulate, the State does not have even a rational basis for its absolute prohibition on nude dancing that is admittedly expressive. Furthermore, if the real problem is the “concentration of crowds of men predisposed” to the designated evils, ante, at 586, then the First Amendment requires that the State address that problem in a fashion that does not include banning an entire category of expressive activity. See Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). 594 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. sions in this area that the Constitution leaves matters of taste and style so largely to the individual.” Cohen v. California, 403 U. S. 15, 25 (1971). “[W]hile the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person who . . . wants some ‘entertainment’ with his beer or shot of rye.” Salem Inn, Inc. v. Frank, 501 F. 2d 18, 21, n. 3 (CA2 1974), aff’d in part sub nom. Doran n. Salem Inn, Inc., 422 U. S. 922 (1975). The plurality and Justice Souter do not go beyond saying that the state interests asserted here are important and substantial. But even if there were compelling interests, the Indiana statute is not narrowly drawn. If the State is genuinely concerned with prostitution and associated evils, as Justice Souter seems to think, or the type of conduct that was occurring in California v. LaRue, 409 U. S. 109 (1972), it can adopt restrictions that do not interfere with the expressiveness of nonobscene nude dancing performances. For instance, the State could perhaps require that, while performing, nude performers remain at all times a certain minimum distance from spectators, that nude entertainment be limited to certain hours, or even that establishments providing such entertainment be dispersed throughout the city. Cf. Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). Likewise, the State clearly has the authority to criminalize prostitution and obscene behavior. Banning an entire category of expressive activity, however, generally does not satisfy the narrow tailoring requirement of strict First Amendment scrutiny. See Frisby v. Schultz, 487 U. S. 474, 485 (1988). Furthermore, if nude dancing in barrooms, as compared with other establishments, is the most worrisome problem, the State could invoke its Twenty-first Amendment powers and impose appropriate regulation. New York State Liquor Authority v. Bellanca, 452 U. S. 714 (1981) (per curiam); California v. LaRue, supra. BARNES v. GLEN THEATRE, INC. 595 560 White, J., dissenting As I see it, our cases require us to affirm absent a compelling state interest supporting the statute. Neither the plurality nor the State suggest that the statute could withstand scrutiny under that standard. Justice Scalia’s views are similar to those of the plurality and suffer from the same defects. The Justice asserts that a general law barring specified conduct does not implicate the First Amendment unless the purpose of the law is to suppress the expressive quality of the forbidden conduct, and that, absent such purpose, First Amendment protections are not triggered simply because the incidental effect of the law is to proscribe conduct that is unquestionably expressive. Cf. Community for Creative Non-Violence v. Watt, 227 U. S. App. D. C. 19, 703 F. 2d 586, 622-623 (1983) (Scalia, J., dissenting). The application of the Justice’s proposition to this case is simple to state: The statute at issue is a general law banning nude appearances in public places, including barrooms and theaters. There is no showing that the purpose of this general law was to regulate expressive conduct; hence, the First Amendment is irrelevant and nude dancing in theaters and barrooms may be forbidden, irrespective of the expressiveness of the dancing. As I have pointed out, however, the premise for the Justice’s position—that the statute is a general law of the type our cases contemplate—is nonexistent in this case. Reference to Justice Scalia’s own hypothetical makes this clear. We agree with Justice Scalia that the Indiana statute would not permit 60,000 consenting Hoosiers to expose themselves to each other in the Hoosier Dome. No one can doubt, however, that those same 60,000 Hoosiers would be perfectly free to drive to their respective homes all across Indiana and, once there, to parade around, cavort, and revel in the nude for hours in front of relatives and friends. It is difficult to see why the State’s interest in morality is any less in that situation, especially if, as Justice Scalia seems to suggest, nudity is inherently evil, but clearly the statute does 596 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. not reach such activity. As we pointed out earlier, the State’s failure to enact a truly general proscription requires closer scrutiny of the reasons for the distinctions the State has drawn. See supra, at 590. As explained previously, the purpose of applying the law to the nude dancing performances in respondents’ establishments is to prevent their customers from being exposed to the distinctive communicative aspects of nude dancing. That being the case, Justice Scalia’s observation is fully applicable here: “Where the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional.” Ante, at 577. The O’Brien decision does not help Justice Scalia. Indeed, his position, like the plurality’s, would eviscerate the O’Brien test. Employment Div., Dept, of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), is likewise not on point. The Indiana law, as applied to nude dancing, targets the expressive activity itself; in Indiana nudity in a dancing performance is a crime because of the message such dancing communicates. In Smith, the use of drugs was not criminal because the use was part of or occurred within the course of an otherwise protected religious ceremony, but because a general law made it so and was supported by the same interests in the religious context as in others. Accordingly, I would affirm the judgment of the Court of Appeals, and dissent from this Court’s judgment. WISCONSIN PUBLIC INTERVENOR v. MORTIER 597 Syllabus WISCONSIN PUBLIC INTERVENOR et al. v. MORTIER et al. CERTIORARI TO THE SUPREME COURT OF WISCONSIN No. 89-1905. Argued April 24, 1991—Decided June 21, 1991 The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA or Act), 7 U. S. C. § 136 et seq., was primarily a pesticide licensing and labeling law until 1972, when it was transformed by Congress into a comprehensive regulatory statute. Among other things, the 1972 amendments significantly strengthened the pre-existing registration and labeling standards, specified that FIFRA regulates pesticide use as well as sales and labeling, and granted increased enforcement authority to the Environmental Protection Agency (EPA). Regarding state and local authorities, FIFRA, as amended, includes provisions requiring pesticide manufacturers to produce records for inspection “upon request of any officer or employee ... of any State or political subdivision,” § 136f(b); directing the EPA to cooperate with “any appropriate agency of any State or any political subdivision thereof ... in securing uniformity of regulations,” § 136t(b); and specifying that “[a] State” may regulate pesticide sale or use so long as such regulation does not permit a sale or use prohibited by the Act, § 136v(a). Pursuant to its statutory police power, petitioner town adopted an ordinance that, inter alia, requires a permit for certain applications of pesticides to private lands. After the town issued a decision unfavorable to respondent Mortier on his application for a permit to spray a portion of his land, he brought a declaratory judgment action in county court, claiming, among other things, that the ordinance was preempted by FIFRA. The court granted summary judgment for Mortier, and the Wisconsin Supreme Court affirmed, finding pre-emption on the ground that the Act’s text and legislative history demonstrate a clearly manifest congressional intent to prohibit any regulation of pesticides by local governmental units. Held: FIFRA does not pre-empt local governmental regulation of pesticide use. Pp. 604-616. (a) When considering pre-emption, this Court starts with the assumption that the States’ historic powers are not superseded by federal law unless that is the clear and manifest purpose of Congress. That purpose may be expressed in the terms of the statute itself. Absent explicit preemptive language, congressional intent to supersede state law may nonetheless be implicit if, for example, the federal Act touches a field in which the federal interest is so dominant that the federal system will be 598 OCTOBER TERM, 1990 Syllabus 501 U. S. assumed to preclude enforcement of state laws on the same subject. Even where Congress has not chosen to occupy a particular field, preemption may occur to the extent that state and federal law actually conflict, as when compliance with both is a physical impossibility, or when the state law stands as an obstacle to the accomplishment of Congress’ purposes and objectives. Pp. 604-605. (b) FIFRA nowhere expressly supersedes local regulation. Neither the Act’s language nor the legislative history relied on by the court below, whether read together or separately, suffices to establish preemption. The fact that § 136v(a) expressly refers only to “[a] State” as having the authority to regulate pesticide use, and the Act’s failure to include political subdivisions in its § 136(aa) definition of “State,” are wholly inadequate to demonstrate the requisite clear and manifest congressional intent. Mere silence is insufficient in this context. Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230. And the exclusion of local governments cannot be inferred from the express authorization to “State[s]” because that term is not self-limiting; political subdivisions are merely subordinate components of the very entity the statute empowers. Cf., e. g., Sailors v. Board of Ed. of Kent Cty., 387 U. S. 105, 108. Indeed, the more plausible reading of the express authorization leaves the allocation of regulatory authority to the absolute discretion of the States themselves, including the options of specific redelegation or leaving local regulation of pesticides in the hands of local authorities under existing state laws. Nor is there any merit to Mortier’s contention that the express references in §§ 136t(b) and 136f(b) to “political subdivision[s]” show that Congress made a clear distinction between nonregulatory authority, which may be exercised by such subdivisions, and the regulatory authority reserved to the “State[s]” in § 136v(a). Furthermore, the legislative history is at best ambiguous, reflecting a disagreement between the responsible congressional committees as to whether the provision that would become § 136v pre-empted local regulation. Pp. 606-610. (c) FIFRA also fails to provide any clear and manifest indication that Congress sought to supplant local authority over pesticide regulation impliedly. The argument that the 1972 amendments transformed the Act into a comprehensive statute that occupied the entire pesticide regulation field, and that certain provisions, including § 136v(a), reopened certain portions of the field to the States but not to political subdivisions, is unpersuasive. Section 136v itself undercuts any inference of field pre-emption, since § 136v(b) prohibits States from enacting or imposing labeling or packaging requirements that conflict with those required under FIFRA. This language would be pure surplusage if Congress had already occupied the entire field. Nor does FIFRA otherwise imply pre-emption. While the 1972 amendments turned the Act into a WISCONSIN PUBLIC INTERVENOR v. MORTIER 599 597 Syllabus comprehensive regulatory statute, substantial portions of the field are still left vacant, including the area at issue in this case. FIFRA nowhere seeks to establish an affirmative permit scheme for the actual use of pesticides or to occupy the field of local use permitting. Thus, the specific grant of authority in § 136v(a) must be read not as an exclusion of municipalities but as an act ensuring that the States could continue to regulate use and sales even where, such as with regard to the banning of mislabeled products, a narrow pre-emptive overlap might occur. Pp. 611-614. (d) There is no actual conflict either between FIFRA or the ordinance at issue or between the Act and local regulation generally. Compliance with both the ordinance and FIFRA is not a physical impossibility. Moreover, Mortier’s assertions that the ordinance stands as an obstacle to the Act’s goals of promoting pesticide regulation that is coordinated solely at the federal and state levels, that rests upon some degree of technical expertise, and that does not unduly burden interstate commerce are based on little more than snippets of legislative history and policy speculations and are unpersuasive. As is evidenced by § 136t(b), FIFRA implies a regulatory partnership between federal, state, and local governments. There is no indication that any coordination which the statute seeks to promote extends beyond the matters with which it expressly deals, or does so strongly enough to compel the conclusion that an independently enacted ordinance that falls outside the statute’s reach frustrates its purpose. Nor is there any indication in FIFRA that Congress felt that local ordinances necessarily rest on insufficient expertise and burden commerce. Pp. 614-616. 154 Wis. 2d 18, 452 N. W. 2d 555, reversed and remanded. White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Marshall, Blackmun, Stevens, O’Connor, Kennedy, and Souter, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, post, p. 616. Thomas J. Dawson, Assistant Attorney General of Wisconsin, argued the cause for petitioners. With him on the briefs was Linda K. Monroe. Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Stewart, Clifford M. Sloan, and David C. Shilton. 600 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Paul G. Kent argued the cause for respondents. With him on the brief was Richard J. Lewandowski. * Justice White delivered the opinion of the Court. This case requires us to consider whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA or Act), 61 Stat. 163, as amended, 7 U. S. C. § 136 et seq., pre-empts the regulation of pesticides by local governments. We hold that it does not. *Briefs of amici curiae urging reversal were filed for the State of Hawaii et al. by Warren Price III, Attorney General of Hawaii, and Girard D. Lau and Steven S. Michaels, Deputy Attorneys General, James H. Evans, Attorney General of Alabama, Roland W. Burris, Attorney General of Illinois, Robert T. Stephan, Attorney General of Kansas, Michael E. Carpenter, Attorney General of Maine, Frank J. Kelley, Attorney General of Michigan, William L. Webster, Attorney General of Missouri, Frankie Sue Del Papa, Attorney General of Nevada, Ernest Preate, Jr., Attorney General of Pennsylvania, Paul Van Dam, Attorney General of Utah, and Jeffrey L. Amestoy, Attorney General of Vermont; for the Conservation Law Foundation of New England, Inc., et al. by E. Susan Garsh, Robert E. McDonnell, and Maris L. Abbene; for the National Institute of Municipal Law Officers et al. by Robert J. Alfton, William I. Thornton, Jr., and Analeslie Muncy; for the Village of Milford, Michigan, et al. by Patti A. Goldman, Alan B. Morrison, and Brian Wolfman. Briefs of amici curiae urging affirmance were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, R. H. Connett, Assistant Attorney General, and Charles W. Getz III, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, Linley E. Pearson of Indiana, J. Joseph Curran, Jr., of Maryland, Robert J. Del Tufo of New Jersey, and Kenneth 0. Eikenberry of Washington; for the American Association of Nurserymen et al. by Frederick A. Provomy and Robert A. Kirshner; for the American Farm Bureau Federation by John J. Rademacher and Richard L. Krause; for the Green Industry Council by Stephen S. Ostrach; for the Professional Lawn Care Association of America by Joseph D. Lonardo; for the National Pest Control Association et al. by Lawrence S. Ebner; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and John C. Scully. WISCONSIN PUBLIC INTERVENOR v. MORTIER 601 597 Opinion of the Court I A FIFRA was enacted in 1947 to replace the Federal Government’s first effort at pesticide regulation, the Insecticide Act of 1910, 36 Stat. 331. 61 Stat. 163. Like its predecessor, FIFRA as originally adopted “was primarily a licensing and labeling statute.” Ruckelshaus v. Monsanto Co., 467 U. S. 986, 991 (1984). In 1972, growing environmental and safety concerns led Congress to undertake a comprehensive revision of FIFRA through the Federal Environmental Pesticide Control Act. 86 Stat. 973. The 1972 amendments significantly strengthened FIFRA’s registration and labeling standards. 7 U. S. C. § 136a. To help make certain that pesticides would be applied in accordance with these standards, the revisions further insured that FIFRA “regulated the use, as well as the sale and labeling, of pesticides; regulated pesticides produced and sold in both intrastate and interstate commerce; [and] provided for review, cancellation, and suspension of registration.” Ruckelshaus, supra, at 991-992. An additional change was the grant of increased enforcement authority to the Environmental Protection Agency (EPA), which had been charged with federal oversight of pesticides since 1970. See Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15623 (1970), 5 U. S. C. App., p. 1343. In this fashion, the 1972 amendments “transformed FIFRA from a labeling law into a comprehensive regulatory statute.” 467 U. S., at 991. As amended, FIFRA specifies several roles for state and local authorities. The statute, for example, authorizes the EPA Administrator to enter into cooperative agreements with the States to enforce FIFRA provisions. 7 U. S. C. §§136u, 136w-l. As part of the enforcement scheme, FIFRA requires manufacturers to produce records for inspection “upon request of any officer or employee of the Environmental Protection Agency or of any State or political subdivision, duly designated by the Administrator.” §136f(b). 602 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. FIFRA further directs the EPA Administrator to cooperate with “any appropriate agency of any State or any political subdivision thereof.” § 136t(b). Of particular relevance to this case, § 24(a) specifies that States may regulate the sale or use of pesticides so long as the state regulation does not permit a sale or use prohibited by the Act. § 136v(a). B Petitioner, the town of Casey, is a small rural community located in Washburn County, Wisconsin, several miles northwest of Spooner, on the road to Superior.1 In 1985, the town adopted Ordinance 85-1, which regulates the use of pesticides. The ordinance expressly borrows statutory definitions from both Wisconsin laws and FIFRA, and was enacted under Wis. Stat. §§61.34(1), (5) (1989-1990), which accord village boards general police, health, and taxing powers.1 2 The ordinance requires a permit for the application of any pesticide to public lands, to private lands subject to public 1 The town has a population of from 400 to 500 persons, large enough to enact the ordinance at issue in this case. See Washburn County Directory 1982-83, cited in Brief for Respondents 4, n. 4; Tr. of Oral Arg. 12. 2 Section 61.34(1) provides: “Except as otherwise provided by law, the village board shall have the management and control of the village property, finances, highways, streets, navigable waters, and the public service, and shall have power to act for the government and good order of the village, for its commercial benefit and for the health, safety, welfare and convenience of the public, and may carry its powers into effect by license, regulation, suppression, borrowing, taxation, special assessment, appropriation, fine, imprisonment, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants and shall be limited only by express language.” Section 61.34(5) provides: “For the purpose of giving to villages the largest measure of self-government in accordance with the spirit of article XI, section 3, of the [Wisconsin] constitution it is hereby declared that this chapter shall be liberally construed in favor of the rights, powers and privileges of villages to promote the general welfare, peace, good order and prosperity of such villages and the inhabitants thereof.” WISCONSIN PUBLIC INTERVENOR v. MORTIER 603 597 Opinion of the Court use, or for the aerial application of any pesticide to private lands. § 1.2, 2 App. to Pet. for Cert. 6. A permit applicant must file a form including information about the proposed pesticide use not less than 60 days before the desired use. §1.3(2), id., at 7. The town board may “deny the permit, grant the permit, or grant the permit with . . . any reasonable conditions on a permitted application related to the protection of the health, safety and welfare of the residents of the Town of Casey.” § 1.3(3), id., at 11-12. After an initial decision, the applicant or any town resident may obtain a hearing to provide additional information regarding the proposed application. §§ 1.3(4), (5), id., at 12-14. When a permit is granted, or granted with conditions, the ordinance further requires the permittee to post placards giving notice of the pesticide use and of any label information prescribing a safe reentry time. §1.3(7), id., at 14-16. Persons found guilty of violating the ordinance are subject to fines of up to $5,000 for each violation. § 1.3(7)(c), id., at 16. Respondent Ralph Mortier applied for a permit for aerial spraying of a portion of his land. The town granted him a permit, but precluded any aerial spraying and restricted the lands on which ground spraying would be allowed. Mortier, in conjunction with respondent Wisconsin Forestry/Rights-of-Way/Turf Coalition,3 brought a declaratory judgment action in the Circuit Court for Washburn County against the town of Casey and named board members, claiming that the town of Casey’s ordinance is pre-empted by state and federal law. The Wisconsin Public Intervenor, an assistant attorney general charged under state law with the protection of environmental public rights, Wis. Stat. §§ 165.07, 165.075 (1989-1990), was admitted without objection as a party defendant. On cross-motions for summary judgment, the Circuit Court ruled in favor of Mortier, holding that the town’s 3 The coalition is an unincorporated, nonprofit association of individual businesses and other associations whose members use pesticides. 604 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. ordinance was pre-empted both by FIFRA and by state statute, §§94.67-94.71; 2 App. to Pet. for Cert. 14. The Supreme Court of Wisconsin affirmed in a 4-to-3 decision. Mortier v. Casey, 154 Wis. 2d 18, 452 N. W. 2d 555 (1990). Declining to address the issue of state-law preemption, the court concluded that FIFRA pre-empted the town of Casey’s ordinance because the statute’s text and legislative history demonstrated a clearly manifest congressional intent to prohibit “any regulation of pesticides by local units of government.” Id., at 20, n. 2, and 30, 452 N. W. 2d, at 555, n. 2, and 560. The court’s decision accorded with the judgments of two Federal Courts of Appeals. Professional Lawn Care Association v. Milford, 909 F. 2d 929 (CA6 1990); Maryland Pest Control Association v. Montgomery County, 822 F. 2d 55 (CA4 1987), summarily aff’g 646 F. Supp. 109 (Md. 1986). Two separate dissents concluded that neither FIFRA’s language nor its legislative history expressed an intent to pre-empt local regulation. Casey, supra, at 33, 452 N. W. 2d, at 561 (Abrahamson, J., dissenting); 154 Wis. 2d, at 45, 452 N. W. 2d, at 566 (Steinmetz, J., dissenting). The dissenters’ conclusion in part relied on decisions reached by two State Supreme Courts. Central Maine Power Co. n. Lebanon, 571 A. 2d 1189 (Me. 1990); People ex rel. Deukme-jian v. County of Mendocino, 36 Cal. 3d 476, 683 P. 2d 1150 (1984). Given the importance of the issue and the conflict of authority, we granted certiorari. 498 U. S. 1045 (1991). We now reverse. II Under the Supremacy Clause, U. S. Const., Art. VI, cl. 2, state laws that “interfere with, or are contrary to the laws of congress, made in pursuance of the constitution” are invalid. Gibbons n. Ogden, 9 Wheat. 1, 211 (1824) (Marshall, C. J.). The ways in which federal law may pre-empt state law are well established and in the first instance turn on congressional intent. Ingersoll-Rand Co. v. McClendon, 498 U. S. 133 (1990). Congress’ intent to supplant state authority in a WISCONSIN PUBLIC INTERVENOR v. MORTIER 605 597 Opinion of the Court particular field may be express in the terms of the statute. Jones n. Rath Packing Co., 430 U. S. 519, 525 (1977). Absent explicit pre-emptive language, Congress’ intent to supersede state law in a given area may nonetheless be implicit if a scheme of federal regulation is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” if “the Act of Congress . . . touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” or if the goals “sought to be obtained” and the “obligations imposed” reveal a purpose to preclude state authority. Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). See Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, 461 U. S. 190, 203-204 (1983). When considering pre-emption, “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice, supra, at 230. Even when Congress has not chosen to occupy a particular field, pre-emption may occur to the extent that state and federal law actually conflict. Such a conflict arises when “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142-143 (1963), or when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines n. Davidowitz, 312 U. S. 52 (1941). It is, finally, axiomatic that “for the purposes of the Supremacy Clause, the constitutionality of local ordinances is analyzed in the same way as that of statewide laws.” Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 713 (1985). See, e. g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U. S. 624 (1973). 606 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Ill Applying these principles, we conclude that FIFRA does not pre-empt the town’s ordinance either explicitly or implicitly or by virtue of an actual conflict. A As the Wisconsin Supreme Court recognized, FIFRA nowhere expressly supersedes local regulation of pesticide use. The court, however, purported to find statutory language “which is indicative” of pre-emptive intent in the statute’s provision delineating the “Authority of States.” 7 U. S. C. § 136v. The key portions of that provision state: “(a) ... A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter. “(b) . . . Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.” Also significant, in the court’s eyes, was FIFRA’s failure to specify political subdivisions in defining “State” as “a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and American Samoa.” § 136(aa). It was not clear to the State Supreme Court, however, “that the statutory language [§§ 136v and 136(aa)] alone evince[d] congress’ manifest intent to deprive political subdivisions of authority to regulate pesticides.” Casey, 154 Wis. 2d, at 25, 452 N. W. 2d, at 557-558. It was nevertheless “possible” to infer from the statutory language alone that pesticide regulation by local entities was pre-empted; and when coupled with its legislative history, that language “unmistakably demonstrates the intent of Congress to pre-empt local ordinances such as that adopted by the Town of Casey.” Id., at 28, 452 N. W. 2d, at 559. The court’s holding thus WISCONSIN PUBLIC INTERVENOR v. MORTIER 607 597 Opinion of the Court rested on both §§ 136v and 136(aa) and their legislative history; neither the language nor the legislative history would have sufficed alone. There was no suggestion that absent the two critical sections, FIFRA was a sufficiently comprehensive statute to justify an inference that Congress had occupied the field to the exclusion of the States. Nor have the respondents argued in this Court to that effect. On the other hand, it is sufficiently clear that under the opinion announced by the court below, the State would have been precluded from permitting local authorities to regulate pesticides. We agree that neither the language of the statute nor its legislative history, standing alone, would suffice to pre-empt local regulation. But it is also our view that, even when considered together, the language and the legislative materials relied on below are insufficient to demonstrate the necessary congressional intent to pre-empt. As for the statutory language, it is wholly inadequate to convey an express preemptive intent on its own. Section 136v plainly authorizes the “States” to regulate pesticides and just as plainly is silent with reference to local governments. Mere silence, in this context, cannot suffice to establish a “clear and manifest purpose” to pre-empt local authority. Rice, supra, at 230. Even if FIFRA’s express grant of regulatory authority to the States could not be read as applying to municipalities, it would not follow that municipalities were left with no regulatory authority. Rather, it would mean that localities could not claim the regulatory authority explicitly conferred upon the States that might otherwise have been pre-empted through actual conflicts with federal law. At a minimum, localities would still be free to regulate subject to the usual principles of pre-emption. Properly read, the statutory language tilts in favor of local regulation. The principle is well settled that local “ ‘governmental units are “created as convenient agencies for exercising such of the governmental powers of the State as may be 608 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. entrusted to them” ... in [its] absolute discretion.’” Sailors v. Board of Ed. of Kent Cty., 387 U. S. 105, 108 (1967), quoting Reynolds v. Sims, 377 U. S. 533, 575 (1964), quoting Hunter v. Pittsburgh, 207 U. S. 161, 178 (1907). The exclusion of political subdivisions cannot be inferred from the express authorization to the “State[s]” because political subdivisions are components of the very entity the statute empowers. Indeed, the more plausible reading of FIFRA’s authorization to the States leaves the allocation of regulatory authority to the “absolute discretion” of the States themselves, including the option of leaving local regulation of pesticides in the hands of local authorities. Certainly no other textual basis for pre-emption exists. Mortier, building upon the decision below, contends that other provisions show that Congress made a clear distinction between nonregulatory authority, which it delegated to the States or their political subdivisions, and regulatory authority, which it expressly delegated to the “State[s]” alone. The provisions on which he relies, however, undercut his contention. Section 136t(b), for example, mandates that the EPA Administrator cooperate with “any appropriate agency of any State or any political subdivision thereof, in carrying out the provisions of this subchapter.” As an initial matter, the section does not limit “the provisions of the subchapter” which localities are authorized to carry out to “nonregulatory” provisions. Moreover, to read this provision as preempting localities would also require the anomalous result of pre-empting the actions of any agency to the extent it exercised state-delegated powers that included pesticide regulation. Likewise, § 136f(b) requires manufacturers to produce records for the inspection upon the request of any employee of the EPA “or of any State or political subdivision, duly designated by the Administrator.” Section 136u(a)(l), however, authorizes the Administrator to “delegate to any State . . . the authority to cooperate in the enforcement of this [Act] through the use of its personnel.” If the use of “State” WISCONSIN PUBLIC INTERVENOR v. MORTIER 609 597 Opinion of the Court in FIFRA impliedly excludes subdivisions, it is unclear why the one provision would allow the designation of local officials for enforcement purposes while the other would prohibit local enforcement authority altogether. Mortier, like the court below and other courts that have found pre-emption, attempts to compensate for the statute’s textual inadequacies by stressing the legislative history. Casey, 154 Wis. 2d, at 25-28, 452 N. W. 2d, at 558-559; Professional Lawn Care Association, 909 F. 2d, at 933-934. The evidence from this source, which centers on the meaning of what would become § 136v, is at best ambiguous. The House Agriculture Committee Report accompanying the proposed FIFRA amendments stated that it had “rejected a proposal which would have permitted political subdivisions to further regulate pesticides on the grounds that the 50 States and the Federal Government should provide an adequate number of regulatory jurisdictions.” H. R. Rep. No. 92-511, p. 16 (1971). While this statement indicates an unwillingness by Congress to grant political subdivisions regulatory authority, it does not demonstrate an intent to prevent the States from delegating such authority to its subdivisions, and still less does it show a desire to prohibit local regulation altogether. At least one other statement, however, concededly goes further. The Senate Committee on Agriculture and Forestry Report states outright that it “considered the decision of the House Committee to deprive political subdivisions of States and other local authorities of any authority or jurisdiction over pesticides and concurs with the decision of the House of Representatives.” S. Rep. No. 92-838, p. 16 (1972). But other Members of Congress clearly disagreed. The Senate Commerce Committee, which also had jurisdiction over the bill, observed that “[w]hile the [Senate] Agriculture Committee bill does not specifically prohibit local governments from regulating pesticides, the report of that committee states explicitly that local governments cannot regulate 610 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. pesticides in any manner. Many local governments now regulate pesticides to meet their own specific needs which they are often better able to perceive than are State and Federal regulators.” S. Rep. No. 92-970, p. 27 (1972). To counter the language in the Agriculture and Forestry Committee Report, the Commerce Committee proposed an amendment expressly authorizing local regulation among numerous other, unrelated proposals. This amendment was rejected after negotiations between the two Committees. See 118 Cong. Rec. 32251 (1972); H. R. Conf. Rep. No. 92-1540, p. 33 (1972). As a result, matters were left with the two principal Committees responsible for the bill in disagreement over whether it pre-empted pesticide regulation by political subdivisions. It is important to note, moreover, that even this disagreement was confined to the pre-emptive effect of FIFRA’s authorization of regulatory power to the States in § 136v. None of the Committees mentioned asserted that FIFRA pre-empted the field of pesticide regulation. Like FIFRA’s text, the legislative history thus falls far short of establishing that pre-emption of local pesticide regulation was the “clear and manifest purpose of Congress.” Rice, 331 U. S., at 230. We thus agree with the submission in the amicus brief of the United States expressing the views of the EPA, the agency charged with enforcing FIFRA.4 4 Justice Scalia’s foray into legislative history runs into several problems. For one, his concurrence argues that the House Agriculture Committee made it clear that it wanted localities “out of the picture” because its Report specifies as grounds for rejecting a proposal permitting the localities to regulate pesticides the observation that the Federal Government and the 50 States provided an adequate number of regulatory jurisdictions. Post, at 617. But the only way to infer that the Committee opposed not only a direct grant of regulatory authority upon localities but also state delegation of authority to regulate would be to suppose that the term “regulatory jurisdictions” meant regulatory for the purposes of exercising any authority at all as opposed to exercising authority derived from a direct WISCONSIN PUBLIC INTERVENOR v. MORTIER 611 597 Opinion of the Court B Likewise, FIFRA fails to provide any clear and manifest indication that Congress sought to supplant local authority federal grant. H. R. Rep. No. 92-511, p. 16 (1971). The language of the Report does not answer this question one way or another. The concurrence further contends that the Senate Agriculture Committee unequivocally expressed its view that § 136v should be read to deprive localities of regulatory authority over pesticide. This may be true, but it is hardly dispositive. Even if § 136v were sufficiently ambiguous to justify reliance on legislative history, the meaning a committee puts forward must at a minimum be within the realm of meanings that the provision, fairly read, could bear. Here the Report clearly states that § 136v should be read as a prohibition, but it is just as clear that the provision is written exclusively in terms of a grant. No matter how clearly its report purports to do so, a committee of Congress cannot take language that could only cover “flies” or “mosquitoes,” and tell the courts that it really covers “ducks.” Finally, the concurrence suggests that the Senate Commerce Committee Report reconfirmed the views of the two Agriculture Committees that § 136v prohibited local pesticide regulation. Post, at 618-620. But the Commerce Committee at no point states, clearly or otherwise, that it agrees that the section before it does this. Rather, the Report states that “[w]hile the Agriculture Committee bill does not specifically prohibit local governments from regulating pesticides, the report of that committee states explicitly that local governments cannot regulate pesticides in any manner.” S. Rep. No. 92-970, p. 27 (1972) (emphasis added). The Commerce Committee, indeed, went on to assert its policy differences with its Agriculture counterpart. It did this by attempting to strike at the root of the problem through changing the language of the provision itself. Far from showing agreement with its rival, the Commerce Committee’s words and actions show a body that, first, conceded no ground on the meaning of the disputed language and then, second, raised the stakes by seeking to insure that the language could go only its way. On both the existence and the desirability of a prohibition on local regulation, there can be no doubt that the Commerce and Agriculture Committees stood on the opposite sides of the Senate debate. As for the propriety of using legislative history at all, common sense suggests that inquiry benefits from reviewing additional information rather than ignoring it. As Chief Justice Marshall put it, “[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived.” United States v. Fisher, 2 Cranch 358, 386 612 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. over pesticide regulation impliedly. In particular, we reject the position of some courts, but not the court below, that the 1972 amendments transformed FIFRA into a comprehensive statute that occupied the field of pesticide regulation, and that certain provisions opened specific portions of the field to state regulation and much smaller portions to local regulation. See Professional Lawn Care, 909 F. 2d, at 933-934; Maryland Pest Control, 646 F. Supp., at 110-111; see also Brief for National Pest Control Association et al. as Amici Curiae 6-16; Brief for Washington Legal Foundation as Amicus Curiae 5-18. On this assumption, it has been argued, § 136v(a) could be viewed as opening the field of general pesticide regulation to the States yet leaving it closed to political subdivisions. This reasoning is unpersuasive. As an initial matter, it would still have to be shown under ordinary canons of construction that FIFRA’s delegation of authority to “State[sJ” would not therefore allow the States in turn to redelegate some of this authority to their political subdivisions either specifically or by leaving undisturbed their existing statutes that would otherwise provide local government with ample authority to regulate. We have already noted that § 136v(a) can be plausibly read to contemplate precisely such redelegation. The term “State” is not self-limiting since political subdivisions are merely subordinate components of the whole. The scattered mention of political subdivisions elsewhere in FIFRA does not require their exclusion here. The legislative history is complex and ambiguous. More importantly, field pre-emption cannot be inferred. In the first place, § 136v itself undercuts such an inference. (1805). Legislative history materials are not generally so misleading that jurists should never employ them in a good-faith effort to discern legislative intent. Our precedents demonstrate that the Court’s practice of utilizing legislative history reaches well into its past. See, e. g., Wallace v. Parker, 6 Pet. 680, 687-690 (1832). We suspect that the practice will likewise reach well into the future. WISCONSIN PUBLIC INTERVENOR v. MORTIER 613 597 Opinion of the Court The provision immediately following the statute’s grant of regulatory authority to the States declares that “[s]uch State shall not impose or continue in effect any requirements for labeling and packaging in addition to or different from those required under” FIFRA. § 136v(b). This language would be pure surplusage if Congress had intended to occupy the entire field of pesticide regulation. Taking such pre-emption as the premise, § 136v(a) would thus grant States the authority to regulate the “sale or use” of pesticides, while § 136v(b) would superfluously add that States did not have the authority to regulate “labeling or packaging,” an addition that would have been doubly superfluous given FIFRA’s historic focus on labeling to begin with. See Monsanto, 467 U. S., at 991. Nor does FIFRA otherwise imply pre-emption. While the 1972 amendments turned FIFRA into a “comprehensive regulatory statute,” Monsanto, supra, at 991, the resulting scheme was not “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Rice, supra, at 230. To the contrary, the statute leaves ample room for States and localities to supplement federal efforts even absent the express regulatory authorization of § 136v(a). FIFRA addresses numerous aspects of pesticide control in considerable detail, in particular: registration and classification, §136a; applicator certification, § 136b; inspection of pesticide production facilities, §§ 136e and 136g; and the possible ban and seizure of pesticides that are misbranded or otherwise fail to meet federal requirements, § 136k. These provisions reflect the general goal of the 1972 amendments to strengthen existing labeling requirements and ensure that these requirements were followed in practice. § 136k. See Monsanto, supra, at 991-992. FIFRA nonetheless leaves substantial portions of the field vacant, including the area at issue in this case. FIFRA nowhere seeks to establish an affirmative permit scheme for the actual use of pesticides. It certainly does not equate reg 614 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. istration and labeling requirements with a general approval to apply pesticides throughout the Nation without regard to regional and local factors like climate, population, geography, and water supply. Whatever else FIFRA may supplant, it does not occupy the field of pesticide regulation in general or the area of local use permitting in particular. In contrast to other implicitly pre-empted fields, the 1972 enhancement of FIFRA does not mean that the use of pesticides can occur “‘only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands.’” City of Burbank v. Lockheed Air Terminal, Inc., 411 U. S., at 634, quoting Northwest Airlines v. Minnesota, 322 U. S. 292, 303 (1944) (Jackson, J., concurring). The specific grant of authority in § 136v(a) consequently does not serve to hand back to the States powers that the statute had impliedly usurped. Rather, it acts to ensure that the States could continue to regulate use and sales even where, such as with regard to the banning of mislabled products, a narrow preemptive overlap might occur. As noted in our discussion of express pre-emption, it is doubtful that Congress intended to exclude localities from the scope of § 136v(a)’s authorization, but however this may be, the type of local regulation at issue here would not fall within any impliedly pre-empted field. C Finally, like the ERA, we discern no actual conflict either between FIFRA and the ordinance before us or between FIFRA and local regulation generally. Mortier does not rely, nor could he, on the theory that compliance with the ordinance and FIFRA is a “physical impossibility.” Florida Lime & Avocado Growers, 373 U. S., at 142-143. Instead, he urges that the town’s ordinance stands as an obstacle to the statute’s goals of promoting pesticide regulation that is coordinated solely on the federal and state levels, that rests upon some degree of technical expertise, and that does not WISCONSIN PUBLIC INTERVENOR v. MORTIER 615 597 Opinion of the Court unduly burden interstate commerce. Each one of these assertions rests on little more than snippets of legislative history and policy speculations. None of them is convincing. To begin with, FIFRA does not suggest a goal of regulatory coordination that sweeps either as exclusively or as broadly as Mortier contends. The statute gives no indication that Congress was sufficiently concerned about this goal to require pre-emption of local use ordinances simply because they were enacted locally. Mortier suggests otherwise, quoting legislative history which states that FIFRA establishes “a coordinated Federal-State administrative system to carry out the new program,” and raising the specter of gypsy moth hordes safely navigating through thousands of contradictory and ineffective municipal regulations. H. R. Rep. No. 92-511, at 1-2. As we have made plain, the statute does not expressly or impliedly preclude regulatory action by political subdivisions with regard to local use. To the contrary, FIFRA implies a regulatory partnership between federal, state, and local governments. Section 136t(b) expressly states that the Administrator “shall cooperate with . . . any appropriate agency of any State or any political subdivision thereof, in carrying out the provisions of this [Act] and in securing uniformity of regulations.” Nor does FIFRA suggest that any goal of coordination precludes local use ordinances because they were enacted independently of specific state or federal oversight. As we have also made plain, local use permit regulations—unlike labeling or certification—do not fall within an area that FIFRA’s “program” pre-empts or even plainly addresses. There is no indication that any coordination which the statute seeks to promote extends beyond the matters with which it deals, or does so strongly enough to compel the conclusion that an independently enacted ordinance that falls outside the statute’s reach frustrates its purpose. FIFRA provides even less indication that local ordinances must yield to statutory purposes of promoting technical 616 OCTOBER TERM, 1990 Scalia, J., concurring in judgment 501 U. S. expertise or maintaining unfettered interstate commerce. Once more, isolated passages of legislative history that were themselves insufficient to establish a pre-emptive congressional intent do not by themselves establish legislative goals with pre-emptive effect. See, e. g., S. Rep. No. 92-838, at 16. Mortier nonetheless asserts that local ordinances necessarily rest on insufficient expertise and burden commerce by allowing, among other things, large-scale crop infestation. As with the specter of the gypsy moth, Congress is free to find that local regulation does wreak such havoc and enact legislation with the purpose of preventing it. We are satisfied, however, that Congress has not done so yet. IV We hold that FIFRA does not pre-empt the town of Casey’s ordinance regulating the use of pesticides. The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. Justice Scalia, concurring in the judgment. I agree with the Court that FIFRA does not pre-empt local regulation, because I agree that the terms of the statute do not alone manifest a pre-emption of the entire field of pesticide regulation. Ante, at 611-614. If there were field preemption, 7 U. S. C. § 136v would be understood not as restricting certain types of state regulation (for which purpose it makes little sense to restrict States but not their subdivisions) but as authorizing certain types of state regulation (for which purpose it makes eminent sense to authorize States but not their subdivisions). But the field-pre-emption question is certainly a close one. Congress’ selective use of “State” and “State and political subdivisions thereof” would suggest the authorizing rather than restricting meaning of § 136v, were it not for the inconsistent usage pointed to in Part I of the Court’s opinion. WISCONSIN PUBLIC INTERVENOR v. MORTIER 617 597 Scalia, J., concurring in judgment As the Court today recognizes, see ante, at 606-607, the Wisconsin justices agreed with me on this point, and would have come out the way that I and the Court do but for the Committee Reports contained in FIFRA’s legislative history. I think they were entirely right about the tenor of those Reports. Their only mistake was failing to recognize how unreliable Committee Reports are—not only as a genuine indicator of congressional intent but as a safe predictor of judicial construction. We use them when it is convenient, and ignore them when it is not. Consider how the case would have been resolved if the Committee Reports were taken seriously: The bill to amend FIFRA (H. R. 10729) was reported out of the House Committee on Agriculture on September 25, 1971. According to the accompanying Committee Report: “The Committee rejected a proposal which would have permitted political subdivisions to further regulate pesticides on the grounds that the 50 States and the Federal Government should provide an adequate number of regulatory jurisdictions.” H. R. Rep. No. 92-511, p. 16 (1971). * Had the grounds for the rejection not been specified, it would be possible to entertain the Court’s speculation, ante, at 609, that the Committee might have been opposing only direct conferral upon localities of authority to regulate, in contrast to state delegation of authority to regulate. But once it is specified that an excessive number of regulatory jurisdictions is the problem—that “50 States and the Federal Government” are enough—then it becomes clear that the Committee wanted localities out of the picture, and thought that its bill placed them there. The House Agriculture Committee’s bill was passed by the full House on November 9, 1971, and upon transmittal to the Senate was referred to the Senate Committee on Agriculture and Forestry, which reported it out on June 7, 1972. The accompanying Committee Report both clearly confirms the 618 OCTOBER TERM, 1990 Scalia, J., concurring in judgment 501 U. S. foregoing interpretation of the House Committee Report, and clearly endorses the disposition that interpretation produces. “[We have] considered the decision of the House Committee to deprive political subdivisions of States and other local authorities of any authority or jurisdiction over pesticides and concu[r] with the decision of the House of Representatives. Clearly, the fifty States and the Federal Government provide sufficient jurisdictions to properly regulate pesticides. Moreover, few, if any, local authorities whether towns, counties, villages, or municipalities have the financial wherewithal to provide necessary expert regulation comparable with that provided by the State and Federal Governments. On this basis and on the basis that permitting such regulation would be an extreme burden on interstate commerce, it is the intent that section [136v], by not providing any authority to political subdivisions and other local authorities of or in the States, should be understood as depriving such local authorities and political subdivisions of any and all jurisdiction and authority over pesticides and the regulation of pesticides.” S. Rep. No. 92-838, pp. 16-17 (1972) (emphasis added). Clearer committee language “directing” the courts how to interpret a statute of Congress could not be found, and if such a direction had any binding effect, the question of interpretation in this case would be no question at all. But there is still more. After the Senate Agriculture Committee reported the bill to the floor, it was re-referred to the Committee on Commerce, which reported it out on July 19, 1972. The Report of that Committee, plus the accompanying proposals for amendment of H. R. 10729, reconfirmed the interpretation of the Senate and House Agriculture Committees. The Report said: WISCONSIN PUBLIC INTERVENOR v. MORTIER 619 597 Scalia, J., concurring in judgment “While the Agriculture Committee bill does not specifically prohibit local governments from regulating pesticides, the report of that committee states explicitly that local governments cannot regulate pesticides in any manner. Many local governments now regulate pesticides to meet their own specific needs which they are often better able to perceive than are State and Federal regulators.” S. Rep. No. 92-970, p. 27 (1972). The Court claims that this passage, plus the amendment that it explains, show that “the two principal Committees responsible for the bill [were] in disagreement over whether it pre-empted pesticide regulation by political subdivisions.” Ante, at 610. I confess that I am less practiced than others in the science of construing legislative history, but it seems to me that quite the opposite is the case. The Senate Commerce Committee Report does not offer a different interpretation of the pre-emptive effect of H. R. 10729. To the contrary, it acknowledges that the Report of the originating Committee “states explicitly that local governments cannot regulate pesticides in any manner,” and then proceeds to a statement (“Many local governments now regulate pesticides, etc.”) which questions not the existence but the desirability of that restriction on local regulatory power. And since it agreed with the interpretation but did not agree with the policy, the Senate Commerce Committee proposed an amendment to H. R. 10729, whose purpose, according to its Report, was to “giv[e] local governments the authority to regulate the sale or use of a pesticide beyond the requirements imposed by State and Federal authorities.” S. Rep. No. 92-970, supra, at 27. In a supplemental Report, the Senate Agriculture Committee opposed the Commerce Committee’s amendment, which it said would “giv[e] local governments the authority to regulate the sale or use of a pesticide,” thereby “vitiat[ing]” the earlier Agriculture Committee Report. S. Rep. No. 92-838, pt. 2, supra, at 46-47. This legislative history clearly demonstrates, I think, not (as the 620 OCTOBER TERM, 1990 Scalia, J., concurring in judgment 501 U. S. Court would have it) that the two principal Senate Committees disagreed about whether H. R. 10729 pre-empted local regulation, but that they were in complete accord that it did, and in disagreement over whether it ought to. Of course that does not necessarily say anything about what Congress as a whole thought. Assuming that all the members of the three Committees in question (as opposed to just the relevant Subcommittees) actually adverted to the interpretive point at issue here—which is probably an unrealistic assumption—and assuming further that they were in unanimous agreement on the point, they would still represent less than two-fifths of the Senate, and less than onetenth of the House. It is most unlikely that many Members of either Chamber read the pertinent portions of the Committee Reports before voting on the bill—assuming (we cannot be sure) that the Reports were available before the vote. Those pertinent portions, though they dominate our discussion today, constituted less than a quarter-page of the 82-page House Agriculture Committee Report, and less than a half-page each of the 74-page Senate Agriculture Committee Report, the 46-page Senate Commerce Committee Report, and the 73-page Senate Agriculture Committee Supplemental Report. Those Reports in turn were a minuscule portion of the total number of reports that the Members of Congress were receiving (and presumably even writing) during the period in question. In the Senate, at least, there was a vote on an amendment (the Commerce Committee proposal) that would have changed the result of the supposed interpretation. But the full Senate could have rejected that either because a majority of its Members disagreed with the Commerce Committee’s proposed policy; or because they disagreed with the Commerce Committee’s and the Agriculture Committee’s interpretation (and thus thought the amendment superfluous); or because they were blissfully ignorant of the entire dispute and simply thought that the Commerce WISCONSIN PUBLIC INTERVENOR v. MORTIER 621 597 Scalia, J., concurring in judgment Committee, by asking for recommittal and proposing 15 amendments, was being a troublemaker; or because three different minorities (enough to make a majority) had each of these respective reasons. We have no way of knowing; indeed, we have no way of knowing that they had any rational motive at all. All we know for sure is that the full Senate adopted the text that we have before us here, as did the full House, pursuant to the procedures prescribed by the Constitution; and that that text, having been transmitted to the President and approved by him, again pursuant to the procedures prescribed by the Constitution, became law. On the important question before us today, whether that law denies local communities throughout the Nation significant powers of self-protection, we should try to give the text its fair meaning, whatever various committees might have had to say—thereby affirming the proposition that we are a Government of laws, not of committee reports. That is, at least, the way I prefer to proceed. If I believed, however, that the meaning of a statute is to be determined by committee reports, I would have to conclude that a meaning opposite to our judgment has been commanded three times over—not only by one committee in each House, but by two Committees in one of them. Today’s decision reveals that, in their judicial application, Committee reports are a forensic rather than an interpretive device, to be invoked when they support the decision and ignored when they do not. To my mind that is infinitely better than honestly giving them dispositive effect. But it would be better still to stop confusing the Wisconsin Supreme Court, and not to use committee reports at all. * * * The Court responds to this concurrence in a footnote, ante, at 610-612, n. 4, asserting that the legislative history is 622 OCTOBER TERM, 1990 Scalia, J., concurring in judgment 501 U. S. really ambiguous. I leave it to the reader to judge. I must reply, however, to the Court’s assertion that the “practice of utilizing legislative history reaches well into [our] past,” ante, at 612, n. 4, for which proposition it cites an opinion written by none other than John Marshall himself, Wallace n. Parker, 6 Pet. 680 (1832). What the Court neglects to explain is that what it means by the “practice of utilizing legislative history” is not the practice of utilizing legislative history for the purpose of giving authoritative content to the meaning of a statutory text—which is the only practice I object to. Marshall used factual statements in the report of an Ohio legislative committee “as part of the record” in the case, id., at 689, 690, assuming that that was permissible “under the laws of Ohio,” ibid. I do not object to such use. But that is quite different from the recent practice of relying upon legislative material to provide an authoritative interpretation of a statutory text. That would have shocked John Marshall. As late as 1897, we stated quite clearly that there is “a general acquiescence in the doctrine that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body.” United States v. Trans-Missouri Freight Assn., 166 U. S. 290, 318. And even as late as 1953, the practice of using legislative history in that fashion was novel enough that Justice Jackson could dismiss it as a “psychoanalysis of Congress,” and a “weird endeavor.” United States v. Public Utilities Comm’n of Cal., 345 U. S. 295, 319 (concurring opinion). It is, in short, almost entirely a phenomenon of this century— and in its extensive use a very recent phenomenon. See, e. g., Cairo & Brann, Use of Legislative Histories by the United States Supreme Court: A Statistical Analysis, 9 J. Legis. 282 (1982); Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 196-197 (1983). I am depressed if the Court is predicting that the use of legislative history for the purpose I have criticized “will. . . WISCONSIN PUBLIC INTERVENOR v. MORTIER 623 597 Scalia, J., concurring in judgment reach well into the future.” But if it is, and its prediction of the future is as accurate as its perception that it is continuing a “practice . . . reaching] well into [our] past,” I may have nothing to fear. 624 OCTOBER TERM, 1990 Syllabus 501 U. S. SCHAD v. ARIZONA CERTIORARI TO THE SUPREME COURT OF ARIZONA No. 90-5551. Argued February 27, 1991—Decided June 21, 1991 After he was found with a murder victim’s vehicle and other belongings, petitioner Schad was indicted for first-degree murder. At trial, the prosecutor advanced both premeditated and felony-murder theories, against which Schad claimed that the circumstantial evidence proved at most that he was a thief, not a murderer. The court refused Schad’s request for an instruction on theft as a lesser included offense, but charged the jury on second-degree murder. The jury convicted him of first-degree murder, and he was sentenced to death. The State Supreme Court affirmed, rejecting Schad’s contention that the trial court erred in not requiring the jury to agree on a single theory of first-degree murder. The court also rejected Schad’s argument that Beck v. Alabama, 447 U. S. 625, required an instruction on the lesser included offense of robbery. Held: The judgment is affirmed. 163 Ariz. 411, 788 P. 2d 1162, affirmed. Justice Souter delivered the opinion of the Court with respect to Part III, concluding that Beck, supra—which held unconstitutional a state statute prohibiting lesser included offense instructions in capital cases — did not entitle Schad to a jury instruction on robbery. Beck was based on the concern that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital offense might nonetheless vote for a capital conviction if the only alternative was to set him free with no punishment at all. See id., at 629, 630, 632, 634, 637, 642-643, and n. 19. This concern simply is not implicated here, since the jury was given the “third option” of finding Schad guilty of a lesser included noncapital offense, second-degree murder. It would be irrational to assume that the jury chose capital murder rather than second-degree murder as its means of keeping a robber off the streets, and, thus, the trial court’s choice of instructions sufficed to ensure the verdict’s reliability. Pp. 645-648. Justice Souter, joined by The Chief Justice, Justice O’Connor, and Justice Kennedy, concluded in Part II that Arizona’s characterization of first-degree murder as a single crime as to which a jury need not agree on one of the alternative statutory theories of premeditated or felony murder is not unconstitutional. Pp. 630-645. SCHAD v. ARIZONA 625 624 Syllabus (a) The relevant enquiry is not, as Schad argues, whether the Constitution requires a unanimous jury in state capital cases. Rather, the real question here is whether it was constitutionally acceptable to permit the jury to reach one verdict based on any combination of the alternative findings. Pp. 630-631. (b) The long-established rule that a jury need not agree on which overt act, among several, was the means by which a crime was committed, provides a useful analogy. Nevertheless, the Due Process Clause does place limits on a State’s capacity to define different states of mind as merely alternative means of committing a single offense; there is a point at which differences between those means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating between what the Constitution requires to be treated as separate offenses subject to separate jury findings. Pp. 631-637. (c) It is impossible to lay down any single test for determining when two means are so disparate as to exemplify two inherently separate offenses. Instead, the concept of due process, with its demands for fundamental fairness and for the rationality that is an essential component of that fairness, must serve as the measurement of the level of definitional and verdict specificity permitted by the Constitution. Pp. 637-638. (d) The relevant enquiry must be undertaken with a threshold presumption of legislative competence. Decisions about what facts are material and what are immaterial, or, in terms of In re Winship, 397 U. S. 358, 364, what “fact[s] [are] necessary to constitute the crime,” and therefore must be proved individually, and what facts are mere means, represent value choices more appropriately made in the first instance by a legislature than by a court. There is support for such restraint in this Court’s “burden-shifting” cases, which have made clear, in a slightly different context, that the States must be permitted a degree of flexibility in determining what facts are necessary to constitute a particular offense within the meaning of Winship. See, e. g., Patterson v. New York, 432 U. S. 197, 201-202, 210. Pp. 638-639. (e) In translating the due process demands for fairness and rationality into concrete judgments about the adequacy of legislative determinations, courts should look both to history and widely shared state practice as guides to fundamental values. See, e. g., id., at 202. Thus it is significant here that Arizona’s equation of the mental states of premeditated and felony murder as a species of the blameworthy state of mind required to prove a single offense of first-degree murder finds substantial historical and contemporary echoes. See, e. g., People v. Sullivan, 173 N. Y. 122, 127, 65 N. E. 989, 989-990; State v. Buckman, 237 Neb. 936, 468 N. W. 2d 589. Pp. 640-643. 626 OCTOBER TERM, 1990 Syllabus 501 U. S. (f) Whether or not everyone would agree that the mental state that precipitates death in the course of robbery is the moral equivalent of premeditation, it is clear that such equivalence could reasonably be found. See Tison v. Arizona, 481 U. S. 137, 157-158. This is enough to rule out the argument that a moral disparity bars treating the two mental states as alternative means to satisfy the mental element of a single offense. Pp. 643-644. (g) Although the foregoing considerations may not exhaust the universe of those potentially relevant, they are sufficiently persuasive that the jury’s options in this case did not fall beyond the constitutional bounds of fundamental fairness and rationality. P. 645. Justice Scalia would reach the same result as the plurality with respect to Schad’s verdict-specificity claim, but for a different reason. It has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission. As the plurality observes, one can conceive of novel “umbrella” crimes that could not, consistent with due process, be submitted to a jury on disparate theories. But first-degree murder, which has in its basic form existed in our legal system for centuries, does not fall into that category. Such a traditional crime, and a traditional mode of submitting it to the jury, do not need to pass this Court’s “fundamental fairness” analysis; and the plurality provides no persuasive justification other than history in any event. Pp. 648-652. Souter, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Part HI, in which Rehnquist, C. J., and O’Connor, Scalia, and Kennedy, JJ., joined, and an opinion with respect to Parts I and II, in which Rehnquist, C. J., and O’Connor and Kennedy, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, post, p. 648. White, J., filed a dissenting opinion, in which Marshall, Blackmun, and Stevens, JJ., joined, post, p. 652. Denise I. Young argued the cause for petitioner. With her on the briefs was John M. Bailey. R. Wayne Ford, Assistant Attorney General of Arizona, argued the cause for respondent. With him on the brief were Robert K. Corbin, Attorney General, and Ronald L. Crismon. * * Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Joel M. Gershowitz; and for the SCHAD v. ARIZONA 627 624 Opinion of Souter, J. Justice Souter announced the judgment of the Court and delivered the opinion of the Court with respect to Part III, and an opinion with respect to Parts I and II, in which The Chief Justice, Justice O’Connor, and Justice Kennedy join. This case presents two questions: whether a first-degree murder conviction under jury instructions that did not require agreement on whether the defendant was guilty of premeditated murder or felony murder is unconstitutional; and whether the principle recognized in Beck v. Alabama, 447 U. S. 625 (1980), entitles a defendant to instructions on all offenses that are lesser than, and included within, a capital offense as charged. We answer no to each. I On August 9, 1978, a highway worker discovered the badly decomposed body of 74-year-old Lorimer Grove in the underbrush off U. S. Highway 89, about nine miles south of Prescott, Arizona. There was a rope around his neck, and a coroner determined that he had been strangled to death. The victim had left his home in Bisbee, Arizona, eight days earlier, driving his new Cadillac and towing a camper. Commonwealth of Kentucky et al. by Frederick J. Cowan, Attorney General of Kentucky, and Denise A. Garrison and Ian G. Sonego, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: John K. Van de Kamp of California, John J. Kelly of Connecticut, Charlie M. Oberly III of Delaware, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, James T. Jones of Idaho, Linley E. Pearson of Indiana, J. Joseph Curran, Jr., of Maryland, Michael C. Moore of Mississippi, William L. Webster of Missouri, Marc Racicot of Montana, Brian McKay of Nevada, Robert J. Del Tufo of New Jersey, Hal Stratton of New Mexico, Lacy H. Thornburg of North Carolina, Anthony J. Cele-brezze, Jr., of Ohio, Robert H. Henry of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Roger Tellinghui-sen of South Dakota, Charles Burson of Tennessee, R. Paul Van Dam of Utah, and Mary Sue Terry of Virginia. 628 OCTOBER TERM, 1990 Opinion of Souter, J. 501 U. S. On September 3, 1978, petitioner, driving Grove’s Cadillac, was stopped for speeding by the New York State Police. He told the officers that he was transporting the car for an elderly friend named Larry Grove. Later that month, petitioner was arrested in Salt Lake City, Utah, for a parole violation and possession of a stolen vehicle. A search of the Cadillac, which petitioner was still driving, revealed personal belongings of Grove’s, and petitioner’s wallet contained two of Grove’s credit cards, which petitioner had begun using on August 2, 1978. Other items belonging to Grove were discovered in a rental car which had been found abandoned off Highway 89 on August 3, 1978; petitioner had rented the car the previous December and never returned it. While in custody in Salt Lake City, petitioner told a visitor that he would “ ‘deny being in any area of Arizona or the State of Arizona, particularly Tempe, Arizona and Prescott, Arizona.’” 163 Ariz. 411, 414, 788 P. 2d 1162, 1165 (1989). A Yavapai County, Arizona, grand jury indicted petitioner on one count of first-degree murder, and petitioner was extradited to stand trial. The Arizona statute applicable to petitioner’s case defined first-degree murder as “murder which is . . . wilful, deliberate or premeditated ... or which is committed ... in the perpetration of, or attempt to perpetrate, . . . robbery.” Ariz. Rev. Stat. Ann. §13-452 (Supp. 1973).1 Petitioner was convicted and sentenced to death, 1 The full statute provided: “A murder which is perpetrated by means of poison or lying in wait, torture or by any other kind of wilful, deliberate or premeditated killing, or which is committed in avoiding or preventing lawful arrest or effecting an escape from legal custody, or in the perpetration of, or attempt to perpetrate, arson, rape in the first degree, robbery, burglary, kidnapping, or mayhem, or sexual molestation of a child under the age of thirteen years, is murder of the first degree. All other kinds of murder are of the second degree.” The statute has since been revised, but both premeditated murder and murder in the course of a robbery still constitute first-degree murder. See Ariz. Rev. Stat. Ann. § 13-1105. A (1989). SCHAD v. ARIZONA 629 624 Opinion of Souter, J. but his conviction was set aside on collateral review. 142 Ariz. 619, 691 P. 2d 710 (1984). At petitioner’s retrial, the prosecutor advanced theories of both premeditated murder and felony murder, against which petitioner claimed that the circumstantial evidence proved at most that he was a thief, not a murderer. The court instructed the jury that “[f ]irst degree murder is murder which is the result of premeditation. . . . Murder which is committed in the attempt to commit robbery is also first degree murder.” App. 26. The court also instructed that “[a]ll 12 of you must agree on a verdict. All 12 of you must agree whether the verdict is guilty or not guilty.” Id., at 27. The defense requested a jury instruction on theft as a lesser included offense. The court refused, but did instruct the jurors on the offense of second-degree murder, and gave them three forms for reporting a verdict: guilty of first-degree murder; guilty of second-degree murder; and not guilty. The jury convicted petitioner of first-degree murder, and, after a further hearing, the judge sentenced petitioner to death. The Arizona Supreme Court affirmed. 163 Ariz. 411, 788 P. 2d 1162 (1989). The court rejected petitioner’s contention that the trial court erred in not requiring the jury to agree on a single theory of first-degree murder, explaining: “ Tn Arizona, first degree murder is only one crime regardless whether it occurs as a premeditated murder or a felony murder. Although a defendant is entitled to a unanimous jury verdict on whether the criminal act charged has been committed, the defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed.’” Id., at 417; 788 P. 2d, at 1168 (quoting State v. Encinas, 132 Ariz. 493, 496, 647 P. 2d 624, 627 (1982)) (citations omitted). The court also rejected petitioner’s argument that Beck n. Alabama, supra, required an instruction on the lesser in 630 OCTOBER TERM, 1990 Opinion of Souter, J. 501 U. S. eluded offense of robbery. 163 Ariz., at 416-417, 788 P. 2d, at 1167-1168. We granted certiorari. 498 U. S. 894 (1990). II Petitioner’s first contention is that his conviction under instructions that did not require the jury to agree on one of the alternative theories of premeditated and felony murder is unconstitutional.2 He urges us to decide this case by holding that the Sixth, Eighth, and Fourteenth Amendments require a unanimous jury in state capital cases, as distinct from those where lesser penalties are imposed. See Johnson v. Louisiana, 406 U. S. 356 (1972); Apodaca n. Oregon, 406 U. S. 404 (1972). We decline to do so, however, because the suggested reasoning would beg the question raised. Even assuming a requirement of jury unanimity arguendo, that assumption would fail to address the issue of what the jury must be unanimous about. Petitioner’s jury was unanimous in deciding that the State had proved what, under state law, it had to prove: that petitioner murdered either with premeditation or in the course of committing a robbery. The question still remains whether it was constitutionally acceptable to permit the jurors to reach one verdict based on any combination of the alternative findings. If it was, then the jury was unanimous in reaching the verdict, and petitioner’s proposed unanimity rule would not help him. If it was not, and the jurors may not combine findings of premeditated and felony murder, then petitioner’s conviction will fall even without his proposed rule, because the instructions allowed for the forbidden combination. In other words, petitioner’s real challenge is to Arizona’s characterization of first-degree murder as a single crime as to 2 Respondent contends that petitioner waived this contention by failing to raise it in the lower Arizona courts. Brief for Respondent 8-10. The Arizona Supreme Court, however, addressed the contention on the merits, 163 Ariz. 411, 417, 788 P. 2d 1162, 1168 (1989), thereby preserving the issue for our review. See Orr v. Orr, 440 U. S. 268, 274-275 (1979). SCHAD v. ARIZONA 631 624 Opinion of Souter, J. which a verdict need not be limited to any one statutory alternative, as against which he argues that premeditated murder and felony murder are separate crimes as to which the jury must return separate verdicts. The issue in this case, then, is one of the permissible limits in defining criminal conduct, as reflected in the instructions to jurors applying the definitions, not one of jury unanimity. A A way of framing the issue is suggested by analogy. Our cases reflect a long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed. In Andersen v. United States, 170 U. S. 481 (1898), for example, we sustained a murder conviction against the challenge that the indictment on which the verdict was returned was duplicitous in charging that death occurred through both shooting and drowning. In holding that “the Government was not required to make the charge in the alternative,” id., at 504, we explained that it was immaterial whether death was caused by one means or the other. Cf. Borum v. United States, 284 U. S. 596 (1932) (upholding the murder conviction of three codefendants under a count that failed to specify which of the three did the actual killing); St. Clair v. United States, 154 U. S. 134, 145 (1894). This fundamental proposition is embodied in Federal Rule of Criminal Procedure 7(c)(1), which provides that “[i]t may be alleged in a single count that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means.” We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone. In these cases, as in litigation generally, “different jurors may be persuaded by different pieces of evidence, even when they agree upon the 632 OCTOBER TERM, 1990 501 U. S. Opinion of Souter, J. bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” McKoy v. North Carolina, 494 U. S. 433, 449 (1990) (Blackmun, J., concurring) (footnotes omitted). The alternatives in the cases cited went, of course, to possibilities for proving the requisite actus reus, while the present case involves a general verdict predicated on the possibility of combining findings of what can best be described as alternative mental states, the one being premeditation, the other the intent required for murder combined with the commission of an independently culpable felony. See State v. Sema, 69 Ariz. 181, 188, 211 P. 2d 455, 459 (1949) (in Arizona, the attempt to commit a robbery is “the legal equivalent of . . . deliberation, premeditation, and design”).3 We see no reason, however, why the rule that the jury need not agree as to mere means of satisfying the actus reus element of an offense should not apply equally to alternative means of satisfying the element of mens rea. That is not to say, however, that the Due Process Clause places no limits on a State’s capacity to define different courses of conduct, or states of mind, as merely alternative means of committing a single offense, thereby permitting a defendant’s conviction without jury agreement as to which course or state actually occurred. The axiomatic requirement of due process that a statute may not forbid conduct in terms so vague that people of common intelligence would be relegated to differing guesses about its meaning, see Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) (citing Connally n. General Construction Co., 269 U. S. 385, 391 (1926)), carries the practical consequence that a defendant charged under a valid statute will be in a position to understand with some specificity the legal basis of the charge 3 See also Wechsler, A Rationale of the Law of Homicide: I, 37 Colum. L. Rev. 701, 702-703 (1937); Perkins, A Rationale of Mens Rea, 52 Harv. L. Rev. 905, 926 (1939). SCHAD v. ARIZONA 633 624 Opinion of Souter, J. against him. Thus it is an assumption of our system of criminal justice “ ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,”’ Speiser v. Randall, 357 U. S. 513, 523 (1958) (quoting Snyder v. Massachusetts, 291 U. S. 97, 105 (1934)), that no person may be punished criminally save upon proof of some specific illegal conduct. Just as the requisite specificity of the charge may not be compromised by the joining of separate offenses, see United States v. UCO Oil Co., 546 F. 2d 833 (CA9 1976), cert, denied, 430 U. S. 966 (1977), nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of “Crime” so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction.4 To say, however, that there are limits on a State’s authority to decide what facts are indispensable to proof of a given offense is simply to raise the problem of describing the point at which differences between means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating what the Constitution requires to be treated as separate offenses. See generally Note, 91 Harv. L. Rev. 499, 501-502 (1977). Although we have never before attempted to define what constitutes an immaterial difference as to mere means and what constitutes a material difference requiring separate theories of crime to be treated as separate offenses subject to separate jury findings, there is a body of law in the federal circuits, deriving primarily from the decision of the Fifth Cir 4 Although our vagueness cases support the notion that a requirement of proof of specific illegal conduct is fundamental to our system of criminal justice, the principle is not dependent upon, or limited by, concerns about vagueness. A charge allowing a jury to combine findings of embezzlement and murder would raise identical problems regardless of how specifically embezzlement and murder were defined. 634 OCTOBER TERM, 1990 Opinion of Souter, J. 501 U. S. cuit in United States v. Gipson, 553 F. 2d 453 (1977) (Wisdom, J.), that addresses this problem. The defendant in Gipson was charged with violating 18 U. S. C. §2313 (1982 ed.), which prohibited knowingly “re-ceiv[ing], concealing], storing], bartering], selling] or dis-posting] of” any stolen vehicle or aircraft moving in interstate commerce, and was convicted after the trial judge charged the jury that it need not agree on which of the enumerated acts the defendant had committed. The Fifth Circuit reversed, reasoning that the defendant’s right to “jury consensus as to [his] course of action”6 was violated by the joinder in a single count of “two distinct conceptual groupings,” receiving, concealing, and storing forming the first grouping (referred to by the court as “housing”), and bartering, selling, and disposing (“marketing”) constituting the second. Id., at 456-459. In that court’s view, the acts within a conceptual grouping are sufficiently similar to obviate the need for jurors to agree about which of them was committed, whereas the acts in distinct conceptual groupings are so unrelated that the jury must decide separately as to each grouping. A number of lower courts have adopted the standard of “distinct conceptual groupings” as the appropriate test. E. g., United States v. Peterson, 768 F. 2d 64 (CA2) (Friendly, J.), cert, denied, 474 U. S. 923 (1985); United States n. Duncan, 850 F. 2d 1104, 1113 (CA6 1988), cert, de- 6 The court identified this right as a concomitant of the federal criminal defendant’s Sixth Amendment right to a unanimous verdict, and subsequent courts following Gipson have adopted that characterization. E. g., United States v. Beros, 833 F. 2d 455 (CA3 1987). For the reasons given earlier, we think the right is more accurately characterized as a due process right than as one under the Sixth Amendment. Although this differ-ence in characterization is important in some respects (chiefly, because a state criminal defendant, at least in noncapital cases, has no federal right to a unanimous jury verdict, see Johnson v. Louisiana, 406 U. S. 356 (1972); Apodaca v. Oregon, 406 U. S. 404 (1972)), it is immaterial to the problem of how to go about deciding what level of verdict specificity is constitutionally necessary. SCHAD v. ARIZONA 635 624 Opinion of Souter, J. nied sub nom. Downing v. United States, 493 U. S. 1025 (1990); State v. Baldwin, 101 Wis. 2d 441, 449-450, 304 N. W. 2d 742, 747-749 (1981). We are not persuaded that the Gipson approach really answers the question, however. Although the classification of alternatives into “distinct conceptual groupings” is a way to express a judgment about the limits of permissible alternatives, the notion is too indeterminate to provide concrete guidance to courts faced with verdict specificity questions. See, e. g., Rice v. State, 311 Md. 116, 133, 532 A. 2d 1357, 1365 (1987) (criticizing Gipson criteria as “not entirely clear” and as “providing] little guidance”); Trubitt, Patchwork Verdicts, Different-Jurors Verdicts, and American Jury Theory: Whether Verdicts Are Invalidated by Juror Disagreement on Issues, 36 Okla. L. Rev. 473, 548-549 (1983) (same). This is so because conceptual groupings may be identified at various levels of generality, and we have no a priori standard to determine what level of generality is appropriate. Indeed, as one judge has noted, even on the facts of Gipson itself, “[o]ther conceptual groupings of the six acts are possible. [One might] put all six acts into one conceptual group, namely trafficking in stolen vehicles.” Manson v. State, 101 Wis. 2d 413, 438, 304 N. W. 2d 729, 741 (1981) (Abrahamson, J., concurring); accord, Trubitt, supra, at 548-549 (“[I]t is difficult to see how a court could determine that ‘housing’ and ‘marketing’ are ultimate acts in some metaphysical or constitutional sense, and thus prohibit the legislature from including them in the single offense of trafficking”). In short, the notion of “distinct conceptual groupings” is simply too conclu-sory to serve as a real test. The dissent would avoid the indeterminacy of the Gipson approach by adopting an inflexible rule of maximum verdict specificity. In the dissent’s view, whenever a statute lists alternative means of committing a crime, “the jury [must] indicate on which of the alternatives it has based the defendant’s guilt,” post, at 656, even where there is no indication 636 OCTOBER TERM, 1990 Opinion of Souter, J. 501 U. S. that the statute seeks to create separate crimes. This approach rests on the erroneous assumption that any statutory alternatives are ipso facto independent elements defining independent crimes under state law, and therefore subject to the axiomatic principle that the prosecution must prove independently every element of the crime. See post, at 656-658 (citing In re Winship, 397 U. S. 358 (1970), and Sandstrom v. Montana, 442 U. S. 510 (1979)). In point of fact, as the statute at issue in Gipson demonstrates, legislatures frequently enumerate alternative means of committing a crime without intending to define separate elements or separate crimes.6 The question whether statutory alternatives constitute independent elements of the offense therefore does not, as the dissent would have it, call for a mere tautology; rather, it is a substantial question of statutory construction. See, e. g., United States v. UCO Oil Co., 546 F. 2d, at 835-838. In cases, like this one, involving state criminal statutes, the dissent’s “statutory alternatives” test runs afoul of the fundamental principle that we are not free to substitute our own interpretations of state statutes for those of a State’s courts. If a State’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law. See Mullaney v. Wilbur, 421 U. S. 684, 690-691 (1975) (declining to reexamine the Maine 6 Because statutes frequently enumerate alternatives that clearly are mere means of satisfying a single element of an offense, adoption of the dissent’s approach of requiring a specific verdict as to every alternative would produce absurd results. For example, the Arizona first-degree murder statute at issue here prohibited, inter alia, “wilful, deliberate or premeditated killing.” Ariz. Rev. Stat. Ann. § 13-452 (Supp. 1973) (emphasis added). Under the dissent’s approach, juries in prosecutions brought under the statute presumably should have been required to deliver specific verdicts as to each of the three: wilfullness, deliberation, and premeditation. SCHAD v. ARIZONA 637 624 Opinion of Souter, J. Supreme Judicial Court’s decision that, under Maine law, all intentional or criminally reckless killings are aspects of the single crime of felonious homicide); Murdock n. City of Memphis, 20 Wall. 590 (1875). In the present case, for example, by determining that a general verdict as to first-degree murder is permissible under Arizona law, the Arizona Supreme Court has effectively decided that, under state law, premeditation and the commission of a felony are not independent elements of the crime, but rather are mere means of satisfying a single mens rea element. The issue in this case therefore is not whether “the State must be held to its choice,” post, at 657-658, for the Arizona Supreme Court has authoritatively determined that the State has chosen not to treat premeditation and the commission of a felony as independent elements of the crime, but rather whether Arizona’s choice is unconstitutional. B It is tempting, of course, to follow the example of Gipson to the extent of searching for some single criterion that will serve to answer the question facing us. We are convinced, however, of the impracticability of trying to derive any single test for the level of definitional and verdict specificity permitted by the Constitution, and we think that instead of such a test our sense of appropriate specificity is a distillate of the concept of due process with its demands for fundamental fairness, see, e. g., Dowling v. United States, 493 U. S. 342, 352-353 (1990), and for the rationality that is an essential component of that fairness. In translating these demands for fairness and rationality into concrete judgments about the adequacy of legislative determinations, we look both to history and wide practice as guides to fundamental values, as well as to narrower analytical methods of testing the moral and practical equivalence of the different mental states that may satisfy the mens rea element of a single offense. The enquiry is undertaken with a threshold presumption of legis 638 OCTOBER TERM, 1990 Opinion of Souter, J. 501 U. S. lative competence to determine the appropriate relationship between means and ends in defining the elements of a crime. 1 Judicial restraint necessarily follows from a recognition of the impossibility of determining, as an a priori matter, whether a given combination of facts is consistent with there being only one offense. Decisions about what facts are material and what are immaterial, or, in terms of Winship, supra, at 364, what “factfs] [are] necessary to constitute the crime,” and therefore must be proved individually, and what facts are mere means, represent value choices more appropriately made in the first instance by a legislature than by a court. Respect for this legislative competence counsels restraint against judicial second-guessing, cf. Rostker n. Goldberg, 453 U. S. 57, 65 (1981) (“[LJack of competence on the part of the courts” relative to the legislature so counsels), which is particularly appropriate in cases, like this one, that call state definitions into question. "It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, Irvine v. California, 347 U. S. 128, 134 (1954) (plurality opinion), and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States.” Patterson v. New York, 432 U. S. 197, 201 (1977). There is support for such restraint in our “burden-shifting” cases, which have made clear, in a slightly different context, that the States must be permitted a degree of flexibility in defining the “fact[s] necessary to constitute the crime” under Winship. Each of those cases arose because a State defined an offense in such a way as to exclude some particular fact from those to be proved beyond a reasonable doubt, either by placing the burden on defendants to prove a mitigating fact, see Patterson, supra (extreme emotional disturbance); Martin v. Ohio, 480 U. S. 228 (1987) (self-defense); see also Mui- SCHAD v. ARIZONA 639 624 Opinion of Souter, J. laney, supra (heat of passion or sudden provocation), or by allowing the prosecution to prove an aggravating fact by some standard less than that of reasonable doubt, McMillan v. Pennsylvania, 477 U. S. 79 (1986) (possession of a firearm). In each case, the defendant argued that the excluded fact was inherently “a fact necessary to constitute the offense” that required proof beyond a reasonable doubt under Winship, even though the fact was not formally an element of the offense with which he was charged. See, e. g., id., at 90. The issue presented here is similar, for under Arizona law neither premeditation nor the commission of a felony is formally an independent element of first-degree murder; they are treated as mere means of satisfying a mens rea element of high culpability. The essence of petitioner’s argument is that, despite this unitary definition of the offense, each of these means must be treated as an independent element as to which the jury must agree, because premeditated murder and felony murder are inherently separate offenses. Both here and in the burden-shifting cases, in other words, a defendant argues that the inherent nature of the offense charged requires the State to prove as an element of the offense some fact that is not an element under the legislative definition. In the burden-shifting cases, as here, we have faced the difficulty of deciding, as an abstract matter, what elements an offense must comprise. Recognizing “[o]ur inability to lay down any ‘bright line’ test,” McMillan, 477 U. S., at 91, we have “stressed that . . . the state legislature’s definition of the elements of the offense is usually dispositive.” Id., at 85; see also Patterson, supra, at 201-202. We think that similar restraint is appropriate here, although we recognize that, as in the burden-shifting cases, “there are obviously constitutional limits beyond which the States may not go.” Patterson, supra, at 210; see also McMillan, supra, at 86. 640 OCTOBER TERM, 1990 501 U. S. Opinion of Souter, J. 2 The use here of due process as a measurement of the sense of appropriate specificity assumes the importance of history and widely shared practice as concrete indicators of what fundamental fairness and rationality require. In turning to these sources we again follow the example set in the burdenshifting cases, where we have often found it useful to refer both to history and to the current practice of other States in determining whether a State has exceeded its discretion in defining offenses. See Patterson, supra, at 202, 207-209, nn. 10-11; see also Martin, supra, at 235-236; Mullaney, 421 U. S., at 692-696. Where a State’s particular way of defining a crime has a long history, or is in widespread use, it is unlikely that a defendant will be able to demonstrate that the State has shifted the burden of proof as to what is an inherent element of the offense, or has defined as a single crime multiple offenses that are inherently separate. Conversely, a freakish definition of the elements of a crime that finds no analogue in history7 or in the criminal law of other jurisdictions will lighten the defendant’s burden. Thus, it is significant that Arizona’s equation of the mental states of premeditated murder and felony murder as species of the blameworthy state of mind required to prove a single offense of first-degree murder finds substantial historical and contemporary echoes. At common law, murder was defined as the unlawful killing of another human being with “malice aforethought.” The intent to kill and the intent to commit a felony were alternative aspects of the single concept of “malice aforethought.” See 3 J. Stephen, History of the Criminal Law of England 21-22 (1883). Although American jurisdictions have modified the common law by legislation classifying murder by degrees, the resulting statutes have 7 We note, however, the perhaps obvious proposition that history will be less useful as a yardstick in cases dealing with modern statutory offenses lacking clear common-law roots than it is in cases, like this one, that deal with crimes that existed at common law. SCHAD v. ARIZONA 641 624 Opinion of Souter, J. in most cases retained premeditated murder and some form of felony murder (invariably including murder committed in perpetrating or attempting to perpetrate a robbery) as alternative means of satisfying the mental state that first-degree murder presupposes. See 2 W. LaFave & A. Scott, Substantive Criminal Law §7.5, pp. 210-211, and nn. 21, 23, 24 (1986); ALI, Model Penal Code §210.2, p. 32, and n. 78 (1980). Indeed, the language of the Arizona first-degree murder statute applicable here is identical in all relevant respects to the language of the first statute defining murder by differences of degree, passed by the Pennsylvania Legislature in 1794.8 A series of state-court decisions, beginning with the leading case of People n. Sullivan, 173 N. Y. 122, 65 N. E. 989 (1903), have agreed that “it was not necessary that all the jurors should agree in the determination that there was a deliberate and premeditated design to take the life of the deceased, or in the conclusion that the defendant was at the time engaged in the commission of a felony, or an attempt to commit one; it was sufficient that each juror was convinced beyond a reasonable doubt that the defendant had committed the crime of murder in the first degree as that offense is defined by the statute.” Id., at 127, 65 N. E., at 989-990. See People v. Milan, 9 Cal. 3d 185, 507 P. 2d 956 (1973); People v. Travis, 170 Ill. App. 3d 873, 525 N. E. 2d 1137 (1988), cert, denied, 489 U. S. 1024 (1989); State v. Fuhrmann, 257 N. W. 2d 619 (Iowa 1977); State v. Wilson, 220 Kan. 341, 552 P. 2d 931 (1976); Commonwealth v. Devlin, 335 Mass. 555, 141 N. E. 2d 269 (1957); People v. Embree, 70 Mich. App. 8 The Pennsylvania statute provided: “[A]ll murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree.” 1794 Pa. Laws, ch. 1766, § 2. 642 OCTOBER TERM, 1990 Opinion of Souter, J. 501 U. S. 382, 246 N. W. 2d 6 (1976); State v. Buckman, 237 Neb. 936, 468 N. W. 2d 589 (1991); James v. State, 637 P. 2d 862 (Okla. Crim. 1981); State v. Tillman, 750 P. 2d 546 (Utah 1987); see also Brown v. State, 473 So. 2d 1260 (Fla.), cert, denied, 474 U. S. 1038 (1985). Although the state courts have not been unanimous in this respect, see State v. Murray, 308 Ore. 496, 782 P. 2d 157 (1989), there is sufficiently widespread acceptance of the two mental states as alternative means of satisfying the mens rea element of the single crime of first-degree murder to persuade us that Arizona has not departed from the norm. Such historical and contemporary acceptance of Arizona’s definition of the offense and verdict practice is a strong indication that they do not “ ‘offen[d] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,”’ Patterson, 432 U. S., at 202 (quoting Speiser, 357 U. S., at 523), for we recognize the high probability that legal definitions, and the practices comporting with them, are unlikely to endure for long, or to retain wide acceptance, if they are at odds with notions of fairness and rationality sufficiently fundamental to be comprehended in due process. Cf. Jackman n. Rosenbaum Co., 260 U. S. 22, 31 (1922) (Holmes, J.); Snyder, 291 U. S., at 111. This is not to say that either history or current practice is dispositive. In McMillan, for example, even though many States had made the fact at issue (possession of a weapon) an element of various aggravated offenses, we were unwilling to conclude that Pennsylvania’s decision to treat it as an aggravating circumstance provable at sentencing by a mere preponderance of the evidence deviated so far from the constitutional norm as to violate the Due Process Clause. “That Pennsylvania’s particular approach has been adopted in few other States,” we observed, “does not render Pennsylvania’s choice unconstitutional.” 477 U. S., at 90; see also Martin, 480 U. S., at 235-236 (relying on history, but not current practice); Patterson, supra, at 211. Conversely, “‘neither SCHAD v. ARIZONA 643 624 Opinion of Souter, J. the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack.’” Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 18 (1991) (quoting Williams v. Illinois, 399 U. S. 235, 239 (1970)). In fine, history and current practice are significant indicators of what we as a people regard as fundamentally fair and rational ways of defining criminal offenses, which are nevertheless always open to critical examination. 3 It is, as we have said, impossible to lay down any single analytical model for determining when two means are so disparate as to exemplify two inherently separate offenses. In the case before us, however, any scrutiny of the two possibilities for proving the mens rea of first-degree murder may appropriately take account of the function that differences of mental state perform in defining the relative seriousness of otherwise similar or identical criminal acts. See generally ALI, Model Penal Code §2.02(2) (1985) (defining differing mental states). If, then, two mental states are supposed to be equivalent means to satisfy the mens rea element of a single offense, they must reasonably reflect notions of equivalent blameworthiness or culpability, whereas a difference in their perceived degrees of culpability would be a reason to conclude that they identified different offenses altogether. Petitioner has made out no case for such moral disparity in this instance. The proper critical question is not whether premeditated murder is necessarily the moral equivalent of felony murder in all possible instances of the latter. Our cases have recognized that not all felony murders are of identical culpability, compare Tison v. Arizona, 481 U. S. 137 (1987), with Enmund v. Florida, 458 U. S. 782 (1982), and the same point is suggested by examining state murder statutes, which frequently diverge as to what felonies may be the predicate of a felony-murder conviction. Compare, e. g., Tenn. Code Ann. 644 OCTOBER TERM, 1990 Opinion of Souter, J. 501 U. S. §39-13-202 (Supp. 1990) (theft as predicate of first-degree felony murder) with, e. g., Ariz. Rev. Stat. Ann. § 13-1105. A (1989) (theft not such a predicate). The question, rather, is whether felony murder may ever be treated as the equivalent of murder by deliberation, and in particular whether robbery murder as charged in this case may be treated as thus equivalent. This is in fact the very question we considered only three Terms ago in the context of our capital sentencing jurisprudence in Tison, supra. There we held that “the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents [such] a highly culpable mental state . . . that [it] may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though not inevitable, lethal result.” Id., at 157-158. We accepted the proposition that this disregard occurs, for example, when a robber “shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property.” Id., at 157. Whether or not everyone would agree that the mental state that precipitates death in the course of robbery is the moral equivalent of premeditation, it is clear that such equivalence could reasonably be found, which is enough to rule out the argument that this moral disparity bars treating them as alternative means to satisfy the mental element of a single offense.9 9 The dissent’s focus on the “risks of different punishment,” post, at 658, and n. 4, for premeditated and felony murder, ignores the fact that the Arizona sentencing statute applicable to petitioner, Ariz. Rev. Stat. Ann. § 13-453 (Supp. 1973), authorized the same maximum penalty (death) for both means of committing first-degree murder. See McMillan v. Pennsylvania, 477 U. S. 79, 87-88 (1986) (relying on fact that under Pennsylvania law possession of a weapon “neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty”). Moreover, the dissent’s concern that a general verdict does not provide the sentencing judge with sufficient information about the jury’s SCHAD v. ARIZONA 645 624 Opinion of the Court We would not warrant that these considerations exhaust the universe of those potentially relevant to judgments about the legitimacy of defining certain facts as mere means to the commission of one offense. But they do suffice to persuade us that the jury’s options in this case did not fall beyond the constitutional bounds of fundamental fairness and rationality. We do not, of course, suggest that jury instructions requiring increased verdict specificity are not desirable, and in fact the Supreme Court of Arizona has itself recognized that separate verdict forms are useful in cases submitted to a jury on alternative theories of premeditated and felony murder. State v. Smith, 160 Ariz. 507, 513, 774 P. 2d 811, 817 (1989). We hold only that the Constitution did not command such a practice on the facts of this case. Ill Petitioner’s second contention is that under Beck n. Alabama, 447 U. S. 625 (1980), he was entitled to a jury instruction on the offense of robbery, which he characterizes as a lesser included offense of robbery murder.10 Beck held unconstitutional an Alabama statute that prohibited lesser in findings to provide a proper premise for the decision whether or not to impose the death penalty, post, at 658-659, goes only to the permissibility of a death sentence imposed in such circumstances, not to the issue currently before us, which is the permissibility of the conviction. To make the point by example, even if the trial judge in this case had satisfied any possible specific verdict concerns by instructing the jurors that they were required to agree on a single theory of the crime, the dissent’s “insufficient sentencing information” concern would remain unless the judge had also taken the additional step (a step unrelated to petitioner’s right to jury agreement on his specific conduct) of requiring them to return separate forms of verdict. The only relevant question for present purposes is what the jury must decide, not what information it must provide the sentencing judge. 10 Petitioner also contends that the jury should have been instructed on the offense of theft, against which respondent argues that any claim for a lesser included theft offense instruction was waived. Given respondent’s concession that petitioner has preserved his claim for a robbery instruction, and our view of the scope of Beck, see infra, at 646-648, there is no need to resolve this waiver issue. 646 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. eluded offense instructions in capital cases. Unlike the jury in Beck, the jury here was given the option of finding petitioner guilty of a lesser included noncapital offense, second-degree murder. While petitioner cannot, therefore, succeed under the strict holding of Beck, he contends that the due process principles underlying Beck require that the jury in a capital case be instructed on every lesser included noncapital offense supported by the evidence, and that robbery was such an offense in this case. Petitioner misapprehends the conceptual underpinnings of Beck. Our fundamental concern in Beck was that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all. We explained: “[O]n the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason—its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty [in Alabama] may encourage it to acquit for an equally impermissible reason—that, whatever his crime, the defendant does not deserve death. . . . [T]hese two extraneous factors .... introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.” Id., at 642 (footnote omitted). We repeatedly stressed the all-or-nothing nature of the decision with which the jury was presented. See id., at 629, 630, 632, 634, 637, 642-643, and n. 19. As we later explained in Spaziano v. Florida, 468 U. S. 447, 455 (1984), “[t]he absence of a lesser included offense instruction increases the risk that the jury will convict . . . simply to avoid setting the defendant free. . . . The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process SCHAD v. ARIZONA 647 624 Opinion of the Court that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence.” See also Hopper v. Evans, 456 U. S. 605, 609 (1982). This central concern of Beck simply is not implicated in the present case, for petitioner’s jury was not faced with an all-or-nothing choice between the offense of conviction (capital murder) and innocence. Petitioner makes much of the fact that the theory of his defense at trial was not that he murdered Mr. Grove without premeditation (which would have supported a second-degree murder conviction), but that, despite his possession of some of Mr. Grove’s property, someone else had committed the murder (which would have supported a theft or robbery conviction, but not second-degree murder). Petitioner contends that if the jurors had accepted his theory, they would have thought him guilty of robbery and innocent of murder, but would have been unable to return a verdict that expressed that view. Because Beck was based on this Court’s concern about “rules that diminish the reliability of the guilt determination” in capital cases, 447 U. S., at 638, the argument runs, the jurors should have been given the opportunity “to return a verdict in conformity with their reasonable view of the evidence.” Reply Brief for Petitioner 8. The dissent makes a similar argument. Post, at 660. The argument is unavailing, because the fact that the jury’s “third option” was second-degree murder rather than robbery does not diminish the reliability of the jury’s capital murder verdict. To accept the contention advanced by petitioner and the dissent, we would have to assume that a jury unconvinced that petitioner was guilty of either capital or second-degree murder, but loath to acquit him completely (because it was convinced he was guilty of robbery), might choose capital murder rather than second-degree murder as its means of keeping him off the streets. Because we can see no basis to assume such irrationality, we are satisfied that 648 OCTOBER TERM, 1990 Opinion of Scalia, J. 501 U. S. the second-degree murder instruction in this case sufficed to ensure the verdict’s reliability. That is not to suggest that Beck would be satisfied by instructing the jury on just any lesser included offense, even one without any support in the evidence. Cf. Roberts v. Louisiana, 428 U. S. 325, 334-335 (1976) (plurality opinion). In the present case, however, petitioner concedes that the evidence would have supported a second-degree murder conviction, Brief for Petitioner 18-19, and that is adequate to indicate that the verdict of capital murder represented no impermissible choice. The judgment of the Supreme Court of Arizona is Affirmed. Justice Scalia, concurring in part and concurring in the judgment. The crime for which a jury in Yavapai County, Arizona, convicted Edward Harold Schad in 1985 has existed in the Anglo-American legal system, largely unchanged, since at least the early 16th century, see 3 J. Stephen, A History of the Criminal Law of England 45 (1883); R. Moreland, Law of Homicide 9-10 (1952). The common-law crime of murder was the unlawful killing of a human being by a person with “malice aforethought” or “malice prepense,” which consisted of an intention to kill or grievously injure, knowledge that an act or omission would probably cause death or grievous injury, an intention to commit a felony, or an intention to resist lawful arrest. Stephen, supra, at 22; see also 4 W. Blackstone, Commentaries 198-201 (1769); 1 M. Hale, Pleas of the Crown 451-466 (1st Am. ed. 1847). The common law recognized no degrees of murder; all unlawful killing with malice aforethought received the same punishment—death. See F. Wharton, Law of Homicide 147 (3d ed. 1907); Moreland, supra, at 199. The rigor of this rule led to widespread dissatisfaction in this country. See McGautha n. California, 402 U. S. 183, 198 (1971). In 1794, SCHAD v. ARIZONA 649 624 Opinion of Scalia, J. Pennsylvania divided common-law murder into two offenses, defining the crimes thus: “[A]ll murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree.” 1794 Pa. Laws, ch. 1766, §2. That statute was widely copied, and down to the present time the United States and most States have a single crime of first-degree murder that can be committed by killing in the course of a robbery as well as premeditated killing. See, e. g., 18 U. S. C. §1111; Cal. Penal Code Ann. §189 (West 1988 and Supp. 1991); Kan. Stat. Ann. §21.3401 (Supp. 1990); Mich. Comp. Laws Ann. §750.316 (West 1991); Neb. Rev. Stat. §28-303 (1989).* It is Arizona’s variant of the 1794 Pennsylvania statute under which Schad was convicted in 1985 and which he challenges today. Schad and the dissenting Justices would in effect have us abolish the crime of first-degree murder and declare that the Due Process Clause of the Fourteenth Amendment requires the subdivision of that crime into (at least) premeditated murder and felony murder. The plurality rejects that course—correctly, but not in my view for the correct reason. As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission. See, e. g., People v. Sullivan, 173 N. Y. 122, 65 N. E. 989 (1903); cf. H. Joyce, Indictments §§561-562, pp. 654-657 (2d ed. 1924); W. Mikell, Clark’s Criminal Procedure §§99-103, * Still other States never established degrees of murder and retain a single crime of “murder” that encompasses both premeditated killing and killing in the course of a robbery. See, e. g., S. C. Code § 16-3-10 (1985). 650 OCTOBER TERM, 1990 Opinion of Scalia, J. 501 U. S. pp. 322-330 (2d ed. 1918); 1 J. Bishop, Criminal Procedure §§434-438, pp. 261-265 (2d ed. 1872). That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict. When a woman’s charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her. While that seems perfectly obvious, it is also true, as the plurality points out, see ante, at 633, that one can conceive of novel “umbrella” crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process. The issue before us is whether the present crime falls into the former or the latter category. The plurality makes heavy weather of this issue, because it starts from the proposition that “neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack,” ante, at 642-643 (internal quotation marks omitted). That is true enough, with respect to some constitutional attacks, but not, in my view, with respect to attacks under either the procedural component, see Pacific Mut. Life Insurance Co. n. Haslip, 499 U. S. 1, 28-38 (1991) (Scalia, J., concurring in judgment), or the so-called “substantive” component, see Michael H. n. Gerald D., 491 U. S. 110, 121-130 (1989) (plurality opinion), of the Due Process Clause. It is precisely the historical practices that define what is “due.” “Fundamental fairness” analysis may appropriately be applied to departures from traditional American conceptions of due process; but when judges test their individual notions of “fairness” against an American tradition that is deep and broad and continuing, it is not the tradition that is on trial, but the judges. SCHAD v. ARIZONA 651 624 Opinion of Scalia, J. And that is the case here. Submitting killing in the course of a robbery and premeditated killing to the jury under a single charge is not some novel composite that can be subjected to the indignity of “fundamental fairness” review. It was the norm when this country was founded, was the norm when the Fourteenth Amendment was adopted in 1868, and remains the norm today. Unless we are here to invent a Constitution rather than enforce one, it is impossible that a practice as old as the common law and still in existence in the vast majority of States does not provide that process which is “due.” If I did not believe that, I might well be with the dissenters in this case. Certainly the plurality provides no satisfactory explanation of why (apart from the endorsement of history) it is permissible to combine in one count killing in the course of robbery and killing by premeditation. The only point it makes is that the depravity of mind required for the two may be considered morally equivalent. Ante, at 643-645. But the petitioner here does not complain about lack of moral equivalence: He complains that, as far as we know, only six jurors believed he was participating in a robbery, and only six believed he intended to kill. Perhaps moral equivalence is a necessary condition for allowing such a verdict to stand, but surely the plurality does not pretend that it is sufficient. (We would not permit, for example, an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday, despite the “moral equivalence” of those two acts.) Thus, the plurality approves the Arizona practice in the present case because it meets one of the conditions for constitutional validity. It does not say what the other conditions are, or why the Arizona practice meets them. With respect, I do not think this delivers the “critical examination,” ante, at 643, which the plurality promises as a substitute for reliance upon historical practice. In fact, I think its analysis ultimately relies upon nothing but historical practice (whence does it derive even the “moral equivalence” requirement?)— 652 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. but to acknowledge that reality would be to acknowledge a rational limitation upon our power, which bobtailed “critical examination” obviously is not. “Th[e] requirement of [due process] is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process due according to the law of the land.” Walker v. Sauvinet, 92 U. S. 90, 93 (1876) (citation omitted). With respect to the second claim asserted by petitioner, I agree with Justice Souter’s analysis, and join Part III of his opinion. For these reasons, I would affirm the judgment of the Supreme Court of Arizona. Justice White, with whom Justice Marshall, Justice Blackmun, and Justice Stevens join, dissenting. Because I disagree with the result reached on each of the two separate issues before the Court, and because what I deem to be the proper result on either issue alone warrants reversal of petitioner’s conviction, I respectfully dissent. I As In re Winship, 397 U. S. 358 (1970), makes clear, due process mandates “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged.” Id., at 364. In finding that the general jury verdict returned against petitioner meets the requirements of due process, the plurality ignores the import of Winship’s holding. In addition, the plurality mischaracterizes the nature of the constitutional problem in this case. It is true that we generally give great deference to the States in defining the elements of crimes. I fail to see, however, how that truism advances the plurality’s case. There is no failure to defer in recognizing the obvious: that premeditated murder and felony murder are alternative courses of conduct by which the crime of first-degree murder may be established. The statute provides: “A murder which is perpetrated by means of poison or lying in wait, torture or by any other kind of wilful, de SCHAD v. ARIZONA 653 624 White, J., dissenting liberate or premeditated killing, or which is committed in avoiding or preventing lawful arrest or effecting an escape from legal custody, or in the perpetration of, or attempt to perpetrate, arson, rape in the first degree, robbery, burglary, kidnapping, or mayhem, or sexual molestation of a child under the age of thirteen years, is murder of the first degree. All other kinds of murder are of the second degree.” Ariz. Rev. Stat. Ann. § 13-452 (Supp. 1973). The statute thus sets forth three general categories of conduct which constitute first-degree murder: a “wilful, deliberate or premeditated killing”; a killing committed to avoid arrest or effect escape; and a killing which occurs during the attempt or commission of various specified felonies. Here, the prosecution set out to convict petitioner of first-degree murder by either of two different paths, premeditated murder and felony murder/robbery. Yet while these two paths both lead to a conviction for first-degree murder, they do so by divergent routes possessing no elements in common except the fact of a murder. In his closing argument to the jury, the prosecutor himself emphasized the difference between premeditated murder and felony murder: “There are two types of first degree murder, two ways for first degree murder to be committed. [One] is premeditated murder. There are three elements to that. One, that a killing take place, that the defendant caused someone’s death. Secondly, that he do so with malice. And malice simply means that he intended to kill or that he was very reckless in disregarding the life of the person he killed. “And along with the killing and the malice, attached to that killing is a third element, that of premeditation, which simply means that the defendant contemplated that he would cause death, he reflected upon that. 654 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. “The other type of first degree murder, members of the jury, is what we call felony murder. It only has two components [sic] parts. One, that a death be caused, and, two, that that death be caused in the course of a felony, in this case a robbery. And so if you find that the defendant committed a robbery and killed in the process of that robbery, that also is first degree murder.” App. 6-7. Unlike premeditated murder, felony murder does not require that the defendant commit the killing or even intend to kill, so long as the defendant is involved in the underlying felony. On the other hand, felony murder—but not premeditated murder—requires proof that the defendant had the requisite intent to commit and did commit the underlying felony. State v. McLoughlin, 139 Ariz. 481, 485, 679 P. 2d 504, 508 (1984). Premeditated murder, however, demands an intent to kill as well as premeditation, neither of which is required to prove felony murder. Thus, contrary to the plurality’s assertion, see ante, at 639, the difference between the two paths is not merely one of a substitution of one mens rea for another. Rather, each contains separate elements of conduct and state of mind which cannot be mixed and matched at will.1 It is particularly fanciful to equate Changes to the Arizona first-degree murder statute since the date of the murder in question make it even clearer that felony murder and premeditated murder have different elements and involve different mentes reae. The statute now provides that the two offenses are alternative means of establishing first-degree murder. First, a person is guilty if “[i]ntending or knowing that his conduct will cause death, such person causes the death of another with premeditation.” Ariz. Rev. Stat. Ann. § 13-1105. A(l) (1989). Second, a person is guilty if “[a]cting either alone or with one or more other persons such person commits or attempts to commit [any one of a series of specified felonies], and in the course of and in furtherance of such offense or immediate flight from such offense, such person or another person causes the death of any person.” § 13-1105.A(2). The antecedent of the current statute, which used substantially the same SCHAD v. ARIZONA 655 624 White, J., dissenting an intent to do no more than rob with a premeditated intent to murder. Consequently, a verdict that simply pronounces a defendant “guilty of first-degree murder” provides no clues as to whether the jury agrees that the three elements of premeditated murder or the two elements of felony murder have been proved beyond a reasonable doubt. Instead, it is entirely possible that half of the jury believed the defendant was guilty of premeditated murder and not guilty of felony murder/robbery, while half believed exactly the reverse. To put the matter another way, the plurality affirms this conviction without knowing that even a single element of either of the ways for proving first-degree murder, except the fact of a killing, has been found by a majority of the jury, let alone found unanimously by the jury as required by Arizona law. A defendant charged with first-degree murder is at least entitled to a verdict—something petitioner did not get in this case as long as the possibility exists that no more than six jurors voted for any one element of first-degree murder, except the fact of a killing.* 2 The means by which the plurality attempts to justify the result it reaches do not withstand scrutiny. In focusing on language, took effect on October 1, 1978, less then two months after the killing at issue occurred. 1977 Ariz. Sess. Laws, Ch. 142, § 60. 2 Even the Arizona Supreme Court has acknowledged that the lack of information concerning juror agreement may call into question the validity of a general jury verdict when the prosecution proceeds under alternative theories. State v. Smith, 160 Ariz. 507, 513, 774 P. 2d 811, 817 (1989). Indeed, petitioner’s first trial exemplified this danger. There the State proceeded on three theories: premeditated murder, felony murder/robbery, and felony murder/kidnaping. The trial judge failed to instruct the jury on either of the underlying felonies, and the Arizona Supreme Court held this to be fundamental error. 142 Ariz. 619, 620, 691 P. 2d 710, 711 (1984). Petitioner’s conviction was reversed because it was impossible to tell from the general jury verdict whether petitioner had been found guilty of premeditated murder or felony murder, for which the instructions had been deficient. Id., at 621, 691 P. 2d, at 712. Cf. Sandstrom v. Montana, 442 U. S. 510, 526 (1979). 656 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. our vagueness cases, see ante, at 632-633, the plurality misses the point. The issue is not whether the statute here is so vague that an individual cannot reasonably know what conduct is criminalized. Indeed, the statute’s specificity renders our vagueness cases inapplicable. The problem is that the Arizona statute, under a single heading, criminalizes several alternative patterns of conduct. While a State is free to construct a statute in this way, it violates due process for a State to invoke more than one statutory alternative, each with different specified elements, without requiring that the jury indicate on which of the alternatives it has based the defendant’s guilt. The plurality concedes that “nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of ‘Crime’ so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction.” Ante, at 633. But this is very close to the effect of the jury verdict in this case. Allowing the jury to return a generic verdict following a prosecution on two separate theories with specified elements has the same effect as a jury verdict of “guilty of crime” based on alternative theories of embezzlement or reckless driving. Thus the statement that “[i]n Arizona, first degree murder is only one crime regardless whether it occurs as a premeditated murder or a felony murder,” State v. Encinas, 132 Ariz. 493, 496, 647 P. 2d 624, 627 (1982), neither recognizes nor resolves the issue in this case. The plurality likewise misses the mark in attempting to compare this case to those in which the issue concerned proof of facts regarding the particular means by which a crime was committed. See ante, at 631-632. In the case of burglary, for example, the manner of entering is not an element of the crime; thus, Winship would not require proof beyond a reasonable doubt of such factual details as whether a defendant pried open a window with a screwdriver or a crowbar. SCHAD v. ARIZONA 657 624 White, J., dissenting It would, however, require the jury to find beyond a reasonable doubt that the defendant in fact broke and entered, because those are the “fact[s] necessary to constitute the crime.” 397 U. S., at 364.3 Nor do our cases concerning the shifting of burdens and the creation of presumptions help the plurality’s cause. See ante, at 638-639. Although this Court consistently has given deference to the State’s definition of a crime, the Court also has made clear that having set forth the elements of a crime, a State is not free to remove the burden of proving one of those elements from the prosecution. For example, in Sandstrom n. Montana, 442 U. S. 510 (1979), the Court recognized that “under Montana law, whether the crime was committed purposely or knowingly is a fact necessary to constitute the crime of deliberate homicide,” and stressed that the State therefore could not shift the burden of proving lack of intent to the defendant. Id., at 520-521. Conversely, in Patterson v. New York, 432 U. S. 197, 205-206 (1977), the Court found that it did not violate due process to require a defendant to establish the affirmative defense of extreme emotional disturbance, because “[t]he death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime.” Here, the question is not whether the State “must be permitted a degree of flexibility” in defining the elements of the offense. See ante, at 638. Surely it is entitled to that deference. But having determined that premeditated murder and felony murder are separate paths to establishing first-degree murder, each containing a separate set of elements from the other, the State must 8 For similar reasons, the plurality’s focus on the statutorily enumerated means of satisfying a given element of an offense, see ante, at 636, n. 6, is misplaced. 658 OCTOBER TERM, 1990 501 U. S. White, J., dissenting be held to its choice.4 Cf. Evitts v. Lucey, 469 U. S. 387, 401 (1985). To allow the State to avoid the Consequences of its legislative choices through judicial interpretation would permit the State to escape federal constitutional scrutiny even when its actions violate rudimentary due process. The suggestion that the state of mind required for felony murder/robbery and that for premeditated murder may reasonably be considered equivalent, see ante, at 644, is not only unbelievable, but it also ignores the distinct consequences that may flow from a conviction for each offense at sentencing. Assuming that the requisite statutory aggravating circumstance exists, the death penalty may be imposed for premeditated murder, because a conviction necessarily carries with it a finding that the defendant intended to kill. See Ariz. Rev. Stat. Ann. § 13-703 (1989). This is not the case with felony murder, for a conviction only requires that the death occur during the felony; the defendant need not be proved to be the killer. Thus, this Court has required that in order for the death penalty to be imposed for felony murder, there must be a finding that the defendant in fact killed, attempted to kill, or intended that a killing take place or that lethal force be used, Enmund v. Florida, 458 U. S. 782, 797 (1982), or that the defendant was a major participant in 4 Even if the crime of first-degree murder were generic, that different categories of the offense carry risks of different punishment is constitutionally significant. In Mullaney v. Wilbur, 421 U. S. 684 (1975), for example, this Court concluded that the absence of “heat of passion on sudden provocation,” while not an expressly stated element of the offense of “homicide,” was essential to reduce the punishment category of the crime from that of murder to manslaughter. Id., at 697, 699. Consequently, the State there violated In re Winship, 397 U. S. 358 (1970), and principles of due process by requiring the defendant to establish the absence of the intent required for murder, and thereby rebut the presumption of malice. Mullaney, supra, at 703-704. As discussed below, the disparate intent requirements of premeditated murder and felony murder have life-or-death consequences at sentencing. SCHAD v. ARIZONA 659 624 White, J., dissenting the felony and exhibited reckless indifference to human life, Tison v. Arizona, 481 U. S. 137, 158 (1987). In the instant case, the general verdict rendered by the jury contained no finding of intent or of actual killing by petitioner. The sentencing judge declared, however: “[T]he court does consider the fact that a felony murder instruction was given in mitigation, however there is not evidence to indicate that this murder was merely incidental to a robbery. The nature of the killing itself belies that. . . . “The court finds beyond a reasonable doubt that the defendant attempted to kill Larry Grove, intended to kill Larry Grove and that defendant did kill Larry Grove. “The victim was strangled to death by a ligature drawn very tightly about the neck and tied in a double knot. No other reasonable conclusion can be drawn from the proof in this case, notwithstanding the felony murder instruction.” Tr. 8-9 (Aug. 29, 1985). Regardless of what the jury actually had found in the guilt phase of the trial, the sentencing judge believed the murder was premeditated. Contrary to the plurality’s suggestion, see ante, at 644-645, n. 9, the problem is not that a general verdict fails to provide the sentencing judge with sufficient information concerning whether to impose the death sentence. The issue is much more serious than that. If in fact the jury found that premeditation was lacking, but that petitioner had committed felony murder/robbery, then the sentencing judge’s finding was in direct contravention of the jury verdict. It is clear, therefore, that the general jury verdict creates an intolerable risk that a sentencing judge may subsequently impose a death sentence based on findings that contradict those made by the jury during the guilt phase, but not revealed by their general verdict. Cf. State v. Smith, 160 Ariz. 507, 513, 774 P. 2d 811, 817 (1989). 660 OCTOBER TERM, 1990 White, J., dissenting 501 U. S. II I also cannot agree that the requirements of Beck v. Alabama, 447 U. S. 625 (1980), were satisfied by the instructions and verdict forms in this case. Beck held that “when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense—but leaves some doubt with respect to an element that would justify conviction of a capital offense—the failure to give the jury the ‘third option’ of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.” Id., at 637. The majority finds Beck satisfied because the jury here had the opportunity to convict petitioner of second-degree murder. See ante, at 646-648. But that alternative provided no “third option” to a choice between convicting petitioner of felony murder/robbery and acquitting him completely, because, as the State concedes, see Tr. of Oral Arg. 51-52, second-degree murder is a lesser included offense only of premeditated murder. Thus, the Arizona Supreme Court has declared that “ ‘[t]he jury may not be instructed on a lesser degree of murder than first degree where, under the evidence, it was committed in the course of a robbery.’” State v. Clayton, 109 Ariz. 587, 595, 514 P. 2d 720, 728 (1973), quoting State v. Kruchten, 101 Ariz. 186, 196, 417 P. 2d 510, 520 (1966), cert, denied, 385 U. S. 1043 (1967) (emphasis added). Consequently, if the jury believed that the course of events led down the path of felony murder/robbery, rather than premeditated murder, it could not have convicted petitioner of second-degree murder as a legitimate “third option” to capital murder or acquittal. The State asserts that felony murder has no lesser included offenses.5 In order for a defendant to be convicted of fel- 6 6 Arizona law has not been consistent on this point. Arizona cases have long said that “there is no lesser included homicide offense of the crime of felony murder since the mens rea necessary to satisfy the premeditation element of first degree murder is supplied by the specific intent required for the felony.” State v. Arias, 131 Ariz. 441, 444, 641 P. 2d 1285, 1288 SCHAD v. ARIZONA 661 624 White, J., dissenting ony murder, however, there must be evidence to support a conviction on the underlying felony, and the jury must be instructed as to the elements of the underlying felony. Although the jury need not find that the underlying felony was completed, the felony murder statute requires there to be at least an attempt to commit the crime. As a result, the jury could not have convicted petitioner of felony murder/robbery without first finding him guilty of robbery or attempted robbery.6 Indeed, petitioner’s first conviction was reversed because the trial judge had failed to instruct the jury on the elements of robbery. 142 Ariz. 619, 691 P. 2d 710 (1984). As the Arizona Supreme Court declared: “Fundamental error is present when a trial judge fails to instruct on matters vital to a proper consideration of the evidence. Knowledge of the elements of the underlying felonies was vital for the jurors to properly consider a felony murder theory.” Id., at 620-621, 691 P. 2d, at 711-712 (citation omitted). It is true that the rule in Beck only applies if there is in fact a lesser included offense to that with which the defendant is charged, for “[wjhere no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process.” Spaziano v. Florida, 468 U. S. 447, 455 (1984). But while deference is due state legislatures and courts in defining crimes, this deference has constitutional limits. In the case of a compound * 6 (1982) (emphasis added). Recent cases have omitted the crucial word “homicide.” See, e. g., State v. LaGrand, 153 Ariz. 21, 29-30, 734 P. 2d 563, 571-572, cert, denied, 484 U. S. 872-873 (1987). 6 In this Court’s recent decision in Schmuck v. United States, 489 U. S. 705 (1989), we adopted the “elements” test for defining “necessarily included” offenses for purposes of Federal Rule of Criminal Procedure 31(c). “Under this test, one offense is not ‘necessarily included’ in another unless the elements of the lesser offense are a subset of the elements of the charged offense.” Schmuck, supra, at 716. See also Berra v. United States, 351 U. S. 131, 134 (1956). Here that test is met, for petitioner could not be convicted of felony murder/robbery unless the jury found that a robbery, or an attempt to commit robbery, had occurred. 662 OCTOBER TERM, 1990 501 U. S. White, J., dissenting crime such as felony murder, in which one crime must be proved in order to prove the other, the underlying crime must, as a matter of law, be a lesser included offense of the greater. Thus, in the instant case, robbery was a lesser included offense of the felony murder/robbery for which petitioner was tried. The Arizona Supreme Court acknowledged that “the evidence supported an instruction and conviction for robbery,” had robbery been a lesser included offense of felony murder/robbery. 163 Ariz. 411, 417, 788 P. 2d 1162, 1168 (1989). Consequently, the evidence here met “the independent prerequisite for a lesser included offense instruction that the evidence at trial must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater.” Schmuck v. United States, 489 U. S. 705, 716, n. 8 (1989); see Keeble v. United States, 412 U. S. 205, 208 (1973). Due process required that the jury be given the opportunity to convict petitioner of robbery, a necessarily lesser included offense of felony murder/robbery. See Stevenson v. United States, 162 U. S. 313, 319-320 (1896). Nor is it sufficient that a “third option” was given here for one of the prosecution’s theories but not the other. When the State chooses to proceed on various theories, each of which has lesser included offenses, the relevant lesser included instructions and verdict forms on each theory must be given in order to satisfy Beck. Anything less renders Beck, and the due process it guarantees, meaningless. With all due respect, I dissent. COHEN v. COWLES MEDIA CO. 663 Syllabus COHEN v. COWLES MEDIA CO., DBA MINNEAPOLIS STAR & TRIBUNE CO., ET AL. CERTIORARI TO THE SUPREME COURT OF MINNESOTA No. 90-634. Argued March 27, 1991—Decided June 24, 1991 During the 1982 Minnesota gubernatorial race, petitioner Cohen, who was associated with one party’s campaign, gave court records concerning another party’s candidate for Lieutenant Governor to respondent publishers’ newspapers after receiving a promise of confidentiality from their reporters. Nonetheless, the papers identified him in their stories, and he was fired from his job. He filed suit against respondents in state court, alleging, among other things, a breach of contract. The court rejected respondents’ argument that the First Amendment barred the suit, and a jury awarded him, inter alia, compensatory damages. The State Court of Appeals affirmed, but the State Supreme Court reversed, holding that a contract cause of action was inappropriate. It then went on to address the question whether Cohen could recover under state law on a promissory estoppel theory even though that issue was never tried to a jury, nor briefed nor argued by the parties, concluding that enforcement under such a theory would violate respondents’ First Amendment rights. Held: 1. This Court has jurisdiction. Respondents’ contention that the case should be dismissed because the promissory estoppel theory was not argued or presented in the courts below and because the State Supreme Court’s decision rests entirely on a state-law interpretation is rejected. It is irrelevant to this Court’s jurisdiction whether a party raised below and argued a federal-law issue that the state supreme court actually considered and decided. Orr v. Orr, 440 U. S. 268, 274-275. Moreover, the Minnesota Supreme Court made clear that its holding rested on federal law, and respondents have defended against this suit all along by arguing that the First Amendment barred the enforcement of the reporters’ promises. Pp. 667-668. 2. The First Amendment does not bar a promissory estoppel cause of action against respondents. Such a cause of action, although private, involves state action within the meaning of the Fourteenth Amendment and therefore triggers the First Amendment’s protections, since promissory estoppel is a state-law doctrine creating legal obligations never explicitly assumed by the parties that are enforceable through the Minnesota courts’ official power. Cf., e. g., New York Times Co. v. Sullivan, 664 OCTOBER TERM, 1990 Syllabus 501 U. S. 376 U. S. 254, 265. However, the doctrine is a law of general applicability that does not target or single out the press, but rather is applicable to all Minnesota citizens’ daily transactions. Thus, the First Amendment does not require that its enforcement against the press be subject to stricter scrutiny than would be applied to enforcement against others, cf. Associated Press v. NLRB, 301 U. S. 103, 132-133, even if the payment is characterized as compensatory damages. Nor does that Amendment grant the press protection from any law which in any fashion or to any degree limits or restricts its right to report truthful information. Florida Star v. B. J. F., 491 U. S. 524, distinguished. Moreover, Cohen sought damages for a breach of promise that caused him to lose his job and lowered his earning capacity, and did not attempt to use a promissory estoppel cause of action to avoid the strict requirements for establishing a libel or defamation claim. Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, distinguished. Any resulting inhibition on truthful reporting is no more than the incidental, and constitutionally insignificant, consequence of applying to the press a generally applicable law requiring it to keep certain promises. Pp. 668-672. 3. Cohen’s request that his compensatory damages award be reinstated is rejected. The issues whether his verdict should be upheld on the ground that a promissory estoppel claim had been established under state law and whether the State Constitution may be construed to shield the press from an action such as this one are matters for the State Supreme Court to address and resolve in the first instance. P. 672. 457 N. W. 2d 199, reversed and remanded. White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Scalia, and Kennedy, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Marshall and Souter, JJ., joined, post, p. 672. Souter, J., filed a dissenting opinion, in which Marshall, Blackmun, and O’Connor, JJ., joined, post, p. 676. Elliot C. Rothenberg argued the cause and filed briefs for petitioner. John D. French argued the cause for respondents. With him on the brief for respondent Cowles Media Co. were John Borger and Randy M. Lebedoff. Stephen M. Shapiro, Andrew L. Frey, Kenneth S. Geller, Mark I. Levy, Michael W. McConnell, Paul R. Hannah, Laurie A. Zenner, John C. COHEN v. COWLES MEDIA CO. 665 663 Opinion of the Court Fontaine, and Cristina L. Mendoza filed a brief for respondent Northwest Publications, Inc.* Justice White delivered the opinion of the Court. The question before us is whether the First Amendment prohibits a plaintiff from recovering damages, under state promissory estoppel law, for a newspaper’s breach of a promise of confidentiality given to the plaintiff in exchange for information. We hold that it does not. During the closing days of the 1982 Minnesota gubernatorial race, Dan Cohen, an active Republican associated with Wheelock Whitney’s Independent-Republican gubernatorial campaign, approached reporters from the St. Paul Pioneer Press Dispatch (Pioneer Press) and the Minneapolis Star and Tribune (Star Tribune) and offered to provide documents relating to a candidate in the upcoming election. Cohen made clear to the reporters that he would provide the information only if he was given a promise of confidentiality. Reporters from both papers promised to keep Cohen’s identity anonymous and Cohen turned over copies of two public court records concerning Marlene Johnson, the Democratic-Farmer-Labor candidate for Lieutenant Governor. The first record indicated that Johnson had been charged in 1969 with three counts of unlawful assembly, and the second that she had been convicted in 1970 of petit theft. Both newspapers interviewed Johnson for her explanation and one reporter tracked down the person who had found the records for Cohen. As it turned out, the unlawful assembly charges arose out of Johnson’s participation in a protest of an alleged failure to hire minority workers on municipal construction projects, and the charges were eventually dismissed. The petit theft conviction was for leaving a store without paying *Rex S. Heinke, Robert S. Warren, Jerry S. Birenz, Ralph P. Huber, W. Terry Maguire, Rene P. Milam, Richard M. Schmidt, Harold W. Fuson, Jr., Barbara Wartelle Wall, James E. Grossberg, George Freeman, and William A. Niese filed a brief for Advance Publications, Inc., et al. as amici curiae. 666 OCTOBER TERM, 1990 501 U. S. Opinion of the Court for $6 worth of sewing materials. The incident apparently occurred at a time during which Johnson was emotionally distraught, and the conviction was later vacated. After consultation and debate, the editorial staffs of the two newspapers independently decided to publish Cohen’s name as part of their stories concerning Johnson. In their stories, both papers identified Cohen as the source of the court records, indicated his connection to the Whitney campaign, and included denials by Whitney campaign officials of any role in the matter. The same day the stories appeared, Cohen was fired by his employer. Cohen sued respondents, the publishers of the Pioneer Press and Star Tribune, in Minnesota state court, alleging fraudulent misrepresentation and breach of contract. The trial court rejected respondents’ argument that the First Amendment barred Cohen’s lawsuit. A jury returned a verdict in Cohen’s favor, awarding him $200,000 in compensatory damages and $500,000 in punitive damages. The Minnesota Court of Appeals, in a split decision, reversed the award of punitive damages after concluding that Cohen had failed to establish a fraud claim, the only claim which would support such an award. 445 N. W. 2d 248, 260 (1989). However, the court upheld the finding of liability for breach of contract and the $200,000 compensatory damages award. Id., at 262. A divided Minnesota Supreme Court reversed the compensatory damages award. 457 N. W. 2d 199 (1990). After affirming the Court of Appeals’ determination that Cohen had not established a claim for fraudulent misrepresentation, the court considered his breach-of-contract claim and concluded that “a contract cause of action is inappropriate for these particular circumstances.” Id., at 203. The court then went on to address the question whether Cohen could establish a cause of action under Minnesota law on a promissory estoppel theory. Apparently, a promissory estoppel theory was never tried to the jury, nor briefed nor argued by COHEN v. COWLES MEDIA CO. 667 663 Opinion of the Court the parties; it first arose during oral argument in the Minnesota Supreme Court when one of the justices asked a question about equitable estoppel. See App. 38. In addressing the promissory estoppel question, the court decided that the most problematic element in establishing such a cause of action here was whether injustice could be avoided only by enforcing the promise of confidentiality made to Cohen. The court stated: “Under a promissory estoppel analysis there can be no neutrality towards the First Amendment. In deciding whether it would be unjust not to enforce the promise, the court must necessarily weigh the same considerations that are weighed for whether the First Amendment has been violated. The court must balance the constitutional rights of a free press against the common law interest in protecting a promise of anonymity.” 457 N. W. 2d, at 205. After a brief discussion, the court concluded that “in this case enforcement of the promise of confidentiality under a promissory estoppel theory would violate defendants’ First Amendment rights.” Ibid. We granted certiorari to consider the First Amendment implications of this case. 498 U. S. 1011 (1990). Respondents initially contend that the Court should dismiss this case without reaching the merits because the promissory estoppel theory was not argued or presented in the courts below and because the Minnesota Supreme Court’s decision rests entirely on the interpretation of state law. These contentions do not merit extended discussion. It is irrelevant to this Court’s jurisdiction whether a party raised below and argued a federal-law issue that the state supreme court actually considered and decided. Orr n. Orr, 440 U. S. 268, 274-275 (1979); Dun & Bradstreet, Inc. n. Greenmoss Builders, Inc., 472 U. S. 749, 754, n. 2 (1985); Mills v. Maryland, 486 U. S. 367, 371, n. 3 (1988); Franks v. Delaware, 438 U. S. 154, 161-162 (1978); Jenkins v. Georgia, 418 U. S. 153, 157 (1974). Moreover, that the Minnesota Supreme Court rested its holding on federal law could not be made 668 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. more clear than by its conclusion that “in this case enforcement of the promise of confidentiality under a promissory estoppel theory would violate defendants’ First Amendment rights.” 457 N. W. 2d, at 205. It can hardly be said that there is no First Amendment issue present in the case when respondents have defended against this suit all along by arguing that the First Amendment barred the enforcement of the reporters’ promises to Cohen. We proceed to consider whether that Amendment bars a promissory estoppel cause of action against respondents. The initial question we face is whether a private cause of action for promissory estoppel involves “state action” within the meaning of the Fourteenth Amendment such that the protections of the First Amendment are triggered. For if it does not, then the First Amendment has no bearing on this case. The rationale of our decision in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), and subsequent cases compels the conclusion that there is state action here. Our cases teach that the application of state rules of law in state courts in a manner alleged to restrict First Amendment freedoms constitutes “state action” under the Fourteenth Amendment. See, e. g., id., at 265; NAACP v. Claiborne Hardware Co., 458 U. S. 886, 916, n. 51 (1982); Philadelphia Newspapers, Inc. n. Hepps, 475 U. S. 767, 777 (1986). In this case, the Minnesota Supreme Court held that if Cohen could recover at all it would be on the theory of promissory estoppel, a state-law doctrine which, in the absence of a contract, creates obligations never explicitly assumed by the parties. These legal obligations would be enforced through the official power of the Minnesota courts. Under our cases, that is enough to constitute “state action” for purposes of the Fourteenth Amendment. Respondents rely on the proposition 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 COHEN v. COWLES MEDIA CO. 669 663 Opinion of the Court state interest of the highest order.” Smith v. Daily Mail Publishing Co., 443 U. S. 97, 103 (1979). That proposition is unexceptionable, and it has been applied in various cases that have found insufficient the asserted state interests in preventing publication of truthful, lawfully obtained information. See, e. g., Florida Star v. B. J. F., 491 U. S. 524 (1989); Smith v. Daily Mail, supra; Landmark Communications, Inc. n. Virginia, 435 U. S. 829 (1978). This case, however, is not controlled by this line of cases but, rather, by the equally well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. As the cases relied on by respondents recognize, the truthful information sought to be published must have been lawfully acquired. The press may not with impunity break and enter an office or dwelling to gather news. Neither does the First Amendment relieve a newspaper reporter of the obligation shared by all citizens to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source. Branzburg v. Hayes, 408 U. S. 665 (1972). The press, like others interested in publishing, may not publish copyrighted material without obeying the copyright laws. See Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 576-579 (1977). Similarly, the media must obey the National Labor Relations Act, Associated Press n. NLRB, 301 U. S. 103 (1937), and the Fair Labor Standards Act, Oklahoma Press Publishing Co. n. Walling, 327 U. S. 186, 192-193 (1946); may not restrain trade in violation of the antitrust laws, Associated Press n. United States, 326 U. S. 1 (1945); Citizen Publishing Co. v. United States, 394 U. S. 131, 139 (1969); and must pay non-discriminatory taxes, Murdock n. Pennsylvania, 319 U. S. 105, 112 (1943); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 581-583 (1983). 670 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Cf. University of Pennsylvania n. EEOC, 493 U. S. 182, 201-202 (1990). It is, therefore, beyond dispute that “[t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.” Associated Press v. NLRB, supra, at 132-133. Accordingly, enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations. There can be little doubt that the Minnesota doctrine of promissory estoppel is a law of general applicability. It does not target or single out the press. Rather, insofar as we are advised, the doctrine is generally applicable to the daily transactions of all the citizens of Minnesota. The First Amendment does not forbid its application to the press. Justice Blackmun suggests that applying Minnesota promissory estoppel doctrine in this case will “punish” respondents for publishing truthful information that was lawfully obtained. Post, at 675-676. This is not strictly accurate because compensatory damages are not a form of punishment, as were the criminal sanctions at issue in Smith v. Daily Mail, supra. If the contract between the parties in this case had contained a liquidated damages provision, it would be perfectly clear that the payment to petitioner would represent a cost of acquiring newsworthy material to be published at a profit, rather than a punishment imposed by the State. The payment of compensatory damages in this case is constitutionally indistinguishable from a generous bonus paid to a confidential news source. In any event, as indicated above, the characterization of the payment makes no difference for First Amendment purposes when the law being applied is a general law and does not single out the press. Moreover, Justice Blackmun’s reliance on cases like Florida Star v. B. J. F., supra, and Smith v. Daily Mail is misplaced. In those cases, the State itself defined the content of publications that would trigger liability. Here, by con- COHEN v. COWLES MEDIA CO. 671 663 Opinion of the Court trast, Minnesota law simply requires those making promises to keep them. The parties themselves, as in this case, determine the scope of their legal obligations, and any restrictions that may be placed on the publication of truthful information are self-imposed. Also, it is not at all clear that respondents obtained Cohen’s name “lawfully” in this case, at least for purposes of publishing it. Unlike the situation in Florida Star, where the rape victim’s name was obtained through lawful access to a police report, respondents obtained Cohen’s name only by making a promise that they did not honor. The dissenting opinions suggest that the press should not be subject to any law, including copyright law for example, which in any fashion or to any degree limits or restricts the press’ right to report truthful information. The First Amendment does not grant the press such limitless protection. Nor is Cohen attempting to use a promissory estoppel cause of action to avoid the strict requirements for establishing a libel or defamation claim. As the Minnesota Supreme Court observed here, “Cohen could not sue for defamation because the information disclosed [his name] was true.” 457 N. W. 2d, at 202. Cohen is not seeking damages for injury to his reputation or his state of mind. He sought damages in excess of $50,000 for breach of a promise that caused him to lose his job and lowered his earning capacity. Thus, this is not a case like Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 (1988), where we held that the constitutional libel standards apply to a claim alleging that the publication of a parody was a state-law tort of intentional infliction of emotional distress. Respondents and amici argue that permitting Cohen to maintain a cause of action for promissory estoppel will inhibit truthful reporting because news organizations will have legal incentives not to disclose a confidential source’s identity even when that person’s identity is itself newsworthy. Justice Souter makes a similar argument. But if this is the case, 672 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. it is no more than the incidental, and constitutionally insignificant, consequence of applying to the press a generally applicable law that requires those who make certain kinds of promises to keep them. Although we conclude that the First Amendment does not confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law, we reject Cohen’s request that in reversing the Minnesota Supreme Court’s judgment we reinstate the jury verdict awarding him $200,000 in compensatory damages. See Brief for Petitioner 31. The Minnesota Supreme Court’s incorrect conclusion that the First Amendment barred Cohen’s claim may well have truncated its consideration of whether a promissory estoppel claim had otherwise been established under Minnesota law and whether Cohen’s jury verdict could be upheld on a promissory estoppel basis. Or perhaps the State Constitution may be construed to shield the press from a promissory estoppel cause of action such as this one. These are matters for the Minnesota Supreme Court to address and resolve in the first instance on remand. Accordingly, the judgment of the Minnesota Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. Justice Blackmun, with whom Justice Marshall and Justice Souter join, dissenting. I agree with the Court that the decision of the Supreme Court of Minnesota rested on federal grounds and that the judicial enforcement of petitioner’s promissory estoppel claim constitutes state action under the Fourteenth Amendment. I do not agree, however, that the use of that claim to penalize the reporting of truthful information regarding a political campaign does not violate the First Amendment. Accordingly, I dissent. The majority concludes that this case is not controlled by the decision in Smith v. Daily Mail Publishing Co., 443 COHEN v. COWLES MEDIA CO. 673 663 Blackmun, J., dissenting U. S. 97 (1979), to the effect that a State may not punish the publication of lawfully obtained, truthful information “absent a need to further a state interest of the highest order.” Id., at 103. Instead, we are told, the controlling precedent is “the equally well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” Ante, at 669. See, e. g., Branzburg v. Hayes, 408 U. S. 665 (1972); Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 192-193 (1946); Minneapolis Star & Tribune Co. n. Minnesota Comm’r of Revenue, 460 U. S. 575, 581-583 (1983). I disagree. I do not read the decision of the Supreme Court of Minnesota to create any exception to, or immunity from, the laws of that State for members of the press. In my view, the court’s decision is premised, not on the identity of the speaker, but on the speech itself. Thus, the court found it to be of “critical significance,” that “the promise of anonymity arises in the Classic First Amendment context of the quintessential public debate in our democratic society, namely, a political source involved in a political campaign.” 457 N. W. 2d 199, 205 (1990); see also id., at 204, n. 6 (“New York Times n. Sullivan, 376 U. S. 254 . . . (1964), holds that a state may not adopt a state rule of law to impose impermissible restrictions on the federal constitutional freedoms of speech and press”). Necessarily, the First Amendment protection afforded respondents would be equally available to nonmedia defendants. See, e. g., Lovell v. Griffin, 303 U. S. 444, 452 (1938) (“The liberty of the press is not confined to newspapers and periodicals. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion”). The majority’s admonition that “‘[t]he publisher of a newspaper has no special immunity from the application of general laws,’” ante, at 670, and its 674 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. reliance on the cases that support that principle, are therefore misplaced. In Branzburg, for example, this Court found it significant that “these cases involve no intrusions upon speech or assembly, no . . . restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. . . . [N]o penalty, civil or criminal, related to the content of published material is at issue here.” 408 U. S., at 681. Indeed, “[t]he sole issue before us” in Branzburg was “the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime.” Id., at 682. See also Associated Press n. NLRB, 301 U. S. 103, 133 (1937); Associated Press n. United States, 326 U. S. 1, 20, n. 18 (1945); Citizen Publishing Co. v. United States, 394 U. S. 131, 139 (1969). In short, these cases did not involve the imposition of liability based upon the content of speech.1 Contrary to the majority, I regard our decision in Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 (1988), to be precisely on point. There, we found that the use of a claim of intentional infliction of emotional distress to impose liability for the publication of a satirical critique violated the First 1 The only arguable exception is Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 (1977). In Zacchini, a performer sued a news organization for appropriation of his “right to the publicity value of his performance,” id., at 565, after it broadcast the entirety of his act on local television. This Court held that the First Amendment did not bar the suit. We made clear, however, that our holding did not extend to the reporting of information about an event of public interest. We explained: “If. . . respondent had merely reported that petitioner was performing at the fair and described or commented on his act, with or without showing his picture on television, we would have a very different case.” Id., at 569. Thus, Zacchini cannot support the majority’s conclusion that “a law of general applicability,” ante, at 670, may not violate the First Amendment when employed to penalize the dissemination of truthful information or the expression of opinion. COHEN v. COWLES MEDIA CO. 675 663 Blackmun, J., dissenting Amendment. There was no doubt that Virginia’s tort of intentional infliction of emotional distress was “a law of general applicability” unrelated to the suppression of speech.2 Nonetheless, a unanimous Court found that, when used to penalize the expression of opinion, the law was subject to the strictures of the First Amendment. In applying that principle, we concluded, id., at 56, that “public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with ‘actual malice,”’ as defined by New York Times Co. v. Sullivan, 376 U. S. 254 (1964). In so doing, we rejected the argument that Virginia’s interest in protecting its citizens from emotional distress was sufficient to remove from First Amendment protection a “patently offensive” expression of opinion. 485 U. S., at 50.3 * * * * 8 As in Hustler, the operation of Minnesota’s doctrine of promissory estoppel in this case cannot be said to have a merely “incidental” burden on speech; the publication of important political speech is the claimed violation. Thus, as in Hustler, the law may not be enforced to punish the expres 2 The Virginia cause of action for intentional infliction of emotional dis- tress at issue in Hustler provided for recovery where a plaintiff could dem- onstrate “that the defendant’s conduct (1) is intentional or reckless; (2) of- fends generally accepted standards of decency or morality; (3) is causally connected with the plaintiff’s emotional distress; and (4) caused emotional distress that was severe.” 485 U. S., at 50, n. 3. 8 The majority attempts to distinguish Hustler on the ground that there the plaintiff sought damages for injury to his state of mind whereas the petitioner here sought damages “for a breach of a promise that caused him to lose his job and lowered his earning capacity.” Ante, at 671. I perceive no meaningful distinction between a statute that penalizes published speech in order to protect the individual’s psychological well being or reputational interest and one that exacts the same penalty in order to compensate the loss of employment or earning potential. Certainly, our decision in Hustler recognized no such distinction. 676 OCTOBER TERM, 1990 Souter, J., dissenting 501 U. S. sion of truthful information or opinion.4 In the instant case, it is undisputed that the publication at issue was true. To the extent that truthful speech may ever be sanctioned consistent with the First Amendment, it must be in furtherance of a state interest “of the highest order.” Smith, 443 U. S., at 103. Because the Minnesota Supreme Court’s opinion makes clear that the State’s interest in enforcing its promissory estoppel doctrine in this case was far from compelling, see 457 N. W. 2d, at 204-205, I would affirm that court’s decision. I respectfully dissent. Justice Souter, with whom Justice Marshall, Justice Blackmun, and Justice O’Connor join, dissenting. I agree with Justice Blackmun that this case does not fall within the line of authority holding the press to laws of general applicability where commercial activities and rela- 4 The majority argues that, unlike the criminal sanctions we considered in Smith v. Daily Mail Publishing Co., 443 U. S. 97 (1979), the liability at issue here will not “punish” respondents in the strict sense of that word. Ante, at 670. While this may be true, we have long held that the imposition of civil liability based on protected expression constitutes “punishment” of speech for First Amendment purposes. See, e. g., Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 386 (1973) (“In the context of a libelous advertisement. . . this Court has held that the First Amendment does not shield a newspaper from punishment for libel when with actual malice it publishes a falsely defamatory advertisement”) (emphasis added), citing New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1964); Gertz v. Robert Welch, Inc., 418 U. S. 323, 340 (1974) C[PJunishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press”) (emphasis added). Cf. New York Times Co., 376 U. S., at 297 (Black, J., concurring) (“To punish the exercise of this right to discuss public affairs or to penalize it through libel judgments is to abridge or shut off discussion of the very kind most needed”) (emphasis added). Though they be civil, the sanctions we review in this case are no more justifiable as “a cost of acquiring newsworthy material,” ante, at 670, than were the libel damages at issue in New York Times Co., a permissible cost of disseminating newsworthy material. COHEN v. COWLES MEDIA CO. 677 663 Souter, J., dissenting tionships, not the content of publication, are at issue. See ante, at 674. Even such general laws as do entail effects on the content of speech, like the one in question, may of course be found constitutional, but only, as Justice Harlan observed, “when [such effects] have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. . . . Whenever, in such a context, these constitutional protections are asserted against the exercise of valid governmental powers a reconciliation must be effected, and that perforce requires an appropriate weighing of the respective interests involved.” Konigsberg n. State Bar of California, 366 U. S. 36, 51 (1961). Thus, “[t]here is nothing talismanic about neutral laws of general applicability,” Employment Div., Dept, of Human Resources of Ore. v. Smith, 494 U. S. 872, 901 (1990) (O’Connor, J., concurring in judgment), for such laws may restrict First Amendment rights just as effectively as those directed specifically at speech itself. Because I do not believe the fact of general applicability to be dispositive, I find it necessary to articulate, measure, and compare the competing interests involved in any given case to determine the legitimacy of burdening constitutional interests, and such has been the Court’s recent practice in publication cases. See Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 (1988); Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 (1977). Nor can I accept the majority’s position that we may dispense with balancing because the burden on publication is in a sense “self-imposed” by the newspaper’s voluntary promise of confidentiality. See ante, at 671. This suggests both the possibility of waiver, the requirements for which have not been met here, see, e. g., Curtis Publishing Co. v. Butts, 388 U. S. 130, 145 (1967), as well as a conception of First Amendment rights as those of the speaker alone, with a value that may be measured without reference to the importance of the 678 OCTOBER TERM, 1990 Souter, J., dissenting 501 U. S. information to public discourse. But freedom of the press is ultimately founded on the value of enhancing such discourse for the sake of a citizenry better informed and thus more prudently self-governed. “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First Nat. Bank of Boston n. Bellotti, 435 U. S. 765, 783 (1978). In this context, “‘[i]t is the right of the [public], not the right of the [media], which is paramount,’” CBS, Inc. v. FCC, 453 U. S. 367, 395 (1981) (emphasis omitted) (quoting Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969)), for “[without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally,” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 492 (1975); cf. Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 573 (1980); New York Times Co. n. Sullivan, 376 U. S. 254, 278-279 (1964). The importance of this public interest is integral to the balance that should be struck in this case. There can be no doubt that the fact of Cohen’s identity expanded the universe of information relevant to the choice faced by Minnesota voters in that State’s 1982 gubernatorial election, the publication of which was thus of the sort quintessentially subject to strict First Amendment protection. See, e. g., Eu v. San Francisco Cty. Democratic Central Comm., 489 U. S. 214, 223 (1989). The propriety of his leak to respondents could be taken to reflect on his character, which in turn could be taken to reflect on the character of the candidate who had retained him as an adviser. An election could turn on just such a factor; if it should, I am ready to assume that it would be to the greater public good, at least over the long run. This is not to say that the breach of such a promise of confidentiality could never give rise to liability. One can conceive of situations in which the injured party is a private indi- COHEN v. COWLES MEDIA CO. 679 663 Souter, J., dissenting victual, whose identity is of less public concern than that of petitioner; liability there might not be constitutionally prohibited. Nor do I mean to imply that the circumstances of acquisition are irrelevant to the balance, see, e. g., Florida Star v. B. J. F., 491 U. S. 524, 534-535, and n. 8 (1989), although they may go only to what balances against, and not to diminish, the First Amendment value of any particular piece of information. Because I believe the State’s interest in enforcing a newspaper’s promise of confidentiality insufficient to outweigh the interest in unfettered publication of the information revealed in this case, I respectfully dissent. 680 OCTOBER TERM, 1990 Syllabus 501 U. S. PAULEY, SURVIVOR OF PAULEY v. BETHENERGY MINES, INC., et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 89-1714. Argued February 20, 1991—Decided June 24, 1991* Congress created the black lung benefits program to provide compensation for disability to miners due, at least in part, to pneumoconiosis arising out of coal mine employment. The program was first administered by the Social Security Administration (SSA) under the auspices of the then-existent Department of Health, Education, and Welfare (HEW), and later by the Department of Labor (DOL). Congress authorized these Departments, during their respective tenures, to adopt interim regulations governing claims adjudications, but constrained the Secretary of Labor by providing that the DOL regulations “shall not be more restrictive than” HEW’s. As here relevant, the HEW interim regulations permit the invocation of a rebuttable statutory presumption of eligibility for benefits upon introduction by the claimant of specified medical evidence, 20 CFR § 410.490(b)(1), and a demonstration that the “impairment [thus] established . . . arose out of coal mine employment (see §§410.416 and 410.456),” § 410.490(b)(2). The referred-to sections presume, “in the absence of persuasive evidence to the contrary,” that pneumoconiosis arose out of such employment. Once a claimant invokes the eligibility presumption, § 410.490(c) permits the SSA to rebut the presumption by two methods. In contrast, the comparable DOL interim regulations set forth four rebuttal provisions. The first two provisions mimic those in the HEW regulations. The third provision permits rebuttal upon a showing that the miner’s disability did not arise in whole or in part out of coal mine employment, and the fourth authorizes rebuttal with evidence demonstrating that the miner does not have pneumoconiosis. In No. 89-1714, the Court of Appeals concluded that the DOL regulations were not “more restrictive than” the HEW regulations by virtue of the DOL’s third rebuttal provision, and therefore reversed an administrative award of benefits to a claimant found to qualify under the HEW *Together with No. 90-113, Clinchfield Coal Co. v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, et al., and No. 90-114, Consolidation Coal Co. v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, et al., on certiorari to the United States Court of Appeals for the Fourth Circuit. PAULEY v. BETHENERGY MINES, INC. 681 680 Syllabus regulations, but not under the DOL provisions. In Nos. 90-113 and 90-114, the Court of Appeals struck down the DOL regulations as being “more restrictive than” HEW’s, reversing DOL’s denial of benefits to two claimants whose eligibility was deemed rebutted under the fourth rebuttal provision. Held: The third and fourth rebuttal provisions in the DOL regulations do not render those regulations “more restrictive than” the HEW regulations. Pp. 695-706. (a) The Secretary of Labor’s determination that her interim regulations are not more restrictive than HEW’s warrants deference from this Court. Deference to an agency’s interpretation of ambiguous provisions in the statutes it is authorized to implement is appropriate when Congress has delegated policymaking authority to the agency. See, e. g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 866. Here, since the relevant legislation has produced a complex and highly technical regulatory program, requiring significant expertise in the identification and classification of medical eligibility criteria, and entailing the exercise of judgment grounded in policy concerns, Congress must have intended, with respect to the “not. . . more restrictive than” phrase, a delegation of broad policymaking discretion to the Secretary of Labor. This is evident from the statutory text in that Congress declined to require that the DOL adopt the HEW interim regulations verbatim, and from the statute’s legislative history, which demonstrates that the delegation was made with the intention that the black lung program evolve as technological expertise matured. Thus, the Secretary’s authority necessarily entails the authority to interpret HEW’s regulations and the discretion to promulgate interim regulations based on a reasonable interpretation thereof. Pp. 696-699. (b) The Secretary of Labor’s position satisfies Chevron's reasonableness requirement. See 467 U. S., at 845. Based on the premise that the HEW regulations were adopted to ensure that only miners who were disabled due to pneumoconiosis arising out of coal mine employment would receive benefits, the Secretary interprets HEW’s § 410.490(b)(2) requirement that the claimant demonstrate that the impairment “arose out of coal mine employment” as comparable to DOL’s third rebuttal provision, and views subsection (b)(2)’s incorporation by reference of §§410.416 and 410.456 as doing the work of DOL’s fourth rebuttal method, in light of the statutory definition of pneumoconiosis as “a . . . disease . . . arising out of coal mine employment.” This interpretation harmonizes the two interim regulations with the statute. Moreover, the Secretary’s interpretation is more reasoned than that of the claimants, who assert that the HEW regulations contain no provision, either in the invocation subsection or in the rebuttal subsection, that directs factual 682 OCTOBER TERM, 1990 Syllabus 501 U. S. inquiry into the issue of disability causation or the existence of pneumoconiosis. The claimants’ contention that § 410.490(b)(1) creates a “conclusive” presumption of entitlement without regard to the existence of competent evidence on these questions is deficient in two respects. First, the claimants’ premise is inconsistent with the statutory text, which expressly provides that the presumptions in question will be rebuttable, and requires the Secretary of HEW to consider all relevant evidence. Second, although subsection (c)’s delineation of two rebuttal methods may support an inference that the drafter intended to exclude other methods, such an inference provides no guidance where its application would render a regulation inconsistent with the statute’s purpose and language. The fact that the SSA, under the HEW regulations, appeared to award benefits to miners whose administrative files contained scant evidence of eligibility does not require the Secretary to forgo inquiries into disability causation and disease existence. The claimants’ argument that HEW omitted such inquiries from its criteria based on a “cost/benefit” conclusion that the inquiries would engender inordinate delays yet generate little probative evidence finds scant support in contemporaneous analyses of the SSA awards; disregards entirely subsequent advances in medical technology that Congress could not have intended the HEW or the DOL to ignore; and is based on the unacceptable premise that the Secretary must demonstrate that her reasonable interpretation of HE W’s regulations is consistent with HEW’s contemporaneous interpretation of those regulations. Pp. 699-706. No. 89-1714, 890 F. 2d 1295, affirmed; No. 90-113, 895 F. 2d 178, and No. 90-114, 895 F. 2d 173, reversed and remanded. Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Marshall, Stevens, O’Connor, and Souter, JJ., joined. Scalia, J., filed a dissenting opinion, post, p. 706. Kennedy, J., took no part in the consideration or decision of the litigation. Mark E. Solomons argued the cause for respondents in No. 89-1714 and petitioners in Nos. 90-113 and 90-114. With him on the briefs for petitioners in Nos. 90-113 and 90-114 were Laura Metcoff Klaus, Allen R. Prunty, and John J. Bagnato. Messrs. Bagnato and Solomons, Ms. Klaus, Curtis H. Barnette, and Mr. Prunty filed a brief for respondent BethEnergy Mines, Inc. Christopher J. Wright argued the cause for the federal respondent in all cases. With him on the briefs were Solicitor PAULEY v. BETHENERGY MINES, INC. 683 680 Opinion of the Court General Starr, Deputy Solicitor General Shapiro, Allen H. Feldman, and Edward D. Sieger. Julian N. Henriques, Jr., argued the cause for petitioner in No. 89-1714 and private respondents in Nos. 90-113 and 90-114. With him on the briefs for petitioner in 89-1714 were Robert E. Lehrer, Timothy P. Creany, and Blair V. Pawlowski. Sherry Lee Wilson filed a brief for respondent Taylor in No. 90-113. Thomas R. Michael filed a brief for respondent Dayton in No. 90-114. t Justice Blackmun delivered the opinion of the Court. The black lung benefits program, created by Congress, was to be administered first by the Social Security Administration (SSA) under the auspices of the then-existent Department of Health, Education, and Welfare (HEW), and later by the Department of Labor (DOL). Congress authorized these Departments, during their respective tenures, to adopt interim regulations governing the adjudication of claims for black lung benefits, but constrained the Secretary of Labor by providing that the DOL regulations “shall not be more restrictive than” HEW’s. This litigation calls upon us to determine whether the Secretary of Labor has complied with that constraint. I A The black lung benefits program was enacted originally as Title IV of the Federal Coal Mine Health and Safety Act of 1969 (FCMHSA), 83 Stat. 792, 30 U. S. C. §901 et seq., to provide benefits for miners totally disabled due at least in tRobert H. Stropp, Jr., and Michael Dinnerstein filed a brief for the United Mine Workers of America as amicus curiae urging reversal in No. 89-1714. Briefs of amici curiae urging reversal in Nos. 90-113 and 90-114 and affirmance in 89-1714 were filed for the National Coal Association by 'William E. Hynan; and for the National Council on Compensation Insurance by Michael Camilleri. 684 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. part to pneumoconiosis arising out of coal mine employment, and to the dependents and survivors of such miners. See Pittston Coal Group v. Sebben, 488 U. S. 105, 108 (1988); Mullins Coal Co. v. Director, Office of Workers’ Compensation Programs, Dept, of Labor, 484 U. S. 135, 138 (1987). Through FCMHSA, Congress established a bifurcated system of compensating miners disabled by pneumoconiosis.1 Part B thereof created a temporary program administered by the SSA under the auspices of the Secretary of HEW. This program was intended for the processing of claims filed on or before December 31, 1972. Benefits awarded under part B were paid by the Federal Government. For claims filed after 1972, part C originally authorized a permanent program, administered by the Secretary of Labor, to be coordinated with federally approved state workers’ compensation programs. Benefits awarded under part C were to be paid by the claimants’ coal mining employers. Under FCMHSA, the Secretary of HEW was authorized to promulgate permanent regulations regarding the determination and adjudication of part B claims. 30 U. S. C. § 921(b). The Secretary’s discretion was limited, however, by three statutory presumptions defining eligibility under the part B program. § 921(c). For a claimant suffering from pneumoconiosis who could establish 10 years of coal mine employment, there “shall be a rebuttable presumption that his pneumoconiosis arose out of such employment.” § 921(c)(1). Similarly, for a miner with at least 10 years of * ’Pneumoconiosis was identified by the Surgeon General as “a chronic chest disease caused by the accumulation of fine coal dust particles in the human lung.” S. Rep. No. 95-209, p. 5 (1977). What he described as simple pneumoconiosis seldom produces significant ventilation impairment, but it may reduce the ability of the lung to transfer oxygen to the blood. Complicated pneumoconiosis is a more serious disease, for the patient “incurs progressive massive fibrosis as a complex reaction to dust and other factors.” In its complicated stage, pneumoconiosis “usually produces marked pulmonary impairment and considerable respiratory disability.” Ibid. PAULEY v. BETHENERGY MINES, INC. 685 680 Opinion of the Court coal mine employment who “died from a respirable disease there shall be a rebuttable presumption that his death was due to pneumoconiosis.” § 921(c)(2). Finally, there was an irrebuttable presumption that a miner presenting medical evidence demonstrating complicated pneumoconiosis was totally disabled as a result of that condition. § 921(c)(3). Consistent with these presumptions, HEW promulgated permanent regulations prescribing the methods and standards for establishing entitlement to black lung benefits under part B. See 20 CFR §§410.401 to 410.476 (1990). B Dissatisfied with the increasing backlog of unadjudicated claims and the relatively high rate of claim denials resulting from the application of the HEW permanent regulations, Congress in 1972 amended FCMHSA and redesignated Title IV of that Act as the Black Lung Benefits Act of 1972 (Benefits Act). 86 Stat. 150. See S. Rep. No. 92-743 (1972). See also Comptroller General of the United States, General Accounting Office, Report to the Congress: Achievements, Administrative Problems, and Costs in Paying Black Lung Benefits to Coal Miners and Their Widows 16-18 (September 5, 1972) (nationally, as of December 31, 1971, claims filed were 347,716, claims processed were 322,582, and rate of claim denial was 50.5 percent). In addition to extending the coverage of part B to those claims filed by living miners prior to July 1, 1973, and those filed by survivors before January 1, 1974, the 1972 amendments liberalized in several ways the criteria and procedures applicable to part B claims. First, the amendments added a fourth statutory presumption of total disability due to pneumoconiosis for claimants unable to produce X-ray evidence of the disease. This presumption applied to a claimant with 15 years of coal mine employment who presented evidence of a totally disabling respiratory or pulmonary impairment. Congress expressly limited rebuttal of the presumption to a showing that the miner did not 686 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. have pneumoconiosis or that his respiratory or pulmonary impairment did not arise out of employment in a coal mine. 30 U. S. C. § 921(c)(4). Second, the 1972 amendments redefined “total disability” to permit an award of benefits on a showing that a miner was unable to perform his coal mining duties or other comparable work—as opposed to the prior requirement that the miner demonstrate that he was unable to perform any job, see § 902(f)—and prohibited HEW from denying a claim for benefits solely on the basis of a negative X ray. § 923(b). Third, the 1972 amendments made it easier for survivors of a deceased miner who had been disabled due to pneumoconiosis but had died from a cause unrelated to the disease to demonstrate eligibility for benefits. See § 901. Finally, the amendments made clear that “[i]n determining the validity of claims under [part B], all relevant evidence shall be considered.” § 923(b). In response to these amendments, the Secretary of HEW adopted interim regulations “designed to ‘permit prompt and vigorous processing of the large backlog of claims’ that had developed during the early phases of administering part B.” Sebben, 488 U. S., at 109, quoting 20 CFR § 410.490(a) (1973).2 These interim regulations established adjudicatory rules for processing part B claims that permit the invocation of a presumption of eligibility upon demonstration by the claimant of specified factors, and a subsequent opportunity for the SSA, in administering the program, to rebut the presumption. Specifically, the HEW interim regulations permit claimants to invoke a rebuttable presumption that a miner is “to- 2 Although the 1972 amendments did not direct the Secretary of HEW to promulgate these new interim regulations, the Report of the Senate Committee on Labor and Public Welfare contained a strongly worded invitation to do so. See S. Rep. No. 92-743, p. 18 (1972) (“Accordingly, the Committee expects the Secretary to adopt such interim evidentiary rules and disability evaluation criteria as will permit prompt and vigorous processing of the large backlog of claims consistent with the language and intent of these amendments”). PAULEY v. BETHENERGY MINES, INC. 687 680 Opinion of the Court tally disabled due to pneumoconiosis” in one of two ways. First, the claimant can introduce an X ray, a biopsy, or an autopsy indicating pneumoconiosis. 20 CFR § 410.490(b)(1) (i) (1990). Second, for a miner with at least 15 years of coal mine employment, a claimant may introduce ventilatory studies establishing the presence of a chronic respiratory or pulmonary disease. §410.490(b)(l)(ii). In either case, in order to invoke the presumption, the claimant also must demonstrate that the “impairment established in accordance with paragraph (b)(1) of this section arose out of coal mine employment (see §§ 410.416 and 410.456).” § 410.490(b)(2). Once a claimant invokes the presumption of eligibility under § 410.490(b), the HEW interim regulations permit rebuttal by the SSA upon a showing that the miner is doing his usual coal mine work or comparable and gainful work, or is capable of doing such work. See § 410.490(c). The statutory changes adopted by the 1972 amendments and the application of HEW’s interim regulations resulted in a surge of claims approvals under part B. See Lopatto, The Federal Black Lung Program: A 1983 Primer, 85 W. Va. L. Rev. 677, 686 (1983) (demonstrating that the overall approval rate for part B claims had substantially increased by December 31, 1974). Because the HEW interim regulations expired with the part B program, however, the Secretary of Labor was constrained to adjudicate all part C claims, i. e., those filed after June 30, 1973, by living miners, and after December 31, 1973, by survivors, under the more stringent permanent HEW regulations. See Sebben, 488 U. S., at 110. Neither the Congress nor the Secretary of Labor was content with the application to part C claims of the unwieldy and restrictive permanent regulations. See Letter, dated Sept. 13, 1974, of William J. Kilberg, Solicitor of Labor, to John B. Rhinelander, General Counsel, Department of HEW, appearing in H. R. Rep. No. 94-770, p. 14 (1975). Not only did the application of the permanent regulations cause the DOL to process claims slowly, but the DOL’s 688 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. claims approval rate was significantly below that of the SSA. See Lopatto, supra, at 691. Accordingly, Congress turned its attention once again to the black lung benefits program. C The Black Lung Benefits Reform Act of 1977 (BLBRA), 92 Stat. 95, approved and effective March 1,1978, further liberalized the criteria for eligibility for black lung benefits in several ways. First, the Act expanded the definition of pneumoconiosis to include “sequelae” of the disease, including respiratory and pulmonary impairments arising out of coal mine employment. See 30 U. S. C. § 902(b). Second, BLBRA required the DOL to accept a board-certified or board-eligible radiologist’s interpretation of submitted X rays if the films met minimal quality standards, thereby prohibiting the DOL from denying a claim based on a secondary assessment of the X rays provided by a Government-funded radiologist. See § 923(b). Finally, the BLBRA added a fifth presumption of eligibility and otherwise altered the entitlement structure to make it easier for survivors of a deceased long-term miner to obtain benefits. See §§ 921(c)(5) and 902(f). In addition to liberalizing the statutory prerequisites to benefit entitlement, the BLBRA authorized the DOL to adopt its own interim regulations for processing part C claims filed before March 31, 1980. In so doing, Congress required that the “[c]riteria applied by the Secretary of Labor . . . shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973.” § 902(f)(2). The Secretary of Labor, pursuant to this authorization, adopted interim regulations governing the adjudication of part C claims. These regulations differ significantly from the HEW interim regulations. See 20 CFR § 727.203 (1990). The DOL regulations include two presumption provisions similar to the two presumption provisions in the HEW interim regulations. Compare §§ 727.203(a)(1) and (2) with §§ 410.490(b)(l)(i) and (ii). To invoke the presumption of eh- PAULEY v. BETHENERGY MINES, INC. 689 680 Opinion of the Court gibility under these two provisions, however, a claimant need not prove that the “impairment . . . arose out of coal mine employment,” as was required under the HEW interim regulations. See § 410.490(b)(2). In addition, the DOL interim regulations add three methods of invoking the presumption of eligibility not included in the HEW interim regulations. Specifically, under the DOL regulations, a claimant can invoke the presumption of total disability due to pneumoconiosis by submitting blood gas studies that demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood; by submitting other medical evidence establishing the presence of a totally disabling respiratory or pulmonary impairment; or, in the case of a deceased miner for whom no medical evidence is available, by submitting a survivor’s affidavit demonstrating such a disability. See §§ 727.203(a)(3), (4), and (5). Finally, the DOL interim regulations provide four methods for rebutting the presumptions established under §727.203. Two of the rebuttal provisions mimic those in the HEW regulations, permitting rebuttal upon a showing that the miner is performing, or is able to perform, his coal mining or comparable work. See §§ 727.203(b)(1) and (2). The other two rebuttal provisions are at issue in these cases. Under these provisions, a presumption of total disability due to pneumoconiosis can be rebutted if “[t]he evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment,” or if “[t]he evidence establishes that the miner does not, or did not, have pneumoconiosis.” See §§ 727.203(b)(3) and (4). II The three cases before us present the question whether thé DOL’s interim regulations are “more restrictive than” HEW’s interim regulations by virtue of the third and fourth rebuttal provisions, and therefore are inconsistent with the agency’s 690 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. statutory authority. In No. 89-1714, Pauley v. BethEnergy Mines, Inc., the Court of Appeals for the Third Circuit concluded that the DOL interim regulations were not more restrictive. BethEnergy Mines, Inc. n. Director, Office of Workers’ Compensation Programs, Dept, of Labor, 890 F. 2d 1295 (1989). John Pauley, the now-deceased husband of petitioner Harriet Pauley, filed a claim for black lung benefits on April 21, 1978, after he had worked 30 years in the underground mines of Pennsylvania. Pauley stopped working soon after he filed his claim for benefits. At a formal hearing on November 5, 1987, the Administrative Law Judge (ALJ) found that Pauley had begun to experience shortness of breath, coughing, and fatigue in 1974, and that those symptoms had gradually worsened, causing him to leave his job in the mines. The ALJ also found that Pauley had arthritis requiring several medications daily, had suffered a stroke in January 1987, and had smoked cigarettes for 34 years until he stopped in 1974. Because respondent BethEnergy did not contest the presence of coal workers’ pneumoconiosis, the ALJ found that the presumption had been invoked under § 727.203(a)(1). Turning to the rebuttal evidence, the ALJ concluded that Pauley was not engaged in his usual coal mine work or comparable and gainful work, and that Pauley was totally disabled from returning to coal mining or comparable employment. See §§ 727.203(b)(1) and (2). The ALJ then weighed the evidence submitted under § 727.203(b)(3), and determined that respondent BethEnergy had sustained its burden of establishing that pneumoconiosis was not a contributing factor in Pauley’s total disability and, accordingly, that his disability did not “arise in whole or in part out of coal mine employment.” § 727.203(b)(3). See Carozza v. United States Steel Corp., 727 F. 2d 74 (CA3 1984). Having determined that Pauley was not entitled to receive black lung benefits under the DOL interim regulations, the ALJ felt constrained by Third Circuit precedent to apply the PAULEY v. BETHENERGY MINES, INC. 691 680 Opinion of the Court HEW interim regulations to Pauley’s claim. He first concluded that respondent BethEnergy’s concession that Pauley had pneumoconiosis arising out of coal mining employment was sufficient to invoke the presumption of total disability due to pneumoconiosis under § 410.490(b). Because the evidence demonstrated Pauley’s inability to work, and the ALJ interpreted § 410.490(c) as precluding rebuttal of the presumption by “showing that the claimant’s total disability is unrelated to his coal mine employment,” the ALJ found that BethEnergy could not carry its burden on rebuttal, and that Pauley was entitled to benefits. After the ALJ denied its motion for reconsideration, BethEnergy appealed unsuccessfully to the Benefits Review Board. It then sought review in the Court of Appeals for the Third Circuit. That court reversed. It pointed out that the decisions of the ALJ and the Benefits Review Board created “two disturbing circumstances.” 890 F. 2d, at 1299. First, the court found it “surely extraordinary,” ibid., that a determination that Pauley was totally disabled from causes unrelated to pneumoconiosis, which was sufficient to rebut the presumption under § 727.203(b)(3), would preclude respondent BethEnergy from rebutting the presumption under § 410.490(c). Second, the court considered it to be “outcome determinative” that the purpose of the Benefits Act is to provide benefits to miners totally disabled at least in part due to pneumoconiosis if the disability arises out of coal mine employment, and that the ALJ had made unchallenged findings that Pauley’s disability did not arise even in part out of such employment. 890 F. 2d, at 1299-1300. The court found it to be “perfectly evident that no set of regulations under [the Benefits Act] may provide that a claimant who is statutorily barred from recovery may nevertheless recover.” Id., at 1300. Asserting that this Court’s decision in Pittston Coal Group n. Sebben, 488 U. S. 105 (1988), was not controlling because that decision concerned only the invocation of the presump 692 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. tion and not its rebuttal, the court then concluded that Congress’ mandate that the criteria used by the Secretary of Labor be not more restrictive than the criteria applicable to a claim filed on June 30, 1973, applied only to the criteria for determining whether a claimant is “totally disabled,” not to the criteria used in rebuttal. Finally, the court pointed out that its result would not differ if it applied the rebuttal provisions of § 410.490(c) to Pauley’s claim, because subsections (c)(1) and (2) make reference to § 410.412(a), which refers to a miner’s being “totally disabled due to pneumoconiosis.” According to the Third Circuit, there would be no reason for the regulations to include such a reference “unless it was the intention of the Secretary to permit rebuttal by a showing that the claimant’s disability did not arise at least in part from coal mine employment.” 890 F. 2d, at 1302. In the two other cases now before us, No. 90-113, Clinchfield Coal Co. v. Director, Office of Workers’ Compensation Programs, Dept, of Labor, and No. 90-114, Consolidation Coal Co. v. Director, Office of Workers’ Compensation Programs, Dept, of Labor, the Court of Appeals for the Fourth Circuit struck down the DOL interim regulations. John Taylor, a respondent in No. 90-113, applied for black lung benefits in 1976, after having worked for almost 12 years as a coal loader and roof bolter in underground coal mines. The AL J found that Taylor properly had invoked the presumption of eligibility for benefits under § 727.203(a)(3), based on qualifying arterial blood gas studies demonstrating an impairment in the transfer of oxygen from his lungs to his blood. The ALJ then proceeded to weigh the rebuttal evidence, consisting of negative X-ray evidence, nonqualifying ventilatory study scores, and several medical reports respectively submitted by Taylor and by his employer, petitioner Clinchfield Coal Company. In light of this evidence, the ALJ concluded that Taylor neither suffered from pneumoconiosis nor was totally disabled. Rather, the evidence demonstrated that Taylor suffered from chronic bronchitis caused PAULEY v. BETHENERGY MINES, INC. 693 680 Opinion of the Court by 30 years of cigarette smoking and obesity. The Benefits Review Board affirmed, concluding that the ALJ’s decision was supported by substantial evidence. The Court of Appeals reversed. Taylor v. Clinchfield Coal Co., 895 F. 2d 178 (1990). The court first dismissed the argument that the DOL interim regulations cannot be considered more restrictive than HEW’s as applied to Taylor because Taylor invoked the presumption of eligibility based on arterial blood gas studies, a method of invocation available under the DOL regulations but not under HEW’s, and was therefore unable to use the rebuttal provisions of the HEW interim regulations as a benchmark. Id., at 182. The court reasoned that it was a “matter of indifference” how the claimant invoked the presumption of eligibility and rejected the argument that the rebuttal provisions must be evaluated in light of corresponding invocation provisions. “It is the fact of establishment of the presumption and the substance thereof which is of consequence in this case, not the number of the regulation which provides for such establishment.” Ibid. Focusing on the DOL’s rebuttal provisions in isolation, the Fourth Circuit determined that the third and fourth rebuttal methods “permit rebuttal of more elements of entitlement to benefits than do the interim HEW regulations,” because the HEW regulations permit rebuttal “solely through attacks on the element of total disability,” while the DOL regulations “allow the consideration of evidence disputing both the presence of pneumoconiosis and the connection between total disability and coal mine employment.” Ibid. Accordingly, the court concluded that the DOL interim regulations were more restrictive than those found in § 410.490, and that the application of these regulations violated 30 U. S. C. § 902(f).3 3 In light of this Court’s decision in Pittston Coal Group v. Sebben, 488 U. S. 105 (1988), the Court of Appeals interpreted § 410.490(c) as permitting rebuttal of the presumption on a showing that the claimant’s disability was not caused by coal mine employment. 895 F. 2d, at 183. The court 694 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. One judge dissented. Noting that the panel’s decision was in conflict with the Sixth Circuit in Youghiogheny & Ohio Coal Co. v. Milliken, 866 F. 2d 195 (1989), and with the Third Circuit in Pauley, he concluded that those decisions “do less violence to congressional intent, and avoid . . . upsetting the statutory scheme.” 895 F. 2d, at 184. Albert Dayton, a respondent in No. 90-114, applied for black lung benefits in 1979, after having worked as a coal miner for 17 years. The AL J found that Day ton had invoked the presumption of eligibility based on ventilatory test scores showing a chronic pulmonary condition. The ALJ then determined that petitioner Consolidation Coal Company had successfully rebutted the presumption under §§ 727.203(b)(2) and (4) by demonstrating that Dayton did not have pneumoconiosis and, in any event, that Dayton’s pulmonary impairment was not totally disabling. The Benefits Review Board affirmed, concluding that the medical evidence demonstrated that Dayton’s pulmonary condition was unrelated to coal dust exposure, but was instead secondary to his smoking and “other ailments,” and that the ALJ had correctly concluded that Consolidation had rebutted the presumption under § 727.203(b)(4).* 4 The Fourth Circuit reversed. Dayton n. Consolidation Coal Co., 895 F. 2d 173 (1990). Relying on its decision in Taylor, the court held that 30 U. S. C. § 902(f) required Dayton’s claim to be adjudicated “under the less restrictive rebuttal standards of §410.490.” 895 F. 2d, at 175. Concluding that the HEW regulations did not permit rebuttal upon a therefore remanded the case for further consideration of that issue. It appears that the Fourth Circuit has since retreated from this view and now considers the HEW interim regulations to permit only two rebuttal methods. See Robinette v. Director, Office of Workers’ Compensation Programs, Dept, of Labor, 902 F. 2d 1566 (1990) (judgment order), cert, pending, No. 90-172. 4 In light of this conclusion, the Board found it unnecessary to review the determination that Consolidation had successfully rebutted the presumption under subsection (b)(2) of the DOL interim regulations. PAULEY v. BETHENERGY MINES, INC. 695 680 Opinion of the Court showing that the claimant does not have pneumoconiosis, the court stated that the AL J’s finding that Dayton does not have pneumoconiosis "is superfluous and has no bearing on the case.” Id., at 176, n. In view of the conflict among the Courts of Appeals, we granted certiorari in the three cases and consolidated them for hearing in order to resolve the issue of statutory construction. 498 U. S. 937 (1990).5 Ill We turn to the statutory text that provides that “[c]riteria applied by the Secretary of Labor . . . shall not be more restrictive than the criteria applicable” under the interim HEW regulations. 30 U. S. C. § 902(f)(2). See Sebben, 488 U. S., at 113. Specifically, we must determine whether the third and fourth rebuttal provisions in the DOL regulations render the DOL regulations more restrictive than were the HEW regulations. These provisions permit rebuttal of the presumption of eligibility upon a showing that the miner’s disability did not arise in whole or in part out of coal mine employment or that the miner does not have pneumoconiosis.6 6 In addition to the Third Circuit, the Seventh Circuit has concluded that the third rebuttal provision of the DOL interim regulation is not more restrictive than the criteria applied by HEW. See Patrich v. Old Ben Coal Co., 926 F. 2d 1482, 1488 (1991). The Seventh Circuit did not address the fourth rebuttal provision. The Sixth Circuit also has refused to invalidate the third and fourth rebuttal provisions of the DOL interim regulation, and continues to apply these provisions to all part C claims, regardless of whether the presumption is invoked under §410.490 or § 727.203. See Youghiogheny & Ohio Coal Co. v. Milliken, 866 F. 2d 195, 202 (1989). 6 In Sebben, the Court concluded that the DOL interim regulations were more restrictive than the HEW’s to the extent that the DOL’s invocation provision did not permit invocation of the presumption without 10 years of coal mining experience. See 488 U. S., at 113. The Sebben Court did not address the issue now before us: the validity of the third and fourth rebuttal provisions contained in the DOL interim regulations. See id., at 119. 696 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. A In the BLBRA, Congress specifically constrained the Secretary of Labor’s discretion through the directive that the criteria applied to part C claims could “not be more restrictive than” that applied to part B claims. 30 U. S. C. § 902(f)(2). The claimants and the dissent urge that this restriction is unambiguous, and that no deference is due the Secretary’s determination that her interim regulations are not more restrictive than HEW’s. In the alternative, both the claimants and the dissent argue that regardless of whether the statutory mandate is clear, the only interpretation of the HEW interim regulations that warrants deference is the interpretation given those regulations by the Secretary of HEW. In our view, this position misunderstands the principles underlying judicial deference to agency interpretations, as well as the scope of authority delegated to the Secretary of Labor in the BLBRA. Judicial deference to an agency’s interpretation of ambiguous provisions of the statutes it is authorized to implement reflects a sensitivity to the proper roles of the political and judicial branches. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 866 (1984) (“[F]ederal judges —who have no constituency—have a duty to respect legitimate policy choices made by those who do”); see also Silberman, Chevron—The Intersection of Law & Policy, 58 Geo. Wash. L. Rev. 821, 822-824 (1990). As Chevron itself illustrates, the resolution of ambiguity in a statutory text is often more a question of policy than of law. See Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2085-2088 (1990). When Congress, through express delegation or the introduction of an interpretive gap in the statutory structure, has delegated policymaking authority to an administrative agency, the extent of judicial review of the agency’s policy determinations is limited. Cf. Adams Fruit Co. v. Barrett, 494 U. S. 638, 649 (1990) (“A precondition to deference under Chevron is a congressional PAULEY v. BETHENERGY MINES, INC. 697 680 Opinion of the Court delegation of administrative authority”); Chevron, 467 U. S., at 864-866. It is precisely this recognition that informs our determination that deference to the Secretary is appropriate here. The Benefits Act has produced a complex and highly technical regulatory program. The identification and classification of medical eligibility criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns. In those circumstances, courts appropriately defer to the agency entrusted by Congress to make such policy determinations. See Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144, 152-153 (1991); Aluminum Co. of America v. Central Lincoln Peoples’ Utility Dist., 467 U. S. 380, 390 (1984). In Sebben, we declined to defer to the Secretary’s interpretation of the term “criteria” as used in § 902(f)(2), as including only medical but not evidentiary criteria, because we found Congress’ intent to include all criteria in that provision to be manifest. See Sebben, 488 U. S., at 113-114, 116. With respect to the phrase “not . . . more restrictive than,” Congress’ intent is similarly clear: The phrase cannot be read except as a delegation of interpretive authority to the Secretary of Labor. That Congress intended in the BLBRA to delegate to the Secretary of Labor broad policymaking discretion in the promulgation of her interim regulations is clear from the text of the statute and the history of this provision. Congress declined to require that the DOL adopt the HEW interim regulations verbatim. Rather, the delegation of authority requires only that the DOL’s regulations be “not . . . more restrictive than” HEW’s. Further, the delegation was made with the intention that the program evolve as technological expertise matured. The Senate Committee on Human Resources stated: “It is the Committee’s belief that the Secretary of Labor should have sufficient statutory authority ... to 698 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. establish eligibility criteria .... It is intended that pursuant to this authority the Secretary of Labor will make every effort to incorporate within his regulations ... to the extent feasible the advances made by medical science in the diagnosis and treatment of pneumoconiosis . . . since the promulgation in 1972 of the Secretary of HEW’s medical eligibility criteria.” S. Rep. No. 95-209, p. 13 (1977). In addition, the Conference Report indicated that the DOL’s task was more than simply ministerial when it informed the Secretary that “such [new] regulations shall not provide more restrictive criteria than [the HEW interim regulations], except that in determining claims under such criteria all relevant medical evidence shall be considered.” H. R. Conf. Rep. No. 95-864, p. 16 (1978) (emphasis added). As delegated by Congress, then, the Secretary’s authority to promulgate interim regulations “not . . . more restrictive than” the HEW interim regulations necessarily entails the authority to interpret HEW’s regulations and the discretion to promulgate interim regulations based on a reasonable interpretation thereof. From this congressional delegation derives the Secretary’s entitlement to judicial deference. The claimants also argue that even if the Secretary of Labor’s interpretation of the HEW interim regulations is generally entitled to deference, such deference would not be appropriate in this instance because that interpretation has changed without explanation throughout the litigation of these cases. We are not persuaded. As a general matter, of course, the case for judicial deference is less compelling with respect to agency positions that are inconsistent with previously held views. See Bowen n. Georgetown University Hospital, 488 U. S. 204, 212-213 (1988). However, the Secretary has held unswervingly to the view that the DOL interim regulations are consistent with the statutory mandate and not more restrictive than the HEW interim regulations. This view obviously informed the structure of the PAULEY v. BETHENERGY MINES, INC. 699 680 Opinion of the Court DOL’s regulations. In response to comments suggesting that the DOL’s proposed interim regulations might violate § 902(f)(2) because they required that all relevant evidence be considered in determining eligibility, the Secretary replied that “the Social Security regulations, while less explicit, similarly do not Emit the evidence which can be considered in rebutting the interim presumption.” See 43 Fed. Reg. 36826 (1978). Moreover, this position has been faithfully advanced by each Secretary since the regulations were promulgated. See, e. g., Sebben, 488 U. S., at 119. Accordingly, the Secretary’s defense of her interim regulations warrants deference from this Court. B Having determined that the Secretary’s position is entitled to deference, we must decide whether this position is reasonable. See Chevron, 467 U. S., at 845. The claimants and the dissent argue that this issue can be resolved simply by comparing the two interim regulations. This argument is straightforward; it reasons that the mere existence of regulatory provisions permitting rebuttal of statutory elements not rebuttable under the HEW interim regulations renders the DOL interim regulations more restrictive than HEW’s and, as a consequence, renders the Secretary’s interpretation unreasonable. See Tr. of Oral Arg. 22-24. Specifically, the claimants and the dissent assert that the HEW interim regulations plainly contain no provision, either in the invocation subsection or in the rebuttal subsection, that directs factual inquiry into the issue of disability causation or the existence of pneumoconiosis. Accordingly, under the claimants’ reading of the regulations, there is no manner in which the DOL interim regulations can be seen to be “not. . . more restrictive than” the HEW regulations. The regulatory scheme, however, is not so straightforward as the claimants would make it out to be. We have noted before the Byzantine character of these regulations. See Sebben, 488 U. S., at 109 (the second presumption is “drafted 700 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. in a most confusing manner”); id., at 129 (dissenting opinion) (assuming that the drafters “promulgated a scrivener’s error”). In our view, the Secretary presents the more reasoned interpretation of this complex regulatory structure, an interpretation that has the additional benefit of providing coherence among the statute and the two interim regulations. The premise underlying the Secretary’s interpretation of the HEW interim regulations is that the regulations were adopted to ensure that miners who were disabled due to pneumoconiosis arising out of coal mine employment would receive benefits from the black lung program. Under the Secretary’s view, it disserves congressional intent to interpret HEW’s interim regulations to allow recovery by miners who do not have pneumoconiosis or whose total disability did not arise, at least in part, from their coal mine employment. We agree. See Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 22, n. 21 (1976) (“[A]n operator can be liable only for pneumoconiosis arising out of employment in a coal mine”); Mullins Coal Co. v. Director, Office of Workers’ Compensation Programs, Dept, of Labor, 484 U. S., at 158 (“[I]f a miner is not actually suffering from the type of ailment with which Congress was concerned, there is no justification for presuming that the miner is entitled to benefits”). The Secretary and the nonfederal petitioners contend that SSA adjudications under the HEW interim regulations permitted the factual inquiry specified in the third and fourth rebuttal provisions of the DOL regulations. According to the Secretary, subsection (b)(2) of HEW’s invocation provisions, and the provisions incorporated by reference into that subsection, do the work of DOL’s third and fourth rebuttal methods. Subsection (b)(2) of the HEW interim regulations provides that in order to invoke a presumption of eligibility the claimant must demonstrate that the “impairment established in accordance with paragraph (b)(1) of this section arose out of coal mine employment (see §§410.416 and 410.456).” 20 CFR § 410.490(b)(2) (1990). Section 410.416(a) provides: PAULEY v. BETHENERGY MINES, INC. 701 680 Opinion of the Court “If a miner was employed for 10 years or more in the Nation’s coal mines, and is suffering or suffered from pneumoconiosis, it will be presumed, in the absence of persuasive evidence to the contrary, that the pneumoconiosis arose out of such employment.” See also § 410.456. The Secretary interprets the requirement in § 410.490(b)(2) that the claimant demonstrate that the miner’s impairment “arose out of coal mine employment” as comparable to the DOL’s third rebuttal provision, which permits the mine operator to show that the miner’s disability “did not arise in whole or in part out of coal mine employment.” § 727.203(b)(3). With respect to the DOL’s fourth rebuttal provision, the Secretary emphasizes that the statute defines pneumoconiosis as “a chronic dust disease . . . arising out of coal mine employment.” See 30 U. S. C. § 902(b). Accordingly, she views the reference to §§ 410.416 and 410.456 in HEW’s invocation provision, and the acknowledgment within these sections that causation is to be presumed “in the absence of persuasive evidence to the contrary,” as demonstrating that a miner who is shown not to suffer from pneumoconiosis could not invoke HEW’s presumption.7 Petitioners Clinchfield and Consolidation adopt the Third Circuit’s reasoning in Pauley. The court in Pauley relied on the reference in the HEW rebuttal provisions to § 410.412(a) (1), which in turn refers to a miner’s being “totally disabled due to pneumoconiosis.” The Third Circuit reasoned that this reference must indicate “the intention of the Secretary 7 The Court’s conclusion in Sebben that subsection (b)(2) of HEW’s interim regulations was not a rebuttal provision does not foreclose the Secretary’s argument, as the Sebben Court made clear that that provision was, nonetheless, a “substantive requirement.” See Sebben, 488 U. S., at 120. We agree with the Patrich court that “there is no meaningful difference between a procedure which creates a presumption and then allows evidence to rebut it and one which denies the presumption in the first place if the same evidence is offered.” See Patrich, 926 F. 2d, at 1488. 702 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. [of HEW] to permit rebuttal by a showing that the claimant’s disability did not arise at least in part from coal mine employment.” 890 F. 2d, at 1302. The claimants respond that the Secretary has not adopted the most natural reading of subsection (b)(2). Specifically, the claimants argue that miners who have 10 years of coal mine experience and satisfy the requirements of subsection (b)(1) automatically obtain the presumption of causation that §410.416 or §410.456 confers, and thereby satisfy the causation requirement inherent in the Act. In addition, the claimants point out that the reference in the HEW rebuttal provisions to § 410.412(a)(1) may best be read as a reference only to the definition of the term “comparable and gainful work,” not to the disability causation provision of § 410.412(a). While it is possible that the claimants’ parsing of these impenetrable regulations would be consistent with accepted canons of construction, it is axiomatic that the Secretary’s interpretation need not be the best or most natural one by grammatical or other standards. EEOC v. Commercial Office Products Co., 486 U. S. 107, 115 (1988). Rather, the Secretary’s view need be only reasonable to warrant deference. Ibid.; Mullins, 484 U. S., at 159. The claimants’ assertion that the Secretary’s interpretation is contrary to the plain language of the statute ultimately rests on their contention that subsections (b)(l)(i) and (ii) of the HEW interim regulations create a “conclusive” presumption of entitlement without regard to the existence of competent evidence demonstrating that the miner does not or did not have pneumoconiosis or that the miner’s disability was not caused by coal mine employment. This argument is deficient in two respects. First, the claimants’ premise is inconsistent with the text of the authorizing statute, which expressly provides that the presumptions in question will be rebuttable, see 30 U. S. C. §§ 921(c)(1), (2), and (4), and re- PAULEY v. BETHENERGY MINES, INC. 703 680 Opinion of the Court quires the Secretary of HEW to consider all relevant evidence in adjudicating claims under part B. See § 923(b).8 Second, the presumptions do not by their terms conclusively establish any statutory element of entitlement. In setting forth the two rebuttal methods in subsection (c), the Secretary of HEW did not provide that they would be the exclusive methods of rebuttal. In fact, the claimants admit that “conclusively presume” is a term they “coined” for purposes of argument. Tr. of Oral Arg. 34. Although the delineation of two methods of rebuttal may support an inference that the drafter intended to exclude rebuttal methods not so specified, such an inference provides no guidance where its application would render a regulation inconsistent with the purpose and language of the authorizing statute. See Sunstein, 90 Colum. L. Rev., at 2109, n. 182 (recognizing that the principle express™ unius est exclusio alterius “is a questionable one in light of the dubious reliability of inferring specific intent from silence”); cf. Commercial Office Products Co., 486 U. S., at 120 (plurality opinion) (rejecting the more natural reading of statutory language because such an inter 8 That no element of the presumptions at issue was intended to be conclusive is further indicated by the language of the remaining two provisions in this section of the statute. In § 921(c)(3), Congress demonstrated its ability to create an irrebuttable presumption, applicable to a miner for whom the medical evidence demonstrates the presence of complicated pneumoconiosis. Perhaps more telling is § 921(c)(4), the only section of the statute in which Congress addressed the available methods of rebuttal. In that section, Congress created a rebuttable presumption of eligibility applicable to a miner with 15 years or more of cpal mine employment, for whom evidence demonstrates the existence of a totally disabling respiratory disease but whose X rays do not reveal complicated pneumoconiosis. With respect to this presumption, Congress expressly provided: “The Secretary may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.” Written as a limiting provision, this section indicates Congress’ understanding that these rebuttal methods are among those permitted with respect to other presumption provisions. 704 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. pretation would lead to “absurd or futile results . . . plainly at variance with the policy of the legislation as a whole”) (internal quotation marks omitted). In asserting that the Secretary’s interpretation is untenable, the claimants essentially argue that the Secretary is not justified in interpreting the HEW interim regulations in conformance with their authorizing statute. According to the claimants, the HEW officials charged with administering the black lung benefits program and with drafting the HEW interim regulations believed that it was virtually impossible to determine medically whether a miner’s respiratory impairment was actually caused by pneumoconiosis or whether his total disability arose out of his coal mine employment. Faced with such medical uncertainty, and instructed to ensure the “prompt and vigorous processing of the large backlog of claims,” see 20 CFR § 410.490(a) (1990), the claimants assert that HEW omitted from its criteria factual inquiries into disability causation and the existence of pneumoconiosis based on a “cost/benefit” conclusion that such inquiries would engender inordinate delay yet generate little probative evidence.9 The dissent presents a similar view. Post, at 716-719. 9 The claimants support this argument by reference to the HEW’s Coal Miner’s Benefits Manual (1979), which they claim represents the agency’s contemporaneous interpretation of its regulation. Claimants assert that the manual “nowhere suggests” that the HEW interim regulations permit factual inquiry into the existence of pneumoconiosis or disability causation. The manual, however, does not demonstrate that HEW understood its interim regulations to preclude rebuttal with facts similar to DOL’s third and fourth rebuttal provisions. At best, this document is ambiguous with respect to the statutory elements susceptible of rebuttal. See Manual, Part IV, § IB6(e) (stating that the presumption of entitlement to benefits “may be rebutted if . . . (3) Biopsy or autopsy findings clearly establish that no pneumoconiosis exists”). We find it more revealing that, in outlining the general structure of the interim regulations, the manual makes clear that “[t]o establish entitlement to benefits on the basis of a coal miner’s total disability due to pneumoconiosis, a claimant must submit the evidence necessary to establish that he is a coal miner . . . who is . . . totally disabled PAULEY v. BETHENERGY MINES, INC. 705 680 Opinion of the Court We recognize that the SSA, under the HEW interim regulations, appeared to award benefits to miners whose administrative files contained scant evidence of eligibility. See The Comptroller General of the United States, General Accounting Office, Report to Congress: Examination of Allegations Concerning Administration of the Black Lung Benefits Program 6-10 (1976), included in Hearings on H. R. 10760 and S. 3183 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 94th Cong., 2d Sess., 440-444 (1976). We are not, however, persuaded that this circumstance requires the Secretary to award black lung benefits to claimants who do not have pneumoconiosis or whose disability did not arise in whole or in part out of coal mine employment. As an initial matter, contemporaneous analyses of claims approved by the HEW provide little support for the argument that the HEW made a “cost/benefit” decision to forgo inquiry into disease existence or disability causation. Rather, many of the claims allegedly awarded on the basis of insufficient evidence involved miners who were unable to present sufficient evidence of medical disability, not those who did not suffer from pneumoconiosis or were disabled by other causes. See ibid.; see also The Comptroller General of the United States, General Accounting Office, Program to Pay Black Lung Benefits to Miners and Their Survivors—Improvements Are Needed 45-47 (1977); H. R. Rep. No. 95-151, pp. 73-74 (1977) (Minority Views and Separate Views). Moreover, this argument ignores entirely the advances in medical technology that have occurred since the promulgation of the HEW interim regulations, advances that Congress could not have intended either HEW or the DOL to ignore in administering the program. See S. Rep. No. 95-209, p. 13 (1977). Finally, we do not accept the implicit premise of this argument: that the Secretary cannot prevail unless she is able to due to pneumoconiosis, and that his pneumoconiosis arose out of employment in the Nation’s coal mines.” Id., Part IV, § IB1. 706 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. demonstrate that her interpretation of the HEW interim regulations comports with HEW’s contemporaneous interpretation of those regulations. As is stated above, the Secretary’s interpretation of HEW’s interim regulations is entitled to deference so long as it is reasonable. An interpretation that harmonizes an agency’s regulations with their authorizing statute is presumptively reasonable, and claimants have not persuaded us that the presumption is unfounded in this case. IV We conclude that the Secretary of Labor has not acted unreasonably or inconsistently with 30 U. S. C. § 902(f)(2) in promulgating interim regulations that permit the presumption of entitlement to black lung benefits to be rebutted with evidence demonstrating that the miner does not, or did not, have pneumoconiosis or that the miner’s disability does not, or did not, arise out of coal mine employment. Accordingly, we affirm the judgment of the Third Circuit in No. 89-1714. The judgments of the Fourth Circuit in No. 90-113 and No. 90-114 are reversed, and those cases are remanded for further proceedings consistent with this opinion. No costs are allowed in any of these cases. It is so ordered. Justice Kennedy took no part in the consideration or decision of this litigation. Justice Scalia, dissenting. I respectfully dissent. The disputed regulatory language is complex, but it is not ambiguous, and I do not think Chevron deference, see Chevron U. S. A. Inc. n. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), requires us to accept the strained and implausible construction advanced by the Department of Labor (DOL). In my judgment at least one of the claimants before us is entitled to benefits under the statute. PAULEY v. BETHENERGY MINES, INC. 707 680 Scalia, J., dissenting I A As an initial matter, the Court misconstrues our Chevron jurisprudence. Chevron requires that we defer to an agency’s interpretation of its organic statute once we determine that that statute is ambiguous. No one contends that the relevant statutory language (“shall not be more restrictive than”) is ambiguous. See Pittston Coal Group v. Sebben, 488 U. S. 105, 113-114 (1988) (explaining that particular phrase). The only serious question surrounds the regulations of the then-extant Department of Health, Education, and Welfare (HEW) to which the statute refers. I agree that those regulations are complex, perhaps even “Byzantine,” ante, at 699—but that alone is insufficient to invoke Chevron deference. Deference is appropriate where the relevant language, carefully considered, can yield more than one reasonable interpretation, not where discerning the only possible interpretation requires a taxing inquiry. Chevron is a recognition that the ambiguities in statutes are to be resolved by the agencies charged with implementing them, not a declaration that, when statutory construction becomes difficult, we will throw up our hands and let regulatory agencies do it for us. In my view the HEW regulations referred to by the present statute are susceptible of only one meaning, although they are so intricate that that meaning is not immediately accessible. But even if the regulations were ambiguous, it would not follow that the Secretary of Labor is entitled to deference. Nothing in our Chevron jurisprudence requires us to defer to one agency’s interpretation of another agency’s ambiguous regulations. We rejected precisely that proposition in Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144 (1991), in holding that the Occupational Safety and Health Review Commission (OSHRC) was not entitled to deference in interpreting the Secretary of Labor’s regulations. Having used Chevron to rebuff OSHRC’s incursions 708 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. there, it seems a bit greedy for the Secretary to use Chevron to launch the DOL’s own cross-border attack here. In my view, the only legitimate claimant to deference with regard to the present regulations is the agency that drafted them. B In any event, the interpretive issue here is, in my view, much less difficult than the Court suggests. Title 30 U. S. C. § 902(f)(2) states: “Criteria applied by the Secretary of Labor ... [to black lung claims filed prior to April 1, 1980,] shall not be more restrictive [i. e., shall not be less favorable to claimants] than the criteria applicable to a claim filed on June 30, 1973.” The criteria applied by the Secretary of Labor are as follows: “§727.203 Interim Presumption. “(a) Establishing interim presumption. A miner who engaged in coal mine employment . . . will be presumed to be totally disabled due to pneumoconiosis . . . if one of the following medical requirements is met: “(1) A chest roentgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumoconiosis (see §410.428 of this title); “(2) Ventilatory studies establish the presence of a chronic respiratory or pulmonary disease . . . “(3) Blood gas studies . . . demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood . . . “(4) Other medical evidence . . . establishes the presence of a totally disabling respiratory or pulmonary impairment; “(b) Rebuttal of interim presumption. In adjudicating a claim under this subpart, all relevant medical evidence shall be considered. The presumption in paragraph (a) of this section shall be rebutted if: PAULEY v. BETHENERGY MINES, INC. 709 680 Scalia, J., dissenting “(1) The evidence establishes that the individual is, in fact, doing his usual coal mine work or comparable and gainful work (see § 410.412(a)(1) of this title); or “(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work (see § 410.412(a)(1) of this title); or “(3) The evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment; or “(4) The evidence establishes that the miner does not, or did not, have pneumoconiosis.” 20 CFR §727.203 (1990). The criteria governing claims filed on June 30, 1973, were set forth in HEW interim regulations, 20 CFR §410.490, which provide in relevant part: “(b) Interim presumption. With respect to a miner who files a claim for benefits before July 1, 1973, . . . such miner will be presumed to be totally disabled due to pneumoconiosis ... if: “(1) One of the following medical requirements is met: “(i) A chest roentgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumoconiosis (see §410.428); or “(ii) In the case of a miner employed for at least 15 years in underground or comparable coal mine employment, ventilatory studies establish the presence of a chronic respiratory or pulmonary disease . . . “(2) The impairment established in accordance with paragraph (b)(1) of this section arose out of coal mine employment (see §§410.416 and 410.456). “(c) Rebuttal of Presumption. The presumption in paragraph (b) of this section may be rebutted if: 710 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. “(1) There is evidence that the individual is, in fact, doing his usual coal mine work or comparable and gainful work (see § 410.412(a)(1)), or “(2) Other evidence, including physical performance tests . . . establish that the individual is able to do his usual coal mine work or comparable and gainful work (see § 410.412(a)(1)).” The relationship between the two regulations is apparent because they use a similar structure and, in large part, similar language. Both allow claimants to invoke a presumption of disability due to pneumoconiosis upon the presentation of certain medical evidence (the HEW regulations provide for two types of medical evidence while the DOL regulations provide for four). Both specify certain ways in which that presumption may be rebutted. The HEW regulations, however, specify only two methods of rebuttal (both relating to the extent of the disability), while the DOL regulations authorize four methods (the two expressed in the HEW regulations plus two more: (1) that pneumoconiosis did not cause the disability, and (2) that the miner does not have pneumoconiosis). Obviously, if the DOL regulations provide more opportunities for rebuttal, they are less favorable to claimants. I think it quite apparent that they do. The present case is illustrative. Claimant Pauley invoked the presumption by submitting X-ray evidence of pneumoconiosis, pursuant to § 727.203(a)(1). BethEnergy, the employer, rebutted the presumption by arguing pursuant to § 727.203(b)(3) that although Pauley had pneumoconiosis it did not cause his disability. Had the case proceeded under the HEW regulations, Pauley’s presentation would have been the same, under §410.490(b)(l)(i), the counterpart of § 727.203(a)(1).1 * “The HEW regulations also contain a separate provision that would have required Pauley to show that his medical condition arose from working in a coal mine. § 410.490(b)(2). While that requirement is not set forth as a separate provision in the DOL regulations, it is presumably a PAULEY v. BETHENERGY MINES, INC. 711 680 Scalia, J., dissenting For BethEnergy, however, things would have been different: § 727.203(b)(3) does not have a counterpart in the HEW regulations. The only rebuttal expressly contemplated by the HEW regulations is that the claimant is not in fact disabled— but Pauley concededly was. It appears, therefore, that BethEnergy could not have challenged the causal link between the pneumoconiosis and the disability under the HEW regulations and thus would have had no defense. In my view this argument is self-evidently correct and is obscured only by the technical complexity of the regulatory provisions. But the statutory structure, as opposed to the actual language, is simple. Under the HEW regulations, we assume “x,” but “x” may be rebutted by a showing of “a” or “b.” Under the DOL regulations, we likewise assume “x,” but “x” may be rebutted by a showing of “a” or “b” or “c” or “d.” It defies common sense to argue that, given this structure, the two regulations are in fact identical, and that Pauley, whose claim could be defeated by a showing of “c” but not by a showing of “a” or “b,” was no worse off under the latter regime. Yet that is precisely the argument the Court accepts. Pauley’s commonsense reading is further supported by the fact that there is nothing remarkable about the HEW regulations’ severely limiting rebuttal. The introduction to those regulations states: “In enacting the Black Lung Act of 1972, the Congress noted that adjudication of the large backlog of claims generated by the earlier law could not await the establishment of facilities and development of medical tests not presently available to evaluate disability due to pneumoconiosis, and that such claims must be handled under part of § 727.203(b)(4), which requires that the miner have pneumoconiosis. Pneumoconiosis is specifically defined as a disease arising from work in a coal mine. 30 U. S. C. § 902(b). It is not contested that Pauley’s pneumoconiosis arose from work in the mine—only that it, rather than his other ailments, was the cause of his disability. 712 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. present circumstances in the light of limited medical resources and techniques. Accordingly, the Congress stated its expectancy that the Secretary would adopt such interim evidentiary rules and disability evaluation criteria as would permit prompt and vigorous processing of the large backlog of claims . . . § 410.490(a). In this context, the limitation on rebuttal makes perfect sense. Litigation over the existence of pneumoconiosis was circumscribed: If the claimants introduced specified types of medical evidence supporting their claim, that portion of the case would be deemed established—thus avoiding the timeconsuming exchange of conflicting medical evidence which, given the technology and scientific knowledge then available, was likely to be inconclusive in any event. Similarly, litigation over the causal link between the disease and the disability—which poses even more difficult medical questions—was eliminated entirely by the presumption that if a miner had pneumoconiosis and was disabled, he was disabled because of pneumoconiosis. On the other hand, the regulations permitted full litigation as to the existence of a disability, an area where medical and scientific knowledge was equal to the task and where agencies (and courts) typically think themselves able to make reasoned assessments.2 In addition, apparently the interim regulations were at the time thought to limit rebuttal. Literally thousands of cases were decided pursuant to these regulations in the 1970’s; neither the Government nor the employers have cited a single 2 In its permanent regulations HEW did not use the §410.490 interim presumption. Significantly, the permanent regulations also outlined an extensive procedure for contesting the link between a miner’s pneumoconiosis and his disabilities. See § 410.426. The fact that this provision was not contained in the interim procedures suggests that HEW thought disability causation would not be an issue there—and conforms to the view, see § 410.490(a), that the interim presumptions would serve as a blunt instrument for adjudication until full evidentiary procedures could be developed. PAULEY v. BETHENERGY MINES, INC. 713 680 Scalia, J., dissenting instance in which the rebuttal allowed by the DOL regulations was permitted or indeed was even advanced, nor have they cited a single comment by the Secretary of HEW, any claimant, or any commentator suggesting that such rebuttal was available. I do not find that extraordinary. In my view that is the only reasonable reading of the regulations, and it is unsurprising that no one thought to read them otherwise. Indeed, that is precisely how we read them in Pittston Coal. Although the question was not specifically before the Court, in generally describing the two sets of regulations, we stated: “[T]he rebuttal provisions of the interim Labor regulation . . . permi[t] rebuttal not only on the grounds available in the interim HEW regulation (§ 410.490(c)), but also on the basis that ‘the total disability or death of the miner did not arise in whole or in part out of coal mine employment’ or that ‘the miner does not, or did not, have pneumoconiosis.’ See §§727.203(b)(l)-(4).” 488 U. S., at 111 (emphasis added). II Although I think the HEW regulations clear (albeit complex) on their face, I turn now to the specific arguments why they should nevertheless not be read to limit rebuttal opportunities. A First, the Government contends that the HEW rebuttal provisions actually include the two new rebuttal provisions apparently added by DOL. The principal claim here centers upon subsection (b)(2) of the HEW regulations. That provision states that the claimant must demonstrate that the “impairment established in accordance with paragraph (b)(1) of this section arose out of coal mine employment.” 20 CFR § 410.490(b)(2) (1990). This requirement, the Government insists, is comparable to DOL’s third rebuttal provision, which permits the employer to show that the miner’s disabil 714 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. ity did not arise from coal mine employment. That argument might be correct if “impairment” in subsection (b)(2) of the HEW regulations meant the same as “disability” in the DOL regulations. It does not. Subsection (b)(2) of the HEW regulations refers to the “impairment” established in subsection (b)(1); that subsection discusses proof of the existence of pneumoconiosis. The (b)(2) “impairment,” then, is the disease itself. Thus, it is open to the employer under the HEW regulations to show, for example, that Pauley’s pneumoconiosis did not arise from coal mine employment. But here everyone agrees that it did—the relevant question is whether Pauley’s disability arose from his pneumoconiosis. That is where DOL diverges from HEW, for DOL’s regulations allow proof that the disability did not arise from the disease and thus from coal mine employment; the HEW regulations require only a showing that the impairment—i. e., the pneumoconiosis—arose from coal mine employment and presume the causal link between the impairment and the disability. The Government contends that subsection (b)(2) of the HEW regulations also equates with the fourth rebuttal provision of the DOL regulations. The fourth rebuttal provision allows rebuttal on the ground that the claimant does not have pneumoconiosis. I think the Government’s argument is partially correct — but only partially. As the Government notes, proof of pneumoconiosis involves proof of two elements: (1) a chronic dust disease, which (2) arose from coal mine employment. Subsection (b)(1) of the HEW regulations says the claimant must prove the first point, and says how to do it (by submitting the specified medical evidence and thereby raising the presumption). Subsection (b)(2) says that the claimant must also prove the second point (to which the presumption is irrelevant). To contest a finding of pneumoconiosis, the employer may wish to argue either (1) that the miner has a chronic dust disease but it did not arise from coal mine employment; or (2) that the miner does not have a chronic dust PAULEY v. BETHENERGY MINES, INC. 715 680 Scalia, J., dissenting disease. Subsection (b)(2) of the HEW regulations allows the employer to argue the former, but it says nothing about the latter; and subsection (b)(1) bars the latter argument, via the presumption, if the miner offers the specified medical evidence. DOL’s fourth rebuttal allows the employer to argue either point—and thus, impermissibly, offers additional recourse to the employer. The employers offer yet another contortion of the statute to the same effect. Section 410.490(c) states that rebuttal may be made through “evidence that the individual is, in fact, doing his usual coal mine work or comparable and gainful work (see § 410.412(a)(1)).” The provision incorporated by reference reads as follows: “(a) A miner shall be considered totally disabled due to pneumoconiosis if: “(1) His pneumoconiosis prevents him from engaging in gainful work in the immediate area of his residence requiring the skills and abilities comparable to those of any work in a mine or mines in which he previously engaged with some regularity and over a substantial period of time . . . .” Because this provision begins with references to the miner’s disability due to pneumoconiosis, the employers believe it would be reasonable to construe it as authorizing the argument either that the miner does not have the disease or that the disease is not causing the disability. I do not find this a plausible explanation of the reference to § 410.412(a)(1). The logical reason for cross-referencing that provision was to include within the explicit rebuttal provision the more complete definition of “gainful work” that the incorporated section affords. Had HEW intended to create additional rebuttal provisions, it would simply have done so, explicitly and in parallel with the other rebuttal provisions, rather than back-handedly, through the incorporation by reference. The Court apparently concedes that the companies’ crossreference argument is not the most natural reading of the 716 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. statute, but concludes that “the Secretary’s view need be only reasonable to warrant deference.” Ante, at 702. While I do not even think the foregoing argument reasonable (nor do I think the Secretary entitled to deference, see supra, at 707-708), I note that the Secretary herself does not advance it. Certainly private parties’ speculation as to what the Secretary could have thought warrants no deference. B The Government’s second line of attack centers upon its claim that the HEW regulations, if read to limit rebuttal, would violate the Black Lung Benefits Act of 1972. That argument has potential force, for we are more willing to depart from the natural import of language when adhering to it would render a regulation unauthorized or a statute unconstitutional. It is important to note at the outset, however, that the Government has a heavy burden in this regard. Had the HEW regulations been challenged before this Court as inconsistent with the statute, we would have owed Chevron deference to the Secretary (of HEW). The Government’s present argument depends on a showing, not that a natural reading of the HEW regulations produces less than the best reading of the statute, but that it produces an unreasonable one. The Government argues, and the Court accepts, that “it disserves congressional intent to interpret HEW’s interim regulations to allow recovery by miners who do not have pneumoconiosis or whose total disability did not arise, at least in part, from their coal mine employment,” ante, at 700, and thus HEW must have permitted rebuttal on these grounds even if its regulations did not say so. I think that most unlikely. Any adjudication of claims necessarily involves a tradeoff between the speed and the accuracy of adjudication. As discussed above, the HEW presumptions were avowedly designed to enhance speed at the expense of accuracy, see § 410.490(a), pending the development of more PAULEY v. BETHENERGY MINES, INC. 717 680 Scalia, J., dissenting reliable procedures. As with all presumptions, their preclusion of lull litigation of some issues left open the possibility that some claimants would receive benefits to which, in a perfect world, they would not be entitled. That is a necessary consequence of attempting to resolve complex and possibly indeterminate claims with a minimum of delay. I cannot say that in striking such a balance HEW violated a clear policy of Congress, for Congress itself had taken up the black lung issue in 1972 in part because of a perception that adjudication of claims was moving too slowly. It is next argued that certain specific provisions of the authorizing statute mandate the methods of rebuttal later adopted by DOL. Specifically, according to the Court, “the authorizing statute . . . expressly provides that the presumptions in question will be rebuttable, see 30 U. S. C. §§ 921(c) (1), (2), and (4), and requires the Secretary of HEW to consider all relevant evidence in adjudicating claims .... See 30 U. S. C. § 923(b).” Ante, at 702-703. I see nothing in §921, however, that contradicts HEW’s limitation on rebuttal. Section 921(c)(1) provides: “If a miner who is suffering or suffered from pneumoconiosis was employed for ten years or more in one or more coal mines there shall be a rebuttable presumption that his pneumoconiosis arose out of such employment.” That provision is simply irrelevant to the issue of whether rebuttal must be allowed as to either the existence of pneumoconiosis or the causal link between the disease and the disability. The HEW regulations do not purport to establish an irrebuttable presumption relating to the link between the disease and employment in coal mines. Slightly more on point is § 921(c)(2), which provides: “If a deceased miner was employed for ten years or more in one or more coal mines and died from a respirable disease there shall be a rebuttable presumption that his death was due to pneumoconiosis.” It is plausible to read that section as foreclosing HEW from establishing an irrebuttable presumption of causation based solely on death after 10 years’ service. 718 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. But that is not what the HEW regulations do. Rather, they establish an irrebuttable presumption based upon 10 years’ service plus substantial additional medical evidence. It is not inconsistent to say that certain evidence establishes a rebuttable presumption and additional, more persuasive evidence establishes an irrebuttable presumption. Section 921(c)(4) is the most relevant, for it establishes a presumption of disability based upon a showing of pneumoconiosis. It then states in relevant part that “[t]he Secretary may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis . . . .” (Emphasis added.) It is true that this rebuttal provision tracks the fourth rebuttal provision of the DOL regulations. However, § 921(c)(4) is permissive. It establishes the ways in which the Secretary may rebut a presumption but does not require that the Secretary use them. It is not inconsistent with the statute for the Secretary to decide that such rebuttal attempts would involve more administrative expense than they could justify and thus to adopt regulations declining to exercise the option. In my view, the only colorable claim to a statutory conflict is based on § 923(b), which provides in part that “[i]n determining the validity of claims under this part, all relevant evidence shall be considered.” The Government argues with some force that this precludes the use of presumptions that do not allow the introduction of all relevant evidence. That is an unanswerable argument with respect to evidence offered by the claimants. I think it reasonably maintainable, however, that the preclusion does not apply to evidence offered against them. At the time the interim regulations were adopted, HEW, not the employers, paid the benefits required under the Act. In adopting its presumptions, HEW was limiting the evidence it could offer to sustain its own position. The presumption provisions were, in effect, a waiver—which may well have been based upon compelling considerations of administrative efficiency. I think the stat- PAULEY v. BETHENERGY MINES, INC. 719 680 Scalia, J., dissenting ute is at least ambiguous as to whether the Secretary could elect not to contest claims based on certain evidence. Since we owe the Secretary (of HEW) Chevron deference in construing the statute, I cannot say that, if the Secretary had taken that position (as he apparently did in promulgating the regulations), we would not have accepted it as a permissible interpretation. C The Government’s final argument is that the HEW regulations do not expressly preclude rebuttal on grounds other than those specified. Thus, even if expanded rebuttal is not specifically provided for, neither is it foreclosed; the statute adopting the HEW regulations is simply ambiguous as to its availability, and we should defer to DOL’s view that it should exist. It is true that the HEW regulations do not say that these are the only two ways to rebut the presumption. That is, however, the reasonable implication, as is suggested by the hoary canon of construction, expressio unius est exclusio alterius. When a provision sets forth a general rule followed by specific exceptions to that rule, one must assume—absent other evidence—that no further exceptions are intended. The Court argues that the principle of expressio unius is not absolute, and may be rejected where its application “would render a regulation inconsistent with the purpose and language of the authorizing statute.” Ante, at 703. That is assuredly true; it is only one of many possible indications of meaning. Cf. Bums n. United States, ante, at 136-138 (invocation of expressio unius inappropriate where it would lead to absurd and arguably unconstitutional results). It is a strong indication, however, and the problem here is that there are no others. As discussed above, limitation of rebuttal is not contrary to the text or purpose of the authorizing statute, and neither the Government nor the Court offers any other reason for thinking that the listed exceptions are not exclusive. 720 OCTOBER TERM, 1990 Scalia, J., dissenting 501 U. S. Ill In sum, the DOL regulations impermissibly exceed the HEW regulations in at least two respects: (1) they allow employers to argue that a miner who has pneumoconiosis and is disabled is nevertheless not disabled due to the pneumoconiosis, and (2) where a miner has submitted specified evidence of a chronic dust disease, they allow the employer to challenge not only whether the disease is coal related, but whether the disease exists. That was the view of these regulations we expressed in Pittston Coal, see 488 U. S., at 111, and I see no reason to reconsider.3 As to claimant Pauley, that divergence is conclusive, at least as far as the statute is concerned. (I do not address constitutional challenges to the statute, as these were not passed upon below.) The employer’s only defense was that Pauley’s pneumoconiosis was not the cause of his disability, and that defense was foreclosed under the HEW regulations. Thus, I would reverse in No. 89-1714. Claimant Dayton presents a more difficult case. He submitted ventilation studies showing a disease resembling pneumoconiosis. The employer wishes to argue that he does not have pneumoconiosis. As I read the regulations, the employer may not challenge the conclusion that Dayton has a pneumoconiosis-like disease, but may (depending upon the effect of other provisions not argued here) claim that the disease did not arise from coal mine employment. Since it is not clear on the present record which of these positions the employer is advocating, I would remand in No. 90-114. Finally, I agree with the Court that claimant Taylor is entitled to no relief. Taylor invoked the presumption of disability via a blood gas test, § 727.203(a)(3). That was not an approved method of invoking the presumption under the HEW regulations. Taylor cannot complain that DOL has treated him less well than HEW would have in allowing the 3 Even if the Secretary of Labor were the proper party to claim Chevron deference in interpreting these regulations, I find her arguments to the contrary so implausible that I would not accept them in any event. PAULEY v. BETHENERGY MINES, INC. 721 680 Scalia, J., dissenting presumption to be rebutted, since under the HEW regulations he would not have been entitled to the presumption in the first place. Accordingly, I would reverse in No. 90-113. For the foregoing reasons, I respectfully dissent. 722 OCTOBER TERM, 1990 Syllabus 501 U. S. COLEMAN v. THOMPSON, WARDEN CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 89-7662. Argued February 25, 1991—Decided June 24, 1991 After a Buchanan County jury convicted petitioner Coleman of capital murder, he was sentenced to death, and the Virginia Supreme Court affirmed. He then filed a habeas corpus action in the County Circuit Court, which, after a 2-day evidentiary hearing, ruled against him on numerous federal constitutional claims that he had not raised on direct appeal. He filed a notice of appeal with that court 33 days after it entered its final judgment and subsequently filed a petition for appeal in the Virginia Supreme Court. The Commonwealth moved to dismiss the appeal on the sole ground that the notice of appeal was untimely under the Supreme Court’s Rule 5:9(a), which requires that such a notice be filed within 30 days of final judgment. After both parties filed several briefs on the subject of the dismissal motion and on the merits of Coleman’s claims, the Supreme Court granted the motion “upon consideration [o]f ” the filed papers. Coleman next filed a habeas petition in the Federal District Court, presenting, inter alia, seven federal constitutional claims he had first raised in state habeas. Among other things, the court concluded that, by virtue of the dismissal of his state habeas appeal, Coleman had procedurally defaulted the seven claims. The Court of Appeals affirmed, rejecting Coleman’s argument that the Virginia Supreme Court had not “clearly and expressly” stated that its decision in state habeas was based on a procedural default, such that the federal courts could not treat it as such under Harris v. Reed, 489 U. S. 255. The court concluded that federal review of the claims was barred, since the Virginia Supreme Court had met Harris' “plain statement” requirement by granting a motion to dismiss that was based solely on procedural grounds, since that decision rested on independent and adequate state grounds, and since Coleman had not shown cause to excuse the default. Held: Coleman’s claims presented for the first time in the state habeas proceeding are not subject to review in federal habeas. Pp. 729-757. (a) Because of comity and federalism concerns and the requirement that States have the first opportunity to correct their own mistakes, federal habeas courts generally may not review a state court’s denial of a state prisoner’s federal constitutional claim if the state court’s decision rests on a-state procedural default that is independent of the fed- COLEMAN V. THOMPSON 723 722 Syllabus eral question and adequate to support the prisoner’s continued custody. See, e. g., 'Wainwright v. Sykes, 433 U. S. 72, 81, 87. Pp. 729-732. (b) Since ambiguous state court decisions can make it difficult for a federal habeas court to apply the independent and adequate state ground doctrine, this Court has created a conclusive presumption that there is no such ground if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those claims, and did not “clearly and expressly” rely on an independent and adequate state ground. See Harris, supra, at 261, 266; Michigan v. Long, 463 U. S. 1032, 1040-1041. Pp. 732-735. (c) There is no merit to Coleman’s contention that the Harris presumption applies in all cases in which the state habeas court’s decision does not “clearly and expressly” state that it was based on an independent and adequate state ground. The holding of Harris, supra, is not changed by the fact that, in one particular exposition of its rule, id., at 263, the Court announced the “plain statement” requirement without mentioning the predicate requirement that the state court’s decision must fairly appear to rest primarily on, or to be interwoven with, federal law. The Harris presumption, like all conclusive presumptions, is designed to avoid the costs of excessive inquiry where a per se rule will achieve the correct result in almost all cases. Coleman’s proposed rule would greatly and unacceptably expand the risk of improper federal review in those cases in which it does not fairly appear that the state court rested its decision primarily on federal grounds. Applying Coleman’s rule would have very little benefit to the federal courts in such cases, since their task of determining the scope of the state court judgment would not be difficult. On the other hand, that rule would place great burdens on the States, which, if their courts neglected to provide a clear and express statement of procedural default, would have to respond to federal habeas review of the federal claims of prisoners in state custody for independent and adequate state law reasons, would have to pay the price in terms of the uncertainty and delay added to the enforcement of their criminal laws, and would have to retry the petitioner if the federal courts reversed his conviction. Coleman’s rule would also burden the state courts, which would have to incorporate “plain statement” language in every state appeal and every denial of state collateral review that was potentially subject to federal review. Pp. 735-740. (d) The Harris presumption does not apply in this case. The Virginia Supreme Court’s dismissal order “fairly appears” to rest primarily on state law, since it does not mention federal law and granted the Commonwealth’s dismissal motion, which was based solely on Coleman’s failure to meet Rule 5:9(a)’s time requirements. There is no merit to Cole 724 OCTOBER TERM, 1990 Syllabus 501 U. S. man’s argument that the dismissal was not independent of federal law because the Virginia court applied its procedural bar only after determining that doing so would not abridge one of his federal constitutional rights, such that federal review is permissible under Ake v. Oklahoma, 470 U. S. 68, 75. Even if Ake, a direct review case, applies here, it does Coleman no good because the Virginia court relied on an independent state procedural ground. Moreover, it is clear that the rule of Tharp v. Commonwealth, 211 Va. 1, 3, 175 S. E. 2d 277, 278—in which the Virginia court announced that it would no longer allow extensions of time for filing petitions for writs of error with the Supreme Court unless denial of an extension would abridge a constitutional right—was not applied here, where it was Coleman’s notice of appeal in the trial court that was late. And, although in O’Brien v. Socony Mobil Oil Co., 207 Va. 707, 709, 152 S. E. 2d 278, 280, the Virginia court reviewed the merits of a constitutional claim before dismissing the case on the basis of an untimely civil notice of appeal, it also expressly declined to announce a rule that there is a constitutional exception to the notice of appeal time requirement. While some ambiguity is added to this case by the fact that the Virginia Supreme Court’s dismissal order was issued “[u]pon consideration” of all the filed papers, including those discussing the merits of Coleman’s federal claims, this Court cannot read that ambiguity as overriding the Virginia court’s explicit grant of a dismissal motion based solely on state procedural grounds independent of federal law. This Court also accepts the Court of Appeals’ conclusion that the procedural bar was adequate to support the judgment, since Coleman did not petition for certiorari on this question. Pp. 740-744. (e) In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Cf., e. g., Murray v. Carrier, 477 U. S. 478, 485, 495; Harris, supra, at 262. Although Coleman would be entitled to relief if the “deliberate bypass” standard set forth in Fay v. Noia, 372 U. S. 391, 438-439, still applied, that standard has been superseded by the Court’s subsequent decisions applying the cause and prejudice standard. The Fay standard was based on a conception of federal/state relations that undervalued the important interest in finality served by state procedural rules and the significant harm to the States that results from the failure of federal courts to respect them. Cf. McCleskey n. Zant, 499 U. S. 467, 491. Pp. 744-751. COLEMAN V. THOMPSON 725 722 Syllabus (f) Coleman’s contention that it was his attorney’s error that led to the late filing of his state habeas appeal cannot demonstrate “cause” under the foregoing standard. Carrier, supra, at 488, establishes that attorney error can be “cause” only if it constitutes ineffective assistance of counsel violative of the Sixth Amendment. Because there is no constitutional right to an attorney in state postconviction proceedings, see, e. g., Pennsylvania v. Finley, 481 U. S. 551, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings, see Wainwright v. Toma, 455 U. S. 586. Although Coleman argues that attorney error may be of sufficient magnitude to excuse a procedural default in federal habeas even though no Sixth Amendment claim is possible, this argument is inconsistent with the language and logic of Carrier, supra, at 488, which explicitly says that, in the absence of a constitutional violation, the petitioner bears the risk in federal habeas for all attorney errors made in the course of the representation. Pp. 752-754. (g) Nor is there merit to Coleman’s contention that, at least as to the federal ineffective assistance claims that he first presented to the state habeas trial court, attorney error in his state habeas appeal must constitute “cause” because, under Virginia law at the time of his trial and direct appeal, claims of that type could be brought only in state habeas. Although an indigent criminal defendant is constitutionally entitled to an effective attorney in his “one and only appeal... as of right,” Douglas v. California, 372 U. S. 353, 357, 358; Evitts v. Lucey, 469 U. S. 387, Coleman has had his “one and only appeal” as to the claims in question, since the County Circuit Court fully addressed and denied those claims. He does not have a constitutional right to counsel on appeal from that determination. Cf., e. g., Finley, supra, at 556. Thus, since any attorney error that lead to the default of those claims cannot constitute “cause,” and since Coleman does not argue in this Court that federal review of the claims is necessary to prevent a fundamental miscarriage of justice, he is barred from bringing the claims in federal habeas. Pp. 755-757. 895 F. 2d 139, affirmed. O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Scalia, Kennedy, and Souter, JJ., joined. White, J., filed a concurring opinion, post, p. 757. Blackmun, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 758. John H. Hall argued the cause for petitioner. With him on the briefs were Daniel J. Goldstein and Richard G. Price. 726 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. Donald R. Curry, Senior Assistant Attorney General of Virginia, argued the cause for respondent. With him on the brief were Mary Sue Terry, Attorney General, H. Lane Kneedler, Chief Deputy Attorney General, Stephen D. Rosenthal, Deputy Attorney General, and Jerry P. Slonaker, Senior Assistant Attorney General. * Justice O’Connor delivered the opinion of the Court. This is a case about federalism. It concerns the respect that federal courts owe the States and the States’ procedural rules when reviewing the claims of state prisoners in federal habeas corpus. I A Buchanan County, Virginia, jury convicted Roger Keith Coleman of rape and capital murder and fixed the sentence at *Briefs of amici curiae urging affirmance were filed for the State of Kentucky et al. by Frederic J. Cowan, Attorney General of Kentucky, and Ian G. Sonego, Assistant Attorney General, and by the Attorneys General for their’respective States as follows: Jimmy Evans of Alabama, Winston Bryant of Arkansas, Gale Norton of Colorado, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Warren Price III of Hawaii, Larry EchoHawk of Idaho, Roland W. Burris of Illinois, Linley E. Pearson of Indiana, J. Joseph Curran, Jr., of Maryland, Hubert H. Humphrey III of Minnesota, William L. Webster of Missouri, Marc Racicot of Montana, Don Stenbert of Nebraska, Frankie Sue Del Papa of Nevada, Robert J. Del Tufa of New Jersey, Lacy H. Thornburg of North Carolina, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Paul Van Dam of Utah, Ken Eikenberry of Washington, and Mario Palumbo of West Virginia; for the State of Texas et al. by Dan Morales, Attorney General of Texas, Will Pryor, First Assistant Attorney General, Mary F. Keller, Executive Assistant Attorney General, and Michael P. Hodge, Robert S. Walt, Dana E. Parker, and Margaret Portman Griffey, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Charles E. Cole of Alaska, Daniel E. Lungren of California, Michael C. Moore of Mississippi, Robert H. Henry of Oklahoma, Mark Barnett of South Dakota, and Joseph B. Meyer of Wyoming; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger. COLEMAN V. THOMPSON 727 722 Opinion of the Court death for the murder. The trial court imposed the death sentence, and the Virginia Supreme Court affirmed both the convictions and the sentence. Coleman v. Commonwealth, 226 Va. 31, 307 S. E. 2d 864 (1983). This Court denied certiorari. 465 U. S. 1109 (1984). Coleman then filed a petition for a writ of habeas corpus in the Circuit Court for Buchanan County, raising numerous federal constitutional claims that he had not raised on direct appeal. After a 2-day evidentiary hearing, the Circuit Court ruled against Coleman on all claims. App. 3-19. The court entered its final judgment on September 4, 1986. Coleman filed his notice of appeal with the Circuit Court on October 7, 1986, 33 days after the entry of final judgment. Coleman subsequently filed a petition for appeal in the Virginia Supreme Court. The Commonwealth of Virginia, as appellee, filed a motion to dismiss the appeal. The sole ground for dismissal urged in the motion was that Coleman’s notice of appeal had been filed late. Virginia Supreme Court Rule 5:9(a) provides that no appeal shall be allowed unless a notice of appeal is filed with the trial court within 30 days of final judgment. The Virginia Supreme Court did not act immediately on the Commonwealth’s motion, and both parties filed several briefs on the subject of the motion to dismiss and on the merits of the claims in Coleman’s petition. On May 19, 1987, the Virginia Supreme Court issued the following order, dismissing Coleman’s appeal: “On December 4, 1986 came the appellant, by counsel, and filed a petition for appeal in the above-styled case. “Thereupon came the appellee, by the Attorney General of Virginia, and filed a motion to dismiss the petition for appeal; on December 19, 1986 the appellant filed a memorandum in opposition to the motion to dismiss; on December 19,1986 the appellee filed a reply to the appellant’s memorandum; on December 23, 1986 the appellee 728 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. filed a brief in opposition to the petition for appeal; on December 23, 1986 the appellant filed a surreply in opposition to the appellee’s motion to dismiss; and on January 6, 1987 the appellant filed a reply brief. “Upon consideration whereof, the motion to dismiss is granted and the petition for appeal is dismissed.” App. 25-26. This Court again denied certiorari. Coleman v. Bass, 484 U. S. 918 (1987). Coleman next filed a petition for writ of habeas corpus in the United States District Court for the Western District of Virginia. In his petition, Coleman presented four federal constitutional claims he had raised on direct appeal in the Virginia Supreme Court and seven claims he had raised for the first time in state habeas. The District Court concluded that, by virtue of the dismissal of his appeal by the Virginia Supreme Court in state habeas, Coleman had procedurally defaulted the seven claims. App. 38-39. The District Court nonetheless went on to address the merits of all 11 of Coleman’s claims. The court ruled against Coleman on all of the claims and denied the petition. Id., at 40-52. The United States Court of Appeals for the Fourth Circuit affirmed. 895 F. 2d 139 (1990). The court held that Coleman had defaulted all of the claims that he had presented for the first time in state habeas. Coleman argued that the Virginia Supreme Court had not “clearly and expressly” stated that its decision in state habeas was based on a procedural default, and therefore the federal courts could not treat it as such under the rule of Harris v. Reed, 489 U. S. 255 (1989). The Fourth Circuit disagreed. It concluded that the Virginia Supreme Court had met the “plain statement” requirement of Harris by granting a motion to dismiss that was based solely on procedural grounds. 895 F. 2d, at 143. The Fourth Circuit held that the Virginia Supreme Court’s deci COLEMAN v. THOMPSON 729 722 Opinion of the Court sion rested on independent and adequate state grounds and that Coleman had not shown cause to excuse the default. Id., at 143-144. As a consequence, federal review of the claims Coleman presented only in the state habeas proceeding was barred. Id., at 144. We granted certiorari, 498 U. S. 937 (1990), to resolve several issues concerning the relationship between state procedural defaults and federal habeas review, and now affirm. II A This Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment. See, e. g., Fox Film Corp. v. Muller, 296 U. S. 207, 210 (1935); Klinger v. Missouri, 13 Wall. 257, 263 (1872). This rule applies whether the state law ground is substantive or procedural. See, e. g., Fox Film, supra; Herndon n. Georgia, 295 U. S. 441 (1935). In the context of direct review of a state court judgment, the independent and adequate state ground doctrine is jurisdictional. Because this Court has no power to review a state law determination that is sufficient to support the judgment, resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory. See Herb v. Pitcairn, 324 U. S. 117, 125-126 (1945) (“We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion”). We have applied the independent and adequate state ground doctrine not only in our own review of state court judgments, but in deciding whether federal district courts should address the claims of state prisoners in habeas corpus actions. The doctrine applies to bar federal habeas when 730 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests on independent and adequate state procedural grounds. See Wainwright n. Sykes, 433 U. S. 72, 81, 87 (1977); Ulster County Court v. Allen, 442 U. S. 140, 148 (1979). See generally Harris, supra, at 262. The basis for application of the independent and adequate state ground doctrine in federal habeas is somewhat different than on direct review by this Court. When this Court reviews a state court decision on direct review pursuant to 28 U. S. C. § 1257, it is reviewing the judgment; if resolution of a federal question cannot affect the judgment, there is nothing for the Court to do. This is not the case in habeas. When a federal district court reviews a state prisoner’s habeas corpus petition pursuant to 28 U. S. C. § 2254, it must decide whether the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” Ibid. The court does not review a judgment, but the lawfulness of the petitioner’s custody simpliciter. See Fay v. Noia, 372 U. S. 391, 430 (1963). Nonetheless, a state prisoner is in custody pursuant to a judgment. When a federal habeas court releases a prisoner held pursuant to a state court judgment that rests on an independent and adequate state ground, it renders ineffective the state rule just as completely as if this Court had reversed the state judgment on direct review. See id., at 469 (Harlan, J., dissenting). In such a case, the habeas court ignores the State’s legitimate reasons for holding the prisoner. In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and ade COLEMAN V. THOMPSON 731 722 Opinion of the Court quate state grounds an end run around the limits of this Court’s jurisdiction and a means to undermine the State’s interest in enforcing its laws. When the independent and adequate state ground supporting a habeas petitioner’s custody is a state procedural default, an additional concern comes into play. This Court has long held that a state prisoner’s federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims. See Ex parte Royall, 117 U. S. 241 (1886). See also Rose n. Lundy, 455 U. S. 509 (1982); Castille v. Peoples, 489 U. S. 346 (1989); 28 U. S. C. § 2254(b) (codifying the rule). This exhaustion requirement is also grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner’s federal rights. As we explained in Rose, supra: “The exhaustion doctrine is principally designed to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings. See Braden n. 30th Judicial Circuit Court of Kentucky, 410 U. S. 484, 490-491 (1973). Under our federal system, the federal and state ‘courts [are] equally bound to guard and protect rights secured by the Constitution.’ Ex parte Royall, 117 U. S., at 251. Because ‘it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation,’ federal courts apply the doctrine of comity, which ‘teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.’ Darr v. Burford, 339 U. S. 200, 204 (1950).” Id., at 518. These same concerns apply to federal claims that have been procedurally defaulted in state court. Just as in those 732 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance. A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer “available” to him. See 28 U. S. C. § 2254(b); Engle n, Isaac, 456 U. S. 107, 125-126, n. 28 (1982). In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States’ interest in correcting their own mistakes is respected in all federal habeas cases. B It is not always easy for a federal court to apply the independent and adequate state ground doctrine. State court opinions will, at times, discuss federal questions at length and mention a state law basis for decision only briefly. In such cases, it is often difficult to determine if the state law discussion is truly an independent basis for decision or merely a passing reference. In other cases, state opinions purporting to apply state constitutional law will derive principles by reference to federal constitutional decisions from this Court. Again, it is unclear from such opinions whether the state law decision is independent of federal law. In Michigan v. Long, 463 U. S. 1032 (1983), we provided a partial solution to this problem in the form of a conclusive presumption. Prior to Long, when faced with ambiguous state court decisions, this Court had adopted various inconsistent and unsatisfactory solutions including dismissal of the case, remand to the state court for clarification, or an independent investigation of state law. Id., at 1038-1040. These solutions were burdensome both to this Court and to COLEMAN V. THOMPSON 733 722 Opinion of the Court the state courts. They were also largely unnecessary in those cases where it fairly appeared that the state court decision rested primarily on federal law. The most reasonable conclusion in such cases is that there is not an independent and adequate state ground for the decision. Therefore, in order to minimize the costs associated with resolving ambiguities in state court decisions while still fulfilling our obligation to determine if there was an independent and adequate state ground for the decision, we established a conclusive presumption of jurisdiction in these cases: “[W]hen, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.” Id., at 1040-1041. After Long, a state court that wishes to look to federal law for guidance or as an alternative holding while still relying on an independent and adequate state ground can avoid the presumption by stating “clearly and expressly that [its decision] is . . . based on bona fide separate, adequate, and independent grounds.” Id., at 1041. In Caldwell v. Mississippi, 472 U. S. 320 (1985), we applied the Long presumption in the context of an alleged independent and adequate state procedural ground. Caldwell, a criminal defendant, challenged at trial part of the prosecutor’s closing argument to the jury, but he did not raise the issue on appeal to the Mississippi Supreme Court. That court raised the issue sua sponte, discussing this federal question at length in its opinion and deciding it against Caldwell. The court also made reference to its general rule that issues not raised on appeal are deemed waived. The State argued to this Court that the procedural default constituted an independent and adequate state ground for the Mississippi 734 OCTOBER TERM, 1990 501 U. S. Opinion of the Court court’s decision. We rejected this argument, noting that the state decision “‘fairly appears to rest primarily on federal law,”’ and there was no clear and express statement that the Mississippi Supreme Court was relying on procedural default as an independent ground. Id., at 327, quoting Long, supra, at 1040. Long and Caldwell were direct review cases. We first considered the problem of ambiguous state court decisions in the application of the independent and adequate state ground doctrine in a federal habeas case in Harris n, Reed, 489 U. S. 255 (1989). Harris, a state prisoner, filed a petition for state postconviction relief, alleging that his trial counsel had rendered ineffective assistance. The state trial court dismissed the petition, and the Appellate Court of Illinois affirmed. In its order, the Appellate Court referred to the Illinois rule that “ ‘those [issues] which could have been presented [on direct appeal], but were not, are considered waived/” Id., at 258. The court concluded that Harris could have raised his ineffective assistance claims on direct review. Nonetheless, the court considered and rejected Harris’ claims on the merits. Harris then petitioned for federal habeas. The situation presented to this Court was nearly identical to that in Long and Caldwell: a state court decision that fairly appeared to rest primarily on federal law in a context in which a federal court has an obligation to determine if the state court decision rested on an independent and adequate state ground. “Faced with a common problem, we adopt[ed] a common solution.” Harris, supra, at 263. Harris applied in federal habeas the presumption this Court adopted in Long for direct review cases. Because the Illinois Appellate Court did not “clearly and expressly” rely on waiver as a ground for rejecting Harris’ ineffective assistance of counsel claims, the Long presumption applied and Harris was not barred from federal habeas. Harris, supra, at 266. After Harris, federal courts on habeas corpus review of state prisoner claims, like this Court on direct review of state COLEMAN V. THOMPSON 735 722 Opinion of the Court court judgments, will presume that there is no independent and adequate state ground for a state court decision when the decision “fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” Long, supra, at 1040-1041. In habeas, if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition.* Ill A Coleman contends that the presumption of Long and Harris applies in this case and precludes a bar to habeas because the Virginia Supreme Court’s order dismissing Coleman’s appeal did not “clearly and expressly” state that it was based on state procedural grounds. Coleman reads Harris too broadly. A predicate to the application of the Harris presumption is that the decision of the last state court to which the petitioner presented his federal claims must fairly appear to rest primarily on federal law or to be interwoven with federal law. Coleman relies on other language in Harris. That opinion announces that “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case *This rule does not apply if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred. In such a case there is a procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claims. See Harris v. Reed, 489 U. S. 255, 269-270 (1989) (O’Connor, J., concurring); Teague v. Lane, 489 U. S. 288, 297-298 (1989). 736 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. clearly and expressly states that its judgment rests on a state procedural bar.” Harris, supra, at 263 (internal quotation marks omitted). Coleman contends that this rule, by its terms, applies to all state court judgments, not just those that fairly appear to rest primarily on federal law. Coleman has read the rule out of context. It is unmistakably clear that Harris applies the same presumption in habeas that Long and Caldwell adopted in direct review cases in this Court. See Harris, 489 U. S., at 263 (“Faced with a common problem we adopt a common solution”); see also id., at 264 (“Under our decision today, a state court need do nothing more to preclude habeas review than it must do to preclude direct review”). Indeed, the quoted passage purports to state the rule “on either direct or habeas review.” Harris, being a federal habeas case, could not change the rule for direct review; the reference to both direct and habeas review makes plain that Harris applies precisely the same rule as Long. Harris describes the Long presumption, and hence its own, as applying only in those cases in which “‘it fairly appears that the state court rested its decision primarily on federal law.’” Harris, supra, at 261, quoting Long, 463 U. S. , at 1040. That in one particular exposition of its rule Harris does not mention the predicate to application of the presumption does not change the holding of the opinion. Coleman urges a broader rule: that the presumption applies in all cases in which a habeas petitioner presented his federal claims to the state court. This rule makes little sense. In direct review cases, “[i]t is . . . ‘incumbent upon this Court ... to ascertain for itself . . . whether the asserted non-federal ground independently and adequately supports the [state court] judgment.’” Long, supra, at 1038, quoting Abie State Bank v. Bryan, 282 U. S. 765, 773 (1931). Similarly, federal habeas courts must ascertain for themselves if the petitioner is in custody pursuant to a state court judgment that rests on independent and adequate state grounds. In cases in which the Long and Harris presump COLEMAN V. THOMPSON 737 722 Opinion of the Court tion applies, federal courts will conclude that the relevant state court judgment does not rest on an independent and adequate state ground. The presumption, like all conclusive presumptions, is designed to avoid the costs of excessive inquiry where a per se rule will achieve the correct result in almost all cases. As we explained in a different context: “Per se rules . . . require the Court to make broad generalizations .... Cases that do not fit the generalization may arise, but a per se rule reflects the judgment that such cases are not sufficiently common or important to justify the time and expense necessary to identify them.” Continental T. V., Inc. n. GTE Sylvania Inc., 433 U. S. 36, 50, n. 16 (1977). Per se rules should not be applied, however, in situations where the generalization is incorrect as an empirical matter; the justification for a conclusive presumption disappears when application of the presumption will not reach the correct result most of the time. The Long and Harris presumption works because in the majority of cases in which a state court decision fairly appears to rest primarily on federal law or to be interwoven with such law, and the state court does not plainly state that it is relying on an independent and adequate state ground, the state court decision did not in fact rest on an independent and adequate state ground. We accept errors in those small number of cases where there was nonetheless an independent and adequate state ground in exchange for a significant reduction in the costs of inquiry. The tradeoff is very different when the factual predicate does not exist. In those cases in which it does not fairly appear that the state court rested its decision primarily on federal grounds, it is simply not true that the “most reasonable explanation” is that the state judgment rested on federal grounds. Cf. Long, supra, at 1041. Yet Coleman would have the federal courts apply a conclusive presumption of no independent and adequate state grounds in every case in which a state prisoner presented his federal claims to a state 738 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. court, regardless of whether it fairly appears that the state court addressed those claims. We cannot accept such a rule, for it would greatly and unacceptably expand the risk that federal courts will review the federal claims of prisoners in custody pursuant to judgments resting on independent and adequate state grounds. Any efficiency gained by applying a conclusive presumption, and thereby avoiding inquiry into state law, is simply not worth the cost in the loss of respect for the State that such a rule would entail. It may be argued that a broadly applicable presumption is not counterfactual after it is announced: Once state courts know that their decisions resting on independent and adequate state procedural grounds will be honored in federal habeas only if there is a clear and express statement of the default, these courts will provide such a statement in all relevant cases. This argument does not help Coleman. Even assuming that Harris can be read as establishing a presumption in all cases, the Virginia Supreme Court issued its order dismissing Coleman’s appeal before this Court decided Harris. As to this state court order, the absence of an express statement of procedural default is not very informative. In any event, we decline to establish such a rule here, for it would place burdens on the States and state courts in exchange for very little benefit to the federal courts. We are, as an initial matter, far from confident that the empirical assumption of the argument for such a rule is correct. It is not necessarily the case that state courts will take pains to provide a clear and express statement of procedural default in all cases, even after announcement of the rule. State courts presumably have a dignitary interest in seeing that their state law decisions are not ignored by a federal habeas court, but most of the price paid for federal review of state prisoner claims is paid by the State. When a federal habeas court considers the federal claims of a prisoner in state custody for independent and adequate state law reasons, it is the State that must respond. It is the State that pays the price in COLEMAN V. THOMPSON 739 722 Opinion of the Court terms of the uncertainty and delay added to the enforcement of its criminal laws. It is the State that must retry the petitioner if the federal courts reverse his Conviction. If a state court, in the course of disposing of cases on its overcrowded docket, neglects to provide a clear and express statement of procedural default, or is insufficiently motivated to do so, there is little the State can do about it. Yet it is primarily respect for the State’s interests that underlies the application of the independent and adequate state ground doctrine in federal habeas. A broad presumption would also put too great a burden on the state courts. It remains the duty of the federal courts, whether this Court on direct review, or lower federal courts in habeas, to determine the scope of the relevant state court judgment. We can establish a per se rule that eases the burden of inquiry on the federal courts in those cases where there are few costs to doing so, but we have no power to tell state courts how they must write their opinions. We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim—every state appeal, every denial of state collateral review—in order that federal courts might not be bothered with reviewing state law and the record in the case. Nor do we believe that the federal courts will save much work by applying the Harris presumption in all cases. The presumption at present applies only» when it fairly appears that a state court judgment rested primarily on federal law or was interwoven with federal law, that is, in those cases where a federal court has good reason to question whether there is an independent and adequate state ground for the decision. In the rest of the cases, there is little need for a conclusive presumption. In the absence of a clear indication 740 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. that a state court rested its decision on federal law, a federal court’s task will not be difficult. There is, in sum, little that the federal courts will gain by applying a presumption of federal review in those cases where the relevant state court decision does not fairly appear to rest primarily on federal law or to be interwoven with such law, and much that the States and state courts will lose. We decline to so expand the Harris presumption. B The Harris presumption does not apply here. Coleman does not argue, nor could he, that it “fairly appears” that the Virginia Supreme Court’s decision rested primarily on federal law or was interwoven with such law. The Virginia Supreme Court stated plainly that it was granting the Commonwealth’s motion to dismiss the petition for appeal. That motion was based solely on Coleman’s failure to meet the Supreme Court’s time requirements. There is no mention of federal law in the Virginia Supreme Court’s three-sentence dismissal order. It “fairly appears” to rest primarily on state law. Coleman concedes that the Virginia Supreme Court dismissed his state habeas appeal as untimely, applying a state procedural rule. Brief for Petitioner 9. He argues instead that the court’s application of this procedural rule was not independent of federal law. Virginia Supreme Court Rule 5:5(a) declares that the 30-day requirement for filing a notice of appeal is “mandatory.” The Virginia Supreme Court has reiterated the unwaivable nature of this requirement. See School Bd. of Lynchburg n. Scott, 237 Va. 550, 556, 379 S. E. 2d 319, 323 (1989); Vaughn v. Vaughn, 215 Va. 328, 329, 210 S. E. 2d 140, 142 (1974); Mears v. Mears, 206 Va. 444, 445, 143 S. E. 2d 889, 890 (1965). Despite these forthright pronouncements, Coleman contends that in this case the Virginia Supreme Court did not automatically apply its time requirement. Rather, Coleman COLEMAN V. THOMPSON 741 722 Opinion of the Court asserts, the court first considered the merits of his federal claims and applied the procedural bar only after determining that doing so would not abridge one of Coleman’s constitutional rights. In Ake v. Oklahoma, 470 U. S. 68 (1985), this Court held that a similar Oklahoma rule, excusing procedural default in cases of “fundamental trial error,” was not independent of federal law so as to bar direct review because “the State ha[d] made application of the procedural bar depend on an antecedent ruling on federal law.” Id., at 75. For the same reason, Coleman argues, the Virginia Supreme Court’s time requirement is not independent of federal law. Ake was a direct review case. We have never applied its rule regarding independent state grounds in federal habeas. But even if Ake applies here, it does Coleman no good because the Virginia Supreme Court relied on an independent state procedural rule. Coleman cites Tharp v. Commonwealth, 211 Va. 1, 175 S. E. 2d 277 (1970). In that case, the Virginia Supreme Court announced that it was ending its practice of allowing extensions of time for petitions of writs of error in criminal and state habeas cases: “Henceforth we will extend the time for filing a petition for a writ of error only if it is found that to deny the extension would abridge a constitutional right.” Id., at 3, 175 S. E. 2d, at 278. Coleman contends that the Virginia Supreme Court’s exception for constitutional claims demonstrates that the court will conduct at least a cursory review of a petitioner’s constitutional claims on the merits before dismissing an appeal. We are not convinced that Tharp stands for the rule that Coleman believes it does. Coleman reads that case as establishing a practice in the Virginia Supreme Court of examining the merits of all underlying constitutional claims before denying a petition for appeal or writ of error as time barred. A more natural reading is that the Virginia Supreme Court will only grant an extension of time if the denial itself would 742 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. abridge a constitutional right. That is, the Virginia Supreme Court will extend its time requirement only in those cases in which the petitioner has a constitutional right to have the appeal heard. This was the case, for example, in Cabaniss v. Cunningham, 206 Va. 330, 143 S. E. 2d 911 (1965). Cabaniss had defaulted the direct appeal of his criminal conviction because the trial court had failed to honor his request for appointed counsel on appeal, a request the court was required to honor under the Constitution. See Douglas n. California, 372 U. S. 353 (1963). The Virginia Supreme Court, on state collateral review, ordered that Cabaniss be given counsel and allowed to file a new appeal, although grossly out of time. 206 Va., at 335, 143 S. E. 2d, at 914. Enforcing the time requirements for appeal in that case would have abridged Cabaniss’ constitutional right to counsel on appeal. See also Thacker v. Peyton, 206 Va. 771, 146 S. E. 2d 176 (1966) (same); Stokes v. Peyton, 207 Va. 1, 147 S. E. 2d 773 (1966) (same). Such a rule would be of no help to Coleman. He does not contend that the failure of the Virginia Supreme Court to hear his untimely state habeas appeal violated one of his constitutional rights. Even if we accept Coleman’s reading of Tharp, however, it is clear that the Virginia Supreme Court did not apply the Tharp rule here. Tharp concerns the filing requirement for petitions. Here, it was not Coleman’s petition for appeal that was late, but his notice of appeal. A petition for appeal to the Virginia Supreme Court is a document filed with that court in which the petitioner describes the alleged errors in the decision below. Va. Sup. Ct. Rule 5:17(c). It need only be filed within three months of the final judgment of a trial court. Rule 5:17(a)(1). By contrast, the notice of appeal is a document filed with the trial court that notifies that court and the Virginia Supreme Court, as well as the parties, that there will be an appeal; it is a purely ministerial document. Rule 5:9. The notice of the appeal must be filed within 30 COLEMAN v. THOMPSON 743 722 Opinion of the Court days of the final judgment of the trial court. Ibid. Coleman has cited no authority indicating that the Virginia Supreme Court has recognized an exception to the time requirement for filing a notice of appeal. Coleman cites also O’Brien v. Socony Mobil Oil Co., 207 Va. 707, 152 S. E. 2d 278 (1967). In that case, O’Brien, a civil litigant making a constitutional property rights claim, filed her notice of appeal several years late. She relied on three recent Virginia Supreme Court cases for the proposition that the court would waive the time requirement for notice of appeal where constitutional rights were at stake. See Cabaniss, supra; Thacker, supra; Stokes, supra. As noted, those were state habeas cases in which the Virginia Supreme Court determined that the petitioner had been denied direct appeal because of a constitutional error in failure to appoint counsel. In O’Brien, the Virginia Supreme Court expressly reserved the “question whether the precedent of the Cabaniss, Thacker and Stokes cases should be followed in cases involving denial of constitutional property rights.” 207 Va., at 715, 152 S. E. 2d, at 284. The court then addressed O’Brien’s constitutional claim on the merits and ruled against her. As a result, there was no need to decide if she should be allowed an exception to the “mandatory” time requirement, id., at 709, 152 S. E. 2d, at 280, and her appeal was dismissed as untimely. Coleman argues that O’Brien demonstrates that the Virginia Supreme Court will review the merits of constitutional claims before deciding whether to dismiss an appeal as untimely. The court in O’Brien did conduct such a review, but the court also explicitly declined to announce a rule that there is a constitutional exception to the time requirement for filing a notice of appeal. There is no evidence other than O’Brien that the Virginia Supreme Court has ever conducted such a review, and O’Brien explicitly declined to announce such a 744 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. practice. We decline Coleman’s invitation to announce such a practice for that court. Finally, Coleman argues that the Virginia Supreme Court’s dismissal order in this case is at least ambiguous because it was issued “[u]pon consideration” of all the filed papers, including Coleman’s petition for appeal and the Commonwealth’s brief in opposition, both of which discussed the merits of Coleman’s federal claims. There is no doubt that the Virginia Supreme Court’s “consideration” of all filed papers adds some ambiguity, but we simply cannot read it as overriding the court’s explicit grant of a dismissal motion based solely on procedural grounds. Those grounds are independent of federal law. Coleman contends also that the procedural bar was not adequate to support the judgment. Coleman did not petition for certiorari on this question, and we therefore accept the Court of Appeals’ conclusion that the bar was adequate. See 895 F. 2d, at 143. IV In Daniels n. Allen, the companion case to Brown v. Allen, 344 U. S. 443 (1953), we confronted a situation nearly identical to that here. Petitioners were convicted in a North Carolina trial court and then were one day late in filing their appeal as of right in the North Carolina Supreme Court. That court rejected the appeals as procedurally barred. We held that federal habeas was also barred unless petitioners could prove that they were “detained without opportunity to appeal because of lack of counsel, incapacity, or some interference by officials.” Id., at 485-486. Fay n. Noia, 372 U. S. 391 (1963), overruled this holding. Noia failed to appeal at all in state court his state conviction, and then sought federal habeas review of his claim that his confession had been coerced. This Court held that such a procedural default in state court does not bar federal habeas review unless the petitioner has deliberately bypassed state procedures by intentionally forgoing an opportunity for state COLEMAN V. THOMPSON 745 722 Opinion of the Court review. Id., at 438-439. Fay thus created a presumption in favor of federal habeas review of claims procedurally defaulted in state court. The Court based this holding on its conclusion that a State’s interest in orderly procedure is sufficiently vindicated by the prisoner’s forfeiture of his state remedies. “Whatever residuum of state interest there may be under such circumstances is manifestly insufficient in the face of the federal policy ... of affording an effective remedy for restraints contrary to the Constitution. ” Id., at 433-434. Our cases after Fay that have considered the effect of state procedural default on federal habeas review have taken a markedly different view of the important interests served by state procedural rules. Francis v. Henderson, 425 U. S. 536 (1976), involved a Louisiana prisoner challenging in federal habeas the composition of the grand jury that had indicted him. Louisiana law provided that any such challenge must be made in advance of trial or it would be deemed waived. Because Francis had not raised a timely objection, the Louisiana courts refused to hear his claim. In deciding whether this state procedural default would also bar review in federal habeas, we looked to our decision in Davis n. United States, 411 U. S. 233 (1973). Davis, a federal prisoner, had defaulted an identical federal claim pursuant to Federal Rule of Criminal Procedure 12(b)(2). We held that a federal court on collateral review could not hear the claim unless Davis could show “cause” for his failure to challenge the composition of the grand jury before trial and actual prejudice as a result of the alleged constitutional violations. Id., at 242-245. The Francis Court noted the important interests served by the pretrial objection requirement of Rule 12(b)(2) and the parallel state rule: the possible avoidance of an unnecessary trial or of a retrial, the difficulty of making factual determinations concerning grand juries long after the indictment has been handed down and the grand jury disbanded, and the potential disruption to numerous convictions of finding a defect 746 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. in a grand jury only after the jury has handed down indictments in many cases. Francis, supra, at 540-541. These concerns led us in Davis to enforce Rule 12(b)(2) in collateral review. We concluded in Francis that a proper respect for the States required that federal courts give to the state procedural rule the same effect they give to the federal rule: “If, as Davis held, the federal courts must give effect to these important and legitimate concerns in § 2255 proceedings, then surely considerations of comity and federalism require that they give no less effect to the same clear interests when asked to overturn state criminal convictions. These considerations require that recognition be given ‘to the legitimate interests of both State and National Governments, and . . . [that] the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always [endeavor] to do so in ways that will not unduly interfere with the legitimate activities of the States.’ Younger n. Harris, 401 U. S. 37, 44. ‘Plainly the interest in finality is the same with regard to both federal and state prisoners. . . . There is no reason to . . . give greater preclusive effect to procedural defaults by federal defendants than to similar defaults by state defendants. To hold otherwise would reflect an anomalous and erroneous view of federal-state relations.’ Kaufman v. United States, 394 U. S. 217, 228.” Francis, 425 U. S., at 541-542. We held that Francis’ claim was barred in federal habeas unless he could establish cause and prejudice. Id., at 542. Wainwright v. Sykes, 433 U. S. 72 (1977), applied the cause and prejudice standard more broadly. Sykes did not object at trial to the introduction of certain inculpatory statements he had earlier made to the police. Under Florida law, this failure barred state courts from hearing the claim on either direct appeal or state collateral review. We recognized that this contemporaneous objection rule served strong state interests in the finality of its criminal litigation. Id., at COLEMAN V. THOMPSON 747 722 Opinion of the Court 88-90. To protect these interests, we adopted the same presumption against federal habeas review of claims defaulted in state court for failure to object at trial that Francis had adopted in the grand jury context: the cause and prejudice standard. “We believe the adoption of the Francis rule in this situation will have the salutary effect of making the state trial on the merits the ‘main event,’ so to speak, rather than a ‘tryout on the road’ for what will later be the determinative federal habeas hearing.” Id., at 90. In so holding, Sykes limited Fay to its facts. The cause and prejudice standard in federal habeas evinces far greater respect for state procedural rules than does the deliberate bypass standard of Fay. These incompatible rules are based on very different conceptions of comity and of the importance of finality in state criminal litigation. See Hill, The Forfeiture of Constitutional Rights in Criminal Cases, 78 Colum. L. Rev. 1050, 1053-1059 (1978). In Sykes, we left open the question whether the deliberate bypass standard still applied to a situation like that in Fay, where a petitioner has surrendered entirely his right to appeal his state conviction. Sykes, 433 U. S., at 88, n. 12. We rejected explicitly, however, “the sweeping language of Fay v. Noia, going far beyond the facts of the case eliciting it.” Id., at 87-88. Our cases since Sykes have been unanimous in applying the cause and prejudice standard. Engle v. Isaac, 456 U. S. 107 (1982), held that the standard applies even in cases in which the alleged constitutional error impaired the truthfinding function of the trial. Respondents had failed to object at trial to jury instructions that placed on them the burden of proving self-defense. Ohio’s contemporaneous objection rule barred respondents’ claim on appeal that the burden should have been on the State. We held that this independent and adequate state ground barred federal habeas as well, absent a showing of cause and prejudice. Recognizing that the writ of habeas corpus “is a bulwark against convictions that violate fundamental fairness,” we 748 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. also acknowledged that “the Great Writ entails significant costs.” Id., at 126 (internal quotation marks omitted). The most significant of these is the cost to finality in criminal litigation that federal collateral review of state convictions entails: “As Justice Harlan once observed, ‘[bfeth the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community.’ Sanders n. United States, 373 U. S. 1, 24-25 (1963) (dissenting opinion).” Id., at 127. Moreover, “[f federal intrusions into state criminal trials frustrate both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” Id., at 128. These costs are particularly high, we explained, when a state prisoner, through a procedural default, prevents adjudication of his constitutional claims in state court. Because these costs do not depend on the type of claim the prisoner raised, we reaffirmed that a state procedural default of any federal claim will bar federal habeas unless the petitioner demonstrates cause and actual prejudice. Id., at 129. We also explained in Engle that the cause and prejudice standard will be met in those cases where review of a state prisoner’s claim is necessary to correct “a fundamental miscarriage of justice.” Id., at 135. See also Murray v. Carrier, 477 U. S. 478, 496 (1986) (“[W]here a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default”). In Carrier, we applied the cause and prejudice standard to a petitioner’s failure to raise a particular claim in his state COLEMAN V. THOMPSON 749 722 Opinion of the Court court appeal. Again, we emphasized the important interests served by state procedural rules at every stage of the judicial process and the harm to the States that results when federal courts ignore these rules: “A State’s procedural rules serve vital purposes at trial, on appeal, and on state collateral attack. . . . . . ‘Each State’s complement of procedural rules . . . channels], to the extent possible, the resolution of various types of questions to the stage of the judicial process at which they can be resolved most fairly and efficiently.’ [Reed v. Ross, 468 U. S. 1, 10 (1984).] . . . Failure to raise a claim on appeal reduces the finality of appellate proceedings, deprives the appellate court of an opportunity to review trial error, and ‘undercut[s] the State’s ability to enforce its procedural rules.’ Engle, 456 U. S., at 129.” Id., at 490-491. In Carrier, as in Sykes, we left open the question whether Fay's, deliberate bypass standard continued to apply under the facts of that case, where a state prisoner has defaulted his entire appeal. See Carrier, supra, at 492; Sykes, supra, at 88, n. 12. We are now required to answer this question. By filing late, Coleman defaulted his entire state collateral appeal. This was no doubt an inadvertent error, and respondent concedes that Coleman did not “understandingly and knowingly” forgo the privilege of state collateral appeal. See Fay, 372 U. S., at 439. Therefore, if the Fay deliberate bypass standard still applies, Coleman’s state procedural default will not bar federal habeas. In Harris, we described in broad terms the application of the cause and prejudice standard, hinting strongly that Fay had been superseded: “Under Sykes and its progeny, an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show ‘cause’ for the default and ‘prejudice 750 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. attributable thereto,’ Murray n. Carrier, 477 U. S. 478, 485 (1986), or demonstrate that failure to consider the federal claim will result in a ‘ “ ‘fundamental miscarriage of justice.”” Id., at 495, quoting Engle v. Isaac, 456 U. S. 107, 135 (1982). See also Smith v. Murray, 477 U. S. 527, 537 (1986).” Harris, 489 U. S., at 262. We now make it explicit: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Fay was based on a conception of federal/state relations that undervalued the importance of state procedural rules. The several cases after Fay that applied the cause and prejudice standard to a variety of state procedural defaults represent a different view. We now recognize the important interest in finality served by state procedural rules, and the significant harm to the States that results from the failure of federal courts to respect them. Cf. McCleskey v. Zant, 499 U. S. 467, 491 (1991) (“Though Fay v. Noia, supra, may have cast doubt upon these propositions, since Fay we have taken care in our habeas corpus decisions to reconfirm the importance of finality”). Carrier applied the cause and prejudice standard to the failure to raise a particular claim on appeal. There is no reason that the same standard should not apply to a failure to appeal at all. All of the State’s interests—in channeling the resolution of claims to the most appropriate forum, in finality, and in having an opportunity to correct its own errors — are implicated whether a prisoner defaults one claim or all of them. A federal court generally should not interfere in either case. By applying the cause and prejudice standard uniformly to all independent and adequate state procedural COLEMAN V. THOMPSON 751 722 Opinion of the Court defaults, we eliminate the irrational distinction between Fay and the rule of cases like Francis, Sykes, Engle, and Carrier. We also eliminate inconsistency between the respect federal courts show for state procedural rules and the respect they show for their own. This Court has long understood the vital interest served by federal procedural rules, even when they serve to bar federal review of constitutional claims. In Yakus n. United States, 321 U. S. 414 (1944), for example, the Court explained: “No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” Id., at 444. In Browder v. Director, Illinois Dept, of Corrections, 434 U. S. 257 (1978), we held that the appeal in a state prisoner federal habeas case was barred because untimely under Federal Rule of Appellate Procedure 4(a). In describing the “mandatory and jurisdictional” nature of the Rule and its justification, we might as well have been describing Virginia Supreme Court Rule 5:5(a): “This 30-day time limit is ‘mandatory and jurisdictional.’ The purpose of the rule is clear: It is ‘to set a definite point of time when litigation should be at an end, unless within that time the prescribed application has been made; and if it has not been, to advise prospective appellees that they are freed of the appellant’s demands. Any other construction of the statute would defeat its purpose.’ Matton Steamboat [Co. v. Murphy, 319 U. S. 412, 415 (1943)].” Browder, supra, at 264 (citations omitted). No less respect should be given to state rules of procedure. See Francis, 425 U. S., at 541-542. 752 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. V A Coleman maintains that there was cause for his default. The late filing was, he contends, the result of attorney error of sufficient magnitude to excuse the default in federal habeas. Murray v. Carrier considered the circumstances under which attorney error constitutes cause. Carrier argued that his attorney’s inadvertence in failing to raise certain claims in his state appeal constituted cause for the default sufficient to allow federal habeas review. We rejected this claim, explaining that the costs associated with an ignorant or inadvertent procedural default are no less than where the failure to raise a claim is a deliberate strategy: It deprives the state courts of the opportunity to review trial errors. When a federal habeas court hears such a claim, it undercuts the State’s ability to enforce its procedural rules just as surely as when the default was deliberate. 477 U. S., at 487. We concluded: “So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, [466 U. S. 668 (1984)], we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.” Id., at 488. Applying the Carrier rule as stated, this case is at an end. There is no constitutional right to an attorney in state postconviction proceedings. Pennsylvania n. Finley, 481 U. S. 551 (1987); Murray v. Giarratano, 492 U. S. 1 (1989) (applying the rule to capital cases). Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. See Wainwright v. Toma, 455 U. S. 586 (1982) (where there is no constitutional right to counsel there can be no deprivation of effective assistance). Coleman contends that it was his attorney’s error that led to the late filing of his state habeas appeal. This error cannot be constitutionally ineffective; therefore Coleman must “bear COLEMAN v. THOMPSON 753 722 Opinion of the Court the risk of attorney error that results in a procedural default.” Coleman attempts to avoid this reasoning by arguing that Carrier does not stand for such a broad proposition. He contends that Carrier applies by its terms only in those situations where it is possible to state a claim for ineffective assistance of counsel. Where there is no constitutional right to counsel, Coleman argues, it is enough that a petitioner demonstrate that his attorney’s conduct would meet the Strickland standard, even though no independent Sixth Amendment claim is possible. This argument is inconsistent not only with the language of Carrier, but with the logic of that opinion as well. We explained clearly that “cause” under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him: “[W]e think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” 477 U. S., at 488. For example, “a showing that the factual or legal basis for a claim was not reasonably available to counsel, ... or that ‘some interference by officials’. . . made compliance impracticable, would constitute cause under this standard.” Ibid. See also id., at 492 (“[Clause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim”). Attorney ignorance or inadvertence is not “cause” because the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must “bear the risk of attorney error.” Id., at 488. See Link v. Wabash R. Co., 370 U. S. 626, 634 (1962) (in “our system of representative litigation . . . each party is deemed bound by the acts of his lawyer-agent”); Irwin v. Department of Veterans Affairs, 498 U. S. 89, 92 (1990) (same). Attor 754 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. ney error that constitutes ineffective assistance of counsel is cause, however. This is not because, as Coleman contends, the error is so bad that “the lawyer ceases to be an agent of the petitioner.” Brief for Petitioner 29. In a case such as this, where the alleged attorney error is inadvertence in failing to file a timely notice, such a rule would be contrary to well-settled principles of agency law. See, e. g., Restatement (Second) of Agency §242 (1958) (master is subject to liability for harm caused by negligent conduct of servant within the scope of employment). Rather, as Carrier explains, “if the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State.” 477 U. S., at 488. In other words, it is not the gravity of the attorney’s error that matters, but that it constitutes a violation of petitioner’s right to counsel, so that the error must be seen as an external factor, i. e., “imputed to the State.” See also Evitts v. Lacey, 469 U. S. 387, 396 (1985) (“The constitutional mandate [guaranteeing effective assistance of counsel] is addressed to the action of the State in obtaining a criminal conviction through a procedure that fails to meet the standard of due process of law”). Where a petitioner defaults a claim as a result of the denial of the right to effective assistance of counsel, the State, which is responsible for the denial as a constitutional matter, must bear the cost of any resulting default and the harm to state interests that federal habeas review entails. A different allocation of costs is appropriate in those circumstances where the State has no responsibility to ensure that the petitioner was represented by competent counsel. As between the State and the petitioner, it is the petitioner who must bear the burden of a failure to follow state procedural rules. In the absence of a constitutional violation, the petitioner bears the risk in federal habeas for all attorney errors made in the course of the representation, as Carrier says explicitly. COLEMAN V. THOMPSON 755 722 Opinion of the Court B Among the claims Coleman brought in state habeas, and then again in federal habeas, is ineffective assistance of counsel during trial, sentencing, and appeal. Coleman contends that, at least as to these claims, attorney error in state habeas must constitute cause. This is because, under Virginia law at the time of Coleman’s trial and direct appeal, ineffective assistance of counsel claims related to counsel’s conduct during trial or appeal could be brought only in state habeas. See Walker v. Mitchell, 224 Va. 568, 571, 299 S. E. 2d 698, 699-700 (1983); Dowell n. Commonwealth, 3 Va. App. 555, 562, 351 S. E. 2d 915, 919 (1987). Coleman argues that attorney error in failing to file timely in the first forum in which a federal claim can be raised is cause. We reiterate that counsel’s ineffectiveness will constitute cause only if it is an independent constitutional violation. Finley and Giarratano established that there is no right to counsel in state collateral proceedings. For Coleman to prevail, therefore, there must be an exception to the rule of Finley and Giarratano in those cases where state collateral review is the first place a prisoner can present a challenge to his conviction. We need not answer this question broadly, however, for one state court has addressed Coleman’s claims: the state habeas trial court. The effectiveness of Coleman’s counsel before that court is not at issue here. Coleman contends that it was the ineffectiveness of his counsel during the appeal from that determination that constitutes cause to excuse his default. We thus need to decide only whether Coleman had a constitutional right to counsel on appeal from the state habeas trial court judgment. We conclude that he did not. Douglas n. California, 372 U. S. 353 (1963), established that an indigent criminal defendant has a right to appointed counsel in his first appeal as of right in state court. Evitts v. Lucey, supra, held that this right encompasses a right to effective assistance of counsel for all criminal defendants in 756 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. their first appeal as of right. We based our holding in Douglas on that “equality demanded by the Fourteenth Amendment.” 372 U. S., at 358. Recognizing that “[a]bsolute equality is not required,” we nonetheless held that “where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.” Id., at 357 (emphasis in original). Coleman has had his “one and only appeal,” if that is what a state collateral proceeding may be considered; the Buchanan County Circuit Court, after a 2-day evidentiary hearing, addressed Coleman’s claims of trial error, including his ineffective assistance of counsel claims. What Coleman requires here is a right to counsel on appeal from that determination. Our case law will not support it. In Ross n. Moffitt, 417 U. S. 600 (1974), and Pennsylvania v. Finley, 481 U. S. 551 (1987), we declined to extend the right to counsel beyond the first appeal of a criminal conviction. We held in Ross that neither the fundamental fairness required by the Due Process Clause nor the Fourteenth Amendment’s equal protection guarantee necessitated that States provide counsel in state discretionary appeals where defendants already had one appeal as of right. “The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process.” 417 U. S., at 616. Similarly, in Finley we held that there is no right to counsel in state collateral proceedings after exhaustion of direct appellate review. 481 U. S., at 556 (citing Ross, supra). These cases dictate the answer here. Given that a criminal defendant has no right to counsel beyond his first appeal in pursuing state discretionary or collateral review, it would defy logic for us to hold that Coleman had a right to counsel COLEMAN V. THOMPSON 757 722 White, J., concurring to appeal a state collateral determination of his claims of trial error. Because Coleman had no right to counsel to pursue his appeal in state habeas, any attorney error that led to the default of Coleman’s claims in state court cannot constitute cause to excuse the default in federal habeas. As Coleman does not argue in this Court that federal review of his claims is necessary to prevent a fundamental miscarriage of justice, he is barred from bringing these claims in federal habeas. Accordingly, the judgment of the Court of Appeals is Affirmed. Justice White, concurring. I concur in the judgment of the Court and I join in its opinion, but add a few words concerning what occurred below. Harris v. Reed, 489 U. S. 255 (1989), stated that “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘ “clearly and expressly” ’ states that its judgment rests on a state procedural bar. ” Id., at 263, quoting Caldwell v. Mississippi, 472 U. S. 320, 327 (1985), in turn quoting Michigan n. Long, 463 U. S. 1032, 1041 (1983). If there were nothing before us but the order granting the State’s motion to dismiss for untimeliness, it would be clear enough that the dismissal was based on a procedural default. But the state court did not grant the State’s explicit request for an early ruling on the motion. Instead, the court delayed ruling on the motion to dismiss, and hence briefs on both the motion and the merits were filed. Six months later, the court “upon consideration whereof” granted the State’s motion to dismiss the appeal. Hence petitioner’s argument that the court studied the merits of the federal claims to determine whether to waive the procedural default, found those claims lacking, and only then granted the motion to dismiss; it is as though the court had said that it was granting the motion to dismiss the appeal as untimely because the federal 758 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. claims were untenable and provided the court no reason to waive the default. The predicate for this argument is that on occasion the Virginia Supreme Court waives the untimeliness rule. If that were true, the rule would not be an adequate and independent state ground barring direct or habeas review. Cf. Ake v. Oklahoma, 470 U. S. 68, 75 (1985). The filing of briefs and their consideration would do no more than buttress the claim that the rule is not strictly enforced. Petitioner argues that the Virginia court does in fact waive the rule on occasion, but I am not now convinced that there is a practice of waiving the rule when constitutional issues are at stake, even fundamental ones. The evidence is too scanty to permit a conclusion that the rule is no longer an adequate and independent state ground barring federal review. The fact that merits briefs were filed and were considered by the court, without more, does not justify a different conclusion. Justice Blackmun, with whom Justice Marshall and Justice Stevens join, dissenting. Federalism; comity; state sovereignty; preservation of state resources; certainty: The majority methodically inventories these multifarious state interests before concluding that the plain-statement rule of Michigan v. Long, 463 U. S. 1032 (1983), does not apply to a summary order. One searches the majority’s opinion in vain, however, for any mention of petitioner Coleman’s right to a criminal proceeding free from constitutional defect or his interest in finding a forum for his constitutional challenge to his conviction and sentence of death. Nor does the majority even allude to the “important need for uniformity in federal law,” id., at 1040, which justified this Court’s adoption of the plain-statement rule in the first place. Rather, displaying obvious exasperation with the breadth of substantive federal habeas doctrine and the expansive protection afforded by the Fourteenth Amendment’s guarantee of fundamental fairness in state criminal proceedings, the Court today continues its crusade COLEMAN V. THOMPSON 759 722 Blackmun, J., dissenting to erect petty procedural barriers in the path of any state prisoner seeking review of his federal constitutional claims. Because I believe that the Court is creating a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights, I dissent. I The Court cavalierly claims that “[t]his is a case about federalism,” ante, at 726, and proceeds without explanation to assume that the purposes of federalism are advanced whenever a federal court refrains from reviewing an ambiguous statecourt judgment. Federalism, however, has no inherent normative value: It does not, as the majority appears to assume, blindly protect the interests of States from any incursion by the federal courts. Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power. “Federalism is a device for realizing the concepts of decency and fairness which are among the fundamental principles of liberty and justice lying at the base of all our civil and political institutions.” Brennan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7 Utah L. Rev. 423, 442 (1961). See also The Federalist No. 51, p. 324 (C. Rossiter ed. 1961) (J. Madison) (“Justice is the end of government. It is the end of civil society”). In this context, it cannot lightly be assumed that the interests of federalism are fostered by a rule that impedes federal review of federal constitutional claims. Moreover, the form of federalism embraced by today’s majority bears little resemblance to that adopted by the Framers of the Constitution and ratified by the original States. The majority proceeds as if the sovereign interests of the States and the Federal Government were coequal. Ours, however, is a federal republic, conceived on the principle of a supreme federal power and constituted first and foremost of citizens, not of sovereign States. The citizens expressly declared: “This Constitution, and the Laws of the United States 760 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.” U. S. Const., Art. VI, cl. 2. James Madison felt that a constitution without this Clause “would have been evidently and radically defective.” The Federalist No. 44, p. 286 (C. Rossiter ed. 1961). The ratification of the Fourteenth Amendment by the citizens of the several States expanded federal powers even further, with a corresponding diminution of state sovereignty. See Fitzpatrick v. Bitzer, 427 U. S. 445, 453-456 (1976); Ex parte Virginia, 100 U. S. 339, 344-348 (1880). Thus, “the sovereignty of the States is limited by the Constitution itself.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 548 (1985). Federal habeas review of state-court judgments, respectfully employed to safeguard federal rights, is no invasion of state sovereignty. Cf. Ex parte Virginia, 100 U. S., at 346. Since 1867, Congress has acted within its constitutional authority to “ ‘interpose the federal courts between the States and the people, as guardians of the people’s federal rights— to protect the people from unconstitutional action.’ ” Reed n. Ross, 468 U. S. 1, 10 (1984), quoting Mitchum v. Foster, 407 U. S. 225, 242 (1972). See 28 U. S. C. §2254. Justice Frankfurter, in his separate opinion in Brown v. Allen, 344 U. S. 443, 510 (1953), recognized this: “Insofar as [federal habeas] jurisdiction enables federal district courts to entertain claims that State Supreme Courts have denied rights guaranteed by the United States Constitution, it is not a case of a lower court sitting in judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause of the Constitution whereby federal law is higher than State law.” Thus, the considered exercise by federal courts—in vindication of fundamental constitutional rights—of the habeas jurisdiction conferred on them by Congress exemplifies the full expression of this Nation’s federalism. COLEMAN V. THOMPSON 761 722 Blackmun, J., dissenting That the majority has lost sight of the animating principles of federalism is well illustrated by its discussion of the duty of a federal court to determine whether a state-court judgment rests on an adequate and independent state ground. According to the majority’s formulation, establishing this duty in the federal court serves to diminish the risk that a federal habeas court will review the federal claims of a prisoner in custody pursuant to a judgment that rests upon an adequate and independent state ground. In reality, however, this duty of a federal court to determine its jurisdiction originally was articulated to ensure that federal rights were not improperly denied a federal forum. Thus, the quote artfully reconstituted by the majority, ante, at 736, originally read: “[lit is incumbent upon this Court, when it is urged that the decision of the state court rests upon a non-federal ground, to ascertain for itself, in order that constitutional guarantees may appropriately be enforced, whether the asserted non-federal ground independently and adequately supports the judgment.” Abie State Bank v. Bryan, 282 U. S. 765, 773 (1931) (emphasis added). Similarly, the Court has stated that the duty “cannot be disregarded without neglecting or renouncing a jurisdiction conferred by the law and designed to protect and maintain the supremacy of the Constitution and the laws made in pursuance thereof.” Ward n. Board of Comm’rs of Love County, 253 U. S. 17, 23 (1920). Indeed, the duty arose out of a distinct distrust of state courts, which this Court perceived as attempting to evade federal review. See Broad River Power Co. v. South Carolina ex rel. Daniel, 281 U. S. 537, 540 (1930) (“Even though the constitutional protection invoked be denied on non-federal grounds, it is the province of this Court to inquire whether the decision of the state court rests upon a fair and substantial basis. If unsubstantial, constitutional obligations may not thus be evaded”). From these noble beginnings, the Court has managed to transform the duty to protect federal rights into a selffashioned abdication. Defying the constitutional allocation 762 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. of sovereign authority, the Court now requires a federal court to scrutinize the state-court judgment with an eye to denying a litigant review of his federal claims rather than enforcing those provisions of the Federal Bill of Rights that secure individual autonomy. II Even if one acquiesced in the majority’s unjustifiable elevation of abstract federalism over fundamental precepts of liberty and fairness, the Court’s conclusion that the plainstatement rule of Michigan n. Long does not apply to a summary order defies both settled understandings and compassionate reason. A As an initial matter, it cannot seriously be disputed that the Court’s opinion in Harris v. Reed, 489 U. S. 255 (1989), expressly considered this issue and resolved the question quite contrary to the Court’s holding today. Both Long and Harris involved a federal review of a state-court opinion that, on its face, addressed the merits of the underlying claims and resolved those claims with express reference to both state and federal law. See Long, 463 U. S., at 1037, and n. 3; Harris, 489 U. S., at 257-258. In each case, it was not disputed that the alleged state ground had been invoked: The Court was faced with the question whether that state ground was adequate to support the judgment and independent of federal law. Accordingly, the Long and Harris Courts spoke of state-court judgments that “fairly appea[r] to rest primarily on federal law, or to be interwoven with federal law,” Long, 463 U. S., at 1040, or that contained “ambiguous . . . references to state law.” Harris, 489 U. S., at 263. The majority asserts that these statements establish a factual predicate for the application of the plain-statement rule. Ante, at 735-736. Neither opinion, however, purported to limit the application of the plain-statement rule to the narrow COLEMAN V. THOMPSON 763 722 Blackmun, J., dissenting circumstances presented in the case under review. In fact, the several opinions in Harris make plain that for purposes of federal habeas, the Court was adopting the Long presumption for all cases where federal claims are presented to state courts. The Harris Court expressed its understanding of Long unequivocally: “We held in Long that unless the state court clearly expressed its reliance on an adequate and independent state-law ground, this Court may address a federal issue considered by the state court.” 489 U. S., at 262-263. Armed with that understanding, the Court concluded that “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘“clearly and expressly” ’ states that its judgment rests on a state procedural bar.” Id., at 263, quoting Caldwell n. Mississippi, 472 U. S. 320, 327 (1985), in turn quoting Long, 463 U. S., at 1041. Justice O’Connor, in a concurring opinion joined by The Chief Justice and Justice Scalia, echoed the majority’s indication that the Long presumption applied to all cases where a federal claim is presented to the state courts. She wrote separately to emphasize that the Court’s opinion did not alter the well-settled rule that federal courts may look to state procedural-default rules in determining whether a federal claim has been properly exhausted in the state courts. See 489 U. S., at 268-270. “[I]t is simply impossible,” according to the concurrence, “to ‘[r]equir[e] a state court to be explicit in its reliance on a procedural default’ . . . where a claim raised on federal habeas has never been presented to the state courts at all.” Id., at 270. Certainly, if the Court’s opinion had been limited to cases where the state court’s judgment fairly appeared to rest on federal law or was interwoven with federal law, the point painstakingly made in this concurrence would have been unnecessary. That Harris’ adoption of the plain-statement rule for federal habeas cases was intended to apply to all cases where 764 OCTOBER TERM, 1990 501 U. S. Blackmun, J., dissenting federal claims were presented to the state courts is confirmed by the exchange there between the majority and the dissent. In his dissenting opinion, Justice Kennedy maintained that the Court’s formulation of the plain-statement rule would encourage habeas prisoners whose claims would otherwise be procedurally barred to file “a never-ending stream of petitions for postconviction relief” in hope of being “rewarded with a suitably ambiguous rebuff, perhaps a one-line order finding that a prisoner’s claim ‘lacks merit’ or stating that relief is ‘denied.’” Id., at 282 (emphasis added). The Court responded that “the dissent’s fear . . . that our holding will submerge courts in a flood of improper prisoner petitions is unrealistic: a state court that wishes to rely on a procedural bar rule in a one-line pro forma order easily can write that ‘relief is denied for reasons of procedural default.’ ” Id., at 265, n. 12. The Harris Court’s holding that the plainstatement rule applies to a summary order could not itself have been more plain. Because the majority acknowledges that the Virginia Supreme Court’s dismissal order “adds some ambiguity,” ante, at 744, Harris compels a federal habeas court to provide a forum for the consideration of Coleman’s federal claims. B Notwithstanding the clarity of the Court’s holding in Harris, the majority asserts that Coleman has read the rule announced therein “out of context.” Ante, at 736. I submit, however, that it is the majority that has wrested Harris out of the context of a preference for the vindication of fundamental constitutional rights and that has set it down in a vacuum of rhetoric about federalism. In its attempt to justify a blind abdication of responsibility by the federal courts, the majority’s opinion marks the nadir of the Court’s recent habeas jurisprudence, where the discourse of rights is routinely replaced with the functional dialect of interests. The Court’s habeas jurisprudence now routinely, and without evident reflection, subordinates fundamental constitutional rights to COLEMAN V. THOMPSON 765 722 Blackmun, J., dissenting mere utilitarian interests. See, e. g., McCleskey v. Zant, 499 U. S. 467 (1991). Such unreflective cost-benefit analysis is inconsistent with the very idea of rights. See generally Cover & Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 Yale L. J. 1035, 1092 (1977). The Bill of Rights is not, after all, a collection of technical interests, and “surely it is an abuse to deal too casually and too lightly with rights guaranteed” therein. Brown n. Allen, 344 U. S., at 498 (opinion of Frankfurter, J.). It is well settled that the existence of a state procedural default does not divest a federal court of jurisdiction on collateral review. See Wainwright v. Sykes, 433 U. S. 72, 82-84 (1977). Rather, the important office of the federal courts in vindicating federal rights gives way to the States’ enforcement of their procedural rules to protect the States’ interest in being an equal partner in safeguarding federal rights. This accommodation furthers the values underlying federalism in two ways. First, encouraging a defendant to assert his federal rights in the appropriate state forum makes it possible for transgressions to be arrested sooner and before they influence an erroneous deprivation of liberty. Second, thorough examination of a prisoner’s federal claims in state court permits more effective review of those claims in federal court, honing the accuracy of the writ as an implement to eradicate unlawful detention. See Rose n. Lundy, 455 U. S. 509, 519 (1982); Brown n. Allen, 344 U. S., at 500-501 (opinion of Frankfurter, J.). The majority ignores these purposes in concluding that a State need not bear the burden of making clear its intent to rely on such a rule. When it is uncertain whether a state-court judgment denying relief from federal claims rests on a procedural bar, it is inconsistent with federalism principles for a federal court to exercise discretion to decline to review those federal claims. In justifying its new rule, the majority first announces that, as a practical matter, the application of the Long presumption to a summary order entered in a case where a state 766 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. prisoner presented federal constitutional claims to a state court is unwarranted, because “it is simply not true that the ‘most reasonable explanation’ is that the state judgment rested on federal grounds.” Ante, at 737, quoting Long, 463 U. S., at 1041. The majority provides no support for this flat assertion. In fact, the assertion finds no support in reality. “Under our federal system, the federal and state ‘courts [are] equally bound to guard and protect the rights secured by the Constitution.’” Rose v. Lundy, 455 U. S., at 518, quoting Ex parte Royall, 117 U. S. 241, 251 (1886). Accordingly, state prisoners are required to present their federal claims to state tribunals before proceeding to federal habeas, “to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings.” 455 U. S., at 518. See 28 U. S. C. §2254. Respect for the States’ responsible assumption of this solemn trust compels the conclusion that state courts presented with federal constitutional claims actually resolve those claims unless they indicate to the contrary. Cf. Brown n. Allen, 344 U. S., at 512 (opinion of Frankfurter, J.) (“[The availability of the writ of habeas corpus] does not mean that prison doors may readily be opened. It does mean that explanation may be exacted why they should remain closed”). The majority claims that applying the plain-statement rule to summary orders “would place burdens on the States and state courts,” ante, at 738, suggesting that these burdens are borne independently by the States and their courts. The State, according to the majority, “pays the price” for federal review of state prisoner claims “in terms of the uncertainty and delay” as well as in the cost of a retrial. Id., at 738-739. The majority is less clear about the precise contours of the burden this rule is said to place on state courts, merely asserting that it “would also put too great a burden on the state courts.” Ante, at 739. The majority’s attempt to distinguish between the interests of state courts and the interests of the States in this COLEMAN V. THOMPSON 767 722 Blackmun, J., dissenting context is inexplicable. States do not exist independent of their officers, agents, and citizens. Rather, “[t]hrough the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign.” Gregory n. Ashcroft, ante, at 460. See also Ex parte Virginia, 100 U. S., at 347 (“A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way”). The majority’s novel conception of dichotomous interests is entirely unprecedented. See ibid. (“[H]e [who] acts in the name and for the State, and is clothed with the State’s power, his act is that of the State”). Moreover, it admits of no readily apparent limiting principle. For instance, should a federal habeas court decline to review claims that the state judge committed constitutional error at trial simply because the costs of a retrial will be borne by the State? After all, as the majority asserts, “there is little the State can do about” constitutional errors made by its trial judges. Ante, at 739. Even if the majority correctly attributed the relevant state interests, they are, nonetheless, misconceived. The majority appears most concerned with the financial burden that a retrial places on the States. Of course, if the initial trial conformed to the mandate of the Federal Constitution, not even the most probing federal review would necessitate a retrial. Thus, to the extent the State must “pay the price” of retrying a state prisoner, that price is incurred as a direct result of the State’s failure scrupulously to honor his federal rights, not as a consequence of unwelcome federal review. See Teague v. Lane, 489 U. S. 288, 306 (1989) (opinion of O’Connor, J., joined by Rehnquist, C. J., and Scalia and Kennedy, JJ., quoting Desist v. United States, 394 U. S. 244, 262-263 (1969) (Harlan, J., dissenting)) (“‘[T]he threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards’”). 768 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. The majority also contends without elaboration that a “broad presumption [of federal jurisdiction] would . . . put too great a burden on the state courts.” Ante, at 739. This assertion not only finds no support in Long, where the burden of the presumption on state courts is not even mentioned, but also is premised on the misconception that the plainstatement rule serves only to relieve the federal court of the “bother” of determining the basis of the relevant state-court judgment. Viewed responsibly, the plain-statement rule provides a simple mechanism by which a state court may invoke the discretionary deference of the federal habeas court and virtually insulate its judgment from federal review. While state courts may choose to draw their orders as they wish, the right of a state prisoner, particularly one sentenced to death, to have his federal claim heard by a federal habeas court is simply too fundamental to yield to the State’s incidental interest in issuing ambiguous summary orders. C Not only is the majority’s abandonment of the plainstatement rule for purposes of summary orders unjustified, it is also misguided. In Long, the Court adopted the plainstatement rule because we had “announced a number of principles in order to help us determine” whether ambiguous state-court judgments rested on adequate and independent state grounds, but had “not developed a satisfying and consistent approach for resolving this vexing issue.” 463 U. S., at 1038. Recognizing that “[tjhis ad hoc method of dealing with cases that involve possible adequate and independent state grounds is antithetical to the doctrinal consistency that is required when sensitive issues of federal-state relations are involved,” id., at 1039 (emphasis added), the Court determined that a broad presumption of federal jurisdiction combined with a simple mechanism by which state courts could clarify their intent to rely on state grounds would best “provide state judges with a clearer opportunity to develop state COLEMAN V. THOMPSON 769 722 Blackmun, J., dissenting jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law,” id., at 1041. Today’s decision needlessly resurrects the piecemeal approach eschewed by Long and, as a consequence, invites the intrusive and unsatisfactory federal inquiry into unfamiliar state law that Long sought to avoid. The Court’s decisions in this case and in Ylst v. Nunne-maker, post, p. 797, well reveal the illogic of the ad hoc approach. In this case, to determine whether the admittedly ambiguous state-court judgment rests on an adequate and independent state ground, the Court looks to the “nature of the disposition” and the “surrounding circumstances” that “indicate]” that the basis [of the decision] was procedural default. Ylst, post, at 802. This method of searching for “clues” to the meaning of a facially ambiguous order is inherently indeterminate. Tellingly, both the majority and concurring opinions in this case concede that it remains uncertain whether the state court relied on a procedural default. See ante, at 744 (“There is no doubt that the Virginia Supreme Court’s ‘consideration’ of all filed papers adds some ambiguity”); ante, at 757-758 (White, J., concurring) (“[I]t is as though the court had said that it was granting the motion to dismiss the appeal as untimely because the federal claims were untenable and provided the court no reason to waive the default”). The plain-statement rule effectively and equitably eliminates this unacceptable uncertainty. I cannot condone the abandonment of such a rule when the result is to foreclose federal habeas review of federal claims based on conjecture as to the “meaning” of an unexplained order. The Court’s decision in Ylst demonstrates that we are destined to relive the period where we struggled to develop principles to guide the interpretation of ambiguous state-court orders. In Ylst, the last state court to render a judgment on Nunnemaker’s federal claims was the California Supreme Court. Nunnemaker had filed a petition for habeas corpus in that court, invoking its original jurisdiction. Accordingly, 770 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. the court was not sitting to review the judgment of another state court, but to entertain, as an original matter, Nunne-maker’s collateral challenge to his conviction. The court’s order denying relief was rendered without explanation or citation. Rejecting the methodology employed just today by the Coleman majority, the Ylst Court does not look to the pleadings filed in the original action to determine the “meaning” of the unexplained order. Rather, the Court adopts a broad per se presumption that “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst, post, at 803. This presumption does not purport to distinguish between unexplained judgments that are entered on review of the reasoned opinion and those that are independent thereof. The Ylst Court demonstrates the employment of the presumption by simply ignoring the judgment of the highest court of California, and by looking back to an intermediate court judgment rendered 12 years earlier to conclude that Nunnemaker’s federal claims have been procedurally defaulted. In so concluding, the Court determines that an intervening order by the California Supreme Court, which, with citations to two state-court decisions, denied Nunnemaker’s earlier petition invoking the court’s original jurisdiction, is not “informative with respect to the question,” post, at 805, whether a state court has considered the merits of Nunnemaker’s claims since the procedural default was recognized. Thus, the Court dismisses two determinations of the California Supreme Court, rendered not in review of an earlier state-court judgment but as an exercise of its original jurisdiction, because it finds those determinations not “informative. ” While the Court may comfort itself by labeling this exercise “look[ing] through,” see post, at 804, it cannot be disputed that the practice represents disrespect for the State’s determination of how best to structure its mechanisms for seeking postconviction relief. COLEMAN V. THOMPSON 771 722 Blackmun, J., dissenting Moreover, the presumption adopted by the Ylst Court further complicates the efforts of state courts to understand and accommodate this Court’s federal habeas jurisprudence. Under Long, a state court need only recognize that it must clearly express its intent to rely on a state procedural default in order to preclude federal habeas review in most cases. After today, however, a state court that does not intend to rely on a procedural default but wishes to deny a meritless petition in a summary order must now remember that its unexplained order will be ignored by the federal habeas court. Thus, the state court must review the procedural history of the petitioner’s claim and determine which state-court judgment a federal habeas court is likely to recognize. It then must determine whether that judgment expresses the substance that the court wishes to convey in its summary order, and react accordingly. If the previous reasoned judgment rests on a procedural default, and the subsequent court wishes to forgive that default, it now must clearly and expressly indicate that its judgment does not rest on a state procedural default. I see no benefit in abandoning a clear rule to create chaos. Ill Having abandoned the plain-statement rule with respect to a summary order, the majority must consider Coleman’s argument that the untimely filing of his notice of appeal was the result of attorney error of sufficient magnitude as to constitute cause for his procedural default. In a sleight of logic that would be ironic if not for its tragic consequences, the majority concludes that a state prisoner pursuing state collateral relief must bear the risk of his attorney’s grave errors—even if the result of those errors is that the prisoner will be executed without having presented his federal claims to a federal court—because this attribution of risk represents the appropriate “allocation of costs.” Ante, at 754. Whether unprofessional attorney conduct in a state postconviction proceeding should bar federal habeas review of a state prisoner’s 772 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. conviction and sentence of death is not a question of costs to be allocated most efficiently. It is, rather, another circumstance where this Court must determine whether federal rights should yield to state interests. In my view, the obligation of a federal habeas court to correct fundamental constitutional violations, particularly in capital cases, should not accede to the State’s “discretion to develop and implement programs to aid prisoners seeking to secure postconviction review.” Pennsylvania v. Finley, 481 U. S. 551, 559 (1987). The majority first contends that this Court’s decision in Murray n. Carrier, 477 U. S. 478 (1986), expressly resolves this issue. Of course, that cannot be so, as the procedural default at issue in Murray occurred on direct review, not collateral attack, and this Court has no authority to resolve issues not before it. Moreover, notwithstanding the majority’s protestations to the contrary, the language of Murray strongly suggests that the Court’s resolution of the issue would have been the same regardless of when the procedural default occurred. The Court in Murray explained: “A State’s procedural rules serve vital purposes at trial, on appeal, and on state collateral attack.” 477 U. S., at 490 (emphasis added). Rejecting Carrier’s argument that, with respect to the standard for cause, procedural defaults on appeal should be treated differently from those that occur during the trial, the Court stated that “the standard for cause should not vary depending on the timing of a procedural default or on the strength of an uncertain and difficult assessment of the relative magnitude of the benefits attributable to the state procedural rules that attach at each successive stage of the judicial process.” Id., at 491 (emphasis added). The rule foreshadowed by this language, which the majority today evades, most faithfully adheres to a principled view of the role of federal habeas jurisdiction. As noted above, federal courts forgo the exercise of their habeas jurisprudence over claims that are procedurally barred out of respect for the state interests served by those rules. Recognition of COLEMAN V. THOMPSON 773 722 Blackmun, J., dissenting state procedural forfeitures discourages petitioners from attempting to avoid state proceedings and accommodates the State’s interest in finality. No rule, however, can deter gross incompetence. To permit a procedural default caused by attorney error egregious enough to constitute ineffective assistance of counsel to preclude federal habeas review of a state prisoner’s federal claims in no way serves the State’s interest in preserving the integrity of its rules and proceedings. The interest in finality, standing alone, cannot provide a sufficient reason for a federal habeas court to compromise its protection of constitutional rights. The majority’s conclusion that Coleman’s allegations of ineffective assistance of counsel, if true, would not excuse a procedural default that occurred in the state postconviction proceeding is particularly disturbing because, at the time of Coleman’s appeal, state law precluded defendants from raising certain claims on direct appeal. As the majority acknowledges, under state law as it existed at the time of Coleman’s trial and appeal, Coleman could raise his ineffective-assistance-of-counsel claim with respect to counsel’s conduct during trial and appeal only in state habeas. Ante, at 755. This Court has made clear that the Fourteenth Amendment obligates a State “‘to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process,’” Pennsylvania v. Finley, 481 U. S., at 556, quoting Ross v. Moffitt, 417 U. S. 600, 616 (1974), and “require[s] that the state appellate system be ‘free from unreasoned distinctions,’” id., at 612. While the State may have wide latitude to structure its appellate process as it deems most effective, it cannot, consistent with the Fourteenth Amendment, structure it in such a way as to deny indigent defendants meaningful access. Accordingly, if a State desires to remove from the process of direct appellate review a claim or category of claims, the Fourteenth Amendment binds the State to ensure that the defendant has effective assistance of counsel for the entirety of the procedure 774 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. where the removed claims may be raised. Similarly, fundamental fairness dictates that the State, having removed certain claims from the process of direct review, bear the burden of ineffective assistance of counsel in the proceeding to which the claim has been removed. Ultimately, the Court’s determination that ineffective assistance of counsel cannot constitute cause of a procedural default in a state postconviction proceeding is patently unfair. In concluding that it was not inequitable to apply the cause and prejudice standard to procedural defaults that occur on appeal, the Murray Court took comfort in the “additional safeguard against miscarriages of justice in criminal cases”: the right to effective assistance of counsel. 477 U. S., at 496. The Court reasoned: “The presence of such a safeguard may properly inform this Court’s judgment in determining ‘[w]hat standards should govern the exercise of the habeas court’s equitable discretion’ with respect to procedurally defaulted claims.” Ibid., quoting Reed v. Ross, 468 U. S., at 9. “[Fundamental fairness is the central concern of the writ of habeas corpus.” Strickland v. Washington, 466 U. S. 668, 697 (1984). It is the quintessence of inequity that the Court today abandons that safeguard while continuing to embrace the cause and prejudice standard. I dissent. BLATCHFORD v. NATIVE VILLAGE OF NOATAK 775 Syllabus BLATCHFORD, COMMISSIONER, DEPARTMENT OF COMMUNITY AND REGIONAL AFFAIRS OF ALASKA v. NATIVE VILLAGE OF NOATAK et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 89-1782. Argued February 19, 1991—Decided June 24, 1991 Respondents, Alaska Native villages, brought suit against petitioner, a state official, seeking an order requiring payment to them of money allegedly owed under a state revenue-sharing statute. The District Court dismissed the suit as violating the Eleventh Amendment. The Court of Appeals reversed, first on the ground that 28 U. S. C. § 1362 constituted a congressional abrogation of Eleventh Amendment immunity, and then, upon reconsideration, on the ground that Alaska had no immunity against suits by Indian tribes. Held: 1. The Eleventh Amendment bars suits by Indian tribes against States without their consent. Respondents’ argument that traditional principles of sovereign immunity restrict suits only by individuals, and not by other sovereigns, was rejected in Principality of Monaco v. Mississippi, 292 U. S. 313, 322-323. Nor is there merit to respondents’ contention that the States consented to suits by tribes in the “plan of the convention.” See ibid. Just as in Monaco with regard to foreign sovereigns, see id., at 330, there is no compelling evidence that the Founders thought that the States waived their immunity with regard to tribes when they adopted the Constitution. Although tribes are in some respects more like States—which may sue each other, South Dakota v. North Carolina, 192 U. S. 286, 318—than like foreign sovereigns, it is the mutuality of concession that makes the States’ surrender of immunity from suits by sister States plausible. There is no such mutuality with tribes, which have been held repeatedly to enjoy immunity against suits by States. Oklahoma Tax Comm’n v. Citizen Band of Potawa-tomi Tribe of Okla., 498 U. S. 505, 509. Pp. 779-782. 2. Section 1362—which grants district courts original jurisdiction to hear “all civil actions, brought by any Indian tribe . . . , wherein the matter in controversy arises under” federal law—does not operate to void the Eleventh Amendment’s bar of tribes’ suits against States. Pp. 782-788. 776 OCTOBER TERM, 1990 Syllabus 501 U. S. (a) Assuming the doubtful proposition that the Federal Government’s exemption from state sovereign immunity can be delegated, § 1362 does not embody a general delegation to tribes of the Federal Government’s authority, under United States v. Minnesota, 270 U. S. 181,195, to sue States on the tribes’ behalf. Although Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463—which held that § 1362 revoked as to tribes the Tax Injunction Act’s denial of federal-court access to persons other than the United States seeking injunctive relief from state taxation—equated tribal access to federal court with the United States’ access, it did not purport to do so generally, nor on the basis of a “delegation” theory, nor with respect to constitutional (as opposed to merely statutory) constraints. Pp. 783-786. (b) Nor does § 1362 abrogate Eleventh Amendment immunity. It does not satisfy the standard for congressional abrogation set forth in Dellmuth v. Muth, 491 U. S. 223, 227-228, since it does not reflect an “unmistakably clear” intent to abrogate immunity, made plain “in the language of the statute.” Nor was it a sufficiently clear statement under the less stringent standard of Parden v. Terminal Railway of Alabama Docks Dept., 377 U. S. 184, which case (unlike Dellmuth) had already been decided at the time of § 1362’s enactment in 1966. That case neither mentioned nor was premised on abrogation (as opposed to consensual waiver)—and indeed the Court did not even acknowledge the possibility of congressional abrogation until 1976, Fitzpatrick v. Bitzer, 427 U. S. 445. Pp. 786-788. 3. Respondents’ argument that the Eleventh Amendment does not bar their claim for injunctive relief must be considered initially by the Court of Appeals on remand. P. 788. 896 F. 2d 1157, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, Kennedy, and Souter, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 788. Rex E. Lee argued the cause for petitioner. On the briefs were Charles E. Cole, Attorney General of Alaska, Douglas B. Bailey, former Attorney General, and Gary I. Amendola, Douglas K. Mertz, Jack B. McGee, and William F. Cummings, Assistant Attorneys General. BLATCHFORD v. NATIVE VILLAGE OF NOATAK 777 775 Opinion of the Court Lawrence A. Aschenbrenner argued the cause for respondents. With him on the brief for respondent Native Village of Noatak were Robert T. Anderson, William E. Caldwell, Carol H. Daniel, and Ralph W. Johnson. Michael J. Wal-leri and Alicemary L. Closuit filed a brief for respondent Circle Village.* Justice Scalia delivered the opinion of the Court. We are asked once again to mark the boundaries of state sovereign immunity from suit in federal court. The Court of Appeals for the Ninth Circuit found that immunity did not extend to suits by Indian tribes, and Alaska seeks review of that determination. I In 1980, Alaska enacted a revenue-sharing statute that provided annual payments of $25,000 to each “Native village government” located in a community without a state-chartered *Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Donald J. Hanaway, Attorney General of Wisconsin, and Charles D. Hoomstra, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Don Siegelman of Alabama, Robert K. Corbin of Arizona, John Steven Clark of Arkansas, Duane Woodard of Colorado, Clarine Nardi Riddle of Connecticut, Robert A. Butterworth of Florida, Warren Price III of Hawaii, Jim Jones of Idaho, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike C. Moore of Mississippi, Marc Racicot of Montana, Robert M. Spire of Nebraska, Brian McKay of Nevada, Hal Stratton of New Mexico, Nicholas J. Spaeth of North Dakota, Robert Henry of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Kenneth 0. Eikenberry of Washington, and Joseph B. Meyer of Wyoming; and for the Council of State Governments et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, Clifton S. Elgarten, and Luther Zeigler. Briefs of amici curiae urging affirmance were filed for the Native Village of Tanana et al. by Lloyd Benton Miller, Eric Smith, and David S. Case; and for the Metlakatla Indian Community by Charles A. Hobbs and Christopher T. Stearns. Arlinda F. Locklear, Howard Bichler, Bertram Hirsch, and Milton Rosenberg filed a brief for the Miccosukee Tribe of Indians of Florida et al. as amici curiae. 778 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. municipal corporation. Alaska Stat. Ann. § 29.89.050 (1984). The State’s attorney general believed the statute to be unconstitutional. In his view, Native village governments were “racially exclusive groups” or “racially exclusive organizations” whose status turned exclusively on the racial ancestry of their members; therefore, the attorney general believed, funding these groups would violate the equal protection clause of Alaska’s Constitution. Acting on the attorney general’s advice, the Commissioner of Alaska’s Department of Community and Regional Affairs (petitioner here), enlarged the program to include all unincorporated communities, whether administered by Native governments or not. Shortly thereafter, the legislature increased funding under the program to match its increased scope. Funding, however, never reached the full $25,000 initially allocated to each unincorporated Native community. The legislature repealed the revenue-sharing statute in 1985, see 1985 Alaska Sess. Laws, ch. 90, and replaced it with one that matched the program as expanded by the commissioner. In the same year, respondents filed this suit, challenging the commissioner’s action on federal equal protection grounds, and seeking an order requiring the commissioner to pay them the money that they would have received had the commissioner not enlarged the program. The District Court initially granted an injunction to preserve sufficient funds for the 1986 fiscal year, but then dismissed the suit as violating the Eleventh Amendment. The Court of Appeals for the Ninth Circuit reversed, first on the ground that 28 U. S. C. §1362 constituted a congressional abrogation of Eleventh Amendment immunity, Native Village of Noatak v. Hoffman, 872 F. 2d 1384 (1989) (later withdrawn), and then, upon reconsideration, on the ground that Alaska had no immunity against suits by Indian tribes. 896 F. 2d 1157 (1989). We granted certiorari sub nom. Hoffman v. Native Village of Noatak, 498 U. S. 807 (1990). BLATCHFORD v. NATIVE VILLAGE OF NOATAK 779 775 Opinion of the Court II The Eleventh Amendment provides as follows: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Despite the narrowness of its terms, since Hans v. Louisiana, 134 U. S. 1 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, Welch n. Texas Dept, of Highways and Public Transportation, 483 U. S. 468, 472 (1987) (plurality opinion); Employees of Dept, of Public Health and Welfare of Mo. n. Department of Public Health and Welfare of Mo., 411 U. S. 279, 290-294 (1973) (Marshall, J., concurring in result); and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the “plan of the convention.” See Port Authority Trans-Hudson Corp. v. Feeney, 495 U. S. 299, 304 (1990); Welch, supra, at 474 (plurality opinion); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 238 (1985); Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 99 (1984). Respondents do not ask us to revisit Hans; instead they argue that the traditional principles of immunity presumed by Hans do not apply to suits by sovereigns like Indian tribes. And even if they did, respondents contend, the States have consented to suits by tribes in the “plan of the convention.” We consider these points in turn. In arguing that sovereign immunity does not restrict suit by Indian tribes, respondents submit, first, that sovereign 780 OCTOBER TERM, 1990 501 U. S. Opinion of the Court immunity only restricts suits by individuals against sovereigns, not by sovereigns against sovereigns, and as we have recognized, Oklahoma Tax Comm’n v. Citizen Band of Potawatomi Tribe of Okla., 498 U. S. 505, 509 (1991), Indian tribes are sovereigns. Respondents’ conception of the nature of sovereign immunity finds some support both in the apparent understanding of the Founders and in dicta of our own opinions.1 But whatever the reach or meaning of these early statements, the notion that traditional principles of sovereign immunity only restrict suits by individuals was rejected in Principality of Monaco v. Mississippi, 292 U. S. 313 (1934). It is with that opinion, and the conception of sovereignty that it embraces, that we must begin. In Monaco, the Principality had come into possession of Mississippi state bonds, and had sued Mississippi in federal court to recover amounts due under those bonds. Mississippi defended on grounds of the Eleventh Amendment, among others. Had respondents’ understanding of sovereign immunity been the Court’s, the Eleventh Amendment would not have limited the otherwise clear grant of jurisdic- * JAs Alexander Hamilton said: “It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent.” The Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961) (emphasis added and deleted). James Madison expressed a similar understanding at the Virginia Convention (“It is not in the power of individuals to call any state into court”), 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 533 (2d ed. 1863) (emphasis added), as did Chief Justice Marshall (“[A]n individual cannot proceed to obtain judgment against a state, though he may be sued by a state”), id., at 555-556 (emphasis added). In United States v. Texas, 143 U. S. 621, 645 (1892), we adverted to respondents’ distinction explicitly, describing Hans v. Louisiana, 134 U. S. 1 (1890), as having “proceeded upon the broad ground that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent,”’ 143 U. S., at 645-646, and concluding that “the suability of one government by another government. . . does no violence to the inherent nature of sovereignty.” Id., at 646. BLATCHFORD v. NATIVE VILLAGE OF NOATAK 781 775 Opinion of the Court tion in Article III to hear controversies “between a State . . . and foreign States.” But we held that it did. “Manifestly, we cannot rest with a mere literal application of the words of §2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. . . . There is . . . the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been a ‘surrender of this immunity in the plan of the convention.’ The Federalist, No. 81.” Monaco, supra, at 322-323 (footnote omitted). Our clear assumption in Monaco was that sovereign immunity extends against both individuals and sovereigns, so that there must be found inherent in the plan of the convention a surrender by the States of immunity as to either. Because we perceived in the plan “no ground upon which it can be said that any waiver or consent by a State of the Union has run in favor of a foreign State,” id., at 330, we concluded that foreign states were still subject to the immunity of the States. We pursue the same inquiry in the present case, and thus confront respondents’ second contention: that the States waived their immunity against Indian tribes when they adopted the Constitution. Just as in Monaco with regard to foreign sovereigns, so also here with regard to Indian tribes, there is no compelling evidence that the Founders thought such a surrender inherent in the constitutional compact.2 2 The only evidence alluded to by respondents is a statement by President Washington to Chief Complanter of the Seneca Nation: “Here, then, is the security for the remainder of your lands. No State, nor person, can purchase your lands, unless at some public treaty, held under the authority of the United States. 782 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. We have hitherto found a surrender of immunity against particular litigants in only two contexts: suits by sister States, South Dakota v. North Carolina, 192 U. S. 286, 318 (1904), and suits by the United States, United States v. Texas, 143 U. S. 621 (1892). We have not found a surrender by the United States to suit by the States, Kansas v. United States, 204 U. S. 331, 342 (1907); see Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L. J. 1, 79-80 (1988), nor, again, a surrender by the States to suit by foreign sovereigns, Monaco, supra. Respondents argue that Indian tribes are more like States than foreign sovereigns. That is true in some respects: They are, for example, domestic. The relevant difference between States and foreign sovereigns, however, is not domesticity, but the role of each in the convention within which the surrender of immunity was for the former, but not for the latter, implicit. What makes the States’ surrender of immunity from suit by sister States plausible is the mutuality of that concession. There is no such mutuality with either foreign sovereigns or Indian tribes. We have repeatedly held that Indian tribes enjoy immunity against suits by States, Potawatomi Tribe, supra, at 509, as it would be absurd to suggest that the tribes surrendered immunity in a convention to which they were not even parties. But if the convention could not surrender the tribes’ immunity for the benefit of the States, we do not believe that it surrendered the States’ immunity for the benefit of the tribes. Ill Respondents argue that, if the Eleventh Amendment operates to bar suits by Indian tribes against States without their “If. . . you have any just cause of complaint against [a purchaser], and can make satisfactory proof thereof, the federal courts will be open to you for redress, as to all other persons.” 4 American State Papers, Indian Affairs, Vol. 1, p. 142 (1832). But of course, denying Indian tribes the right to sue States in federal court does not disadvantage them in relation to “all other persons.” Respondents are asking for access more favorable than that which others enjoy. BLATCHFORD v. NATIVE VILLAGE OF NOATAK 783 775 Opinion of the Court consent, 28 U. S. C. § 1362 operates to void that bar. They press two very different arguments, which we consider in turn. A In United States v. Minnesota, 270 U. S. 181 (1926), we held that the United States had standing to sue on behalf of Indian tribes as guardians of the tribes’ rights, and that, since “the immunity of the State is subject to the constitutional qualification that she may be sued in this Court by the United States,” id., at 195, no Eleventh Amendment bar would limit the United States’ access to federal courts for that purpose. Relying upon our decision in Moe v. Confederated Satish and Kootenai Tribes, 425 U. S. 463 (1976), respondents argue that we have read § 1362 to embody a general delegation of the authority to sue on the tribes’ behalf from the Federal Government back to tribes themselves. Hence, respondents suggest, because the United States would face no sovereign immunity limitation, in no case brought under § 1362 can sovereign immunity be a bar. Section 1362 provides as follows: “The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.” What is striking about this most unremarkable statute is its similarity to any number of other grants of jurisdiction to district courts to hear federal-question claims. Compare it, for example, with § 1331(a) as it existed at the time § 1362 was enacted: “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 exclusive of interest and costs, and arises under the Constitution, laws, or 784 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. treaties of the United States.” 28 U. S. C. § 1331(a) (1964 ed.). Considering the text of § 1362 in the context of its enactment, one might well conclude that its sole purpose was to eliminate any jurisdictional minimum for “arising under” claims brought by Indian tribes. Tribes already had access to federal courts for “arising under” claims under § 1331, where the amount in controversy was greater than $10,000; for all that appears from its text, § 1362 merely extends that jurisdiction to claims below that minimum. Such a reading, moreover, finds support in the very title of the Act that adopted § 1362: “To amend the Judicial Code to permit Indian tribes to maintain civil actions in Federal district courts without regard to the $10,000 limitation, and for other purposes.” 80 Stat. 880. Moe, however, found something more in the title’s “other purposes”—an implication that “a tribe’s access to federal court to litigate [federal-question cases] would be at least in some respects as broad as that of the United States suing as the tribe’s trustee,” 425 U. S., at 473 (emphasis added). The “respect” at issue in Moe was access to federal court for the purpose of obtaining injunctive relief from state taxation. The Tax Injunction Act, 28 U. S. C. § 1341, denied such access to persons other than the United States; we held that § 1362 revoked that denial as to Indian tribes. Moe did not purport to be saying that § 1362 equated tribal access with the United States’ access generally, but only “at least in some respects,” 425 U. S., at 473, or “in certain respects,” id., at 474. Respondents now urge us, in effect, to eliminate this limitation utterly—for it is impossible to imagine any more extreme replication of the United States’ ability to sue than replication even to the point of allowing unconsented suit against state sovereigns. This is a vast expansion upon Moe. Section 1341, which Moe held § 1362 to eliminate in its application to tribal suits, was merely a limitation that Congress itself had created—commiting state tax-injunction suits BLATCHFORD v. NATIVE VILLAGE OF NOATAK 785 775 Opinion of the Court to state courts as a matter of comity. Absent that statute, state taxes could constitutionally be enjoined. See Will n. Michigan Dept, of State Police, 491 U. S. 58, 71, n. 10 (1989).3 The obstacle to suit in the present case, by contrast, is a creation not of Congress but of the Constitution. A willingness to eliminate the former in no way bespeaks a willingness to eliminate the latter, especially when limitation to “certain respects” has explicitly been announced. Moreover, as we shall discuss in Part III-B, our cases require Congress’ exercise of the power to abrogate state sovereign immunity, where it exists, to be exercised with unmis-takeable clarity. To avoid that difficulty, respondents assert that § 1362 represents not an abrogation of the States’ sovereign immunity, but rather a delegation to tribes of the Federal Government’s exemption from state sovereign immunity. We doubt, to begin with, that that sovereign exemption can be delegated—even if one limits the permissibility of delegation (as respondents propose) to persons on whose behalf the United States itself might sue. The consent, “inherent in the convention,” to suit by the United States—at the instance and under the control of responsible federal officers — is not consent to suit by anyone whom the United States might select; and even consent to suit by the United States for a particular person’s benefit is not consent to suit by that person himself. But in any event, assuming that delegation of exemption from state sovereign immunity is theoretically possible, there is no reason to believe that Congress ever contemplated such 3 Such injunction suits can only be brought against state officers in their official capacity and not against the State in its own name. Missouri v. Fiske, 290 U. S. 18, 27 (1933). Respondents argue that since the plaintiffs in Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463 (1976), named the State of Montana as a defendant, as well as individual officers, the decision in that case held that § 1362 eliminated not only the statutory bar of § 1341 but sovereign immunity as well. We think not. Since Montana had not objected in this Court on sovereign immunity grounds, its immunity had been waived and was not at issue. 786 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. a strange notion. Even if our decision in Moe could be regarded as in any way related to sovereign immunity, see n. 3, supra, it could nevertheless not be regarded as in any way related to congressional “delegation.” The opinion does not mention that word, and contains not the slightest suggestion of such an analysis. To say that “§ 1362 . . . suggests that in certain respects tribes suing under this section were to be accorded treatment similar to that of the United States had it sued on their behalf,” 425 U. S., at 474, does not remotely imply delegation—only equivalence of treatment. The delegation theory is entirely a creature of respondents’ own invention. B Finally, respondents ask us to recognize § 1362 as a congressional abrogation of Eleventh Amendment immunity. We have repeatedly said that this power to abrogate can only be exercised by a clear legislative statement. As we said in Dellmuth v. Muth, 491 U. S. 223 (1989): “To temper Congress’ acknowledged powers of abrogation with due concern for the Eleventh Amendment’s role as an essential component of our constitutional structure, we have applied a simple but stringent test: ‘Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.’” Id., at 227-228. We agree with petitioner that § 1362 does not reflect an “unmistakably clear” intent to abrogate immunity, made plain “in the language of the statute.” As we have already noted, the text is no more specific than § 1331, the grant of general federal-question jurisdiction to district courts, and no one contends that § 1331 suffices to abrogate immunity for all federal questions.4 4 In asserting that § 1362’s grant of jurisdiction to “all civil actions” suffices to abrogate a State’s defense of immunity, post, at 795-796, the dis- BLATCHFORD v. NATIVE VILLAGE OF NOATAK 787 775 Opinion of the Court Respondents’ argument, however, is not that §1362 is a “clear statement” under the standard of Dellmuth, but rather that it was a sufficiently clear statement under the standard of Parden n. Terminal Railway of Alabama Docks Dept., 377 U. S. 184 (1964), the existing authority for “abrogation” at the time of §1362’s enactment in 1966. In Parden, we found a sufficiently clear intent to avoid state immunity in a statute that subjected to liability “every” common carrier in interstate commerce, where the State, after the statute’s enactment, chose to become a carrier in interstate commerce. Id., at 187-188. Similarly, respondents argue, a statute that grants jurisdiction to district courts to hear “all civil actions, brought by any Indian tribe” should constitute a sufficiently clear expression of intent to abrogate immunity. Dellmuth is not to the contrary, respondents maintain, since the statute there was enacted in the mid-1970’s, long after the rule of Parden had been drawn into question. Dellmuth, supra, at 231. We shall assume for the sake of argument (though we by no means accept) that Congress must be presumed to have had as relatively obscure a decision as Parden in mind as a back-drop to all its legislation. But even if Congress were aware of Par deri s minimal clarity requirement, nothing in Parden could lead Congress to presume that that requirement applied to the abrogation of state immunity. Parden itself neither mentioned nor was premised upon abrogation. Its theory was that, by entering a field of economic activity that is federally regulated, the State impliedly “consent[s]” to be sent has just repeated the mistake of the Court in Chisholm v. Georgia, 2 Dall. 419 (1793), see id., at 434-450 (Iredell, J., dissenting), the case that occasioned the Eleventh Amendment itself. The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim. The issues are wholly distinct. A State may waive its Eleventh Amendment immunity, and if it does, § 1362 certainly would grant a district court jurisdiction to hear the claim. The dissent’s view returns us, like Sisyphus, to the beginning of this 200-year struggle. 788 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. bound by that regulation and to be subject to suit in federal court on the same terms as other regulated parties, thus “waiv[ing]” its Eleventh Amendment immunity. 377 U. S., at 186. Not until 1976 (10 years after the passage of § 1362) did we first acknowledge a congressional power to abrogate state immunity—under §5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). Thus, Parden would have given Congress no reason to believe it could abrogate state sovereign immunity and gives us no reason to believe that Congress intended abrogation by a means so subtle as § 1362. At the time § 1362 was enacted, abrogation would have been regarded as such a novel (not to say questionable) course that a general “arising under” statute like §1362 would not conceivably have been thought to imply it. We conclude that neither under the current standard of Dellmuth nor under any standard in effect at the time of Parden was § 1362 an abrogation of state sovereign immunity.6 IV Finally, respondents argue that even if the Eleventh Amendment bars their claims for damages, they still seek injunctive relief, which the Eleventh Amendment would not bar. The Court of Appeals, of course, did not address this point, and we leave it for that court’s initial consideration on remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Blackmun, with whom Justice Marshall and Justice Stevens join, dissenting. The Court today holds that our Eleventh Amendment precludes Native American tribes from seeking to vindicate in 6 Because we find that § 1362 does not enable tribes to overcome Alaska’s sovereign immunity, we express no view on whether these respondents qualify as “tribes” within the meaning of that statute. BLATCHFORD v. NATIVE VILLAGE OF NOATAK 789 775 Blackmun, J., dissenting federal court rights they regard as secured to them by the United States Constitution. Because the Court resolves this case through reliance on a doctrine I cannot accept, and because I believe its construction of the pertinent jurisdictional statute to be otherwise flawed, I dissent. I As some of us previously have stated, see Atascadero State Hospital v. Scanlon, 473 U. S. 234, 302 (1985) (dissenting opinion), I do not believe the Eleventh Amendment is implicated by a suit such as this one, in which litigants seek to vindicate federal rights against a State. In my view, the Amendment has no application outside the context of State/ citizen and State/alien diversity suits.* Put another way, “[t]here simply is no constitutional principle of state sovereign immunity, and no constitutionally mandated policy of excluding suits against States from federal court.” Id., at 259 (Brennan, J., dissenting). The substantial historical analysis that supports this view already has been exhaustively detailed, see id., at 258-302 (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting); Welch v. Texas Dept, of Highways and Public Transportation, 483 U. S. 468, 497 (1987) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting); Pennsylvania v. Union Gas Co., 491 U. S. 1, 23 (1989) (Stevens, J., concurring); Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 140-159 (1984) (Stevens, J., joined by Brennan, Marshall, and Blackmun, JJ., dissenting), and I shall not repeat it here. It bears emphasis, however, that the Court need not have compounded the error of Hans n. Louisiana, 134 U. S. 1 *The Eleventh Amendment reads: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” 790 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. (1890), and its progeny by extending the doctrine of state sovereign immunity to bar suits by tribal entities, which are neither “Citizens of another State,” nor “Citizens or Subjects of any Foreign State.” II Even assuming that the State at one time may have possessed immunity against tribal suits, that immunity was abrogated by Congress when, in 1966, 80 Stat. 880, it enacted 28 U. S. C. §1362. The majority rejects this argument, holding that § 1362 cannot authorize respondents’ suit because the statute’s language does not reflect an “unmistakably clear” intent to abrogate the States’ sovereign immunity. Ante, at 786. I have never accepted the validity of that so-called “clear-statement rule” and I remain of the view, expressed by Justice Brennan for four of us in Atascadero, that such “special rules of statutory drafting are not justified (nor are they justifiable) as efforts to determine the genuine intent of Congress .... [T]he special rules are designed as hurdles to keep the disfavored suits out of the federal courts.” 473 U. S., at 254. Even if I were to accept the proposition that the clearstatement rule at times might serve as a mechanism for discerning congressional intent, I surely would reject its application here. Despite the Court’s attempt to give it a constitutional cast, the clear-statement rule, at bottom, is a tool of statutory construction like any other. So it must be, for the Judiciary has no power to redraw legislative enactments; where Congress has the authority to regulate a sphere of activity, we simply must do our best to determine whether it has done so in any particular instance. The majority’s rule is one method for accomplishing that task. It is premised on the perception that Congress does not casually alter the “balance of power” between the Federal Government and the States. Id., at 242. Because federal intrusion into state authority is the unusual case, and because courts are to use caution in determining when their own jurisdiction BLATCHFORD v. NATIVE VILLAGE OF NOATAK 791 775 Blackmun, J., dissenting has been expanded, id., at 243, this Court has erected the clear-statement rule in order to be certain that abrogation is Congress’ plan. Whatever the validity of that determination may be generally, it cannot extend to matters concerning federal regulation of Native American affairs; in that sphere of governmental operations, the “balance of power” always has weighed heavily against the States and in favor of the Federal Government. Indeed, “[t]he plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself.” Morton v. Mancari, 417 U. S. 535, 551-552 (1974). Illustrative of this principle are our cases holding that the law of the State is generally inapplicable to Native American affairs, absent the consent of Congress. See, e. g., Worcester v. Georgia, 6 Pet. 515 (1832). Chief Justice Marshall explained for the Court in Worcester that a federally recognized tribe “is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of [the State] can have no force, and which the citizens of [the State] have no right to enter, but with the assent of the [tribes] themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this nation, is, by our Constitution and laws, vested in the government of the United States.” Id., at 561. Despite the States’ undeniable interest in regulating activities within its borders, and despite traditional principles of federalism, the States’ authority has been largely displaced in matters pertaining to Native Americans. See The Kansas Indians, 5 Wall. 737 (1867) (finding state taxes inapplicable to tribal lands despite partial assimilation of tribe into white society); United States v. Kagama, 118 U. S. 375 (1886) (sustaining validity of a prosecution of Native Americans in federal court under the Indian Major Crimes Act). Moreover, 792 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. federal displacement of state authority regarding Native American affairs has not been limited to the geographic boundaries of “Indian country,” see Antoine v. Washington, 420 U. S. 194 (1975) (holding that Congress may constitutionally inhibit a State’s exercise of its police power over nonIndian land through federal legislation ratifying an agreement with a tribe), nor to state regulations that directly infringe upon tribal self-government. See McClanahan n. Arizona State Tax Comm’n, 411 U. S. 164, 179-180 (1973). Thus, in this area, the pertinent “balance of power” is between the Federal Government and the tribes, with the States playing only a subsidiary role. Because spheres of activity otherwise susceptible to state regulation are, “according to the settled principles of our Constitution, . . . committed exclusively to the government of the Union,” Worcester v. Georgia, 6 Pet., at 561, where Native American affairs are concerned, the presumptions underlying the clear-statement rule, and thus the rule itself, have no place in interpreting statutes pertaining to the tribes. Employing the traditional tools of statutory interpretation, I conclude that Congress intended, through § 1362, to authorize constitutional claims for damages by tribes against the States. Section 1362 provides: “The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.” (Emphasis added.) The majority notes, correctly, that this language is no broader than that of 28 U. S. C. § 1331(a), as it existed at the time § 1362 was enacted. Ante, at 784. As the preceding discussion makes clear, however, this is an area in which “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921). A review of the BLATCHFORD v. NATIVE VILLAGE OF NOATAK 793 775 Blackmun, J., dissenting history of the latter statute reveals that Congress intended § 1362 to have a broader reach. Prior to 1966, the Indian tribes were largely dependent upon the United States Government to enforce their rights against state encroachment. See, e. g., United States v. Minnesota, 270 U. S. 181 (1926). This arrangement derived from the historic trust relationship between the tribes and the United States. See F. Cohen, Handbook of Federal Indian Law 308 (1982 ed.). In seeking judicial protection of tribal interests, the Federal Government, of course, was unrestrained by the doctrine of state sovereign immunity. United States v. Minnesota, 270 U. S., at 195, citing United States v. Texas, 143 U. S. 621 (1892). In 1966, Congress enacted 28 U. S. C. § 1362 as part of a larger national policy of “self-determination” for the Native American peoples. See M. Price & R. Clinton, Law and the American Indian 86-91 (2d ed. 1983). Consistent with that policy, “Congress contemplated that §1362 would be used particularly in situations in which the United States suffered from a conflict of interest or was otherwise unable or unwilling to bring suit as trustee for the Indians.” Arizona v. San Carlos Apache Tribe, 463 U. S. 545, 560, n. 10 (1983). In other words, Congress sought to eliminate the tribes’ dependence upon the United States for the vindication of federal rights in the federal courts. In light of that legislative purpose, we held in Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463 (1976), that the Tax Injunction Act, 28 U. S. C. § 1341, does not bar an action to enjoin the collection of state taxes brought by a tribe pursuant to § 1362, although it precludes such a suit by a private litigant. Construing § 1362, we identified a congressional intent that “a tribe’s access to federal court to litigate a matter arising ‘under the Constitution, laws, or treaties’ would be at least in some respects as broad as that of the United States suing as the tribe’s trustee.” 425 U. S., at 473. Because the Federal Government could have brought 794 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. such a suit on the tribes’ behalf, see Heckman v. United States, 224 U. S. 413 (1912), we held that the tribes were similarly empowered by § 1362. I agree with respondents that the litigation authority bestowed on the tribes through § 1362 also includes the right to bring federal claims against the States for damages. The legislative history of the statute reveals Congress’ intention that the tribes bring litigation “involving issues identical to those” that would have been raised by the United States acting as trustee for the tribes. H. R. Rep. No. 2040, 89th Cong., 2d Sess., 2 (1966) (House Report). There is no reason to believe that this authority would be limited to prospective relief in the broad range of suits brought against the States. Fundamentally, the vindication of Native American rights has been the institutional responsibility of the Federal Government since the Republic’s founding. See, e. g., Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831). Section 1362 represents a frank acknowledgment by the Government that it often lacks the resources or the political will adequately to fulfill this responsibility. Given this admission, we should not lightly restrict the authority granted the tribes to defend their own interests. Rather, the most reasoned interpretation of § 1362 is as a congressional authorization to bring those suits that are necessary to vindicate fully the federal rights of the tribes. It hardly requires explication that monetary remedies are often necessary to afford such relief. Providing “the means whereby the tribes are assured of the same judicial determination whether the action is brought in their behalf by the Government or by their own attorneys,” House Report, at 2-3, necessarily entails access to monetary redress from the States where federal rights have been violated. In resisting this conclusion, the majority asserts that, because the Tax Injunction Act is merely a congressional enactment while the doctrine of sovereign immunity is a constitu- BLATCHFORD v. NATIVE VILLAGE OF NOATAK 795 775 Blackmun, J., dissenting tional one, a “willingness to eliminate the former in no way bespeaks a willingness to eliminate the latter.” Ante, at 785. But the premise does not lead to the conclusion. Congress, through appropriate legislation, may abrogate state sovereign immunity, just as it may repeal or amend its own prior enactments. Moreover, the Tax Injunction Act, like the sovereign immunity doctrine, is rooted in historical notions of federalism and comity. See Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100, 103 (1981), and cases cited therein. In light of these parallels, I find the expansive congressional purpose the Court identified in Moe to provide substantial support for the proposition that § 1362 was intended to convey federal jurisdiction over “all civil actions,” § 1362 (emphasis added), brought by recognized tribes that the Government could have brought on their behalf. “Finally, in construing this ‘admittedly ambiguous’ statute, Board of Comm’rs v. Seber, [318 U. S. 705, 713 (1943)], we must be guided by that ‘eminently sound and vital canon,’ Northern Cheyenne Tribe v. Hollowbreast, 425 U. S. 649, 655 n. 7 (1976), that ‘statutes passed for the benefit of dependent Indian tribes . . . are to be liberally construed, doubtful expressions being resolved in favor of the Indians.’ Alaska Pacific Fisheries n. United States, 248 U. S. 78, 89 (1918).” Bryan N. Itasca County, 426 U. S. 373, 392 (1976). Unlike the ill-conceived interpretive rule adopted so recently in Atascadero, this canon of construction dates back to the earliest years of our Nation’s history. See, e. g., Worcester n. Georgia, 6 Pet., at 582; The Kansas Indians, 5 Wall. 737 (1867); Choate n. Trapp, 224 U. S. 665, 675 (1912). Indeed, it is rooted in the unique trust relationship between the tribes and the Federal Government that is inherent in the constitutional plan. See U. S. Const., Art. I, §8, cl. 3; Art. I, §2, cl. 3. In light of this time-honored principle of construction, it requires no linguistic contortion to read § 1362’s grant of federal jurisdiction over “all civil actions” to encom 796 OCTOBER TERM, 1990 Blackmun, J., dissenting 501 U. S. pass all tribal litigation that the United States could have brought as the tribes’ guardian. Ill Having concluded that respondents’ suit may be brought in federal court, I agree with the Court of Appeals that respondents are recognized “tribe[s] or band[s]” for purposes of § 1362, and that they have alleged a federal cause of action. Accordingly, I would affirm the judgment of the Court of Appeals. I respectfully dissent from this Court’s reversal of that judgment. YLST v. NUNNEMAKER 797 Syllabus YLST, WARDEN v. NUNNEMAKER CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 90-68. Argued March 19, 1991—Decided June 24, 1991 Following his California murder conviction, respondent raised a Miranda claim for the first time on direct appeal, in violation of a state procedural rule. In affirming the conviction, the State Court of Appeal rejected the claim on the sole basis of the procedural bar. After successive petitions for collateral relief were denied without opinion by the State Superior Court and Court of Appeal, respondent filed a habeas petition in the State Supreme Court, which denied relief without opinion or explanation, citing its decisions in In re Swain and In re Waltreus. When the State Supreme Court denied, without opinion or citation, a second habeas petition to it, respondent filed a habeas petition raising the Miranda claim in Federal District Court. That court found that the state procedural default barred federal review, but the Court of Appeals reversed this determination. Relying on this Court’s statement in Harris v. Reed, 489 U. S. 255, 263, that state procedural default bars federal review only when the state court clearly and expressly states its reliance on that ground, the court held that the State Supreme Court’s “silent denial” of respondent’s second state habeas petition lifted the procedural bar imposed on direct review. Held: A state court’s unexplained denial of a habeas petition raising federal claims is not sufficient, for purposes of federal review, to lift a procedural bar imposed on direct appeal. Pp. 801-806. (a) The Court of Appeals erred in applying a presumption that when a state court denies a federal claim without explicit reliance on state grounds, the merits of the federal claim are the basis for the judgment. The Harris presumption in favor of federal review is to be applied only after it has been determined that “the relevant state court decision . . . fairly appear[s] to rest primarily on federal law or [is] interwoven with [federal] law.” Coleman v. Thompson, ante, at 740. P. 802. (b) With respect to unexplained state-court judgments, federal habeas courts should apply the following presumption: where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion “fairly appear[s] to rest primarily upon federal law,” it should be presumed that no procedural default has been invoked by a subsequent unexplained order that leaves the judg 798 OCTOBER TERM, 1990 Syllabus 501 U. S. ment or its consequences in place. Similarly, where the last reasoned opinion on the claim explicitly imposes a procedural default, it should be presumed that a later decision rejecting the claim did not silently disregard the bar and consider the merits. This “look-through” presumption may be rebutted by strong evidence to the contrary. Pp. 803-804. (c) The last explained state-court judgment on respondent’s Miranda claim was that of the Court of Appeal on direct review, which unequivocally rested upon a state procedural default. None of the later judgments or orders was informative on the reason for denying the Miranda claim, nor has respondent adduced strong evidence that one of them reached the merits of that claim. Thus, federal-court review is barred unless respondent can establish “cause and prejudice” for his default, see Murray v. Carrier, 477 U. S. 478, 493, 495-496. On remand, the Court of Appeals must determine whether he has done so. Pp. 805-806. 904 F. 2d 473, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, Kennedy, and Souter, JJ., joined. White, J., filed a concurring opinion, post, p. 806. Blackmun, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 807. Clifford K. Thompson, Jr., Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were Daniel E. Lungren, Attorney General of California, John K. Van de Kamp, former Attorney General, George H. Williamson, Chief Assistant Attorney General, Richard B. Iglehart, former Chief Assistant Attorney General, John H. Sugiyama, Senior Assistant Attorney General, and Ronald E. Niver, Deputy Attorney General. Juliana Drous, by appointment of the Court, 498 U. S. 997, argued the cause and filed a brief for respondent.* *Briefs of amici curiae urging reversal were filed for the State of Arizona et al. by Robert K. Corbin, Attorney General of Arizona, Ronald L. Crismon, and Joseph T. Maziarz, Assistant Attorney General, Charles E. Cole, Attorney General of Alaska, John J. Kelly, Chief State’s Attorney of Connecticut, Robert A. Butterworth, Attorney General of Florida, Jim Jones, Attorney General of Idaho, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Brian McKay, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, Lacy H. Thornburg, Attorney General of North Carolina, Ernest YLST v. NUNNEMAKER 799 797 Opinion of the Court Justice Scalia delivered the opinion of the Court. In this case we decide whether the unexplained denial of a petition for habeas corpus by a state court lifts a state procedural bar imposed on direct appeal, so that a state prisoner may then have his claim heard on the merits in a federal habeas proceeding. I In 1975, respondent Nunnemaker was tried in California state court for murder. He raised a defense of diminished capacity and introduced psychiatric testimony in support. In response, the State introduced—without objection from respondent—the testimony of a psychiatrist based upon a custodial interview. The jury found respondent guilty. He appealed, claiming for the first time that the State’s psychiatric testimony was inadmissible because the interview had not been preceded by a Miranda warning, see Miranda v. Arizona, 384 U. S. 436 (1966). In addition, he alleged that his attorney’s failure to object to the psychiatric testimony amounted to ineffective assistance of counsel, and raised other claims not relevant here. The California Court of Appeal affirmed the conviction. The sole basis for its rejection of the Miranda claim was the state procedural rule that “an objection based upon a Miranda violation cannot be raised for the first time on appeal.” App. 15. See People v. Bennett, 60 Cal. App. 3d 112,116,131 Cal. Rptr. 305, 306-307 (1976); Inre Dennis M., 70 Cal. 2d 444, 461-462, 450 P. 2d 296, 306-307 (1969). The California Supreme Court denied discretionary review on September 27, 1978. D. Preate, Jr., Attorney General of Pennsylvania, Paul Van Dam, Attorney General of Utah, Mary Sue Terry, Attorney General of Virginia, and Kenneth O. Eikenberry, Attorney General of Washington; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the Office of the Wayne County Prosecuting Attorney by John D. O’Hair, pro se, and Timothy A. Baughman. 800 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. In 1985, respondent filed a petition for collateral relief in California Superior Court. The petition was denied without opinion. Respondent then filed a similar petition for relief in the California Court of Appeal, invoking that court’s original jurisdiction. That petition was also denied without opinion. Finally, respondent filed a petition for habeas corpus in the California Supreme Court, invoking the original jurisdiction of that tribunal. That petition was denied on December 3, 1986, with citation of In re Swain, 34 Cal. 2d 300, 304, 209 P. 2d 793, 796 (1949), and In re Waltreus, 62 Cal. 2d 218, 225, 397 P. 2d 1001, 1005 (1965). App. 82. No opinion or other explanation accompanied these citations. Respondent next filed a petition for writ of habeas corpus in the United States District Court for the Northern District of California. The court dismissed the petition without prejudice, ruling that it was not clear whether respondent had exhausted his state remedies with respect to all his claims.1 See Rose v. Lundy, 455 U. S. 509 (1982). Respondent then filed a second petition for habeas relief in the California Supreme Court, again invoking that court’s original jurisdiction. That petition was denied, without opinion or case citation, on April 7, 1988. Respondent then filed a second petition for habeas relief in the Northern District of California, raising the Miranda claim and the ineffectiveness claim. The court rejected the ineffectiveness claim on the merits. As to the Miranda claim, the court found that respondent’s state procedural default barred federal review. Respondent appealed. The Court of Appeals for the Ninth Circuit reversed in part. The court agreed that the ineffective-assistance claim was 1 In fact he had. The California Court of Appeal decision on direct review shows that all claims, including the Miranda claim and the ineffectiveness claim, were presented to, and specifically addressed by, that court. See App. 15, 17. The District Court’s mistake on this point was apparently caused by respondent’s own statement “that none of his claims were [sic] raised by way of direct appeal.” Id., at 83. YLST v. NUNNEMAKER 801 797 Opinion of the Court meritless. However, relying upon our intervening opinion in Harris v. Reed, 489 U. S. 255 (1989), the court held that the California Supreme Court’s “silent denial” of respondent’s second state habeas petition to that court lifted the procedural bar arising from the decision on direct review. Specifically, the Ninth Circuit held that because the California Supreme Court did not “clearly and expressly state its reliance on Nunnemaker’s procedural default,” the federal court could not say that the Supreme Court’s order “was based on a procedural default rather than on the underlying merits of Nunnemaker’s claims.” 904 F. 2d 473, 476 (1990). We granted certiorari, 498 U. S. 957 (1990). II The last state court to render a judgment on the Miranda claim as of 1978, the California Court of Appeal, expressly found a procedural default. When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court. Wainwright n. Sykes, 433 U. S. 72, 87-88 (1977); Murray v. Carrier, 477 U. S. 478, 485-492 (1986). Thus, had respondent proceeded to federal habeas on the basis of the Miranda claim upon completing his direct review in 1978, federal review would have been barred by the state-law procedural default. State procedural bars are not immortal, however; they may expire because of later actions by state courts. If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available. See Harris, supra, at 262. We consider, therefore, whether the California Supreme Court’s unexplained order denying his second habeas petition to that court, which according to the Ninth Circuit sought relief on the basis of his Miranda claim, constituted a “decision on the merits” of that claim sufficient to lift the procedural bar imposed on direct appeal. 802 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. The Ninth Circuit concluded that it did constitute a decision on the merits by applying a presumption that when a federal claim is denied without explicit reliance on state grounds, the merits of the federal claim are the basis for the judgment. Petitioner argues that that was error,2 and we agree. The Ninth Circuit thought itself to be following our decision in Harris v. Reed, supra, at 263. As we have since made clear, however, see Coleman v. Thompson, ante, p. 722, the Harris presumption is to be applied only after it has been determined that “the relevant state court decision . . . fairly appear[s] to rest primarily on federal law or [is] interwoven with [federal] law.” Ante, at 740. The consequent question presented by the present case, therefore, is how federal courts in habeas proceedings are to determine whether an unexplained order (by which we mean an order whose text or accompanying opinion does not disclose the reason for the judgment) rests primarily on federal law. The question is not an easy one. In Coleman itself, although the order was unexplained, the nature of the disposition (“dismissed” rather than “denied”) and surrounding circumstances (in particular the fact that the State had rested its argument entirely upon a procedural bar), indicated that the basis was procedural default. But such clues 2 Petitioner also argues that in California original habeas corpus jurisdiction is discretionary, so that denial of a petition is not a “judgment,” and the last state-court “judgment” to which we should look is that of the Court of Appeal on direct review. Respondent concedes that a discretionary denial of review cannot lift a pre-existing procedural bar, and the federal courts are in accord. See Goodwin v. Collins, 910 F. 2d 185, 187 (CA5 1990); Prihoda v. McCaughtry, 910 F. 2d 1379, 1382-1383 (CA7 1990). Respondent denies, however, that California courts have any discretion not to entertain habeas corpus petitions. The state law on this question is not clear, and we shall assume for purposes of this case that respondent is right. We also assume, since the point has not been argued, that Miranda claims such as that raised by respondent are cognizable in federal habeas corpus. See Duckworth v. Eagan, 492 U. S. 195, 205-214 (1989) (O’Connor, J., concurring); cf. Stone v. Powell, 428 U. S. 465 (1976). YLST v. NUNNEMAKER 803 797 Opinion of the Court will not always, or even ordinarily, be available. Indeed, sometimes the members of the court issuing an unexplained order will not themselves have agreed upon its rationale, so that the basis of the decision is not merely undiscoverable but nonexistent. The problem we face arises, of course, because many formulary orders are not meant to convey anything as to the reason for the decision. Attributing a reason is therefore both difficult and artificial. We think that the attribution necessary for federal habeas purposes can be facilitated, and sound results more often assured, by applying the following presumption: Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion “fairly appearfs] to rest primarily upon federal law,” Coleman, ante, at 740, we will presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place. Similarly where, as here, the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits. This approach accords with the view of every Court of Appeals to consider the matter, save the court below. See Prihoda v. McCaughtry, 910 F. 2d 1379,1383 (CA71990) (dicta); Harmon v. Barton, 894 F. 2d 1268, 1272 (CA11 1990); Evans v. Thompson, 881 F. 2d 117, 123, n. 2 (CA4 1989); Ellis v. Lynaugh, 873 F. 2d 830, 838 (CA5 1989). This presumption assists, as we have said, not only admin-istrability but accuracy as well—unlike the application of Harris to unexplained orders, which achieves the former at the expense of the latter. As applied to an unexplained order leaving in effect a decision (or, in the case of habeas, the consequences of a decision) that expressly relies upon procedural bar, the Harris presumption would interpret the order as rejecting that bar and deciding the federal question 804 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. on the merits. That is simply a most improbable assessment of what actually occurred. The maxim is that silence implies consent, not the opposite—and courts generally behave accordingly, affirming without further discussion when they agree, not when they disagree, with the reasons given below. The essence of unexplained orders is that they say nothing. We think that a presumption which gives them no effect — which simply “looks through” them to the last reasoned decision-most nearly reflects the role they are ordinarily intended to play.3 Respondent poses various hypotheticals in which this presumption would not produce a correct assessment of the state-court disposition. We need not consider them, because we do not suggest that the presumption is irrebuttable; strong evidence can refute it. It might be shown, for example, that even though the last reasoned state-court opinion had relied upon a procedural default, a retroactive change in law had eliminated that ground as a basis of decision, and the court which issued the later unexplained order had directed extensive briefing limited to the merits of the federal claim. Or it might be shown that, even though the last reasoned state-court opinion had relied upon a federal ground, the later appeal to the court that issued the unexplained order was plainly out of time, and that the latter court did not ordinarily waive such a procedural default without saying so. 3 The only common circumstance in which the presumption is unrealistic is that in which the later state decision rests upon a prohibition against further state review—for example, an unexplained denial of state habeas resting in fact upon a rule (such as petitioner contends exists in California) preventing the relitigation on state habeas of claims raised on direct appeal. In that circumstance, even though the presumption does not posit the real reason for the later denial, it does produce a result (“looking through” to the last reasoned decision) that is the correct one for federal habeas courts. Since a later state decision based upon ineligibility for further state review neither rests upon procedural default nor lifts a pre-existing procedural default, its effect upon the availability of federal habeas is nil—which is precisely the effect accorded by the “look-through” presumption. YLST v. NUNNEMAKER 805 797 Opinion of the Court While we acknowledge that making the presumption rebuttable will make it less efficient than the categorical approach taken by the Courts of Appeals that have adopted the “look-through” methodology, see Prihoda, supra, at 1383; Harmon, supra, at 1272; Evans, supra, at 123, n. 2; Ellis, supra, at 838, we think it will still simplify the vast majority of cases. The details of state law need not be inquired into unless, if they should be as the habeas petitioner asserts, they would constitute strong evidence that the presumption, as applied, is wrong. To decide the present case, therefore, we begin by asking which is the last explained state-court judgment on the Miranda claim. Obviously it is not the second denial of habeas by the California Supreme Court; although that was the last judgment, it said absolutely nothing about the reasons for the denial. The first denial of habeas by that court, on December 3, 1986, did cite (without any elaboration) two state cases, Swain and Waltreus. The former holds that facts relied upon in a habeas petition must be alleged with particularity, and the latter that claims presented on direct review ordinarily may not be relitigated on state habeas. Even if we knew that the court intended to apply both of these cases to the Miranda claim (as opposed to the other claims raised by the same petition), that would be irrelevant to the point before us here. Respondent had exhausted his Miranda claim by presenting it on direct appeal, and was not required to go to state habeas at all, see Castille v. Peoples, 489 U. S. 346, 349-350 (1989); state rules against that superfluous recourse have no bearing upon his ability to raise the Miranda claim in federal court. Thus, although the California Supreme Court’s denial of respondent’s first habeas petition to it was not utterly silent, neither was it informative with respect to the question before us. The prior denials of respondent’s state habeas petitions by the two lower California courts were silent; and, as discussed above, the discretionary denial of review on direct appeal by 806 OCTOBER TERM, 1990 White, J., concurring 501 U. S. the California Supreme Court is not even a “judgment.” Thus, the last state opinion on the Miranda claim is that of the Court of Appeal on direct review, and that opinion unequivocally rested upon a state procedural default. We look through the subsequent unexplained denials to that opinion, unless respondent has carried his burden of adducing strong evidence that one of the subsequent courts reached the merits of the federal claim. He has not done so. He claims to be able to show that California habeas courts could have allowed him to relitigate his Miranda claim, in spite of the ordinary state rule barring relitigation of claims raised on direct appeal. See, e. g., Waltreus, 62 Cal. 2d, at 225, 397 P. 2d, at 1005. But even if he established that, to prove that they could do so is not to prove that they did do so—much less to prove that, having done so, they decided the relitigated point on the merits rather than on the basis of the procedural default relied upon in 1978. Respondent has adduced nothing to show that any California court actually reached the merits of his federal claim. The presumption that the California Supreme Court’s last unexplained order did not reach the merits, and that the bar of procedural default subsists, has not been overcome. Federal-court review of the claim is therefore barred unless respondent can establish “cause and prejudice” for the default, see Murray v. Carrier, 477 U. S., at 493, 495-496. The District Court specifically found no cause and prejudice, but, since the Court of Appeals had no occasion to review that holding, we remand for that purpose. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. Justice White, concurring. I join the opinion and judgment of the Court but add these few words. Had the Court of Appeals stated that as a matter of state law, the State Supreme Court’s summary, unexplained denial of an original petition for habeas corpus is a YLST v. NUNNEMAKER 807 797 Blackmun, J., dissenting ruling on the merits, the presumption the Court’s opinion articulates in this case would be rebutted unless we disagreed with the Court of Appeals with respect to state law. The Court of Appeals, however, did not so state but in effect said that the state court’s order was ambiguous. Hence, the presumption governs. I also note that Coleman n. Thompson, ante, at 739, stated that the presumption of Harris n. Reed, 489 U. S. 255 (1989), “applies only when it fairly appears that a state-court judgment rested primarily on federal law or was interwoven with federal law, that is, in those cases where a federal court has good reason to question whether there is an independent and adequate state ground for the decision.” In joining the Court’s opinion in the case before us, I take it that the opinion’s bobtailed quotation from Coleman, ante, at 802, is not intended to restrict the reach of the presumption. Justice Blackmun, with whom Justice Marshall and Justice Stevens join, dissenting. For the reasons stated in the dissent in Coleman v. Thompson, ante, p. 758, I also dissent in this case. 808 OCTOBER TERM, 1990 Syllabus 501 U. S. PAYNE v. TENNESSEE CERTIORARI TO THE SUPREME COURT OF TENNESSEE No. 90-5721. Argued April 24, 1991—Decided June 27, 1991 Petitioner Payne was convicted by a Tennessee jury of the first-degree murders of Charisse Christopher and her 2-year-old daughter, and of first-degree assault upon, with intent to murder, Charisse’s 3-year-old son Nicholas. The brutal crimes were committed in the victims’ apartment after Charisse resisted Payne’s sexual advances. During the sentencing phase of the trial, Payne called his parents, his girlfriend, and a clinical psychologist, each of whom testified as to various mitigating aspects of his background and character. The State called Nicholas’ grandmother, who testified that the child missed his mother and baby sister. In arguing for the death penalty, the prosecutor commented on the continuing effects on Nicholas of his experience and on the effects of the crimes upon the victims’ family. The jury sentenced Payne to death on each of the murder counts. The State Supreme Court affirmed, rejecting his contention that the admission of the grandmother’s testimony and the State’s closing argument violated his Eighth Amendment rights under Booth v. Maryland, 482 U. S. 496, and South Carolina v. Gathers, 490 U. S. 805, which held that evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family are per se inadmissible at a capital sentencing hearing. Held: The Eighth Amendment erects no per se bar prohibiting a capital sentencing jury from considering “victim impact” evidence relating to the victim’s personal characteristics and the emotional impact of the murder on the victim’s family, or precluding a prosecutor from arguing such evidence at a capital sentencing hearing. To the extent that this Court held to the contrary in Booth and Gathers, those cases are overruled. Pp. 817-830. (a) There are numerous infirmities in the rule created by Booth and Gathers. Those cases were based on two premises: that evidence relating to a particular victim or to the harm caused a victim’s family does not in general reflect on the defendant’s “blameworthiness,” and that only evidence of “blameworthiness” is relevant to the capital sentencing decision. See Booth, supra, at 504-505. However, assessment of the harm caused by the defendant has long been an important factor in determining the appropriate punishment, and victim impact evidence is simply another method of informing the sentencing authority about such harm. In excluding such evidence, the Court in Booth, supra, at 504, misread PAYNE v. TENNESSEE 809 808 Syllabus the statement in Woodson v. North Carolina, 428 U. S. 280, 304, that the capital defendant must be treated as a “uniquely individual human bein[g].” As Gregg v. Georgia, 428 U. S. 153, 203-204, demonstrates, the Woodson language was not intended to describe a class of evidence that could not be received, but a class of evidence that must be received, i. e., any relevant, nonprejudicial material, see Barefoot v. Estelle, 463 U. S. 880, 898. The Booth Court’s misreading of precedent has unfairly weighted the scales in a capital trial. Virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances. See, e. g., Eddings v. Oklahoma, 455 U. S. 104, 114. The State has a legitimate interest in counteracting such evidence, but the Booth rule prevents it from doing so. Similarly, fairness to the prosecution requires rejection of Gathers’ extension of the Booth rule to the prosecutor’s argument, since, under the Eighth Amendment, this Court has given the capital defendant’s attorney broad latitude to argue relevant mitigating evidence reflecting on his client’s individual personality. The Court in Booth, supra, at 506-507, also erred in reasoning that it would be difficult, if not impossible, for a capital defendant to rebut victim impact evidence without shifting the focus of the sentencing hearing away from the defendant to the victim. The mere fact that for tactical reasons it might not be prudent for the defense to rebut such evidence makes the case no different from others in which a party is faced with this sort of dilemma. Nor is there merit to the concern voiced in Booth, supra, at 506, that admission of such evidence permits a jury to find that defendants whose victims were assets to their communities are more deserving of punishment than those whose victims are perceived to be less worthy. Such evidence is not generally offered to encourage comparative judgments of this kind, but is designed to show instead each victim’s uniqueness as an individual human being. In the event that victim impact evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Fourteenth Amendment’s Due Process Clause provides a mechanism for relief. See Darden v. Wainwright, 477 U. S. 168,179-183. Thus, a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase victim impact evidence. Pp. 817-827. (b) Although adherence to the doctrine of stare decisis is usually the best policy, the doctrine is not an inexorable command. This Court has never felt constrained to follow precedent when governing decisions are unworkable or badly reasoned, Smith v. Allwright, 321 U. S. 649, 655, particularly in constitutional cases, where correction through legislative action is practically impossible, Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 407 (Brandeis, J., dissenting), and in cases involving proce- 810 OCTOBER TERM, 1990 Syllabus 501 U. S. dural and evidentiary rules. Booth and Gathers were decided by the narrowest of margins, over spirited dissents challenging their basic underpinnings; have been questioned by Members of this Court in later decisions; have defied consistent application by the lower courts, see, e. g., State v. Huertas, 51 Ohio St. 3d 22, 33, 553 N. E. 2d 1058, 1070; and, for the reasons heretofore stated, were wrongly decided. Pp. 827-830. 791 S. W. 2d 10, affirmed. Rehnquist, C. J., delivered the opinion of the Court, in which White, O’Connor, Scalia, Kennedy, and Souter, JJ., joined. O’Connor, J., filed a concurring opinion, in which White and Kennedy, JJ., joined, post, p. 830. Scalia, J., filed a concurring opinion, in Part II of which O’Connor and Kennedy, JJ., joined, post, p. 833. Souter, J., filed a concurring opinion, in which Kennedy, J., joined, post, p. 835. Marshall, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 844. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 856. J. Brooke Lathram argued the cause and filed briefs for petitioner. Charles W. Burson, Attorney General of Tennessee, argued the cause for respondent. With him on the brief was Kathy M. Principe, Assistant Attorney General. Attorney General Thornburgh argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Stephen L. Nightingale.* *Stephen B. Bright and J. L. Chestnut filed a brief for the Southern Christian Leadership Conference as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger; for the Washington Legal Foundation et al. by Richard K. Willard, Daniel J. Popeo, Paul D. Kamenar, and Richard Samp; and for Congressman Thomas J. Bliley, Jr., et al. by Michael J. Lockerby and Frank G. Carrington. Briefs of amid curiae were filed for the State of Alabama et al. by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Harley D. Mayfield, Senior Assistant Attorney General, Frederick R. Millar, Jr., Supervising Deputy Attorney General, and Louis R. Hanoian, Deputy Attorney General, James H. Evans, Attorney General of Alabama, Grant Woods, Attorney General of Arizona, PAYNE v. TENNESSEE 811 808 Opinion of the Court Chief Justice Rehnquist delivered the opinion of the Court. In this case we reconsider our holdings in Booth v. Maryland, 482 U. S. 496 (1987), and South Carolina v. Gathers, 490 U. S. 805 (1989), that the Eighth Amendment bars the admission of victim impact evidence during the penalty phase of a capital trial. Petitioner, Pervis Tyrone Payne, was convicted by a jury on two counts of first-degree murder and one count of assault with intent to commit murder in the first degree. He was sentenced to death for each of the murders and to 30 years in prison for the assault. The victims of Payne’s offenses were 28-year-old Charisse Christopher, her 2-year-old daughter Lacie, and her 3-year-old son Nicholas. The three lived together in an apartment in Millington, Tennessee, across the hall from Payne’s girlfriend, Bobbie Thomas. On Saturday, June 27, 1987, Payne visited Thomas’ apartment several times in expectation of her return from her mother’s house in Arkansas, but found no one at home. On one visit, he left his overnight bag, con Gale A. Norton, Attorney General of Colorado, John J. Kelly, Chief State’s Attorney of Connecticut, Robert A. Butterworth, Attorney General of Florida, Linley E. Pearson, Attorney General of Indiana, Frederic J. Cowan, Attorney General of Kentucky, J. Joseph Curran, Jr., Attorney General of Maryland, Mike Moore, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Robert J. Del Tufa, Attorney General of New Jersey, Lacy H. Thornburg, Attorney General of North Carolina, Lee Fisher, Attorney General of Ohio, Dave Frohnmayer, Attorney General of Oregon, Ernest D. Preatb, Jr., Attorney General of Pennsylvania, T. Travis Medlock, Attorney General of South Carolina, Mark W. Barnett, Attorney General of South Dakota, and Kenneth 0. Eikenberry, Attorney General of Washington; for the Appellate Committee of the California District Attorneys Association by Ira Reiner, Harry B. Sondheim, and Martha E. Bellinger; for the Justice for All Political Committee et al. by Mario Thomas Gaboury and Sally S. King; and for the National Organization for Victim Assistance et al. by Judith Rowland. 812 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. taining clothes and other items for his weekend stay, in the hallway outside Thomas’ apartment. With the bag were three cans of malt liquor. Payne passed the morning and early afternoon injecting cocaine and drinking beer. Later, he drove around the town with a friend in the friend’s car, each of them taking turns reading a pornographic magazine. Sometime around 3 p.m., Payne returned to the apartment complex, entered the Christophers’ apartment, and began making sexual advances towards Charisse. Charisse resisted and Payne became violent. A neighbor who resided in the apartment directly beneath the Christophers heard Charisse screaming, “‘Get out, get out,’ as if she were telling the children to leave.” Brief for Respondent 3. The noise briefly subsided and then began, “ ‘horribly loud.’” Ibid. The neighbor called the police after she heard a “blood curdling scream” from the Christophers’ apartment. Ibid. When the first police officer arrived at the scene, he immediately encountered Payne, who was leaving the apartment building, so covered with blood that he appeared to be “‘sweating blood.’” The officer confronted Payne, who responded, “‘I’m the complainant.’” Id., at 3-4. When the officer asked, ‘“What’s going on up there?’” Payne struck the officer with the overnight bag, dropped his tennis shoes, and fled. 791 S. W. 2d 10, 12 (Tenn. 1990). Inside the apartment, the police encountered a horrifying scene. Blood covered the walls and floor throughout the unit. Charisse and her children were lying on the floor in the kitchen. Nicholas, despite several wounds inflicted by a butcher knife that completely penetrated through his body from front to back, was still breathing. Miraculously, he survived, but not until after undergoing seven hours of surgery and a transfusion of 1,700 cc’s of blood—400 to 500 cc’s more than his estimated normal blood volume. Charisse and Lacie were dead. PAYNE v. TENNESSEE 813 808 Opinion of the Court Charisse’s body was found on the kitchen floor on her back, her legs fully extended. She had sustained 42 direct knife wounds and 42 defensive wounds on her arms and hands. The wounds were caused by 41 separate thrusts of a butcher knife. None of the 84 wounds inflicted by Payne were individually fatal; rather, the cause of death was most likely bleeding from all of the wounds. Lacie’s body was on the kitchen floor near her mother. She had suffered stab wounds to the chest, abdomen, back, and head. The murder weapon, a butcher knife, was found at her feet. Payne’s baseball cap was snapped on her arm near her elbow. Three cans of malt liquor bearing Payne’s fingerprints were found on a table near her body, and a fourth empty one was on the landing outside the apartment door. Payne was apprehended later that day hiding in the attic of the home of a former girlfriend. As he descended the stairs of the attic, he stated to the arresting officers, “ ‘Man, I ain’t killed no woman.’” Id., at 13. According to one of the officers, Payne had “‘a wild look about him. His pupils were contracted. He was foaming at the mouth, saliva. He appeared to be very nervous. He was breathing real rapid.’” Ibid. He had blood on his body and clothes and several scratches across his chest. It was later determined that the blood stains matched the victims’ blood types. A search of his pockets revealed a packet containing cocaine residue, a hypodermic syringe wrapper, and a cap from a hypodermic syringe. His overnight bag, containing a bloody white shirt, was found in a nearby dumpster. At trial, Payne took the stand and, despite the overwhelming and relatively uncontroverted evidence against him, testified that he had not harmed any of the Christophers. Rather, he asserted that another man had raced by him as he was walking up the stairs to the floor where the Christophers lived. He stated that he had gotten blood on himself when, after hearing moans from the Christophers’ apartment, he 814 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. had tried to help the victims. According to his testimony, he panicked and fled when he heard police sirens and noticed the blood on his clothes. The jury returned guilty verdicts against Payne on all counts. During the sentencing phase of the trial, Payne presented the testimony of four witnesses: his mother and father, Bobbie Thomas, and Dr. John T. Hutson, a clinical psychologist specializing in criminal court evaluation work. Bobbie Thomas testified that she met Payne at church, during a time when she was being abused by her husband. She stated that Payne was a very caring person, and that he devoted much time and attention to her three children, who were being affected by her marital difficulties. She said that the children had come to love him very much and would miss him, and that he “behaved just like a father that loved his kids.” She asserted that he did not drink, nor did he use drugs, and that it was generally inconsistent with Payne’s character to have committed these crimes. Dr. Hutson testified that based on Payne’s low score on an IQ test, Payne was “mentally handicapped.” Hutson also said that Payne was neither psychotic nor schizophrenic, and that Payne was the most polite prisoner he had ever met. Payne’s parents testified that their son had no prior criminal record and had never been arrested. They also stated that Payne had no history of alcohol or drug abuse, he worked with his father as a painter, he was good with children, and he was a good son. The State presented the testimony of Charisse’s mother, Mary Zvolanek. When asked how Nicholas had been affected by the murders of his mother and sister, she responded: “He cries for his mom. He doesn’t seem to understand why she doesn’t come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I PAYNE v. TENNESSEE 815 808 Opinion of the Court tell him yes. He says, I’m worried about my Lacie.” App. 3. In arguing for the death penalty during closing argument, the prosecutor commented on the continuing effects of Nicholas’ experience, stating: “But we do know that Nicholas was alive. And Nicholas was in the same room. Nicholas was still conscious. His eyes were open. He responded to the paramedics. He was able to follow their directions. He was able to hold his intestines in as he was carried to the ambulance. So he knew what happened to his mother and baby sister.” Id., at 9. “There is nothing you can do to ease the pain of any of the families involved in this case. There is nothing you can do to ease the pain of Bernice or Carl Payne, and that’s a tragedy. There is nothing you can do basically to ease the pain of Mr. and Mrs. Zvolanek, and that’s a tragedy. They will have to live with it the rest of their lives. There is obviously nothing you can do for Charisse and Lacie Jo. But there is something that you can do for Nicholas. “Somewhere down the road Nicholas is going to grow up, hopefully. He’s going to want to know what happened. And he is going to know what happened to his baby sister and his mother. He is going to want to know what type of justice was done. He is going to want to know what happened. With your verdict, you will provide the answer.” Id., at 12. In the rebuttal to Payne’s closing argument, the prosecutor stated: “You saw the videotape this morning. You saw what Nicholas Christopher will carry in his mind forever. When you talk about cruel, when you talk about atrocious, and when you talk about heinous, that picture will 816 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. always come into your mind, probably throughout the rest of your lives. . . . "... No one will ever know about Lacie Jo because she never had the chance to grow up. Her life was taken from her at the age of two years old. So, no there won’t be a high school principal to talk about Lacie Jo Christopher, and there won’t be anybody to take her to her high school prom. And there won’t be anybody there—there won’t be her mother there or Nicholas’ mother there to kiss him at night. His mother will never kiss him good night or pat him as he goes off to bed, or hold him and sing him a lullaby. “[Petitioner’s attorney] wants you to think about a good reputation, people who love the defendant and things about him. He doesn’t want you to think about the people who love Charisse Christopher, her mother and daddy who loved her. The people who loved little Lacie Jo, the grandparents who are still here. The brother who mourns for her every single day and wants to know where his best little playmate is. He doesn’t have anybody to watch cartoons with him, a little one. These are the things that go into why it is especially cruel, heinous, and atrocious, the burden that that child will carry forever.7 Id., at 13-15. The jury sentenced Payne to death on each of the murder counts. The Supreme Court of Tennessee affirmed the conviction and sentence. 791 S. W. 2d 10 (1990). The court rejected Payne’s contention that the admission of the grandmother’s testimony and the State’s closing argument constituted prejudicial violations of his rights under the Eighth Amendment as applied in Booth v. Maryland, 482 U. S. 496 (1987), and South Carolina v. Gathers, 490 U. S. 805 (1989). The court characterized the grandmother’s testimony as “technically ir PAYNE v. TENNESSEE 817 808 Opinion of the Court relevant,” but concluded that it “did not create a constitutionally unacceptable risk of an arbitrary imposition of the death penalty and was harmless beyond a reasonable doubt.” 791 S. W. 2d, at 18. The court determined that the prosecutor’s comments during closing argument were “relevant to [Payne’s] personal responsibility and moral guilt.” Zd., at 19. The court explained that “[w]hen a person deliberately picks a butcher knife out of a kitchen drawer and proceeds to stab to death a twenty-eight-year-old mother, her two and one-half year old daughter and her three and one-half year old son, in the same room, the physical and mental condition of the boy he left for dead is surely relevant in determining his ‘blameworthiness.’” The court concluded that any violation of Payne’s rights under Booth and Gathers “was harmless beyond a reasonable doubt.” Ibid. We granted certiorari, 498 U. S. 1080 (1991), to reconsider our holdings in Booth and Gathers that the Eighth Amendment prohibits a capital sentencing jury from considering “victim impact” evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family. In Booth, the defendant robbed and murdered an elderly couple. As required by a state statute, a victim impact statement was prepared based on interviews with the victims’ son, daughter, son-in-law, and granddaughter. The statement, which described the personal characteristics of the victims, the emotional impact of the crimes on the family, and set forth the family members’ opinions and characterizations of the crimes and the defendant, was submitted to the jury at sentencing. The jury imposed the death penalty. The conviction and sentence were affirmed on appeal by the State’s highest court. This Court held by a 5-to-4 vote that the Eighth Amendment prohibits a jury from considering a victim impact statement at the sentencing phase of a capital trial. The Court 818 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. made clear that the admissibility of victim impact evidence was not to be determined on a case-by-case basis, but that such evidence was per se inadmissible in the sentencing phase of a capital case except to the extent that it “relate[d] directly to the circumstances of the crime.” 482 U. S., at 507, n. 10. In Gathers, decided two years later, the Court extended the rule announced in Booth to statements made by a prosecutor to the sentencing jury regarding the personal qualities of the victim. The Booth Court began its analysis with the observation that the capital defendant must be treated as a “ ‘uniquely individual human bein[g],’ ” 482 U. S., at 504 (quoting Woodson v. North Carolina, 428 U. S. 280, 304 (1976)), and therefore the Constitution requires the jury to make an individualized determination as to whether the defendant should be executed based on the “ ‘character of the individual and the circumstances of the crime.’” 482 U. S., at 502 (quoting Zant v. Stephens, 462 U. S. 862, 879 (1983)). The Court concluded that while no prior decision of this Court had mandated that only the defendant’s character and immediate characteristics of the crime may constitutionally be considered, other factors are irrelevant to the capital sentencing decision unless they have “some bearing on the defendant’s ‘personal responsibility and moral guilt.’” 482 U. S., at 502 (quoting Enmund v. Florida, 458 U. S. 782, 801 (1982)). To the extent that victim impact evidence presents “factors about which the defendant was unaware, and that were irrelevant to the decision to kill,” the Court concluded, it has nothing to do with the “blameworthiness of a particular defendant.” 482 U. S., at 504, 505. Evidence of the victim’s character, the Court observed, “could well distract the sentencingjury from its constitutionally required task [of] determining whether the death penalty is appropriate in light of the background and record of the accused and the particular circumstances of the crime.” The Court concluded that, except to the extent that victim impact evidence relates “di- PAYNE v. TENNESSEE 819 808 Opinion of the Court rectly to the circumstances of the crime,” id., at 507, and n. 10, the prosecution may not introduce such evidence at a capital sentencing hearing because “it creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner,” id., at 505. Booth and Gathers were based on two premises: that evidence relating to a particular victim or to the harm that a capital defendant causes a victim’s family do not in general reflect on the defendant’s “blameworthiness,” and that only evidence relating to “blameworthiness” is relevant to the capital sentencing decision. However, the assessment of harm caused by the defendant as a result of the crime charged has understandably been an important concern of the criminal law, both in determining the elements of the offense and in determining the appropriate punishment. Thus, two equally blameworthy criminal defendants may be guilty of different offenses solely because their acts cause differing amounts of harm. “If a bank robber aims his gun at a guard, pulls the trigger, and kills his target, he may be put to death. If the gun unexpectedly misfires, he may not. His moral guilt in both cases is identical, but his responsibility in the former is greater.” Booth, 482 U. S., at 519 (Scalia, J., dissenting). The same is true with respect to two defendants, each of whom participates in a robbery, and each of whom acts with reckless disregard for human life; if the robbery in which the first defendant participated results in the death of a victim, he may be subjected to the death penalty, but if the robbery in which the second defendant participates does not result in the death of a victim, the death penalty may not be imposed. Tison v. Arizona, 481 U. S. 137, 148 (1987). The principles which have guided criminal sentencing—as opposed to criminal liability—have varied with the times. The book of Exodus prescribes the Lex talionis, “An eye for an eye, a tooth for a tooth.” Exodus 21: 22-23. In England and on the continent of Europe, as recently as the 18th century, crimes which would be regarded as quite minor today 820 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. were capital offenses. Writing in the 18th century, the Italian criminologist Cesare Beccaria advocated the idea that “the punishment should fit the crime.” He said that “[w]e have seen that the true measure of crimes is the injury done to society.” J. Farrer, Crimes and Punishments 199 (1880). Gradually the list of crimes punishable by death diminished, and legislatures began grading the severity of crimes in accordance with the harm done by the criminal. The sentence for a given offense, rather than being precisely fixed by the legislature, was prescribed in terms of a minimum and a maximum, with the actual sentence to be decided by the judge. With the increasing importance of probation, as opposed to imprisonment, as a part of the penological process, some States such as California developed the “indeterminate sentence,” where the time of incarceration was left almost entirely to the penological authorities rather than to the courts. But more recently the pendulum has swung back. The Federal Sentencing Guidelines, which went into effect in 1987, provided for very precise calibration of sentences, depending upon a number of factors. These factors relate both to the subjective guilt of the defendant and to the harm caused by his acts. Wherever judges in recent years have had discretion to impose sentence, the consideration of the harm caused by the crime has been an important factor in the exercise of that discretion: “The first significance of harm in Anglo-American jurisprudence is, then, as a prerequisite to the criminal sanction. The second significance of harm—one no less important to judges—is as a measure of the seriousness of the offense and therefore as a standard for determining the severity of the sentence that will be meted out.” S. Wheeler, K. Mann, & A. Sarat, Sitting in Judgment: The Sentencing of White-Collar Criminals 56 (1988). Whatever the prevailing sentencing philosophy, the sentencing authority has always been free to consider a wide range of PAYNE v. TENNESSEE 821 808 Opinion of the Court relevant material. Williams n. New York, 337 U. S. 241 (1949). In the federal system, we observed that “a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Tucker, 404 U. S. 443, 446 (1972). Even in the context of capital sentencing, prior to Booth the joint opinion of Justices Stewart, Powell, and Stevens in Gregg n. Georgia, 428 U. S. 153, 203-204 (1976), had rejected petitioner’s attack on the Georgia statute because of the “wide scope of evidence and argument allowed at presentence hearings.” The joint opinion stated: “We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. ... So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision.” The Maryland statute involved in Booth required that the presentence report in all felony cases include a “victim impact statement” which would describe the effect of the crime on the victim and his family. Booth, supra, at 498. Congress and most of the States have, in recent years, enacted similar legislation to enable the sentencing authority to consider information about the harm caused by the crime committed by the defendant. The evidence involved in the present case was not admitted pursuant to any such enactment, but its purpose and effect were much the same as if it had been. While the admission of this particular kind of evidence—designed to portray for the sentencing authority the actual harm caused by a particular crime—is of recent origin, this fact hardly renders it unconstitutional. Williams v. Florida, 399 U. S. 78 (1970) (upholding the constitutionality of a 822 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. notice-of-alibi statute, of a kind enacted by at least 15 States dating from 1927); United States v. DiFrancesco, 449 U. S. 117, 142 (1980) (upholding against a double jeopardy challenge an Act of Congress representing “a considered legislative attempt to attack a specific problem in our criminal justice system, that is, the tendency on the part of some trial judges ‘to mete out fight sentences in cases involving organized crime management personnel’ ”). We have held that a State cannot preclude the sentencer from considering “any relevant mitigating evidence” that the defendant proffers in support of a sentence less than death. Eddings v. Oklahoma, 455 U. S. 104, 114 (1982). See also Skipper v. South Carolina, 476 U. S. 1 (1986). Thus we have, as the Court observed in Booth, required that the capital defendant be treated as a “‘uniquely individual human bein[g],’” 482 U. S., at 504 (quoting Woodson v. North Carolina, 428 U. S., at 304). But it was never held or even suggested in any of our cases preceding Booth that the defendant, entitled as he was to individualized consideration, was to receive that consideration wholly apart from the crime which he had committed. The language quoted from Woodson in the Booth opinion was not intended to describe a class of evidence that could not be received, but a class of evidence which must be received. Any doubt on the matter is dispelled by comparing the language in Woodson with the language from Gregg n. Georgia, quoted above, which was handed down the same day as Woodson. This misreading of precedent in Booth has, we think, unfairly weighted the scales in a capital trial; while virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances, the State is barred from either offering “a quick glimpse of the life” which a defendant “chose to extinguish,” Mills v. Maryland, 486 U. S. 367, 397 (1988) (Rehnquist, C. J., dissenting), or demonstrating the loss to the victim’s family and to society which has resulted from the defendant’s homicide. PAYNE v. TENNESSEE 823 808 Opinion of the Court The Booth Court reasoned that victim impact evidence must be excluded because it would be difficult, if not impossible, for the defendant to rebut such evidence without shifting the focus of the sentencing hearing away from the defendant, thus creating a “‘mini-trial’ on the victim’s character.” Booth, supra, at 506-507. In many cases the evidence relating to the victim is already before the jury at least in part because of its relevance at the guilt phase of the trial. But even as to additional evidence admitted at the sentencing phase, the mere fact that for tactical reasons it might not be prudent for the defense to rebut victim impact evidence makes the case no different than others in which a party is faced with this sort of a dilemma. As we explained in rejecting the contention that expert testimony on future dangerousness should be excluded from capital trials, “the rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the factfinder, who would have the benefit of cross-examination and contrary evidence by the opposing party.” Barefoot v. Estelle, 463 U. S. 880, 898 (1983). Payne echoes the concern voiced in Booth’s case that the admission of victim impact evidence permits a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. Booth, supra, at 506, n. 8. As a general matter, however, victim impact evidence is not offered to encourage comparative judgments of this kind—for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim’s “uniqueness as an individual human being,” whatever the jury might think the loss to the community resulting from his death might be. The facts of Gathers are an excellent illustration of this: The evidence showed that the victim was an out of work, mentally handicapped individual, per 824 OCTOBER TERM, 1990 Opinion of the Court 501 U. S. haps not, in the eyes of most, a significant contributor to society, but nonetheless a murdered human being. Under our constitutional system, the primary responsibility for defining crimes against state law, fixing punishments for the commission of these crimes, and establishing procedures for criminal trials rests with the States. The state laws respecting crimes, punishments, and criminal procedure are, of course, subject to the overriding provisions of the United States Constitution. Where the State imposes the death penalty for a particular crime, we have held that the Eighth Amendment imposes special limitations upon that process. “First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot challenge the sentencer’s discretion, but must allow it to consider any relevant information offered by the defendant.” McCleskey n. Kemp, 481 U. S. 279, 305-306 (1987). But, as we noted in California v. Ramos, 463 U. S. 992, 1001 (1983), “[b]eyond these limitations . . . the Court has deferred to the State’s choice of substantive factors relevant to the penalty determination.”